BOEM Announces Upcoming Wind Energy Lease Auction in the New York Bight; New York’s Next Offshore Wind Solicitation to Follow

Today, January 12, 2022, the Bureau of Ocean Energy Management (BOEM) announced that on February 23, 2022 it will hold a wind energy lease auction for six areas in the New York Bight (NY Bight), the coastal area between Long Island and the New Jersey coast. BOEM’s issuance of the Final Sale Notice (FSN) for the wind energy lease areas comes just days after New York State Governor Kathy Hochul announced in her State of the State address that the New York State Energy Research and Development Authority (NYSERDA) will issue its next offshore wind solicitation following BOEM’s lease sale in the NY Bight.… More

DOJ Doesn’t Know How to Declare Victory

According to Inside EPA (subscription required), the Department of Justice (and the Sierra Club) have opposed Ameren’s Missouri’s motion to allow it to close its Rush Island generating facility early, rather than install otherwise required pollution control equipment.  You may ask why DOJ is opposing the shutdown of a coal-fired power plant.  Like Tevye in A Fiddler on the Roof, I’ll tell you. 

I don’t know.

What really blows my mind is that the government has apparently acknowledged the environmental benefits of an earlier shutdown:

The filing adds that while the United States agrees that the plant’s retirement will have environmental benefits compared to its continued operation, the motion “should be denied because it usurps the Court’s authority to set the compliance date in favor of a drawn-out process engineered by Ameren.”

The Inside EPA story did not attach or link to the DOJ brief and I have not read it.  It is certainly possible that this is simply a negotiating gambit by DOJ, hoping to force Ameren Missouri to agree to an earlier shut-down.  However, I fear that it is also all too possible that DOJ is simply on its moral high horse and wants Ameren Missouri to pay penance for conduct that DOJ sees as not simply violating the CAA, but as immoral.

DOJ needs to learn how to graciously accept victory.

Climate Policy at 30: Glasgow Climate Pact.

Each year since 1995, with the exception of 2020, the United Nations Framework Convention on Climate Change (UNFCCC) has hosted a Conference of Parties (COP), where members of the UNFCCC negotiate issues relating to reducing greenhouse gas emissions and other matters relating to climate change.  The 26th COP concluded in Glasgow on November 13 with a Climate Pact that continues the evolution of global climate policy over the past 30 years.… More

Foley Hoag to Host Webinar on New York’s Climate Plan

On January 12 and 13, Foley Hoag attorneys will lead a series of discussions about the significance of New York Climate Action Council’s recently-released draft Scoping Plan to the state’s continuing clean energy transformation. Richard Kauffman, Chairman of the New York State Energy Research and Development Authority, will provide keynote remarks. The draft Scoping Plan, which we discussed in a recent blog post, describes the market-based solutions and government actions that will be needed to achieve the ambitious climate goals set forth in the Climate Leadership and Community Protection Act.… More

BERDO Implementation Picks Up Speed — Better Get Ready

On Monday, Boston released a draft of the first phase of regulations intended to implement the amended BERDO ordinance signed by then-Mayor Janey in October

The first phase of the regulations is focused only on reporting issues.  It will address

  • Reporting Requirements
  • Third-Party Data Verification Requirements
  • Preservation of Records

The rationale for this narrow focus is that the City wants these regulations in place promptly, in time for reporting in Q2 2022.

The “informal” public comment period on the draft regulations will remain open until January 14.  Comments can be provided here.  The Air Pollution Control Commission will later hold a “formal” public comment period at a time TBD.

The “Regulations Development” outline does not provide a timeline for Phase II of the regulations.  That’s where the meat of the regulations will be set forth.  Phase II will include provisions governing the standard emissions factors; alternative compliance mechanisms; how to establish either hardship emission limits or compliance timelines; and exemptions.

It’s not exactly profound to note that there’s a lot to do to get to net zero.  BERDO is just one small piece, even if it’s an important piece for Boston.  I do want to pose one question, though.  Do we need a rigorous set of GHG emission limits for buildings and also a separate ordinance banning use of natural gas in new buildings?  If we’re going to the trouble of establishing stringent emissions limits that will ratchet down to zero, why do we need that prohibition?

In any case, stay tuned.  I’m tempted to advise stakeholders to fasten seatbelts, because it’s going to be a bumpy ride.  However, it’s the holiday season and we all desperately need reasons for optimism, so instead I’ll just say Get Ready.  (And if that doesn’t make you smile, then Jack, You’re Dead!)

