It’s Foreseeable That More Species Will Be Listed Under the ESA Due to Climate Change

The drumbeat of cases, either approving agency action under the ESA – or reversing agency refusal to act – due to habitat alteration resulting from climate change continues to grow.  In February, the 9th Circuit reversed a district court decision and approved the Fish and Wildlife Service’s designation of critical polar bear habitat.  In April, Judge Christensen of the District of Montana vacated FWS’s decision to withdraw a proposed listing of the wolverine.  Now, the 9th Circuit has again weighed in, again reversing a district court judge.  This time, the 9th Circuit affirmed the decision by the National Marine Fisheries Service to list the bearded seal bearded_seal_noaa-1as threatened due to “foreseeable” loss of sea ice.

These cases are beginning to reflect a pattern.  NMFS put together an expert panel.  The expert panel looked at numerous models regarding the extent of sea ice to the end of the century.  They examined the impact on a reduction of sea ice, particularly shallow sea ice, on the life cycle of the bearded seal.  They concluded that shallow sea ice would decrease substantially after 2050 (and maybe before then), and that that loss of sea ice would threaten the bearded seal.  NMFS then called in a peer review group, which confirmed the conclusions of initial panel.

As I noted in connection with the wolverine decision, agency regulation in the face of scientific uncertainty isn’t new.  As the 9th Circuit said here:

The fact that climate projections for 2050 through 2100 may be volatile does not deprive those projections of value in the rulemaking process. The ESA does not require NMFS to make listing decisions only if underlying research is ironclad and absolute. “[W]here the information is not readily available, we cannot insist on perfection: [T]he best scientific . . . data available, does not mean the best scientific data possible.”

Case closed.

As I also noted in discussing the wolverine case, the ESA may not be the best vehicle for addressing the impacts of climate change, but that’s not going to stop an increasing number of such claims making their way through the courts.  And if I may speculate for a minute, those in favor of greater protections are going to win most of these cases, at least until Donald Trump has appointed most of the federal judiciary.

EPA Must Evaluate Job Losses From Its Regulations: Blame Ralph Nader!

Last week, Judge John Preston Bailey ruled that EPA had violated a non-discretionary duty by failing comply with the requirement of § 321(a) of the Clean Air Act that it:

Conduct continuing evaluations of potential loss or shifts of employment which may result from the administration or enforcement of the provision [sic] of the Clean Air Act….

I’ve noted in the past that good lawyering matters.  Why do I repeat that now?  Because I think that Judge Bailey probably got this one wrong, but EPA and DOJ did nothing to help the government’s cause and much to harm it.  What did they do wrong?

  • First, EPA failed to acknowledge that in the early 1970s, EPA actually performed such analyses – before § 321 was even added to the CAA! – but EPA stopped for reasons EPA cannot even determine. That EPA previously performed such analysis sure makes it look as though EPA recognized their utility and their feasibility.
  • Gina McCarthy repeatedly asserted that EPA had no obligation to perform the required analyses and that such analyses would be “of limited utility.” This is an argument for Congress not to have enacted it, but it hardly justifies EPA’s noncompliance.  Moreover, these statements made EPA’s later arguments to the court that the Regulatory Impact Analysis that EPA does perform satisfies the requirements of § 321.  Instead, the Court – rightly – rejected EPA’s argument as made purely for purposes of defending the litigation.

I should note that there are serious issues about whether § 321 imposes a non-discretionary duty and whether the plaintiffs have standing.  EPA could win those issues on appeal, but it’s not obvious to me that EPA will or should.  I think EPA’s strongest argument would have been, had it been handled differently, that the specifics of the requirement are sufficiently ambiguous that EPA has leeway in how to comply and that the RIAs were and are sufficient.

