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May 20, 2022

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Energy and Environmental Law Update - March 18, 2013


The House and Senate leadership remains committed to passage of a continuing resolution (CR) before Congress departs for its two-week recess starting March 25. The current CR expires on March 27 and another is necessary in order to avoid a government shutdown. The new CR (H.R. 933) is a hybrid between another six month CR and an omnibus appropriations bill. It is expected to provide appropriations for five (Defense, Military Construction, Homeland Security, Agriculture, and Commerce-Justice-State) of the 12 unfinished appropriations bills. The other seven appropriations bills are likely to be funded at current levels with some “anomalies.”

The House has already passed its version of the CR, and the Senate hopes to do the same early this week. After the Senate completes action on the CR, it is expected to turn to consideration of the Fiscal Year 2014 Budget Resolution that was reported out of the Senate Budget Committee on March 14 on a party-line vote of 12-10. The House will be considering its version of the Budget Resolution this week.


FY 2013 Senate CR

The Senate version of the FY 2013 CR would cut energy-related programs in the Departments of Energy (DOE), Defense (DOD), Interior (DOI) and the Environmental Protection Agency (EPA). The Senate version of the CR would reduce DOE funding by $44 million—including $11 million from the Office of Energy Efficiency and Renewable Energy, $10 million from the Office of Nuclear Energy, $13 from the Office of Science, and $10 million from the Advanced Research Projects Agency- Energy (ARPA-E).

Deficit Reduction Deal

There is growing optimism that Congress and the President will finally be able to end the series of “fiscal cliff” crises that have become all too common. A small window of opportunity might present itself around the expiration of current debt ceiling, which is expected around July or August. While serious differences remain not only between Republicans and Democrats in Congress but also between each party and the President as to how best to forge a comprehensive fiscal plan, there is increasing hope that those differences could be resolved. 

Tax Reform

There is also increased optimism that tax reform might be the vehicle for reaching a comprehensive fiscal agreement. Already, the House Ways and Means is currently meeting in 11 separate working groups to discuss tax reform, while their counterparts at the Senate Finance Committee are holding bipartisan meetings of their own.

Keystone Timeline

During a private meeting last week between President Obama and Congressional Republicans, the President reportedly offered support for hydraulic fracturing, but gave no definitive timeline for when his Administration would make a final decision on the Keystone XL pipeline project. The State Department is currently soliciting public comments on the department’s latest environmental review. That public comment period is scheduled to end on April 22. The State Department then plans to issue a final review, which could require an additional two months and be followed by the traditional 90-day interagency review. That would mean a final decision on the pipeline permit might not come until late summer or early fall.

Keystone Legislation

Bipartisan bills to approve the Keystone XL pipeline permit have now been introduced in both the House and the Senate. The House bill, H.R. 3, the Northern Route Approval Act, was introduced on March 15 by Rep. Lee Terry (R-NE) along with two other Republicans and two Democrats. House Republican leadership has said the measure will be voted upon before Memorial Day. The Senate counterpart, S. 582, was introduced by Sens. Sen. John Hoeven (R-ND) and Max Baucus (D-MT) on March 14. That measure is unlikely to clear the Senate as it would need 60 votes to defeat procedural hurdles.

Wyden Letter to EIA

On March 11, Sen. Ron Wyden, chairman of the Energy and Natural Resources Committee, wrote to the Energy Information Administration to request that they provide data on domestic oil production, exports and imports, refining capacity, transportation and mid-stream capacity, as well as consumption. Wyden requested the analysis in preparation for a Senate Energy Committee hearing he plans on holding this spring related to gas prices.

Revenue-Sharing Plan Opposition

On March 8, Senate Foreign Relations Committee Chairman Robert Menendez (D-NJ), Senate Environment and Public Works Committee Chairman Barbara Boxer (D-CA) and six other Democratic senators wrote Senate Energy and Natural Resources Committee Chairman Ron Wyden (D-OR) and Ranking Member Lisa Murkowski (R-AK) to express their stiff opposition to any plan to expand revenue sharing to all coastal states in order to encourage offshore energy production. Wyden and Murkowski are reportedly working on a proposal to expand revenue sharing beyond the four states currently receiving such direct payments.

