Preview Newsletter
acc am aug 4
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(ACC Mentioned) EPA Urged to Remove TDI From Contaminant Candidate List
Aug 4, 2015 | BNA Daily Environment Report
By Pat Ware
Representatives from the chemical industry asked an Environmental Protection Agency science advisory panel to delete the chemical toluene diisocyanate (TDI) from a list of contaminants used for potential drinking water regulation. Robert West, an environmental scientist with Dow Chemical Co... -
What Are Microbeads And Why Would Canada Ban Them?
Aug 3, 2015 | The Economist
By M.D. and R.W.
On July 30th Canada’s Conservative government announced it intends to ban the use of microbeads in personal-care products. The Netherlands has already imposed an unofficial ban on them, which should be in effect by the end of 2016. What are these horrid little things? -
Canada Proposes Listing Microbeads As Toxic
Aug 4, 2015 | Chemical Watch
The Canadian government has proposed adding microbeads to the country's List of Toxic Substances and has announced plans to ban them in personal care products. A proposed Order was published 1 August to list the microplastic material. This included a notice that the Department of Environment will propose a regulation... -
Public Lands Should Be Off Limits For Fracking
Aug 3, 2015 | The Hill - Congress Blog
By Rep. Mark Pocan (D-Wis.) and Hilary Baum
magine not being able to sit on your front porch for fear of inhaling toxic chemicals produced by dozens of natural gas wells and facilities surrounding your property. Sadly, this is the case for many Texas families living along the Eagle Ford Shale. With little regulation and little known about the amount of chemicals pouring from the more than... -
Setting The Record Straight About Keystone XL
Aug 3, 2015 | The Hill - Congress Blog
By John Harter
As a rancher from South Dakota whose land would be threatened by the Keystone XL pipeline, I hear a lot of claims about the project from TransCanada and politicians who want to see the pipeline built. They say they have worked with landowners and made agreements to build on our property. They say this will be the safest pipeline ever built. -
Chaffetz Deploys New Tactic To Cull Agency Input On Pipeline
Aug 4, 2015 | E&E Daily News
By Manuel Quiñones
House Oversight and Government Reform Committee Republican leaders are asking at least eight federal agencies to turn over documents related to the proposed Keystone XL oil pipeline from Canada. Committee Chairman Jason Chaffetz (R-Utah) and Interior Subcommittee Chairwoman Cynthia Lummis (R-Wyo.) have for months been asking ... -
Climate Rule’s Shift Away From Natural Gas Irks Industry
Aug 3, 2015 | PoliticoPro
By Elana Schor
EPA’s new climate change rule dropped some projections from a previous draft that had favored natural gas, frustrating the industry that had warily started to view President Barack Obama as an ally. In its final power-plant emissions regulations, EPA edged away from promoting natural gas as a cleaner... -
Gas May Be Fossil Fuel Loser in Push for Renewables
Aug 4, 2015 | BNA Daily Environment Report
By Naureen S. Malik and Harry R. Weber
Once seen as a clear winner in President Barack Obama's push for cleaner power, natural gas wasn't looking like much of a champ Aug. 3. That so-called bridge that gas was supposed to be, leading the U.S. away from dirtier fossil fuels such as coal and toward renewable power... -
EPA Uses Uniform Standards To Preserve Overall Stringency In Final ESPS
Aug 3, 2015 | InsideEPA
By Lee Logan
EPA officials say they were able to strengthen their just-finalized greenhouse gas (GHG) rule for existing power plants despite dropping energy-efficiency measures from setting state goals due to more robust assumptions about the potential for renewable energy, as well as a more regional approach to coal-to-gas shifting. -
Obama Issues Landmark Climate Change Rule
Aug 3, 2015 | PoliticoPro
By Alex Guillén
President Barack Obama on Monday issued a landmark environmental regulation designed to speed up the U.S. power industry’s shift away from climate change-causing fossil fuels. “Climate change is no longer just about the future that we’re predicting for our children or grandchildren... -
The President Calls For A Greener America
Aug 3, 2015 | The Economist
By M.S.L.J
Blasting air conditioners, revving gas guzzlers and pumping oil, Americans have long attracted censure for their wasteful ways. After all, they produce a disproportionately large share—15 %—of global carbon dioxide emissions. But new rules from the federal Environmental Protection Agency (EPA)... -
Clean Power Plan Grants States More Time, Autonomy
Aug 4, 2015 | BNA Daily Environment Report
The Environmental Protection Agency will extend the deadlines for states to comply with its carbon dioxide standards for power plants and allow them to craft their own glide path toward compliance as part of a final rule released Aug. 3. The final Clean Power Plan (RIN 2060-AR33), issued under Section 111(d)... -
Senate Panel Set To Mark Up Capito's 'Opt-Out' Bill
Aug 4, 2015 | E&E Daily News
By Jean Chemnick
The Senate Environment and Public Works Committee will mark up a bill tomorrow that would prevent U.S. EPA's Clean Power Plan from taking effect in states that don't support it. The markup of S. 1324, from Sen. Shelley Moore Capito (R-W.Va.), is the opening salvo... -
15 States Will Challenge Clean Power Plan in Court
Aug 4, 2015 | BNA Daily Environment Report
By Gerald B. Silverman, Michael Bologna, Paul Stinson Leslie Pappas, Nora Macaluso and Adrianne Appel
The Clean Power Plan received a mixed response from states, with 15 attorneys general pledging to challenge the plan in court and nine others pledging to defend it. The 15 states, led by West Virginia, will move to reopen a case before the U.S. Court of Appeals for the District of ... -
States, Industry Prepare Legal Onslaught for EPA Carbon Rules
Aug 3, 2015 | PoliticoPro
By Alex Guillén
President Barack Obama’s Monday unveiling of EPA’s landmark carbon rules brings to a close years of behind-the-scenes work to implement the most sweeping response to climate change in U.S. history. Now, an army of lawyers representing coal companies, utilities and fossil fuel-dependent states will spend a... -
Clean Power Plan Opponents Vow New Lawsuits
Aug 4, 2015 | BNA Daily Environment Report
By Andrew Childers
The mining industry and states opposed to the Environmental Protection Agency's Clean Power Plan vowed to mount new legal challenges after the final rule was unveiled Aug. 3. “We have no choice but to challenge the Obama administration's illegal actions in court, and we will prevail,"... -
Energy Incentive Program Added to Clean Power Plan
Aug 4, 2015 | BNA Daily Environment Report
By Rebecca Kern
The Environmental Protection Agency is developing a new Clean Energy Incentive Program to help states transition more quickly to renewables and energy efficiency projects in order to comply with the final Clean Power Plan released Aug. 3. The incentive program would be a voluntary matching fund to encourage states... -
2016 Democrats See Promise, Not Peril, In Obama Climate Plan
Aug 3, 2015 | PoliticoPro
By Andrew Restuccia and Darren Goode
The long-term success of President Barack Obama’s new climate regulation probably depends on a Democrat like Hillary Clinton winning the White House — but it’s not at all clear the rule will help the party’s chances in 2016. The tougher coal standards Obama announced Monday will force major adjustments to power companies... -
Republicans Plot Legislative Attacks To Climate Rule
Aug 4, 2015 | E&E Daily News
By Geof Koss, Hannah Northey, and Daniel Bush
Senate Republicans are considering a range of legislative options for pushing back on U.S. EPA's Clean Power Plan, even as some lawmakers said they're trying to better understand the effect of key revisions in the final rule for their home states. The most immediate response will start its journey tomorrow... -
Obama Climate Plan May Give California Company In Cap-And-Trade
Aug 3, 2015 | SF Gate
By David R. Baker
California has, for years, urged other states to join its cap-and-trade system to fight global warming. Now, prodded by President Obama, they just might. Obama’s Clean Power Plan, released Monday, will force states to slash the amount of greenhouse gases spewing from their power plants. -
Environmental Activists Cheer New Climate Rules
Aug 3, 2015 | The Hill - E2 Wire
By Tim Devaney
Environmental and public health advocates are defending the Obama administration’s new climate rules as an important and necessary step to save the planet. “We have only a few years left to reverse these trends, and the Clean Power Plan will help us do that,” Margie Alt, executive director of Environment America, told reporters Monday. -
Pro Regs Biz Groups Hail Climate Rule
Aug 3, 2015 | The Hill - E2 Wire
By Lydia Wheeler
Most small businesses support President Obama’s clean energy rules for power plants, a coalition of environmentally friendly small-business groups contends. Washington's leading business groups — heavyweights like the U.S. Chamber of... -
Ads Target State Attorneys General Opposing EPA Rule
Aug 3, 2015 | E&E News PM
By Jennifer Yachnin
In anticipation of new lawsuits targeting U.S. EPA's final Clean Power Plan, a liberal group launched a digital ad campaign targeting the Republican Attorneys General Association and its members. The political action committee Americans United for Change announced a series of digital spots ... -
Clean Power Plan Seen as Threat to Coal Producers
Aug 4, 2015 | BNA Daily Environment Report
By Mario Parker
Coal producers strapped with high costs and debt are headed for extinction under the Obama administration's Clean Power Plan, according to analysts. Producers will be left to vie for 650 million tons of utility demand annually, compared with the more... -
MATS Litigation Formally Sent Back to D.C. Circuit
Aug 4, 2015 | BNA Daily Environment Report
By Pat Rizzuto
The U.S. Supreme Court formally remanded litigation over the Environmental Protection Agency's mercury and air toxics standards back to the U.S. Court of Appeals for the District of Columbia Circuit (White Stallion Energy Ctr. LLC v. EPA, D.C. Cir., No. 12-1100, judgment received 8/3/15). -
Methane in Atmosphere May Greatly Exceed Estimates, Report Says
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Full Text of Stories Below
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(ACC Mentioned) EPA Urged to Remove TDI From Contaminant Candidate List
Aug 4, 2015 | BNA Daily Environment Report
By Pat Ware
Representatives from the chemical industry asked an Environmental Protection Agency science advisory panel to delete the chemical toluene diisocyanate (TDI) from a list of contaminants used for potential drinking water regulation.
Robert West, an environmental scientist with Dow Chemical Co., said the chemical has not been reported in drinking water sources and should therefore be deleted from the EPA's draft Fourth Contaminant Candidate List (CCL4). West made his comments during a teleconference held by the Science Advisory Board's Drinking Water Committee.
Ralph Parod, a senior toxicologist with BASF Corp., also urged that TDI be removed from the draft list, saying it doesn't exist in drinking water long enough to be toxic. Diisocyanates are well-known dermal and inhalation sensitizers in the workplace and are used in the manufacturing of plastics, according to the EPA. The chemical has been documented to cause asthma, lung damage and in severe cases, death, according to the agency.
Both West and Parod spoke on behalf of the Diisocyanates Panel of the American Chemistry Council (ACC).
List Due Every Five Years
The EPA is required to publish the CCL—used to select contaminants in drinking water for regulation—every five years. Since the first list was published in 1998, the only contaminant on it the EPA has chosen to regulate is perchlorate. In a separate action outside the CCL regulatory cycle, the agency has said it will regulate up to 12 volatile organic chemicals.
The draft CCL4 is a list of 100 chemical contaminants or chemical groups and 12 microbial contaminants used in commerce, pesticides, biological toxins, disinfection byproducts, pharmaceuticals and waterborne pathogens, according to the EPA. None is regulated in drinking water but the EPA considers each to be of potential concern.
Willem Faber, a consulting toxicologist to the Oxo-Process Panel at ACC, urged the panel to remove the chemical 1-butanol from the draft CCL4 because it lacks strong enough toxic effects to be a public health concern. The chemical is a solvent used in the production of other chemicals, according to the EPA.
The drinking water committee based its discussion on a draft report released June 30, which advises the agency on how to provide clarity and transparency to the fourth CCL (128 DEN A-11, 7/6/15).
Following revisions to the draft report discussed Aug. 3, a final report will be sent to the full SAB for its review. After its review, the SAB will send the report to the EPA for its consideration.
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What Are Microbeads And Why Would Canada Ban Them?
Aug 3, 2015 | The Economist
By M.D. and R.W.
On July 30th Canada’s Conservative government announced it intends to ban the use of microbeads in personal-care products. The Netherlands has already imposed an unofficial ban on them, which should be in effect by the end of 2016. What are these horrid little things?
Microbeads are very small synthetic plastic particles, each of them perfectly spherical. None are more than five millimetres (5mm) across, and most are only 1mm or smaller; they look like grains of sand. The most common sorts are made from polyethylene and polypropylene. These are used in everything from cancer research and HIV treatment to flat-panel televisions and the jumbo screens in stadiums. But what really worries the Canadians, and a growing number of scientists and environmentalists everywhere, is the use of microbeads in products like toothpaste, soap and facial scrubs and exfoliants.
When these goops and gunks go down the drain, so do the microbeads. The trouble is they are too tough to dissolve and yet too small to be caught by the filters in water-treatment plants. So they are discharged into natural water systems, where they do untold damage. New York alone flushes about 19 tonnes of microbeads down its drains every year. They can absorb toxic agents along the way. Wild critters often mistake them for food. Ingested microplastics can block up their guts and lead to starvation. Worse, from a human point of view, chemicals can be gobbled up with the microbeads and so work their way up the food chain. Microbeads have already been found in the flesh of fish caught for human consumption.