And why is this mess Ralph Nader’s fault?  ralph-naderWell, in 1971, he testified before Congress that transparency on the economic impacts of EPA regulations was necessary to maintain public support.  Indeed, Nader actually proposed that Congress look into:

Requiring the Administration of [EPA] investigate every plant closing or threat of plant closing involving 25 or more workers, which he has reason to believe results from an order or standard for the protection of environmental quality.

OK, that’s not precisely what § 321(a) provides, but it’s good to be able to blame Ralph Nader for something.

FWS Goes Back to Square One On Listing the Wolverine. It’s Not Going to Be Any Easier This Time Around.

As we noted in this space in April, Judge Dana Christensen vacated the Fish and Wildlife Service’s decision to withdraw its proposed listing of a distinct population segment of the North American wolverine WolverineSnowas threatened under the ESA.  Bowing to the inevitable, the FWS has now published in the Federal Register a formal acknowledgement that the Court’s vacatur of the withdrawal of the proposed listing returns the situation to the status quo.

In other words, the proposed rule that would have listed the wolverine DPS is back in play.  Specifically, the FWS announced that

we will be initiating an entirely new status review of the North American wolverine, hugh-jackman-wolverineto determine whether this DPS meets the definition of an endangered or threatened species under the Act, or whether the species is not warranted for listing.

FWS also reopened the comment period on the proposed listing and invited the public to provide comment, identifying nine specific areas in which it sought comments, including

Information on the projected and reasonably likely impacts of climate change on the wolverine and its habitat, including the loss of snowpack and impacts to wolverine denning habitat.

This is all well and good and certainly required under Judge Christensen’s order, but neither Judge Christensen nor FWS has the tools necessary to address the core issue here, i.e., the unwieldy nature of the ESA.  It simply wasn’t designed to solve all of the ecological problems resulting from climate change.

It would be nice if Congress weren’t completely dysfunctional.

What a Surprise! Increased Renewable Energy Decreases GHG Emissions.

Yesterday, the Energy Information Administration reported that “Energy-related CO2 emissions for first six months of 2016 are lowest since 1991.”  The EIA gave three reasons for the drop in CO2 emissions.  eia-chart2

  • Mild weather. Of course, if global warming is our solution to reducing CO2 emissions, we better come up with something that works in the summer as well as the winter.
  • A decrease in coal consumption of 18% from 2015.
  • An increase in renewable fuel use of 9% from 2015. Wind supplied half the increase; hydroelectric power supplied 35%, and solar supplied 13%.

I understand concerns about how fast we need to de-carbonize the economy, but it’s better to be moving in the right direct rather than the reverse.

Massachusetts Innovates Again, This Time With New Climate Change Litigation

As an MIT grad and loyal resident (Go Sox!), I’m always happy to see stories about Massachusetts’ role in the innovation economy.  Last week, news arrived of more innovation in Massachusetts – this time on the legal front.  CLF sued Exxon Mobil for not adapting its Everett storage exxon-everettterminal to harden it against the effects of climate change.

I’ve previously raised the possibility that, at some point, citizen suits on climate change could be like tobacco litigation or marriage equality litigation, originally, dead losers that were a minor nuisance to defendants, but which ultimately became major fronts on the winning side of the issue.  I’ve also noted occasional skepticism of that possibility.

I’m right in the middle on the CLF litigation.  That’s because this is a different type of case and differences matter.  It’s about adaptation, not mitigation.  It’s about a specific facility.  And it is set squarely in the framework of existing laws and regulations.  That means that those specific laws and regulations matter.  I’ll give just one example.

While the complaint is long and complex, there is one core allegation:  ExxonMobil has not adequately planned for sea level rise, and future storms could cause significant flooding and, as a result, releases of pollutants from the ExxonMobil facility.  This may be all true and ExxonMobil has an obligation to prepare for floods.

What it doesn’t need to do, I think, is make its own judgments about sea level rise based on its expertise in climate science, and adapt accordingly.  In fact, we don’t want each individual corporation or property owner developing its own estimates of sea-level rise.

In short, that’s the government’s job.  The complaint does refer to the new FEMA flood maps.  I think it’s a fair allegation to say, if true, that ExxonMobil’s SWPPP does not reflect current FEMA flood maps.  I also think that it’s a fair defense to say, if true, that ExxonMobil’s SWPPP does address current FEMA maps and that ExxonMobil has no obligation to prepare for some hypothetical next-generation FEMA flood maps.

It thus seems to me that all the allegations in the complaint about ExxonMobil’s research on climate change are irrelevant.  This isn’t a fraud law suit, or shouldn’t be.  More broadly, I can certainly imagine many other such suits being brought, but they’re going to have to be based on provable facts.

An outlandish notion in today’s world, I know.

Stop the Presses: Nuclear Power Still Does Not Emit Greenhouse Gases

On Monday, the TVA announced that Watts Bar Unit 2 watts-barhad successfully completed what is known as its final power ascension test.  It is now producing 1,150 MW of power in pre-commercial operation.  Though EnergyWire did report it (subscription required), I would have thought this would have received more coverage.  It’s been 20 years since the last nuclear facility came online in the United States.

In case anyone has forgotten, we’re trying to reduce GHG emissions in this country.  Nuclear power – still – does not produce GHG emissions.  Nuclear power’s role in combatting climate change seems only to be more salient in light of the recent study by Washington State University researchers concluding that hydroelectric dam reservoirs are a significant source of GHGs.  According to the study, reservoirs produce the equivalent of 1 gigaton of CO2 annually, or 1.3% of all GHGs produced by humans.

If we want to be carbon-free in our energy production, that leaves solar and nuclear.  Solar has a huge and growing role to play.  But are we really going to turn our back on nuclear power as an option?  As Robert Heinlein and Milton Friedman noted, TANSTAAFL.

DOER’s Solar Incentive Straw Proposal: Optimism, Anxiety, Uncertainty.

beautiful sunrise and cloudy sky

On September 23, DOER presented a straw proposal for the next phase of Massachusetts solar incentives. DOER’s ambitious proposal for a tariff-based program reflects a thoughtful development process and a laudable goal of crafting a program that is more efficient at promoting sustained solar deployment. There is plenty to like. But, DOER has bitten off quite a mouthful by proposing a structure that departs so dramatically from the SREC approach.  Massachusetts stakeholders have seven years of experience with SRECs; a tariff-based program will be something new.

Given the novelty and complexity of DOER’s proposal, the biggest concern among solar developers may not be that DOER is unable to design a workable new program, but that DOER is unable to complete the design and implementation of its new program in time to avoid a period of policy uncertainty that stalls the development of new projects. Even aside from worry about an actual gap in incentive eligibility between the current, expiring SREC II program and the next program, an extended period of uncertainty about the details of the next program could cause the pipeline of new projects – many of which have long development cycles – to freeze up.

Some details on the proposal:

  • Projects 5 MW AC or less that are not qualified under SREC I or SREC II, that are not sited in prohibited areas, and that interconnect after January 1, 2017 would be eligible;
  • Projects would receive payments for Class I RECs through a 10-15 year fixed-price tariff that would be available from all electric distribution companies (EDCs);
  • Tariff payments would be net of the value of energy produced by the project (i.e. the tariff payments would adjust to maintain a net compensation level that takes into account the value of energy that is sold, net metered, or perhaps even used on-site) – a feature designed, in part, to avoid market disruption if net metering caps are reached;
  • Tariff payments would decline over time through a series of declining blocks (proportionally attributed to each EDC): as each block of 200 MW is filled, the tariff value for the next block would decrease by approximately 5%;
  • Tariff payments would be based on project size with the following values provided by DOER for “illustrative” purposes (capacity in kW AC, incentive in $/kWh):
    • ≤ 25 kW (low income)                     $0.35     10-year term
    • ≤ 25 kW                                          $0.30     10-year term
    • > 25 kW – 250 kW                          $0.23     15-year term
    • > 250 kW – 1,000 kW                     $0.18     15-year term
    • > 1,000 kW – 5,000 kW                  $0.15     15-year term
  • Taking a page from SREC II’s increased incentives for projects with particular off-taker and site characteristics, projects with preferred characteristics would be eligible for “adders,” which in this proposal would be cumulative – again, DOER provided “illustrative” values ($/kWh):
    • Building mounted                                      $0.02
    • Brownfield/Landfill                                     $0.03
    • Solar Canopy                                            $0.04
    • Community Shared Solar                          $0.04
    • Low Income Property Owner                    $0.04
    • Low Income Community Shared Solar     $0.06
    • Behind-the-Meter Energy Storage            $0.03
    • Standalone Solar with Energy Storage     $0.05
    • Non-Net Metered                                      $0.05

