Selected category: Clean Power Plan

Déjà vu: Pushback to U.S. Clean Power Plan Reminiscent of 2011 Mercury Rule

By Susan Tierney,  Managing Principal, Analysis Group, Inc.

This post originally appeared on World Resources Institute's Insights blog.

Did you notice the massive blackout on April 16th, 2015?Reversed-GoldBackground

Actually, I didn’t either. That’s because the electric system didn’t falter. The fact that April 16th came and went without a reliability glitch was both nothing unusual and also a really big deal. Because history has a habit of repeating itself, it’s worth understanding why April 16th was a remarkable (and remarkably dull) milestone in electric-industry history.

The Origins of the Mercury and Air Toxics Standard (MATS)

Back in 2010, just under a third of all U.S. power-plant capacity burned coal to produce electricity. Many of those plants were emitting unhealthy levels of toxic air pollution, which forthcoming regulations from the Environmental Protection Agency (EPA) would limit. Critics of EPA’s rule doubted that manufacturers and installers could get enough pollution-control equipment into the market and on to power plants fast enough to meet the deadline under the new Mercury and Air Toxics Standard (MATS) – and that taking so much of the nation’s generating capacity off line all at once would inevitably lead to an unreliable electric system.

Before the EPA finalized its MATS rule at the end of 2011, countless groups published estimates of how many coal plants would retire due to the EPA regulations. The North American Electric Reliability Corporation (NERC) warned that “with [the mercury rules] as the primary driver, the industry faces considerable operational challenges to complete, coordinate and schedule the necessary environmental retrofits.” Others, including opponents of the rule, argued that, in the name of reliability, the rule would need to be delayed.

In December 2011, EPA issued the final MATS rule, which gave owners of affected power plants until April 16, 2015, to either bring their plants into compliance with the new requirements or cease their operations.

That date passed two weeks ago without incident. The lights didn’t dim.

Why not? First, the EPA stood by its commitment (made in November 2011 by then-Assistant EPA Administrator Gina McCarthy in testimony to the Federal Energy Regulatory Commission, the agency with responsibility for electric system reliability) that “In the 40-year history of the Clean Air Act, EPA rules have never caused the lights to go out, and the lights will not go out in the future as a result of EPA rules.”

Part of the reason for that is that the EPA is nowhere near as rigid or anti-business as many observers like to portray it. The final EPA rule gave power-plant owners the ability to request an additional year of time to comply, and allowed yet another year in unusual cases where continued operation of a plant would be needed for reliability. According to the National Association of Clean Air Agencies, as of March 2015, owners of 38 percent of the 460 coal-fired power plants affected by the MATS rule had requested additional time to comply and, of those, the EPA granted an extension to 95 percent.

Kentucky power plant. Photo by Cindy Cornett Seigle/Flickr

Second, the electric industry is already transitioning to rely less on coal, even without the MATS rule. Between 2011 and the end of 2014, 21.5 gigawatts (GW) of coal-fired power plants retired. The fact that these retirements occurred before the MATS deadline indicates that something other than EPA's regulations is driving the least-efficient and oldest coal plants into retirement.

Coal's ardent supporters may prefer to point the finger at EPA, but the truth is that market conditions are responsible: relatively flat electricity demand, increased supply from power plants using other domestic energy sources (natural gas, wind and solar), and price competition between natural gas and coal. Another 14.6 GW of power plants have retired or will retire in 2015. This total amount of coal-plant retirements (36.1 GW) falls at the mid-point of estimates made during the 2010-2011 period.

Third, the electric industry is dynamic. The market has responded to signals that additional electric resources are needed to replace old ones. Many projects have come forward: new power plants, upgraded transmission facilities, rooftop solar panels, energy-efficiency measures and energy-management systems. These varied responses are the norm, collectively maintaining reliability and modernizing the power system along the way.

That’s why there were no blackouts on April 16th, despite all the dire warnings.

History Repeats Itself

The reliability theme is re-emerging once again, as the states and the electric industry face the prospect of EPA finalizing its “Clean Power Plan” to control carbon pollution from the nation’s power plants. In anticipation of the final rules coming out this summer and of power plant owners having to comply with them by 2020, many observers are saying that the electric system's reliability will be jeopardized if the EPA goes forward as planned. The latest warning came last month with a new assessment published by NERC, calling for more time to allow the industry and the states to respond to the forthcoming carbon-pollution rules.

Such warnings are common whenever there is major change in the industry, and they're not without value: They play an important role in focusing the attention of the industry on taking the steps necessary to ensure reliable electric service.