Grants In Lieu Of Tax Credits

On March 13, Sen. Tom Coburn (R-OK) wrote the Treasury Department to urge the Department to make reductions even further than those already imposed by sequestration to the grants in lieu of tax credits program (Section 1603 Program). Coburn claims that eight of ten stimulus dollars spent through the credit program on wind projects went to foreign companies and assisted in creating thousands of overseas jobs.

BART Limits on AZ Power Plant

On March 7, Sens. John McCain (R-AZ) and Jeff Flake (R-AZ) wrote President Obama to urge him to halt the Environmental Protection Agency (EPA) from imposing best available retrofit technology (BART) limits for nitrogen oxides on the Navajo Generating Station, located on tribal lands near the Grand Canyon. EPA proposed the new pollution standards on the coal-fired power plant last January 18.

Energy Tax Subsidies

Testifying before the House Science, Space, and Technology Subcommittee on March 13, Congressional Budget Office Senior Advisor Terry Dinan said that an estimated $16.4 billion in federal tax subsidies for energy efficiency and renewable energy industries accounts for 74 percent of current government energy-related tax preferences. Dinan did say that prior to 2005 the largest share of energy tax subsidies went to the oil and gas industry.

LNG Congressional Working Group

On March 15, Reps. Tim Ryan (D-OH) and Bill Johnson (R-OH) announced the establishment of a bipartisan congressional Liquefied Natural Gas Export Working Group. The group’s mission will be to advocate for expanded exports of domestic liquefied natural gas (LNG) as well as conduct meetings and briefings to keep Members apprised of new developments on the issue of LNG exports.

DOE IG LG Chem Michigan Investigation

On March 14, Inspector General of the Department of Energy Gregory Friedman told the House Science, Space, and Technology Subcommittee on Oversight that his office is continuing to investigate a $150 million grant that was awarded to LG Chem Michigan Inc. in 2010. The grant was to build a plant that would produce lithium ion batteries for electric vehicles, but the plant never made batteries and remains idle.

Senate Subcommittee LG Chem Michigan Investigation

On March 7, Senate Homeland Security and Governmental Affairs Subcommittee on Financial and Contracting Oversight Chairman Clare McCaskill (D-MO) wrote Department of Energy Secretary Steven Chu to request the department provide information on attempts to strengthen oversight over the grant program that awarded a $150 million grant to LG Chem Michigan Inc. McCaskill asked the department to provide a report by March 29 and has said that her newly created Senate oversight committee will make the LG Chem Michigan grant investigation a priority.

DOE Loan Guarantee Program

On March 12, the Government Accountability Office released a report of the Department of Energy’s Loan Guarantee Program that said the loan program has 13 applications—including nuclear, renewable, and fossil power projects – under active consideration. There are no active applications for the Advanced Vehicle Technology Manufacturing loan program.

Carbon Tax Bill

On March 12, the Ranking Member of the House Energy and Commerce Committee Rep. Henry Waxman (D-CA), Rep. Earl Blumenauer (D-OR), Sen. Sheldon Whitehouse (D-RI), and Sen. Brian Schatz (D-HI) released a draft bill that would effectively create a carbon tax based on greenhouse gas emissions reporting. The draft bill contains alternative prices of $15, $25, and $35 per ton and a range of annual increases from two percent to eight percent. The members are seeking feedback on their proposal and requested comments by April 12.

Cap-And-Dividend Carbon Bill

Sen. Maria Cantwell (D-WA) is expected to soon reintroduce legislation that would place a price on carbon. The bill is expected to be similar to the Carbon Limits and Energy for America’s Renewal (CLEAR) Act that she and Sen. Susan Collins (R-ME) introduced back in 2009. The “cap-anddividend” approach seems to be reflected in more recent carbon tax bills being developed by Sens. Barbara Boxer (D-CA) and Bernie Sanders (I-VT) as well as Rep. Henry Waxman (D-CA), Rep. Earl Blumenauer (D-OR), Sen. Sheldon Whitehouse (D-RI), and Sen. Brian Schatz (D-HI).

E-Waste Exports Ban Bill

Rep. Gene Green (D-TX) is expected to reintroduce legislation that would ban the export of used electronic products to developing countries. Last Congress, Rep. Green introduced the Responsible Electronics Recycling Act, and a companion bill was introduced in the Senate by Sens. Sheldon Whitehouse (D-RI), Lisa Murkowski (R-AK), and Sherrod Brown (D-OH).