Because DOER’s straw proposal would be administered through a tariff, it would require not only new regulations from DOER, but also approval of the necessary tariffs by the Department of Public Utilities (DPU). DOER hopes to begin the implementation process by issuing emergency regulations before the end of 2016 so that the EDCs can file a model tariff with the DPU this winter. On that timeline, DOER could finalize permanent regulations in early 2017, and the DPU could approve a model tariff sometime in the Spring, alowing final tariffs to be approved at the DPU and the program to go into effect sometime in the summer of 2017.

DOER’s timeline is ambitious and assumes that the details of the program can be worked out by stakeholders without contentious diversions or disputes. Beyond getting the values right, the details of how this program would work for community solar and generation that is used behind the meter will require substantial thought.  Ongoing external processes could also complicate implementation of DOER’s proposal. For instance, the DPU is currently exploring whether to implement a “minimum monthly reliability charge” for electric customers, and the DPU is set to decide soon whether to approve a rate design proposal from National Grid that would impose new fees on some distributed generation.  Both policies have the potential to directly affect the economics of DOER’s proposal.

Given the complexities of the proposal and the tight timeline, DOER may have to implement a policy patch to prevent significant negative impacts to the project pipeline – likely some sort of extension to the current SREC II program. Whether DOER implements an interim fix or not, the next Massachusetts solar incentive program, and the policy transition thereto, will be shaped over the next few months. Comments to DOER on its proposal are due by October 28th.  Stay tuned.

MassDEP: The Rising Tide May Steal Your Development Rights

Does a pile field exist if it’s covered at high tide? 

MassDEP seems to think not.


Decaying piles in front of the Old Northern Avenue Bridge

Through the Commonwealth’s Chapter 91 program, MassDEP regulates what can be built over tidelands.  In last week’s Environmental Monitor, MassDEP announced a “Proposed Interpretation” that would prescribe the way a proponent seeking a Chapter 91 license to authorize development should define a “Project Shoreline” in the context of a historic pile field.   Under the regulations, the Project Shoreline essentially defines the outer boundaries of certain types of allowed development, with restrictions on what can be built within specific distances of that boundary.

According to MassDEP’s new interpretation, if a historic pile field is to form the basis for a Project Shoreline, the historic piles must “physically be standing in place, and must still possess some capability to perform [their] originally intended function and use.”  Stating that the function of such piles must necessarily be to “support structures and uses above the highest water elevation during the full tidal cycle”, MassDEP concludes that the structures “must remain above the highest predicted tidewater elevation” (MassDEP calls this the “Extreme High Water Mark”).  That is, an “existing pile field” would not include “any broken piles that are not visible at high water”.



The boundaries of the proposed Lewis Wharf hotel project.  [ Source: Project Notification Form]

So, hypothetically (or not so hypothetically in the case of the proponents of the Lewis Wharf hotel project), you have an old, decaying pile field that is properly licensed under the state’s Chapter 91 program.  You have been biding your time, waiting for the right market conditions to redevelop the site.   In the mean time, the piles exposed to the air begin to rot, and sea levels rise.  Before long, your pile field is not entirely above water at “extreme” high tides.  According to MassDEP, your pile field, such as it was, no longer “exists.”

