Author: adamse

The New York Public Service Commission announced an interim pricing plan for clean, distributed energy resources, such as rooftop solar[…]

By Richard Denison

Richard Denison, Ph.D., is a Lead Senior Scientist.

I noted in a recent post EDF’s grave concerns about the Regulatory Accountability Act (RAA), which passed the House on January 11.  A shorter but still very concerning version of it may soon be introduced in the Senate, modeled on last Congress’ Senate version of RAA.  This bill would add dozens of burdensome and time-consuming hurdles to the rulemaking process, effectively crippling it and eliminating the health and safety protections rules are intended to provide.  To get a feel for all of the requirements, see this dizzying RAA flow chart.

Among other things, the RAA would mandate multiple rounds of cost and impact analysis of a potentially unlimited number of regulatory alternatives; require that all major rules go through an entirely new pre-proposal step, adding months if not longer to the rulemaking process; generally require that agencies choose the lowest-cost regulatory option, regardless of whether or not it is the best option or even sufficient to meet a law’s requirements; and require lengthy and resource-intensive public hearings on many rules.  To top all this off, the bill would require an agency to finalize a proposed rule within 2 years (subject to a 1-year extension) – a timeframe almost impossible to meet now without all of the additional requirements the Act would impose; if that deadline was not met, the agency would have to start over.

There is extreme irony in the advancement of the RAA in this Congress:  Just last June, both houses of Congress passed – with overwhelming bipartisan support – major reforms to the obsolete Toxic Substances Control Act (TSCA).  The Lautenberg Act removed from the original TSCA several major constraints on the rulemaking process that had so tied the hands of the Environmental Protection Agency (EPA) that it could not even restrict asbestos, a known carcinogen that kills more than 10,000 Americans every year.  There was widespread agreement among industry and other stakeholders that those provisions of the old TSCA were detrimental or unnecessary to an efficient regulatory system and were undermining public and market confidence in the federal chemical safety system – not to mention failing to protect public health.

So here’s the irony:  The RAA would impose those same knot-tying strictures that the Lautenberg Act just got rid of – and expand them to rulemakings undertaken by any federal agency.  Let’s look at some of these crippling requirements, based on last Congress’s Senate version of the RAA:  

COST-BENEFIT CONSIDERATIONS:  As interpreted by the 5^th Circuit in Corrosion Proof Fittings v. EPA, in order to regulate a chemical under the old TSCA, EPA had to conduct quantitative cost-benefit analysis (CBA) on a potentially limitless number of regulatory alternatives, regardless of whether information was available.  This requirement, coupled with the “least burdensome” requirement discussed below, is widely regarded as the most fatal flaw of the old TSCA, imposing virtually impossible evidentiary and analytic burdens on EPA.

The Lautenberg Act fixed these problems:  It requires EPA only to “consider and publish a statement on” the economic effects of a rule, and to do so only:  i) “to the extent practicable,” ii) “based on reasonably available information,” and iii) “for the 1 or more primary alternatives considered by” EPA.  It provides EPA with considerable discretion to limit the extent of analysis so that it is feasible.

Enter the RAA:  EPA and other federal agencies would have to evaluate “any substantial alternatives or other responses identified by interested persons,” regardless of how many alternatives that would be and whether or not information on them is reasonably available.  Literally anyone could tie an agency in knots merely by suggesting options that the agency would then have to analyze.  For major or high-impact rules, formal CBA would be required to be conducted on each such alternative, with virtually no discretion afforded the agency based on availability of information or practicality, and the agency would have to demonstrate that the “benefits … justify the costs.”

LEAST-COST REQUIREMENT:  The original TSCA required that EPA prove its selected regulatory requirement was the “least burdensome” of all possible options sufficient to address the problem.  The Lautenberg Act struck this requirement entirely.

Yet under the RAA, for all major or high-impact rules, EPA and other agencies would be required generally to adopt the “least costly” rule and prove that no lower-cost option is sufficient; an exception is provided where EPA could demonstrate, through even more analysis, that the additional benefits – which could not count any ancillary benefits – of a more costly rule justify the additional costs.  Yet, in contrast to costs, many benefits are very difficult to quantify or monetize and hence get short shrift in such cost-benefit analyses.

