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FIGHTING MOVES FROM CLEAN POWER TO CLEAN WATER: The Supreme Court is taking up a fight over the Obama administration’s far-reaching water rule, one day after the Environmental Protection Agency released its proposed repeal of the Clean Power Plan.

The Supreme Court is hearing oral arguments on the narrow jurisdictional issue of which court along the judiciary chain is allowed to rule on the Waters of the U.S. rule.

A narrow issue: The court is not taking up the merits of state and industry arguments against the water rule. The rule extends the EPA’s Clean Water Act enforcement authority over areas such as drainage ditches and livestock watering holes by defining them as “navigable waters” like a river or lake. The Army Corps of Engineers also has enforcement authority under the Obama-era regulation.

When the lawsuits were filed in both the 6th Circuit Court of Appeals and lower district courts, judges scratched their heads over which court had the proper jurisdiction to handle the overreach concerns.

Legal limbo: The case before the high court on Wednesday, National Association of Manufacturers v. Department of Defense, seeks to “cut through the costly and wasteful procedural legal limbo,” Linda Kelly, senior vice president and general counsel for the manufacturers group, said before going into arguments Wednesday morning.

‘Unfair rule’: “The Manufacturers’ Center for Legal Action has fought the Waters of the United States (WOTUS) rule in court for a simple reason: it is an overreaching and unfair rule that threatens manufacturing jobs and fails to take a balanced approach to protecting clean water,” Kelly added.
Industry favors district courts: Kelly says the district courts are the right place for the cases to be heard, “and we expect the Supreme Court will agree this is what the law requires.”

Any decision is a win: Nevertheless, Kelly said “any decision” from the high court that helps provide clarity “will be a win.”
Meanwhile, the EPA is redoing the rule. EPA Administrator Scott Pruitt told the Washington Examiner last month that a new definition of what constitutes a navigable waterway is in the works and will be issued early next year. The definition is at the heart of the overreach arguments.

It’s not clear if a resolution over the jurisdiction issue will be necessary as the Trump administration moves ahead to dismantle WOTUS. Lawmakers who had legislation to address the overreach have halted the efforts because of the Pruitt effort to roll back the water rule.  

Welcome to Daily on Energy, compiled by Washington Examiner Energy and Environment Writers John Siciliano (@JohnDSiciliano) and Josh Siegel @SiegelScribe). Email dailyonenergy@washingtonexaminer.com for tips, suggestions, calendar items and anything else. If a friend sent this to you and you’d like to sign up, click here. If signing up doesn’t work, shoot us an email and we’ll add you to our list.

NORTH KOREA TARGETING U.S. UTILITIES: On the same day the Trump administration was reaching out to utility companies on how to guard against cyber attacks, it looks like North Korea was busy trying to sabotage the U.S. grid.

A report obtained by NBC News Tuesday night showed that the North Korea government was attacking U.S. utilities with malicious software in an effort to cause a blackout.

North Korean malware attacks: The confidential report was from the cybersecurity company FireEye to private clients. It showed that North Korea hackers recently targeted U.S. electric power companies with spearphishing emails.

The emails use fake invitations to a fundraiser to target victims, according to FireEye. If the invitation is downloaded, it would be joined with malware that later could be activated to disrupt control a company’s operational systems and cause havoc.

GET READY FOR WAR GAMES: Energy Department officials on Tuesday were busy working with utilities at private and public meetings on cybersecurity to discuss next month’s cyber war games called GridEx. Officials from the energy and homeland security departments told the companies that the threat of cyber attack was real and more industry-government collaboration is needed.

An Energy Department official at the meeting said the agency was still analyzing the December 2015 attacks on Ukraine that brought down the grid.

The GridEx war games for the first time will include utilities, technology and banking companies in the exercise, which simulates cyber and physical attacks on the U.S. electricity system.

PIPELINES HAVE GOOD SAFETY RECORD, STUDY SHOWS: A new National Academies of Sciences report issued Wednesday morning points to pipelines as being one of the safest ways to move oil and natural gas.

