January 15, 2016
Capitol Update

In this issue:


TransCanada Corporation has filed a Notice of Intent to initiate a claim under Chapter 11 of the North American Free Trade Agreement (NAFTA) in response to the U.S. Administration's decision to deny a Presidential Permit for the Keystone XL Pipeline on the basis that the denial was arbitrary and unjustified. Additionally, TransCanada has filed a lawsuit in the U.S. Federal Court in Houston, Texas, asserting that the President’s decision to deny construction of Keystone XL exceeded his power under the U.S. Constitution.

TransCanada’s legal actions challenge the foundation of the Administration’s decision to deny a Presidential border crossing permit for the project. In its decision, the U.S. State Department acknowledged the denial was not based on the merits of the project.

Through the NAFTA claim, TransCanada will be seeking to recover more than $15 billion in costs and damages that it has suffered as a result of the Administration's breach of its NAFTA obligations. The NAFTA claim asserts that TransCanada had every reason to expect its application would be granted as the application met the same criteria the U.S. State Department applied when approving applications to construct other similar cross-border pipelines — including the existing Keystone pipeline, which was approved in under two years, in contrast with the seven years the Administration took to make a decision on Keystone XL. The Keystone Pipeline System has transported more than 1.1 billion barrels of Canadian and American oil through Canada and the United States.

Copies of both the NAFTA and Constitutional filings can be found at: http://keystone-xl.com/facts/documents-and-links/


On January 7th, the Environmental Protection Agency’s (EPA) Science Advisory Board (SAB) released its review of EPA’s June 2015 draft “Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources.” The review synthesizes available scientific literature and data on the potential for hydraulic fracturing for oil and gas development to change the quality or quantity of drinking water resources, and identifies factors affecting the frequency or severity of any potential changes.

In general, the SAB found EPA’s overall approach to assess the potential impacts of hydraulic fracturing for oil and gas on drinking water resources, focusing on the individual stages in the HFWC, to be appropriate and comprehensive. The SAB also found that the agency provided a generally comprehensive overview of the available literature that describes the factors affecting the relationship of hydraulic fracturing and drinking water, and adequately described the findings of such published data in the draft Assessment Report.

However, the SAB identified several areas of the draft Assessment Report 41 that can be improved. The SAB expressed concerns regarding the clarity and adequacy of support for several major findings presented within the draft Assessment Report that seek to draw national-level conclusions regarding the impacts of hydraulic fracturing on drinking water resources. The SAB is concerned that these major findings are presented ambiguously within the Executive Summary and are inconsistent with the Report.

Of particular concern is the high-level conclusion statement that “We did not find evidence that hydraulic fracturing mechanisms have led to widespread, systemic impacts on drinking water resources in the United States.” The SAB found that this statement does not clearly describe the system(s) of interest (e.g., groundwater, surface water) nor the definitions of “systemic,” “widespread,” or “impacts.” The SAB is also concerned that this statement does not reflect the uncertainties and data limitations described in the body of the Report associated with such impacts. The statement is ambiguous and requires clarification and additional explanation.

The SAB has recommended that EPA revise the major statements of findings in the Executive Summary and elsewhere in the draft Assessment Report to be more precise, and to clearly link these statements to evidence provided in the body of the draft Assessment Report. The SAB also recommended that EPA discuss the significant data limitations and uncertainties, as documented in the body of the Report, when presenting the major findings.

The 133-page review may be reviewed at:  http://ppec.asme.org/key-issues/energy/ under the Issue Reports section.


On January 12th, the Committee on Science, Space, and Technology approved the Nuclear Energy Innovation Capabilities Act (H.R. 4084), a bipartisan bill to support federal research and development (R&D) and stimulate private investment in advanced nuclear reactor technologies in the United States. The bill was introduced by Energy Subcommittee Chairman Randy Weber (R-TX) along with Full Committee Ranking Member Eddie Bernice Johnson (D-TX) and Chairman Lamar Smith (R-TX). The bill was approved by voice vote.

H.R. 4084:

  • Enables the private sector to partner with national labs for the purpose of developing novel reactor concepts;
  • Leverages DOE’s supercomputing infrastructure to accelerate nuclear energy R&D;
  • Provides statutory direction for a DOE reactor-based fast neutron source that will operate as an open-access user facility; and,
  • Requires DOE to put forth a transparent, strategic, ten-year plan for prioritizing nuclear R&D programs.

