Climate 411

Supreme Court Reaffirms EPA’s Bedrock Legal Authority to Cut Carbon Pollution from Power Plants

By Tomas Carbonell / Published: June 27, 2014

Source: Openclipart

The United States Supreme Court issued a long-awaited decision in Utility Air Regulatory Group v. EPA (No. 12-1146) this week, resolving the last of many multi-year legal challenges to EPA’s first generation of climate protections under the Clean Air Act.

The U.S. Supreme Court ruled 7-to-2 that the U.S. Environmental Protection Agency (EPA) permissibly read the Clean Air Act to require large new or modified industrial pollution sources to deploy modern pollution controls for greenhouse gases. Thus, new and rebuilt large emitters of other regulated pollutants such as particulate matter, sulfur dioxide, and oxides of nitrogen subject to the Clean Air Act’s pre-construction review permit program must use the “best available control technology” to control climate pollution.

This is now the third decision in which the Court has affirmed the application of the Clean Air Act to climate pollution.

A 5-to-4 majority of the court also held that EPA must narrow its permit program to avoid applying the permitting program to many smaller sources that EPA itself had taken steps to exclude from regulation.

The UARG case emphatically puts an end to the misplaced claims by some who question EPA’s bedrock authority to address the deleterious carbon pollution from power plants and other industrial sources under section 111 and the Prevention of Significant Deterioration (PSD) permit program of the Clean Air Act. The central question in the UARG case was not whether EPA must address climate-destabilizing pollution from power plants and other industrial sources, but rather how EPA should carry out these essential clean air protections.

When it took up the UARG case, the Supreme Court decided not to review EPA’s rigorous, science-based determination in 2009 that six greenhouse gases endanger the public health and welfare of current and future generations — the legal foundation for addressing climate pollution under the Clean Air Act. The Court similarly declined to review EPA’s landmark rules in 2010 setting the first limits on greenhouse gas emissions from new passenger vehicles (the Clean Car Standards). The Supreme Court’s review of UARG was focused exclusively on EPA’s interpretation of the PSD permitting program. Nothing about the Supreme Court’s final decision in UARG affects the Clean Car Standards or the science-based finding that greenhouse gas emissions endanger public health and welfare and therefore must be addressed under the Clean Air Act. And in UARG, seven justices of the Court agreed with EPA that large industrial sources that are already required to obtain PSD permits due to their emissions of other regulated pollutants must limit their greenhouse gas emissions with “best available control technology.”

The UARG case also reinforces EPA’s clear legal authority to reduce carbon pollution from the nation’s fossil fuel-fired power plants, which emit nearly forty percent of the United States’ carbon dioxide and are currently subject to no national limits on carbon pollution. As described in detail on our earlier blogs, EPA has proposed long-overdue and much-needed rules under section 111 of the Clean Air Act that would, for the first time, require new power plants to use advanced technologies available for carbon reduction — and would reduce carbon pollution from existing power plants to 30 percent below 2005 levels by 2030 through available cost-effective solutions. Together, these rules would cut carbon pollution from our nation’s largest source, achieve significant reductions in other harmful pollutants that are emitted together with carbon pollution from fossil fuel-fired power plants, and spur complementary action in other countries.

The Supreme Court has affirmed time and again EPA’s authority to regulate carbon pollution, and it further reiterated this precedent in UARG:

  • Seven years ago in Massachusetts v. EPA, the Supreme Court held that “greenhouse gases fit well within the Act’s capacious definition of ‘air pollutant,’” and are therefore clearly within EPA’s authority to regulate under the Clean Air Act. 549 U.S. 497, 532 (2007). In UARG, the Court rejected requests by some of the parties to overturn this fundamental holding.
  • Four years later in American Electric Power Co. v. Connecticut, the Supreme Court explicitly acknowledged EPA’s authority to limit carbon pollution from existing power plants, holding that it was “plain” that section 111 of the Clean Air Act “speaks directly to emissions of carbon dioxide from the defendants’ plants.” 131 S. Ct. 2527, 2537 (2011). 
  • During the February 24, 2014 oral argument in UARG, industry attorney Peter Keisler conceded, in response to questioning from Justice Ginsburg, that EPA has clear authority to address climate pollution from power plants under section 111.  The Court specifically acknowledged and reiterated this holding in UARG – noting that the section 111 is “not at issue here” and that “no party in American Electric Power argued [section 111] was ill suited to accommodating greenhouse gases.”