“Between 2010 and 2016, oil transmission pipeline mileage grew by more than 40 percent,” the study says. But the “incident rates” of a spill or other accident “have been generally stable, with year-to-year fluctuations stemming from periodic high-consequence events that are sufficiently rare as to limit judgments about their underlying risk.”

As the number of pipelines increase, the “safety impact” likely will depend “on the extent to which new pipeline technologies, leak monitoring systems, and more vigilant and capable integrity management programs are effective in protecting the newer pipelines and the older ones that connect to them,” it said.

One big safety review: The study recommends that the Department of Transportation “undertake a comprehensive review of the successes and failures in responding to transportation safety challenges since 2005, in order to inform the development of more anticipatory and robust safety assurance systems.”

What else the study said:Pipelines and barges have accommodated major portions of the growth in domestic energy liquids and gases, and they have done so without major new safety problems and within the basic framework of their longstanding regulatory and safety assurance systems.”

The study was done as there are increasing concerns over the growing use of rail to haul more crude oil from North Dakota and other parts of the country that are not traditional oil producers.

Despite a few major oil train derailments in the last five years, the study said the transportation system should be applauded for stepping up to the challenge.   

A SEA OF LIQUID FUELS: The study said the rail industry has been challenged by a growing need to ship more liquid fuels in the last 12 years than ever before in rail’s history.

“The country’s increased production of crude oil, natural gas and corn-based ethanol created unforeseen demands and safety challenges on their long-distance transportation via pipelines, tank barges, and railroad tank cars,” the summary read.

Safety concerns arose first with ethanol: “The surge in domestic production of ethanol resulted in a glut of energy resources in parts of the country that lacked sufficient barge and pipeline takeaway capacity,” according to the study.

Ethanol, because of its chemical properties, is difficult to move via standard oil pipelines. “Therefore, railroads began to transport hazardous energy liquids in tank cars that had not previously carried these flammable materials in bulk and with shippers that lacked experience transporting them,” the study said.

After derailments began to rise, “the focus of industry and regulators was on reducing the severity of incidents by making relevant tank cars more crashworthy and resistant to thermal failure.”

PUERTO RICO’S SOLAR RUSH: Before Tesla billionaire Elon Musk was talking up building back Puerto Rico’s electric grid with solar panels and big batteries, there was Sunnova Energy.

Sunnova already had 10,000 solar energy installations in Puerto Rico before this year’s hurricane devastated its already fragile grid. It is the second largest power provide in Puerto Rico after the Puerto Rico Electric Power Authority and the first to start installing solar systems in early 2014.

Sunnova Energy CEO John Berger was in Puerto Rico Tuesday for talks with Gov. Ricardo Rosselló and other officials “as the company works to help with the future of the grid system on the island,” the company said.

Berger will assess Wednesday “what’s being done by local Sunnova team members and technicians on the ground,” the company said.

Big batteries: The company is rolling out a plan to ship hundreds of large, grid-enabled batteries to the island to strengthen its solar-based electricity production. It is also doing onsite repairs of some of its solar arrays.

Musk also has been meeting with Rosello about rebuilding the island’s grid using his brand of Tesla battery packs.

No mention of Musk: Berger didn’t mention Musk in a statement he released. Instead, he said he is working battery companies to learn which battery packs will be the most compatible with his company’s model of solar panels.

Why batteries? Battery packs are a means of allowing solar energy to continue delivering electricity even at night. Excess energy generated by the solar arrays during the day charge the batteries. That stored electricity can be used during the night, making solar a reliable form of 24-hour power.

“Now is the time to reshape the way power infrastructure looks on this island,” Berger said. “Particularly distributed solar and battery power, which will be essential to rebuilding the grid and ensuring future energy reliability to residents across the island.”

Next generation: He said the company is “doing everything we can to share in the collective conversation with local officials here by offering our support and working to build the next generation of clean energy infrastructure on the island.”

