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Energy

Litigation Over the Clean Power Plan: The Big Picture

By | Energy, Manufacturers’ Center for Legal Action, Shopfloor Legal, Shopfloor Main | No Comments

The entire bench of the federal appeals court in the District of Columbia is hearing nearly 4 hours of arguments tomorrow in 39 lawsuits challenging the Obama Administration’s Clean Power Plan regulation. The challengers represent a broad swath of industries, including mining, transportation, electric utilities, manufacturers, and consumers of energy, as well as 27 states.

The Manufacturers’ Center for Legal Action, joined by a manufacturing coalition of more than a dozen other national trade groups, is involved in this case because we are very concerned that the Environmental Protection Agency has imposed a set of regulations on electric utility companies that is not authorized by, and contradicts specific provisions of, the Clean Air Act. The rule’s goal is to restructure the power sector by imposing emissions limits that are unachievable without switching fuel inputs. This could undermine the reliability of the electric grid and cause higher energy rates for consumers, including manufacturers in the United States. A ruling in favor of the rule would set EPA up to impose greenhouse gas regulations on many other sectors of manufacturing.

This case has all the earmarks of a major case that will wind up in the Supreme Court, probably in the fall of 2017. Normally only 3 judges would hear this first round of arguments, but the appellate court decided to go straight to the full panel of 10 (not counting Chief Judge Garland, who is not participating). This unusual step signals that the judges consider this case extraordinary, and the court has set aside its largest courtroom and two overflow rooms for the large anticipated attendance from litigants and the public.

This regulation is of existential importance for certain sectors, and will put substantial upward pressure on energy costs for many manufacturers and other consumers. But beyond raising legal issues of statutory construction, administrative procedure and constitutional compliance, the Clean Power Plan is a prototype for the kind of regulation that tests the limits of the Executive Branch. Whoever wins the upcoming election, the next Administration will have to live within the contours of decisions like the one in this case. The power to regulate comes from the Constitution and the laws enacted in compliance with it, and the courts stand as the final judge on how far that authority goes.

Politics’ Corrosive Effect on Jobs Has Gone Too Far

By | Economy, Energy, Presidents Blog, Shopfloor Main, Shopfloor Policy, Trade | No Comments

Lost in the news about today’s jobs numbers is politics’ corrosive effect on future labor reports and our nation’s standing in the world. Actions and debates underway in America today are erecting walls to long-term prosperity for millions of manufacturers. It’s wrong that this administration’s policies have caused health care costs to skyrocket, while policymakers use red tape to regulate many manufacturers out of business.

It’s unfortunate that critical energy infrastructure projects, such as the Dakota Access pipeline, are threatened, resulting in less energy independence and slower job growth. And it’s a failure of leadership when those seeking to serve us in elected office attack the very reasons we’re great, such as global trade and our free enterprise system.

Manufacturers—and all Americans—are looking for more than what we see on the campaign trail and by this administration. As we pause to celebrate Labor Day and the achievements of workers that made this country exceptional, policymakers should be reminded that we won’t settle for mediocrity. Americans deserve and expect leaders to partner with us to compete and win every day.

Manufacturers Hope Reason Will Prevail in Latest Pipeline Battle

By | Energy, Shopfloor Main, Shopfloor Policy | No Comments

A few months ago, I testified before the Senate Energy and Natural Resources Committee on the importance of pipeline infrastructure to manufacturers. What struck me the most about this hearing is that, on an issue that has been so filled with partisanship and vitriol in recent years—see Keystone XL—every single member of the committee that day rose above the talking points and had a thoughtful, productive conversation about the opportunities and challenges confronting new pipelines. There were different points of view on how best to balance economic growth, energy security and public health and safety. However, every member of that panel recognized that, yes, we are going to need more pipelines to meet changing domestic supply and demand for energy.