But warnings lose their value when they are read as more than what they are. Notably, the reliability concerns currently being raised by some observers about EPA’s Clean Power Plan presume inflexible implementation, are based on worst-case scenarios, and assume that policy makers, regulators and market participants will stand on the sidelines until it is too late to act.

There is no historical basis for these assumptions. Reliability issues will be worked out by the dynamic interplay of actions by regulators, entities responsible for reliability, and market participants, all proceeding in parallel to find solutions.

EPA’s proposed carbon-pollution rule provides states and power plant owners with the means to prevent reliability problems by giving them a wide range of compliance options and plenty of operational discretion (including various market-based approaches, other means to allow emissions trading among power plants, and flexibility on deadlines to meet interim targets). And EPA Administrator McCarthy has stated repeatedly that her agency will write a final rule that reflects the importance of a reliable grid and provides the appropriate flexibility.

One of the best ways to assure electric reliability will be for states to actively avail themselves of the Clean Power Plan’s flexibility, rather than “just say no.” States that do not take advantage of this flexibility and then suggest that EPA’s regulations led to unreliable and uneconomic outcomes may be courting a self-fulfilling prophecy. The more states sit in the driver seat and figure out how to arrive at the emissions-reduction destination in a manner consistent with their goals and preferences, the more likely it is that they’ll accomplish them.

Also posted in Energy, Greenhouse Gas Emissions, Health| Comments are closed

Three Climate Leadership Openings Corporate America Can't Afford to Miss

By Ben Ratner, Senior Manager, Corporate Partnerships Program

Too much ink has been spilled on the anti-climate furor of the Koch brothers. If we lose on climate, it won’t be because of the Koch brothers or those like them.

It will be because too many potential climate champions from the business community stood quietly on the sidelines at a time when America has attractive policy opportunities to drive down economy-endangering greenhouse gas emissions.

Corporate executives have the savvy to understand the climate change problem and opportunity. They have the incentive to tackle it through smart policy, and the clout to influence politicians and policy makers. Perhaps most importantly, they can inspire each other.

And today, they have a chance to do what they do best: lead. Corporate climate leadership has nothing to do with partisanship – it’s ultimately about business acumen.

For starters, here are three immediate opportunities smart companies won’t want to miss.

1. Clean Power Plan: Will spur new jobs and investments.

The Obama administration’s plan will cut emissions from coal plants by 30 percent by 2030. This is expected to trigger a wave of clean energy investment and job creation. It will also seize energy efficiency opportunities and take advantage of America’s abundant and economic supply of natural gas.

Every company with an energy-related greenhouse gas footprint has something to gain from a cleaner power mix. Each one of those companies therefore has a stake in theClean Power Plan.

Google and Starbucks – two large and profitable American companies by any standard – are among more than 200 businesses that have already stepped up to voice their support.

Who will follow them?

2. First-ever methane rules: Will make industry more efficient.

The U.S. Environmental Protection Agency’s upcoming methane emission rules are another opportunity for business leaders to weigh in.

The rules are part of a White House plan that seeks to reducemethane emissions – a major contributor to global warming and resource waste – by almost half in the oil and gas industry.

Globally, an estimated 3.6 billion cubic feet of natural gas leaks from the sector each year. This wasted resource would be worth about $30 billion in new revenue if sold on the energy market.

Some oil and gas companies that have already taken positive steps include Anadarko, Noble and Encana, which helped develop the nation’s first sensible methane rules in Colorado.

Engaging to support strong and sensible national standards isa good next step for companies in this space. And for others with a stake in cleaning up natural gas, such as chemical companies, and manufacturers and users of natural gas vehicles.

3. New truck standards: Can help companies cut expenses and emissions.

New clean truck standards are scheduled for release this summer. Consumer goods companies and other manufacturers stand to see significant dollar and emissionsavings as they move their goods to market.

Cummins, Wabash, Fed Ex, Con-Way, Eaton and Waste Management are among those that applauded the decision to move forward with new standards.

Putting capitalism to work

American business leadership is still the global standard and will remain so if it adds climate policy to its to-do list. While it will take time to build the bi-partisan momentum for comprehensive national climate legislation, there are immediate opportunities to move the needle.

Which companies will take the field?

Image source: Flickr/Don McCullough

This post originally appeared on our EDF Voices blog.

Also posted in Economics, Energy, Greenhouse Gas Emissions| Comments are closed

NERC's Report is Flawed: We Can Reduce Climate Pollution and Ensure Electric Reliability

power-poles-503935_1920If reducing climate pollution from power plants were a football game, the U.S. team would be halfway to the goal line while fans were still singing the national anthem.