Bills Introduced

  • On March 12, Sen. Lisa Murkowski (R-AK) and six other senators introduced S. 545, the Hydropower Improvement Act. The bipartisan bill would expedite the Federal Energy Regulatory Commission’s (FERC) licensing process for small-scale hydroelectric projects that are considered to have a low impact on the environment. Similar legislation, the Hydropower Regulatory Efficiency Act (H.R. 267), passed the House on February 13 by a unanimous vote.
  • On the same day, Sen. Mark Pryor (D-AR) and eight other senators introduced S. 552, a bill to replace the current Department of Energy (DOE) requirement for a biennial energy policy plan with a Quadrennial Energy Review.
  • On the same day, Sen. Rand Paul (R-KY) introduced S. 558, a bill to prohibit the Environmental Protection Agency (EPA) from providing Clean Air Act grants to foreign countries. Rep Ed Whitefield (R-KY) has introduced similar legislation (H.R. 959) in the House.
  • On the same day, Rep. Jerry McNerney (D-CA) introduced the Solar Energy Deployment Act of 2013 (H.R. 1107) to provide funding for state and local governments to install solar energy systems. The bill allows the Secretary of Energy to award grants to governments for the installation of solar equipment on roofs and parking structures. The bill gives broad authority to the Secretary to distribute funding based on need and capability of the state or local government.
  • On the same day, Rep. Matsui (D-CA) along with five of her Democratic colleagues introduced the Small Business Clean Energy Financing Act of 2013 (H.R. 1138) to help small businesses in the clean energy sector gain access to financing. The bill would create a loan program within the Small Business Administration that would guarantee loans to clean energy technology manufacturers. The bill would not authorize new funds for the clean energy sector under the SBA, but rather allow the SBA to utilize its budget to help clean energy businesses more.
  • On March 13, Rep. Lamborn (R-CO) reintroduced legislation (H.R. 1063) that would require the Secretary of the Interior to produce an assessment of the current and future needs of the United States in regards to critical minerals. The bill intends to increase agricultural competitiveness, manufacturing capabilities, and economic and national security. The bill comes as a response to increased calls for energy independence and utilizes a diverse range of natural resources for the end of independence and security.
  • On that same day, Rep Scott Garrett (R-NJ) and 13 of his Republican colleagues in the House introduced, H.R. 1065, a bill to reduce the federal tax on fuels by the amount of any increase in the rate if tax on such fuel by the states.
  • On March 14, Sen. Michael Bennet (D-CO) introduced S. 570, the Clean Energy Race to the Top Act. The bill would establish a $5 billion competitive grant program for states and local governments to work with local energy businesses to utilize clean energy and reduce carbon pollution. Under the bill, states, local governments, and private-public partnerships would be able to apply for grants to develop clean energy and carbon reduction measures.
  • On that same day, Sen. John Hoeven (R-ND) and 15 other senators introduced S. 582, a bill to approve the Keystone XL Pipeline in an attempt to spur the project forward. The bill calls for a timetable from the administration regarding the construction of the project. The bill enjoys significant bipartisan support with seven Republicans and eight Democrats joining as original co-sponsors.
  • On the same day, Rep. Jared Polis (D-CO) and 37 of his Democratic House colleagues introduced H.R. 1154, the Bringing Reductions to Energy’s Airborne Toxic Health Effect (BREATHE). The BREATHE Act would eliminate the exemptions for aggregation of emissions from oil and gas sources under the Clean Air Act.
  • Also on March 14, Rep. Calvert (R-CA) introduced the Maximize Offshore Resource Exploration Act (H.R. 1165) which calls for the termination of Federal prohibitions on the production of offshore oil and gas resources. The MORE Act would provide states with 75 percent of the royalties for oil and gas production beyond 25 miles off the coastline and the Treasury would get the remaining 25 percent. Inside 25 miles, the states would receive up to 90 percent of the royalties.
  • On the same day, Rep Ed Markey (D-MA) and Rep. Rush Holt (D-NJ) introduced H.R. 1189, a bill that would place a moratorium on U.S. oil and natural gas imports.
  • On the same day Rep. Ed Markey and Rush Holt introduced two other bills (H.R. 1190 and H.R. 1191) that would limit the Department of Interior’s ability to accept new bids on new oil and gas leases of Federal lands.
  • On March 15, Rep. Lee Terry (R-NE) introduced H.R. 3, the Northern Route Approval Act, which approves the construction, operation, and maintenance of the Keystone XL pipeline, and states that there is no requirement for a presidential permit for the pipeline. The bill has 83 cosponsors.

