Features

RenewableEnergyWorld.com (“The World’s #1 Renewable Energy Website”) on Monday reported that the Ivanpah Solar Electric Generating System was named the 2014 Renewable Energy Project of the Year at the PennWell Annual Awards Gala.

I greet this news with a query: Are you serious!?!

Southern California-based Ivanpah, which uses 350,000 heliostat mirrors that focus sunlight on several centralized power towers in order to power steam turbines, was completed in April, and has since suffered a spate of awful news. For starters, the project is exorbitantly expensive. And upon becoming operational, certain unintended consequences came to light, including the project’s propensity for incinerating birds midflight and also blinding pilots. The final insult is that the power plant is on pace to generate only 40 percent of its year-one goal.

Simply put: Ivanpah is an expensive, bird-frying, under-performing mess…and also the “2014 Renewable Energy Project of the Year.”  If this is the best that renewable energy had to offer in 2014, then the industry is in deep doo-doo.

On November 24th, EPA Region 6 issued a pre-publication version of a proposed federal implementation plan that would seize Regional Haze programs run by Texas and Oklahoma pursuant to the Clean Air Act. A final proposal will be published in the Federal register any day now.

I’ve only started acquainting myself with the document, but media reports indicate that the costs of these FIPs would be $2 billion. When I’m up to speed on the rule, I’ll post a summary. Given EPA’s history of Regional Haze FIPs, about which I wrote a study, there’s a high probability that this rule would achieve literally invisible “benefits” in exchange for the billions it would cost.

Globalwarming.org has been keeping a running tally of Obama-era Clean Air Act FIPs (below). The president is up to 54, which is almost 11 times the sum of his three predecessor administrations!

ALEC FIP Chart

Post image for EPA Climate Rule’s Hypothetical Impact: Too Small to Detect

Dan Simmons of the Institute for Energy Research (IER) today posts a stinging rebuke to the Natural Resources Defense Council’s attack on the American Legislative Exchange Council and the “Reliable, Safe and Affordable Power (RASP) Act.”

Quick background: RASP is a model bill for state lawmakers. It is likely to be considered this week at ALEC’s annual Washington, D.C. meeting. ALEC is the non-partisan association of state lawmakers dedicated to limited government, free markets, and federalism.

RASP instructs state agencies (1) not to prepare to implement EPA’s Clean Power Plan (CPP) until the rule’s legality has been fully resolved in courts, and (2) not to expend funds to execute a CPP implementation plan until committees of jurisdiction in the state legislature approve the plan.

The first of those restrictions is protection against government waste. The CPP is a legal mess, so it makes no sense for states to develop implementation plans until the judicial system resolves the many predictable legal controversies. The second restriction safeguards democracy by ensuring that state elected officials, not bureaucrats, have the final say in how the state implements the CPP in the unlikely event courts uphold the rule.

Yesterday, NRDC hosted a press conference call in which spokespersons for the group asserted that RASP would “paint states into a corner” and make it harder for them to shape their own policies, according to E&E News. NRDC’s point seems to be that if a state refuses to submit its own implementation plan, EPA will impose a federal plan without input from state officials.

That threat is an empty suit. Unlike all previous EPA rules requiring states to adopt emission performance standards for “existing” stationary sources under §111(d) of the Clean Air Act, CPP performance standards cannot be achieved by requiring installation of specific control technologies at “designated facilities” — a power clearly within EPA’s jurisdiction.

Rather, the standards can be achieved only by enacting or amending state electricity laws and regulations. Only state lawmakers and agencies acting pursuant to state statutes have such authority. If states ‘just say no,’ EPA is out of luck. EPA cannot impose its own plan, because the agency has no authority to enact or amend state renewable energy requirements, generation fleet dispatch policies, or demand-reduction incentives like rebates for programmable thermostats.

What’s more, as attorney Peter Glaser points out, EPA can’t even threaten to punish the state with loss of highway funding, because the Clean Air Act does not authorize sanctions for failure to comply with §111(d).