That is, we have already gotten about halfway to the expected goals of the Clean Power Plan – before the rule is even final.

The Clean Power Plan is the U.S. Environmental Protection Agency’s (EPA) historic effort to place the first-ever limits on climate pollution from our country’s existing fleet of fossil fuel-fired power plants. When it’s finalized this summer, it’s expected to call for a 30 percent reduction in carbon emissions compared to 2005 levels — but U.S. power plant emissions have already fallen 15 percent compared to 2005 levels.

That’s because renewable energy, energy efficiency resources, and natural gas generation have been steadily deployed and growing for years. Even conservative estimates forecast continued growth of these resources — which makes last week’s report from the North American Electric Reliability Corporation (NERC) seem really strange.

NERC’s report about the Clean Power Plan’s impacts on electric grid reliability makes predictions that starkly contrast from the progress we’re already seeing.

How did this departure from reality happen?

It’s due in large part to severely flawed assumptions underlying NERC’s analysis, which yield unrealistic results.

Those flawed assumptions cause NERC to greatly overstate the generation mix changes required to meet the Clean Power Plan. The NERC Assessment’s assumptions regarding energy efficiency, renewable energy deployment, and retirement modeling are at odds with both recent experience and current trends.

Unrealistically Low Energy Efficiency Gains

NERC assumes that demand for electricity will grow at an average of one percent per year through 2030, even after accounting for growth in energy efficiency investments. That growth rate is more than 40 percent higher than the U.S. Energy Information Administration (EIA) predicts.

It also fails to reflect likely energy efficiency growth. An analysis by McKinsey & Company found that implementing only those efficiency measures that pay for themselves would reduce the nation’s total end-use energy consumption by 23 percent by 2020.

Arbitrary and Unrealistic Projections on Wind and Solar Expansion  

NERC predicts expansions of wind and solar power that are far below those observed in recent years.

U.S. solar capacity stood at 20.5 gigawatts at the end of 2014. The NERC Assessment predicts an addition of 13 to 20 gigawatts of solar energy between 2016 and 2030 — when solar capacity is expected to grow by 20 gigawatts over the next two years alone.

The U.S. wind industry is also expected to add 18 gigawatts of new capacity in the next two years.

NERC’s low-ball assumptions greatly limit renewable energy deployment in their study. This in turn greatly increases the burden on other compliance options, namely coal-to-gas generation shifting.

Failure to Account for Dynamic Grid Reliability Management Tools

NERC assumes that the Clean Power Plan will drive coal power plant retirements over its entire life-span. However, numerous studies — including one by the Brattle Group and three by the Analysis Group, show that total output and emissions from coal units can decrease without retiring units that are needed to operate on occasion in order to maintain electric reliability.

There are also numerous tools and processes available to grid operators to ensure reliability in light of dynamic market, technological and regulatory change, including capacity and energy markets, resource adequacy forecasting, and reliability must-run contracts.

These instruments, for example, have worked well to maintain adequate capacity during the recent wave of coal-fired power plant retirements, so much so that the electric grid has added an average of roughly 30 gigawatts of total power every year since 2000. The NERC Assessment, however, finds only 11 to12 gigawatts of total power will be added every year – a significant departure from the past 15 years of evidence.

A History of Inaccurate Assessments

This report is not the first time that NERC has issued an inaccurate assessment of threats to reliability.

NERC has assessed previous public health and environmental safeguards, each time raising reliability concerns that were not borne out in reality.

  • In 2011, NERC issued its Long-Term Reliability Assessment, which looked at the Mercury and Air Toxics Standards, the Cross State Air Pollution Rule, the Clean Water Act Cooling Water Intake Structures rule, and the Coal Combustion Residuals rule. NERC raised numerous reliability concerns about these protections, which the EPA noted at the time were flawed and exaggerated. None of NERC’s concerns have manifested during implementation of these standards.
  • In a 2011 companion study, NERC issued its Potential Impacts of Future Environmental Regulations about the Mercury and Air Toxics Standards and a number of other regulations. NERC again raised reliability concerns, none of which have occurred in practice.
  • In its 2007 Long-Term Reliability Assessment, NERC predicted several regions, including New England and New York State, would drop below target capacity margins, threatening reliability. NERC’s prediction was based on a number of factors, including proposed environmental protections. Some power generators used the report to oppose to the Regional Greenhouse Gas Initiative. NERC’s predicted reliability shortfalls did not occur, nor has the Regional Greenhouse Gas Initiative caused reliability issues – even while emissions fell almost 50 percent below the region-wide emissions cap.
  • In 2000, NERC drafted a review of EPA’s nitrogen oxide emissions standards for eastern power plants, knows as the NOx SIP Call. Yet again, NERC predicted a number of reliability concerns that did not occur after the rule was implemented.

