Archive for the ‘Agency Administration’ Category

Salazar Departs Interior, Remembered for Advancing Renewables

Photo by Bob Johnson, USFWS Mountain Prairie, some rights reserved.

Photo by Bob Johnson, USFWS Mountain Prairie, some rights reserved.

One of the stars of the Green Mien since its inception has been Ken Salazar, Obama’s Secretary of the Interior, who announced he would be leaving Washington to return to his home in Colorado in March. He focused Interior on renewable energy and reorganized the formerly scandal-ridden agency into three agencies with clear and separate functions. We have written about his hand in the Extractive Industries Transparency Initiative, in developing oil drilling plans in Alaska, in offshore oil and gas oversight, and much more.

The White House has given no indication as to who might succeed him, and combined with the departure of EPA’s administrator Lisa Jackson and DOE’s Steven Chu, continuity of the Obama Administration’s policies toward energy development and climate change is in question. As these vacancies are filled, expect to read about expectations for the new administrators’ goals and policies here.

Salazar has broadened the scope of Interior’s activities from its traditional focus on mining, forestry, and oil and gas development to an emphasis on renewable energy. Since 2009, the department has authorized 34 solar, wind, and geothermal energy projects, settled a 15-year legal battle with American Indian tribes, and established seven new national parks. His handling of contentious oil and gas issues, like the Deepwater Horizon spill and allowing Shell begin exploration for oil in the Arctic, drew the most headlines.

President Obama once rebuked the famously blunt former lawyer for using cowboy language. “We have our boot on their neck to make sure they got the job done,” Salazar explained, referring to Interior’s oversight of BP officials in the Deepwater Horizon spill cleanup. Hopefully we’ll be able to find another character to replace him.

War on Diesel

Diesel has gotten more than its share of coverage in environmental news recently. Fans of diesel might have liked last week’s post about a CA district court’s decision holding that RCRA does not apply to diesel exhaust, because the exhaust is neither a solid nor hazardous waste. But things aren’t looking as good for diesel this week:

  • On Tuesday, the U.S. Court of Appeals for the D.C. Circuit held that the EPA “lacked good cause for not providing formal notice-and-comment rulemaking” in a suit filed against the EPA for promulgating an interim final rule on nitrogen oxide emissions. Specifically, the interim final rule basically permitted some manufacturers of heavy-duty diesel engines to pay penalties rather than, well, comply with the actual final rule, which required a 95 percent reduction in the emissions of nitrogen oxide from heavy-duty diesel engines. Before I read the decision, I’d expected the petitioners to be angry environmentalists, but I guess it’s not surprising that they were actually manufacturers of diesel engines who had spent hundreds of millions of dollars already to bring their engines into compliance. The court vacated the interim final rule. For more details, read this post on the Jenner & Block Corporate Environmental Lawyer Blog.
  • And it was a well-timed decision: on the same day, WHO’s International Agency for Research on Cancer officially classified diesel engine exhaust as “carcinogenic to humans,” based on “sufficient” evidence that exposure to the exhaust is associated with an increased risk for lung cancer. This is a more dire outcome than diesel exhaust’s last evaluation – in 1988 it was classified only as “probably carcinogenic to humans.” Read the full story on the Atlanta Journal-Constitution.

Dear Agencies, May the Goods You Acquire Contractually Be Sustainable

Photo by lafa.pixellutions. Some rights reserved.

Sincerely, the President.

Last week law firm Pepper Hamilton threw a big wet blanket (though perhaps not undeservedly) on a new interim rule amending the Federal Acquisition Regulation (FAR) to promote sustainable choices in government contracts.

FAR is the set of rules (codified in Title 48 of the CFR) that govern government acquisition of goods and services. The interim rule – published in the Federal Register at the end of May – was intended to implement two separate Executive Orders dealing with environmental leadership and management (13423 and 13514) by requiring agencies to “leverage agency acquisitions to foster markets for sustainable technologies, materials, products, and services.”

Specifically, the new rule mandates that 95% of new contract actions for products and services (excepting weapon systems) are “energy-efficient,” “water-efficient,” “biobased,” “environmentally preferable,” “non-ozone depleting,” “contain recycled content,” or “non-toxic or less toxic alternatives.” Agencies are also required to “design, construct, maintain and operate high-performance sustainable buildings in sustainable locations.”

It’s clearly no small request.

And, unfortunately, Pepper Hamilton is able to poke a few holes in this seeming panacea for federal waste. According to the firm’s Alert, the interim rule fails to define terms like “non-toxic,” making it difficult for agencies to make well-informed decisions, and perhaps prompting manufacturers to roll out “difficult-to-prove” claims about the safety of their products.

Pepper Hamilton also calls into question one of the rules more sweeping proclamations that “[w]hen a policy in another part of the FAR is inconsistent with a policy in this part, this part […] shall take precedence for the acquisition of commercial items.” This policy preference, states Pepper Hamilton, “sweeps aside decades of carefully crafted, experience-based policies that were each developed to solve a particular government contracting problem.”

I’m so behind the spirit of the new rule that it’s hard not to bristle in its defense – I wouldn’t want to throw the sustainable baby out with the perhaps burdensome and complex regulatory bathwater. So I urge you to use the democratic process: if you have suggestions on how to make the Sustainable Acquisition amendments to FAR more air-tight, submit your comments by August 1, 2011. The interim rule went into effect May 31, 2011, but comments received will be considered in the formulation of a final rule.

%d bloggers like this: