April 7 Colorado Energy Cheat Sheet: Hickenlooper calls CDPHE refocusing away from CPP a ’shell game’, unloads on EPA ozone rule; ‘carbon tax’ defeated in Carbondale
Filed under: CDPHE, Environmental Protection Agency, Hydraulic Fracturing, Legal, Legislation, New Energy Economy, renewable energy
Less than two weeks after Gov. John Hickenlooper told Colorado Public Radio “we don’t care what the Supreme Court says about the Clean Power Plan”, calling for continued planning for the Environmental Protection Agency’s embattled rule currently under a stay issued by the U.S. Supreme Court, the Democrat initially appeared to be walking back his initial disregard for the country’s highest judicial body:
Gov. John Hickenlooper said he’s willing to temporarily halt state work on the Obama administration’s Clean Power Plan if that would defuse an effort to strip funding from the agency developing the plan.
“I’m happy to have them stop working on it if that’s a problem, if that becomes a partisan issue,” Hickenlooper told a CPR reporter after a lunch hosted by the American Petroleum Institute.
But the easing on Hickenlooper’s view of the work being done by the Colorado Department of Public Health and Environment–dismissive of any SCOTUS intervention via a stay–was itself walked back, as he at first acknowledged that the state could work on its already existing regulatory mandates to achieve similar goals to the Clean Power Plan, but said that any such maneuver would be nothing more than a “shell game”:
“We’re doing the same work anyway,” said Hickenlooper. “I don’t think it would hurt our efforts if we were to reallocate some of that time in other directions. I mean, in the end, we’re going to get to the same place.”
Hickenlooper said state policy and laws, including the Clean Air, Clean Jobs Act passed in 2010, already require Colorado to reduce carbon emissions from coal fired power plants.
“Our goals were very aggressive goals, and they are not the same, but they are very similar to what the Clean Power Plan wants,” he said at the gathering.
The governor clarified his comments Wednesday, dismissing the idea that suspending work on the Clean Power Plan would have much real world impact on the state’s clean air efforts.
“I look at the whole thing as ridiculous, to be perfectly blunt,” Hickenlooper told reporters at a regular press gathering. “It’s like a shell game of who’s doing which work. We’re working toward clean air, that’s what the state’s doing, that’s what people want us to do. We can get into … semantical battles over this thing, but it’s pretty straightforward.”
When it comes to Hickenlooper’s pronouncements on any number of issues, including this one, it’s usually never “pretty straightforward.”
Hickenlooper, just days ago, attempted to cast a non-partisan tenor to the debate over the Clean Power Plan:
Gov. John Hickenlooper also defended the new air quality rules at an event hosted by the Colorado Petroleum Institute.
“Clean air is too important to Colorado to become a partisan issue,” he said. “I am convinced as much as I ever have been that this is in the self-interest of the state.”
Jack Gerard, the head of the American Petroleum Institute, disagreed with Hickenlooper’s assessment.
“We look at the Clean Power Plan as it’s unnecessary to regulate as trying to pick favorite energy forums,” Gerard said.
Hickenlooper’s soft spot for the Clean Power Plan did not hold him back from being critical of the EPA’s ozone rule, which he said risked the “possibility that there will be penalties eventually that will come from lack of compliance.” He also blasted a Democrat bill that would allow for more lawsuits over damage caused by earthquakes that allege a connection to oil and gas development, as well as a ballot measure that would create a 2500 foot setback, saying that it would deprive mineral rights owners of their property–a taking that could cost billions.
Energy in Depth has more on Hickenlooper’s statement on the ballot initiative that would create 2500 foot setbacks:
Colorado’s Democratic governor, John Hickenlooper, is speaking out against an initiative backed by ‘ban-fracking’ activists to dramatically increase oil and gas setback distances in the state. The comments came at an event yesterday sponsored by the American Petroleum Institute (API) and Colorado Petroleum Council (CPC) featuring the governor and API President and CEO Jack Gerard.
When asked about the ballot initiative pushed by activists with strong ties to national ban fracking organizations, that would increase oil and gas setback distances to 2500 feet, Hickenlooper strongly denounced the effort. As reported by CBS Denver:
“That would be considered a taking, and I think the state would probably be judged responsible, and I think the cost could be in the many billions of dollars. I think that’s a risk that most Coloradans — if it was laid out for them in a sense they could clearly understand — would not support it.”
Hickenlooper’s assertion that the initiative could cost the state billions is backed up by a recent economic assessment from the Business Research Division at University of Colorado Leeds School of Business. Economists found that a 2,000 foot setback distance could cost the state up to $11 billion in lost GDP a year and 62,000 jobs. The 2,000 foot setback economists looked at is more modest than the 2,500 foot distance that activists are attempting to put before state voters this year.
Those mineral rights are worth billions of dollars to Coloradans and fill the coffers of counties and other entities annually to the tune of millions in property and severance taxes.
A thinly disguised attempt to ban fracking under the ruse of “local control” failed in the Colorado House on Monday:
Activist groups have not been shy about the fact that they see “local control” as a de facto ban on fracking. On a recent call with supporters, Tricia Olson of Coloradans Resisting Extreme Energy Development (CREED), the group behind a series of ballot initiatives targeting energy development, even told the group that their “local control” measure is basically a “full-fledged” fracking ban:
“This version however has one significant difference, what we would call a floor, not a ceiling language. To lift its points, it authorizes local governments to pass regulations — prohibit, limit or impose moratoriums on oil and gas development. Of course the word prohibit means ban. This allows for a broad range of local government options within their jurisdictions from local actions to a full-fledged ban.” (23:14-23:44)
EID detailed the “local control” proponents’ misinformation campaign to push the measure. Two Democrats joined with Republicans to kill the bill on the floor of the Colorado House.
And former Gov. Bill Ritter–you know–of the “New Energy Economy” and a paragon of all things green (dubbed the “Greenest Governor”), rejected a national ban on fracking:
“If you passed a national ban, this industry would go away and it would be harder for us to get to our place of transition on clean energy and climate.”
“I believe that with a good set of regulations, with good enforcement, with good compliance on the part of the industry, it [fracking for natural gas] can be a part of a clean energy future,” Ritter said.
Ritter and Hickenlooper, both Democrats, face opposition from their far-left counterparts when it comes to these types of calls for bans on responsible oil and gas development:
“We won’t transform the energy supplies of our nation overnight; there’s been rapid growth in solar and wind, but we’re a long way from saying we can walk away from hydrocarbons and not do significant damage to our economy,” Hickenlooper said.
“The number of people in Colorado who want to ban hydrocarbons is probably a small minority,” he said.
Gerard said the oil and gas sector will continue to play a significant role going forward, even through energy efficiency efforts focused on the automotive sector.
“When you look to make cars more energy efficient, you make them lighter with plastics brought to you by petroleum, you make the windows more efficient [with films] brought to you by petroleum, the gadgets you play with in your hand every day also come from petroleum,” he said.
As we can see, it’s not just about fracking, or burning oil and gas for electricity, as API’s president pointed out.