NERC has repeatedly produced analyses indicating that public health and environmental safeguards will come at the expense of electric reliability – and these analyses have consistently been contradicted by reality. In fact, emission standards have never caused a reliability problem in the more than four decades that EPA has been administering the Clean Air Act.

NERC’s newest report is no better. It gives no solid reasons to doubt that the Clean Power Plan will be compatible with a reliable electric grid.  

For a clearer picture of the link between reliability and environmental protections, read this post by my colleague Cheryl Roberto, a former Commissioner of the Ohio Public Utilities Commission and electric system operator.

You might also like EDF’s fact sheet about the Clean Power Plan and the latest flawed NERC report.

The progress made in the past demonstrates that our nation is already approaching the goal line under the Clean Power Plan. The tremendous flexibility that the Clean Power Plan provides to states and power companies alike, together with time-tested grid management tools, provides the framework we need to reach the goal line — protecting our communities and families from dangerous carbon pollution, strengthening our economy, and providing a steady flow of cost-effective electricity.

Also posted in Clean Air Act, Energy, Policy, Setting the Facts Straight| Comments are closed

Electric Reliability and the Clean Power Plan: Perspectives of a Former Regulator

1024px-Wind_Turbines_and_Power_Lines,_East_Sussex,_England_-_April_2009

Source: Wikimedia Commons

There is no great disagreement that the U.S. energy system is transforming. With or without additional environmental regulations, like the U.S. Environmental Protection Agency’s (EPA) proposed Clean Power Plan, this transition is occurring. Our history and experience have demonstrated that we can weather it without threatening our uniform and non-negotiable commitment to reliability.

But to do that, we need to tap all of the tools at our disposal to ensure a robust, reliable, and integrated energy system that is no longer dependent exclusively upon centralized, fossil fuel generation. Done right, the resulting change can deliver benefits to customers, the economy, the environment, electric companies, innovators, and workers alike.

EPA’s proposed Clean Power Plan would place national limits on carbon pollution from existing fossil fuel power plants for the first time ever. In doing so, it would create long-term market signals that will help drive investments in energy efficiency, demand response, and renewable energy for years to come – not only reducing carbon pollution from the power sector to 30 percent below 2005 levels by 2030, but also by putting us on a path to a more reliable and resilient energy system.

As a former Commissioner of the Ohio Public Utilities Commission and electric system operator, I understand preserving the reliability of electric service is a paramount public responsibility for energy and environmental regulators, and for the power companies they oversee. As a Commissioner, I served as vice chair of the Critical Infrastructure Committee, a member of the Electricity Committee, and on the Task Force for Environmental Regulation and Generation within the National Association of Regulatory Utility Commissioners (NARUC). I co-chaired the National Electricity Forum 2012 to modernize the nation’s electricity infrastructure. At the request of the Federal Energy Regulatory Commission (FERC) and the U.S. Senate Committee on Energy and Natural Resources, I have provided testimony on reliability of the bulk power system before both of those bodies.

Prior to my appointment to the Commission, I served for six years as the Deputy Director and then Director of the City of Columbus, Ohio Department of Public Utilities. My duties there included running the City’s electric distribution utility. This hands-on experience meeting the daily needs of electricity customers as both a regulator and a system operator – while protecting the financial integrity of the system – gives me a keen appreciation for the real-world demands and importance of system reliability.

From that perspective, perhaps the most critical feature of the proposed Clean Power Plan is the flexibility it provides to states and power companies to craft individualized compliance plans that reduce pollution while preserving and strengthening electric reliability. EPA’s approach gives clear guidance on what limits and metrics must be met, but leaves states the flexibility to design solutions that will boost the economy and meet those requirements as they see fit.

That flexibility acts as a built-in “safety valve,” affording each state multiple pathways for compliance and providing leeway for states to make plans that are appropriate to their unique circumstances. Moreover, this flexibility complements the robust framework of operating practices, market instruments, and planning processes that already exist to address short-term and long-term reliability issues.

Leading experts on energy policy and electric reliability have recently weighed in to confirm reducing carbon pollution goes hand in hand with electric reliability, thanks to the flexible structure of the Clean Power Plan and our existing reliability tools and processes. According to a recent report by The Brattle Group, the combination of the ongoing transformation of the power sector, the steps already taken by system operators, the large and expanding set of technological and operational tools available, and the flexibility under the Clean Power Plan are likely sufficient to ensure compliance will not come at the cost of reliability.

And, just last week, Dr. Susan Tierney – a former Assistant Secretary for Policy at the U.S. Department of Energy and former Commissioner of the Massachusetts Department of Public Utilities— joined two other energy policy experts in sending a letter and report to the Chairman of the Federal Energy Regulatory Commission (FERC) concluding:

Evidence does not support the argument that the proposed CPP will result in a general and unavoidable decline in reliability.

The report provides examples of recent instances in which grid operators, FERC, and other entities have effectively used existing processes and tools to deftly address other kinds of reliability challenges in recent years, some of which were significant and unanticipated.

In 45 years of implementing the Clean Air Act, clean air standards have never caused the lights to go out. And nothing about the proposed Clean Power Plan – with all of its tremendous flexibility – will alter that record.

That’s a remarkable testament to the institutions and processes that exist to protect reliability, as well as the careful process EPA uses in developing clean air standards – and it is great news for families and communities who want and deserve clean air in addition to reliable, affordable electricity. The Clean Power Plan, like our other vital clean air standards, will help deliver both.

Also posted in Clean Air Act, Energy, Policy, Setting the Facts Straight| Read 1 Response

Experts Agree: We Can Preserve Electric Reliability While Protecting Public Health Under the Clean Power Plan

power-poles-503935_1920Last June, the Environmental Protection Agency (EPA) proposed the first ever national carbon pollution standards for existing power plants. Fossil fuel-fired power plants account for almost 40% of U.S. carbon dioxide emissions, making them the largest source of greenhouse gas emissions in the nation and one of the single largest categories of greenhouse gas sources in the world.

Under the Clean Power Plan, these emissions will decline to 30% below 2005 levels by 2030 – accompanied by a significant decline in other harmful pollutants from the power sector, such as sulfur dioxide and oxides of nitrogen. The power sector is already halfway to this target, already 15% below 2005 levels.

The EPA has carefully designed the Clean Power Plan to provide extensive flexibility so that states and power companies can continue to deliver a steady flow of electricity while deploying cost-effective measures to reduce carbon pollution over the next fifteen years.

The Clean Power Plan:

  • Allows states and power companies to determine the optimal timing of emission reductions over a ten year-long averaging period starting in 2020;
  • Allows states to decide how to most cost-effectively reduce carbon pollution, including through market-based programs and clean energy policies that have been successfully used around the country; and
  • Allows states to cooperate with one another in complying with the long-term reduction goals.

In addition, the Clean Power Plan preserves the ability of grid operators to deploy long-standing tools and processes that have been successfully used in the past to keep the electric grid functioning reliability during periods of significant change. EDF has released a white paper identifying these well-established tools and practices, and describing how they will continue to ensure a reliable grid under the Clean Power Plan.

Grid operators are well-equipped to ensure reliability as we transition to a cleaner and more efficient power sector, just as they have under all previous Clean Air Act regulations. EPA’s proposed Clean Power Plan is eminently achievable, reliable, and cost-effective – and integral to our climate security, human health and prosperity.

Ample tools and practices exist to ensure a clean and reliable grid

Grid operators have long-standing tools and practices available to ensure that our nation’s grid continues to provide power reliably. These include well-established planning principles that have motivated large amounts of new generation year in, year out. Since 2000, roughly 30 gigawatts of new generation have been added per year, largely consisting of low or zero-emitting resources such as wind turbines and natural gas combined cycle power plants. Over the next two years, the solar industry alone expects to add another 20 gigawatts of power. In addition, reliability is ensured through tools and practices including:

  • Transmission Upgrades: Because upgraded transmission infrastructure can help move generation more easily, transmission upgrades can enhance reliability without needing to add new generation.
  • Long-term forecasting: Grid planners and reliability regulators forecast the needs of the electric grid years in advance. By determining how much transmission and generation will be needed, any long-term reliability issue can be identified and resolved quickly and effectively.
  • Reliability Must-Run (“RMR”) Contracts: Short term contracts that, in the case of sudden and unexpected retirements or plant losses, require a unit to be kept operational until reliability can be ensured through the use of longer term tools.
  • Operating Procedures: Manuals and standard practices exist to ensure that, in the case of particular reliability scenarios, grid operators know the best way to respond.

These tools are already in use throughout the country, and have proven extremely effective in maintaining reliability over the last few decades – even as the power sector has begun a rapid transition towards cleaner sources of electricity, and has implemented important public health protections under the Clean Air Act. In the Mid-Atlantic region, for example, roughly 12,500 MW of coal-fired power plant capacity retired from 2010 to 2014 due to economic reasons. Employing these well-established tools and practices, the region saw a large quantity of new resources added, without reducing reliability.

