OVERNIGHT ENERGY: EPA guidance may exempt some water polluters from Supreme Court permit mandate | Vilsack’s stock rises with Team Biden | Arctic wildfires linked to warming temperatures: NOAA

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FROM THE DRAFTS: The Environmental Protection Agency (EPA) on Tuesday released a draft guidance that interprets a Supreme Court decision in a way that may exempt some facilities from needing permits to pollute groundwater. 

In April, the court decided that a permit is required for both direct discharges of pollutants into federally-regulated rivers and oceans as well as their “functional equivalent” in groundwater that flows into regulated waters. 

The EPA’s new draft guidance, which was first reported by E&E News, says that whether a pollution discharge into groundwater should be considered a “functional equivalent” depends on “what happens to the discharged pollutant over that time and distance traveled” to the regulated body of water.

Specifically, it states that if the composition or concentration of pollutant that ultimately reaches the water is “different” from that which was originally discharged, it “might not” be considered a functional equivalent. 

It also states that some facilities may be “less likely” to require a permit if it uses a waste storage or treatment system rather than if it discharges pollutants “consistently and predictably” into groundwater.  

The agency argued that its guidance will help industry understand when they need permits. 

“EPA’s guidance will address several questions that the regulated community and others have raised since the Supreme Court issued its decision earlier this year,” said EPA assistant administrator for Water David Ross in a statement.

But critics argued that the guidelines could leave out facilities that may end up polluting the protected waters. 

“It basically suggests that a facility whose pollution is at all different at the point that it reaches the waterway, including just by being diluted might not need a pollution control permit,” said Jon Devine, the Natural Resources Defense Council’s director of federal water policy. 

“That strikes me as an invitation to gross abuse because if a pollutant is discharged into groundwater, it’s going to mix with the groundwater; it may be diluted by the groundwater, that doesn’t mean it’s any less likely to travel to and pollute surface waters,” he said. 

Read more about the draft guidance here. 

IS VILSACK BACK? BACK AGAIN? President-elect Joe Biden’s recent focus on Tom Vilsack to serve as his secretary of Agriculture comes as Democrats seek to appeal to rural voters after a poor showing in the 2020 elections.

The former Iowa governor, who served with Biden in the Obama administration, has deep ties with rural America — and with major agricultural lobbies, which has sparked a pushback from progressives.

The transition team has also focused on former Sen. Heidi Heitkamp (D-N.D.), another rural lawmaker, to lead the Department of Agriculture (USDA), as well as Rep. Marcia Fudge (D-Ohio), who represents an urban district and has been a fierce advocate for the food assistance programs that are run by the USDA. Former Michigan Gov. Jennifer Granholm (D) is also in the running.

Vilsack’s emergence as a favorite could also indicate Biden is leaning toward keeping the USDA’s traditional focus on its ag support programs after the former vice president promised to boost the rural economy.

“Biden will bring back America’s advantage in agriculture, create jobs, and build a bright future for rural communities by investing in the next generation of agriculture and conservation,” the campaign wrote in its rural action plan.

Vilsack is highlighting many of the same fault lines that emerged when Heitkamp was floated for the job.

Progressive groups criticized Heitkamp’s campaign contributions from major ag corporations and moderate voting record, while a coalition of 60 groups backed Fudge, sending a letter to the Biden transition arguing she would be an ally to farmers, food-chain workers, consumers and rural communities.

“I was a little mystified by the potential Vilsack choice given how solid a line was drawn with the Heitkamp-Fudge situation,” one ag lobbyist told The Hill.

Biden has been under heavy pressure from progressives, as well as the Congressional Black Caucus and the NAACP, to select Fudge as his Agriculture secretary.

But recent reports have suggested she may be in the running to head the Department of Housing and Urban Development instead. 

Progressives who have taken shots at Vilsack point to his work during the Trump administration as president of the U.S. Dairy Export Council, a major dairy lobby.

“His coziness with Big Dairy is pretty direct. It’s not just his policy goals — it’s his current employer as well,” the ag lobbyist told The Hill. 

Beyond connections with major industry groups, Vilsack also worked as a registered lobbyist in the Iowa office of the law firm Dorsey & Whitney, another problem for progressives who have urged Biden to stay away from hiring corporate lobbyists or Wall Street executives.

Read more about Vilsack’s potential nomination here.

IT’S GETTING HOT IN HERE: Wildfires in the Arctic are linked to warming temperatures there, according to a new report from the National Oceanic and Atmospheric Administration (NOAA). 

NOAA’s new 2020 update to its Arctic Report Card said the “extreme” fires in Russia’s Sakha Republic “coincided with unparalleled warm air temperatures and record snow loss.”

Increasing air temperature over the past 41 years is a factor contributing to “more favorable” conditions for fires, the report said. 

Scientists have repeatedly linked climate change to extreme weather events. 

The new report noted that this year’s annual land surface air temperature in the region was the second highest recorded since at least 1900. 

The new NOAA report also said sea ice loss this year was particularly high, with the end of summer sea ice extent reaching the second-lowest level recorded during the past 42 years. 

Read more about the NOAA report here.

WHAT WE’RE READING:

Many U.S. states are behind on their own climate milestones, Reuters reports

Shell executives quit amid discord over green push, The Financial Times reports

GOP playbook to complicate a Mary Nichols nomination, E&E reports

PFAS chemical associated with severe COVID-19, The Intercept reports