Wonderful news, though it’s not the main point of this post. Simmons provides new evidence (new to me, anyway) that the CPP’s hypothetical climate impact is too tiny measure or verify.

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Post image for How the Clean Power Plan Harms Public Health by Sucking up EPA’s Time & Energy

Earlier today, I posted CEI’s comments on EPA’s Clean Power Plan. Ours were but a drop in a sea of arguments. According to NRDC, there are 8 million submissions in support of the rule. Many millions more have been submitted in opposition to what the agency is trying to do (including ours).

For EPA, now comes the hard part. In order to render a reasoned (and, therefore, a permissible) final regulation, the agency must sift through each of these comments and respond to all unique and salient arguments. Of course, millions of these comments are “form emails,” circulated by advocacy groups. These won’t take much time at all to process. However, millions of comments will be of the detailed and technical sort that my colleague Marlo Lewis and I submitted last evening. These comments amount to scores of millions of pages—perhaps hundreds of millions—and each one is filled with complex language. Reviewing this mountain of information will require hundreds of thousands of hours of labor. This is a major reason why EPA made its regulatory regime for climate change mitigation its top budget priority.

Thus, the Clean Power Plan will dominate EPA’s attention for the foreseeable future. In the words of EPA administrator Gina McCarthy, this is an “all hands on deck” effort.

In this context, it is notable that this is a discretionary rule. Under the Clean Air Act, EPA administrator Gina McCarthy is to issue §111(d) standards (i.e., the provision that authorizes the Clean Power Plan) only when doing so is appropriate. As such, there is no statutory requirement to issue this rule. There are, however, hundreds of non-discretionary duties that the Congress required EPA to perform. Regrettably, the agency has done a terrible job of meeting its non-discretionary obligations. Since 1994, for example, EPA missed 98 percent of its date-certain deadlines (196 of 200) in three core Clean Air Act programs, by an average of more than 5 years. For all administrator McCarthy’s talk about the need to protect children from asthma, she has done a poor job of walking the walk. In fact, the agency has shown little interest in timely meeting its responsibilities to control conventional pollutants.

In light of the fact that EPA administrator Gina McCarthy has conceded that the agency’s climate change mitigation rules won’t actually mitigate climate change (because the preponderance of emissions originate outside U.S. borders), EPA’s Clean Power Plan poses a distinct threat to public health, by sucking up all the agency’s time and energy that could be spent addressing conventional pollutants.

Post image for No Brainer: Senate Should Approve Keystone XL

On Friday, the House passed H.R. 5682, Louisiana Republican Rep. Bill Cassidy’s bill to approve the Keystone XL Pipeline, by 252-161. On Tuesday, the Senate takes up North Dakota Republican Sen. John Hoeven’s identical legislation, S. 2280. As of Friday, 59 senators had publicly committed to support the bill — one vote shy of the 60 required to send the measure to the President’s desk.

The President should have approved the KXL long ago. The Keystone controversy is completely artificial — a fabrication of green politics

The State Department is the lead agency in determining whether to grant the TransCanada Corporation permission to construct the pipeline for one reason only — the project crosses the U.S.-Canada boundary line, making it technically an issue of international relations. State’s job is to determine, on behalf of the President, whether the project would serve the U.S. national interest.

TransCanada filed its first application for a cross-border permit in September 2008. It has taken State more than six years not to render a decision. Yet the issue is a no-brainer.

  • Do modern commerce and transport chiefly run on petroleum-based products? Yes.
  • Are pipelines the most economical and safe way to transport large volumes of petroleum? Yes.
  • Is Canada our staunch ally and biggest trading partner? Yes.
  • Is Canada already the largest single source of U.S. petroleum imports? Yes.
  • Would the KXL enhance the efficiency of oil transport from Canada to U.S. markets? Yes.
  • Would the KXL support tens of thousands of American jobs and add billions to the GDP during the construction period? Yes.
  • Would all the financing be private and not cost taxpayers a dime? Yes.

So how could building the KXL not be in the national interest?