Clean energy resources and reliability

In complying with the Clean Power Plan, states and power companies will be able to draw on reliable, low-cost clean energy resources like demand response, renewable energy, and energy efficiency. Energy efficiency is almost three times cheaper than the next cheapest alternative and primed for enormous growth. Resources like demand response help prevent blackouts, such as in the case of the 2013 polar vortex. And renewable energy continues to grow, with states such as Maine, California, and Iowa already using it to meet close to one quarter of their entire demand.

No reliability crisis has resulted from implementing clean air standards

Claims that we can’t have clean air and a reliable power grid are as old as the Clean Air Act itself — and have never proven accurate. As far back as the 1970s, a power company issued an ad claiming the lights would go out as a result of the Clean Air Act. In recent years, some power companies that oppose public health protections under the Clean Air Act have made similar claims that the Mercury and Air Toxics Standards and Cross-State Air Pollution Rule will harm electric reliability.

These assertions have consistently been discredited: in the 45-year history of the Clean Air Act, no emission standard has ever caused the lights to go out. This is a testament both to the rigorous process and analyses EPA relies on to develop Clean Air Act standards, as well as the effective tools that grid operators and other authorities use to manage reliability on a short-term and long-term basis.

Numerous states, power companies, and reliability experts have indicated that the Clean Power Plan is achievable

A diverse collection of energy experts and power company officials have recently made comments noting the feasibility of achieving the emission reduction goals of the Clean Power Plan; describing their experience in reducing carbon emissions in a cost-effective way as well as explaining approaches to ensure reliability is maintained while making progress to reduce carbon emissions.

Written Testimony of Kathleen Barrón, Senior Vice President, Exelon Corporation, Before the Federal Energy Regulatory Commission: Technical Conference on EPA’s Clean Power Plan (Feb. 19, 2015):

Exelon strongly supports EPA’s goal of reducing carbon emissions from the electric power sector. As EPA notes in the Clean Power Plan, the current level of carbon emissions is environmentally unsustainable, and action must be taken now in order to prevent significant, irreversible environmental damage and major economic loss. By providing regulatory certainty, well-designed carbon reduction rules will be a driving force to modernize our aging electric system so that our customers will continue to have a safe and reliable electric system to support our Nation’s economic growth.”

Written Testimony of Susan F. Tierney, Ph.D, Analysis Group, Before the House Comm. on Energy and Commerce: Hearing to Examine EPA’s Proposed 111(d) Rule for Existing Power Plants (Apr. 14, 2015):

The Clean Power Plan provides states a wide range of compliance options and operational discretion that can prevent reliability issues while also reducing carbon pollution and compliance costs. Experience has shown that such approaches allow for seamless, reliable implementation of emissions-reduction targets. By contrast, many stakeholders’ concerns about the Clean Power Plan presume inflexible implementation, are based on worst-case scenarios, and assume that policy makers, regulators, and market participants will stand on the sidelines until it is too late to act. There is no historical basis for these assumptions.”

Joshua Epel, Chairman, Colorado Public Utilities Commission, Before the Federal Energy Regulatory Commission: Western Regional Technical Conference on EPA’s Clean Power Plan (Feb. 25, 2015).

In Colorado we have charted our own course to decarbonize our electric system. . . . Now when the Clean Power Plan is finalized I believe that Colorado as a state will come up with an approach which will meet the revised goals . . . . I’m very pleased with some of the steps we have taken with just approved unprecedented amounts of utility scale solar . . . . We are doing a lot with wind, we are doing a lot with innovat[ive] approaches actually passed by the legislature. . . . So we think there’s a lot of innovative tools for Colorado to use."

Flexibility in the Clean Power Plan

EPA’s Clean Power Plan wholly preserves the ability of grid operators, power companies, and other institutions to deploy the well-established tools and practices that ensure the reliable operation of the power grid.

The Plan provides state-wide goals for emission reductions, while affording states ample flexibility in how those goals must be met. States are not limited to using any particular pathway to meet the Plan, and can deploy a variety of existing and new policies to meet the state-wide greenhouse gas reduction goals, including flexible market-based tools. This already existing flexibility allows grid operators the freedom to use long-standing and tested actions to ensure reliability.

Although the Clean Power Plan represents an important step forward for our country, it builds on a nation-wide trend toward a cleaner and more efficient power sector that is already under way. As noted above, carbon emissions from the power sector are already 15% lower than in 2005 – reflecting a sharp decline in coal-fired power generation, as well as a significant increase in natural gas generation and renewables and rising investment in energy efficiency.

