OVERNIGHT ENERGY: EPA rule extends life of toxic coal ash ponds | Flint class action suit against Mich. officials can proceed, court rules | Senate Democrats introduce environmental justice bill

HAPPY THURSDAY! Welcome to Overnight Energy, The Hill’s roundup of the latest energy and environment news. Please send tips and comments to Rebecca Beitsch at rbeitsch@digital-stage.thehill.com. Follow her on Twitter: @rebeccabeitsch. Reach Rachel Frazin at rfrazin@digital-stage.thehill.com or follow her on Twitter: @RachelFrazin.

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COAL ASH EXTENDED: The Trump administration is extending the life of giant pits of toxic coal sludge, a move critics say further risks contamination of nearby water sources.

The Environmental Protection Agency (EPA) late Wednesday announced it had finalized a new regulation for the more than 400 coal ash pits across the nation, where coal residue is mixed with liquid and stored in open-air, often unlined ponds.

“Today’s action makes changes to the closure regulations for coal ash storage that enhance protections for public health while giving electric utilities enough time to retrofit or replace unlined impoundment ponds,” EPA Administrator Andrew Wheeler said in a release. 

“The public will also be better informed as EPA makes facility groundwater monitoring data more accessible and understandable,” he added.

But critics say the new rule is full of loopholes that will actually extend the life of coal ash ponds for years, giving facilities extra time to dump the arsenic-laden waste if they can’t find anywhere else to put it or have plans to retire one of their coal-burner boilers.

With those extensions, coal ash ponds that are supposed to stop receiving waste by 2021 can keep receiving sludge for two to seven more years. Including the additional time for closing ponds, that allows some pits to stay open as late as 2038.

“EPA is disingenuous. EPA is clearly fulfilling the demands of industry. This is coal lobbyist rule, this is Andrew Wheeler’s rule, and we wouldn’t expect anything different,” Earthjustice attorney Lisa Evans told The Hill, referring to Wheeler’s career as a lobbyist.

“This rule allows tens of millions of tons of additional toxic waste to be placed in impoundments we know are leaking,” she said.

The EPA has been under longstanding pressure to better regulate coal ash ponds because of the extreme risks associated with them.

An Earthjustice study review of monitoring data from coal ash ponds found 91 percent were leaking toxins in excess of what EPA allows, contaminating groundwater and drinking wells in nearby communities.

And when they aren’t leaching into groundwater, the contaminants risk spilling over the sides of the pond any time there is a heavy rain.

There have been major coal ash spills, such as in 2014 when 39,000 tons leaked into the Dan River in North Carolina or in 2008 when rains sent 5.4 million cubic yards of coal ash over the town of Kingston, Tenn.

EPA’s rule was spurred by various court decisions that urged stricter standards than those that were finalized in 2015 under the Obama administration.

Read more about the new rule here. 

FLINT CASE UPDATE: A class-action lawsuit by residents of Flint, Mich., against state and local officials over the city’s tap water can proceed, the Michigan Supreme Court ruled on Wednesday. 

State Supreme Court justices in a 4-2 decision rejected a bid to end the civil case against former Gov. Rick Snyder (R), state environmental and health authorities, and former city emergency managers.

The lawsuit alleges that actions taken by officials resulted in residents receiving contaminated water. It also claims that state officials downplayed health risks and told people it was safe to drink the water. The majority opinion stated that the residents “sufficiently alleged a claim” to have the suit proceed. 

“Viewed in the light most favorable to plaintiffs and accepting their factual allegations as true, the pleadings established that defendants’ actions were a substantial cause of the decline in plaintiffs’ property value, that defendants took affirmative actions directed at plaintiffs’ property, and that plaintiffs suffered a unique or special injury,” the opinion said. 

Two justices, however, disagreed, arguing that the plaintiffs were too late in filing their case. 

“Plaintiffs filed their complaint on January 21, 2016, and thus the event giving rise to the cause of action must have happened on or after July 21, 2015, for plaintiffs’ action to have been filed in a timely manner,” they wrote. “Because plaintiffs alleged in their complaint and in their amended complaint that the event giving rise to the cause of action was the switching of the water supply on April 25, 2014 … plaintiffs’ action was untimely.”

After a decision to change the city’s water source from Lake Huron to the Flint River, Flint residents reported hair loss, skin rashes, lead poisoning and Legionnaire’s disease, from which 12 people ultimately died.

The story is here. 

LEGISLATION ROUNDUP:

Environmental justice bill gets a companion… A group of Democratic senators on Thursday introduced companion legislation to the House’s “Environmental Justice for All” bill aimed at addressing environmental inequalities faced by low-income and non-white communities. 

The legislation, unveiled by Democratic Sens. Kamala Harris (Calif.), Cory Booker (N.J.) and Tammy Duckworth (Ill.), would require the government to consider the cumulative effects of certain permitting decisions, meaning they would have to consider how a new permit would interact with existing sources of nearby pollution. 

It would also prohibit discrimination based on disparate impacts, reinforce parts of the National Environmental Policy Act (NEPA) that require community input, and support workers whose communities are transitioning away from fossil fuel-dependent economies.

The House version of the bill was introduced in February.

Polar-izing… Rep. Jared Huffman (D-Calif.) has proposed a new bill aiming to prevent oil and gas drilling near polar bear dens, targeting the Trump administration’s plans to open up a wildlife refuge in Alaska for drilling.

The bill, introduced Thursday, would prohibit oil and gas exploration within one mile of a polar bear maternal denning habitat.

The Interior Department has found that drilling activity in an Alaska area called the Arctic National Wildlife Refuge (ANWR,) wouldn’t harm polar bears.

However, Huffman and other Democrats recently wrote a letter arguing that the agency’s assessment was not sufficiently thorough.

A provision in a 2017 tax bill opened the ANWR to drilling following years of debate over the matter and the Trump administration has since taken steps to advance drilling there.

Both bills would face significant hurdles in the GOP-led Senate.

Read more about the environmental justice bill here and more about the drilling bill here. 

COMMITTEE NEWS:

—Rep. Pete Stauber (R-Minn.) will join the House Committee on Natural Resources, filling a vacancy on the Republican side.

Stauber’s district, essentially the Northeast corner of Minnesota, includes the Boundary Waters, a popular canoeing destination straddling the border with Canada. Just outside the park lies an area targeted for critical mineral development.  

“My first term in Congress has enabled me to fight for my district’s economic drivers — including the responsible development of our God-given resources, sound forest management, and the proper supervision of local wildlife,” Stauber wrote in a release announcing his placement.

“Misguided attacks on our key economic drivers are at an all-time high, and this committee appointment will enable a direct role in the legislative process surrounding these issues for myself and my constituents.”

Stauber will retain his positions on the House Small Business Committee and the Transportation Committee.

—Natural Resources Chairman Raúl Grijalva (D-Ariz.) said Wednesday that he’ll be self-quarantining after committee member Rep. Louie Gohmert (R-Texas) tested positive for COVID-19. 

OUTSIDE THE BELTWAY:

Wildfires, record warmth and rapidly melting ice: Arctic climate goes further off the rails this summer, The Washington Post reports

$200M settlement announced over bankrupt Tonopah solar project, The Las Vegas Review Journal reports

$3 Billion New York Environmental Bond Act Postponed, Spectrum News reports

ICYMI: Stories from Thursday…

House Democrat introduces bill to block oil drilling near polar bear dens

Killer of rare Ugandan silverback gorilla Rafiki gets 11-year prison sentence