Selected category: Clean Power Plan

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.

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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

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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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Carbon Pollution Standards that Begin by 2020: Vital for Climate Security, Human Health

The U.S. Environmental Protection Agency (EPA) is hard at work right now on the Clean Power Plan – the first ever national carbon pollution standards for power plants.

Among the many important aspects of this historic plan, we believe this: It is critical that EPA finalize carbon pollution standards for the power sector that include protective, well-designed standards beginning in 2020. 

Power plants account for almost 40 percent of U.S. carbon dioxide emissions, making them the largest source of greenhouse gas emissions in the nation and one of the largest sources of greenhouse gases in the world.

The Clean Power Plan will be finalized this summer. When fully implemented, it is expected to reduce greenhouse gas emissions from the power sector to 30 percent below 2005 levels. That makes these eminently achievable and cost-effective standards integral to climate security, human health and prosperity.

The Clean Power Plan will phase in over a 15-year period, with interim standards commencing in 2020, and final standards taking effect in 2030 – and there is strong reason to believe that the interim standards covering the period 2020 to 2029 should be strengthened in the final rule.

Interim standards can help the U.S. secure near-term low-cost opportunities to reduce greenhouse gas emissions, while generating the market signals necessary to achieve the deeper reductions required in the years ahead. They also can deliver important public health benefits for our families by providing healthier and longer lives for millions of Americans. And EPA has designed the interim standards in a manner that provides considerable flexibility to states and power companies to comply while deploying their own unique solutions.

Carbon Pollution Limits that Begin by 2020 are Essential for Driving Near-term Actions to Reduce Dangerous Emissions and to Advance Climate Security

As proposed, the Clean Power Plan’s interim standards could deliver cumulative emissions reductions of more than 5 billion tons of carbon dioxide. That approaches the total annual carbon dioxide emissions for the entire United States. Protective interim standards that require states and power companies to take near-term action to reduce carbon pollution are essential to secure these climate benefits.

Interim standards are essential for mobilizing the full range of near-term cost-effective opportunities to cut pollution, as they are the only way to ensure that investments in activities that reduce carbon pollution are fully recognized and properly rewarded. This is true whether the investments are new renewable generation, customer-friendly demand side energy efficiency programs, or other low-carbon solutions.

As the cost of clean energy decreases and the heavy burden of carbon pollution increases, a near-term limit on carbon emissions helps ensure these vital solutions are deployed without delay.

Interim standards can also help drive sustained investments in one especially important area – energy efficiency. Investments in energy efficiency can lead to direct financial benefits for customers – families and businesses alike – in the form of lower electric bills.

23 states are already implementing mandatory efficiency savings targets. These efforts have been overwhelmingly successful, regularly delivering two dollars of savings to customers for every one dollar invested – and in some cases up to five dollars for every one dollar invested.

Even in those states that have been implementing these programs for a while, there is little reason to believe that they have come anywhere close to exhausting the available potential. For example, analysis by McKinsey & Company found that implementing only those efficiency measures that pay for themselves would reduce the country’s total end-use energy consumption by 23 percent by 2020 relative to a business-as-usual scenario.

Analysis by the National Academy of Sciences found that the building sector could reduce energy consumption by 25 to 30 percent between 2030 and 2035, at a cost of just 2.7 cents per kilowatt hour saved. In addition, they found that cost-effective measures could reduce industrial demand 14 to 22 percent by 2020.

For all these reasons, electricity bills are actually expected to decrease as a result of efficiency investments power companies and states make to comply with the Clean Power Plan.

Near-Term Reductions are Essential to Ensure Healthier, Longer Lives for Millions of Americans

The interim emission standards are expected to drive significant near-term public health benefits across America.

In 2020 the proposed standards are expected to prevent:

  • Up to 4,300 premature deaths
  • Up to 100,000 asthma attacks in children
  • Up to 2,100 heart attacks
  • Up to 1,500 hospital admissions
  • Up to 290,000 missed school and work days

Even greater benefits are anticipated in later years.

That’s because power plants are major sources of emissions for a range of pollutants that contribute to ground-level ozone, better known as smog, and dangerous particulate pollution, better known as soot. Power plants are also a major source of emissions for pollutants that have neurotoxic or carcinogenic (cancer-causing) effects.