Hickenlooper continues to express deep concern about the EPA’s ozone rule, reducing the target for acceptable ground level ozone from 75 ppb to 70 ppb, saying a suspension of the rule “would be a great idea”:
Transcript of Gov. John Hickenlooper’s comments on the Environmental Protection Agency’s ozone rule delivered to the Colorado Petroleum Council and the American Petroleum Institute on March 31, 2016 via the Center for Regulatory Solutions:
So I think it would be a great idea if they suspended the standard. I mean, just with the background [ozone], if you’re not going to be able to conform to a standard like this, you are leaving the risk or the possibility that there will be penalties of one sort or another that come from your lack of compliance. Obviously, no different than any business, states want to have as much predictability as possible, and I think if they suspend the standards, it’s not going to slow us down from continuing to try and make our air cleaner. …
You know, we’re a mile high. Air quality issues affect us more directly than they do at lower elevations. So we’re going to keep pushing it, we’re not going to back off, we’re going to continue to improve the air quality in the state every year if I have anything to say about it, but at the same time, those standards, you know, to be punitive when you’re working as hard as you can … to get cleaner air as rapidly as you can, it seems like it’s not the most constructive stance.
A bi-partisan chorus of opposition to the ozone rule has emerged, and Independence Institute energy policy analyst Simon Lomax notes that the rhetoric surrounding the ozone rule, and in particular, its potential impact on public health, is filled with fearmongering from the “bad-air chorus.”
Lomax testified before CDPHE last month on the ozone rule:
The nature of the problem is clear. The EPA’s new ozone standard goes too far. It will throw large areas of the state into long-term violation of federal law. Violation will impose new restrictions on economic growth and jeopardize badly needed investments in transportation infrastructure.
And because the stringent new standard approaches background ozone levels, which state regulators are powerless to control, there will be little, if any, environmental benefit in return. For months, stakeholders from across government, across the political spectrum and across the economy have stated and restated the problem. But admiring the complexity of the problem won’t solve it.
Notably, the ozone rule would attack the “bridge” fuel, namely natural gas, that the earlier versions of the Clean Power Plan envisaged would get the nation from a fossil fuel fleet to one primarily composed of renewables. Between the attempts to ban fracking, the leap made by the final Clean Power Plan that pushes almost exclusively for renewables, and the ozone rule’s affect on oil and gas development (emissions are a key component to create ground level ozone), the stage has been set for an onslaught of anti-oil and gas regulation that would devastate Colorado’s economy.
Colorado faces geographical and topographical challenges with any ground-level ozone measurements due to elevated background ozone levels, as Hickenlooper pointed out. Anthropogenic emissions in other states and Mexico and as far away as Asia (China), wildfires, atmospheric intrusions, and our elevation combine to bring levels of background ozone to the state that can’t simply be regulated away.
From the “excellent news” category–carbon tax gets shot down in Carbondale, 61 to 39 percent:
For the so called “carbon tax,” 1,022 voters cast ballots against, while only 637 Carbondale residents voted in favor.
And with more than $3,000 in contributions, the committee supporting the carbon tax raised and spent more money than any single candidate for the board of trustees.
The climate action tax proposed to increase residents’ gas and electric bills in an attempt to promote clean energy projects and reduce energy usage in keeping with the town’s 2020 energy goals.
The climate tax would have been applied uniformly across town, with one set of rates for residents and another for business owners.
Supporters of the carbon tax had estimated that the average household’s utility bills would go up $5 to $7, and the average business would see a $10 to $30 increase.
This carbon/climate action tax would have just added more misery to Colorado’s already skyrocketing electricity rates.
Hickenlooper: ‘we don’t care what the Supreme Court says’ on Clean Power Plan; supports growing state renewables standard for ‘no cost’
Filed under: CDPHE, Environmental Protection Agency, Legal, preferred energy, regulations, renewable energy, solar energy, wind energy
Transcript of Gov. John Hickenlooper’s comments on Colorado Public Radio’s “Colorado Matters” with Ryan Warner, Thursday, March 24, 2016:
Ryan Warner: A question about your commitment to fighting climate change. Larry Milosovich of Lafayette asks about the state’s requirement that a certain percentage of energy come from renewables. So in 2004, voters decided that it should be 10% by 2020; before you took office, that got bumped up to 30% for investor-owned utilities. Milosovich says that made Colorado a leader nationally, but quoting here now, “we have since fallen behind several other states. Isn’t it time we sent signals that we are still serious about moving forward on clean energy beyond 2020?” He asked would you be willing to pursue an updated Renewable Energy Standard equal to that approved by New York and California, namely 50% renewables by 2030?
Hickenlooper: So I certainly wouldn’t do it without sitting down and seeing what it would cost, you know what our citizens would have to pay for their electricity. It goes to prove that you’re never going to satisfy everybody. But we have been one of the more aggressive states saying “we don’t care what the Supreme Court says about the Clean Power Plan [emphasis added], we recognize we want to have the cleanest air possible.” I think we need to look at, you know, what are our core values? We want the cleanest energy we can have, reduce our carbon emissions in every way possible, but we want to do so in such a way that saves money. Well it might well be certainly in the next couple of years if we’re looking at these large-scale industrial solar plants, they’re saying they might come in lower than natural gas plants.
RW: But it sounds like you think the market might drive it from here, as opposed to the state upping its Renewable Energy Standard. Would that be a fair assessment?
Hickenlooper: No I think the market helps nudge the universe from time to time, but I don’t think we would…we’ve never left it to a completely market driven decision.
RW: Would you like to see a higher Renewable Energy Standard in Colorado? Do you think it should grow from where it is?
Hickenlooper: Well again, as I’ve said I think it depends on exactly what the cost would be and what that looks like, but in an ideal world, if there was a way to do it for no cost, absolutely.
Senate Bill 157, an attempt by Senate Republicans to halt state planning on Clean Power Plan compliance while the stay is ongoing became a flashpoint, as the issue became a battle over budgeting for the state’s Air Quality Control Division.
Future Leaders intern Sarah Huisman contributed to this report.
Colorado March 14 Energy Cheat sheet: Unencumbered from Clean Power Plan mandates, Hickenlooper opts to put Colorado in fiscal vulnerability; energy rate-payers are feeling the burn; environmental mandates make affordable housing as unaffordable as ever
Filed under: Environmental Protection Agency, renewable energy
When the Supreme Court issued a stay of the Clean Power Plan, state leaders should’ve celebrated; our weighty budget crisis just got a little lighter with costly energy mandates no longer imminent. Gov. Hickenlooper’s inexplicable decision to self-inflict these budget hits disappoints.
“One thing is clear: Any further effort to develop a state plan, full or partial, is a waste of taxpayer money. At a time when the state is facing a budget crisis, the agency’s position becomes even more untenable. Colorado’s unbridled zeal to charge on, absent the necessary certainty from the federal courts, coerces power providers to participate in an expensive process if only to ensure they don’t get run over.
Moreover, the benefits of developing new carbon regulations are nil, especially if Colorado proceeds on a piecemeal, stand-alone basis. Even if fully implemented, the federal Clean Power Plan would lower global temperatures a mere 0.02 of a degree — not enough to budge the needle. Rising sea levels? They’d be reduced by the thickness of two sheets of paper.”
And there’s no doubt that citizens are paying substantially higher rates for energy. Independence Institute energy analyst, Michael Sandoval, talks energy rates on-air with KOA’s Mandy Connell, confirming what we all have been suspecting: Colorado energy rates across all sectors (transportation, electricity, etc) have skyrocketed 67%, double the rate of inflation
Is there any escape from the tentacles of regulators? Not in the housing sector. After many billions of dollars were squandered on electric vehicle companies that flopped, Denver city leaders are mandating homebuilders install EV chargers in new home construction. Homebuilders’ frustrations and concerns are given little to no weight:
“The Denver planning department’s proposed changes were spurred by the 2015 update to the International Code Council’s suggested rules, which serve as a sort of industry standard, along with Denver-specific amendments.
