Climate Change Summary Newsletter and Commentary
February 16, 2010
By: Steven L. Hoch
Brownstein Hyatt Farber Schreck, LLP
California
California Activists Pursue Novel GHG Challenge to Power Plant Project
NGOs are pursuing an action under state law to force California regulators to analyze and mitigate GHG emissions expected from a power plant project in Southern California. If unsuccessful environmentalists may also eye a potential challenge to EPA aimed at ensuring that the project’s GHGs are addressed through a modified prevention of significant deterioration (PSD) permit under the CAA which EPA is now reviewing. (See discussion further below re San Francisco.) At issue is a proposal to build a 558-megawatt natural gas-fired power plant in the city of Carlsbad which would support SDG&E’s local load and provide overall system reliability. In November, the CEC approved the project concluding that “significant adverse direct, indirect, and cumulative impacts would not occur, and/or can be brought to a level of less than significant.” These findings are being challenged under the CEQA wherein the NGOs are contending there is no proof the new Carlsbad facility will have a net “insignificant” GHG emissions impact, nor that it will result in lower GHG emissions from other power plants tied to the grid. Further, they contend that the approval of the project is premature, given that CEC and other officials have not yet completed studies about whether and where new natural gas-fired power plants are needed in the state, in part to facilitate new renewable power facilities. See:
One cannot help but suspect that the action is meant more to block a cleaner burning fuel to force use of GHG neutral facilities (wind, solar) in lieu of natural gas. Natural gas represents an interim solution (or perhaps even an ultimate solution depending on who you talk to) to produce power in places that are already grid accessible. There is discussion about re-engineering coal plants to use natural gas. This country has a lot of natural gas and an extensive infrastructure in tact to move it. Such plants make sense to reduce GHG emissions quickly, and to free the country from foreign oil or use of coal plants. (But see discussion below re Caterpillar, Inc.) The fact that this is not enough for some NGOs, even as an interim solution, is disappointing.
Industry Charges California Focus On Public Health Will Undermine Cap and Trade
Several major industry organizations are charging that California regulators are advancing policies that will undermine the effectiveness of a regional GHG cap-and-trade program, claiming attempts to design the scheme to protect and even improve public health go above and beyond the state’s climate change law and are at odds with efforts to minimize compliance costs. Some of these design elements include requiring facilities in “vulnerable” communities to reduce emissions of traditional air pollutants, as well as restricting the use of GHG offsets by some facilities to comply with their trading program obligations. Simultaneously, environmental organizations are pressing regulators to more aggressively advance cap-and-trade program policies linking climate change and public health, in part by identifying the communities most vulnerable to climate change, laying out restrictions on facility emissions and GHG offsets in these areas and establishing mechanisms to distribute resources and cash to protect public health. See:
http://carboncontrolnews.com/index.php/ccn/show/industry_charges_california_focus_on_public_health_will_undermine_cap_and_t/The industry groups have taken a tough position to maintain. That is, they can easily be seen as wanting something for nothing with cap and trade whether or not the program hurts certain communities. A reading of AB32 in some way supports their position, but because the entire issue can be viewed as one dealing with public health, there is ample arguments that can be made against their position. But the more important issue is creating a major change in the way energy is produced and used and in that regard, the greater goal needs to be kept in focus. That is, lowering out reliance on fossil fuel produced energy and supposedly lowering the amount of carbon dioxide in the atmosphere. We’ve said it before and will continue to make the comment that if the issue of climate change is so important that if we don’t take prompt action we will destroy the planet, then the greater good issue should prevail. Further, the greater good helps the very communities of concern anyway.