Scientists at Environment Canada, a department of the national government, reviewed more than 130 scientific papers, consulted experts and concluded that microbeads should be added to the national list of toxic substances. This would give Canada the authority to regulate the sale, manufacture and import of microbeads. It won’t happen right away however. Three days after his microbeads announcement, Stephen Harper, Canada’s prime minister, called an election for October 19th. But both the main opposition parties have called for a ban too, so something should happen whichever party wins. The trickier point might be the government’s plan to align its policy with America’s.
The United States does not have anything so clear as a federal ban. Most of the action has taken place at the state level, starting with the states that share coastlines along the Great Lakes, which sit on the border between Canada and the United States. Eight states have passed banning legislation and 17 have bills pending. In June 2014, Illinois became the first state to pass a bill against microbeads, though many experts think it did not go far enough. They see it as an unwholesome compromise: Illinois’s rule only bans some microbeads, allowing the use of biodegradable ones. Those are also plastic, though they can be broken down under laboratory conditions. It is not clear whether they would actually biodegrade on, say, the bottom of Lake Michigan. States with more ambitious proposals on the table, including New York and California, are calling for companies to substitute all microbeads with natural alternatives, like seeds, husks or shells.
While lawmakers split hairs—which can be as thin as 0.5mm or thinner—many manufacturers of personal-care products are independently taking action against microbeads. Proctor & Gamble and Colgate-Palmolive have both made commitments to phase them out. Loblaws, the largest food retailer in Canada, has said it will stop making them by 2018 (or sooner, presumably, if the law demands it). Unilever phased out the last of its microbeads in January 2015 and Johnson & Johnson (J&J) says will have eliminated the use of polyethylene microbeads by the end of 2017. J&J has already begun reformulating some products to use jojoba wax, extracted from a shrub native to the deserts of North America.
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Canada Proposes Listing Microbeads As Toxic
Aug 4, 2015 | Chemical Watch
The Canadian government has proposed adding microbeads to the country's List of Toxic Substances and has announced plans to ban them in personal care products.
A proposed Order was published 1 August to list the microplastic material. This included a notice that the Department of Environment will propose a regulation “to prohibit the manufacture, import, sale and offer for sale of microbead-containing personal care products that are used to exfoliate or cleanse.”
The proposed regulation is expected in 2016.
The initiative follows a unanimous vote by the House of Commons in March to take “immediate measures” to regulate the tiny plastic beads used in products like face wash and toothpaste.
NGOs say that microbeads are too small to be picked up by water filtration systems and may end up as plastic pollutants in waterways.
Environment Canada conducted a review of 130 scientific papers following the vote and determined that the materials are “eco-toxic.”
The proposed rule applies to synthetic polymer particles that are greater than 0.1μm and less than or equal to 5mm in size.
And Canada will attempt to align with similar US restrictions. Laws regulating microbeads have been passed in several US states including: Illinois;Connecticut; andWisconsin.
A federal bill regulating their use has also been proposed in the US.
The personal care products industry has supported efforts to phase out the material (CW 6 May 2015), and a United Nations Environment Programme (Unep) report recommended their eventual ban (CW 11 June 2015).
Last month Canadian retailer Loblaws announced plans to remove microbeads from their proprietary brands (CW 24 June 2015).
The regulation will come under the nation's Chemicals Management Plan, a joint Environment Canada and Health Canada project. The country has committed itself to addressing 4,300 priority chemicals under the scheme by 2020.
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Public Lands Should Be Off Limits For Fracking
Aug 3, 2015 | The Hill - Congress Blog
By Rep. Mark Pocan (D-Wis.) and Hilary Baum
magine not being able to sit on your front porch for fear of inhaling toxic chemicals produced by dozens of natural gas wells and facilities surrounding your property. Sadly, this is the case for many Texas families living along the Eagle Ford Shale. With little regulation and little known about the amount of chemicals pouring from the more than 7,000 wells in the area, it is no wonder serious questions are being raised about the health and safety risks associated with hydraulic fracturing.
Hydraulic fracturing injects millions of gallons of water, sand and chemicals at high pressures as far as 10,000 feet into the ground. This special sauce of chemicals, whose contents oil and gas companies refuse to disclose to the public, cause cracks in the rock layer allowing the natural gas from the shale to flow up to the surface. ADVERTISEMENTWhile no one disputes oil and gas development play an important role in our nation’s current energy economy, most of the economic gains are short term, and go primarily to leaseholders, shareholders, and equipment and chemical suppliers. Meanwhile, communities where fracking takes place risk spills, derailments, or even earthquakes, any of which can be disastrous for the local economy.
Right now, oil and gas companies can utilize hydraulic fracturing in our national parks, forests and wilderness areas – threatening hundreds of millions of acres we all collectively share, and a great many businesses rely on. The only way to prevent the detrimental environmental impact of fracking and avoid the health and safety concerns is to halt fracking entirely on our public lands.
The Protect Our Public Lands Act, currently being considered in Congress, would do just that, by prohibiting fracking all public lands. America’s natural treasures must be protected from further exploitation by the gas and oil industry – there’s too much at risk environmentally and economically if we don’t.
We know from hundreds of peer-reviewed studies that shale development, including fracking and other well stimulation techniques, threatens our air, water, and public health. At the same time, the carbon content of the fuels, and any methane released during the process, contribute heavily to climate change. And climate change is already posing a number of risks to the business community, including supply chain disruptions, damaged infrastructure, crop losses, increased insurance and health care costs – the list goes on and on.
And as with any finite extracted resource throughout history – oil, coal, even gold – once it’s gone, the communities that relied on it suffer immensely. In the meantime, the costs associated with fracking – expanded public and emergency services, infrastructure maintenance, and environmental clean-ups – are paid for with tax dollars from consumers and businesses.
Fracking and related forms of oil and gas development pose a real threat to businesses across the country, impacting local and regional economies. In addition to its relationship to climate change, fracking directly threatens businesses not compatible with industrialized landscapes, such as farming, tourism, and outdoor recreation. Would you want to buy food from a farm that’s potentially been exposed to chemical-laden wastewater?
Businesses want sustainable solutions to our climate and energy challenges, without sacrificing our public lands. Those lands contribute to overall quality of life throughout the U.S., to say nothing of the multi-billion dollar industries of outdoor recreation and tourism. Those lands are essential to attracting other businesses and retirees to locate nearby.
This economic engine, and the hundreds of thousands of businesses it benefits, depends on beautiful, uncontaminated public lands, which are vital to the American economy. Fracking is simply incompatible with that.
The fact is that fracking poses major long-term economic risks. It furthers our dependence on fossil fuels at the expense of clean energy sources, hampering our ability to address climate change, and putting local communities and businesses at risk. Fracking is not just an environmental issue, it’s an economic one, and it’s hitting far too close to home.
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Setting The Record Straight About Keystone XL
Aug 3, 2015 | The Hill - Congress Blog
By John Harter
As a rancher from South Dakota whose land would be threatened by the Keystone XL pipeline, I hear a lot of claims about the project from TransCanada and politicians who want to see the pipeline built. They say they have worked with landowners and made agreements to build on our property. They say this will be the safest pipeline ever built. They say our families will benefit economically from having their pipeline built in our communities. It’s time to set the record straight.
I want to be clear: TransCanada does not have an agreement with me. They don’t have an easement across my property. All agreements were voided by me due to a breach of contract by TransCanada. Any entry onto my property by TransCanada will be considered trespassing and they will be removed.
TransCanada has never negotiated in fair and good faith. This is due to the state of South Dakota granting them the use of eminent domain, despite them being a foreign corporation building this pipeline for private profit. Lying, bullying, and coercion were all used to attain easements from South Dakotans, and to say that landowners have willingly handed their land over to this corporation is a total mischaracterization.
What I learned in listening to TransCanada during the South Dakota Public Utilities Commission hearings last week is that they will not build the safest pipeline ever built. TransCanada has downgraded the pipe wall thickness in high consequence areas and under roads. Their lead engineer believes Keystone I, a pipeline that spilled 14 times in its first year of operation, is safe. TransCanada has no answer to how they will clean up a spill into our aquifer. They do not have an emergency response plan. They refuse to be open and transparent about where they believe they are putting South Dakotans at highest risk. They don’t want us to know.
I also learned that TransCanada has been dishonest about how they would contribute to our state’s economy. They have skirted around all our questions about their made-up tax revenue numbers, numbers they use to try to convince the public that this pipeline is in their best interest. The permitting of this pipeline is ignorant and fueled by greed. This pipeline is not a need, it is a want. It is about moving volumes of diluted bitumen from Canada to the Gulf Coast for export.
The permitting of the pipeline will cost me in excess of $40,000 per year. The taking of property for this permit is a violation of our rights. And the entire process violates the rights of this country’s Indigenous peoples. As a South Dakotan I will stand up for my property rights and the rights of this country’s First Nations.
I will also stand up for my right to due process. The South Dakota Public Utilities Commission sanctioned interveners in this hearing for alleged violations of discovery, but did not sanction TransCanada for the same violation. TransCanada asked for the ruling in the first place – when do we stop giving this company leeway and exceptions to their own rules?
The mess TransCanada has made of Keystone I and what’s been revealed in last week’s hearings prove that TransCanada cannot be trusted to tell the truth to South Dakotans or to build their pipeline across our land. It is time to reject Keystone XL once and for all.
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Chaffetz Deploys New Tactic To Cull Agency Input On Pipeline
Aug 4, 2015 | E&E Daily News
By Manuel Quiñones
House Oversight and Government Reform Committee Republican leaders are asking at least eight federal agencies to turn over documents related to the proposed Keystone XL oil pipeline from Canada.
Committee Chairman Jason Chaffetz (R-Utah) and Interior Subcommittee Chairwoman Cynthia Lummis (R-Wyo.) have for months been asking the State Department for comment letters on KXL from the various agencies.
But State had refused to comply, even under subpoena from Chaffetz. The administration calls the documents part of its internal deliberative process on whether to approve the pipeline.
Yesterday, Chaffetz and Lummis, in a new tactic, decided to ask each individual agency for its views on whether KXL is in the national interest. Recipients included U.S. EPA and the Commerce, Energy, Justice, Homeland Security, Interior, Transportation and Defense departments.
The lawmakers told the agencies that their views "are important to understanding the process that the executive branch uses in its permitting process."
The administration has not said when it expects to complete its KXL permitting review, which has lasted more than six years. Sen. John Hoeven (R-N.D.) last week cited sources in saying the administration would deny TransCanada Corp. permission to build the pipeline across the border.
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Climate Rule’s Shift Away From Natural Gas Irks Industry
Aug 3, 2015 | PoliticoPro
By Elana Schor
EPA’s new climate change rule dropped some projections from a previous draft that had favored natural gas, frustrating the industry that had warily started to view President Barack Obama as an ally.
In its final power-plant emissions regulations, EPA edged away from promoting natural gas as a cleaner alternative to coal, which had been a central part of last year’s proposed version, in favor of a new program that entices states to expand renewables and efficiency. The agency’s resulting vision of a decline in gas’ share of the power sector by 2030 irked producers, many of whom who have lauded Obama’s endorsement of a “bridge” role for the cleanest burning of the fossil fuels.
The “bridge was just blown up,” said Tom Pyle, president of the industry-backed group American Energy Alliance, blasting a “maneuver” away from natural gas growth that meant “the rule got worse.”
“If I were the gas guys, I’d be scratching my head, saying ‘Did we just get the rug pulled out from under us?’” Pyle said in an interview.
Politically speaking, EPA’s embrace of renewables and efficiency to achieve the emissions reductions that was previously pinned on the a transition from coal to gas appears to hand a new weapon to Republicans fighting to unravel the regulations.
Sen. Steve Daines (R-Mont.) and Rep. Richard Hudson (R-N.C.) tarred the agency Monday for waging a “war on American energy,” a shift in the rhetoric that the administration had engaged in the “war on coal” that suggests that the GOP may seek to cast EPA as the enemy of domestic fracking.
Practically, however, the picture is murkier. Frank Macchiarola, executive vice president at America’s Natural Gas Alliance, offered cautious criticism that focused more on Obama’s style than substance.
“We were disappointed with the message the White House took this weekend, which was in a sense running away from natural gas,” he said. “Whether or not that rhetoric turns into reality within the rulemaking is still to be determined.”
Part of that hesitancy comes from the fact that EPA’s modeling foresees — but hardly guarantees — a decline in power plants’ natural gas use. The agency gives states a map to complying with the new emissions-cutting mandates but allows them to lean on natural gas more heavily while crafting implementation plans.
“If a state wants to use only solar to meet its targets, it can do that,” Michael Levi, senior fellow at the Council on Foreign Relations, wrote in a Monday column on the rules. “If it wants to use only natural gas or nuclear, it can do that too.”
Underscoring the emissions rules’ mixed picture for natural gas, EPA also projects “little change in natural gas production” in its underlying analysis. With liquefied natural gas exports set to take off over the next decade and global demand estimated to rise, gas could keep growing without a demand boost from the power plant rules. Industry activity has slowed with the prices hovering below $2.75 per million BTUs, and more regulations are in the works.