This new “interpretation” raises a number of questions:

  • Is this truly an “interpretation” or is this really a new regulation, masquerading as an interpretation, and without the protections of notice and comment rulemaking?  See prior rants by Seth Jaffe in this space (here and here) concerning rulemaking by issuing interpretive guidance documents.
  • Are owners of pile fields being deprived of their development rights without due process?
  • How do you define the “extreme high water mark” and will that creep ever upwards over time?
  • Is there now a de facto obligation to maintain your piles in good condition (and keep adding inches to them to combat sea level rise) if you ever want to develop in the future?

MassDEP has opened a 30 day public comment period on the interpretation, closing October 21, 2016.   Address comments to Ben Lynch, Program Chief, Waterways Regulation Program, Massachusetts Department of Environmental Protection, One Winter Street, Boston, MA 02108 or to

RGGI Is a Success Story. When Will It Be Obsolete?

When RGGI rggilogo2was first implemented, I heard Ian Bowles, then Secretary of Energy and Environmental Affairs in Massachusetts, say more than once that the purpose of RGGI wasn’t really to reduce greenhouse gas emissions or jump start the clean energy economy.  Instead, the goal was much more modest; it was simply to demonstrate that a trading regime could work.  The RGGI states were to serve as a model, to be the laboratory of a GHG allowance system.  The hope was certainly that RGGI would succeed its way into obsolescence.  Surely, by 2016, there would be a federal statutory basis for GHG regulation.

It’s now September 2016 and a federal statutory basis for a GHG trading system remains a seemingly distant hope (this post is definitely not about the Clean Power Plan).  We may still be waiting, but we do at least have substantial data from the laboratory that is RGGI.  In fact, yesterday, RGGI released its analysis of The Investment of RGGI Proceeds through 2014.  Some highlights:

  • Power sector GHG emissions have decreased by more than 45% since 2005, while regional GDP has increased by about 8%.
  • The total value of RGGI investments reached $1.37 billion through 2014.
  • Energy efficiency has taken up 58% of RGGI investment. The report states that the expected return is $3.62 billion in lifetime energy bill savings.
  • Clean and renewable energy make up 13% of investments, with an expected return of $836 million in lifetime energy bill savings.

One can quibble with these numbers.  They don’t really provide a reliable comparison to what would have happened in the absence of RGGI.  Nonetheless, it’s pretty clear that RGGI does work.  We can reduce GHG emissions without giving up on economic growth, and we can use the regulatory process to move our energy economy where it needs to be.

Now, if someone could just figure out a way to make RGGI obsolete, that would be true success.

EPA Eliminates “But For” Causation From the Exceptional Events Rule: Tort Professors Everywhere Get Excited

On Monday, EPA promulgated amendments to its “Exceptional Events” Rule.  The rule is important, particularly in the Western states, and most particularly in connection with EPA’s latest iteration of the ozone NAAQS.  EPA’s most significant revision was to eliminate the requirement that state air agencies demonstrate that, “but for” the exceptional event, the state or relevant area would have complied with the applicable NAAQS.  The change is important for two reasons.  First, on the merits, EPA noted that:

the “but for” criterion has often been interpreted as implying the need for a strict quantitative analysis to show a single value … of the estimated air quality impact from the event. As a result, some air agencies began using burdensome approaches to provide quantitative analyses in their exceptional events demonstrations to show that the event in question was a “but for” cause of a NAAQS exceedance or violation in the sense that without the event, the exceedance or violation would not have occurred. In many cases, the “but for” role of a single source or event is difficult to determine with certainty and it is more often the case that the impact of emissions from events and other sources cannot be separately quantified and distinguished.