According to anti-Keystone protest leader Bill McKibben, “If this thing gets built, it’s game over for the planet.” In reality, the KXL is climatologically irrelevant. As Cato Institute scientist Chip Knappenberger shows, using EPA climate sensitivity estimates, even under the unrealistic assumption that all 830,000 bpd of Canadian crude coming through the pipeline is additional oil in the global supply that would otherwise remain in the ground, the warming contribution works out to about 1/100th of a degree Celsius by century’s end. “So after nearly 100 years of full operation, the Keystone XL’s impact on the climate would be inconsequential and unmeasurable.” [click to continue…]

Headlines tout that the “U.S. and China have announced a landmark agreement to curb carbon emissions,” with the U.S. promising (to China) that it would emit 26% to 28% less carbon dioxide in ten years hence than it did ten years ago.  Naturally, under our system, for any such promise to be meaningful it requires Senate ratification under the Constitution’s Art. II, Sec. 2.  Therefore, some explanation is in order.

This promise — to China, recall — is not binding, is not intended to be binding, and will not be part of a binding promise to the rest of the world for the December 2015 Paris climate treaty talks.

This is the latest example of a new species of promise described as “politically binding”, a turn of phrase introduced in this context during the Bush years, in recognition of the fact that two-thirds of the US Senate will never agree to Kyoto-style constraints.  Shifting to “politically binding” promises also is an effort to circumvent that same reality by effectively introducing treaty commitments to the country without declaring them at customs.

Specifically, the Obama administration’s rhetorical vow is part of the shift in strategy recognizing that the successor to the 1997 Kyoto treaty must culminate with a series of “soft” commitments (those who doubt this might compare the rhetoric by pressure groups embracing Beijing with their insistence during the Bush era that nothing less than a binding pact would do).

In very short, the idea is to embed the Obama EPA’s proposed GHG rules in a series of promises to the world, mindful of “customary international law.”  Under that often gauzy notion, once commitments, however informal, rise to a certain level of recognition, a nation is bound to not violate their “object and purpose.”  So, post-Paris, options could include (according told draft pleadings produced under open records laws) activist state attorneys general turning to the court system to add law to otherwise non-binding commitments.  That would similarly afford an opening to compliant regulatory agencies enamored of the practice known as sue-and-settle.

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In a recent post, I explained how the EPA and environmental special interests entered into a collusive consent decree that would effectively require States to use air quality models to demonstrate compliance with national ambient air quality standards. Thus, unelected bureaucrats and green special interests rendered policy, in a process known as “sue and settle.”

The underlying suit, Sierra Club, et al. v. McCarthy, was filed in the United States District Court for the Northern District of California, in Oakland. This is notable insofar as the court condoned a great deal of suspect behavior.

  • For example, in the course of the lawsuit, EPA and the environmental plaintiffs (Sierra Club & NRDC) litigated to oppose intervention in the legal proceedings by the States, even though the States are responsible for implementing the regulation in question. The Bay area court sided with EPA & the greens.
  • Moreover, EPA, Sierra Club, and NRDC pointedly refused to allow States to participate in settlement discussions. Despite this seeming affront to the Clean Air Act’s cooperative federalism structure, the Bay area court accepted the consent decree.
  • Finally, Clean Air Act “agency forcing” consent decrees are supposed to be limited solely to the establishment of agency deadlines,* as I explain in this article. The Sierra Club, et al. v. McCarthy consent decree, on the other hand, was naked policy: It mandated the use of a regulation that the agency has only proposed. In the face of this apparent procedural abuse, the Bay area court gave its imprimatur to the consent decree.

All of this brings me to the point of this post: I wonder how many courts would’ve objected to consent decree, either due to its non-participatory formulation or because of its inappropriate content?

After all, federal district court judges aren’t chosen based on merit; rather, they are nominated by the President, with consideration given to the recommendation by Senators from the State whose judicial district is at issue. They are political creatures. And, given California politics, it stands to reason that the Bay area court is one of the most “progressive” in the country.