EPA is expected to soon release new rules to cut methane leaks from new sources in the oil and gas sector, and environmentalists are pressing for EPA to follow that with constraints on existing infrastructure that would be based upon the same section of the Clean Air Act used for Monday’s power-plant rules.
“To meet the targets the administration has put out there for overall greenhouse gas reductions, methane reductions are absolutely critical,” Darin Schroeder, associate attorney at the green group Clean Air Task Force, said in a recent interview. “It can’t just be CO2 from power plants or methane emissions — it has to be both.”
Climate activists also hope EPA will follow today rule by seeking to curb oil refineries’ emissions, a prospect undoubtedly on the mind of that sector’s top lobbyist as he lamented the power-plant regulations on Monday.
“The rule’s so-called ‘beyond the source’ approach creates a worrisome precedent for the future of regulation under the Clean Air Act,” American Fuel & Petrochemical Manufacturers President Chet Thompson said in a statement.
The American Petroleum Institute’s senior director of regulatory affairs, Howard Feldman, vowed that natural gas would survive whatever blows EPA lands.
“With or without new regulations, natural gas will continue to grow as a critical source of clean energy, but the EPA’s rule does more harm than good,” he said in a statement.
EPA projects that efficient new natural gas combined cycle plants would take a growing share of the nation’s generation capacity by 2020 under the emissions regulations issued Monday before declining by 2030 as renewable power scales up. Gas would remain the leading source of projected U.S. electricity generation in 2030 under the rules, at 33 percent compared with 27 percent for coal.
That continued dominance of gas and coal left some environmentalists convinced Monday that Obama’s assault on fossil fuels, whether portrayed by critics as a war on coal or on all carbon-based energy, is largely a myth.
“With this plan, we can expect more fossil fuel development, more dangerous fracking, and only a symbolic investment in truly clean, renewable energy,” Food and Water Watch Executive Director Wenonah Hauter said in a statement.
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Gas May Be Fossil Fuel Loser in Push for Renewables
Aug 4, 2015 | BNA Daily Environment Report
By Naureen S. Malik and Harry R. Weber
Once seen as a clear winner in President Barack Obama's push for cleaner power, natural gas wasn't looking like much of a champ Aug. 3.
That so-called bridge that gas was supposed to be, leading the U.S. away from dirtier fossil fuels such as coal and toward renewable power, just got a lot shorter under the final Clean Power Plan the Environmental Protection Agency released. The EPA will reward early investments
in wind and solar power to get the nation generating 28 percent of its power using renewables by 2030, up from an initial proposal of 22 percent.
The more aggressive goal weakens natural gas's role in America's energy future in favor of a quicker transition to zero-carbon sources of electricity. It is yet another blow for gas suppliers who have seen prices for their fuel slide amid a glut of supply from shale formations.
‘Relatively Accelerated Timeline.'
“Given the relatively accelerated timeline required to meet the interim target, the so-called bridge has been largely eliminated and replaced by renewables,” said Teri Viswanath, director of commodities strategy at BNP Paribas SA in New York. “The industry often emphasizes that natural gas is twice as clean as coal. However, doesn't this imply that it is just half as dirty?”
The final plan is a clear boon for companies such as SolarCity Corp. and NextEra Energy Inc. that have invested billions of dollars in renewable generation. Berkshire Hathaway Inc.’s energy unit, Apple Inc. and Goldman Sachs Group Inc. are among U.S. corporations that have pledged to invest at least $140 billion to shrink their carbon footprint as part of a White House initiative.
The EPA is “obviously stressing to get away from coal, but they also are stressing over time to get away from natural gas,” said Bob Yawger, director of the futures division at Mizuho Securities USA Inc. in New York. “I am looking at it as bearish in a very long-term kind of way.”
Potential Big Headache
For the operators of the nation's power grids, it is potentially a bigger headache. They will have to juggle the retirement of dependable coal-fired plants while dealing with an onslaught of often volatile renewable power generation—and perhaps less gas-fired supply to back up the entire system.
“If the population wants to go renewable, there's no reason we can't, but it's going to be expensive and everybody should understand that,” said Ed Hirs, a lecturer on energy economics at the University of Houston. “Going full-speed ahead is going to bring with it new problems.”
Only 5.5 percent of U.S. power generation comes from wind and solar. Almost a third comes from gas. The country needs gas to deal with the intermittency of solar and wind, according to Bloomberg Intelligence analyst Stacy Nemeroff.
“The only way to get from here to a lower carbon-emitting future is through natural gas and natural gas generation,” Thad Hill, chief executive officer of Calpine Corp., the largest U.S. operator of gas-fueled plants, said in an interview on Bloomberg Television Aug. 3. “We've got the right fleet at the right time.”
McCarthy: Gas Remains in Power Mix
In a conference call with reporters Aug. 2, EPA Administrator Gina McCarthy said gas will remain a key part of the U.S. power mix while also acknowledging the administration's desire to push the industry toward renewables.
In April, gas produced more power than any other source, overtaking coal as the primary plant fuel for the first time thanks to supplies surging out of U.S. shale formations.
Dan Whitten, spokesman for America's Natural Gas Alliance, said by e-mail that initial reports of Obama's final plan were “discouraging.”
“The White House appears to be making a shift that ignores the market reality,” Whitten said. “Natural gas is ready today to cost-effectively meet our environmental and energy challenges.”
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EPA Uses Uniform Standards To Preserve Overall Stringency In Final ESPS
Aug 3, 2015 | InsideEPA
By Lee Logan
EPA officials say they were able to strengthen their just-finalized greenhouse gas (GHG) rule for existing power plants despite dropping energy-efficiency measures from setting state goals due to more robust assumptions about the potential for renewable energy, as well as a more regional approach to coal-to-gas shifting.
The regional target-setting approach is a major change to how EPA calculates states' GHG goals in the existing source performance standards (ESPS). Under the new approach, EPA created uniform emission performance rates for coal- and gas-fired plants and applied those rates to each state's generation mix to create the state's GHG reduction target.
Under the final rule, EPA uses an interim emission performance rate for coal plants of 1,534 pounds of carbon dioxide per megawatt hour (lbs CO2/MWh), with a final rate of 1,305 lbs CO2/MWh.
For gas plants, the interim standard is 832 lbs CO2/MWh, and the final standard is 771 lbs CO2/MWh.
EPA crafted those rates by applying three building blocks, or GHG reduction strategies, to regional generation levels. The strategies include: improved plant-level efficiency, displacing coal generation with gas generation and greater reliance on renewables and zero-emitting resources. Unlike the proposed rule, the final formula does not include assumptions about end-use energy efficiency when setting targets.
After creating three regional rates -- one for the Western Interconnection, the Eastern Interconnection and the Texas power grid -- EPA picked the least stringent rate for each class of plants to use nationally.
In the final ESPS, the performance rates were calculated by applying the building block strategies to a generation in a broad grid region, unlike the proposal's approach that applied the building blocks at a state level.
The uniform national performance standards create the upper and lower limit for all states' targets. For example, a state that has no existing gas plants, such as West Virginia, has a final rate-based target of 1,305 lbs CO2/MWh, which is the national coal rate.
A state like California, with no coal plants, has a final rate-based target of 771 lbs CO2/MWh, the national gas rate.
States would then fall in between those two rates based on a weighed average of their historical coal and gas generation.
Employing the new target-setting approach leads to “more uniform and less varied” state targets, EPA Administrator Gina McCarthy said during an Aug. 2 press call previewing the final ESPS. “The goals are much closer together than at proposal,” EPA says in state-specific fact sheets. “Compared to proposal, the highest (least stringent) goals got tighter, and the lowest (most stringent) goals got looser.”
Acting EPA air chief Janet McCabe told an Aug. 3 press call that the change also “means there's more opportunities to shift to cleaner natural gas and renewable energy, broadly, across the sector.”
Underscoring the additional “opportunities,” coal-heavy states that previously had softer targets tied to the gas-related building block 2 -- because they had few or no existing gas plants -- now have relatively stricter targets because the goals reflect the regional coal-to-gas shift.
McCabe added that EPA boosted its assumptions about new renewable energy potential based on information from the National Renewable Energy Laboratory and other sources, which suggested that the costs of renewable technology is decreasing, and that the “pace of construction of these activities is going up.”
She added that the data EPA used for its renewable targets “do not rely on the continuation of the [federal wind] tax credit.”
The regional target-setting approach and the boosted assumptions about renewables, she said, “makes up for the fact that some other things have been taken out of the target setting.”
Efficiency Block
EPA adopted the new approaches for setting state targets as it also decided to drop building block 4, which assumed states could boost end-use efficiency measures. One consultant earlier said that block 4 was responsible for about 15 percent of the total cuts from the program, a “fairly significant” amount.
The change “has tremendous implications for how they calculate the state goals, and if they want to maintain the same level of stringency then what that means is the other blocks need to become much more ambitious, the source said, prior to the rule's release.
But many critics charged that the efficiency block was legally vulnerable because it fell far beyond an individual units' “fence line,” where the agency has generally set emission standards. In another move that weakened the proposed goals for some states, EPA removed under-construction nuclear plants from the targets in Georgia, South Carolina and Tennessee. Those states are building large nuclear plants that will now be able to be used for compliance.
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Obama Issues Landmark Climate Change Rule
Aug 3, 2015 | PoliticoPro
By Alex Guillén
President Barack Obama on Monday issued a landmark environmental regulation designed to speed up the U.S. power industry’s shift away from climate change-causing fossil fuels.
“Climate change is no longer just about the future that we’re predicting for our children or grandchildren, it’s about the reality that we’re living with every day,” Obama said at White House event.
The rule’s release now kicks off one of the biggest battles of Obama’s presidency, with Republicans in Congress taking aim at the measure they contend is part of the administration’s “war on coal,” and conservative state leaders and coal companies readying the legal challenges that are likely to run for years.
Unlike with Obamacare, a law passed by Congress, the carbon rule is an executive branch action that could be undermined by a future president. And since it doesn’t require states to submit their strategies to cut the greenhouse gas until 2018, the outcome of next year’s election a crucial factor in the keeping the plan on track.
The rule from EPA limits carbon dioxide emissions from the nation’s power plants, particularly from coal, in an effort to press for the use of cleaner burning natural gas and zero-carbon sources like nuclear, solar and wind, and energy efficiency.
In a shift from a previous draft issued last year, the plan would give states more credit for nuclear reactors that are currently under development, and it shifted projections that had anticipated natural gas would win a larger share of the market toward renewable energy sources.
It represents one of the broadest forays by any president into environmental protection, and will play a major role in Obama’s legacy. And it is a critical part of the U.S. effort to demonstrate to other nations that the country is taking action to combat climate change. The U.S. is the second biggest carbon emitter in the world after China, and Obama has made a reaching a global climate change pact at the international talks in December a top priority.
Critics of the administration have complained that the EPA has exceeded its authority with the rule and other recent regulations, trampling on states’ rights and endangering the economy in the process.
Republicans in Congress are expected to attempt blocking the rule, though any legislative efforts are unlikely to overcome a presidential veto.
Senate Majority Leader Mitch McConnell, who has called on governors to resist the rule, called the rules “another blow to the economy and to the middle class.”
Speaker John Boehner called the plan “an expensive, arrogant insult to Americans who are struggling to make ends meet.”
Republicans running for president quickly denounced the rule.
“Climate change will not be solved by grabbing power from states or slowly hollowing out our economy,” said former Florida Gov. Jeb Bush. Sen. Marco Rubio (R-Fla.) called it “catastrophic” for utility bills. And Wisconsin Gov. Scott Walker derided it as a “buzz saw on the nation’s economy.”
And states and industry groups are planning to sue over the rule in a case widely expected to ultimately reach the Supreme Court.
But Obama said that Republican critics who claim he is conducting a “war on coal” are doing so to “scare up votes.”
“Communities across America having been losing coal jobs for decades,” Obama said. “I want to work with Congress to help them, not to use them as a political football. Partisan press releases aren’t going to help those families.”
It was the high court that originally laid out the groundwork for the rule during the George W. Bush administration, when it ruled that EPA can indeed regulate carbon dioxide. But EPA’s foes hope to convince the Supreme Court that the regulation overreaches the legal authority of the Clean Air Act provisions by promoting renewable energy and energy efficiency as strategies to lower emissions.
“It’s going to be very difficult for the EPA to address why it thinks it can go from power plant to plug and reach out into your living room without specific authority to do so,” West Virginia Attorney General Patrick Morrisey told POLITICO ahead of the rule’s release.
The rule, which runs nearly 1,600 pages, was the product of years of work from the EPA and comes after Obama’s first attempt at combating climate change, a bill to create a cap-and-trade system for carbon dioxide, died in Congress during his first term.
There was an air of giddiness among the environmental activists and policy experts gathered in the East Room of the White House for Monday’s formal announcement. Even after a downbeat assessment from Surgeon General Vivek Murthy about the rise in deaths from asthma attacks, hurricanes and heat waves caused by climate changes, the audience cheered as EPA Administrator Gina McCarthy took to the podium.
“This is such an incredibly wicked cool moment,” McCarthy said in her Boston brogue before introducing the president.
Brian Deese, a senior White House adviser on climate issues, savored the moment more quietly: Standing off to the side, just opposite a teleprompter, Deese could be seen mouthing the words of key lines in Obama’s speech, including “We only get one home, we only get one planet.”