That’s why I’m shaking my head today as I watch the same tired script unfold over the latest pipeline to begin construction, the Dakota Access Pipeline. Dakota Access will bring crude oil developed in North Dakota through South Dakota and Iowa into Illinois. The project enjoys the support of a wide range of labor unions, chambers of commerce, agricultural groups and economic development authorities. The project’s sponsors ran the gauntlet and secured every federal, state and local permit needed to begin construction; however, just as construction commenced, the lawsuits began, protests got heated, and now we’re rapidly moving toward another round of political theater over a pipeline project.

Manufacturers support the Dakota Access Pipeline. Dakota Access ensures long-term access to competitively priced oil for industrial uses and as an input good for many manufactured goods, such as petrochemicals, to process gas and transportation fuels and to power operations. Manufacturers also make up the supply chain for the project: between 32 and 37 percent of the cost of constructing an oil pipeline is directly for manufacturing inputs. The major types of manufactured goods used include equipment, line pipe, fittings, coatings and booster stations, including pumps. A report written by IHS Economics for the National Association of Manufacturers in early 2016 estimates that at least 66 different manufacturing subsectors (out of 86 total) benefited from the construction of crude oil pipelines by $10 million or more in 2015. Overall, construction and operation of crude oil pipelines will have meant $7.6 billion to manufacturing in 2015 and 2016 and led to the creation of 28,438 manufacturing jobs in 2016.

 

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There will always be protesters, and there will always be critics. It wouldn’t be America if there weren’t. Heck, I know a guy who once created a Twitter handle just so he could criticize the TV broadcast of the U.S. Open.

Ultimately, though, it’s the job of the regulators to listen to all the points in support and against and render a decision. That’s what happened here. North Dakota signed off. So did South Dakota. And Iowa. And Illinois. And the Army Corps of Engineers. The government got this one right; now it’s time to start building.

Delays in construction cause idled assembly lines, breached contracts and a domino effect that ripples up and down supply chains, injuring manufacturers every step of the way. We can’t let this happen. Here’s hoping that, much like that day in the Senate a few months ago, we can rise above the politics and let reason prevail.

Good News in Case Against “Legal Fraud of the Century”

By | Energy, Shopfloor Legal, Shopfloor Main | No Comments

There’s some good news today from the U.S. Court of Appeals for the Second Circuit in Chevron’s long-running battle over a court ruling in Ecuador that was obtained through a fraudulent scheme. The court affirmed the lower court’s decision, ruling that Chevron does not have to pay billions of dollars in damages because the original verdict was the product of fraud and racketeering activity.

If you’re a regular Shopfloor reader, you will recall many of the details of this case against Chevron, which has been referred to as the legal fraud of the century.” You can read more about the Second Circuit’s verdict and the long, drawn-out court battle here.

The case involves an American plaintiffs’ lawyer drumming up a lawsuit against Chevron for environmental damage in Ecuador, even though Chevron has never operated in Ecuador. As the case unraveled in a very public battle, it turned into a saga of fabricated evidence, intimidation and bribery—or unscrupulous lawyers and corrupt government officials conspiring to make billions they did not deserve.

In short, this case is a reminder that bad actors do try to pervert the justice system for their own financial gain—and that we must remain vigilant against such fraud and corruption. The Second Circuit’s ruling is a victory for Chevron and the people they employ, but more importantly for the rule of the law.

Court Ruling Pushes EPA Toward More Regulation

By | Energy, Manufacturers’ Center for Legal Action, Shopfloor Legal, Shopfloor Main | No Comments

Government agencies have a tremendous advantage when it comes to defending new regulations in court. Judges start with a legal presumption that not only gives the benefit of the doubt to the agency, but sets a very high bar for reversing rules that most people might not have issued. As long as an agency’s rules are authorized by statute and not clearly erroneous or otherwise an abuse of discretion, courts will accept them.