Power plants account for about 70 percent of U.S. total sulfur dioxide emissions and 46 percent of mercury emissions, and are important sources of nitrogen oxides. Steps taken to reduce carbon pollution under the Clean Power Plan will have the co-benefit of reducing emissions of these and other harmful air pollutants.

EPA estimates that these human health benefits outweigh the costs of compliance by a factor of seven to one.

Each year they are in effect, these important safeguards provide healthier and longer lives for Americans.

Protective Interim Standards are Flexible and Achievable

The goals of the Clean Power Plan are eminently achievable, as they are based on proven and cost-effective methods for reducing carbon pollution that many states and power companies are already demonstrating.

In addition, the Clean Power Plan provides an extraordinarily flexible structure in which states are able to craft their own path forward for reducing carbon pollution, so long as they meet the 10-year average interim target over the period 2020-2029 and then achieve the final reduction target in 2030. This flexibility provides states with the opportunity to harness their own unique opportunities and solutions in light of their own policy preferences.

When evaluating the feasibility of the standards, it is important to consider how quickly the nation’s grid is already decarbonizing. Emissions of carbon pollution from the power sector fell 15 percent from 2005 to 2014. As proposed, the Clean Power Plan only requires them to fall another 15 percent by 2030. Analysis by EIA suggests that the U.S. could cost-effectively reduce greenhouse gas emissions from the power sector about four times faster.

Here’s more evidence that the grid is decarbonizing at a considerably faster rate than what is required by EPA – in the five year period from 2007 to 2012, the Northeastern states reduced their carbon dioxide emissions from large power plants by 37 percent to 42 percent below 2005 levels. The reductions were due to a wide range of factors, including the adoption of the Regional Greenhouse Gas Initiative, shifting natural gas prices, and efficiency investments. That demonstrates the dynamic flexibility and adaptability of which the grid is capable.

This is all happening in the context of a continuously evolving and decarbonizing electric system. Since 2000, the U.S. has installed roughly 30 gigawatts of new generation capacity per year, the vast majority of which was natural gas and renewables. According to EIA, more than 20 gigawatts of utility scale renewables, natural gas, and nuclear generation are already scheduled to come online in 2015, almost half of which is wind.

Meanwhile, we continue to build new infrastructure – which can help unlock even greater opportunities.

For example, according to the Department of Energy, during the last several years more than 2,300 circuit miles of new transmission additions were constructed annually. According to FERC, there are almost 10,000 miles of proposed new transmission projects in various stages of development that have a “high probability of completion” by January 2017.

Protective interim standards will align our nation’s major investments in new infrastructure with climate security – providing lasting protections and smart investments.

Interim Standards Can Help Promote Investments that Drive Even Deeper Reductions in the Years Ahead 

The cost of zero carbon generation is rapidly falling. Wind and solar are cheaper than coal – and even natural gas in a growing number of markets.

Renewable prices are expected to continue their meteoric decline. The price for photovoltaic modules has fallen 80 percent since 2007, and wind prices have fallen 64 percent since 2009.

As a result, the solar industry is expecting to build another 20 gigawatts of new generation over the next two years alone. That’s roughly equivalent to the generation of 13 mid-sized coal plants. (The average capacity factor for new utility scale solar array is around 20 percent, while the average monthly capacity factor for the coal fleet was 61 percent in 2014.)

While EPA’s building blocks assume only modest growth in renewable generation over the next 15 years, recent shifts in price dynamics suggest that the actual market opportunity could be considerable. For this opportunity to materialize, however, power companies and investors need a clear signal about the value of reducing carbon pollution from the power sector.

Providing the clear investment signal beginning in 2020 can shape the broader range of infrastructure investments expected in the coming years, and ensure that they are consistent with the low carbon future we will need if we are to stave off the worst impacts of climate change.

That broader range of infrastructure investments includes the vast miles of electric transmission and natural gas pipelines that are expected to be built in the coming years, as well as investment decisions in today’s generation fleet. More than 30 percent of coal plants are 50 years old, and approximately one in four plants do not contain controls for sulfur dioxide or nitrogen oxides.

