2015

There are three ongoing legal challenges to EPA’s proposed Clean Power Plan:

• On June 18, 2014, Murray Energy Corporation, an Ohio-based coal mining company, filed a novel lawsuit in the D.C. Circuit Court of Appeals seeking an all Writs Act injunction that would halt EPA from continuing with the Clean Power Plan. (Case no. 14-1112)
• On August 1, 2014, thirteen States led by West Virginia AG Patrick Morrisey filed a petition in the D.C. Circuit Court of Appeals seeking to overturn a non-judicial settlement agreement by which EPA committed itself to propose and finalize the Clean Power Plan. (Case no. 14-1146]
• On August 15, Murray Energy filed another petition in the D.C. Circuit seeking to overturn the regulation based on the judicial review provisions of the Clean Air Act. (Case no. 14-1151)

In late January, a D.C. Circuit panel established a parallel schedule for all three cases; oral arguments will take place on April 16.

Setting aside their respective jurisdictional hurdles, the challengers essentially share the same case on the merits. If you’ve read this far, then presumably you’re already acquainted with the inside-baseball legalese of these lawsuits; I’ve given the nitty-gritty details here. Very simply put, both the States & Murray Energy argue that the plain text of the Clean Air Act bars EPA from promulgating the Clean Power Plan.

In September, an NRDC lawyer called the lawsuits “laughable.” Nonetheless, NRDC felt it was necessary to intervene in all of them. Last week, NRDC and other environmental interveners submitted two briefs on behalf the EPA (one for the states’ case, and another for both the Murray cases). Notably, the two briefs adopt distinct arguments regarding the plaintiffs’ shared argument on the merits. In this short post, I will address the environmental interveners’ briefs. [click to continue…]

On Friday, I participated in an online video interview with the Wall Street Journal’s Mary Kissel regarding the green scandal that engulfed Oregon Democratic Governor John Kitzhaber. After the video, I’ve posted my summary of the situation.

Oregon’s Democratic Governor John Kitzhaber announced his resignation on Friday, 13th February, as the result of revelations that Oregon’s “First Lady” Cylvia Hayes has taken hundreds of thousands of dollars in payoffs from green energy clients and non-profit groups to promote their interests.  Kitzhaber will be succeeded by Oregon’s elected Secretary of State, Kate Brown, until a special election is held in November 2016 to fill the last two years of his term.

Hayes has been Kitzhaber’s girlfriend for several years and more recently his fiancée.  The governor designated her as Oregon’s official first lady and allowed her to run her clean energy consulting business out of the governor’s mansion and gave her authority to direct state employees on policies related to her clients.  Hayes received payments from some of these clients that were not reported by her in state conflict of interest filings.  These payments included $118,000 from the Clean Economy Development Center in 2011 and 2012 and a further $85,000 in 2013, including $50,000 from the Energy Foundation. [click to continue…]

Which State in the lower 48 has the highest gas prices? You probably already know the answer. But today’s gas price map on GasBuddy.com is too pretty not to share with visitors to this blog.

The long-reigning, undisputed champion of pain at the pump is (drum roll . . .) the State with the most ‘progressive’ energy and climate policies.

Source: GasBuddy.Com

EPA’s Clean Power Plan (CCP) would set carbon dioxide (CO2) performance standards for state electric power sectors. The standards are calibrated in pounds CO2 per megawatt hour. They translate into statewide emission-reduction mandates or caps. On average, states would have to reduce their power-sector CO2 emissions 30% below 2005 levels by 2030.

Under §111 of the Clean Air Act (CAA), a performance standard, whether for new or existing sources, must reflect the “best system of emission reduction” (BSER) that has been “adequately demonstrated,” taking “cost” into account.

Performance standards must also be “achievable,” defined by the D.C. Circuit Court of Appeals to mean achievable by the regulated industry as a whole (National Lime Association V. EPA, 627 F. 2d 416 at 443 [1980]).

Finally, before EPA may promulgate “existing source performance standards” (ESPS), as it proposes to do through the CPP, the agency must first promulgate new source performance standards (NSPS), as it proposes to do through the Carbon Pollution Standards rule.

State policymakers should have no legal qualms about refusing to comply with the CPP. EPA’s proposal is unlawful on at least 10 counts.

(1) CAA § 111(d) prohibits EPA from requiring ESPS for sources already regulated under §112. EPA has been regulating power plants under §112 since December 2011, when the agency finalized the Mercury Air Toxics Standards (MATS) rule. Therefore, the very provision under which EPA proposes to establish performance standards for existing power plants prohibits the agency from doing so.

(2) A state’s electric-power sector is not a “source” to which a performance standard may lawfully be assigned. Unlike all previous §111 performance standards, which, pursuant to the statute, apply to “particular sources,” CPP proposes to cap emissions from each state’s entire electric-power sector. CAA §111(a)(3) defines “stationary source” (whether new or existing) as “any building, structure, facility, or installation which emits or may emit any air pollutant.” Obviously, a state’s power sector is not any such individual physical object.