That’s what the D.C. Circuit did today when it largely upheld the Environmental Protection Agency’s (EPA) rules on boilers and incinerators. All of the challenges to the rules by the Manufacturers’ Center for Legal Action and other business organizations were rejected by the appellate court. The court upheld one EPA requirement that could not be met by any small, remote incinerator or heavy oil-fired boiler in use today. It similarly rejected industry complaints about new energy assessment and recordkeeping requirements, as well as concerns about compliance with the rules when equipment malfunctions despite full compliance with regulations and due diligence by operators.

What is unusual is that the court agreed with several arguments made by environmental groups. It ordered the EPA to issue a regulation for cyclonic burn barrels and to decide whether certain other incinerators must be regulated under the Clean Air Act. The court also ordered the agency to provide further explanations about the decisions it made not to regulate emissions of a certain hazardous pollutant (non-dioxin/furan organic pollutant), about why certain exemptions should be allowed and about why it declined to regulate certain non-mercury emissions.

The bottom line is the court upheld all of the EPA’s regulations and ordered the agency to cover even more than it did, or at least give a full explanation of why it won’t.

DNC Energy Platform Long on Commands, Short on Hope

By | Energy, Shopfloor Main, Shopfloor Policy | No Comments

The most important sentence on energy in the Democratic National Committee (DNC) platform document is the one it took out: this version of the platform no longer supports an “all-of-the-above” energy strategy.

Coal is out. Nuclear energy and hydropower aren’t even mentioned once in the platform. This version seeks to pick winners and losers in the energy space and remake the energy mix the way the DNC platform committee sees fit, regardless of what the market wants.

You know why that’s a bad idea? Because just about every time the government tries to pick winners and losers in the energy space, the government gets it wrong—like really, really wrong.

Eight years ago, we were told that coal would be the dominant electricity source for the next 50 years, that we would hit peak oil and gas and need to build new natural gas import terminals, that a renaissance of new nuclear power plants was upon us and that the vehicle fleet would transition to biofuels. Policies were put into place to adjust to those projections. Fast-forward to today, and just about every one of those predictions has been proven wrong. The one thing the government just couldn’t predict was the pace of innovation. And innovate we did: hydraulic fracturing unlocked hundreds of years’ worth of oil and gas supplies right here in the United States, renewable energy and energy-efficient products and solutions are getting cheaper by the day, the vehicle fleet is getting more efficient and electric vehicles are gaining market share, we are about to become net exporters of oil and gas, and advanced coal and nuclear technologies are getting closer to market.

Point being: a commitment to letting the market decide what energy technologies win or lose got us where we are now. And where we are now is a position of energy strength.

Take natural gas. Manufacturers have historically had an outsized reliance on natural gas. Unlike residential consumers, whose main interactions with natural gas are at the power plant and through their stoves and furnaces, manufacturers rely on natural gas for a wide range of direct and indirect uses. Manufacturers use natural gas as a fuel for direct process uses, such as drying, melting, process cooling, machine drive and refrigeration; as a fuel for direct nonprocess uses in manufacturing establishments, such as heating, ventilation, HVAC and lighting; as a fuel for indirect purposes, such as boilers used to produce electricity and steam; and as a feedstock in refining, chemicals and primary metals sectors. Domestic natural gas has transformed the U.S. economy, made our companies more competitive, created jobs and put money back in the pockets of working Americans.

Over the next decade, total demand for natural gas will increase by 40 percent. Key drivers will be power generation and manufacturing: the chemical industry alone plans to invest in 264 new projects representing $164 billion in capital investment in the United States thanks to natural gas. U.S. supply of natural gas will grow by 48 percent, more than enough to meet growing demand.

Yet, the DNC platform document wants to make it significantly harder to access this energy. It wants to stop energy exploration off the coasts, phase it down on public lands and send the Department of Justice after fossil fuel companies. All of that will make it substantially harder for manufacturers to access the energy that we need to stay competitive.

The DNC platform committee knows as much about the next eight years of our energy future as it did back in 2008. Case in point: the 2008 platform document claimed, “We know we can’t drill our way to energy independence.” Turns out we actually can, and for the most part, have.