It is always an important occasion when the Supreme Court weighs in on legal issues affecting the Clean Air Act. It’s especially important when the Court is addressing the climate pollution that presents a clear and present danger to the health of our communities and families and to our prosperity.

Posted in Climate Change Legislation, Greenhouse Gas Emissions, News, Policy / Comments are closed

“Risky Business” stands out in growing sea of climate reports

By Gernot Wagner / Published: June 26, 2014
Receding beach on North Carolina’s Outer Banks. Source: FEMA/Tim Burkitt

(This blog originally appeared on EDF Voices)

This blog post was co-authored by Jonathan Camuzeaux.

Put Republican Hank Paulson, Independent Mike Bloomberg, and Democrat Tom Steyer together, and out comes one of the more unusual – and unusually impactful – climate reports.

This year alone has seen a couple of IPCC tomes, an entry by the American Association for the Advancement of Science and the most recent U.S. National Climate Assessment.

The latest, Risky Business, stands apart for a number of reasons, and it’s timely with the nation debating proposed, first-ever limits on greenhouse gas emissions from nearly 500 power plants.

Tri-partisan coalition tackles climate change

The report is significant, first, because we have a tri-partisan group spanning George W. Bush’s treasury secretary Paulson, former mayor of New York Bloomberg, and environmentalist investor Steyer – all joining forces to get a message through.

That list of names alone should make one sit up and listen.

Last time a similar coalition came together was in the dog days of 2009, when Senators Lindsay Graham, Joe Lieberman, and John Kerry were drafting the to-date last viable (and ultimately unsuccessful) Senate climate bill.

Global warming is hitting home

Next, Risky Business is important because it shows how climate change is hitting home. No real surprise there for anyone paying attention to globally rising temperatures, but the full report goes into much more granular details than most, focusing on impacts at county, state and regional levels.

Risky Business employs the latest econometric techniques to come up with numbers that should surprise even the most hardened climate hawks and wake up those still untouched by reality. Crop yield losses, for example, could go as high as 50 to 70 percent (!) in some Midwestern and Southern states, absent agricultural adaptation.

The report is also replete with references to heat strokes, sky-rocketing electricity demand for air conditioning, and major losses from damages to properties up and down our ever-receding coast lines.

Not precisely uplifting material, yet this report does a better job than most in laying it all out.

Financial markets can teach us a climate lesson

Finally, and perhaps most significantly, Risky Business gets the framing exactly right: Climate change is replete with deep-seated risks and uncertainties.

In spite of all that we know about the science, there’s lots more that we don’t. And none of that means that climate change isn’t bad. As the report makes clear, what we don’t know could potentially be much worse.

Climate change, in the end, is all about risk management.

Few are better equipped to face up to that reality than the trio spearheading the effort; Paulson, Bloomberg and Steyer have made their careers (and fortunes) in the financial sector. In fact, as United States Treasury secretary between 2006 and 2009, Paulson was perhaps closest of anyone to the latest, global example of what happens when risks get ignored.

We cannot – must not – ignore risk when it comes to something as global as global warming. After all, for climate, much like for financial markets, it’s not over ‘til the fat tail zings.

Posted in Basic Science of Global Warming, Cars and Pollution, Economics, Extreme Weather, Greenhouse Gas Emissions, Health, Jobs, News, Policy / Read 1 Response

Defenders of dirty power plants use doublespeak to shape debate

By Keith Gaby / Published: June 26, 2014
Under the proposed Clean Power Plan, plants must cut carbon dioxide emissions by 30 percent below 2005 levels by 2030.

(This blog originally appeared on EDF Voices)

As we’ve noted before, few opponents of the federal Clean Power Plan want to stand up and say they favor unlimited carbon pollution. So they’re apt to frame their arguments in more clever ways.

Under the proposed Clean Power Plan, plants must cut carbon dioxide emissions by 30 percent below 2005 levels by 2030.

Sometimes their approach is to use misleading statistics – like when they talk about the cost of moving to clean energy without mentioning the much larger benefits of doing so.