(3) A “best system of emission reduction” (BSER) is a technology or set of technology options “adequately demonstrated” for “designated facilities,” not a green wish-list of market-restructuring energy policies Congress has repeatedly declined to approve. Nothing in the statutory text, EPA’s implementing regulations, or past practice indicates that EPA may control state policies regarding renewable energy, electricity dispatch, or demand management.

(4) A BSER for CO2 emissions from existing power plants does not exist. Commercial technology to capture or filter CO2 emissions from existing power plants has not yet been developed, as EPA admits. Hence there is no “best system of emission reduction” on the basis of which EPA or states could set CO2 performance standards for existing power plants. [click to continue…]

As previously discussed on this blog, the EPA recently challenged a key conclusion of the State Department’s Final Supplemental Environmental Impact Assessment (FSEIS) on the Keystone XL Pipeline (KXL).

State concluded that denying approval of the KXL would actually increase net greenhouse gas (GHG) emissions. Canadian crude would still reach U.S. refiners, it would just come by alternate modes of delivery (principally rail transport) that are more carbon-intensive than the proposed pipeline. The alternate routes would emit 28% to 42% more carbon dioxide (CO2) per barrel of oil delivered (FSEIS, ES-34).

That assessment was intolerable to Keystone haters, and last week EPA came riding to their rescue.

EPA argued that State’s GHG impact assessment assumes crude oil prices remain at $75 per barrel or higher. When oil prices fall into the $65-$75 range, State acknowledged, the additional cost incurred to transport crude by rail could make new oil sands development projects uneconomical. Thus, EPA reasoned, with crude prices now hovering around $50 per barrel, building the KXL could make uneconomic oil sands projects commercially viable, increasing oil sands development and the associated emissions beyond what would otherwise occur.

As noted in my previous post, EPA did not accurately describe State’s analysis. State did not opine that blocking the KXL by itself would render oil sands development uneconomical in a period of low oil prices. Rather, State opined that the higher cost of rail transport would constrain oil sands development if “all new and expanded Canadian and cross-border pipeline capacity, beyond just the proposed Project, is not constructed” (FSEIS, ES-12, emphasis added).

Yesterday, TransCanada, the corporation seeking to build the KXL, sent a letter to State rebutting EPA’s critique. In a nutshell, TransCanada argues, quoting the FSEIS, that the “dominant drivers of oil sands development are more global than any single infrastructure project,” pointing out that both Canadian and U.S. Bakken crude production increased since late 2008, despite crude oil prices falling below $75 per barrel during most of December 2008-December 2009.

From TransCanada’s letter (footnotes removed):

In updating the market assessment and related conclusions . . . the Department should take note that history has demonstrated short- and medium-term fluctuations in oil prices do not significantly impact whether the oil sands resource will be developed. When TransCanada applied for approval of the Project in late 2008, the price of oil closed around $41 per barrel. Today the price is approximately $50 per barrel and over that period of time the price of oil has ranged between $110 per barrel and $39 per barrel. Over that same period of time, Canadian oil sands production has grown from 1.2 million barrels per day to 2.1 million barrels per day, an increase of 0.9 million barrels per day or 1.2 times the capacity of the Project. In addition, over that period of time, US Bakken crude oil production has grown from 0.25 million barrels per day to 1.1 million barrels per day, an increase of 0.9 million barrels per day or nine times the capacity of TransCanada’s Bakken Marketlink Project. It is clear that building or not building the Project will not cause crude oil production to go up or down. [click to continue…]

Over the last two days, energy reporters from Politico and National Journal have reached opposite conclusions regarding the congressional GOP caucus’s strategy on climate change.

Here’s Politico on Monday:

And here’s National Journal on Tuesday.

They both can’t be right! I suspect Politico’s Schor is closer to the truth, and that the GOP isn’t yet willing to challenge the President’ climate regulations. There are three tea leaves that suggest as much. [click to continue…]

Over at Chris Mooney’s Washington Post energy and environment blog, which goes by the twitter handle “@PostGreen,” there’s a recent piece by Puneet Kollipara that is titled, “No, climate models aren’t exaggerating global warming.” According to Dictionary.com, “exaggerate” means to “overstate.” Now, keeping in mind both the title of the post and also the definition of “exaggerate,” consider Kollipara’s fourth paragraph:

It’s true that air temperatures have increased slower in the past 15 years or so, and climate models on average instead predicted much more warming. And scientists are slowly beginning to figure out why temperatures didn’t rise quite as much as expected. 

To my eyes, the excerpt above seems to blatantly contradict the title.

This same thing happened yesterday, in a Grist blog by David Roberts. The title of that post is “Obama’s carbon rule hangs on this one legal question.” He’s referring to EPA’s illegitimate and illegal Clean Power Plan. For the first 16 paragraphs, Roberts describes the “one legal question” that will make or break the rule. And then, he says (in a parenthetical, no less):

(For another argument that EPA’s interpretation is likely to be struck down in court, see this paper from lawyers Brian Potts and David Zoppo.) [click to continue…]