New MEPA Rules Mean Big Changes For Practitioners and Developers

In compliance with the Climate Roadmap Act, the Massachusetts Environmental Policy Act (MEPA) Office has released the final version of its new regulations and two final protocols regarding new MEPA review procedures to evaluate project impacts on Environmental Justice (EJ) populations.  The regulations will go into effect on December 24, 2021 and the two protocols will go into effect on January 1, 2022. Here are the big takeaways:

The MEPA Regulations

The new MEPA regulations include six new definitions: Designated Geographic Area,… More

New York Climate Action Council Approves Draft Scoping Plan to Achieve the Climate Leadership and Community Protection Act’s Greenhouse Gas Emissions Reductions

On December 20, 2021, the Climate Action Council (“Council”) approved the release for public comment of its draft Scoping Plan, which describes how New York can achieve the requirements of the Climate Leadership and Community Protection Act (“CLCPA” or “Climate Act”): 70% renewable electricity consumption by 2030, 100% zero-emission electricity consumption by 2040, a 40% reduction in statewide greenhouse gas (GHG) emissions by 2030, an 85% reduction in statewide GHG emissions by 2050,… More

New York Releases Much Awaited Roadmap for Deploying 10 Gigawatts of Distributed Solar by 2030

Can New York State satisfy nearly 30 percent of its electricity needs with solar projects less than five megawatts in size by the year 2030? In September of this year, Governor Hochul announced a framework to do just that, setting 10 gigawatts (GWs) of deployed distributed solar by 2030 as the goal, enough to power 700,000 New York homes – even more than the 2019 Climate Leadership and Community Protection Act’s (CLCPA) six-GW deployment requirement.… More

The Internal Combustion Engine Is Bad For Your Health — What Should We Do About It?

I’ve written a lot about how the developing science around particulate exposure supports making the PM2.5 NAAQS more stringent.  So it won’t come as a surprise that a new study published in the Proceedings of the National Academy of Sciences indicates that the benefits of on-road emissions reductions from 2008 to 2017 could be measured in the hundreds of billions of dollars and almost 10,000 fewer deaths.  The authors go on to note that more stringent regulation would provide additional benefits in economic savings and reduced mortality. 

It’s pretty clear to me that the study supports lowering the PM2.5 NAAQS.  However, I think it does more – it supports getting rid of the NAAQS system completely.  The Clean Air Act requires that NAAQS be set to protect the public health “with an adequate margin of safety”.  Unfortunately, the PNAS study suggests – and this is not unique to particulate pollution – that the level that would truly provide “an adequate margin of safety” is probably very low, i.e., much lower that any levels currently under consideration by EPA.

The problem with the NAAQS approach is that, once the NAAQS is set, regulators and the regulated community only have an incentive to control emissions to reach or maintain the NAAQS.  If we acknowledge that there are adverse impacts resulting from ambient concentrations below the NAAQS, we should want to provide incentives to the regulated community on a continuous basis.  Imposing standards that set a NAAQS and then saying “Thou shalt not violate the NAAQS” fail to provide any incentive for continuous improvement.

I don’t pretend to be the first person to notice this flaw in the system.  Among the many smart people who have addressed this issue is my friend Dan Esty, whose article “Red Lights To Green Lights: From 20th Century Environmental Regulation To 21st Century Sustainability” focuses in large part on making changes to our regulatory system so as to provide continuous incentives for reducing pollution.

Spoiler alert:  There’s a tried and true means for doing so.  It’s called the market.

It’s time to lower the PM2.5 NAAQS.  It’s also time to replace the NAAQS approach itself with something better.

Another Nail In Coal’s Coffin

I’m not sure it’s even really news at this point, but earlier this week Ameren Missouri announced that it would close its Rush Island Energy Center generating plant early, rather than spend the money to install flue gas desulfurization technology in response to an injunction issued after the District Court found that the Rush Island facility had violated the Clean Air Act.  As Ameren noted in its filing with the Court: 

Retiring Rush Island early will have a much more beneficial environmental impact, on a far shorter timeframe, than installing wet flue gas desulfurization (“FGD”) technology and continuing operations.

Ameren made clear that turning of the switch “is not a simple matter.”  Ameren needs permission from the Midcontinent Independent System Operator and there are reliability issues associated with the shutdown.  However, Ameren has indicated that it will shut down no later than the date provided in the court order for the installation of FGD at Rush Island.