Those include the new requirement for electric vehicle-supporting conduits and panels in garages for new houses.
Initially, that change faced opposition, especially from homebuilders concerned about the added cost in construction.”
The homebuilder’s concerns were never mitigated, making Denver’s homebuilders the latest in Colorado to voice concerns about costly regulatory layers and fees in the housing sector.
In the good news category, the Greeley city council will allow a 22-well oil and gas facility to go forward, overturning a decision made by its planning commission to deny the operation. Initially, the planning commission unanimously sided with protesting neighbors, but the city council determined that the property owners legally are allowed this use of their land, and may access the underground assets.
“After six hours of testimony on Tuesday, the Greeley City Council overturned its planning commission, allowing a 22-well oil and gas facility in west Greeley — a move that aligned with the city’s own development code rather than public sentiment.
Hundreds of people turned out for the hearing, an appeal by Denver-based Extraction Oil and Gas, of the Greeley Planning Commission’s January decision to deny its project, 6-0. The hearing filled the hearing room at the Greeley-Evans School District 6 administration building, as well as its lobby, where almost 300 chairs were brought into accommodate the crowds, filled with neighbors against the project and hundreds of oil and gas workers wearing stickers that read, “Oil and gas feeds my family and yours!”
But hours of often emotional testimony couldn’t negate one fact: this was a property rights issue…”
Independence Institute Future Leader Sarah Huisman prepared this edition of Cheat Sheet.
Filed under: CDPHE, Environmental Protection Agency, Legislation
(l-r: Michael Sandoval, Independence Institute; bill co-sponsors Sen. Jerry Sonnenberg and Sen. John Cooke)
Testimony delivered, more or less as written, on behalf of SB 61 on March 10, 2016:
Testimony on behalf of
SB61 Ratepayer Protection
March 10, 2016
SENATE AGRICULTURE, NATURAL RESOURCES AND ENERGY COMMITTEE
GREETINGS Mr. Chairman or Madam Chairman and Members of the Committee
Sen. Sonnenberg and Sen. Cooke.
My name is MICHAEL SANDOVAL. I am an ENERGY POLICY ANALYST for the Energy Policy Center at the Independence Institute.
Thank you for allowing me the opportunity to testify today on behalf of SB61.
At the Independence Institute, we are agnostic on energy resources. It is our strong belief that the choice of energy resources should come from the demands of the free market, and not from the preferences of policymakers, lobbyists, or special interest groups.
The goal of the Energy Policy Center is to promote a free market in energy production, where no protections, subsidies, or regulations result in energy winners and losers. We advocate that government remain neutral, which then encourages a level playing field. That is the best way to ensure that consumers reap the benefits of a healthy energy market – competition, lower prices, and more options.
We find SB61 to be consistent with our principles of protecting ratepayers from unnecessary costs associated with the implementation of a likely unconstitutional rule.
In light of the US Supreme Court stay for irreparable harm that would result if the Clean Power Plan was not immediately halted, the decision by this state to proceed with a state plan promising cost neutrality is unwarranted.
The negligible and practically undetectable reduction of only 0.02 degrees Celsius in global temperatures does not justify ratepayers picking up the tab for the social engineering of electricity.
Ironically, four decades ago a previous federal decision to promote coal for electricity production locked in much of the current fleet of baseload generation that is the target of the current rule.
Additional costs—in the form of enormous and potentially catastrophic transition costs—should be shouldered by those insisting on carrying out such measures. Capital costs run through to ratepayers, and we have already seen the effect in places like Pueblo. These transitions should not be cost-shifted to those who can least afford it.
Colorado should remain focused on electricity generation that emphasizes affordability and reliability. The regressive nature of electricity cost increases affecting low income, minority, and elderly residents is well-documented. Last year, the National Black Chamber of Commerce, for example, found that poverty rates in black and Hispanic communities would rise 23 percent and 26 percent, respectively.
The Independence Institute has documented the skyrocketing increases in electricity rates for Colorado’s residential, commercial, industrial, and transportation customers. From 2001 to 2015 Colorado has seen a residential increase of more than 60 percent, 8 percent higher than the average for all Mountain states. For all sectors, Colorado has experienced a 62.5 percent increase, 15 percent higher than the Mountain states and 23 percent higher than the US average. This far outpaces the 24 percent increase in median income or 34 percent increase in inflation over the same period. Finally, Colorado residential ratepayers already pay a 22.5 percent premium above the average for all sectors in the state combined for their electricity.
For those reasons shielding Colorado’s electricity ratepayers from any adverse impacts of compliance costs caused by implementation of this rule would be consistent with the principles of the Independence Institute.
Filed under: CDPHE, Environmental Protection Agency, National Renewable Energy Laboratory, renewable energy
On Monday February 22nd, the Colorado Department of Public Health and Environment’s (CDPHE) Air Pollution Control Division (APCD) held a public meeting to discuss the status of President Obama’s Clean Power Plan (CPP), which the U.S. Supreme Court officially stayed on February 9th.
The agenda for this previously scheduled meeting was modified in order to address the recent developments of both the CPP stay, and the CDHPE’s statement in response, which was posted the very next day. In short, Colorado will essentially pursue CPP goals as if the stay never happened, while the states surrounding Colorado have put it on hold while the legal process plays out.
The 90-minute meeting consisted of a brief presentation by APCD deputy director, Chris Colclasure, followed by a Q & A and public testimony. Mr. Colclasure began by discussing public comments already received by his office, which were overwhelmingly in support of the CPP, including over 500 form-emails from nationally organized campaigns.
Colclasure defended CDPHE’s position to move forward on CPP emission goals, stating that his department will “take actions that have benefits regardless of the litigation,” because despite the legal process, “climate change remains a critical issue.” However, these purported benefits remain subjective, and are disputed by many stakeholders.
What analytical use is it to know a presumed benefit without knowing about its life-partner, cost? The CDPHE is conducting, a benefit analysis (and acting on it), rather than conducting a cost-benefit analysis. Colclasure stated in his presentation that they “hope” to model potential costs. The private sector metaphor here is a borrower going to a lender and saying, “lend me money for a house, because I hope to be able to afford my mortgage.” But in this case, the taxpayers are the ones being recklessly put at risk.
That isn’t a stretch. Energy Strategies and the Center for the New Energy Economy produced a model used by APCD to evaluate the CPP, but this model was never built to consider costs. During Monday’s public meeting, Mr. Colclasure admitted that the above companies have the ability to build a cost-inclusive model, but they were specifically contracted to not include costs in their modeling.
About 15 people spoke during the public testimony period, the majority of which supported the CPP, proving that the extreme environmental movement is well funded and well organized. Local, state, and national groups were represented, some even claiming the CPP doesn’t go far enough, and that environmental racism and injustice is not adequately addressed.
The testimony that did not support the CPP was moderate by comparison. Representatives from the Colorado Energy Consumers and the Colorado Mining Association requested that given the gift of time resulting from the stay, cost modeling, including probable job losses and ratepayer increases, be a priority in the coming months.
The CDPHE has demonstrated that it is unlikely to model the almost certainly heavy costs of the CPP, let alone reconsider implementing it. Colclasure spoke with certainty about the inevitability of carbon dioxide regulations, be they from the CPP or some other avenue. By all appearances, extreme and economically unsound environmental regulations are a runaway train in Colorado.
