Daily on Energy: Defending Obama clean water rule rollback will be difficult and costly

The new regulation replaces the Obama-era waters of the U.S., or WOTUS, rule, setting a narrower definition of which waters are covered under federal Clean Water Act protections. The Trump definition, for example, excludes many ditches, all ephemeral streams, which flow with rainfall, and wetlands that aren’t directly adjacent to covered waters.

Under the new rule, farmers, ranchers, developers, manufacturers, and other land owners shouldn’t have to spend “tens of thousands of dollars on attorneys and consultants to determine whether waters on their own land fall under the control of the federal government,” Environmental Protection Agency Administrator Andrew Wheeler told reporters.

They may have to spend money on attorneys to defend the rule, though: There’s already several legal challenges waiting in the wings, from environmental groups and California, New York, and other state attorneys general who say it’s an “unlawful assault” on the Clean Water Act.

They argue the Trump administration’s rule doesn’t just roll back the Obama-era protections. It goes so far as to exclude waters that have been protected federally since the Reagan era, they say.

“And if the amount and level of intensity of litigation over the WOTUS rule it replaces was any indication, it may be many years before the courts determine that landowners may rely upon the apparent certainty in the Navigable Waters Protection Rule,” said Thaddeus Lightfoot, a partner at Dorsey & Whitney and a former Justice Department trial attorney.

This legal battle will be more logistically complicated than most: That’s because the fight must start at the district court level, and it could be in multiple different courts, in multiple different states, at the same time.

The same pattern happened during challenges to the Obama-era rule, resulting in courts pausing the rule in half of the states across the country. Some legal experts, such as former EPA water attorney Mark Ryan, are already predicting Democratic-led states could win a pause of the Trump rule.

Legally shaky justification: Environmentalists are already arguing the Trump administration is going to have a tough time defending its rule, especially since the EPA’s own science advisers have questioned whether it’s supported by science.

“The way in which all of these features, including ephemeral streams and isolated wetlands, the way in which they all play into the bigger picture, which is the health of the Chesapeake Bay, has been demonstrated. That’s what was relied upon in the 2015 rule,” said Denise Stranko, federal legislative and policy manager for the Chesapeake Bay Foundation.

“So when you’re establishing policy and the goal is to restore the integrity of the waters of the U.S. under the Clean Water Act, it seems like you need to consider the science,” she told Abby.

Trump administration officials, though, told reporters they were confident their rule would withstand legal challenge and emphasized they had to rely on science and the law.

EPA’s Science Advisory Board “doesn’t have to follow the law,” a senior EPA official told reporters. “We do.”

Welcome to Daily on Energy, written by Washington Examiner Energy and Environment Writers Josh Siegel (@SiegelScribe) and Abby Smith (@AbbySmithDC). Email [email protected] or [email protected] 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.

WOTUS BONUS, 2020 EDITION: Trump’s waters rule got some attention from two Democratic presidential candidates Thursday.

Elizabeth Warren called the rule “corruption, plain and simple.” The Massachusetts senator added, via Twitter, “Government works great for giant corporations that want to dump chemicals & toxic waste into streams and wetlands. It’s just not working for families that want to be able to drink water without being poisoned.”

Tom Steyer, the billionaire environmentalist, simply said, “We can’t continue to deny science and roll back environmental protections.”

DAVOS CHATTER ABOUT CLIMATE CHANGE POSITIONING OF BIG BANKS: JP Morgan Chase CEO Jamie Dimon told CNBC that he would “absolutely” lobby for a carbon price that returns the money to households. However, as Axios notes this morning, JP Morgan does not belong to groups supporting a carbon tax and dividend.

Dimon’s comments come after Mike Corbat, chief executive of Citibank, said Tuesday at the World Economic Forum that it is not the role of banks to pick “winners and losers.”

David Solomon, chief executive of Goldman Sachs, said this week that his bank would continue to raise money for fossil fuel companies.

The business case, for and against: Jigar Shah, a clean energy entrepreneur who is the co-founder of Generate Capital, told Josh the positioning of banks makes business sense. While BlackRock, the world’s largest asset manager, pledged last week to stop investing in companies that get more than 25% of sales from thermal coal, it put no limitation on oil and gas.

“It is obvious to everyone that coal is not necessary to provide reliable electricity,” Shah said in an email. “This same conclusion has not been reached for oil/gas. So the banks are saying, if oil/gas are essential to modern life, then these folks will get money somehow to operate. If that is the case, then they should be able to play.”

Senator Sheldon Whitehouse, Democrat of Rhode Island, told Josh that banks are setting themselves up for long-term risk by staying with fossil fuels.

“We need not look further than the Great Recession to see the consequences inflicted on working people when big banks take on too much risk in pursuit of quick profits,” Whitehouse said in an email. “These institutions have a clear responsibility to look beyond short-term fossil fuel industry profits, which are an increasingly high-risk investment as the price of renewables plummets and climate change becomes undeniable.”

HOUSE GOP AIMS FOR 1 TRILLION TREES: House Republicans’ forthcoming agenda to tackle climate change includes a proposal to help plant a trillion trees to absorb carbon dioxide.

Republicans insist the plan is no joke and illustrative of the global scale of climate change — there are only 300 billion trees currently in the United States.

“Trees are the kidneys of the Earth,” Republican Bruce Westerman of Arkansas, a lead co-sponsor of the tree-planting bill, told Josh.

The idea has powerful backers. President Trump endorsed the concept this week, announcing the U.S. would join a 1 trillion trees initiative launched at the World Economic Forum in Davos, Switzerland.