Upcoming Hearings

  • The House Oversight and Government Reform Subcommittee on Energy Policy, Health Care, and Entitlements has scheduled a March 19 hearing on the Department of Energy’s strategy for exporting liquefied natural gas.
  • The House Energy and Commerce Subcommittee on Energy and Power has scheduled a March 19 hearing on the role of regulators and grid operators in meeting natural gas and electric coordination challenges.


Obama Argonne National Laboratory Visit

In a visit on Friday to Argonne National Laboratory and in his weekly Saturday address, President Obama reiterated his commitment to addressing climate change and promoting alternative energy and energy efficiency. The president used the Argonne National Laboratory visit to call on Congress to establish a $2 billion trust fund for alternative vehicle research using royalty revenues from existing oil and gas production. He called for further research for advance vehicles that run on electricity, biofuels, fuel cells and natural gas.

FY 2014 Budget to Reflect All-Of-The Above Approach

The Obama Administration has begun to unveil aspects of the budget the President will officially present to Congress the week of April 8. On Friday, a White House Fact Sheet was released detailing several areas where the President will request increased funding for energy programs. The White House Fact Sheet said the President will propose to increase the Interior Department’s Bureau of Land Management budget by approximately 20 percent, with as much as $40 million going for research to ensure safe and responsible natural gas production and for carbon capture and sequestration.

The president is expected to propose $375 million for investment in clean energy from fossil fuels—including funding for clean coal technology and a new $25 million prize for the first, natural gas combined-cycle power plant to integrate carbon capture and storage. 

The president’s budget is expected to also call for expanding applied research and development of innovative manufacturing processes and advance materials in an effort to promote innovative energy efficiency technologies.


FEMP Large-Scale Renewable Energy Guide

On March 11 the Department of Energy’s Federal Energy Management Program (FEMP) issued a 76-page document comprised of best practices and other guidance for federal agencies developing large-scale renewable energy projects. Entitled “Large-Scale Renewable Energy Guide: Developing Renewable Energy Projects Larger than 10 MWs at Federal Facilities,” the document is designed to help regulators and private investors streamline efforts to develop renewable energy projects larger than 10 megawatts.

The guidelines encourage federal agencies sponsoring renewable energy development to mitigate risks and take other steps to make new projects attractive to private markets and improve their viability. The guide educates federal project managers on private-sector financing across a variety of funding options and competitive acquisition processes. Commercial developers may use the guidance to better understand federal energy planning and acquisition processes.

EERE Cooperative Agreements

On March 14, Assistant Secretary for Energy Efficiency and Renewable Energy David Danielson told the House Energy and Water Subcommittee of the House Appropriations Committee that his office will cease making competitive grants in favor of cooperative agreements at the beginning of the 2014 Fiscal Year. They will also adopt more active project management along the lines of ARPA-E. 

SMR Solicitation

On March 11, The Department of Energy’s Nuclear Energy office announced a new funding opportunity for small modular nuclear reactors (SMR). The solicitation is open to new proposals for developing SMR projects that have the potential to be licensed by the Nuclear Regulatory Commission (NRC) and ready for commercial operation by 2025.

Transportation Energy Futures (TEF)

On March 15, the Department of Energy’s Transportation Energy Futures (TEF) project said that concerted action by the transportation sector and vehicle users could reduce petroleum usage and greenhouse gas emissions by 80 percent or more by 2050. TEF, which has identified possible paths to a low- petroleum, low-carbon future in a series of nine reports, said that the transportation sector currently accounts for 71 percent of the total U.S. petroleum consumption and 33 percent of total U.S. Carbon emissions.


Power Plant Regulations Delayed

On March 14, the Environmental Protection Agency said that it would delay its schedule for finalizing planned rules that would set carbon emissions standards for new power plants. EPA says that the delays are a result of a recent assessment of current EPA resources; however there are other theories as to the reason for the delay. Some suspect there is a desire by EPA to put the issue on the back burner until after the confirmation hearing for EPA Administrator-nominee Gina McCarthy, or to delay them until next year when standards for both old and new power plants could be combined into one new regulation.