So it makes sense that environmental special interests would want to get in this court. Alas, their primary legal tactic—the Clean Air Act deadline citizen suit (whence “sue and settle”)—allows green groups to file “agency forcing” suits in any federal district court in the country (42 U.S. Code §7604(a)). As a result, the opportunity presents itself for forum shopping, and that’s exactly what environmental litigants have done.

Recently, I crunched the numbers:

…[O]f all settlements pursuant to agency-forcing citizen suits from 1997 to 2013 affecting more than three states, 26 percent ( 12 of 46) were filed in the U.S. District Court, Northern California District, based in the Bay Area.

The U.S. Chamber of Commerce, in a wider sampling of “sue and settle” cases, found a similar bias towards the plaintiffs filing in this Bay area court:

sue and settle chart

This is something to which the Congress might direct its attention. For final EPA regulations, the Clean Air Act limits jurisdiction for judicial review to the D.C. Circuit Court of Appeals. There is, however, no such requirement for deadline citizen suits. As a result, green groups are piling into arguably the most progressive court in the country, where they are operating with EPA to push the boundaries of executive power. This is suboptimal, from a policy perspective.

*This “sue and settle” process affects policy, but it does so in an indirect fashion, by giving priority to the EPA’s limited resources.

As discussed here last week, the Ivanpah Solar Electric Generating System, located about 40 miles southwest of Las Vegas in the Mojave Desert, kills butterflies, dragonflies, other insects, bats, and birds.

Tens of thousands of large mirrors (“heliostats”) focus sunlight on boilers (“receivers”) perched atop 459-foot towers. The “solar flux” field surrounding the boilers can reach temperatures of 800ºF — hot enough to melt, singe, and burn the feathers of birds that fly through it.

Ivanpah Solar Tower Glare All Three

The intense luminosity of the boilers attracts insects, which attract insect-eating birds, which in turn attract raptors. Fish & Wildlife Service (FWS) officials investigating the site observed “streamers” — trails of smoke from birds transiting the flux fields – about once every two minutes.

Ivanpah injured bird

Update: Environmental journalist Chris Clarke, who’s been reporting on avian mortality at Ivanpah since September 2013, reports that a federal study confirms that glare from Ivanpah’s heliostat arrays may create safety hazards for commercial and private aviation in the area.

Ivanpah Glare pilot hazard

In March, Ivanpah co-owner NRG Energy told Nevada aviation officials that potentially-hazardous glare was a temporary problem likely to abate once all heliostats were “calibrated” for commercial operation. But, reports Clarke, Sandia National Laboratories finds that the heliostats cause intense glare when they are in “standby position” — their default position when not aimed at the boilers. From the article: [click to continue…]

Post image for American Lung Association Manipulates ‘Maternal Instinct’ to Sell EPA Power Grab

The American Lung Association (ALA) has launched a TV and digital ad campaign touting EPA’s Clean Power Plan, also called the carbon “pollution” rule for existing power plants.

ALA’s Facebook page offers a brief explanation:

Power plant pollution is a serious threat to our health, especially to kids. Check out our new television commercial to see what we’re doing to standup for little lungs vs. big polluters.

The commercial, titled “Mother’s Instinct,” features a baby boy in a crib with a monitor that lets Mom (and us) hear him breathing.

Here’s the text:

The Clean Air Act stops polluters from poisoning his [the baby's] air with arsenic, lead, and mercury. Now the loophole that let’s them pump unlimited carbon pollution into his air is closing too . . . if polluters and their friends in Washington don’t interfere. Don’t let polluters weaken our clean air protection.

As the narrator says the words “if polluters,” the baby disappears from the screen and instead we see what looks like smoke billowing out of the stack of a coal power plant.

Fact check time. First, mercury emissions from power plants do not poison anyone’s air. When mercury emissions deposit in soils and water bodies, bacteria can transform inorganic mercury (Hg) into methylmercury (CH3Hg), an organic compound that can bioaccumlate in aquatic food webs. In theory, American women who consume hundreds of pounds of self-caught (non-commercial) fish from the most contaminated water bodies can damage the cognitive and neurological development of their unborn children. However, in the 24 years since Congress tasked EPA to study the health risks of mercury, the agency has not identified a single child whose learning or other disabilities can be traced to prenatal mercury exposure due to maternal fish consumption. But even if mercury in fish were a significant health hazard, it would still be false to claim that power-plant mercury emissions poison the air kids breathe.