I think that EPA got this exactly right.  As tort professors have always known, how a burden of proof is allocated is often outcome-determinative.

Which brings me to the second reason why the change is important – at least to me.  Just hearing the words “but for” causation triggers an uncontrollable wave of nostalgia.  In 1996, my client, New England Telephone, was keetenroberternesttnawarded summary judgment in a CERCLA contribution case.  It was then the first – and may still be the only – case in which a defendant who admittedly sent hazardous substances to a site was awarded summary judgment on the ground that its wastes had not caused the incurrence of any response costs.

I like to think that NET prevailed due to the fine lawyering of its counsel, but I have always known in my heart of hearts that the identity of the judge may have had something to do with the result.  The case was heard by Robert Keeton, distinguished judge, Harvard Law professor and – importantly – one of the authors of Prosser and Keeton on Torts.

At the summary judgment hearing, Judge Keeton did not want to hear from me, even though it was my motion.  He did not really even want to hear from the plaintiffs’ counsel.  Instead, he launched into an approximately 30-minute lecture on the role of causation in tort law, including, of course, a discussion of “but for” causation.  When he finished the discussion from Prosser and Keeton about the so-called “Minnesota fire cases”, Judge Keeton paused, looked up, smiled broadly, and said:  “I wrote that part.”

It was the best summary judgment argument I ever gave.  I never said a word.

Governor Baker’s Executive Order on Change: Good News; Still Work To Be Done By MassDEP

Last Friday, Governor Baker issued Executive Order 569, “Establishing an Integrated Climate Change Strategy for the Commonwealth.”  tide-surgeEO 569 will advance climate policy in Massachusetts in a number of important ways.  It also leaves much to be accomplished by MassDEP.  Here are the highlights:

  • EOEEA and MassDOT are instructed to work with other New England and Northeastern states to develop regional policies to reduce GHG emissions from the transportation sector.
  • EOEEA and the Department of Public Safety must jointly develop a Climate Adaptation Plan within two years. The Plan will focus on what state agencies and municipalities need to do to adapt to climate change.
  • EOEEA and DPS must also develop a framework for state agencies and municipalities to assess their vulnerability to climate change.
  • MassDEP must promulgate regulations by August 11, 2017 to satisfy the Global Warming Solutions Act mandate, as interpreted by the SJC in the recent Kain decision, that would accomplish declining annual emissions from GHG sources. In doing so, MassDEP must consider:
    • Leaks from the natural gas distribution system
    • Changes to GHG permitting requirements
    • Reductions in transportation emissions, including the Commonwealth’s vehicle fleet
    • Gas insulated switchgear.

All of this is good.  Two elements of the EO are particularly noteworthy.  First, because Governor Baker was acting through Executive Order, the state Climate Plan does not do what the legislation passed by the Senate, but rejected by the House, during the last legislative session would have done – require that any future permits be conditioned on compliance with the Climate Plan.  One can hear the development community breathing a big sigh of relief.  Second, EO kicks a very large can down the road – though perhaps not as far down the road as MassDEP might have liked.  MassDEP has less than 11 months to draft, propose, take comment on, and finalize regulations to comply with Kain.

The requirement that MassDEP propose GWSA is particularly important to the regulated community.  The focus on leaks from the natural gas distribution system is shrewd.  Recent legislation had required utilities to identify such leaks, but was largely toothless on remedy.  Having DEP promulgate regulations is low-hanging fruit that will please pretty much everyone other than the utilities.  The requirement that MassDEP look at GHG reductions in the transportation sector is also important, but it bears emphasis that the EO focuses in particular on the Commonwealth’s vehicle fleet.  This may well be a recognition of the difficulty in promulgating regulations that would set declining annual limits on GHG emissions from private transportation.

All that’s left is to wish MassDEP a hearty “good luck”! in meeting the deadline in the EO.