Or they’ll use an appealing bit of logic, which sounds right until it’s exposed to the way the world really works.

It takes more than one EPA rule

One of those seemingly-logical attacks is the complaint that the plan the U.S. Environmental Protection Agency rolled out June 2 won’t solve climate change.

A CATO Institute blog says, “EPA’s Regulations Will Not Mitigate Climate Change.” At first glance, that seems like a step forward from the crazier objections – for instance, that climate change doesn’t exist.

But it’s really just a new strategy aimed at the same goal, like a lawyer who failed to impress the jury with an insanity defense and is now piecing together a fake alibi.

Your suspicions should be raised immediately when coal conglomerates complain that an EPA rule does “little” to solve an environmental problem, which on the surface sounds like a worthy objection. Why should the United States take this step to end unlimited pollution from power plants, they ask, when it won’t resolve the problem we are facing?

The complaint rests on the idea that the pollution reductions from U.S. power plants will not cut enough emissions to stop global warming. And that’s true.

It’s like telling Ike to call off D-Day because the landing alone wouldn’t defeat the Germans.

Even though power plant emissions are the largest source of carbon pollution in the United States – as of 2011, our utilities put out more of this pollution than the entire economies of every foreign country but China – they’re only a portion of total global output. So this plan does not, on its own, solve climate change.

But this argument is sort of like telling Ike to call off D-Day because the landing alone wouldn’t defeat the Germans.

Or it’s like telling a person with multiple risk factors for heart disease to keep smoking, because quitting won’t prevent an attack on its own. The reality is that in solving big problems, a major first step is always necessary and it’s always insufficient.

The most important truth – in fact, the very reason some in industry are scrambling for arguments to oppose this new rule – is that the Clean Power Plan is a turning point in our environmental and economic history.

A historic step

For the first time, we’ll cut carbon emissions from their largest source, and begin to drive greater investment in abundant, affordable clean energy.

It will also have a big impact around the world. Addressing a major global problem in the 21st Century requires America to lead by example.

By making a substantial cut in our largest source of carbon emissions, we will not only cut billions of tons of pollution, we will enable a much bigger step forward internationally.

Let’s face it: Most of those in the fossil fuel industry who argue that the Clean Power Plan doesn’t cut enough pollution are really just trying to make sure we don’t cut any pollution at all.

They know that if they’re able to intimidate the Congress into blocking these rules, it would make it substantially less likely that the U.S. and the rest of the world will move forward to a cleaner future.

But there’s an easy test to tell if someone offering this complaint is sincere: If they’re making suggestions to further strengthen the final rule, then they’re actually interested in a solution.

If not, they’re just trying to keep America living in the past.

Posted in Clean Power Plan, Energy, Greenhouse Gas Emissions, News, Setting the Facts Straight / Comments are closed

Supreme Court Decision Leaves Greenhouse Gas Permit Requirements for Large Industrial Polluters in Place

By Pamela Campos / Published: June 23, 2014

(This post was written by EDF Senior Attorneys Pamela Campos and Peter Zalzal)

Source: Daderot (Own work) [Public domain], via Wikimedia Commons

This morning the Supreme Court issued a 7-to-2 decision confirming that the U.S. Environmental Protection Agency (EPA) may continue to require large industrial sources of climate pollution to use the best available control technology when building or rebuilding plants.  A 5-to-4 majority also determined that such pre-construction permits would not be required for the many smaller sources that EPA had concluded would pose significant administrative problems.

Today’s decision is good news for all of us exposed to the health and climate impacts of new industrial plants. It also leaves the vast majority of already-issued greenhouse gas permits untouched.

While there are a handful of permits potentially impacted by today’s decision, an EPA database shows that the vast majority of permits issued between 2011 and 2013 cover both greenhouse gases and other pollutants.

A separate EPA update from March 2014 shows that the large majority of permits issued are for exactly the type of plants Congress, and the Supreme Court, had in mind – large industrial sources such as power plants, oil and gas-related plants, chemical plants, and cement plants.