California Argues Activist Suit Against GHG Plan ‘Unripe’ For Most Claims
California state attorneys representing air regulators filed a detailed response this week to a lawsuit brought last year by environmentalists against the state’s climate change program, with California attorneys dismissing the suit as premature because many of the regulations being challenged are still being developed. But attorneys representing the activist groups are maintaining that key claims in the lawsuit are ripe for adjudication because if the state’s plan is unaltered it will result in more pollution and disproportionately impact low-income, minority communities. The lawsuit claims that the majority of the key measures included in CARB’s AB 32 “scoping plan”—which lays out dozens of GHG regulations recommended to be implemented by 2012—violate several laws, including AB 32 itself and the CEQA. The state attorney general’s office claims in the lawsuit are unripe for legal challenge because the rules contained in the scoping plan at issue have not yet been adopted or implemented by CARB, including the cap-and-trade program. See:
http://carboncontrolnews.com/index.php/ccn/show/california_argues_activist_suit_against_ghg_plan_unripe_for_most_claims/Fathoming the reasoning for this lawsuit is difficult. Best guess, it’s to force the creation of regulations that are inclined to not be balanced, but more heavily lean toward command and control in the strictest sense. The scoping plan looked at most sides of the issues it confronted, and while it didn’t succeed in all aspects of coming up with some balance approaches, it was clear that practicality was a key pivotal issue. A win by environmental groups here may alter that dynamic.
San Francisco Area Regulators Include Greenhouse Gas Caps in Plant Permit
San Francisco Bay Area air quality regulators approved a Clean Air Act permit for a power plant that includes a cap on greenhouse gas emissions. Issued under the federal law's prevention of significant deterioration (PSD) program, the permit clears the way for construction of the 600-megawatt Russell City Energy Center in Hayward, California. PSD rules require new and modified “major” sources of air pollution that increase emissions to use the best available control technology. Greenhouse gas emissions from stationary sources are not currently regulated under PSD and other Clean Air Act programs. However, if EPA finalizes proposed greenhouse gas emissions limits for cars and light trucks, as it is expected to do in March, stationary source emissions of greenhouse gases will be subject to PSD. The company building the facility states it will produce half the greenhouse gas emissions of even the most advanced coal-fired plants and 25 percent below the California Public Utilities Commission’s standard. The owner estimated the project will create 650 union construction jobs and inject “millions into the local economy.” It also will generate $30 million in onetime tax revenue and over $5 million a year in property tax revenue, the company said. As part of the project, the company also agreed to donate $10 million to help build a new public library for Hayward residents and fund San Francisco Bay shoreline programs.
See: http://www.nytimes.com/gwire/2010/02/04/04greenwire-planned-calif-power-plant-would-be-nations-fir-73676.html Permit: http://www.baaqmd.gov/Divisions/Engineering/Public-Notices-on-Permits/2010/020410-15487/Russell-City-Energy-Center.aspx
There was no indication yet about any attacks on this plant by any environmental or other group. We will follow up. But note that the EPA was proactive here to remove the PSD issues (which of course may be challenged itself) and the major impact getting the headlines is jobs, jobs, jobs.
Wind Power
A Growing Source of Clean Energy, Wind Farms Are Blowing Ill Will Among Some Neighbors
Complaints are growing from some residents living near wind facilities. “They told us that the noise at 900 feet would be no louder than the hum of a refrigerator,” says Hal Graham who lives near such a facility. But he says the reality has been far different. “We can’t sleep. We can’t watch TV. This has been a disaster for us and our neighbors.” Others complain that the turbines emit stomach-jarring whooshes and rumbles, and an impossible-to-ignore rhythmic hum that disrupts sleep and causes headaches, nausea and fatigue in some people. The growing contentiousness over the health effects of wind turbines already has resulted in some sharp legal fights —with more sure to come—over where turbines should be located and how they should be regulated. And because wind power can be harnessed most efficiently in wide-open spaces—the largest wind farms contain hundreds of turbines—the task of sorting out these issues has fallen primarily on local government bodies representing communities. Under the 10th Amendment to the U.S. Constitution, land use generally is regulated at the local level through the police power of towns, cities and counties to protect the health, safety and general welfare of their residents. Generally, a local government can’t just ban an industry outright but there’s a zoning doctrine that basically prohibits ‘exclusionary zoning’ in which a local government simply discriminates against a certain type of land use. There must be a rational reason for restricting an industry that is related to the health, safety or general welfare of the populace. But there are no national standards defining just how much noise is too much. The U.S. Noise Pollution and Abatement Act of 1972 promised to “promote an environment for all Americans free from noise that jeopardizes their health or welfare.” However, the Office of Noise Abatement and Control created to enforce the law has been defunded since the Reagan administration. See:
http://www.abajournal.com/magazine/article/the_war_of_winds/ This is an interesting aspect of renewable energy that has surfaced only recently in the press. There is of course an underlying threat of personal injury suits being filed by our friends in the plaintiffs bar. Such suits, whether successful or not, will have a chilling effect on the use of wind poser in all but very remote areas where there is no residential component to be concerned about. Of course, whether or not there is a causal connection is another story, but when it comes to personal injury lawsuits, we can guarantee that there will be sufficient testimony provided to get to a jury. But beyond that issue, the placement of such facilities will take on additional local fights and is another issue to be dealt with in moving from one energy source to another, i.e. not in my back yard.