Under the rule, states will have until as late as 2018 to tell EPA how exactly they plan to meet individual reduction goals. Overall, the rule aims to achieve a 32 percent reduction in carbon dioxide emissions from the power sector over 2005 levels by 2030. States must reach initial reduction goals starting in 2022.
States have fairly broad discretion to choose how they comply with their individual reduction targets, including using more zero-carbon sources of power, instituting efficiency programs and joining with other states to create regional efforts.
At least six governors have indicated they will resist submitting a plan to EPA, a strategy that is expected to put them at risk of having a plan imposed by EPA. Experts say federally written plans are limited in compliance options and could end up costing those states more.
In the past decade, coal’s share of the U.S. electricity market has dropped from 50 percent to 39 percent, and EPA projects that with the carbon rule, coal will continue to drop to just 27 percent by 2030.
Coincidentally, the rule’s release came just hours after Alpha Natural Resources, a major Virginia-based coal producer, filed for bankruptcy protection, citing an “historically challenged coal market.”
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The President Calls For A Greener America
Aug 3, 2015 | The Economist
By M.S.L.J
Blasting air conditioners, revving gas guzzlers and pumping oil, Americans have long attracted censure for their wasteful ways. After all, they produce a disproportionately large share—15 %—of global carbon dioxide emissions. But new rules from the federal Environmental Protection Agency (EPA), announced on August 3rd, signal a green shift in American policy. The Clean Power Plan introduces a raft of emission-reduction goals, tailored for each state, which the EPA believes will trigger a drop in carbon pollution from power stations by 870m tonnes by 2030, a 32% decline when measured against 2005 levels.
An extension of the Clean Air Act of 1970, these are the first-ever national standards for curbing carbon pollution from power plants, America’s largest source of greenhouse gases. States will be able to decide for themselves exactly how and when they cut their emissions, but need to submit their plans by 2018 and to start acting on them by 2022. The plan reckons that new efficiency measures and greater access to gas and renewables will lower energy bills for American families.
A little over a quarter of electricity will still come from coal. But a new incentives programme, not touted in previous drafts, encourages states to turn to wind and solar power instead of simply swapping coal for gas. Though gas generates half the pollution of coal, the plan aims to deter states from getting too hooked on another fossil fuel. Instead, the EPA will award pollution credits to states that increase energy efficiency and move quickly to generate power from renewable sources. These credits can then be used to offset emissions released at a later date. The new plan also gives states more freedom to pursue carbon trading among themselves. The share of American power generated by renewables is projected to swell to 28% by 2030, up from around 13% now.
The new standards have been met with both fanfare and fury. Jennifer Macedonia from the Bipartisan Policy Centre, a think-tank, praises them for setting more realistic expectations for states and utilities, which now have an extra two years to prepare themselves. This reprieve creates “a better chance of reaching a long-term solution,” she says. Others see the dallying as a climb-down, and complain that cutting 2005 emissions by 32% by 2030 shows a pretty puny level of ambition, given that the boom in natural gas from shale—which is much cleaner than coal—has already reduced emissions by 15% in the past decade.
The smooth passage of the plan is unlikely. While the Supreme Court deemed carbon dioxide a pollutant in 2007, thereby placing it under the EPA’s remit, legal challenges to the Clean Power Plan will come thick and fast. Coal groups and many Republican politicians reject the standards outright. Many are eagerly anticipating a new Republican president, who would have little interest in maintaining one of the bolder initiatives of Barack Obama’s environmental legacy (though his administration’s increased fuel efficiency standards may yet do more to curb greenhouse-gas emissions).
Marco Rubio, Scott Walker and Jeb Bush, three of the top Republican candidates for the top job, have swiftly poured scorn on the Clean Power Plan. (Hillary Clinton, more predictably, has come out in favour of the initiative.) A number of coal companies have threatened to sue the Obama administration. But the power of coal groups is weaker than many realise. Although touting the industry's employment possibilities is an effective rural rallying cry, almost twice as many people work in the solar industry than for King Coal. Besides, international markets and a supply glut are doing plenty of harm to this dirty fuel: the price has more than halved in the past four years. More than 20 American coal firms have gone bust since 2012, including Alpha Natural, which filed for bankruptcy on August 3rd.
Even if domestic leadership on the EPA’s proposals remains uncertain, the plan suggests America wishes to occupy a bigger role at the climate negotiations in Paris this December. Ethan Zindler, from Bloomberg New Energy Finance, says the measures finally “sync up international promises with domestic policies.” America’s emissions-reduction deal with China late last year now has more bite, for example. And any indication that America is more open to multilateral negotiations is welcome news elsewhere in the world, even if many allies had hoped for a more ambitious environmental agenda.
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Clean Power Plan Grants States More Time, Autonomy
Aug 4, 2015 | BNA Daily Environment Report
The Environmental Protection Agency will extend the deadlines for states to comply with its carbon dioxide standards for power plants and allow them to craft their own glide path toward compliance as part of a final rule released Aug. 3.
The final Clean Power Plan (RIN 2060-AR33), issued under Section 111(d) of the Clean Air Act, phases in the required carbon dioxide emissions reductions between 2022 and 2030 in a concession to states that had argued the original proposal demanded significant emissions reductions too quickly.
“We'll reward the states that take action sooner rather than later because time is not on our side,” President Barack Obama said when announcing the rules Aug. 3.
Additionally, the rule will explicitly require states to incorporate a reliability safety valve to ensure grid reliability as part of their compliance plans to implement the standards.
The EPA also sought to make its final rule more legally defensible by dropping the energy efficiency component that the agency had proposed. Critics had argued the EPA lacked the legal authority to require the emissions reductions beyond the fenceline of the power plants themselves. Instead, the agency will establish a voluntary energy efficiency program to encourage early emissions reductions (see related story).
The EPA predicted that its final Clean Power Plan will reduce carbon dioxide emissions from the power sector by 32 percent below 2005 levels by 2030 at a cost of $8.4 billion per year in 2030.
The agency also issued final carbon dioxide emissions standards for new power plants (see related story).
States Given Time, Autonomy
The final Clean Power Plan will extend the initial compliance period for the rule from 2020 as proposed to 2022, allowing states additional time to develop their strategies (146 DEN A-3, 7/30/15).
“This rule is sort of what the federal government can do under the existing law. It's now going to be up to the states to carry out the planning process,” Bob Perciasepe, president of the Center for Climate and Energy Solutions and former deputy administrator of the EPA, told reporters Aug. 3.
States had complained that the EPA's proposed rule would create a “cliff” by requiring the bulk of the emissions reductions beginning in 2020, when the rule was to have taken effect. Instead, the final rule will begin implementation in 2022 but phase the emissions reductions in over time, allowing states to chart their own glide path toward compliance. The states would need to meet emissions rates targets between 2022 and 2024; 2025 and 2027; 2028 and 2029, with the final targets achieved by 2030.
States will have the option of submitting either their final plans or an initial submission to the EPA by Sept. 6, 2016. States that choose to make that initial submission will have until Sept. 6, 2018, to complete their plans.
Nathan Richardson, assistant professor of law at the University of South Carolina School of Law and a visiting fellow at Resources for the Future, told Bloomberg BNA Aug. 3 that the initial submission deadline is meant to cajole reluctant states into working with the EPA to implement the rule.
“You got to play ball with EPA to get an extra two years,” Richardson said.
While states will be tasked with developing plans to implement the Clean Power Plan, the EPA Aug. 3 also issued a model federal plan to guide that process. The EPA will issue a federal plan, which focuses on emissions trading, for those states that choose not to develop their own (see related story) .
New Calculations Modify State Goals
Many states saw their emissions rate targets change from the proposed rule as the EPA adjusted how it calculated each state's targets, including dropping energy efficiency components of the proposal.
As a result, Texas, for example, will have a 2030 carbon dioxide emissions rate target of 1,042 pounds per megawatt-hour, up from 791 pounds per megawatt-hour in the proposal. Other states will see more lenient goals. Kentucky's 2030 emissions rate target will decrease from 1,763 pounds of carbon dioxide per megawatt-hour in the proposal to 1,286 pounds per megawatt-hour in the final rule.
“For some states, they will be comfortable with their targets,” Alexandra Dunn, Executive Director and General Counsel of the Environmental Council of the States, told Bloomberg BNA Aug. 3. However, she conceded, “We know other states won't be.”
The rule does not include standards for Alaska, Hawaii, Puerto Rico or Guam because the EPA said it lacks sufficient data to set the standards at this time.
The revisions are driven by new assumptions about the how often natural gas-fired power plants can operate and the ability of existing power plants to improve their operating efficiency. The EPA in its final rule has taken a regional approach to calculating heat rate improvements at existing power plants, based on regional grids. The final rule calculates states' emissions targets using heat rate improvements of between 2.1 percent and 4.3 percent regionally rather than 6 percent nationally as proposed. The EPA also revised its method for determining the emissions reductions that can be achieved by greater use of the existing natural gas-fired fleet of power plants by setting emissions guidelines based on those units operating at 75 percent of net summer capacity rather than the 70 percent of their nameplate capacity as proposed.
Energy Efficiency Component Dropped
The EPA had proposed four “building blocks” that states could use to comply with the carbon dioxide standards: heat rate improvements at existing power plants, shifting more generation to natural gas-fired units, new renewable energy generation or investments in energy efficiency programs.
The final rule dropped the energy efficiency component, widely viewed as the most legally vulnerable component of the proposal. Opponents had argued that the EPA lacked the authority to regulate consumer behavior rather than emissions at the power plants themselves.
Despite those revisions, the EPA expects the final rule to produce more carbon dioxide emissions reductions than previously proposed. The agency had anticipated that the proposed rule would reduce carbon emissions by 30 percent from 2005 levels by 2030, but now it expects a 32 percent reduction. The additional gains are driven by a greater emphasis on renewable energy and an expanded role for natural gas.
Thomas Lorenzen, a partner at Crowell & Moring LLP, told Bloomberg BNA Aug. 3 that the energy efficiency component was “truly beyond the bounds because it was actually regulating consumer demand, not even generation of electricity but consumer demand for a product.”
Although the EPA has dropped energy efficiency from its calculations, states will still have the option of pursing that as a compliance measure.
“The energy efficiency change—that those efforts are not part of a formal building block, but are still an acceptable way to meet goals—makes the rule more defensible,” Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia Law School, told Bloomberg BNA. “With the building block, there was a legal question of could EPA indirectly require actions by those outside the fenceline.”
Reliability Safety Valve Added
The EPA also added a reliability “safety valve” to address unanticipated events to allow power plants to continue operating even if that would conflict with a state's compliance plan, thus ensuring grid reliability.
However, the EPA said it expects these situations to be “extremely rare” because states will have the flexibility to develop requirements for their power plants that will provide long averaging period and/or compliance mechanisms.
EPA said it is providing the safety valve as precaution, though, based on many comments it received on the proposed rule, including input from the Federal Energy Regulatory Commission (96 DEN A-5, 5/19/15).
Separately, the EPA, FERC and the Energy Department released a coordination plan Aug. 3, that details how the three agencies will work together to ensure reliable electricity generation and transmission during the implementation of the Clean Power Plan.
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Senate Panel Set To Mark Up Capito's 'Opt-Out' Bill
Aug 4, 2015 | E&E Daily News
By Jean Chemnick
The Senate Environment and Public Works Committee will mark up a bill tomorrow that would prevent U.S. EPA's Clean Power Plan from taking effect in states that don't support it.
The markup of S. 1324, from Sen. Shelley Moore Capito (R-W.Va.), is the opening salvo of what promises to be a prolonged battle by congressional Republicans against the rule for existing power plants, the core of President Obama's climate change agenda (E&ENews PM, Aug. 3).
Opponents say the rule and related ones for new and modified power plants will destroy their states' economies and endanger grid reliability.
The Capito bill and a similar version that has already cleared the House would allow all states to defer submitting implementation plans for the existing power plant rule until judicial review ends. Governors could opt out of compliance even then if they determined that the existing power plant rule would jeopardize the reliability of the power grid or lead to rate hikes for consumers -- questions state leaders could decide without outside input.
In either case, EPA would be barred from stepping in with its federal implementation plan (FIP), which it proposed yesterday and which would offer them a choice of two emissions-trading programs. The FIP will be finalized next summer after a public comment period.
Capito's bill would also take on EPA's New Source Performance Standard, preventing the agency from promulgating a rule that would require future coal plants to use partial carbon capture and storage or co-firing to reduce emissions.
While it is certain to clear the committee, it remains unclear what the prospects are for the Senate floor. Majority Leader Mitch McConnell (R-Ky.) has shown an eagerness to use the Congressional Review Act to go after either or both of EPA's newly final power plant rules as soon as they have been published in the Federal Register (see related story).
The rarely used law lets Congress veto executive branch regulations and has the benefit of allowing resolutions to clear the Senate on a simple majority of the vote. That would mean no Democratic filibusters or prolonged wrangling over amendments -- allowing Republicans to take their messaging vote without expending valuable floor time that could also be spent funding the government.
McConnell touted the CRA option and Capito's measure yesterday in a floor address timed to coincide with President Obama's unveiling of the power plant package at the White House.