Where the rubber meets the road: Puerto Rico runs out of money at the end of the month, so it’s uncertain where all these talks about rebuilding will go after Oct. 31.

CALIFORNIA’S WILDFIRES FORCE CONGRESS TO CONSIDER FUNDING REFORMS: Northern California's deadly wildfires have aggravated the most expensive firefighting season on record, increasing the urgency for Congress to address funding and management challenges at the U.S. Forest Service.

The latest toll: As of Tuesday night, state officials said 17 fires across 115,000 acres of California's wine country had killed at least 17 people and damaged 2,000 structures, including homes and businesses.

Acting on an emergency: The collective damage prompted President Trump to approve a disaster declaration for California Tuesday, unlocking federal aid to supplement state and local recovery efforts. Also, a House bill introduced Tuesday night to deliver aid to Puerto Rico after Hurricane Maria includes wildfire suppression funding sought by the Trump administration.

Not a longterm answer: Despite the immediate relief, experts and lawmakers told the Washington Examiner that the emergency funding will only help the Forest Service recoup firefighting money it already spent by borrowing from other accounts.

‘Looking backwards’: "That emergency funding is really looking backwards, and I am still concerned about what happens in the future," said Rep. Bruce Westerman, R-Ark. "It does nothing to fix the fire borrowing problem or promote more management of federal lands."

The funding challenge: The problem is that under current law, forest fires are not treated the same as other natural disasters such as hurricanes. That forces the Forest Service to take money from accounts dedicated to preventative maintenance, such as clearing underbrush.

Funding, plus reform: Some Republicans, led by Westerman, are pushing for any funding to be matched by forest management reforms that they say would address the root causes of fires and prevent them from being started in the first place.

Westerman introduced legislation that addresses the funding issue, allowing extreme wildfires to qualify for money from the Federal Emergency Management Agency.

The bill also contains other, more contentious reforms allowing the Forest Service to thin trees in forests that are 10,000 acres or less without having to go through certain environmental reviews under the National Environmental Policy Act.

The climate change factor: This approach is a no-go for some Democrats, who want a quick funding fix without getting bogged down on contentious reforms, and worry Westerman’s bill weakens environmental protections too much.

They say Congress should address the funding problem first, especially as fires have become larger, more frequent and more expensive, which many climate scientists say can be attributed partly to increasing dry conditions caused by climate change.

"We're still trying to work with Republican colleagues to find a lasting solution to this problem, but we're hampered by them refusing to admit that climate change is real and contributes to the problem," said Rep. Raul Grijalva, D-Ariz., in an email to the Washington Examiner.

Read more on the dispute, here.

HOUSE PANEL TAKES UP ANTIQUITIES ACT: The House Natural Resources Committee Wednesday afternoon will mark up legislation that would limit the power of presidents to unilaterally designate public land as national monuments.

What’s in the bill: The bill, authored by Rep. Rob Bishop, R-Utah, chairman of the committee, would keep the ability for presidents to name national monuments as the 1906 Antiquities Act allows for.

Bigger not better: But it would subject monument designations to increasingly stringent rules based on size. Many Republicans accuse former President Barack Obama for abusing the law and protecting overly large swaths of public land.

Information sought: The committee also will consider a resolution requiring Interior Secretary Ryan Zinke to reveal more information about his review of 27 previous national monument designations. Trump is considering ZInke’s recommendations to reduce the size of some monuments, but details of the review have not been released.

The markup on Bishop’s bill is scheduled for 4 p.m.

SUBCOMMITTEE DEBATES BILL TO EXPAND OFFSHORE LEASING: A House Natural Resources subcommittee will review legislation Wednesday afternoon that would expand offshore oil and gas drilling.

Nixing more Obama regs: The Republican bill would cancel Obama’s restrictions on drilling in the Arctic as well as boost revenue-sharing between states that produce energy offshore. And it would authorize a study about whether to combine the Interior Department’s offshore leasing and safety regulation portfolios that were separated after the 2010 Deepwater Horizon spill.

A legislative hearing on the bill is planned for 2 p.m.