By design, EPA’s tailoring rule applied only to the largest sources of air pollution. For the first six months of implementation, the rule explicitly applied only to sources emitting large amounts of both greenhouse gases and other air pollutants. In the last 3 years, permits have been required only for the largest sources of greenhouse gas pollutants – the types of sources that also emit large amounts of non-greenhouse gas pollutants. (See slides 26 and 27 of this EPA presentation)

Since 2011, more than 160 new and modified large industrial sources have incorporated the best available technologies for limiting greenhouse gases.

As a result, we have new and updated power plants in California that have improved efficiency by up to 88 percent, gas plants in Maryland that are using high-efficiency combined cycle turbines that reduce facility costs, and cement kilns that have cut greenhouse gas pollution by 40 percent while reducing energy costs. (See pages 38 and 39 of this legal brief filed by the states)

Today’s decision means that the Clean Air Act will continue to play a role in advancing use of efficient, cost-effective technologies that cut both global and local air pollution from large polluters. And that’s good news for all of us.

Posted in EPA litgation, Greenhouse Gas Emissions, News, Policy / Comments are closed

The Clean Power Plan: Protecting Health and the Climate While Ensuring Electric Reliability

By Cheryl Roberto / Published: June 20, 2014

(This post is by EDF Associate Vice President for Clean Energy Cheryl Roberto, with EDF Senior Director of Clean Energy Collaboration Diane Munns and legal fellow Peter Heisler)

Source: Chris J Dixon via Wikimedia Commons

The U.S. Environmental Protection Agency’s (EPA) new Clean Power Plan will empower states to design customized, cost-effective programs to reduce climate-destabilizing pollution while ensuring continued electric system reliability.

States will be able to deploy flexible compliance mechanisms such as:

  • renewable energy
  • demand-side energy efficiency
  • shifts in utilization away from higher-emitting and towards lower-emitting generation sources
  • measures at specific plants to secure reductions in carbon pollution

And states will be able to do all of this while designing their compliance plans to make sure that generation resources are fully sufficient to ensure reliability.

The “bottom line,” according to Analysis Group, is that “there is no reasonable basis to anticipate that EPA’s guidance, the states’ [plans] and the electric industry’s compliance with them will create reliability problems for the power system.”  On the contrary, “[t]o date, implementation of new environmental rules has not produced reliability problems”—despite industry’s history of crying wolf.

Case in point: before Congress enacted the Acid Rain Program in 1990, electricity producers warned that it could “increase the cost, risk the reliability of electric service, [and] disrupt the long-range planning of utilities.”  Yet they quickly found solutions that reduced pollution more than required, and at much lower cost than expected — taking advantage of the program’s flexible trading system to maximize the results of conventional pollution controls.

With the Clean Power Plan, states would not only be able to implement market-based mechanisms, but also to deploy cost-effective solutions like energy efficiency, renewable energy, and shifts in utilization to lower-emitting plants.

Yet electricity producers are at it again.

American Electric Power (AEP) CEO Nick Akins recently said that a shortage of natural gas and above-average levels of coal generation during this winter’s polar vortex should raise a “red flag” about limits on carbon pollution from power plants. (See SNL Energy, April 7, 2014)  But this is in fact a red herring.

Here are some key facts about the 2014 cold weather event referred to as the polar vortex:

  • In the PJM Interconnection, unexpected outages at coal-fired power plants with operational problems were more to blame for the scarcity of power than outages of gas plants or a shortage of natural gas.
  • Renewable energy and energy efficiency are key resources during periods of high demand. ISO New England said that renewable energy was an “important part of our energy mix” during the polar vortex, and that distributed generation resources “performed well and were a valuable part of maintaining reliability during the winter season.”

And new studies demonstrate that incorporating renewable energy and energy efficiency into the electric system to reduce carbon pollution is consistent with maintaining reliability.

For example, PJM’s Renewable Integration Study found that the system can accommodate up to 30 percent wind and solar generation without significant issues.

The real threat to reliability is inaction. The Third National Climate Assessment predicts significant impacts on energy supply and use if we do not curb carbon emissions. Year-round net electricity use will increase due to burgeoning peak loads in the summer, water scarcity will hamper various kinds of generation, and sea level rise and extreme storm surge events will inundate coastal power plants and energy infrastructure.

The choice is clear.

