Twenty-two states, six cities and the District of Columbia on Aug. 13 sued in federal appeals court to challenge the Affordable Clean Energy rule, the Clean Power Plan replacement that the Environmental Protection Agency finalized on June 19.
The suit, filed in the U.S. Court of Appeals for the D.C. Circuit, alleged the rule violates the Clean Air Act.
Separately, 10 environmental organizations, including the Natural Resources Defense Council and Sierra Club, also filed suit against the rule in the D.C. Circuit court.
The rule "fails the tests of law and economics," California Air Resources Board Chair Mary Nichols said in a news release from California officials.
The rule "attempts to artificially narrow the EPA's regulatory authority under the Clean Air Act, which runs contrary to Congress' intent that the EPA have broad authority to address monumental sources of energy and air pollution," an announcement from California Attorney General Xavier Becerra said.
Becerra, one of 23 AGs who signed on to the litigation, said the rule would do too little to reduce carbon dioxide emissions from power plants by unlawfully not requiring "best systems of emission reduction."
Other Western states that joined the lawsuit include Colorado, New Mexico, Oregon and Washington. Six cities joined, including Los Angeles and Boulder, Colorado.
New York Attorney General Letitia James said the rule's reliance on efficiency upgrades at coal-fired power plants would result in emissions reductions falling far short of cuts the Clean Power Plan would have achieved. James said ACE would result in CO2 emissions reductions of 11 million tons from power plants by 2030, compared with an estimated 415 million tons of cuts from the CPP.
The ACE rule gives states leeway to decide on CO2 emissions standards. States may consider the "remaining useful life" of power plants in setting standards. Under the rule, states will have three years to submit plans for reducing emissions through facility-specific requirements.
The CPP, which was stayed by the Supreme Court in 2016 and never implemented, adopted emissions performance standards for coal- and gas-fired plants and set emissions-reduction targets for states to meet with enforceable plans that could include steps such as dispatching gas ahead of coal and increasing acquisition of renewable resources. The CPP set a nationwide power plant emissions-reduction target of 32 percent below 2005 levels by 2030.
CPP opponents said the rule amounted to EPA dictating grid operations by regulating power plant emissions beyond its regulatory fence lines, which they argued overstepped EPA's authority.
The ACE rule is backed by coal-industry groups. When EPA finalized the rule, the National Mining Association said it provides "a clear, legal pathway to reduce emissions while preserving states' authority over their own grids."
States Vow ESA Rules Battle
Two state attorneys general, including California's Xavier Becerra, on Aug. 12 vowed to fight the Trump administration's revamping of rules implementing the Endangered Species Act.
Becerra and Massachusetts Attorney General Maura Healey said they plan a court challenge.
Environmental organizations also are likely to sue. "We'll see the Trump administration in court," Drew Caputo, Earthjustice's vice president for land, wildlife and oceans litigation, said.
The new regulations, issued jointly by the Interior and Commerce departments, will take effect 30 days after publication in the Federal Register.
Interior Secretary David Bernhardt said the changes would make implementation of the law more efficient. "An effectively administered act ensures more resources can go where they will do the most good: on-the-ground conservation," he said in a statement.
Congressional Democrats attacked the rules as a rollback that would weaken wildlife protection. "This is one of the worst environmental moves by any president," Sen. Maria Cantwell (D-Wash.) said.
Rep. Raúl Grijalva (D-Ariz.), chairman of the House Natural Resources Committee, said the revisions would allow agencies to ignore long-term threats to species, such as climate change, and exempt unoccupied habitat from critical-habitat protections.
Sen. Tom Udall (D-N.M.) said, "We will consider stopping these regulations by any means—including the Congressional Review Act," a statute under which Congress can overturn regulations through a joint resolution. Such a resolution would have uncertain prospects, however, in the Republican-controlled Senate, and President Donald Trump would likely veto a resolution that passed Congress.
Republican lawmakers said the revisions would modernize regulations for carrying out the 1973 law. Rep. Rob Bishop (R-Utah), ranking Republican on the House Natural Resources Committee, said, "These final revisions are aimed at enhancing interagency cooperation, clarifying standards and removing inappropriate, one-size-fits-all practices."
Sen. John Barrasso (R-Wyo.), chairman of the Senate Environment and Public Works Committee, labeled the revisions a "good start," but called for legislation to "modernize" the ESA. Barrasso last year introduced a discussion draft of a bill that would give states a leading role in carrying out species-recovery plans.
The revisions drew praise from industry organizations, including the Western Energy Alliance, a trade group of oil and gas producers, and the American Petroleum Institute. The API noted the changes would promote "transparency" by disclosing the economic impacts of listings.