In total, utilities appear poised to invest up to $2 trillion in new generation, transmission, and distribution infrastructure between 2010 and 2030 in order to modernize aging generating facilities and grid systems. Any delay in establishing carbon pollution standards for the power sector increases the uncertainty and increases the risk that investments could become stranded in the future.

All of this suggests that well-designed interim standards are both achievable and essential. If anything, the standards should be strengthened given the urgency of the climate challenge, the scale of change we have seen in the power sector to date, and the significant public health and economic benefits the standards can provide.

We have an opportunity as a nation to take advantage of the fact that the economics of power generation are rapidly changing. The best way for both companies and states to position themselves for a competitive advantage in the future is to think long-term and to get on the leading edge of these emerging trends. Otherwise, there is a risk of reinvesting in assets that will be left behind by a changing market, leaving shareholders and ratepayers on the hook.

The Clean Power Plan presents a real opportunity. Let’s all work together to strengthen the program, and work to deliver a vibrant low-carbon economy for the United States.

Also posted in Economics, Energy, Greenhouse Gas Emissions, Health| Read 1 Response

Misguided Legal Attacks on Clean Power Plan Seek to Undermine Clean Air Act, Public Participation

Source: iStock

Source: iStock

The Environmental Protection Agency (EPA) will finalize rules establishing the nation’s first limits on carbon pollution from the power sector – the largest source of greenhouse gas emissions in the United States – by mid-summer of this year.

This timetable will allow EPA to carefully consider and respond to the approximately four million public comments it has received on almost every aspect of these vital and common-sense standards, which were proposed in draft form last summer as the Clean Power Plan.

Unfortunately, several states and a major coal producer have attempted to short-circuit this process by filing highly unusual legal challenges to these proposed standards. The challenges were filed in the U.S. Court of Appeals for the D.C. Circuit in two related cases, Murray Energy Corporation v. EPA (Nos. 14-1112 & 14-1151) and West Virginia v. EPA (No. 14-1146).

EDF — along with other environmental groups, a coalition of states, and a major power company — participated in these suits in support of EPA, and briefs were filed in both cases this week. (Read our brief in Murray Energy here and our brief in West Virginia here).

These lawsuits are untimely, legally unfounded, and seek to undermine a critically important democratic process.

One of the bedrock principles of administrative law is that standards developed by federal agencies go through a procedure whereby draft standards are published, the public has an opportunity to comment, and agencies review and respond to those comments in the final standards — all before legal challenges to those rules can be filed.

This process ensures that the public has a meaningful chance to weigh in on agency actions. It also helps agencies themselves ensure their decisions are well-informed and firmly grounded in law and science. In fact, proposed rules often undergo substantial changes as a result of the comment process. The rule against judicial review of proposed rules respects the importance of this process, and keeps courts and agencies from wasting valuable time and judicial resources on litigation over rules that may change as a result of public comments.

Disregarding this basic principle, the petitioners in these two cases argue that the proposed Clean Power Plan is unlawful – and demand that the court set the proposed rule aside before EPA has even finished its review of comments, much less issued a final rule.

But this fundamental jurisdictional obstacle is only the start of the problems with the petitioners’ case, which rests on an implausible reading of the Clean Air Act that would undermine the very health protections Congress sought to establish there.

EPA’s Clean Power Plan is authorized by section 111(d) of the Act, which requires EPA to administer a process by which states submit plans to regulate certain pollutants from existing sources of harmful air pollution. When enacted in 1970, section 111(d) clearly required that states establish such standards for any pollutant except those regulated under section 108 of the Clean Air Act (which addresses national air quality standards) and section 112 (which applies to acutely toxic “hazardous air pollutants” or HAPs).

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 from existing sources, where that pollution is not adequately regulated under other provisions of the Clean Air Act.

Ignoring that sensible and long-standing framework, the petitioners in these cases have advanced an unusual theory — that EPA is barred from regulating carbon pollution at all under section 111(d) of the Clean Air Act because the Agency is already regulating different pollutants from the power sector (mercury and other air toxics) under section 112 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 HAPs like mercury (under section 112) or non-HAPs like carbon pollution (under section 111(d)) for any given source, but not both.