Westerman, a licensed forester, plans to introduce his “Trillion Trees Initiative” this spring with Minority Leader Kevin McCarthy. Josh obtained an early summary of the bill.

The concept spawned from remarks by an ecologist last year at a meeting held by the American Association for the Advancement of Science who said that planting 1.2 trillion trees could “cancel out” the last decade of the world’s carbon emissions.

“There is no limit to how much carbon we can store in wood,” Westerman said.

The bill is not exactly how it sounds though: The summary of the bill does not contain an actual numerical target, although a Westerman spokesperson later clarified the final legislation would set out a goal of planting 1 trillion trees globally by 2050.

“One thing I told our conference is we can be a leader in the global trillion tree initiative,” Westerman said. “We can’t plant one trillion trees in the U.S. We will have to assess what we can do in the U.S. and what our share can be.”

Read Josh’s full story posted this morning.

GAS LOBBY STAKES OUT CLIMATE POSITION: Natural gas can be part the U.S. response to climate change, the American Gas Association said in a new climate policy position statement Thursday.

“We are seeing short-sighted approaches that would impose tremendous cost on consumers and the economy while achieving little-to-no emissions reduction,” Karen Harbert, AGA’s president and CEO, said in a statement to Abby.

“Any realistic plan to continue toward a cleaner energy future will have natural gas as a foundation,” Harbert added.

That sentiment is echoed in the policy principles AGA outlined. Many of them call on policymakers to recognize natural gas as a clean and affordable energy source that can help balance increasing amounts of intermittent renewable energy on the power grid.

The statement also outlines a number of climate-related commitments its member companies are making. Many of those are familiar — further reducing methane emissions, increasing energy efficiency, and supporting renewable natural gas, as examples. It doesn’t get into specifics, such as a numeric emissions reduction target, but the statement is the first time the gas group has put together a climate policy position.

“Our members saw this moment as an important opportunity to reaffirm the natural gas utility industry’s leadership and commitment to addressing the challenge of climate change,” Harbert said.

Actions speak louder: Environmentalists noted the group didn’t speak out to oppose Trump administration plans to eliminate direct methane regulations for the oil and gas sector. “Glossy handouts are meaningless when not backed by real action. No sale here,” tweeted Mark Brownstein, senior vice president of energy for the Environmental Defense Fund.

HOUSE DEMOCRATS QUESTION EPA’S CLEANUP LAG: Streamlining and speeding cleanups of toxic sites under the Superfund program has been a major priority of the Trump administration, and Wheeler often boasts his EPA is doing a better job than its predecessor.

But Democrats on the House Energy and Commerce Committee say the numbers aren’t matching up. They’re now asking Wheeler to explain data showing an increasing backlog of unfunded cleanups, which the AP reported is the highest in 15 years and nearly triple the Obama EPA’s backlog.

“Unfortunately, the increase in the number of unfunded cleanups of Superfund sites follows repeated proposed budget cuts to the Superfund program and raises concerns the EPA is failing to effectively implement the program,” wrote Chairman Frank Pallone of New Jersey, environment subcommittee Chairman Paul Tonko of New York, and oversight subcommittee Chairwoman Diana DeGette of Colorado in a letter Thursday.

DEMOCRATS ALSO PROTEST NEPA CHANGES: More than half of the House Democratic caucus sent a letter to the White House Thursday saying its proposed changes to the National Environmental Policy Act “ignore the full extent of the climate crisis” in order to speed the approval of infrastructure projects.

The Democrats took exception to an aspect of the Council on Environmental Quality’s proposal stating environmental “effects should not be considered significant if they are remote in time, geographically remote, or the product of a lengthy causal chain.”

“The very nature of the climate crisis is that climate change impacts — such as sea level rise — can be quite remote in time and geography from the human causes of climate change, including the combustion of natural gas, oil, and coal,” the Democrats wrote.

COMINGS AND GOINGS…The long-time head of the Interstate Natural Gas Association of America, Don Santa, announced he is retiring Thursday.

Santa led the trade group for 17 years, using his position to advocate for quicker approvals of interstate pipelines, and pushing back at environmentalists’ efforts to block projects in court.

The INGAA board of directors appointed Alex Oehler, who leads TC Energy’s government relations team, as interim president while the board conducts a national search to fill the position on a permanent basis.

DOE says goodbye to McNamee: Energy Secretary Dan Brouillette credited the Federal Energy Regulatory Commission’s Bernard McNamee with helping clear a backlog of approvals for LNG export facilities. McNamee, a Republican, announced Thursday he won’t seek another term when his current one expires at the end of June.

“His bipartisan work on many important policy issues including successfully streamlining the permitting process for LNG projects at the commission will have a lasting impact on the energy industry to the benefit of all Americans,” Brouillette said of McNamee.

Energy Storage Association hires former DOE official: The group announced Friday its hiring of Marc Chupka as vice president of research and programs. Chupka was most recently a consultant at the Brattle Group, focusing on issues related to grid resilience, clean energy, and climate policy. He previously was the acting assistant secretary of energy for policy and international affairs at the Energy Department in the Clinton administration.

The Rundown

Bloomberg Gas exports have a dirty secret: a carbon footprint rivaling coal’s

Politico As Trump heads to Doral, Florida Republicans send a message on climate change

Washington Post Science ranks grown thin in Trump administration

Wall Street Journal Puerto Rico grid contractor faces mounting claims from bribery probe

New York Times E.P.A. makes it easier for cities to keep releasing raw sewage into rivers

Calendar

TUESDAY | JAN. 28

10 a.m. 2123 Rayburn. The House Energy and Commerce Committee holds a joint subcommittee hearing entitled, “Out of Control: The Impact of Wildfires on our Power Sector and the Environment.”