Since 2005, many fossil fuel-fired power plants have also installed modern pollution controls in response to state and federal clean air standards adopted to protect public health from harmful particulates, ozone-forming pollution, and toxic air pollutants such as mercury and arsenic.

The robust system of reliability safeguards described above has responded deftly to these developments, ensuring a consistent and reliable supply of affordable power while helping reduce harmful air pollution. There is every reason to believe that the Clean Power Plan, with its extended implementation timeframe and numerous compliance flexibilities, will similarly achieve important reductions in air pollution without compromising electric reliability.

For more information please read our white paper: Protective Carbon Pollution Standards and Electric Reliability

Also posted in Clean Air Act, Energy, Greenhouse Gas Emissions, News| Read 2 Responses

Clean Power Plan Litigation: An End Run around the Clean Air Act and the Democratic Process

This Thursday, April 16, a three-judge panel of the United States Court of Appeals for the D.C. Circuit will hear oral argument in three related cases — West Virginia v. EPA (No. 14-1146) and In re Murray Energy Corporation (No. 14-1112, 14-1151)involving challenges to EPA’s proposed Clean Power Plan, which will establish the nation’s first limits on carbon pollution from existing fossil fuel-fired power plants.

EDF is a party to the cases, and will be in court on Thursday.

These cases have attracted media attention in large part because these are the first legal challenges to a high-profile national rulemaking that will establish critical public health protections for the nation’s largest source of greenhouse gases.

But these cases are also drawing notice because they involve highly unorthodox attempts to stop an ongoing rulemaking process. EPA is still considering more than four million public comments received between June and December 2014 on its proposed standards, and the Agency is not expected to issue a final rule until this summer.

From a legal perspective, the petitioners’ case is fatally flawed on both procedural and substantive grounds.

Turning first to the procedural issues:

The timing of these legal challenges blatantly disregards the most basic principles of federal administrative law.

Although the three petitions before the D.C. Circuit have different procedural postures, all of them seek to block or overturn EPA’s proposed carbon pollution standards. But under federal administrative law, standards developed by agencies such as EPA must go through a transparent and participatory process in which proposed standards are published, the public has an opportunity to comment on those standards, and agencies then issue final standards that respond to those comments. Both the Clean Air Act and the Administrative Procedure Act clearly provide that legal challenges can only be filed after this process is complete, and the agency has taken final action.

This long-standing rule against premature legal challenges serves a number of compelling purposes:

  • It prevents parties from doing an “end run” around the public comment process.
  • It gives administrative agencies the opportunity to ensure that final rules are firmly grounded in law and fact.
  • It ensures that reviewing courts have before them the agency’s full and definitive decisions and analyses.
  • It protects courts and agencies from wasting valuable time litigating proposals that may change as a result of public comments.

Those purposes clearly apply here. EPA is months away from taking final action on the Clean Power Plan — and is still weighing millions of public comments filed on almost every aspect of the proposed rule, including the same legal issues raised by the D.C. Circuit petitioners (who have simultaneously filed voluminous comments with EPA making the very arguments they are making in court).

The petitioners attempt to short-circuit this careful, deliberative rulemaking process is radical and would – if successful – open the door to endless litigation over agency proposals. Petitioners have pointed to no case in which the D.C. Circuit or any other federal court has ever entertained such an anticipatory challenge to an administrative rulemaking. Indeed, in the last two years, the federal courts have twice dismissed similar lawsuits that were filed against EPA’s proposed carbon pollution standards for new power plants — Las Brisas Energy Center LLC v. EPA, 12-1248 (D.C. Cir. Dec. 13, 2012) and Nebraska v. EPA, No. 4:14-CV-3006 (D. Neb. Oct. 6, 2014). On procedural grounds alone, the petitioners’ case should similarly be dismissed.

The petitioners’ substantive claim — that EPA is prohibited from regulating carbon dioxide from the power sector under section 111(d) of the Clean Air Act — is equally unfounded.

Section 111(d) of the Clean Air Act requires EPA to regulate harmful pollution from existing sources, where that pollution is not regulated under other provisions of the Clean Air Act relating to national ambient air quality standards (sections 108-110) and hazardous air pollutants (section 112). For more than forty years, section 111(d) has been understood to serve a vital gap-filling role in the Clean Air Act – ensuring the protection of human health and welfare from harmful air pollution that is not addressed under other key Clean Air Act programs.

Because carbon dioxide from the power sector is not regulated under section 108 or 112, EPA has logically proposed that it must be regulated under section 111(d). This conclusion not only follows from a long-standing interpretation of section 111(d), it also is consistent with the Supreme Court’s 2011 decision in American Electric Power v. Connecticut – which stated that section 111(d) “speaks directly” to the problem of carbon pollution from existing power plants, and held that EPA’s authority to regulate carbon pollution under section 111(d) displaces federal common law.