The administration, he said, is "tired of having to work with the Congress the people elected."
"That's why the administration is now trying to impose these deeply regressive regulations -- regulations that may be illegal, that won't meaningfully impact the global environment and that are likely to harm middle-and-lower class Americans most -- by executive fiat," he added.
McConnell has been aggressively shopping what has come to be known as his "just say no" strategy for months -- urging states to forgo submitting implementation plans on the rule. He argues that EPA won't have the legal authority to implement its FIP, but it might scare states using their own authority to do it.
While Congress is expected to spend some time this autumn targeting the rules, McConnell and other foes say the states can do more -- both by launching lawsuits against the rule and by refusing to comply.
Schedule: The markup is Wednesday, Aug. 5, at 10 a.m. in 406 Dirksen.
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15 States Will Challenge Clean Power Plan in Court
Aug 4, 2015 | BNA Daily Environment Report
By Gerald B. Silverman, Michael Bologna, Paul Stinson Leslie Pappas, Nora Macaluso and Adrianne Appel
The Clean Power Plan received a mixed response from states, with 15 attorneys general pledging to challenge the plan in court and nine others pledging to defend it.
The 15 states, led by West Virginia, will move to reopen a case before the U.S. Court of Appeals for the District of Columbia Circuit and file a separate legal challenge once the rules are published, according to a statement from the attorneys general.
In addition, they plan to request an administrative stay from the Environmental Protection Agency, pending resolution of the legal challenges.
The District Court said in June that a state challenge to the plan was premature (In re: Murray Energy Corp., D.C. Cir., No. 14-1112, 6/9/15; West Virginia v. EPA, D.C. Cir., No. 14-1146, 113 DEN A-7, 6/12/15).
“EPA's rule is an overreach of historic proportions, and this regulation of electrical power generation goes far beyond what Congress authorized the agency to do,” Indiana Attorney General Greg Zoeller (R) said in a statement.
The 15 states are West Virginia, Indiana, Kentucky, Alabama, Alaska, Arkansas, Kansas, Louisiana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Wisconsin and Wyoming.
Nine attorneys general sent a letter to EPA applauding the plan and pledging to defend it. “The Clean Air Act requires EPA to regulate emissions of climate change pollution from new and existing power plants,” they said in the letter.
“It is appropriate and critical that the EPA exercise its legal authority and satisfy its obligation to regulate,” Connecticut Attorney General George Jepson (D) said in a statement. “Such regulation will complement the contributions of the existing Regional Greenhouse Gas Initiative in promoting improved air quality and reducing health risks to our residents.’’
The nine states are New York, California, Connecticut, Maine, Massachusetts, New Mexico, Oregon, Vermont and Washington.
Winners and Losers
“There's clear polarization,” Charles D. McConnell, executive director of the Energy and Environment Initiative at Rice University, told Bloomberg BNA. “There's clear winners and losers.”
McConnell said there's “some source of comfort” in the new timelines in the plan for compliance and provisions for reliability.
McConnell said “we've made carbon dioxide ‘the thing,’’’ instead of having an energy strategy that includes affordability, energy security and “transformative technology” such as carbon capture utilization and storage.
RGGI Pleased
Katie Dykes, chairwoman of the Regional Greenhouse Gas Initiative and deputy commissioner for energy at the Connecticut Department of Energy and Environmental Protection, told BNA that it was too early to know what changes might be needed for the nine RGGI states to comply with the plan.
She said RGGI is pleased that the plan recognized the cap-and-trade program as a compliance pathway. “We're really excited,” she said. “We're going to be reviewing the rule in detail.”
Gavin Donohue, president and chief executive officer of the Independent Power Producers of New York, told Bloomberg BNA that IPPNY “is encouraged by the inclusion of the option for states to convert rate-based goals to mass-based goals, such as under the Regional Greenhouse Gas Initiative.”
“IPPNY members have experience complying with the RGGI program and its regional nature is a better approach to compliance than reverting to nine individual state mechanisms,” he said in an e-mail. “More importantly, additional state participation in the RGGI program or other similar market-based programs may result in more of a level playing field across states.”
Response to States' Concerns
William Becker, executive director of the National Association of Clean Air Agencies, said the EPA responded to many of the states' concerns.
“We are particularly pleased with the additional time provided to develop and submit plans and to begin meeting the interim compliance deadline,” he said in a statement. “These changes help make good on EPA's promise to give states significant flexibility in meeting their goals.”
Jordan Stutt, a policy analyst for the New England-based Acadia Center, told Bloomberg BNA that “in an effort to build on effective state programs, EPA has taken measures to facilitate emissions trading as part of the Clean Power Plan.”
“The experience of the Northeast and Mid-Atlantic states participating in the Regional Greenhouse Gas Initiative (RGGI) has shown that a market-based program can reduce CO2 emissions while driving economic growth and energy innovation,” he said in an e-mail.
“EPA has recognized this potential for low-cost emissions reductions and has designed the Clean Power Plan in a way that supports widespread implementation of RGGI-like trading programs,” according to Stutt.
California Air Board Reaction
“The Clean Power Plan supports successful state programs like those California has put in place,” Mary D. Nichols, chairwoman of the California Air Resources Board (CARB), said in a statement. “We will move quickly to implement it and urge other states to do the same.”
“California's experience demonstrates that greenhouse gas emission reductions and economic growth can go hand-in-hand, and we are very pleased to see the federal government now take a leading role in the effort to curb climate change and create new economic opportunities,” she said.
The Clean Power Plan's target for California fits within the state's planned economy-wide goal of reducing carbon emissions by 40 percent below 1990 levels by 2030, according to CARB.
Robert A. Wyman Jr., an attorney with the Los Angeles firm Latham & Watkins LLP, said, “California should fare well under the revised plan.”
“The final CPP specifically recognizes state mass-based, portfolio programs, such as California's, as among the best ways to reduce greenhouse gas emissions,” he told Bloomberg BNA in an e-mail.
“The final plan also narrows the differences in each state's performance targets and outlines pre-approved paths for interstate linkage,” he said. “These changes make it much more likely that states will link their programs, which has always been one of California's priorities.”
Indiana, Michigan to Review Plan
Indiana Gov. Mike Pence (R) said his administration will review the rule to see if it's been “significantly improved” from the proposed version, and repeated his intent to refuse to comply if it is not.
“In the days ahead, my administration will carefully review the final rule to determine if the Obama administration was listening,” Pence said in an Aug. 3 statement. “If the final rule is not significantly improved, then Hoosiers can be assured that on behalf of families, businesses and other ratepayers, Indiana will not comply.”
Michigan will conduct a multi-agency review of the rule to assess its implications for Michigan between now and Labor Day, Valerie Brader, executive director of the Michigan Energy Agency, said in an Aug. 3 statement.
“If, after this multi-agency review, we believe it is likely Michigan can find a reasonable path to compliance, we will engage a wide range of stakeholders and offer the public a chance to participate in the development of that plan,” Brader said.
Attorney General Bill Schuette (R) dismissed the plan as soon as it was announced. “I am deeply concerned by yet another executive action taken by President Obama and the EPA that violates the Clean Air Act and causes the price of electricity to increase, placing jobs at risk and costing Michigan families more,” Schuette said in a statement.
Schuette hasn't decided whether to fight the rule in court, but he doesn't believe Section 112 of the Clean Air Act gives the EPA the authority to use the plan as a “regulatory tool,” Andrea Bitely, a spokeswoman for the attorney general, told Bloomberg BNA Aug. 3.
West Virginia Still Not Pleased
West Virginia Gov. Earl Ray Tomblin (D), in a statement, said the “limited changes” made in the final version of the CPP “still leave us with proposed regulations that are unreasonable, unrealistic and ultimately unattainable for our state.”
“While those who employ our hardworking miners have urged us to refuse to submit a compliance plan, at this point West Virginia still has not determined whether it will submit any plan to the EPA,” he said.
He said the state Department of Environmental Protection, under a 2015 law (H.B. 2004), has 180 days to issue a detailed report on the impact of the CPP on West Virginia.
Kentucky ‘Disappointed.'
Kentucky Gov. Steve Beshear (D) in a statement said he was “extremely disappointed and frustrated by the huge changes the EPA made from the proposed rule.”
“What is being proposed for Kentucky is disastrous – disastrous for our declining coal economy and equally disastrous for our very important manufacturing economy,” he said. “It is clear from the emissions numbers the EPA has set for Kentucky that the agency did not listen to us.”
“This rule leaves the Commonwealth with few, if any, alternatives to formulate a plan without significant harmful impact to rate payers, manufacturing companies and the overall economy,” he said.
Beshear said Kentucky would fight the rule in court, but also said it would explore ways to comply, if it is upheld, “because we believe that a Kentucky-specific plan would be better than a federal plan imposed on us.”
Work to Begin in Southeast
Frank Rambo, an attorney with the Southern Environmental Law Center, said “for states in the Southeast, the real work now begins.”
“We need to make smart choices about how we can meet these targets, which will improve public health by reducing pollution while also providing the opportunity for new jobs through clean energy investments,” he said in a statement.
“The reality is the strategies to meet the Clean Power Plan reflect the energy shift already underway in our states: We're embracing smarter, cleaner, cheaper energy options that would be happening with or without this plan,” he said.
The Southern Environmental Law Center is a regional environmental group with offices in Virginia, Tennessee, North and South Carolina, Georgia and Alabama.
Wisconsin May Seek Removal
Wisconsin Gov. Scott Walker (R), an outspoken critic of the plan, said he would take steps to remove his state from the federal program. Walker said the administration's proposal would layer $13 billion in new costs on Wisconsin ratepayers and trigger manufacturing job losses.
“Wisconsin has taken every opportunity to express that the Obama administration is not only exceeding its authority by issuing the EPA's final rule but is pursuing the least efficient way to make environmental gains,” Walker said in a statement.
The power plan could prove challenging for Wisconsin, which relies heavily on coal-generated electric power. According to the U.S. Energy Information Administration, 62 percent of the state's energy consumption came from coal-fired power plants in 2013.
Walker, who is seeking the Republican nomination for the presidency, directed Attorney General Brad Schimel (R) to take unspecified steps to “protect Wisconsin ratepayers” from the “devastating impacts” of the clean power program. Walker also ordered the Department of Natural Resources and the Public Service Commission to evaluate the financial impact of the final rule.
New Jersey Still Reviewing
New Jersey is still reviewing the final rule, Bob Considine, press director for the New Jersey Department of Environmental Protection (NJDEP) told Bloomberg BNA in an e-mail Aug. 3.
New Jersey complained to the EPA during the comment period for the proposed rule that the rule unfairly penalized New Jersey because it did not give the state credit for the 33 percent reduction of carbon emissions it achieved between 2001 and 2012.
“In the proposed rule, EPA only credits states for post-2012 CO2 emission reductions and gives no acknowledgement of New Jersey's pre-existing carbon-free nuclear power,” Considine told Bloomberg BNA. “We feel the rule as proposed creates an uneven playing field that fails to credit the positive work New Jersey has already done to reduce CO2 emissions.”
Pennsylvania to Seek Comments
Pennsylvania will give stakeholders a chance to comment on the rule beginning in September, and will continue to collect comments over the next three years as the Pennsylvania plan is drafted and finalized, the Pennsylvania Department of Environmental Protection and the governor's office said in a joint statement released Aug. 3.
Gov. Tom Wolf (D) said his administration is “committed to making the Clean Power Plan work for Pennsylvania,” and said the goals for reducing carbon emissions were “ambitious but achievable” for the state. Pennsylvania DEP Secretary John Quigley said the state's plan must protect Pennsylvania's “vital role as a net electricity exporter.”
Pennsylvania is the nation's third-largest carbon emitting state, Larry Schweiger, president and CEO of PennFuture, an environmental group, said during a conference call with reporters after the plan was announced.
The state's booming supply of natural gas should be used as a “bridge fuel” to meet the state's emissions goals, but only if it can be properly controlled and regulated to control methane leakage, Schweiger said.
“We need to pick our road carefully going forward,” he said. “I would caution that this rule and this entire process points us in the direction of clean energy.”
Oklahoma Objects Again
Objecting to the estimated 32 percent reduction in carbon dioxide emissions from Oklahoma power plants by 2030, Oklahoma Gov. Mary Fallin (R) said Aug. 3 the federal plan “represents one of the most expansive and expensive regulatory burdens ever imposed on U.S. families and businesses.”
The Oklahoma governor's comments objecting to the federal plan are the latest following the conclusion of a legislative session that saw Fallin issue an April 28 executive order codifying the state's opposition to the carbon limits for power plants (84 DEN A-19, 5/1/15).
Oklahoma will not file a state implementation plan with the Environmental Protection Agency regulating carbon dioxide emissions produced by Oklahoma power plants, according to the order.
Texas Cites ‘Overreach.'
Texas Gov. Greg Abbott (R) said the measure amounted to “unilateral executive overreach,” vowing that the state would not accept the proposal quietly.
“As we have in the past, Texas will lead the fight against an overreaching federal government that seems hell-bent on threatening the free-market principles this country was founded on,” said Abbott.