The petitioners’ interpretation not only defies logic and the basic structure of our nation’s clean air laws, it also stands in sharp contrast to arguments that industry itself made to the Supreme Court in the case of American Electric Power v. Connecticut (2011).

There, the Court specifically found that section 111(d) “speaks directly” to the problem of carbon pollution from the power sector, and held that EPA’s authority to regulate carbon pollution under section 111(d) displaces federal common law.

In oral argument in American Electric Power, attorneys for some of the country’s largest power companies told the Court in no uncertain terms that EPA does have authority to regulate carbon dioxide under section 111(d):

“We believe that the EPA can consider, as it's undertaking to do, regulating existing nonmodified sources under section 111 of the Clean Air Act, and that's the process that's engaged in now… Obviously, at the close of that process there could be APA challenges on a variety of grounds, but we do believe that they have the authority to consider standards under section 111.”

Four years later, petitioners now claim that EPA is required to adopt their interpretation as a result of changes made to the text of section 111(d) as part of the 1990 Clean Air Act Amendments.

In 1990, in an effort to update a cross-reference to the hazardous air pollution program under section 112, the Senate and House each passed technical amendments making minor changes to the same language in section 111(d). Congress then enacted, and the President signed into law, both amendments to the statute.

Even petitioners do not contest that the language of the Senate Amendment clearly preserves EPA’s long-standing authority to regulate carbon pollution under section 111(d) (as well as other pollutants not regulated under sections 108 or 112). However, petitioners have seized on the House amendment, which amended section 111(d) to require that EPA regulate “any pollutant” which is not “emitted from a source category which is regulated under [section 112].” This language, they claim, prevents EPA from regulating carbon dioxide from existing power plants —because power plants are subject to emission standards for mercury, acid gases, and other HAPs under section 112.

This argument finds no support in the Act’s text, structure, or legislative history.

First, the petitioners’ theory would radically change the structure of the Clean Air Act in a way that Congress could never have intended. Under the Petitioners’ theory, section 111(d) would not apply to any pollutant, no matter how harmful, that is emitted by the dozens of industrial source types regulated under section 112 of the Clean Air Act. Significant categories of harmful pollution, not limited to carbon dioxide, would be placed beyond the scope of regulation under the Clean Air Act. 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.

Second, 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 – a strong indication that Congress intended for section 112 to work seamlessly with, not displace, section 111(d).

Third, the petitioners’ theory is completely at odds with the purpose of the 1990 Amendments, which strengthened the Act in numerous ways in order to ensure that harmful air pollution was being effectively addressed.

Petitioners also urge the court to disregard what Congress actually did by ignoring the Senate amendment, which even petitioners agree clearly preserves EPA’s authority to regulate carbon pollution under section 111(d). But the Senate amendment was passed by both houses of Congress and signed into law by the President. As the law of the land, the Senate Amendment cannot be cast aside.

Instead, the petitioners emphasize a strained interpretation of the House Amendment that is not only unreasonable on its face and inconsistent with the Supreme Court’s opinion in AEP, as described above, but is contrary to all of the actions taken by every administration in the twenty-five years since the 1990 amendments were enacted.

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. This long record shows that the House amendment is most reasonably interpreted to preserve the historic “gap-filling” role of section 111(d).

It is regrettable that petitioners have resorted to premature litigation rather than allow the administrative process to run its course.

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 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 children's health from all harmful air pollution.

Cecilia Segal, a legal intern at EDF, helped to prepare this post.

Also posted in Clean Air Act, EPA litgation, Greenhouse Gas Emissions, Policy| Comments are closed

The Clean Power Plan Wins Support from Millions of Americans, and a Broad Array of Diverse Groups

Americans rally for the Clean Power Plan

Americans rally for the Clean Power Plan

January is a time for New Year’s resolutions, hot chocolate and the tantalizing possibility of snow days.

For me, it’s also a time when I reflect on what the past year has meant for me, my family, and our world.

Right now, I’m focusing on climate change through these three interwoven lenses. Fortunately, this year I have a lot of significant and positive steps to reflect on.

Here’s the one I’m thinking about the most: the Clean Power Plan.