Sarah Huisman is an Independence Institute Future Leader, and Master’s student at Liberty University’s Helms School of Government.
February 23 Colorado Energy Cheat Sheet: Conflicting views over Colorado CPP prep; Gold King Mine persists for Navajo Nation
Filed under: CDPHE, Environmental Protection Agency, Legal, renewable energy, solar energy, wind energy
An E&E story ‘Colo. steps back from crafting formal plan for EPA rule’ might give readers pause, thinking that the Colorado Department of Public Health and Environment was backing off its previous statement to proceed with “prudent” Clean Power Plan development even as a stay from the U.S. Supreme Court was in effect (paywall):
Colorado officials said yesterday they believe it is “prudent” for the state to keep working toward power plant carbon emissions reductions despite a recent Supreme Court ruling to freeze a key federal climate change regulation.
But the state’s original path toward meeting U.S. EPA’s Clean Power Plan goals will be recharted, officials declared at Colorado’s first public meeting about the regulation since the court stay.
“We don’t think it is appropriate at this point to continue drafting a full state plan,” said Chris Colclasure of the Colorado Department of Public Health and Environment’s Air Pollution Control Division. “There’s just too much uncertainty for that.”
Colclasure said the decision to stop work on developing a full compliance plan is part of an effort in smart time management.
“We want to take any steps that we can to put Colorado in the best position given the uncertainty so that when the Supreme Court gives us a ruling, we have used that time effectively,” he said.
The state is “trying to identify actions that we can take that will have benefits regardless of the outcome of the litigation,” Colclasure said, adding that “we don’t want to waste time, either, by having people work on activities that wind up being irrelevant.”
This would include whether to cancel, reschedule, or rework meetings already on the CDPHE agenda for this spring.
A generous reading would see CDPHE’s declarations as a revision or walk-back of its post stay bravado to carry on with CPP preparation at the state level. But there might be no walk-back, but some verbal gymnastics designed to throw off possible legislative action this session or to see other reasons (not just “we should do something anyway because it’s a good thing”) like the state’s own impending 2020 renewable energy standards or Governor John Hickenlooper’s 2015 Colorado Climate Plan.
Meanwhile, at least 17 other states’ governors have signed a bipartisan pledge to promote a “new energy future” as CPP litigation continues.
An amicus brief filed by 34 Senators and 171 Representatives supporting the CPP lawsuit:
WASHINGTON – Led by U.S. Senate Majority Leader Mitch McConnell (R-Ky.), Senate Environment and Public Works Committee Chairman Jim Inhofe (R-Okla.), House Energy and Commerce Committee Chairman Fred Upton (R-Mich.) and House Energy and Power Subcommittee Chairman Ed Whitfield (R-Ky.), 34 Senators and 171 House Members filed an amicus brief today in the case of State of West Virginia, et al. v. Environmental Protection Agency, et al.
The amicus brief is in support of petitions filed by 27 states seeking to overturn the EPA final rule identified as the Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, EPA-HQ-OAR-2013-0602, 80 Fed. Reg. 64,662 (Oct. 23, 2015), also known as the “Clean Power Plan.” A copy of the brief can be found here.
As Senators and Representatives duly elected to serve in the Congress of the United States in which “all legislative Powers” granted by the Constitution are vested, the members state that:
The Final Rule goes well beyond the clear statutory directive by, among other things, requiring States to submit, for approval, state or regional energy plans to meet EPA’s predetermined CO2 mandates for their electricity sector. In reality, if Congress desired to give EPA sweeping authority to transform the nation’s electricity sector, Congress would have provided for that unprecedented power in detailed legislation. Indeed, when an agency seeks to make “decisions of vast ‘economic and political significance’” under a “long-extant statute,” it must point to a “clear” statement from Congress. Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2444 (2014) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160, 529 U. S. Ct. 1291, 1315 (2000)). EPA can point to no statement of congressional authorization for the Final Rule’s central features, precisely because there is none.
Gov. Hickenlooper defended his views about the CPP on CPR: ignoring SCOTUS stay to do a Colorado approach–more wind, more solar–”I think we do have a responsibility to go to those communities and see what we can do to try and find new businesses or be able to retrain some of the miners so that that community doesn’t suffer so much economically.”
“We really can have inexpensive electrical generation and clean air at the same time,” said Hickenlooper.
That “responsibility” Hickenlooper outlined will be tested, as coal communities see economic upheaval already:
The downward slide continued for Colorado’s coal industry in 2015, highlighted by production at Routt County’s Twentymile Mine, which was down 38 percent.
Statewide, production in Colorado was down 18.5 percent, with 18.7 million tons, the lowest amount of coal mined in 23 years.
In Moffat County, production at the Trapper Mine was actually up nine percent, with 2.1 million tons. At Colowyo Mine, production was down six percent at 2.3 million tons.
Colorado Mining Association President Stuart Sanderson said the drop in production is a result of lower demand, but it was not caused by natural market forces.
“What we are seeing is the direct result of government regulations that are designed to drive coal out of the energy mix,” Sanderson said.
Sanderson pointed to the 2010 Clean Air Clean Jobs fuel-switching bill from coal to natural gas.
“Moving forward, there is no question that the companies are suffering from this absurd action by the government to put hardworking men and women out of work,” Sanderson said.
In other words, mining communities aren’t just suffering economically, they’re suffering governmentally.
At the “Lifting the Oil Export Ban” event, Democratic Rep. Ed Perlmutter indicated support for a 5-10 cent gas tax hike as an “investment”–as he “comes from a construction family” (51:00 mark):
The Gold King Mine spill prompted by the Environmental Protection Agency still has lingering effects in Navajo Nation areas south of Colorado:
Millions of gallons of contamination from heavy metals flowed from the Animas River in Colorado into the San Juan River in New Mexico, threatening their economy and their spiritual way of life.
Joe Ben Jr. is a farmer and representative to the Navajo Nation board. He walked with CBS4 Investigator Rick Sallinger through corn stalks in a field.
“This corn should normally be higher than 6 feet, it’s about 4 feet,” Ben said.
With sadness he told of how they shut off the irrigation water when they heard the toxic plume was coming and still haven’t turned it back on. Some 550 indigenous Navajo farmers in the region have felt the impact. Ben says farming is an art in their culture for those who live off the land.
Among them is Earl Yazzie and his family. He can only bundle up what remains of what might have been a bountiful harvest. The mine spill took a toll on his farm. He estimates the loss at $10,000.
The U.S. Chamber of Commerce asked–“What if a business did this?”:
If this were a private business, EPA would never have accepted this answer. It would have decried such behavior as “cutting corners” and rushing ahead with little regard to safety and the environment. Fines would’ve been issued.
Just like when EPA fined an oil exploration company $30,500 only a few days before the Gold King Mine spill for leaking 500 gallons of well testing fluids on Alaska’s North Slope. EPA allowed 6,000 times that amount of material to pour into a river. Will EPA (i.e. taxpayers) fork over $183 million in fines?
Last year, Administrator Gina McCarthy said EPA will be held accountable for the spill:
“We are going to be fully accountable for this in a transparent way,” she said at a press conference. “The EPA takes full responsibility for this incident. No agency could be more upset.”
When asked if the EPA will investigate itself as vigorously as it would a private company, McCarthy said, “We will hold ourselves to a higher standard than anybody else.”