You can track what renewable energy projects in your state are stalled for any reason by checking http://pnp.uschamber.com/
Reversing the Trend?
Utah legislators say they are concerned about potential impacts to their state’s economy from climate change—or rather, from future EPA regulations seeking to address it. Citing concerns about the effects EPA greenhouse gas rules could have on the state’s agriculture industry and other businesses, a Utah legislative committee approved a resolution Feb. 4 that urges the agency to halt its work on climate regulations. In addition to potential impacts on the economy, legislators backing the resolution cited uncertainty about the state of climate science, alluding to recent scandals surrounding the United Nations’ Intergovernmental Panel on Climate Change much-cited reports linking human activity to global warming. See:
http://www.deseretnews.com/article/700007114/Utah-legislative-panel-OKs-resolution-on-climate-change.html State Drops Out Of Regional Carbon Trading Scheme
Arizona governor Janice Brewer issued an executive order on February 11, announcing the state would not implement the GHG cap-and-trade proposal advanced by the WCI, which is set to begin on January 1, 2012. The executive order states: “Imposing costs on Arizona’s economy associated with a GHG cap-and-trade system that are not borne by national and international rivals would cost investment and jobs in Arizona and put Arizona at a competitive disadvantage without effectively addressing what is a national and global issue.” See: http://www.risk.net/energy-risk/news/1591647/state-drops-regional-carbon-trading-scheme
Given the economy and some of the recent behind the scene disclosures that have caused some in the scientific community embarrassment, this is not completely unexpected. In Utah, the reported activity is still in committee and it remains to be seen what the full legislature will do. Arizona’s reaction is of interest because it does indicate that many believe that the switch to renewable energy with cap and trade will definitely cause increased energy prices. However, there are very good arguments on the other side of the discussion that without cap and trade the increase have a greater impact on ratepayers then without it. As we have reported, the WCI will be moving forward, even it involves just California and four Canadian premises. If it looks like its working, others will jump in. If not, others will be shouting, “We told you so!”