Michael Drysdale, an environmental attorney for the law firm Dorsey & Whitney, said the changes "are unlikely to have much effect on the day-to-day application" of the law.
The revised regulations, initially proposed July 25, 2018, would drop blanket protections under which the U.S. Fish and Wildlife Service automatically grants to species on the threatened list most of the same protections endangered species receive. Instead, the USFWS would issue "species-specific" rules, similar to the approach the National Marine Fisheries Service takes for ocean fish species on the threatened list.
A comment letter that Becerra and nine other attorneys general filed in September 2018 said the change "would leave threatened species without protections necessary to promote recovery."
Also, the revised regulations scaled back criteria under which the USFWS and NMFS can include under "critical habitat" areas unoccupied by listed species. The new regulations say the unoccupied areas can be included only if they are determined to be "essential for the conservation of the species." In a statement, USFWS said the change "reduces the potential for additional regulatory burden."
The AGs' comment letter said narrowing criteria for including unoccupied areas in critical habitat could limit protections needed for responding to climate change and other long-term threats.
The regulations revise the definition of "foreseeable future" for purposes of determining whether a species should be added to the threatened list. The statute defines a threatened species as any that is "likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range."
The revised regulations define "foreseeable future" as extending "only so far into the future as the services can reasonably determine that both the future threats and the species' responses to those threats are likely." The term "foreseeable future" would be described case by case for each species considered for addition to the threatened list.
FERC Makes Rock Island Early-Action Determination
The Federal Energy Regulatory Commission on Aug. 9 made an "early action" determination for Chelan County Public Utility District's Rock Island hydroelectric project in Washington state, the first such finding made under 2018 legislation aimed at spurring investments in hydro projects.
Chelan PUD filed a request for an early-action determination on June 10, asking FERC to take into consideration its investments in efficiency upgrades and fisheries projects during the next relicensing proceedings for Rock Island. The early-action provision was folded into broad water-projects authorization legislation, S. 3021 of the 115th Congress.
FERC determined that Chelan's $622-million investments in Rock Island's powerhouses 1 and 2, $4 million in planned spillway upgrades, and 2004 implementation of a habitat conservation plan "appear to meet" the requirements of the law. Chelan said it has spent $44 million on fish-passage studies, hatchery construction and operations, tributary protection and restoration, predator control, and ongoing fish-passage maintenance.
The commission said it could not make an early-action finding for $40 million in planned upgrades of office, warehouse, and storage facilities, but added that the PUD could submit additional information during relicensing proceedings.
Under the law, enacted Oct. 23, 2018, FERC must give equal weight in relicensing proceedings to upgrades that would comply with new license terms and upgrades beyond existing license terms that have improved capacity and efficiency, improved safety, or resulted in environmental protection or mitigation.
Chelan argued it has made investments in Rock Island beyond the requirements of the 40-year license the project received from FERC in 1989.
Chelan pushed for the legislative change for five years. When the bill was signed into law, PUD General Manager Steve Wright said, "Congress has recognized that it is good public policy to encourage hydropower licensees to make new investments during the existing hydro license term, rather than waiting for relicensing."
Lithium-Ion Batteries Face Tariffs
Lithium-ion batteries imported from China face 10-percent tariffs on Sept. 1, according to a list released Aug. 13 by the U.S. Trade Representative's office.
The Energy Storage Association raised concerns that battery tariffs could hamper development of grid storage projects.
Kelly Speakes-Backman, the group's CEO, called on the trade representative to exempt lithium-ion batteries from tariffs because of their role in "electric-system resilience and energy security."
The list was published in connection with the Trump administration's announcement that imposition of tariffs would be delayed until Dec. 15 for some consumer products that are high-demand items for the holiday shopping season, including cellphones, laptop computers, game consoles and toys.
Other energy products on the Sept. 1 list include nickel-cadmium batteries, except those used in electric vehicles; electric instantaneous-storage water heaters; and electrical-filament lamps, designed for voltages both below and exceeding 100 volts.
Trump on Aug. 1 threatened to impose tariffs on $300 billion worth of Chinese goods exported to the U.S. starting Sept. 1, which would expand charges to virtually all products U.S. consumers and businesses buy from China.
The U.S. currently levies 25-percent tariffs on $200 billion worth of Chinese goods, including a broad range of energy goods and consumer appliances. In retaliation, China levies tariffs on $60 billion worth of U.S. goods, including a 25-percent charge on liquefied natural gas.
EIA: PV Imports Partially Recover After Tariffs
Imports of silicon solar-photovoltaic cells and modules have partially recovered from a low that followed imposition of tariffs in 2018, the Energy Information Administration reported Aug. 13.