RULEMAKING STANDARD:  As just noted, TSCA originally required that EPA’s regulation to address an identified risk protect adequately against such risk using the “least burdensome requirements.”  It allowed a rule that did not actually eliminate the risk if the rule was deemed too costly.  A key reform made by the Lautenberg Act is that it precludes EPA from adopting a rule that does not eliminate an identified risk, which is to be determined without consideration of cost; then, in regulating such risk, EPA must consider costs – but only in deciding among different regulatory options each of which is sufficiently protective.  Moreover, these cost factors are only required to be considered, and EPA is not required to prove that an option meets a specific test (e.g., lowest-cost).

The RAA only generally indicates that a rule is to “meet relevant statutory objectives” – a vague term that does not require that a rule be sufficient to meet all requirements of the law that mandates or authorizes it.  In contrast, the bill’s language on cost requirements does not make clear that a rule not meeting a health-based standard would not be allowed.

REQUESTS FOR HEARINGS:  Under the old TSCA, any person could request EPA to hold a public hearing on any rule.  The Lautenberg Act struck this provision as unnecessary and overly time- and resource-intensive.  It was struck based on agreement among stakeholders that hearings were not needed and would make it impossible for EPA to meet the new law’s rulemaking deadlines.

Under the RAA, any person would be able to request a hearing on any major or high-impact rule, other than a rule “required by law” that is not a high-impact rule.  An agency would generally have to grant the request if any factual issue is in dispute, which is nearly always the case at some level.  Under this approach, any entity that wanted to drag out and obstruct a rule would have a ready opportunity to do so.

DEADLINES:  The old TSCA imposed no deadlines on EPA to identify or take action to address unreasonable chemical risks.  The Lautenberg Act imposes judicially enforceable deadlines on EPA’s proposal and finalization of risk management rules.  Critically, however, failure to meet a deadline does not relieve EPA of its obligation to complete the rulemaking.

The RAA perverts the very accountability that deadlines under the new TSCA and most federal statutes are intended to provide.  If an agency did not complete a rulemaking with 2 years of proposal (subject to a 1-year extension), the rule would be voided and the agency would have to start over – further delaying needed action to protect health or achieve a law’s key objectives.  This “reverse deadline” would apply to all rules.  Two years is highly ambitious to meet even under current rulemaking procedures, and agencies have rarely done so.  Coupled with all of the new procedural, analytic and evidentiary hurdles to rulemaking imposed by RAA, this deadline would be virtually impossible to meet and would mean virtually no regulations of any substance could be finalized.

Less than a year after Congress overwhelmingly adopted the Lautenberg Act – the first major federal environmental legislation enacted in over two decades – some in Congress are now threatening to impose across all of government the same paralyzing mandates that were just removed from the original TSCA by passage of the Lautenberg Act.

Lest anyone think I’m suggesting simply exempting the Lautenberg Act from the RAA, let me be clear that is no solution at all.  Congress passed the Lautenberg Act in order to restore public and market confidence in a key element of the federal safety net.  This step was also acknowledged as necessary to provide the business community with the regulatory certainty it needs to operate.  These are needs that cut across the entire federal landscape.

The very real threats – to public health, to our communities and to our environment – posed by the RAA suggests some in Congress have very short memories.

On March 8th, Louisiana Governor John Bel Edwards sent a letter to the Administration outlining the state’s coastal restoration and[…]

By Peter Zalzal

Last Thursday, EPA Administrator Scott Pruitt withdrew the agency’s Information Collection Request (“ICR”) for the Oil and Natural Gas Sector, abruptly halting the gathering of information on harmful methane, smog-forming and toxic pollution from these industrial sources.

In announcing the move, Administrator Pruitt hailed the benefits for the oil and gas industry, but notably ignored the interests of everyday Americans right to know about harmful pollution from oil and gas facilities.