Back to the Fracking Drawing Board for BLM? Fracking’s Risks Are Too Obvious to Ignore

Last week, Judge Michael Fitzgerald granted summary judgment to the plaintiffs in a citizen suit alleging that BLM’s usdoiblmEnvironmental Impact Statement prepared to address whether to open certain lands in California to mineral development was inadequate.  Judge Fitzgerald concluded that the EIS pretty much completely failed to address the potential risks of fracking and that, as a result, the EIS did not comply with NEPA.

Aside from three isolated and passing references to fracking in the RMP/FEIS, the 1,073-page document makes no mention of fracking at all, let alone a meaningful discussion to inform decisionmakers and the public of the attendant environmental concerns unique to fracking.

BLM made two arguments in response.  First, it asserted that there were other references “in the record as a whole.”  Judge Fitzgerald rejected this argument, because there was no evidence that BLM had met its obligation to “consider and analyze” the data – Judge Fitgerald’s emphasis.

BLM also argued that there was it was premature to analyze fracking impacts prior to any actual leasing decisions, because that analysis would necessarily be site- and project-specific.  Judge Fitzgerald’s rejection of this argument is the most important part of the decision, because this issue is commonplace in these types of decisions and will recur in other contexts, including those, such as offshore wind permitting, where the ultimate projects are generally considered much more environment-friendly than fracking.

Judge Fitzgerald first noted that there is no expectation that the EIS at this stage would provide a site- or project-specific level of analysis.  Instead, he stated:

[T]he purpose of an [EIS] is to evaluate the possibilities in light of current and contemplated plans and to produce an informed estimate of the environmental consequences …. Drafting an [EIS] necessarily involves some degree of forecasting.” (emphasis in original)). Uncertainty about which specific parcels and wells will employ fracking in the future does not obviate the necessity to evaluate the cumulative environmental consequences to the Bureau’s decision to open or maintain over one million acres of federal land in central California to oil and gas activities.

Fair enough, but the question still remains how much analysis is required at such a preliminary stage and how much deference the agency should have in answering that question.  As I noted in my post earlier this week regarding DOE’s and DOI’s National Offshore Wind Strategy, offshore wind isn’t going to flourish until developers have gained confidence that there is a reliable and well-defined regulatory process that will avoid 10 or 15 years of litigation.

Here’s hoping.

DOE and DOI Release the New National Offshore Wind Strategy: Perhaps Prosperity Is Finally Just Around the Corner

Last Friday, DOE and DOI issued an update of their National Offshore Wind Strategyoffshore-windIt’s a moderately aggressive strategy, seeking to deploy at least 86 gigawatts of offshore wind by 2050.  The report highlights both the significant opportunities and potential for growth and also some of the remaining potential roadblocks.

On the plus side:

  • The combination of fossil retirements and demand growth provide significant incentive for offshore wind development.
  • On a related point, the substitution of offshore wind for fossil generation, as a result of increased regulation, will have significant environmental benefits. Based on the government’s current estimate of the social cost of carbon, increased offshore wind generation could produce $50B in avoided costs.
  • Offshore wind could be cost competitive, at least in more expensive markets, by 2025.
  • In the longer term, offshore wind could reduce wholesale electricity prices. It can also help decrease transmission.

What are the remaining obstacles?  That’s a pretty simple summary.

  • Costs and technology risks are still too high.
  • Regulatory processes need to be standardized and confidence has to grow in a robust, yet bounded, regulatory process. As the report states:

Offshore wind developers, financiers, and power purchasers need confidence in a project’s ability to navigate regulatory and environmental compliance requirements in a predictable way.

In other words, no more Cape Wind debacles.  If developers think that they will be subject to a death by a thousand cuts – or even a few dozen law suits – it’s going to be a long time before offshore wind contributes any significant share of our generation supply.


A Lumber Mill Biomass CoGen Need Not Consider Other Fuels In Its BACT Analysis. Other Sources Should Be So Lucky.