On the transparency front, EPA is lacking. As noted above, Griswold’s email about water pressure concerns wasn’t included in EPA’s December 2015 report. Also, committee members are subpoenaing the Interior Department and the Army Corps of Engineers for more documents about the spill, because they don’t think the agencies have been forthcoming.
As for holding itself to a higher standard, that’s yet to be seen six months after the spill.
A House committee is seeking Interior Department documents in the Gold King Mine incident and the subsequent post-spill investigation:
Sally Jewell was ordered Wednesday by the U.S. House Committee on Natural Resources to produce a long list of records and correspondences by the end of next week.
Specifically, the committee wants information about how investigators under Jewell worked with the Army Corps of Engineers to peer review the report.
The committee’s chair, Rep. Rob Bishop, R-Utah, said the Department of Interior has interfered with his requests for information on how the Gold King Mine report was compiled.
Bishop says the DOI has tried to block records showing the Army Corps of Engineers had “serious reservations about the scope and veracity” of the interior department’s review.
Army Corps records were also subpoenaed Wednesday.
Meanwhile, CDPHE sees the Gold King Mine spill as the impetus for action on other mines around the state:
SILVERTON —Of the 230 inactive mines the state recognized six months ago as causing the worst damage to Colorado waterways, state officials say 148 have not been fully evaluated.
The Colorado Department of Public Health and Environment has cobbled together $300,000 for an “inventory initiative” to round up records and set priorities. The agency is enlisting help from the Colorado Geological Survey at the Colorado School of Mines.
Colorado officials hope attention on the Animas River after the EPA-triggered spill at the Gold King Mine in August will spur action at scores of other inactive mines contaminating waterways. After the disaster, the state identified the worst 230 leaking mines draining into creeks and rivers.
There are an estimated 23,000 inactive mines in Colorado and 500,000 around the West. State officials estimate mining wastewater causes 89 percent of the harm to thousands of miles of waterways statewide.
February 18 Colorado Energy Cheat Sheet: Costly Clean Power Plan event video; EPA Animas River spill gets Congressional scrutiny; fracking ban off 2016 ballot
Filed under: CDPHE, Environmental Protection Agency, Hydraulic Fracturing, Legal, Legislation, regulations
The Independence Institute and the Competitive Enterprise Institute joined forces on February 16 in Denver to provide an update on the Environmental Protection Agency’s costly Clean Power Plan, including where the rule stands with regard to the U.S. Supreme Court stay issued earlier in February, as well as the impact of the death of Associate Justice Antonin Scalia on the ongoing legal proceedings.
The Environmental Protection Agency’s Clean Power Plan rules will slow the Colorado economy, raise electricity rates and barely make a dent in carbon dioxide emissions, opponents and experts on the plan told an audience at the Independence Institute on Tuesday.
“Clean power alone will add billions if not tens of billions of costs to individual consumers and the American economy,” said Gregory Conko, executive director of the Competitive Enterprise Institute.
Myron Ebell, CEI’s director of the Center for Energy and Enviroment released a state-by-state comparison showing Colorado’s 9.49 cents per kilowatt hour is lower than the national average of 10.11 cents. But he said California, which has extensive power plant regulation and has consumers paying 15.11 cents, is a warning for the rest of the country if the Clean Power Plan is instituted.
“This is about keeping the lights on for America’s economy, for Colorado’s economy,” he said, adding any additional costs for energy will take away consumer purchasing power for other goods.
Keeping the lights on and the cost of electricity–the energy that drives our economy.
What happens when costs of electricity go up? It hurts the average Coloradan; the ratepayers and taxpayers already pressured by an economy that has never fully recovered from the recession that have seen their electricity bills skyrocket 63 percent between 2001 and 2014, and Colorado overall, across all sectors from residential to commercial, industrial, and transportation, of 67 percent:
Those cost increases are being felt, not the least by folks in southern Colorado.
Regulations impact economies, and officials at a hearing in New Mexico on proposed Bureau of Land Management rules got an earful:
“The implementation of these proposed rules will kill revenue to state and federal government,” said Farmington Mayor Tommy Roberts. “And it will kill jobs at the local level.”
To find the source of Farmington and San Juan County, New Mexico, residents’ frustration, one doesn’t need to look far. Last week, the Bureau of Labor Statistics released a report that showed the area ranked first in the nation in the rate of unemployment growth – from 5.2 percent in 2014 to 7.3 percent in 2015. Since 2009, the region has lost an estimated 6,000 jobs, mainly as a result of a declining oil and gas industry.
“I’ve seen the affects in my community,” said Bloomfield Mayor Scott Eckstein. “This will be a knock-out blow to an already-crippled community.”
In January, the BLM proposed an update to 30-year old regulations on methane and natural gas leaks on BLM and Native American lands. BLM officials estimate the tougher regulations would reduce emissions of the potent methane by about 169,00 tons per year, and decrease volatile organic compound releases by 410,000 tons per year. That reduction would be in keeping with an earlier Obama Administration goal of reducing methane emissions by 45 percent from 2012 levels by 2015.
In March of last year, I had the privilege of traveling to northwest Colorado to film AEA’s “Eye of the Storm” video which chronicled the threats radical environment activists were making against the communities of Craig and Meeker. Thankfully, with your help, we were able to convince the federal government that the Colowyo mine should stay open. Unfortunately, the mine and these communities are under threat yet again.
While in Craig and Meeker, Colorado, I was blown away by the people that I met. Every person knew just how important energy is to their community. From the mayor to the hotel concierge, every single person I spoke with had a personal story about how the energy their community produces and responsibly utilizes makes their lives better. And as many miners pointed out to me, their work provides affordable, reliable energy to the entire region.
Visiting the Colowyo mine was a surreal experience. At first, you drive up a winding dirt road through checkpoints, until you finally reach the mining area. Colowyo is a surface mine situated between the towns of Craig and Meeker. Cresting the ridge and looking down on the pit, you see these bright yellow trucks scurrying around with dirt and coal, but from that distance you can’t tell how massive they are. Realizing the immense scale of this project and the work these men and women do every day is profound—and in a way, beautiful.
One real surprise to me is that soon after stepping out of the truck at the mine, I noticed wildlife. You do not expect to visit a mine and see elk, antelope, deer, and even an owl, but I saw all four within the first hour of our time there. The staff pointed with pride to the areas that had been previously been mined, but were now restored and how well the land and wildlife were thriving
The literal ban on fracking is out, but 10 more state constitutional amendments remain, including a “right to a healthy environment”:
“We’re going to pull the one that’s the ban, not the other ones,” Dyke told the Denver Business Journal on Friday. “We’re down to 10, but we still have plenty to work with.”
But while a proposal to ban fracking statewide may be off the table, the other initiatives backed by CREED are just as bad, said Karen Crummy, a spokeswoman for Protecting Colorado’s Environment, Economy and Energy Independence, an issues committee formed by the industry in 2014 to oppose anti-fracking initiatives.
“They withdrew it (the fracking ban proposal) because they know the vast majority of Coloradans support responsible oil and natural gas development and are against banning an entire industry,” Crummy said via email.
“However, their remaining proposals are just as irresponsible and extreme because they would still effectively ban development,” she said.
The other amendments, calling for 4,000 foot setbacks away from “special concern” areas along with the healthy environment proposal remain de facto fracking bans, and in most cases, include all oil and gas development not just the controversial hydraulic fracturing method.