Eastern U.S. Ozone Levels

On March 11, a study, entitled “Reconciling NOx Emissions Reductions and Ozone Trends in the U.S., 2002-2006,” revealed that ozone levels in eastern part of the U.S. had fallen more quickly that an Environmental Protection Agency (EPA) air pollution computer model had predicted. EPA’s Community Multiscale Air Quality model had predicted ozone levels would drop by 4.6 parts per billion (ppb), but the study says those levels actually dropped 8 ppb between 2002-2006.

Biofuel RIN Quality Assurance

The EPA will host a public meeting Tuesday, March 26 to receive comments on its proposed Quality Assurance Program (QAP). Developed after consultation with the biodiesel and petroleum refining industries, the QAP is designed to prevent fraudulent RIN trading like that which plagued the biodiesel sector last year. If obligated parties follow the procedures in the QAP, they can avail themselves of an affirmative defense if they are later discovered to have purchased fraudulent biofuel credits. Some biofuel producers assert the QAP will be a costly administrative burden.


Three Renewable Projects Approved

On March 13, the Department of the Interior announced approval of three renewable energy projects on public lands in California and Nevada. One wind project in Nevada and two solar projects in California collectively will provide 1,100 megawatts (MW) of electricity to the Southwest power grid. The three projects bring the total Obama Administration approved renewable energy projects on public lands to 37 with a combined capacity of 11.5 gigawatts (GW).

BLM Oil Shale Management Rule

On March 7, the Office of Management and Budget (OMB) completed its review of the Bureau of Land Management’s (BLM) proposed rule on oil shale management on Western federal lands. The rule would provide more detail on environmental protection requirements and add flexibility to the royalty system. BLM has not yet said when it will release the rule for public comment.


Unistar Review Denied

On March 11, the Nuclear Regulatory Commission (NRC) declined to review a 2012 agency decision that Unistar Nuclear Energy LLC may not build a new reactor at the Calvert Cliffs nuclear power station in southern Maryland because the French company has no U.S. partner. The Atomic Energy Act prohibits foreign ownership, control or domination of a U.S. nuclear reactor. Unistar would have to reapply to the NRC if it were to find a U.S. partner.

NRC Chair Calls For Solution

On March 12, the Nuclear Regulatory Commission (NRC) Chairman Allison Macfarlane called on Congress and the Obama Administration to work harder to come up with a long-term solution to the nation’s nuclear waste storage problem.


HUD Sustainable Community Program

On March 11, the Department of Housing and Urban Development (HUD) said the department’s sustainable community program mostly likely will not receive funding in fiscal year 2013, even though President Obama requested $410 million for the program. HUD is hoping to obtain funding in fiscal year 2014


China Plans to Limit Pollutants

On March 5, China’s Ministry of Environmental Protection released a plan to limit pollutants from coal-fired power, iron and steel, cement, nonferrous metal, petrochemical, and chemical facilities in 47 major cities in 19 provinces. The plan covers particulate matter, volatile organic compounds and soot as well as other pollutants. The plan covers existing facilities as well as new ones.

Taiwan Energy Diversity Legislation

On March 7, the Taiwanese Cabinet approved legislation that aims to ensure a stable energy supply of natural gas, additional renewable energy, and investment in new energy technologies while gradually phasing out nuclear power. The bill must now be approved by the legislature.

Alberta Hydroelectric

On March 11, a legislative committee of the Canadian province of Alberta released a report that said the province should pursue public-private partnerships for development of hydroelectric projects needed to help meet the projected demand for nearly an additional 12,000 megawatts of power over the next two decades. The legislature’s Standing Committee on Resource Stewardship report, entitled “Review of the Potential for Expanded Hydroelectric Energy Production in Northern Alberta,” made five recommendations for the government.

Russian Energy Efficiency and Energy Development

On March 11, Russia unveiled a plan, entitled “Energy Efficiency and the Development of Energy to 2020,” for modernizing the county’s energy industry. The plan calls for major investments in energy efficiency, renewable energy and expanded extraction of oil, gas and coal for export. The goal is to reduce Russia’s energy intensity by 40 percent.