Indeed, attorneys for some of the nation’s largest power companies specifically supported this interpretation at oral argument before the Supreme Court, and urged the “comprehensive” coverage of the Clean Air Act, including section 111(d)’s applicability to carbon dioxide emissions from existing power plants, as a reason why federal courts should not recognize a non-statutory remedy for power plant carbon pollution under the federal common law.

The petitioners nonetheless contend that EPA is categorically forbidden from regulating carbon dioxide from the power sector under section 111(d) because EPA has already issued standards for different pollutants (mercury, other toxic metals, and acid gases) from the power sector under a different section of the Clean Air Act.

As EPA explained in its brief in West Virginia, this theory amounts to a “pick your poison” approach to the Clean Air Act – arbitrarily limiting EPA to regulating either pollutants like mercury under section 112 or pollutants like carbon dioxide under section 111(d) for any given source, but not both.

Such a result would be completely out of step with the Clean Air Act, which consistently recognizes that different air pollutants pose different risks to the public, so that controlling one pollutant from a source does not eliminate the need to control other pollutants. The petitioners’ theory would radically alter the structure of the Clean Air Act, transforming what is now a seamless regulatory framework into one with potential gaping loopholes.

Neither the text nor the structure and history of the Clean Air Act support these claims. The petitioners’ theory rests entirely on a strained interpretation of a technical amendment to section 111(d) that the House of Representatives passed as part of the 1990 Clean Air Act amendments. But as EPA and other parties describe in more detail in their briefs to the DC Circuit, the text of the House amendment has multiple interpretations – and is most reasonably read to support the traditional “gap-filling” role of section 111(d) and EPA’s authority to regulate carbon dioxide from the power sector.

Moreover, the petitioners call on the court to disregard a contemporaneous Senate amendment to section 111(d) that — as even they admit — unambiguously preserves EPA’s authority to regulate carbon pollution.

The Senate amendment, like its House counterpart, was passed by both houses of Congress and signed into law by the President. It is the law of the land and cannot simply be read out of the Clean Air Act.

The petitioners’ theory also represents bad statutory interpretation because it would dramatically change the structure of the Clean Air Act in a way that Congress could never have intended – making it difficult or even impossible for EPA to protect the public from harmful pollutants from the dozens of industrial source categories whose emissions of hazardous air pollutants are regulated under section 112. In all of the extensive debate, committee reports, and other legislative history that led up to the enactment of the 1990 Clean Air Act amendments, there is not a shred of evidence that Congress intended to create loopholes in section 111(d) as the petitioners claim.

Faced with this reality, the petitioners insist – without any supporting evidence — that Congress wanted to avoid “double regulation” of source categories under sections 111(d) and 112. But it is not “double regulation” for EPA to regulate different health-harming pollutants from the same source category under different provisions of the Clean Air Act. In fact, the Clean Air Act has always permitted and even required such regulation. Many facilities in the power sector, for example, are currently regulated under multiple Clean Air Act programs addressing different air pollution problems that are associated with a variety of adverse health effects.

Further, the 1990 amendments include a provision stating that standards under section 112 must not be “interpreted, construed or applied to diminish or replace” more stringent requirements under section 111. This is a strong indication that Congress intended for section 112 to work seamlessly with, not displace, section 111(d).

EPA’s proposed interpretation of section 111(d) also has a long and bipartisan history – further supporting the reasonableness of the agency’s view and underscoring the bizarre and opportunistic nature of the petitioners’ theories.

As documented in a compelling brief filed by NYU’s Institute for Policy Integrity, EPA has adopted the view that section 111(d) applies to any pollutant not regulated under section 112 or section 108 in multiple rulemakings since 1990 — not just in the Obama Administration, but also the George W. Bush Administration, the Clinton Administration, and the Administration of George H.W. Bush, who actually signed the 1990 amendments.

Ultimately, the petitioner’s flimsy substantive claims only underscore the wisdom of the procedural bar against premature challenges to agency proposed rules.

EPA undoubtedly possesses the authority to limit carbon pollution from existing power plants under section 111(d) of the Clean Air Act. That's good news for the families and communities that are afflicted by mercury and carbon pollution from fossil fuel power plants — the nation's single largest source of both health-harming contaminants.

Congress did not intend for our children to have to "pick their poisons," but instead created a seamless framework – which Republican and Democratic administrations alike have long carried out — to safeguard our health and our children's health from all harmful air pollution.

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