Pruitt’s action also stops EPA from obtaining information that can inform future safeguards against this pollution. Even though cost-effective, common-sense best practices and technologies exist to reduce emissions from oil and gas facilities, most existing facilities in this sector are largely exempt from any requirements to control the vast quantities of pollution they emit.

This flawed decision is at odds with the core tenets of the agency Administrator Pruitt is entrusted to lead and inimical to the health and environmental laws he has committed to faithfully execute. Unfortunately, it is also altogether predictable. Indeed this action—which allows oil and gas companies to withhold vital pollution data from thousands of sites across the country— reflects and reinforces concerns raised about Administrator Pruitt’s ability to lead an agency that he has persistently sought to undermine.

1. Pruitt Chooses Secrecy Over Transparency.

EPA has a long bipartisan history of providing data to the public about pollution in their communities. Indeed, during the Reagan Administration, Congress passed the Emergency Planning and Community Right to Know Act, which included provisions for EPA to create a publicly-available inventory of toxic chemicals down to the local level. Similarly, President George W. Bush signed a bill requiring EPA to collect and disseminate greenhouse gas emissions data from industrial sources across the country.

By withdrawing the ICR, Administrator Pruitt aims to shield the oil and gas sector from public scrutiny. Unfortunately, his penchant for secrecy with respect the oil and gas sector is familiar. During his controversial Senate confirmation process, Pruitt sought to withhold thousands of emails related to his ties to major energy interests who have donated to his political causes. While a number of those e-mails have been released, many more remain hidden from public view.

In the face of last week’s action by Administrator Pruitt, EDF has submitted a Freedom of Information Act request for all ICR data that has been submitted along with all records related to EPA’s decision to halt data collection.

2. Pruitt Places a Premium on the Views of Industry and Their Allies

In recent years, EPA has undertaken a careful, data-driven process to put in place protections to reduce pollution from the oil and gas sector. Often, EPA undertook such extensive data gathering to address industry concerns. The ICR was the latest data gathering effort, designed to ensure EPA had the full complement of information on existing oil and gas facilities. These existing facilities account for the vast majority of the sector’s pollution in coming years, yet remain largely exempt from any methane pollution control requirements.

To tailor its data request, EPA carried out two rounds of public comments, assessed significant stakeholder feedback, and substantially altered the request in response in order to leverage existing data and use electronic reporting frameworks.

In contrast to this careful and deliberative process, Administrator Pruitt withdrew the ICR with just one paragraph of explanation, just one day after receiving a request to do so from the Texas and Oklahoma Attorneys General and others.

Coincidentally, when Pruitt was Oklahoma Attorney General, he was aligned with the oil and gas industry in legal challenges seeking to undermine EPA’s oil and gas methane standards. It is disappointing, but not surprising, that he did not solicit input or wait to hear from any of the many other stakeholders involved in this process. Pruitt’s decision to withdraw the ICR may likewise raise conflicts of interest and should be closely scrutinized in light of his ethical obligations as administrator of EPA.

The Administrator has taken similar approaches in the past. As Oklahoma AG, for example, Pruitt simply copied and pasted industry requests and sent them to senior government officials under his own official seal.

EPA is legally required to protect the public from harmful pollution from oil and gas facilities. In carrying out that obligation, it is critical that public officials base decisions that affect our health and safety on careful review of the most rigorous scientific information available—and not simply accept, without any deliberation or inquiry, the recommendations of parties that have a vested interest in weakening health protections.

3. Pruitt’s Selective View of States Rights

As reason for withdrawing the ICR, Administrator Pruitt pointed to the request from the Texas Attorney General and the need to, in his words, “strengthen … our partnership with the states.”

But Pruitt’s notion of cooperative federalism bears no resemblance to the collaborative approach that EPA and states have taken to solving air pollution problems over the last four decades. Indeed, the Administrator seems comfortable with states’ rights when those states are seeking to hide emissions information and block clean air safeguards, but opposes states’ rights when they want stronger protections for their citizens.

For instance, large oil and gas producing states like Colorado and California have in place standards to reduce oil and gas sector emissions. Last Thursday, Ohio adopted stronger standards for certain sources. Eleven states – including major energy-producing states like New Mexico and California – have intervened in court to defend the same EPA emission standards for the oil and gas sector that the Texas Attorney General and his allies attacked in their letter. And many states have likewise supported EPA’s information collection request.