For example, proposal #67:
Section 1. Purposes and findings. THE PEOPLE OF THE STATE OF COLORADO FIND AND DECLARE:
(a) THAT OIL AND GAS DEVELOPMENT, INCLUDING BUT NOT LIMITED TO THE USE OF HYDRAULIC FRACTURING, HAS DETRIMENTAL IMPACTS ON PUBLIC HEALTH, SAFETY, WELFARE, AND THE ENVIRONMENT;
(b) THAT SUCH IMPACTS ARE REDUCED BY LOCATING OIL AND GAS DEVELOPMENT FACILITIES AWAY FROM OCCUPIED STRUCTURES AND AREAS OF SPECIAL CONCERN; AND
(c) THAT TO PRESERVE PUBLIC HEALTH, SAFETY, WELFARE, AND THE ENVIRONMENT, THE PEOPLE DESIRE TO ESTABLISH A SETBACK REQUIRING ALL NEW OIL AND GAS DEVELOPMENT FACILITIES IN THE STATE OF COLORADO TO BE LOCATED AWAY FROM OCCUPIED STRUCTURES, INCLUDING HOMES, SCHOOLS AND HOSPITALS; AS WELL AS AREAS OF SPECIAL CONCERN.
Section 2. Definitions.
(a) FOR PURPOSES OF THIS ARTICLE, “OIL AND GAS DEVELOPMENT” MEANS EXPLORATION FOR AND DRILLING, PRODUCTION, AND PROCESSING OF OIL, GAS, OTHER GASEOUS AND LIQUID HYDROCARBONS, AND CARBON DIOXIDE, AS WELL AS THE TREATMENT AND DISPOSAL OF WASTE ASSOCIATED WITH SUCH EXPLORATION, DRILLING, PRODUCTION, AND PROCESSING. “OIL AND GAS DEVELOPMENT” INCLUDES, BUT IS NOT LIMITED TO, HYDRAULIC FRACTURING AND ASSOCIATED COMPONENTS.
Judge the activists by their words–they want bans or regulations so onerous as to yield the same results. This isn’t just about a fracking ban, although the most explicit amendment calling for a statewide ban has just been pulled. Make no mistake–this is about the wholesale removal of responsible natural resource extraction that gives Coloradans affordable and reliable energy.
Windsor High School junior Kamille Hocking worried a dozen oil wells on her family’s 132-acre Colorado homestead might sicken them. Then, Rebecca Johnson, an Anadarko Petroleum Corp. engineer, used a blender in her chemistry class to show the interaction of swirling frack sand, city water and friction reducer.
“We heard a lot of stories about how it could get into the water and pollute the land,” said Hocking, who is 16. “I’m going to tell my parents that fracking fluid only makes cracks in the rock the size of a hair that the sand gets into and holds open.”
Facing 10 possible ballot initiatives restricting fracking, Anadarko has deployed 160 landmen, geologists and engineers such as Johnson to Rotary clubs, high schools and mothers groups. They demonstrate how drilling works and try to convince people that the technique and the accompanying chemicals and geological effects don’t harm the environment or public health.
The wide-ranging outreach in Colorado, the nation’s seventh-biggest oil producer and sixth-largest gas provider, represents a policy shift. The energy industry that has been known for insisting on confidentiality from employees about fracking practices now allows geologists, landmen and colleagues in 40 Anadarko job categories to divulge details of what they do to their churches, neighbors and golfing buddies.
Johnson, who’s personal motto is “faith, family and fracking,” told students in Windsor that she’s supervised 1,000 fracks in the course of her 24-year career without harm to the environment.
“I live right here,” Johnson said when she visited the school 60 miles (97 kilometers) north of Denver this month. “My family is here. My mother-in-law graduated from your high school. She turns 80 this year. We would know if something’s wrong.”
Real facts from the folks who live and work in the communities in question.
More rulemaking on the way, regardless of which amendments make the 2016 ballot:
Fresh off some recent rulemaking, Colorado’s oil and gas regulatory agency is turning its attention to one of the most persistent complaints from people living near extraction operations: noise.
The Colorado Oil and Gas Conservation Commission is in the process of gathering technical data from state health experts, industry officials and third party consultants regarding noise, its health impacts and mitigation measures, said Dave Kulmann, COGCC deputy director.
Since discussions are still in the early stages, no date is set for when formal rulemaking might start, although it will likely be some time late in 2016. Kulmann said the agency wants to gather the technical data before speculating on which specific aspects of the current regulations might be beefed up, but it is clear, he said, that noise is an issue.
In 2015, after implementing a new complaint process on Jan. 9 of that year, the COGCC received a total of 330 complaints on issues ranging from odors to traffic problems to property damage, according to a detailed complaint report compiled by COGCC. Of the total complaints, 123 were due to noise.
The Gold King Mine and Animas River spill–and the EPA–are still under scrutiny, even if the prominent news coverage has waned:
If a private company dumped three million gallons of toxic sludge into Colorado waterways, we’d be flooded with daily media updates for months. Yet the press has by now forgotten the disaster unleashed in August when EPA contractors punctured an abandoned mine. New evidence suggests the government isn’t coming clean about what happened.
EPA planned its disastrous investigation of the mine for years, not that you’d know: The agency assumed a layout of the area that contradicted public records, including the remarkable conclusion that a drain ran near the ceiling of the mine’s entrance. This led EPA to believe that water backed up only about half the tunnel. The agency didn’t test the water pressure, a precaution that would have prevented the gusher. EPA hasn’t explained this decision, and emails obtained by the committee show the on-site coordinator knew there was “some pressure.”
The crew made more bad decisions than characters in a horror movie. About a week before the blowout, the on-site coordinator went on vacation and left instructions that his replacement seems to have ditched. For example: Don’t dig toward the tunnel floor unless you have a pump handy. The crew pressed downward without a pump and intentionally unearthed the mine’s plug. “What exactly they expected to happen remains unclear,” the report concludes. The Interior Department now euphemistically calls this series of events an “excavation induced failure.”
EPA is so far suggesting that no one committed crimes, and maybe so. But consider: EPA cranked out a report three weeks after the disaster and said the Interior Department would conduct an independent review that the Army Corps of Engineers would sign off on. EPA testified to the committee that Interior would look for wrongdoing, though Interior said the department was only offering technical support.
Filed under: CDPHE, Environmental Protection Agency, Legal, Legislation, New Energy Economy, regulations, renewable energy, solar energy, wind energy
Across all sectors of Colorado the cost of electricity has skyrocketed more than 67 percent between 2001 and 2014, easily exceeding median income growth and the expected rate of inflation for the same period, an extended analysis of government energy records by the Independence Institute has revealed.
For all sectors between 2001 and 2014, the cost per kilowatthour jumped from just over 6 cents to more than 10 cents, or 67.11 percent.
Data obtained by the Independence Institute from the Energy Information Administration and the U.S. Census Bureau showed an increase in electricity rates for residential, commercial, industrial, and transportation sectors throughout the state contributing to the across-the-board growth in prices. In November, the Energy Policy Center reported a staggering increase of 63 percent for residential customers in Colorado.
“Retail residential electricity rates increased from 7.47 cents per kilowatthour in 2001 to 12.18 cents per kilowatthour by 2014, a 63.1 percent hike. Coloradans’ median income, however, went up just 24.1 percent, from $49,397 to $61,303. Median income in Colorado actually declined between 2008 and 2012,” the report concluded. It also noted that the U.S. Bureau of Labor and Statistics projected just a 34 percent increase in inflation for the 14 year period, using the agency’s CPI inflation calculator.