The one thing the platform seems to ignore is innovation. Without innovation—without hope—we’re not going to solve any of our environmental challenges and take advantage of new energy opportunities.

Manufacturers File Brief Supporting Energy Access

By | Energy, Manufacturers’ Center for Legal Action, Shopfloor Legal, Shopfloor Main, Shopfloor Policy | No Comments

Yesterday, the Manufacturers’ Center for Legal Action (MCLA), the legal arm of the National Association of Manufacturers (NAM), along with eight other business and manufacturing trade groups, filed an amicus brief supporting Constitution Pipeline in the U.S. Court of Appeals for the Second Circuit. After extensive environmental, safety and economic review, the Federal Energy Regulatory Commission (FERC) had approved the critical energy infrastructure project. However, the state of New York attempted to block the project, undermining the collaborative approval process. Constitution is challenging New York’s denial of its Section 401 water permit for construction of the new natural gas pipeline.

For manufacturers, who use one-third of our nation’s energy, access to abundant and reliable energy sources is essential to our continued growth and ability to compete globally. While states play an important role under the Clean Water Act, they should not be allowed to use their permitting processes, including the issuance of water quality certificates, to unreasonably delay, exact concessions from, or scuttle federally approved projects.

“As some of the largest producers, transporters and users of natural gas in the country, many of amici’s members are directly affected by the decision under review, which denied a certification necessary for the construction of an important interstate pipeline,” said parties in the brief. “Furthermore, amici are concerned by the broader impacts of certification denials like this one on the development of much-needed natural gas infrastructure. Total natural gas demand, driven in particular by manufacturing and power generation, is poised to increase by 40 percent over the next decade, and the U.S. supply is expected to increase by 48 percent over the same period. Furthermore, explosive growth in shale gas requires the construction of new pipeline capacity. Amici thus have a strong interest in the effectuation of Congress’ policy for the efficient, transparent and predictable approval of natural gas pipelines.”

Earlier this year, the NAM released a new comprehensive study that reveals how natural gas has strengthened manufacturing and encouraged U.S. manufacturing growth and employment. This study underscores the need for critical energy infrastructure.

“Over the next decade, our nation’s demand for natural gas is only going to grow, and much of that growth is from manufacturing,” said NAM President and CEO Jay Timmons. “Our study unequivocally shows that if our growing demand is not taken seriously by policymakers, we will have a serious lack of infrastructure that will jeopardize our growth. Natural gas is responsible for millions of jobs, tens of thousands in manufacturing alone. We can’t afford to let misguided policies rob us of this valuable domestic resource.”

The MCLA serves as the leading voice of manufacturers in the courts, representing the more than 12 million men and women who make things in the United States. The MCLA strategically engages in litigation as a direct party, intervenes in litigation important to manufacturers and weighs in as amicus curiae on important cases. To learn more about the MCLA, visit our website.

Senate Committee Discusses Ozone Implementation Relief

By | Energy, Shopfloor Main, Shopfloor Policy | No Comments

Manufacturers are encouraged today to see leaders on the Senate Environment and Public Works Committee hold a meaningful hearing on ways to ease the implementation burdens from the Environmental Protection Agencys (EPA) 2015 ozone regulation. Manufacturers across the United States have shown that environmental progress and job creation can go hand in hand, but the ozone standards finalized by the administration last fall take us further from that goal. By setting the strictest ozone standards ever at a time when states and manufacturers were still working toward meeting the existing requirements, the administration decided to add another layer of red tape to job creation and economic progress.

The objectives of both bills discussed at today’s hearing—Sens. Shelley Moore Capito (R-WV) and Jeff Flake’s (R-AZ) S. 2882, the Senate companion bill to the House-passed H.R. 4775, and S. 2072, a bill offered by Sens. Orrin Hatch (R-UT) and Claire McCaskill (D-MO)—would help ease the burden from the ozone rule, while ensuring our nation’s air quality continues to improve.