EPA’s Clean Power Plan will protect public health and reduce dangerous carbon emissions. Through the Carbon Pollution Standards for new and existing power plants, we can achieve significant reductions in climate-destabilizing emissions while sustaining access to affordable, dependable electricity.

Posted in Clean Power Plan, Energy / Read 1 Response

America’s coal-producing states weigh their options

By Jim Marston / Published: June 19, 2014
A coal train rolls through a town in West Virginia, which produces more coal than any other state except for Wyoming.

Nobody was surprised to hear political foes of President Obama and leaders from several coal-dependent states blast EPA’s proposal to limit carbon pollution from America’s power plants.

The Clean Power Plan, released June 2, represents a big change in the way America will generate and use energy in the coming decades. We understand: Big changes are scary.

So it’s interesting to ponder which political leaders in states dependent on coal-fired power will, in the end, seize this historic opportunity.

Who will use the flexible policy tools offered in the Clean Power Plan to diversify their energy economies and unleash innovation to help their states grow? Who will show political courage?

Clean(-er) power for Texas

Just imagine if a state like Texas, my home state, used the plan to fully leverage its robust natural gas, wind and solar resources. It would be a game changer.

Texas power plants, and the state as a whole, continue to lead the nation in carbon dioxide emissions.

Texas also leads the nation in producing more than 12,000 megawatts (MW) of wind energy. That’s impressive.

According to data from the National Renewable Energy Laboratory, however, this represents less than 1 percent of Texas’ onshore wind potential.

What’s more, Texas is at the top in solar potential, yet solar energy in Texas lags far behind wind at 213 MW of installed capacity. This spells tremendous opportunity.

So does Texas’ natural gas industry, which may be the biggest winner under EPA’s plan. The American Natural Gas Association predicts the new emission standards will increase natural gas demand by 45 percent – much of which will be produced by Texas with little impact to electricity prices.

In fact, the flexibility of EPA’s proposed plan offers Texas and other states dozens of ways to comply while improving public health and the state economy.

West Virginia: Rich in energy

Take West Virginia, where king coal has reigned for decades. It’s among several coal-producing states that got a break by the Clean Power Plan.

West Virginia only needs to cut emissions from power plants by 20 percent by 2030, when the overall target for all 491 plants nationwide is 30 percent, and some states face cuts of 40 percent or more.

This has not kept West Virginia from threatening to sue the EPA over the rules, even as several of the state’s utilities said they’re already well on their way to meeting EPA’s rules.

But amid such noise there’s also optimism. The West Virginia University College of Law has already teamed up with a consulting firm to analyze EPA’s plan and to develop strategies some West Virginians hope will help the state transition to a cleaner future.

“West Virginia has an abundance of energy resources – including coal, natural gas, biomass, wind, solar and energy efficiency,” noted James Van Nostrand, director of the university’s Center for Energy and Sustainable Development.

Finding the right mix, he said, will be the main challenge.

Meanwhile, other states enjoy a head start thanks to politically courageous decisions taken years ago. Colorado, a purple state and the seventh largest coal-producer in the country, is one such state.

Colorado blasts ahead

Voters in the Rocky Mountain State approved a renewable energy standard a decade ago and in 2010, the legislature adopted the “Clean Air, Clean Jobs Act.” It requires utility companies to get 20 percent of their energy from cleaner sources by 2020, speeding up the retirement of aging coal-fired plants.

Then in late 2013, Colorado became the first state in the nation to propose new methane limits for its oil and gas operations.

By reining in this highly potent greenhouse gas, and thanks to the steps it took over the past decade, Colorado may already be ahead of the curve when it comes to meeting EPA’s proposed standards.

And what does all this energy progress cost? According to one Colorado utility, Xcel Energy, the Clean Air, Clean Jobs Act will cost the company $1 billion, with an annual rate impact of only about 2 percent over the next decade.

Yet the benefits to Coloradans are significant: $590 million in averted health costs and 1,500 construction jobs.

My guess is that not even in states such as Texas or West Virginia will they be able to deny for long the billions in cost-savings, millions in health benefits, and hundreds of new jobs that the Clean Power Plan promises.

Posted in Clean Power Plan, Energy, Greenhouse Gas Emissions, Policy / Read 2 Responses