Monthly imports averaged 644,000 kW in the first four months of 2019, up from a low below 300,000 kW after the tariffs took effect in February 2018, EIA said.
In the last six months of 2017, imports averaged nearly 1.08 million kW per month, according to EIA figures.
Trump approved a four-year tariff, starting at 30 percent for the first 12 months, then stepping down 5 percentage points per year for the remaining three years. The first 2.5 GW per year of imported cells are exempt from the duties.
DOE to Open Advanced Nuclear Center
The Department of Energy is launching a center for private companies to experiment with advanced nuclear energy technologies, DOE announced Aug. 15.
DOE said the Nuclear Reactor Innovation Center, to be housed at the Idaho National Laboratory, would help nuclear firms test and demonstrate reactor concepts, validate technologies, and overcome technical obstacles, shortening the time needed for licensing and commercialization.
DOE said legislation enacted last year, S. 97 in the 115th Congress, authorized a center to allow private companies to carry out nuclear research partly or wholly at their expense. The law, sponsored by Sen. Mike Crapo (R-Idaho), also authorized DOE and the Nuclear Regulatory Commission to support the research by sharing technical information.
House Dems Urge Automakers to Join California Deal
Eight House Democrats, including two Californians, on Aug. 15 urged 14 automakers to join the tailpipe greenhouse gas emissions standards agreement four other car manufacturers struck with California last month.
The eight lawmakers, including Californians Alan Lowenthal and Doris Matsui, sent letters to CEOs of Aston Martin, Fiat Chrysler, General Motors, Hyundai, Jaguar, Kia, Mazda, Mercedes-Benz, Mitsubishi, Nissan, Porsche, Subaru, Toyota and Volvo.
Last month, California reached a "framework agreement" with BMW, Ford, Honda and Volkswagen to meet year-over-year increases in GHG tailpipe emissions limits at a nationwide annual average of 3.7 percent, from model years 2022 through 2026. Of the 3.7 percent, 1 percent of the annual improvement could be covered through credits earned by selling electric vehicles, including battery, hybrid, plug-in hybrid or fuel-cell drives.
The agreement also recognizes California's authority to establish its own emissions rules and set requirements for marketing zero-emission vehicles, including electric cars, in the state.
The Trump administration has proposed freezing emissions standards at 2020 levels through model year 2026 and blocking California from setting its own tailpipe GHG emissions limits. The proposal would undo a 2012 agreement between California and the federal government to harmonize fuel-economy and GHG emissions standards.
Automakers are concerned about having to build cars to comply with two sets of standards.
Efficiency Group Praises EPA Health Report
An EPA report quantifying public health benefits of energy efficiency drew praise Aug. 13 from the Alliance to Save Energy.
Jason Hartke, the group's president, said, "This is exactly the kind of information policymakers need to make better decisions that fully account for the many co-benefits of efficiency."
The report, published last month, recommended figures, in cents per kilowatt-hour, for quantifying the value of public health outcomes tied to energy efficiency and renewable energy. The figures are tailored for regions, including California, the Northwest, the Southwest and the Rocky Mountain states.
The estimated value of benefits is tied to reductions in air emissions, including nitrogen oxides, sulfur dioxide and particulate matter 2.5 microns or smaller.
In the Northwest, the report imputed a value of 1.13 cents per kWh for efficiency, 1.17 cents for solar and 1.13 cents for wind. For California, the report estimated the health benefits value at 0.48 cent for efficiency, the same figure for wind and 0.51 cent for solar.
The report said the figures could be used for estimating health benefits, "understanding cost-effectiveness" of efficiency acquisitions, and incorporating health benefits into policy analyses. It cautioned, however, that the numbers should not be used "to justify or inform federal regulatory decisions."
Court Sides With FERC in Pipeline Case
A federal appeals court on Aug. 1 rejected challenges to the Atlantic Sunrise gas pipeline, ruling that FERC adequately accounted for downstream GHG emissions, determined market need, and considered an alternative route.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit upheld FERC's certification of the Transco project, which went into operation in 2018. The pipeline runs from Pennsylvania's Marcellus shale fields across the mid-Atlantic and Southeast to Alabama. The pipeline has approximately 1.7 million MMBtu of capacity.
On downstream emissions, the court ruled that FERC estimated the CO2 emissions of gas the pipeline would transport and projected they would partially offset emissions from coal-fired power plants the gas would replace.
Panel Judges Merrick Garland, David Tatel and Patricia Millett said environmental and homeowner groups failed to identify "what more the commission should have said. That failure is fatal. Unsubstantiated objections are not enough to stop an agency's action."