China CCS Plan

On March 11, China’s Ministry of Science and Technology released a 12th five-year development plan for carbon capture, utilization and storage (CCUS). China’s goal is to goal is to accelerate its CCUS technology.

Japan Cuts Solar Power Purchase Price

On March 12, Japan’s Ministry of Economy, Trade, and Industry announced the price Japan’s electric utilities must pay independent solar power producers would be reduced by nearly 10 percent. The price for solar power from systems with a capacity of 10 kilowatts or less would be cut to 39 cents. However, the purchase price for other types of renewable energy would remain unchanged.

EU Fuel Economy Tests

On March 14, the nonprofit group Transport & Environment (T&E) released a report that claims European Union auto manufacturers are undermining the EU’s efforts to reduce greenhouse gas emissions by manipulating vehicle fuel economy tests. T&E said that that there is a 23 percent difference between fuel economy achieved in laboratory tests and under real-world driving conditions.

British Company Delays Fracking Project

On March 14, Britain’s largest shale gas explorer, Cuadrilla Resources Holdings, said it will delay hydraulic fracturing operations at its Anna Road project until 2014. Postponing the operation will give Cuadrilla more time to conduct more extensive environmental assessments and to engage local communities around the project.


Maine Wind Project Permits

On March 5, the Maine Supreme Judicial Court vacated a permit granted to a 33 megawatt wind project proposed for Saddleback Mountain after finding the state Board of Environmental Protection abused its authority related to allowable noise limits.

Tennessee AG Opinion

On March 11, Tennessee State Attorney General Robert Cooper offered an opinion that an amendment pending before the Tennessee legislature that would set guidelines for the valuation of property used to generate electricity from renewable sources was constitutional.

CA Environmental Coalition

On March 12, California environmentalists announced a new coalition, Common Good, which will be dedicated to preventing any weakening of the California Environmental Quality Act (CEQA). CEQA requires detailed environmental reviews of a development project’s potential impacts, and legislators are considering amending the law.

Iowa Court Denies Request

On March 13, Iowa’s Court of Appeals upheld a decision by the state’s Department of Natural Resources (DNR) to deny a petition to regulate greenhouse gas emissions. The DNR had denied a request after its Environmental Protection Commission voted unanimously against the petition.

Illinois Fracking Compromise

On March 14, the Illinois legislature reached a compromise with industry representatives, environmental groups, and state regulators on a tax and fee scheme for hydraulic fracturing activities. Gov. Pat Quinn (D) is expected to support the compromise contained in H.B. 2615, the Illinois Hydraulic Fracturing Regulatory Act.

CA on Target to Meet RPS

On March 14, the California Public Utilities Commission sent a report, entitled “Renewables portfolio Standard Quarterly Report 3rd and 4th Quarter 2012,” to the state legislature that says the state is on track to meet its 2016 target of procuring 25 percent of its energy from renewable sources.

RGGI Clearing Price

On March 15, the Regional Greenhouse Gas Initiative announced that the clearing price of carbon dioxide emission allowances increased significantly in the first auction held after its announced tighter 45 percent reduction in the emissions cap. The allowances sold for $2.80 each in the March 13 auction, a 45 percent increase from the selling price in the previous auction. 


Sierra Club Montana Lawsuit

On March 6, the Sierra Club launched a federal lawsuit against the Colstrip power plant in Montana, alleging that the 2,000 megawatt coal-fired plant failed to install legally required pollution controls over the past two decades.

Sierra Club Michigan Lawsuit

On March 12, the Sierra Club launched a federal lawsuit against DTE Energy Co., alleging that four of the company’s Michigan coal-fired plants are emitting higher than allowed levels of pollutants—including particulate matter, mercury, sulfur dioxide, and nitrogen oxide.

C2ES Report

On March 12, the Center for Climate and Energy Solutions (C2ES) released a report entitled “Domestic Policies to Reduce the Near-Term Risks of Climate Change,” which said the Obama Administration could take executive actions under existing authorities to reduce emissions of shortlived climate change pollutants.

Sportsmen and Conservationist Write Obama

On March 11, nine hunter, angler and conservationist organizations wrote President Obama to urge him to follow through on his pledge to address climate change. 

Enviros LNG Exports Letter

On March 11, a coalition of environmental organizations wrote President Obama urging him to delay liquefied natural gas exports until the Administration conducts an informed assessment of the economic and environmental effects of such exports.

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