The Administrator’s decision ignores these views and undermines stronger state-level partnership. This is the very same disregard for state efforts to reduce pollution that Administrator Pruitt demonstrated when, during his confirmation hearing, he conveyed reservations about California’s longstanding authority to adopt vehicle emissions standards to address the state’s unique air pollution problems. And, over the weekend, additional reports surfaced suggesting that the Administration was planning attacks on California’s authority, which could be initiated as soon as this week.

This concept of states’ rights as a one-way justification to erode clean air protections is both dangerous and inconsistent with the Clean Air Act’s framework.

The underminer

During his confirmation hearing, Administrator Pruitt committed to carrying out EPA’s mission to protect human health and the environment using rigorous data.  Unfortunately, with one of his first actions, he chose to undermine both.

This post originally appeared on EDF’s Energy Exchange blog.

By Chris Meyer

REDD+ activity has shifted from securing recognition in the global agreement to focusing on development and implementation at the national and subnational levels. Image source: flickr

The director general of a leading tropical forest research center recently told a Yale conference of international forest experts that Reducing Emissions from Deforestation and Forest Degradation (known as REDD+) was a “good idea [that] didn’t work,” and has now “disappeared” (video clip at 1hr 9min). But far from having vanished, REDD+ is steadily advancing in countries and states around the world.

Emerging REDD+ programs at national and subnational levels

For much of the past decade, REDD+ was a hot topic of global conferences, and a standout success at the UN climate negotiations, where it received explicit recognition in 2015’s international Paris climate agreement.

Now enshrined at the UN Framework Convention on Climate Change (UNFCCC), REDD+ is experiencing a groundswell of action at the national and subnational levels. Tropical forest countries are designing and implementing their REDD+ programs at home, as well as submitting documentation to the UNFCCC and Forest Carbon Partnership Facility (FCPF) for review and funding.

Here are some examples of REDD+ programs and activities that are demonstrating progress at the national and subnational levels:

• Brazil has taken the lead and submitted to the UNFCCC 1) a national REDD+ strategy, 2) a forest reference level (i.e. a baseline for deforestation), 3) information on safeguards to protect the environment and society, and 4) a national forest monitoring system. These four elements are vital to ensuring that emissions reductions for REDD+ are real, measurable and provide benefits to the environment and society. 

  REDD+ is experiencing a groundswell of action at the national and subnational levels.

• The Democratic Republic of Congo and Ecuador also submitted their national REDD+ strategies to the UNFCCC.
• 25 countries have submitted their forest reference levels to the UNFCCC, 10 of which were submitted at the end of 2016.
• Chile, Costa Rica, Democratic Republic of Congo, and Mexico all had their REDD+ programs approved by the FCPF in 2016; these programs will begin generating emissions reductions this year. The World Bank plans to sign purchase agreements with some of the programs by the end of 2017.
• The Green Climate Fund approved in 2016 two REDD+ implementation grants worth tens of millions of dollars for Ecuador and Madagascar.
• Germany, UK, and Norway pledged $5 billion for results-based payments between 2016 and 2020.
• The Green Climate Fund will define its criteria for REDD+ results-based payments for approval by April 2017, unlocking another pathway for REDD+ financing.

Results-based REDD+ financing still needed

REDD+’s explicit recognition in the Paris Agreement politically secured its future in the post-2020 climate framework. But for REDD+ to be fully implemented, it needs adequate and sustainable financing to support a results-based payment system that includes:

• The UNFCCC should finish its guidance on International Transfers of Mitigation Outcomes (ITMOs), which will facilitate REDD+ market transactions.
• The Green Climate Fund should complete its REDD+ results-based payments criteria for those countries interested in non-market finance.
• Other potential compliance markets in California and International Civil Aviation Organization (ICAO) need to give their approval to REDD+ offsets.