Water
Suit Aims To Compel EPA To Weigh Climate When Setting Water Pollution Limits
Environmentalists are moving forward with long-stalled litigation aimed at requiring regulators to consider the role of climate change when setting pollution limits for impaired waters, known as total maximum daily loads (TMDLs), after settlement negotiations stalled. The litigation, Conservation Law Foundation v. EPA, is challenging the agency’s approval of a Vermont phosphorus limit on Lake Champlain in a novel effort to force regulators to consider climate change and its impacts on wet weather flows when setting the TMDL for the lake. A TMDL is a measure of the maximum amount of a pollutant that a water body can withstand without violating water quality limits. If successful, the suit could establish a new bar for how regulators set TMDLs, which limit discharges from both point and non-point sources into impaired waters. In some cases, consideration of climate change impacts could result in significantly stricter discharge limits, such as when increased precipitation could result in increased levels of polluted runoff. But in cases where climate change creates drier conditions, it could result in less runoff and fewer pollutants contributing to impairment or increased concentrations of pollutants. At issue in the case is whether EPA had the available data to consider the impacts of climate change in the TMDL, first issued by the Vermont Department of Environmental Conservation in 2002. Conservation Law Foundation says it has evidence that the agency was at the time fully aware of the future effects of climate change on water flows and activities in the lake, and should have taken that into account in the TMDL, even if the issue was not raised by commenters at the time. See:
http://carboncontrolnews.com/index.php/ccn/search_results/8123a60e4b535f57035f59af0924bca2/This is an interesting issue. Making what would amount to a matrix to determine what TMDLs should be applied given the possible and variable climate change circumstances may exist in any given location is likely impossible. The alternative is to look only at the worst case scenario and plan accordingly. That worst case scenario is lower flow and/or levels. This of course, would mandate lower levels of TMDLs because there is less dilution or physical area of the water way or water body itself. This will also require an inordinate expense to meet TMDLs to meet limits that may not be necessary. That is perhaps the reasoning behind the suit, i.e. get more restrictive limits using climate change as an excuse.
Modeling
An international team of scientists is working to improve scenarios of future emissions growth that underlie major climate reports. The idea is to create a more realistic range of "what if?" futures that could help policymakers better understand how to achieve different climate targets. The effort, under the auspices of a global effort called the Integrated Assessment Modeling Consortium, is to improve scenarios developed in 2000, which the group used in its 2001 and 2007 reports. Scientists involved with the project published an essay yesterday in the journal Nature outlining their approach, which was also the subject of a recent workshop convened by the National Academy of Sciences. See:
http://blogs.nature.com/climatefeedback/2010/02/ipcc_in_need_of_a_rethink_1.html Climate modeling is the basis for all predictions which substantiate the various impacts of climate change. Like all such models, they are based on numerous assumptions and guestimates to substitute for precise data that is not known. Compounding this is the fact that modeling climate is, in and of itself, a very difficult undertaking due to the sometime chaotic nature of the climate and weather patterns themselves. What the real basis of this move really is relates more to a political issue then a scientific one. Many of the models produced today portray a doomsday scenario unfolding fairly quickly. This not only appears to be untrue, but in the face of current winter weather patterns not only in the Untied States, but in many other countries as well, the models used cast a pall over the publics willingness to agree there is a problem let alone what should be done with it. It really doesn’t look like doomsday!
Clean Coal
Caterpillar Inc. Joins Industry and Government Partnership to Deliver State-of-the-Art Clean-Coal Technology
Caterpillar Inc. today announced its intent to join the FutureGen Alliance, a public-private partnership established to build a first-of-its-kind coal-fired, near-zero emissions power plant in Mattoon, Illinois. The FutureGen facility is designed to be the cleanest coal burning plant in the world and will integrate advanced technologies for coal gasification, electricity production, emissions control, CO2 capture and permanent storage and hydrogen production on a commercial scale. The FutureGen plant is a 275-megawatt integrated gasification combined-cycle power plant. It will be capable of powering about 150,000 homes. The DoE will provide more than $1 billion in funding to the project. Researchers and industry experts have made great progress advancing technologies for coal gasification, electricity generation, emissions control, and CCS and hydrogen production. But these technologies have yet to be put together and tested at a single plant - an essential step for technical and commercial viability. See:
http://online.wsj.com/article/PR-CO-20100208-904074.html?mod=wsjcrmain andhttp://www.futuregenalliance.org/
Getting $1 billion form DoE doesn’t hurt! But importantly, if there is a clean coal system that can work economically and efficiently, it would be great. This country has a huge supply of coal, which still is the major source of fuel for power plants. If there is a successful technology it would help out in both transition but also immediately reducing GHG emissions. It does not appear at this time that this specific project has gotten to far in terms of meeting its 2012 goal. So what challenges legal and otherwise may occur remain to be seen.
No comments:
Post a Comment