The Clean Power Plan will set the nation’s first-ever carbon pollution standards for power plants. It’s one of the biggest steps we’ve ever taken to address the pollution that harms our climate.

EDF strongly supports the Clean Power Plan, of course, but we’re certainly not alone.

These urgently needed standards have already won broad support from the faith community, moms, health and medical associations, businesses, power companies, Latino groups, states, and others – as well as from EDF and other environmental groups.

And more than three and a half million Americans sent comments in support of the Clean Power Plan to the Environmental Protection Agency (EPA).

Here are just a few quotes highlighting the Clean Power Plan’s support among diverse groups, and demonstrating the broad support about the need to protect our climate:

Climate change poses grave threats to public health. To protect our communities and the public, the United States must significantly reduce carbon pollution from the largest source, which are existing power plants. Our organizations support EPA’s overall approach with the Clean Power Plan, but urge EPA to strengthen the final plan to provide greater protection to public health.

  • Comment Letter from medical and public health associations: American Academy of Pediatrics, American Heart Association, American Lung Association, American Public Health Association, American Thoracic Society, Center for Climate Change and Health, Health Care Climate Council, Health Care Without Harm, Public Health Institute, and Trust for America’s Health

We applaud EPA for proposing a rule that will place the United States on a path to achieving meaningful reductions in carbon pollution, although we recognize that greater overall reductions will be necessary to meet the challenge of climate change. Our states are already demonstrating that significant, cost-effective reductions can be achieved from the power sector through the “system” EPA identifies as the basis for its proposed emission guideline. We therefore support EPA’s general approach to setting the emission guideline.

  • Joint Comments of state environmental agency leaders, energy agency leaders, public utilities commissioners from 14 states: California, Connecticut, Delaware, Illinois, Massachusetts, Maryland, Maine, Minnesota, New York, New Hampshire, Oregon, Rhode Island, Vermont, and Washington

We support the proposed rule’s overall objective of achieving meaningful emission reductions from existing power plants and encouraging investment in a clean energy future, and these technical comments are offered for the purpose of constructively supporting that objective. We agree with EPA that meaningful emission reductions can be achieved from the electric sector while maintaining electric system reliability.

 We strongly support EPA in moving forward with the proposed Clean Power Plan in the strongest form possible. We know that communities of color and low-income communities, including the Latino community, are frequently among those most negatively impacted by carbon pollution. Whether it is exposure to health damaging copollutants associated with carbon emissions or the present and worsening effects of climate change, these impacts are both direct and indirect and they threaten the social and economic order of overexposed and overburdened communities.

As businesses concerned about the immediate and long-term implications of climate change, we, the undersigned, strongly support the principles behind the draft Carbon Pollution Standard for existing power plants. The Environmental Protection Agency’s (EPA) proposed Carbon Pollution Standard for existing power plants represents a critical step in moving our country towards a clean energy economy…Our support is firmly grounded in economic reality. We know that tackling climate change is one of America’s greatest economic opportunities of the 21st century and we applaud the EPA for taking steps to help the country seize that opportunity.

  • Letter signed by 223 companies, BICEP, CERES, CDP, and The Climate Group. Companies signing the letter include Unilever, Kellogg Company, Solar City, and SunPower

EPA's efforts to limit dangerous carbon pollution from power plants will protect public health, fight climate change, and help our economy by sparking innovation in clean energy technologies. Our communities, our families and our children are counting on your leadership. Please enact strong limits on carbon pollution from America's existing power plants.

And, while delivering more than 10,000 comments in support of the Clean Power Plan, The Reverend Sally Bingham, founder and president of Interfaith Power and Light said:

[W]e urge the EPA to move forward with the proposed standards for existing power plants so that we can reduce carbon pollution as quickly as possible to address climate change, protect human health, and care for all of Creation.

It has been a great privilege to work on the Clean Power Plan at EDF during the past year. That’s one of the things I’m reflecting on personally.

It’s true that climate change is an immense issue with far-reaching impacts. But the immensity of the challenge has united an extraordinary number of Americans, and moved a wide range of diverse groups to take action — and that is something we can all celebrate this New Year.

Also posted in Clean Air Act, Partners for Change, Policy| Read 1 Response
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