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States, Industry Prepare Legal Onslaught for EPA Carbon Rules
Aug 3, 2015 | PoliticoPro
By Alex Guillén
President Barack Obama’s Monday unveiling of EPA’s landmark carbon rules brings to a close years of behind-the-scenes work to implement the most sweeping response to climate change in U.S. history.
Now, an army of lawyers representing coal companies, utilities and fossil fuel-dependent states will spend at least the next three years trying to undo that work.
The Supreme Court has made it clear — twice — that EPA has the authority to regulate greenhouse gases. But exactly how the agency goes about doing that and precisely how far it can go in mandating cuts are the center of fierce debate.
There are three distinct legal arguments against the limits on existing power plants that are at the center of the Clean Power Plan. Challengers are expected to argue that the rule is invalid because it exceeds the boundaries of EPA’s authority to regulate major sources of pollution, contradicts a Clean Air Act provision meant to avoid duplicative rules and violates the Fifth and 10th Amendments to the Constitution.
Any one of those arguments might be enough to pull the rug out from under the entire rule.
Coal producer Murray Energy announced plans to file lawsuits a few hours before the rule was formally unveiled Monday, and the National Mining Association asked EPA to place an administrative stay on the rule while the coming court challenges play out. White House spokesman Josh Earnest said Monday the rule would not be put on hold.
EPA Administrator Gina McCarthy insists that each aspect of the rule is on solid footing.
“We just made sure that we are explaining legally why the changes were made and how this remains in the four corners of the Clean Air Act,” she said on Sunday. “It is a legally very strong rule.”
The rule’s opponents are just as confident they will eventually prevail.
“We believe it’s legally deficient on a number of fronts and believe it’s going to have a terrible impact on citizens across the country,” West Virginia Attorney General Patrick Morrisey told POLITICO. Morrisey filed an early lawsuit to challenge the rule, but the D.C. Circuit declined to judge the rule’s legality before it was finalized.
States are trying to secure a panel of Republican appointees to hear the new lawsuit they plan to file in the D.C. Circuit. But the final call will be up to the Supreme Court, which ruled 5-4 in 2007’s Massachusetts v. EPA that the agency can regulate carbon dioxide and has delivered mixed verdicts since then on its aggressive interpretation of the Clean Air Act.
“It ultimately comes down to: What does Justice Kennedy think?” said David Bookbinder, who led the Sierra Club’s intervention in Massachusetts v. EPA and has recently represented natural gas interests.
While the court’s perennial swing voter provided the winning margin for EPA in 2007, he joined the majority in a 2014 decision that tossed out EPA’s so-called tailoring rule. EPA had attempted to account for the differences between greenhouse gases and other regulated pollutants, which cause health problems at far lower emission levels, but the court said it did not have the authority to reinterpret the Clean Air Act as it did.
“When an agency claims to discover in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy’ … we typically greet its announcement with a measure of skepticism,” the court wrote in the 2014 case, Utility Air Regulatory Group v. EPA. “We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’”
The Supreme Court’s Obamacare decision earlier this year also is giving critics hope. The court upheld the health care law, but Chief Justice John Roberts outlined a new approach to determining when courts should defer to agencies’ interpretation of ambiguous laws.
Critics hope the court’s skepticism extends to the novel interpretation EPA is using for its carbon rule, which is aimed at carbon dioxide emissions from coal-fired power plants but encourages states to use additional strategies such as energy efficiency programs or wind and solar farms to achieve further reductions.
“This new authority that they’ve discovered in a provision that’s been there for 40 years just doesn’t make any sense,” said Jeff Holmstead, an industry attorney at Bracewell & Giuliani who was EPA’s air chief from 2001 to 2005.
EPA defenders, such as Carol Browner, who ran the agency during the Clinton administration and was a senior White House adviser during Obama’s first term, argue that the strengthened scientific consensus about the threat of climate change justifies its interpretation of the Clean Air Act, which was enacted in 1970 and most recently updated in 1990.
“We were still looking at the science of” climate change during through the 1990s, Browner told POLITICO in an interview last month. “And we were looking at the conventional pollutants, and we made a lot of headway in those areas. But one of the things that EPA has to do before it regulates carbon is making this scientific finding.”
Environmentalists and Democrats also blame President George W. Bush for largely downplaying climate change during his two terms, requiring an even more Herculean effort to achieve meaningful cuts after Obama made it a priority.
The rule makes several changes to an earlier proposed version that may help blunt legal challenges. That includes dialing back a requirement for new coal plants to use carbon capture technology and removing energy efficiency as one of the factors used to calculate individual state goals (though efficiency remains a compliance option). McCarthy said the changes are not “concessions to anybody.”
However, EPA’s ambition also may leave it vulnerable.
The biggest weakness EPA critics see is the decision to base states’ carbon-reduction targets on factors such as deployment of new renewable resources, nuclear capacity and other factors that extend “beyond the fence line” of the coal-fired power plants whose emissions it is regulating, according to numerous experts tracking the process.
That allows EPA to seek far greater carbon cuts than if it limited the rule to what could be achieved by modifying existing coal plants themselves. But it also goes further than any regulation previously contemplated under the law.
“What the EPA’s trying to do here is stretch their authority all the way from the power plant to your living room,” said Morrisey, the West Virginia attorney general. “There’s nothing in the Clean Air Act or the Constitution that permits that.”
The dispute comes down to how exactly to interpret a phrase in Section 111(d) of the Clean Air Act: “best system of emission reduction.”
Congress did not provide much guidance on what such a system would entail, but EPA believes those five words justify the Clean Power Plan’s reach.
“It’s really the first time in 45 years of the Clean Air Act that EPA has taken such an expansive approach,” said Roger Martella, a George W. Bush-era general counsel at EPA who now works at the law firm Sidley Austin. “It’s a new and novel interpretation.”
Another legal argument against the rule hinges on a “glitch” in the Clean Air Act. The House and Senate passed conflicting provisions that were inadvertently both written into a conference version that was enacted in 1990.
The House adopted language indicating that EPA cannot use that section to regulate power plants if it already regulates power plants under section 112 of the law, which it did with the 2011 mercury rule. But the Senate language sought to limit double-regulation of pollutants, not sources, so a 111(d) rule could target power plants’ carbon dioxide while a 112 rule targets their mercury emissions.
Three Republican-appointed D.C. Circuit judges tossed out an early challenge to the proposed rule as premature and did not address its merits. But in oral arguments, at least one of them appeared sympathetic to EPA’s arguments that its legal interpretation is a reasonable response to conflicting statutes.
Holmstead thinks the challenge to EPA’s “beyond the fence line” methodology has a better chance of succeeding in court than the argument based on conflicting text in the law. In fact, he believes EPA can regulate greenhouse gases under Section 111(d) — just not to the extent that the Obama administration wants to. The agency should only be able to mandate emission reductions that can be achieved by upgrading power plants themselves, according to Holmstead.
“I think that is legally defensible, and that would get you some reductions in CO2 emissions,” he said, while acknowledging that such a scheme wouldn’t achieve nearly the same reductions as the Clean Power Plan.
A third legal argument — that the carbon rule is unconstitutional on its face — has attracted significant public attention largely because of the person making it: Laurence Tribe, a Harvard constitutional law professor and onetime mentor to Obama. But it has not received as much attention in public comments from critics of the rule, nor the legal proceedings up to this point.
Tribe, on retainer for coal producer Peabody Energy, argues the rule violates the Fifth Amendment’s “takings clause” by imposing overly burdensome costs on utilities and energy consumers, and the 10th Amendment’s separation of powers between states and the federal government.
EPA is “burning the Constitution,” Tribe has written. By forcing states to craft plans to reduce carbon emissions — or implement an EPA-crafted plan if they refuse — the rule turns them into “puppets of a federal ventriloquist.”
EPA has long had states implement federal environmental laws, and stepped in for states that cannot or will not do so. Tribe’s federalism arguments, combined with his reputation as a liberal legal icon, made him a star among Republicans, including Senate Majority Leader Mitch McConnell, who has urged states to refuse to cooperate with EPA.
It remains unclear whether any courts will buy into his arguments, which have been derided by Democrats and environmentalists. Many of Tribe’s constitutional arguments were not brought up at oral arguments earlier this year.
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Clean Power Plan Opponents Vow New Lawsuits
Aug 4, 2015 | BNA Daily Environment Report
By Andrew Childers
The mining industry and states opposed to the Environmental Protection Agency's Clean Power Plan vowed to mount new legal challenges after the final rule was unveiled Aug. 3. “We have no choice but to challenge the Obama administration's illegal actions in court, and we will prevail,” Robert Murray, chairman, president and chief executive officer of Murray Energy Corp., said in an Aug. 3 statement.
The final Clean Power Plan (RIN 2060-AR33), released Aug. 3, would set individual carbon dioxide emissions rates for the power sector in each state (see related story).
The National Mining Association also asked the EPA Aug. 3 to stay implementation of the rule until legal challenges can be resolved.
Murray Energy Corp., which has spearheaded legal efforts to block the Clean Power Plan, said it would file additional lawsuits targeting not just the rule but carbon dioxide standards for new power plants, a model federal plan to implement the Clean Power Plan and the EPA's legal authority to issue its entire suite of carbon dioxide standards.
Earlier Suits Dismissed
The U.S. Court of Appeals for the District of Columbia Circuit dismissed the lawsuits as premature given the rule was not yet final, but 14 states have asked the court to rehear the challenges (In re Murray Energy Corp., D.C. Cir., No. 14-1112, petition for rehearing, 7/24/15; 143 DEN A-2, 7/27/15).
During an Aug. 3 meeting in West Virginia, 15 attorneys general vowed to fight the EPA's rule.
States planning the challenge the rule include Alabama, Alaska, Arkansas, Indiana, Kansas, Kentucky, Louisiana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, West Virginia, Wisconsin and Wyoming (see related story).
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Energy Incentive Program Added to Clean Power Plan
Aug 4, 2015 | BNA Daily Environment Report
By Rebecca Kern
The Environmental Protection Agency is developing a new Clean Energy Incentive Program to help states transition more quickly to renewables and energy efficiency projects in order to comply with the final Clean Power Plan released Aug. 3.
The incentive program would be a voluntary matching fund to encourage states to invest early in solar and wind power projects and in energy efficiency projects in low-income communities.
The plan stipulates that the program will reward states that invest early in renewable energy generation and demand-side energy efficiency measures that either generate carbon-free megawatt hours (MWh) or reduce end-use energy demand during 2020 and/or 2021.
Participating states will receive a matching allowance from the EPA, or an emissions rate credit, that adds up for all states to be equivalent to 300 million short tons of carbon dioxide emissions.
The EPA is promoting incentives for solar and wind power projects specifically because they can be implemented quickly, and it is addressing concerns that the Clean Power Plan could potentially shift investment way from these zero-emitting technologies, the agency said in an Aug. 3 fact sheet that accompanied the final rule (see related story).
Replaces Efficiency Requirements
The voluntary program replaces the energy efficiency requirements that were incorporated into state compliance strategies as part of the proposal.
But Steve Nadel, executive director of the American Council for an Energy-Efficient Economy, said he is optimistic that states will still use energy efficiency to meet their compliance targets.
“The final rule fully allows energy efficiency to be part of compliance plans,” he told Bloomberg BNA Aug. 3.
“The EPA is providing a lot more guidance for states on how various different [efficiencies] can be included, so that should make it easier for states,” he said. “Once you have the target, every state has to meet it the best way that they can. By far the most important part is that it's clearly allowed as part of compliance plans.”
Sean Donahue, an attorney with Donahue & Goldberg LLP, said he thinks that even though these requirements are no longer in the rule, states will still turn to energy efficiency to save money.
“I'm sure a lot of states and companies will use energy efficiency because it's a cheap way of achieving emissions reductions,” he told Bloomberg BNA Aug. 3.
Helping Low-Income Communities
The program specifically offers additional credits for energy efficiency projects in low-income communities. The intent is to encourage further investment in these communities the EPA referred to as “vulnerable or “overburdened,” due to their proximity to power plants and likelihood of being least resilient to the impacts of climate change.
Nadel said the early incentive program will help jump-start the market, particularly in low-income communities, which he said is “very helpful.”
Similarly, Bob Perciasepe, president of the Center for Climate & Energy Solutions and former deputy administrator of the EPA, told reporters Aug. 3 that the voluntary program would “equalize the opportunity to save money.”
The demand-side energy efficiency projects in low-income communities will receive two credits for every 1 MWh of avoided power generation, which involves a full early action credit from the state and a full matching credit from the EPA.
Meanwhile, wind or solar projects would receive one credit for 1 MWh of power generation, with half the credit coming from the state and the other half from the EPA.
For states to join the program, they must submit a nonbinding statement of intent to participate with their compliance plans. States have until 2016 to submit their compliance plans, although they can extend that until 2018 to allow for stakeholder and administrative processes.
The EPA said in the final rule that it will meet with states, utilities and other interested parties to get feedback on the incentive program, and then it will publish information on the design and implementation of the program.
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2016 Democrats See Promise, Not Peril, In Obama Climate Plan
Aug 3, 2015 | PoliticoPro
By Andrew Restuccia and Darren Goode
The long-term success of President Barack Obama’s new climate regulation probably depends on a Democrat like Hillary Clinton winning the White House — but it’s not at all clear the rule will help the party’s chances in 2016.