It’s worth noting that, aside from its discussion concerning the negotiations with MISO, Ameren’s brief in support of its new position almost could have been written by the Sierra Club or EPA.  Shutting down coal-fired generation, even in St. Louis, Missouri, is now mom and apple pie.  My memory may not be what it used to be, but I seem to recall that it was not that long ago when the “war on coal” was an attack on Western civilization itself.

That coal is now going out with little more than a whimper gives me hope that opposition to measures to address climate change may also fade away faster than currently seems possible.

Is It Finally Lights Out for the Incandescent Light Bulb?

Last week, the Department of Energy released a proposed rule that would be the death knell for the incandescent light bulb.  The proposed rule would implement the so-called “backstop” provisions of the Energy Policy and Conservation Act, and impose an efficiency standard for general service lamps of 45 lumens per watt.  In short, incandescent bulbs operate at efficiencies well below 45 lm/W and thus could not meet the new standard.

The legal issues behind the rule are about as arcane as administrative law gets and I’m not going to get into those issues here.  Instead, I want to emphasize two facts that I’ve been aware of for some time, but which I still find to be moderately amazing.  First, while I’ve seen different statistics, it is clear that incandescent bulbs generally turn less than 10% of the energy they receive into light, and it can be 5% or even lower.  Remember the historical claims that nuclear power was going to be too cheap to meter?  For years, the incandescent bulb was too cheap for people to care how wasteful it was.

The second fact, according to some commenters in the rulemaking, is that, for each month DOE delays in implementing the 45 lm/W standard, 800,000 tons of CO2 will be emitted over the lifetime of all of the bulbs sold during that month.  That’s a pretty mindblowing statistic.

To me, the most significant issue here is, once again, the role of externalities and the power of definitions.  Since the invention of the light bulb, we’ve been wasting huge amounts of electricity.  This might seem perplexing, because one thinks of engineers as being pretty good at not being wasteful.  However, it’s all a matter of definition, and that’s where the role of externalities come in.  In our wonder of an economy, nothing counts as a waste until a cost is attached to it.  Because no one has ever cared about the cost of the inefficiency of the incandescent bulb, it did not matter.  Indeed, it’s as though it did not exist, because no one assigned a cost to that inefficiency.

The time has come to really put engineers to work to root out the inefficiencies in how we generate light.  The DOE rule will help kickstart that effort, though I note that it provides no incentive to design a bulb that produces more than 45 lm/W.

CASAC Signals that a Lower PM2.5 NAAQS Is On the Way; It Can’t Come Too Soon

The momentum continues to build for a more stringent National Ambient Air Quality Standard for PM2.5.  In June, EPA announced it would revisit the Trump Administration’s decision to keep the PM2.5 NAAQS at 12 ug/m3.  In early October, EPA staff released a supplement to its assessment of the PM2.5 NAAQS.  That supplement also supported a more stringent standard. 

Now, the Clean Air Science Advisory Committee is about to weigh in.  According to Nexis Newsdesk (subscription required), a “large majority” of CASAC members expressed support for a standard comfortably below the current standard.  If I were a gambler, I’d bet that EPA lands somewhere between 8 ug/m3 and 10 ug/m3.

Whatever EPA does, I’ll make two further predictions.  First, as long as EPA picks a number that is not below 8 ug/m3, any challenge to the new standard that argues that the new standard is too stringent will lose.  Even before judges appointed by Trump.

Second, the next time EPA assesses the PM2.5 NAAQS, the question will only be should it be made even more stringent; we’re not going to see a boatload of evidence that EPA’s new standard is overly protective.

This thing is only headed in one direction.  And I continue to hope that we succeed in moving towards an economy with no fossil emissions, because – and here’s yet another prediction – the calculation of the co-benefits of eliminating fossil emissions is only going to grow over time.

The Future of Plastics Has Been Bright; Can We Keep It That Way?

It has now been more than 50 years since the iconic moment in The Graduate where Mr. Maguire tells Ben that “there’s a great future in plastics.”  Truer words have never been spoken.  The release this week of “Reckoning with the U.S. Role in Global Ocean Plastic Waste by the National Academies of Sciences Engineering and Medicine demonstrates just how prescient Mr. Maguire was. 

Reckoning states that from 1966, one year before the Graduate was released, to 2015, global plastic production increased from 20 million metric tons to 381 million metric tons.  By any measure, that’s a lot of plastic.  And as Reckoning makes clear, much of that plastic ends up in the oceans:

Despite limitations in complete quantification of plastic waste to the ocean, it is clearly ubiquitous and increasing in magnitude.