In conclusion, I do partially agree that REDD+ has “disappeared” in that certain – the parts facets and activities of REDD+ that needed to disappear are no longer. REDD+ activity has – appropriately – shifted from securing recognition in the global agreement to focusing on development and implementation at the national and subnational levels.

Now, building on the momentum from the Paris Agreement’s entry into force, countries need to expedite the process of creating the results-based payment mechanisms to ensure a sustainable and reliable REDD+ finance system.

By Liz Delaney

For companies, future planning is simply good business. This is why many in Corporate America – having long accepted that climate change is real – are continuing to transition towards low-carbon energy options and to work with the U.S. Environmental Protection Agency (EPA).

Recently, it was reported that under the watch of newly-appointed EPA Administrator Scott Pruitt, the environmental agency’s budget could be cut by 24 percent – to roughly $6 billion, its lowest since the mid-1980’s. If this happens, it may be up to the business community to maintain its vigilant eye on the environment and future while helping today’s economy thrive.

Here’s a look at just two of the many EPA programs that have helped business transition to a clean energy future.

The Clean Power Plan

Many in the business community strongly supported the EPA’s Clean Power Plan (CPP) – the first-ever national limits on carbon pollution from power plants. The argument? Dirty sources of energy generation are becoming a growing concern for corporate America. These energy sources are increasingly uneconomic. Fortune 500 companies routinely set renewable energy and emissions reduction goals, but find roadblocks in many energy markets around the country.

Companies Want Clean Energy – These 2 EPA Programs Help Them Get It.
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Fortunately, the CPP can open new opportunities for businesses interested in operating in a clean energy economy. The rule’s flexible framework puts states in the driver’s seat to set plans that call for the most appropriate and cost-effective solutions for meeting pollution reduction targets while spurring innovation.

The CPP is positioned to do the following:

• Generate $155 billionin consumer savings between 2020-2030
• Create 3x as many jobs per $1 investedin clean energy as compared to $1 invested in fossil fuels
• Lead to climate and health benefits worth an estimated $54 billion, including avoiding 3,600premature deaths in 2030

The Green Power Partnership

The Green Power Partnership is a voluntary program launched by the EPA to increase the use of renewable electricity in the U.S. Under the program, businesses are armed with resources and provided technical support to identify the types of green power products that best meet their goals. Since its inception, the Partnership has made notable progress in addressing market barriers to green power procurement.

Through the Partnership, companies can reduce their carbon footprints, increase cost savings, and demonstrate civic leadership, which further drives customer, investor and stakeholder loyalty. At the end of 2015, over 1,300 Partners were collectively using more than 30 billion kilowatt-hours (kWh) of green power annually, equivalent to the electricity use of more than three million average American homes.

Long-term economics versus short-term politics

We don’t know what will happen in Washington over the next few years. But many businesses are moving forward. Rather than shift course, corporations are increasing investments in clean, reliable power, a move that is consistent with sound business practices.

But business can’t do it alone. The EPA supports responsible companies who have committed to reducing their carbon footprints while safeguarding our planet. It’s time for business to not just leverage their scale and buying power to help accelerate the transition to a clean energy future, but to speak up in favor of maintaining a well-funded agency that continues to make decisions based on sound science and the law.

This post originally appeared on our EDF+Business blog.

By EDF Blogs

(This post first appeared on EDF+Business. It was written by EDF’s Liz Delaney)

American businesses benefit tremendously from the robust voluntary and regulatory programs of the U.S. Environmental Protection Agency. These programs are now under threat of massive budget cuts and regulatory rollbacks.  In the coming weeks and months, the experts at EDF+Business will examine what a weakened EPA means for business. 

While some politicians may question the reality of climate change, most CEOs do not. So it’s no surprise that while Congress has been stuck, business has been busy addressing the problem. Luckily, they’ve had a helpful partner by their side: the U.S. Environmental Protection Agency (EPA).

Contrary to now head of the EPA Scott Pruitt’s claim that business has been subjected to “regulatory uncertainty”—stated during this year’s Conservative Political Action Conference—the Agency has administered a number of voluntary and regulatory programs that help corporations respond to the challenge of climate change. For companies, future planning is simply good business. This is why many in  Corporate America—having long accepted that climate change is real— are continuing to transition towards low-carbon energy options and work with the EPA to move forward in a sensible, cost-effective manner.