The case is somewhat similar for arsenic. Inhalation is a “route of exposure” but mainly as an occupational hazard at certain types of industrial facilities that emit arsine gas. For the general population, which includes children, the main route of exposure is ingestion of contaminated food or water.

More importantly, carbon dioxide (CO2), the substance targeted by EPA’s Clean Power Plan, is non-toxic to humans and animals at multiple times today’s atmospheric concentration (~400 parts per million) or any level reasonably anticipated for centuries to come. [click to continue…]

There’s a very interesting legal argument that the Clean Air Act forbids EPA from regulating greenhouse gases from existing power plants, which is the purpose of a major climate change rule proposed by the agency on June 2. In a nutshell, the argument goes like this:

  • EPA’s climate regulatory regime for existing sources is authorized by §111(d)
  • In 1990 Amendments to the Clean Air Act, Congress barred EPA from issuing §111(d) regulations for any source category that is also subject to §112 standards for hazardous air pollution. This exclusion is found in 111(d)(1)(A)(i)*
  • In February 2012, EPA promulgated §112 standards for power plants (the ridiculous Utility MACT).
  • Therefore, EPA is prohibited from subjecting power plants to §111(d) regulations.

Environmental special interests, on the other hand, currently claim that this line of reasoning has no merit. To this end, they point to the existence of a drafting error rendered during the Conference Committee to reconcile the House and Senate versions of the 1990 Clean Air Act Amendments. According to leading environmental lawyers, there are, in fact, two versions of §111(d)(1)(A)(i) as it pertains to the §112 exclusion, and, as a result, the text is ambiguous. Statutory ambiguity, in turn, is a classic trigger for judicial deference to agency interpretation.

Consider, for example, David Doniger, Policy Director and Senior Attorney, Natural Resources Defense Council Climate and Clean Air Program. Here’s what he said about the matter at a May 23 Federalist Society event (video above):

[At the 59:20 mark] When you look at this statute, it turns out that Congress really kind of screwed up in 1990. They adopted two provisions in two different sections of the 1990 Clean Air Act Amendments that both modified the same sentence of §111(d), and the codifiers didn’t know what to do. So they tried, and picked one version of it, and put it in the US code. But it turns out that what is really the law of the land, is the Statute at Large. So you have to reconcile these two inconsistent amendments adopted at the same time to a single sentence of the CAA. If there ever was a place when the Chevron doctrine applies, it’s gotta be that, where the statute is literally a mutation in the process in dividing and combining between the House and Senate. And the agency is going to end up with the leeway to resolve that. The EPA did produce a resolution to that in the [pause] I believe it was the mercury regulations or maybe it was a recent one. And I think the Supreme Court will spend five minutes on that one.

I’ve added the formatting to highlight Doniger’s correct claim that the EPA has indeed “produce[d] a resolution” to this textual discrepancy. The agency first did so in 2005, as part of its Clean Air Mercury Rule. Briefly, EPA’s 2005 mercury rule would have exempted power plants from §112 hazardous air pollution controls, and instead subjected them to §111(d) controls for mercury. NRDC, for whom Doniger works, opposed the 2005 Clean Air Mercury Rule. And a key component of NRDC’s legal reasoning–at that time, at least–was that the Clean Air Act bars EPA from imposing §111(d) requirements on a source that is already subject to §112 standards. See for yourself: At the bottom of this post, I’ve reposted NRDC’s reply brief in opposition to the 2005 mercury standards. (See Part II, “EPA May Not Adopt §111 Standards for EGU Emissions of Listed HAPS,” p 13, where the environmental plaintiffs state that the Clean Air Act “…prohibits EPA from setting §111 standard for pollutants like mercury “emitted from a source category which is regulated under section 112”…”)

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