To skip to the bottom line, Reckoning recommends that:

The United States should create a coherent, comprehensive, and crosscutting federal research and policy strategy that focuses on identifying, implementing, and assessing equitable and effective interventions across the entire plastic life cycle to reduce U.S.  contribution of plastic waste to the environment, including the ocean.

I agree with this as a broad recommendation.  And yet we have to remember that there’s a reason why use of plastics has grown so dramatically.  They really are miracle products.  We’re not going to address the impact of plastic pollution unless and until we acknowledge how useful they are.

I feel very much like a broken record, but any “coherent, comprehensive, and crosscutting … policy strategy” has to include mechanisms for identifying the costs imposed by plastic pollution and internalizing those costs into the price of plastics.  If we can do that, we can continue to enjoy the benefits of plastics while at the same time addressing their environmental costs.

EPA Proposes to Use Science to Identify Waters of the United States. I’m Shocked, Shocked.

Last week, EPA and the Army Corps proposed a new rule to define what constitutes “waters of the United States.”  Déjà vu all over again.

Under the proposal, the agencies:

are exercising their discretionary authority to interpret “waters of the United States” to mean the waters defined by the longstanding 1986 regulations, with amendments to certain parts of those rules to reflect the agencies’ interpretation of the statutory limits on the scope of the “waters of the United States” and informed by Supreme Court case law. Thus, in the proposed rule, the agencies interpret the term “waters of the United States” to include: traditional navigable waters, interstate waters, and the territorial seas, and their adjacent wetlands; most impoundments of “waters of the United States”; tributaries to traditional navigable waters, interstate waters, the territorial seas, and impoundments that meet either the relatively permanent standard or the significant nexus standard; wetlands adjacent to impoundments and tributaries, that meet either the relatively permanent standard or the significant nexus standard; and “other waters” that meet either the relatively permanent standard or the significant nexus standard. The “relatively permanent standard” means waters that are relatively permanent, standing or continuously flowing and waters with a continuous surface connection to such waters. The “significant nexus standard” means waters that either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, or the territorial seas (the “foundational waters”).

I think that the agencies did a pretty good job in tying their science-based approach to specific language in the statute in an effort to defuse arguments that the proposal goes beyond the reach of the statute.  What SCOTUS will make of WOTUS is another matter.

My friend Jeff Porter just wrote an excellent post about the proposed rule in which he refers to “that pesky commerce clause.”  Notwithstanding Jeff’s excellent post, I just don’t see the Commerce Clause as an obstacle (which is not the same as whether SCOTUS will use the Commerce Clause as an excuse to kill a rule that a majority doesn’t like).  Assuming for the moment that the science is right, does anyone really think that the Commerce Clause is not sufficiently expansive to provide the agencies with authority to protect these waters?  My SCOTUS nomination isn’t coming any time soon, but it just seems obvious to me that this regulation is not unconstitutional.

I think that the statutory interpretation issue is closer.  The question there is what a court does when the clearly expressed requirements of the statute mandate this kind of rule, but promulgating the rule just seems to stretch the term “navigable waters” beyond what anyone can really imagine as the limits of that term.

Another Reminder How Difficult It’s Going to Be to Get to Net Zero

Yesterday, the Baker administration announced that the Transportation Climate Initiative is dead in Massachusetts, at least for now.  This is not a surprise, particularly after Governor Lamont’s statement that there is no political support for TCI in Connecticut.  It is difficult to implement a region-wide program to reduce carbon emissions from transportation fuels when only one state in the region is prepared to do so. 

The administration tried to put the best face on the failure of TCI, suggesting that money from the infrastructure bill will help Massachusetts improve its transportation system in a way that will reduce GHG emissions.  Good luck with that.  The infrastructure bill money is great, but it’s barely going to make a dent in GHG emissions

The problem is pretty simple.  People aren’t willing to pay the cost to eliminate GHG emissions from transportation.  Unfortunately, the cost of those emissions keeps piling up every time anyone fills their gas tank.  The problem has a name.  It’s not new or complicated.  It’s called an externality.  We’re not avoiding the cost associated with carbon in fuels by failing to implement TCI.  We’re just incurring the cost in extreme weather and rising sea levels, rather than by paying more for gas at the pump.

That’s not a good long-term tradeoff.