But with the recent announcement on Pruitt’s plans to cut the EPA’s budget by a reported 24 percent—roughly $6 billion, its lowest since the mid-1980’s–it may be up to the business community to defend the instrumental role of the Agency in helping business thrive while protecting the environment.

Here’s a look at just two of the many EPA programs that have helped business transition to a clean energy future.

Forging a smart economic future with the Clean Power Plan

Many in the business community strongly supported the EPA’s Clean Power Plan (CPP)—the first-ever national limits on carbon pollution from power plants. The argument? Dirty sources of energy generation are becoming a growing concern for corporate America. These energy sources are increasingly uneconomic. Fortune 500 companies routinely set renewable energy and emissions reduction goals, but find roadblocks in many energy markets around the country.

Fortunately, the CPP can open new opportunities for businesses interested in operating in a clean energy economy. The rule’s flexible framework puts states in the driver’s seat to set plans that call for the most appropriate and cost-effective solutions for meeting pollution reduction targets while spurring innovation. If you ask me, this satisfies Pruitt’s call to “restore federalism” by giving states more of a say in regulations. The plans provide clarity on the energy options available to businesses in different regions, helping to inform their long-term carbon reduction strategies and eventually increase access to cost-effective low-carbon energy.

This explains why last year major innovators including Mars, IKEA, Apple, Google, and Microsoft filed legal briefs in federal court supporting the EPA’s Plan. And more recently, leading executives from over 760 companies and investors—many of them Fortune 500 firms—called upon the new Administration to move ahead with policies to address climate change, like the Clean Power Plan.

The CPP is positioned to:

• Generate $155 billion in consumer savings between 2020-2030
• Create 3x as many jobs per $1 invested in clean energy as compared to $1 invested in fossil fuels
• Lead to climate and health benefits worth an estimated $54 billion, including avoiding 3,600 premature deaths in 2030

The Green Power Partnership

The Green Power Partnership is a voluntary program launched by the EPA to increase the use of renewable electricity in the U.S. Under the program, businesses are armed with resources and provided technical support to identify the types of green power products that best meet their goals. Since its inception, the Partnership has made notable progress in addressing market barriers to green power procurement.

Through the Partnership, companies can reduce their carbon footprints, increase cost savings, and demonstrate civic leadership, which further drives customer, investor and stakeholder loyalty. Take Colgate-Palmolive for example: as one of the Green Power Partnership’s national top 100, the consumer products giant has generated close to 2 billion kWh of annual green power through wind power alone. This represents 80% of the company’s total electricity use.

Today, hundreds of Partner organizations rely on billions of kWh of green power annually. At the end of 2015, over 1,300 Partners were collectively using more than 30 billion kilowatt-hours (kWh) of green power annually, equivalent to the electricity use of more than three million average American homes.

Pruitt has ratified the belief that we can “grow jobs, grow the economy while being good stewards of the environment”–and he’s right. The renewable energy industry is now outpacing the rest of the U.S. in job creation; which is good news for business and the economy at large. American wind power now supports more than 100,000 jobs—an increase of 32% in just one year—and solar employs more people in U.S. electricity generation than oil, coal and gas combined.

Long-term economics versus short-term politics

We don’t know what will happen in Washington over the next few years. But many businesses are moving forward. Rather than shift course, corporations are increasing investments in clean, reliable power, a move that is consistent with sound business practices.

But business can’t do it alone. The EPA supports responsible companies who have committed to reducing their carbon footprints while safeguarding our planet. It’s time for business to not just leverage their scale and buying power to help accelerate the transition to a clean energy future, but to speak up in favor of maintaining a well-funded agency that continues to make decisions based on sound science and the law.

In his first address to the EPA, Scott Pruitt said, “you can’t lead unless you listen.” Let’s make sure he hears from the businesses that are focused on a future where both the economy and the environment can thrive.

The proposed cuts are so outrageous that members of the President’s own party are speaking out. We simply cannot allow this to stand. C4.