The tougher coal standards Obama announced Monday will force major adjustments to power companies in Michigan, Ohio and parts of Pennsylvania — the battleground states Democrats usually need to win the White House. That gives conservatives ample ammunition to insist once again that Democratic leadership will drive up energy prices and wipe out thousands of jobs, a theme that contributed to big losses for the president’s party in the last two midterm elections.
Still, Democrats insist that embracing Obama’s climate agenda is a winning message for 2016, including with key voting blocs like Hispanics, and they say it offers another opportunity to paint the GOP as anti-science and beholden to corporate polluters. Clinton did exactly that this weekend, when she praised the climate rule while vowing to defend it from “Republican doubters and defeatists.” In turn, the Republican National Committee attacked Clinton on Monday for supporting “yet another job-killing Obama policy.”
Clinton is pushing the climate argument as part of an effort to portray Republican views as backward, a storyline that also encompasses women’s health, relations with Cuba and resistance to the Supreme Court’s same-sex marriage ruling, a campaign official told POLITICO. “The issue works in terms of painting out a larger narrative around the Republican Party as being out of step and out of touch,” the official said.
Clinton “will continue to invoke and defend the president’s proposal over the course of the campaign,” the official said. “We think that’s a good issue not just in the upcoming primary audience but among the general electorate.”
It’s a turnaround from the 2012 presidential campaign, when Obama rarely even mentioned climate change. Recent polling showing that voters care about the issue — paired with interest from powerful Democratic donors like green billionaire Tom Steyer — and have helped convince liberals they should embrace it.
The stakes in 2016 are especially high for the success of Obama’s power plant rule because of the way he’s carrying it out — by issuing a set of EPA regulations rather than by enacting a law like the Affordable Care Act. That strategy allowed Obama to get around certain defeat in the GOP-led Congress, but raises the risk of a possible Republican president hobbling and potentially dismantling the regulations.
Both parties quickly started seizing political turf on the issue Monday, as Republican Ohio Gov. John Kasich vowed to resist the climate rule and Sens. Jim Inhofe (R-Okla.) labeled Obama’s plan a threat to senior citizens and minorities.
“Our seniors will be forced to choose between medical care and meals while paying for a multibillion dollar rule that has no measurable impact on global warming,” Inhofe said in a statement, arguing that it could carry weight with retiree voters. He also contended that the costs of the climate rule “will be most harmful to low-income and minority communities.”
A day earlier, GOP presidential contender Marco Rubio had warned that Obama’s rule could raise electric bills for customers like “a single mom in Tampa.”
Obama openly scoffed at some of those claims while announcing the rule Monday. “If you care about low-income minority communities, start protecting the air they breathe and stop trying to rob them of their health care,” he said.
Clinton and her Democratic primary rivals Martin O’Malley and Bernie Sanders all hailed the rule and even pledged to go beyond it. “It’s a good plan, and as president, I’d defend it,” Clinton said Sunday, adding, “We can and must go further.”
Some D.C. veterans doubt that climate change will matter to vast majorities of voters, but acknowledge it could sway some crucial states. “I’m just not convinced issues like this are going to be the things that drives the 2016 election,” said Jim Manley, a former adviser to Senate Minority Leader Harry Reid. “It might be important in a few states — like Ohio and Pennsylvania, for instance.”
Then again, Ohio and Pennsylvania may help decide the outcome of 2016.
Each party points to polling to back its case: Democrats cite surveys showing that strong majorities of voters, especially Hispanics and even many Republicans, think the climate threat is real and favor action to address it. But GOP leaders cite polls showing climate change is a low-priority issue, especially compared with the economy.
Manley said he thinks Clinton has little choice but to “hug the administration’s policies as close as possible” on the climate issue. “It’s a risk that she’s going to have to take if only because it’s an issue that’s important to a big segment of the base and to many donors as well.”
But it’s not a big risk for Clinton, argued former Rep. Rick Boucher, a Virginia Democrat who lost his reelection bid amid 2010’s tea party wave after voting for an Obama-supported cap-and-trade climate bill.
“The table is already set on that issue in these states,” he said, adding: “In the coal-producing parts of Virginia, Democrats are losing those coal-producing counties. And it’s not going to get any worse if Democrats continue to take the positions that they’ve been taking on climate change.”
Meanwhile, conservative candidates face perils on the climate issue too, said former Rep. Bob Inglis, a Republican who now advocates for a carbon tax: They risk being seen as “Neanderthal Republicans” if they refuse to acknowledge the scientific consensus on climate change and decline to offer their own plans for addressing it.
“It’s very important for conservative candidates to be careful in their messaging here,” Inglis said. “They have to say, ‘We don’t like their solution, but here is a better solution.’”
Inglis also likes to warn fellow Republicans that the divisions among the states aren’t set in stone. For instance, he notes, traditional coal states like Ohio and Pennsylvania are moving more heavily toward natural gas, a fuel whose share of the U.S. power supply is expected to continue growing despite the carbon limits in Obama’s plan.
Some coal-state Democrats say Clinton can sell her climate message more effectively in swing, coal-producing states if she talks about technologies to make both coal and natural gas cleaner — even though many greens regard “clean coal” as an oxymoron.
“If we take that approach, that’s how we best solve the climate challenge but create harmony between the coal and climate advocates,” said Jon Wood, president of CoalBlue Project, a coalition of pro-coal Democrats. “There’s no solution here without low-carbon coal.”
When Clinton rolled out her green-power strategy last month, her campaign said she would soon release a plan to “protect the health and retirement security of coalfield workers and their families and provide economic opportunities for those that kept the lights on and factories running for more than a century.” But Wood doubted that will satisfy voters in coal country.
Clinton’s coal proposal is “not harmful, it’s not a negative,” Wood said. “But I don’t think it’s going to be very satisfactory to a lot of people in Western Pennsylvania.”
Michelle Pautz, a political science professor at the University of Dayton, said Democrats should frame the climate rule “the way Obama did: as something that’s good for the economy,” which would generate jobs in wind and solar power and make power bills cheaper. “Environmental issues don’t poll as well in Ohio,” she said.
They can also try to appeal to the state’s large Catholic population by playing up Pope Francis’ urge to make climate action a moral imperative, Pautz said.
On the GOP side, supporters of aggressive federal climate action say polls point to a disconnect between Republican voters and candidates.
On Monday, for example, a poll commissioned by the League of Conservation Voters and the Natural Resources Defense Council Action Fund found that a plurality of Republican primary voters in New Hampshire and South Carolina believe climate change is happening, support limits on carbon pollution and to a lesser degree favor EPA setting “strict carbon dioxide limits on existing coal-fired power plants with a goal of reducing emissions significantly by the year 2030.” The Republican firm American Viewpoint conducted the survey in July, before Monday’s White House climate rule rollout.
Some Republican advisers acknowledge privately that the GOP is vulnerable to attacks on climate science. And while more hardline GOP candidates outright deny that the planet is warming, others like Rubio and fellow Floridian Jeb Bush have taken more complicated stances. Rubio has danced around the question of whether humans are one cause of climate change, while Bush has openly acknowledged that human activities play a role.
A few Republican donors even see room for the GOP to flip the script entirely by competing in 2016 as the greener party, wielding capitalism instead of government mandates as the solution to global warming.
One of those is Jay Faison, a Republican businessman who pledges to spend at least $175 million on an effort to get the GOP to take climate change seriously. He thinks the issue will loom larger in the general election.
“I believe you will see more and more Republicans embracing clean energy solutions that minimize Washington bureaucrats and maximize results from the greatest engine of prosperity and innovation the world has ever known,” Faison said by email.
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Republicans Plot Legislative Attacks To Climate Rule
Aug 4, 2015 | E&E Daily News
By Geof Koss, Hannah Northey, and Daniel Bush
Senate Republicans are considering a range of legislative options for pushing back on U.S. EPA's Clean Power Plan, even as some lawmakers said they're trying to better understand the effect of key revisions in the final rule for their home states.
The most immediate response will start its journey tomorrow, when the Senate Environment and Public Works Committee will mark up S. 1324, which would allow states to opt out of the rules and prevent EPA from imposing a backup federal plan (see related story).
Chief sponsor Sen. Shelley Moore Capito (R-W.Va.) said yesterday that the timing of a floor debate in the fall was unclear but that she expects GOP leaders to take it up sooner rather than later.
Meanwhile, Environment and Public Works Chairman James Inhofe (R-Okla.) is preparing two Congressional Review Act disapproval resolutions against the CPP, which he predicted would garner some support from Democrats.
While disapproval resolutions can pass both chambers by simple majorities, they are still subject to presidential vetoes, which Inhofe acknowledged is a steep climb.
"The problem with that is then you have to have a veto-proof majority," he told reporters. "I think we have over 50 votes."
Inhofe said he also plans an "all of the above" approach to fighting the rules, calling an appropriations rider "a good bet."
The Senate's fiscal 2016 Interior-Environment spending bill already contains a rider barring EPA from imposing a federal plan on uncooperative states, but the administration has signaled that the president won't sign an appropriations bill targeting what is seen as a legacy issue for President Obama.
Asked whether the Clean Power Plan fight could spark a government shutdown, Inhofe initially called the rule "serious enough where it might be worth that" but quickly walked back his comment.
"We wouldn't do that," he told reporters. "All we're going to do is try to stop the rules, particularly on the big one we're talking about."
Some Republicans said they still needed more information about Inhofe's resolutions before jumping on board.
"I don't know yet," Sen. Steve Daines (R-Mont.) said when asked if he would support the disapproval measures. But Daines reiterated his opposition to the rules, saying they represented executive "overreach" on the part of Obama.
"They're going to have a direct harm on working families across Montana and across America," Daines added.
And at least a few moderate Democrats who have parted ways with the Obama administration on energy policy in the past signaled some inclination to voting against the plan.
Sen. Heidi Heitkamp (D-N.D.) said she would explore "all options" to block the EPA regulations and remained open to Inhofe's procedural move.
"I'm very disappointed in the final rule," Heitkamp said, citing concerns about its potential effect on electrical reliability in states like North Dakota. "I'm definitely going to take a look at all options to push back against this regulation."
Sen. Joe Manchin (D-W.Va.) wouldn't commit to supporting a disapproval resolution but wouldn't rule it out, either.
"Every option's open on this one," he told E&E Daily, saying the CPP flies in the face of federal predictions of coal as a continued power source for decades.
Sen. Lamar Alexander (R-Tenn.), who has defended the Clean Air Act in the past, declined to comment on the CPP, which he hadn't read. But he acknowledged that some changes may help nuclear power, a power source he favors.
However, he derided the plan's emphasis on renewables. "Basically, it's a national windmill policy in spades," he told E&E Daily. "That's the downside of it. A big manufacturing country like this can't operate on windmills."
One senator to watch is Lisa Murkowski (R-Alaska), who chairs the Appropriations subcommittee that funds EPA. Alaska was among the states and territories that were exempted from the rules announced yesterday, and Murkowski said she thanked EPA Administrator Gina McCarthy for acknowledging that her state's unique circumstances make the CPP a tough fit.
"She said, we realize we didn't have the data on Alaska, and we didn't have the data for good reason -- because effectively it doesn't exist," Murkowski recounted of yesterday's phone call scheduled at McCarthy's request. "And so she said we felt like we could not advance this at least for some time. Those were cautionary words to me, so I asked her specifically what that might mean if later down the road it was their intention to bring Alaska in, and she indicated again, she repeated several times, that she did not think it was possible for a long time because of Alaska's unique situation."
Despite her state catching a break on the CPP, she said she hasn't considered how she might vote on efforts to rein in the plan.
"This is an important part of my job," she said. "Not only am I representing Alaska, but I'm trying to set energy policy for the country through our work on the Energy Committee. So I have to look at this plan for a broader application."
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Obama Climate Plan May Give California Company In Cap-And-Trade
Aug 3, 2015 | SF Gate
By David R. Baker
California has, for years, urged other states to join its cap-and-trade system to fight global warming.
Now, prodded by President Obama, they just might.
Obama’s Clean Power Plan, released Monday, will force states to slash the amount of greenhouse gases spewing from their power plants. They can do it by boosting their use of renewable power, or replacing coal-burning plants with newer models burning natural gas.
Or, they can do the easier, and likely cheaper, thing and join emission trading systems, like California’s.
“We’d be happy to talk to anyone,” said Edie Chang, deputy executive officer with the California Air Resources Board, which created the state’s cap-and-trade market.
For many states, joining a cap-and-trade system may be the simplest way to comply with the sweeping rule, which by the year 2030 is expected to cut greenhouse gas emissions from the electricity industry 32 percent below 2005 levels. That cooperation appears to be part of what Obama and the Environmental Protection Agency have in mind.
“Now that you have a situation where all these states are given goals, there’s a strong magnetism pulling them together,” said Dallas Burtraw, a senior fellow with the Resources for the Future think tank. “There’s big cost savings when states join together in planning.”
No fewer than six states have, over the years, expressed interest in belonging to a cap-and-trade system with California. But so far, the market includes just California and the Canadian province of Quebec. Ontario’s government is studying the idea. Washington’s governor proposed creating a cap-and-trade system, only to be blocked by the state Legislature this year.