ZINKE’S TRAVEL INCLUDES SKI RESORT AND ALASKAN STEAKHOUSE: Zinke’s scrutinized travel habits have included at least two additional trips to political fundraisers while traveling for official business, according to a report Tuesday night.

Frolicking fundraisers: Zinke attended a mid-March fundraiser at a ski resort in Big Sky, Montana, his home state, organized by Republican Sen. Steve Daines, Politico reports. In May, Zinke went to a fundraiser for Republican Rep. Don Young at a steakhouse in in Anchorage, Alaska, the report said.

Previous probe: The Interior Department’s inspector general already had opened an investigation into Zinke’s use of taxpayer-funded charter planes. That probe will review Zinke’s attendance at at March 30 GOP fundraiser in the U.S. Virgin Islands where donors could pay up to $5,000 for a photo with him.

Travelgate status: Zinke is one of several Cabinet members to face scrutiny over their travel habits, including EPA Administrator Scott Pruitt and Energy Secretary Rick Perry. HHS Secretary Tom Price resigned for his frequent use of non-commercial travel.

BLOOMBERG INTENSIFIES ANTI-COAL CAMPAIGN: The Sierra Club and former New York City Mayor Michael Bloomberg will intensify their campaign to close coal-fired power plants in the wake of the EPA’s proposed repeal of the Clean Power Plan.

Bloomberg will announce the new step in the anti-coal campaign on Wednesday at around noon, according to Politico. Bloomberg is supposed to increase his commitment to closing the U.S. coal fleet, which in the past has mean a hefty donation to Sierra Club’s Beyond Coal campaign.   

BIG FRENCH BANK CUTS OFF FRACKING: The biggest publicly traded bank in France announced Wednesday that it will stop working with oil and natural gas companies whose main business is in shale or oil sands.

It also said it will stop financing new projects that are involved in the transportation or export of crude oil and natural gas from shale or oil sands.

"We're a long-standing partner to the energy sector and we're determined to support the transition to a more sustainable world," BNP Paribas Chief Executive Jean-Laurent Bonnafe said.

The big lender already had cut off coal companies and coal-fueled power plants from financing.

RUNDOWN

Wall Street Journal Power companies to stick with plans despite EPA’s repeal of emissions rule

E&E News Coal CEO Bob Murray calls Rick Perry’s proposal to help his industry “greatest action that has been taken in decades”

Bloomberg Non-existent charging infrastructure, inexperienced carmakers challenge India’s electric vehicle ambition

Chicago Tribune Climate change threatens Midwest infrastructure, report says

CNBC Michigan’s ‘largest solar park’ will produce enough electricity to power 11,000 homes

The Guardian Australia’s energy minister hits back at Tony Abbott: ‘Climate change is real’



Calendar

WEDNESDAY, OCT. 11

11 a.m.-1 p.m., webinar, The National Association of State Energy Officials and U.S. Energy Information Administration hold the Winter Energy Outlook Webinar.

naseo.org   

2 p.m., 1334 Longworth. The House Natural Resources Committee holds a hearing on amending the Outer Continental Shelf Lands Act to distribute revenue from oil and gas leasing on the outer Continental Shelf to certain coastal states, and for other purposes.

naturalresources.house.gov/calendar/eventsingle.aspx?EventID=403026  

11 p.m., PBS’s Frontline airs the documentary “War on the EPA.”

pbs.org/wgbh/frontline/film/war-on-the-epa/

THURSDAY, OCT. 12

10 a.m., 2123 Rayburn. The House Energy and Commerce Committee’s Energy Subcommittee holds a hearing on “Department of Energy Missions and Management Priorities.” Energy Secretary Rick Perry will testify as the sole witness.

energycommerce.house.gov

FRIDAY, OCT. 13

All day, Las Vegas. National Clean Energy Summit 9.0, hosted by former Senate Democratic leader Harry Reid of Nevada at the Bellagio Resort and Casino. Speakers include Al Gore and John Kasich, among others.   

cleanenergysummit.org/