Ever since EPA began considering how BACT analysis would be applied to greenhouse gas emissions, there has been concern that EPA would use its BACT authority to “redefine the source” – with the particular concern that BACT for a coal plant would now be to burn natural gas instead.  In Helping Hands Tools v. EPA, the 9th Circuit Court of Appeals this week gave some protection to biomass plants biomassfrom such redefinition of the source.  However, other types of facilities will get no comfort from the decision.

Helping Hands Tools involved a challenge to a PSD permit issued to Sierra Pacific for a cogeneration plant to be located at one of its existing lumber mills.  Under EPA’s BACT Guidance, Sierra Pacific stated that the purpose of the CoGen plant was to use wood waste from the mill and nearby facilities to generate electricity and heat. Relying in part on the 7th Circuit decision in Sierra Club v. EPA, which held that it would impermissibly redefine the source to require a mine-mouth coal generating plant to consider different fuels in its BACT analysis, the 9th Circuit found that EPA was reasonable in determining that, because a fundamental purpose of the CoGen plant was to burn wood waste, it would impermissibly redefine the source to require Sierra Pacific to consider solar power as part of its BACT analysis.

Importantly, the Court also rejected the plaintiffs’ request that Sierra Pacific consider greater use of natural gas.  The Court concluded that very limited use of natural gas for the purposes of startup, shutdown, and flame stabilization did not undermine the fundamental purpose to burn wood waste.  This is critical to source-located biomass facilities, because EPA’s GHG Permitting Guidance specifically says that greater use of an existing fuel should be considered in the BACT analysis:

unless it can be demonstrated that such an option would disrupt the applicant’s basic business purpose for the proposed facility.

Unfortunately, the language of the decision appears to me to give EPA substantial leeway in future BACT analyses to redefine the source in other cases.  It seems to me that, building on the 7th Circuit decision, the Court has simply created an exception to potential source redefinition in circumstances where the location of the facility justifies a very narrow fuel selection.  If a coal plant intends to burn coal from the mine next door, ok.  If a lumber mill intends to burn its own wood waste, ok.  Otherwise, however, all bets are off.

What is particularly troubling was the Court’s acknowledgement that the GHG BACT guidance is vague, and its deference to EPA’s application of its own vague guidance.  This is precisely the concern I noted when the Guidance was first issued.  Time will tell, but I foresee some fairly extreme BACT determinations being blessed by some very deferential courts.

I Hate Home Rule

Massachusetts is a Home Rule state (Commonwealth, actually, but that’s a separate issue).  Our 351 cities and towns can pretty much legislate as they please, so long as the local action is not preempted.  Our state Wetlands Protection Act specifically allows municipalities to enact their own wetlands bylaws.  The result?

Today, our Appeals Court rejected an appeal from a property owner, and instead affirmed the Wayland Conservation Commission’s conclusion that the owner’s property contains wetlands as defined under the Wayland bylaw, even though the property is apparently missing one key indicator of the presence of wetlands under federal and state wetlands regulations, i.e., hydric soils.  hydric-upland-soil-comparison

Because the Court deferred to the Commission’s interpretation of the bylaw and given also the deference bestowed by the courts on agency factual conclusions, I cannot complain that the decision was flawed.  I can, however, still ask why we need 351 different wetland bylaws.  Or why non-hydric soils with a lot of red maple and sheet flow several times a year warrant more protection in Wayland than in other locations.

Or why, if municipalities are creatures of the state (or Commonwealth!), they should be given so much independent legislative authority.  At least those on the states’ rights side of Federalism debates can point to the fact that states existed prior to adoption of the federal Constitution. Municipalities are different, however.  As the Supreme Court stated:

Municipal corporations are political subdivisions of the state, created as convenient agencies for exercise such of the governmental powers of the State as may be intrusted to them.

I suggest that we entrust (or intrust, as I guess we did in 1907) the exercise of too much regulatory authority to our municipalities.