At the hearing, Glenn Hamer, president and CEO of the Arizona  Chamber of Commerce & Industry, which is the National Association of Manufacturers (NAM) state allied group in Arizona, spoke to the challenges business and manufacturers in his state face to implement this regulation. Earlier this year, Hamer and NAM President and CEO Jay Timmons coauthored an op-ed highlighting those roadblocks to growth.

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Manufacturers encourage Senate leaders to continue working to address these issues and ultimately bring an ozone implementation relief bill to the floor for passage

From Poverty to Prosperity

By | Energy, Infrastructure, Shopfloor Policy | No Comments

In a small town once praised for its inspiring ability to overcome obstacles and win support for a high school rocket-building project, there’s another story of opportunity on the horizon. A new pipeline is bringing natural gas to a diverse community in a remote part of the Southwest.

Even after building a 10 megawatt solar facility in recent years, energy was still at a premium, and bringing economic development to Presidio, Texas, has been a real challenge. But as the new pipeline winds its way south, a chili processor is now willing to invest in the city’s future.

Previously, the lack of natural gas had prevented investment, but Don Biad, managing partner of the Biad Chili Company, explained that the pipeline is a game-changer for small manufacturers. “It’s the difference between whether or not our company is profitable or not profitable.”

While this economic opportunity brings a wave of hope, the pipeline also brings environmental protection into view for the local communities because much of the natural gas will power modern electricity just across the border in Mexico. Building the pipeline is also helping to rebuild the railroad—once the lifeblood of trade through the town. That’s because transporting the steel pipes sparked investments in the rails that moved them from manufacturing facilities to the pipeline construction.

Presidio sits where the Rio Conchos joins the Rio Grande in the Big Bend of Texas; as the hardworking people in this international port town like to say, the rivers join us. So when you talk to Brad Newton, executive director of the Presidio Municipal Development District, his can-do-it optimism is anchored in unity.

“We’ve been stuck in the politics of poverty, but now we’re turning the page to the promising politics of progress. And natural gas is our best, new hope for a future—a bright future.”

As Newton put it, “The people of Presidio aren’t looking for a handout; we just want a level playing field in a world economy. That’s what natural gas gives us—a chance to compete.”

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Permit Traps—Proceed at Your Own Risk

By | Energy, Infrastructure, Manufacturers’ Center for Legal Action, Shopfloor Legal, Shopfloor Policy | No Comments

Government decisions derailing permits for infrastructure projects raise serious questions about future access and the cost of energy in this country. Affordable energy supplies are critical to the viability and competitiveness of manufacturers in the United States, but equally important is the ability to obtain a wide variety of other permits to carry on routine manufacturing operations. After successfully navigating federal, state and local government requirements, as well as opposition from national environmental groups during the permit approval process, a company is authorized to do business as long as it follows the permit.

When a Clean Water Act permit is approved and the individual is in compliance, the act provides a shield against arbitrary enforcement actions and citizen suits. The permit sets those limits. Unfortunately, a company can be forced to defend itself in court when someone tries to claim that the permit requires more than it does. If undermined, the permit shield can be no shield at all, or at least a very expensive one to maintain.

That’s the situation in a case now before the U.S. Court of Appeals for the Fourth Circuit in Richmond. A citizen’s group wants the court to insert new limits in a permit that the government had considered and decided not to include. In an amicus brief, the Manufacturers’ Center for Legal Action argued that suits like this upend the process for setting and implementing water quality standards by second-guessing the interpretations of those responsible permitting authorities. They also create serious after-the-fact liability without fair notice.

This kind of regulation by litigation threatens to add another layer of government control, activated by special interest groups, on regulatory decisions. Enforcing permit requirements is appropriate, but changing the terms of a permit in the middle of production is an entirely new problem that increases uncertainty, saps the life from productive investments and dampens our ability to create and sustain jobs.