Cap-and-trade systems work by creating a market in which companies buy and sell permits to emit carbon dioxide, methane and other greenhouse gases. The state sets a cap on overall emissions that gets tighter over time, pushing up prices and giving companies a powerful incentive to switch to cleaner sources of energy.
Two such systems now exist in the United States. A coalition of nine states in the Northeast runs a cap-and-trade market that covers only power plants — much like Obama’s plan. California’s system, in contrast, also covers emissions from oil refineries, food processing plants and factories.
California never meant to go it alone.
When state officials started studying the possibility of a carbon market nearly a decade ago, they planned a system that would span much of the western United States and a sizable chunk of Canada. Banding together as the Western Climate Initiative, California, six other states and four provinces made a tentative commitment in 2008 to launch a joint carbon market.
But by the time California finally launched its system in 2012, all of its potential partners had dropped out. Quebec joined last year.
So far, prices in California’s market have stayed low, currently just $12.29 for every ton of greenhouse gas emitted. Adding other states and provinces would likely help keep them low, since markets tend to act more efficiently with large numbers of participants.
“If you’re looking at a broader, deeper market, most experts would agree on the likelihood of a greater stability of prices and lower overall prices,” said Tim O’Connor, a cap-and-trade expert with the Environmental Defense Fund.
California is likely unique in that the state’s own aggressive programs to fight global warming are more stringent than the Clean Power Plan unveiled Monday. State law already requires utilities to get 33 percent of their power from renewable sources by 2020, and Gov. Jerry Brown wants to increase that level to 50 percent by 2030. He has also called for slashing the state’s oil use in half during the same period. And for years, the state has banned utilities from buying power from new power plants burning coal.
California officials would like to see the new federal plan push other states to join its carbon market. But they have no illusions about the politics in play. Many states dependent on coal-fired power plants have vowed to fight the Clean Power Plan rather than craft plans for compliance.
“There are governors who want to run for president on the basis of rejecting the measures the EPA is putting in place,” said Burtraw of Resources for the Future. “But I’m optimistic, because usually business interests win out over political ones, and there’s a strong business interest in doing this and doing it together.”
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Environmental Activists Cheer New Climate Rules
Aug 3, 2015 | The Hill - E2 Wire
By Tim Devaney
Environmental and public health advocates are defending the Obama administration’s new climate rules as an important and necessary step to save the planet.
“We have only a few years left to reverse these trends, and the Clean Power Plan will help us do that,” Margie Alt, executive director of Environment America, told reporters Monday.
President Obama unveiled controversial new climate rules Monday that require power plants by 2030 to cut carbon emissions 32 percent from what they were at a decade ago.
The Environmental Protection Agency’s climate rules have come under scrutiny from Republicans and business groups that say they will force coal plants out of business, but environmental activists say that’s a small price to pay for rules that will create new clean energy jobs to replace those lost in other sectors.
Fighting climate change is the “race of our lives,” said Environmental Defense Fund president Fred Krupp.
“Climate change is one of the serious threats facing our nation,” said Neera Tanden, president of the Center for American Progress. “People who attack this rule are really acting out of a vision of the past, not the future.”
“Ten, 20, 50 years down the road, our children won’t be asking why the president took the action he did today,” added Rhea Suh, president of the Natural Resources Defense Council. “They’ll be asking why it took so long.”
Billionaire environmental activist Tom Steyer called the power plant regulation a “major turning point” in the fight against climate change.
"It creates a tremendous opportunity for American business to do what it does best: turn a generational challenge into a story of American ingenuity and foresight,” Steyer said in a statement.
For many environmental activists, the fight is a long time coming.
“In 40 years of environmental advocacy, I’ve never been more proud of any president,” said League of Conservation Voters president Gene Karpinski. “A challenge as great as climate change requires steps as bold as this.”
Public health advocates are also beaming about the benefits of the new climate rules, which will prevent some 3,600 premature deaths and 90,000 asthma attacks in 2030, according to the EPA.
The American Lung Association called climate change a “public health emergency.”
“Breathing healthy air is essential to life,” said American Lung Association president Harold Wimmer. "The evidence is clear that climate change now harms lung health and public safety.
But some environmental activists expressed disappointment that the rules don’t go far enough to protect against climate change.
“Our ambition can’t end here,” said World Wildlife Fund vice president Lou Leonard. "A large gap remains between the carbon-cutting pledges that countries, including the US, are making ahead of the Paris talks and what science says is needed to avoid runaway climate change.”
Friends of the Earth President Erich Pica characterized the rules as a first step.
"While historic, when measured against increasingly dire scientific warnings, it is clear the rule is not enough to address our climate crisis,” Pica said. “This rule is merely a down payment on the U.S.’s historic climate responsibility."
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Pro Regs Biz Groups Hail Climate Rule
Aug 3, 2015 | The Hill - E2 Wire
By Lydia Wheeler
Most small businesses support President Obama’s clean energy rules for power plants, a coalition of environmentally friendly small-business groups contends.
Washington's leading business groups — heavyweights like the U.S. Chamber of Commerce and National Association Manufacturers — have decried the centerpiece of the president's climate change initiative as job-killing executive overreach.
But the coalition, citing polling, says as many as three-quarters of small businesses support the regulations.
John Arensmeyer, CEO of Small Business Majority, said the Environmental Protection Agency’s (EPA) Clean Power Plan, released Monday, is an essential step in encouraging new innovations while addressing climate change.
“Fifty-seven percent of small businesses believe climate change and extreme weather events are an urgent problem, and one in five said they have had to lay off employees due to extreme weather,” he told reporters during a teleconference that included representatives from Ceres, Environmental Entrepreneurs (E2), the American Sustainable Business Council and the Business Council for Sustainable Energy.Small Business Majority claims to represent 40,000 small businesses, while Ceres works with 70 companies on social and environmental issues. The other groups don't list how many groups they work with or members they have.
The final rules announced Monday require states to draft plans to cut carbon emissions from the power sector by 32 percent from 2005 levels by 2030.
“The clean power rules are going to create tens of thousands of jobs if not hundreds of thousands of jobs by some estimates,” E2 Executive Director Bob Keefe said.
Keefe said E2 has tracked clean energy jobs over the last three years and the states with the best clean energy policies create the most jobs. The administration’s rule, he said, is going to be a huge economic catalyst.
But the National Federation of Independent Business (NFIB) disagrees.
The group, which claims to represent 350,000 small-business owners, said the clean power rule is going to drive up costs for small-business owners and drain their customers of discretionary income.
“That’s a deadly combination for the small business sector,” NFIB President and CEO Dan Danner said in a statement. “Operating expenses will increase as the cost of electricity rises and customers will have less money to spend on Main Street. It’s a recipe for fewer jobs and slower growth.”
NFIB said the tough standards will ultimately force states to close down coal-powered generators that now provide the vast majority of Americans with power and switch to alternative energy sources like wind and solar power, which are unreliable, weaker and more expensive.
“Energy is one of the building blocks of the economy,” Danner said. “It’s necessary to provide every service and manufacture every product. Small businesses are especially sensitive to higher electricity prices and so are their customers.”
NFIB also fears the rule will undermine the nation’s electricity grid, which American businesses rely on.
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Ads Target State Attorneys General Opposing EPA Rule
Aug 3, 2015 | E&E News PM
By Jennifer Yachnin
In anticipation of new lawsuits targeting U.S. EPA's final Clean Power Plan, a liberal group launched a digital ad campaign targeting the Republican Attorneys General Association and its members.
The political action committee Americans United for Change announced a series of digital spots aimed at state attorneys general in Alabama, Louisiana, North Dakota, Ohio, Oklahoma, South Carolina, Texas and West Virginia. The ads, which appear on social media websites, criticize the Republican officials for accepting campaign funds with ties to the fossil fuel industry.
The campaign launched today as President Obama unveiled the final version of regulations aimed at reducing carbon emissions from existing power plants and as the RAGA holds its annual summer meeting in West Virginia.
"The oil industry already has plenty of high-powered legal representation, but who's representing the public interest when a state's attorney general is sitting on Big Oil's defense team? It's time these AGs start putting people before polluters," Americans United for Change President Brad Woodhouse said in a statement.
A dozen states, energy companies and industry groups sued to block EPA from finalizing the Clean Power Plan -- arguing that the agency lacked the authority to regulate power plants for carbon pollution under the Clean Air Act -- but in June the U.S. Court of Appeals for the District of Columbia Circuit rejected that request (Greenwire, June 9).
Kentucky Attorney General Jack Conway (D), who was involved in that lawsuit, announced today that he would seek a stay of the final rule while it is challenged in federal court.
"I sued to stop this rule when it was first proposed. Now that it has come out in its final form, I will continue to fight this Kentucky job-killing rule," Conway said.
He added, "It is apparent the Obama administration is doubling down on policies that hurt Kentucky. I have challenged the president in the past and won -- that is just what I plan to do in this case. This is about the future of our commonwealth and ensuring that our state doesn't bear the brunt of an ill-conceived Washington, D.C., regulation that hurts Kentucky coal and Kentucky jobs."
Conway added that he has asked Kentucky Gov. Steve Beshear (D) to hold off development of a plan to comply with the rule, saying that to do so would be a "waste of time and resources."
Conway is locked in a tight open-seat gubernatorial race with Republican businessman Matt Bevin for the right to succeed Beshear, who is term-limited.
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Clean Power Plan Seen as Threat to Coal Producers
Aug 4, 2015 | BNA Daily Environment Report
By Mario Parker
Coal producers strapped with high costs and debt are headed for extinction under the Obama administration's Clean Power Plan, according to analysts.
Producers will be left to vie for 650 million tons of utility demand annually, compared with the more than 1 billion averaged during coal's halcyon days at the turn of the century, BB&T Capital Markets Inc. in Richmond, Va., said in a report Aug. 3 before the formal release of the plan.
Some coal producers are already reeling, and Alpha Natural Resources Inc. on Aug. 3 became the latest to seek bankruptcy protection.
Obama's proposal calls for a 32 percent reduction in carbon dioxide emissions from 2005 levels, more than the 30 percent proposed a year ago.
“We think higher-cost producers, especially those with leverage, would be wiped out,” Mark Levin, an analyst at BB&T, said in the report. “Lower-cost producers would also be impacted by less overall demand and higher fixed costs.”
While the plan probably will be hashed out in courts, the uncertainty that it creates on the part of utilities already bodes poorly for coal, Levin said.
“This uncertainty has a bearing on how utilities plan their fuel needs for years into the future,” Levin wrote. “That uncertainty can only lead to less, not more, coal consumption, even if the CPP is ultimately delayed or blocked.”
Coal has seen its share of electricity generation fall to 36 percent from about 50 percent a decade ago, data from the Energy Information Administration show, largely due to competition from cheaper natural gas and to tougher environmental regulations.
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MATS Litigation Formally Sent Back to D.C. Circuit
Aug 4, 2015 | BNA Daily Environment Report
By Pat Rizzuto
The U.S. Supreme Court formally remanded litigation over the Environmental Protection Agency's mercury and air toxics standards back to the U.S. Court of Appeals for the District of Columbia Circuit (White Stallion Energy Ctr. LLC v. EPA, D.C. Cir., No. 12-1100, judgment received 8/3/15).
The D.C. Circuit will decide whether the MATS rule, which is estimated to cost the power industry $9.6 billion annually, will be vacated or remain in place while the EPA works to comply with the Supreme Court decision. The high court officially sent the litigation back down to the D.C. Circuit July 31.
The Supreme Court in June ruled that the EPA was required to consider compliance costs when deciding whether it was “appropriate and necessary” to regulate mercury emissions from power plants, a finding that triggered promulgation of MATS rule (Michigan v. EPA, 135 S. Ct. 2699, 80 ERC 1577, 2015 BL 207163 (U.S. 2015); (125 DEN A-1, 6/30/15).
Most power plants have either already complied with the MATS rule or decided to close down by an April 16 compliance deadline for meeting the rule's emissions limits for mercury, filterable particulate matter as a surrogate for toxic metals and hydrogen chloride as a surrogate for acid gases. But about 170 plants received a compliance extension of up to one year for all or part of the standards.
Utility Asks for Compliance Suspension
While the power industry has already committed about 90 percent of the capital spending required to comply with the mercury and air toxics standards, it is still possible for power plants that received an extension to avoid installing pollution controls depending on how quickly the D.C. Circuit decides how to handle the rule on remand.
One utility, the Tri-State Generation and Transmission Association, has already asked the court to suspend compliance obligations while the EPA determines how it will address the Supreme Court's decision on cost. Tri-State filed a July 31 emergency motion asking the court to suspend compliance obligations for the company's coal-fired Nucla Station power plant by Sept. 1.
The Nucla Station power plant, a 110 megawatt coal-fired plant in Colorado, has already come into compliance with most of the mercury rule, but it obtained a one-year extension to come into compliance with the rule's emissions limit for hydrochloric acid. Tri-State said it must decide by Sept. 1 whether to shut down the plant or spend millions of dollars to install a new pollution-control device to meet the emissions limit.
The utility requested that the D.C. Circuit suspend the hydrochloric acid compliance obligations for Nucla Station “unless and until” the EPA makes a new “appropriate and necessary” determination in response to the Supreme Court ruling.
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Methane in Atmosphere May Greatly Exceed Estimates, Report Says
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