Background information, as well as an analysis of the legislation, can be read at: https://science.house.gov/sites/republicans.science.house.gov/files/documents/HR4084%20Section%20by%20Section%20-%20Background.pdf

To read H.R. 4084, go to https://www.congress.gov/114/bills/hr4084/BILLS-114hr4084ih.pdf


Also on January 12th, the House Energy and Power Subcommittee held a hearing to examine the EPS Improvement Act of 2016. This bipartisan legislation would exclude certain lighting technologies, namely drivers for light-emitting diodes (LED), from the Department of Energy’s (DOE) external power supply rule, providing more certainty and clarity to manufacturers and ensuring that consumers have continued access.

By way of background, the Energy Policy Act of 2005 amended the Energy Policy and Conservation Act to, among other things, direct the Department of Energy (DOE) to establish energy conservation standards for external power supplies (EPS). By statute, EPS is defined generally as “an external power supply circuit that is used to convert household electric current into DC current or lower-voltage AC current to operate a consumer product.” As stated by DOE, the term is intended to cover those products that “convert household electric current into direct current or lower-voltage alternating current to operate a consumer product such as a laptop computer or smartphone.” In simpler terms, EPS are generally understood to be devices that connect electronics to plug-loads, such as the detachable cords that provide power to laptops and mobile devices.

Given the broad and circular statutory definition of EPS, DOE has determined that additional products should be covered by the EPS definition for purposes of regulation. For instance, in a 2014 final rule establishing efficiency standards for EPS products, DOE included as a regulated EPS product certain drivers and devices that power solid state lighting products (e.g., light-emitting diodes (LEDs) and organic light-emitting diodes (OLEDs)). DOE made this determination despite the fact that the design and use of LED drivers is distinct from the design and use of EPS.

While EPSs use a single stage power conversion, LED drivers utilize a two stage power conversion design .DOE’s EPS efficiency standards are based on a single stage design. A standard based on a single stage design is not appropriate for LED drivers. Moreover, the market for LED technologies and related-drivers and devices was not yet established when Congress defined EPS in 2005. The requirements of the DOE final EPS rule are anticipated to go into effect in February 2016.

To read the bill (unnumbered as of press time), go to: http://docs.house.gov/meetings/IF/IF03/20160112/104321/BILLS-114pih-HR_____theEPSImprovementActof2016-U2.pdf

Additional information is available on the Subcommittee’s web page: http://energycommerce.house.gov/hearing/hr-eps-improvement-act-2016


A new study by researchers from the U.S. Department of Energy’s National Renewable Energy Laboratory (NREL) and Lawrence Berkeley National Laboratory (Berkeley Lab) estimates that $2.2 billion in benefits came from reduced greenhouse gas emissions and $5.2 billion from reductions in other air pollution, in mid-range estimates, for state renewable portfolio standard (RPS) policies operating in 2013. RPS policies require utilities or other electricity providers to meet a minimum portion of their load with eligible forms of renewable electricity.

“A Retrospective Analysis of the Benefits and Impacts of U.S. Renewable Portfolio Standard” also shows national water withdrawals and water consumption by fossil-fuel plants were reduced by 830 billion gallons and 27 billion gallons in 2013, respectively.

In addition to environmental benefits, the study estimates that RPS policies supported 200,000 renewable energy-related jobs in 2013. Renewable energy jobs from RPS projects were concentrated mostly in California, where large amounts of utility-scale photovoltaic generation were being built in 2013.

While the overall benefits reported are large, the study carefully documents its methods and highlights where uncertainties exist. For example, benefits from greenhouse gas reductions were found to range from $0.7 to $6.3 billion, reflecting differences in underlying estimates of potential damages caused by climate change. Similarly, air pollution reduction benefits—which arise primarily from avoided premature mortality—were estimated to range from $2.6 to $9.9 billion in 2013, reflecting differences in underlying epidemiological literature, among other factors.

A fact sheet is available at: http://www.nrel.gov/docs/fy16osti/65409.pdf

The entire report may be viewed at: http://www.nrel.gov/docs/fy16osti/65005.pdf


As the EPA works with states, utilities, and other stakeholders to implement the Clean Power Plan, the agency has received requests for information on several subjects. To help stakeholders as they consider compliance options and approaches, EPA is hosting webinars on the various aspects of the Clean Power Plan. All webinars include a Q&A session with EPA staff.

The EPA is conducting a webinar on Renewable Energy and the Clean Power Plan on Thursday, January 28, 2016 from 2:00-3:30 PM EST. For additional information on the webinar and the Clean Power Plan, visit http://ppec.asme.org/key-issues/energy/ under the Regulations and Announcements section.

Archived webinars are available at: http://www.epa.gov/cleanpowerplantoolbox/epa-clean-power-plan-webinars


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