And while the data for late 2015 from the BLS indicated a modest decline of 2.9 percent in electricity prices for the Denver-Boulder-Greeley census area, this drop in rates did not offset the 3.8 percent increase seen one year earlier. While global commodity prices have given Colorado energy consumers a brief respite (and wild fluctuations in prices), electricity generation and costs have proven less volatile.
“The energy index, which includes motor fuel and household fuels, decreased 19.0 percent from the second half of 2014 to the second half of 2015, following an increase of 0.3 percent in the same period one year ago. Falling prices for motor fuel (-26.0 percent), all of which occurred in the first half of the period, were largely responsible for the decline in the energy component. Lower prices for utility (piped) gas service (-18.9 percent) and electricity (-2.9 percent) also contributed to the decrease. During the same period one year ago, motor fuel costs declined 3.1 percent, while the indexes for utility (piped) gas service and electricity rose 5.8 and 3.8 percent, respectively,” the BLS report concluded.
Analysis from the earlier November report on residential electricity rates stands confirmed and, indeed, underscored:
It’s clear from the data that Coloradans’ income is not keeping pace with almost continuous electricity price increases over the past 15 years, consistently outpacing the rate of inflation. Colorado’s ratepayers have had to endure two economic recessions over that period, while feeling no relief from escalating energy prices driven by onerous regulations driving energy costs ever higher.
From fuel-switching and renewable mandates to other costly regulations imposed by state and federal agencies, Colorado’s ratepayers and taxpayers alike have been subject to policies that do not consider energy affordability or reliability as a primary concern. The most vulnerable communities–elderly, minorities, and the poor–are the most sensitive to even the smallest increases in energy costs.
Not to mention the state’s many business owners, including small business owners, who face the same hikes in energy costs that could force decisions like layoffs or relocation to nearby states, where energy costs are lower. This reduces job growth and harms the state’s economy twice, with increased business costs passed on to consumers–the same ratepayers who already are paying more at the meter.
Upshot: the data for the remaining sectors emphasizes the double impact that increased energy costs have in the form of rapidly escalating electricity rates on Colorado ratepayers, who see not only their own personal energy costs rise, but are hit a second time by commercial, industrial, and transportation charges that are “baked into” the cost of providing goods and services that are passed on to consumers.
William Yeatman, senior fellow of environmental policy and energy markets at the Competitive Enterprise Institute and author of the Independence Institute’s 2012 Cost Analysis of the New Energy Economy, said in the November report that given the current regulatory climate, things “could get much worse.”
Some of the costs already baked in to electricity prices came directly from policy initiatives undertaken in the last decade.
Yeatman analyzed 57 legislative items included in the push for a “New Energy Economy,” determining that as much as $484 million in additional costs were incurred by the state’s Xcel customers–an additional $345 per ratepayer.
“The best explanation for this confounding upward trend in utility bills nationwide is the Obama’s administration’s war on coal. Colorado, alas, was well ahead of the curve on the war on coal, which explains much of why the state’s rate increases are presently so much greater than the nationwide average,” Yeatman said.
Part of the war on coal, the Environmental Protection Agency finalized the Clean Power Plan in August 2015.
The policy battle over the EPA’s Clean Power Plan, and the future of Colorado’s electricity rates, rests upon multi-state legal challenges to the agency’s authority that just last week resulted in a stay from the U.S. Supreme Court. That decision was overshadowed, however, by the subsequent death of Justice Antonin Scalia days later, leaving the legal challenge in turmoil given the SCOTUS’ delicate and likely 4-4 ideological split and the contentious election year battle over nominations to replace Scalia.
Meanwhile, Governor John Hickenlooper remains committed to pushing for a “prudent” continuation of planning for Clean Power Plan implementation, with the Colorado Department of Public Health and Environment proceeding with its pre-stay timeline. Colorado Senate Republicans, however, called ignoring the court’s stay “unacceptable.” Legislation addressing CDPHE’s ability to proceed with CPP planning will likely be introduced before the end of the 2o16 Colorado legislative session.
The Independence Institute’s analysis of electricity costs, broken down by the other sectors, shows commercial electricity rates for Colorado have seen a 77.78 percent increase from 2001 to 2014, jumping from 5.67 cents per kilowatthour to 10.08 cents.
Industrial rates have tracked with the overall rate increase of approximately 67 percent, from 4.48 cents to 7.47 cents per kilowatthour.
Transportation figures from EIA data do not extend back to 2001. Instead, the trackable data begins in 2003, with a sharp decline by 2005, before prices more than doubled, from 5.01 cents to 10.79 cents per kilowatthour, or a 115 percent increase in the last full 10 years of EIA measurement.
Overall increases for comparison (with the adjustment for transportation noted):
For a complete description of EIA definitions of electricity consumers and data collection, click here.
Filed under: CDPHE, Environmental Protection Agency, Legal
Join us Tuesday, February 16 at noon as the Competitive Enterprise Institute and Independence Institute discuss the latest on the EPA’s Clean Power Plan/111d rule, including the SCOTUS stay issued this week.
Competitive Enterprise Institute’s Center for Energy and Environment, and Raymond Gifford, a partner at the law firm Wilkinson, Barker, Knauer, LLP and a leading an expert in public utilities law, will provide in-depth analysis of what the Clean Power Plan means for Colorado and discuss the efforts being made across the country to stop this onerous regulation.
Free lunch, RSVP required.
WASHINGTON—A divided Supreme Court on Tuesday temporarily blocked the Obama administration’s initiative to limit carbon emissions from power plants, dealing an early and potentially significant blow to a rule that is the cornerstone of President Barack Obama’s efforts to slow climate change.
The court, in a brief written order, granted emergency requests by officials of mostly Republican-led states and business groups to delay the regulation while they challenge its legality.
Although the Supreme Court’s order is temporary and isn’t a ruling on the merits, it indicates the court’s conservative majority harbors misgivings about the Obama administration plan. It signals the rules could run into trouble in the courts, which could hamper the administration’s ability to follow through on U.S. commitments in the Paris climate deal.
The court’s action, which divided the justices along ideological lines, came as a surprise to many observers because the court has strict criteria for granting stays. And the Environmental Protection Agency rules, issued last summer, have yet to be evaluated by lower court judges.
The EPA rule is aimed at compelling utilities to shift away from coal-fired power plants, which have been the bedrock of U.S. electricity generation for decades, toward such renewable sources as wind and solar, and to a lesser extent toward natural gas and nuclear power.
Some have said that all that needs to be done is for the administration to change as a result of the 2016 election, but that may not be enough:
The Supreme Court issues stays sparingly, and only when specific criteria are met. Those include a “reasonable probability” that four justices will agree to review the case, and a “fair prospect” that five justices could vote to overturn a lower court ruling.
In addition, the court must find that irreparable harm will result to parties in the case unless the stay is granted, and that public interest is served by granting a stay.
White House officials said they were surprised by the court’s move. “Granting a stay in these circumstances is extraordinary,” one official said.
The ultimate outcome of the case likely won’t be decided until the next president is in office. Should the rule survive in the courts and a Republican be elected president, a GOP administration would face hurdles in abandoning the regulations.
Very few final regulations have ever been repealed by an administration—Republican or Democratic. To repeal a regulation, you have to write, and legally justify, a new regulation explaining why you are getting rid of the earlier one, a process that could take years and would be unlikely to withstand legal scrutiny, experts say.
As we wrote in a previous blog post, the Colorado Department of Public Health and Environment plans on proceeding with the rule’s implementation, calling its own decision to do so, “prudent”:
It is prudent for Colorado to move forward during the litigation to ensure that the state is not left at a disadvantage if the courts uphold all or part of the Clean Power Plan. Because the Supreme Court did not say whether the stay would change the rule’s compliance deadlines, Colorado could lose valuable time if it delays its work on the state plan and the rule is ultimately upheld.
The legal experts I’ve spoken with have said that the compliance deadlines were part of the stay, and dispute the agency’s interpretation that the state would lose time if it did not proceed with planning.
When the Independence Institute conducted our own poll last August on Colorado and the Clean Power Plan, “Nearly 6 in 10 said the state should wait to comply—not move forward as Governor John Hickenlooper has directed—on drawing up a state implementation plan for the Clean Power Plan.”
The new timetable for the Clean Power Plan and any legal proceedings should push well into 2017 and even early 2018.
The Attorney General’s office said Cynthia Coffman would not pursue intervention at the state level (DBJ article, paywall).
The EPA, like CDPHE, plans to push forward at the state level, offering guidance:
The EPA immediately issued a statement pledging to support states that wish to continue developing compliance plans.
“We’re disappointed the rule has been stayed, but you can’t stay climate change and you can’t stay climate action,” the EPA said. “Millions of people are demanding we confront the risks posed by climate change. And we will do just that. We believe strongly in this rule and we will continue working with our partners to address carbon pollution.”
Legal experts began weighing in on the SCOTUS stay, saying the EPA’s own attitudes and statements regarding previous rulemaking legal challenges may have pushed the Court to take this action:
This Court’s decision last Term in Michigan v. EPA, 135 S. Ct. 2699 (2015), starkly illustrates the need for a stay in this case. The day after this Court ruled in Michigan that EPA had violated the Clean Air Act (“CAA”) in enacting its rule regulating fossil fuel-fired power plants under Section 112 of the CAA, 42 U.S.C. § 7412, EPA boasted in an official blog post that the Court’s decision was effectively a nullity. Because the rule had not been stayed during the years of litigation, EPA assured its supporters that “the majority of power plants are already in compliance or well on their way to compliance.” Then, in reliance on EPA’s representation that most power plants had already fully complied, the D.C. Circuit responded to this Court’s remand by declining to vacate the rule that this Court had declared unlawful. […] In short, EPA extracted “nearly $10 billion a year” in compliance from power plants before this Court could even review the rule […] and then successfully used that unlawfully-mandated compliance to keep the rule in place even after this Court declared that the agency had violated the law.
Reaction from the Colorado Senate Republicans was swift:
Senate President Bill L. Cadman said he believes Gov. Hickenlooper should respect the Court’s ruling by instructing the Colorado Department of Public Health and Environment (CDPHE) to suspend all CPP implementation activities.
“In granting the stay on the EPA’s so-called Clean Power Plan, the US Supreme Court said there is a likelihood that the 27 states now suing the EPA will prevail in court and that allowing EPA to proceed without a stay would do irreparable harm to the states,” said Cadman. “That being the case, Colorado should follow the federal court ruling and suspend all CPP implementation.”
Senator John Cooke (R-Weld County) called the stay “a great victory for Colorado ratepayers and the rule of law. This US Supreme Court decision should send a strong message to the Governor not to force Colorado working families into an expensive, likely unconstitutional EPA plan that will cost Coloradans thousands of jobs.”
Senator Jerry Sonnenberg (R-Sterling) said he is very surprised by the White House and CDPHE statements defying the Supreme Court ruling. “Today the CDPHE said it is ignoring the stay and proceeding to implement the CPP. That is unacceptable, and Governor Hickenlooper needs to explain why his administration is not complying with the federal court order,” said Sonnenberg.
Republicans also offered praise for Attorney General Cynthia Coffman’s participation in the 27-state court challenge, which has drawn fire from Gov. Hickenlooper.
“We owe a big ‘thank you’ to Attorney General Cynthia Coffman for challenging the plan in federal court,” said Cooke. “This victory illustrates the value of having an attorney general who can act independently from the governor when the public interest demands it.”
As a reminder, the Heritage Foundation’s Nic Loris outlines just how much an impact the Clean Power Plan would have on its intended target–climate change:
The plan, which the EPA finalized in October 2015, requires most states to meet individual carbon dioxide emissions reduction goals for existing power plants by 2022 and again in 2030. States are to submit plans about how they would comply with the regulations by September but could ask for two-year extensions. As Politico reports, “[l]awsuits over the rule are expected to continue into 2017 at the earliest, with the Supreme Court widely expected to be the final arbiter of the regulation.”
To be clear, the Clean Power Plan has nothing to do with regulating pollutants that have adverse impacts on human health. Instead, it focuses strictly on attempting to combat global warming. Attempting is the operative word.
Even if you accept the administration’s premise that climate change is an urgent threat (which is questionable), the regulation would have almost no effect on global warming. If the states implemented the regulations flawlessly, a near impossibility, the Clean Power Plan would avert a mere 0.02 degrees Celsius by 2100.
As we say frequently on this blog, there will definitely be more to come!
Colorado Department of Public Health and Environment plans to ignore SCOTUS stay, proceed with Clean Power Plan implementation
Filed under: CDPHE, Environmental Protection Agency, Legal
From the CDPHE website, calling the decision to proceed on developing implementation despite the stay issued by the U.S. Supreme Court on the Clean Power Plan, while litigation is proceeding, as a “prudent” move:
Statement on U.S. Supreme Court Decision Regarding the Clean Power Plan
Yesterday, the United States Supreme Court stayed the U.S. Environmental Protection Agency’s (EPA) Clean Power Plan, a rule designed to reduce nationwide emissions of carbon dioxide from power plants by about one-third. The stay is a temporary measure while the federal courts review the merits of the rule.
The Colorado Department of Public Health and Environment has been working since last summer to develop a state plan to achieve the Clean Power Plan’s carbon reduction targets for Colorado. The department will continue to coordinate with stakeholders to develop this state plan during the litigation. The Court of Appeals for the District of Columbia Circuit will hear oral arguments on the rule in June.
It is prudent for Colorado to move forward during the litigation to ensure that the state is not left at a disadvantage if the courts uphold all or part of the Clean Power Plan. Because the Supreme Court did not say whether the stay would change the rule’s compliance deadlines, Colorado could lose valuable time if it delays its work on the state plan and the rule is ultimately upheld.
Colorado’s utilities, local governments, nongovernmental organizations, and other stakeholders have provided valuable input on the development of the state plan. The department will evaluate the decision and coordinate with stakeholders to assess how the stay might impact the timing and substance of the state plan.
Climate change remains both a critical environmental and public health and welfare issue. Colorado has and will continue to develop cost-effective strategies to diversify our energy mix, strengthen our economy and lower our greenhouse gas emissions. Through the Colorado Climate Plan, state agencies also will develop and implement innovative strategies to mitigate the impacts of climate change.
Governor John Hickenlooper attempted to challenge Attorney General Cynthia Coffman’s ability to join the multi-state lawsuit against the EPA and the Clean Power Plan, but failed when the Colorado Supreme Court decided not to review the petition.