November 5 Colorado Energy Cheat Sheet: Hickenlooper seeks CO Supreme guidance on Coffman EPA lawsuit; divestment movement is back at CU; WOTUS opposition in U.S. Senate

November 5, 2015 by michael · Comments Off
Filed under: CDPHE, Environmental Protection Agency, Legislation, PUC, regulations 

Governor John Hickenlooper finally filed his request with the Colorado Supreme Court to determine which office–governor or attorney general–has the final say in Colorado’s lawsuit against the Environmental Protection Agency’s Clean Power Plan. Attorney General Cynthia Coffman, joined the lawsuit with approximately two dozen other states in October.

Via the BARN blog:

Gov. John Hickenlooper today filed a petition asking the Colorado Supreme Court to issue a legal rule that the governor, not the attorney general, has the ultimate authority to decide on behalf of the state when to sue the federal government in federal court.

“The attorney general has filed an unprecedented number of lawsuits without support of or collaboration with her clients,” said Jacki Cooper Melmed, chief legal counsel to the governor. “This raises serious questions about the use of state dollars and the attorney-client relationship between the governor, state agencies and the attorney general.”

From the full petition:

Governor Hickenlooper petitions this Court under Colorado Constitution art. VI, § 3, and C.A.R. 21 for a rule requiring Attorney General Coffman to show cause regarding her legal authority to sue the United States without the Governor’s authorization. In this Petition, he requests a ruling on the Governor’s and Attorney General’s respective authority under the Constitution and laws of Colorado to determine whether the State of Colorado should sue the United States. The Governor asks this Court to issue a legal declaration that (1) the Governor, not the Attorney General, has ultimate authority to decide on behalf of the State of Colorado whether to sue the federal government, and (2) the Attorney General’s lawsuits against the federal government without the Governor’s authorization must be withdrawn.

No doubt this request will remain at the top of the news between the Democratic Governor and the Republican Attorney General as the hotly contested and controversial Clean Power Plan moves forward despite pending lawsuits. The EPA has already schedule a series of public hearings on the CPP implementation at four locations over the next two weeks in Pittsburgh, Atlanta, Washington, DC, and Denver.

How contested is the rule? At least twenty-six states have filed lawsuits–24 in a joint lawsuit, with two other states filing separately–while 18 states have filed a motion on behalf of the EPA and the Clean Power Plan.

The Clean Power Plan has split the country in half. More to come.

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Earnest but misguided students at the University of Colorado have resurrected their divestment push and will harangue the CU Board of Regents with the usual mix of ideology and theater today, even after being voted down 7-2 back in April:

Also on Thursday, the student group Fossil Fuel CU is planning an “action” toward the end of the board’s meeting, complete with banners, signs, posters and singing. That’s likely to be a recurring theme again this year.

“The folks who don’t stand with us anticipated that that block in process would dishearten student leaders or stifle the campaign we’ve been building for two years, but it actually did quite the opposite,” said P.D. Gantert, who is taking time off from CU classes to organize divestment movements across the southwestern United States. “It emboldened us to take even more risky and loud actions to stand up for what we know is the change that needed to happen at our university.”

Here’s what I had to say back in April during a board meeting and hearing on the divestment question, as quoted by the Daily Camera:

“The anti-fossil fuel campaign is really a national campaign run by far-left environmental activists,” said Michael Sandoval of the Independence Institute, a free-market think tank in Denver, during a board meeting in April. “To be blunt, this is a national campaign using college students to shut down one of Colorado’s leading job creators.”

Schools from Swarthmore to Harvard, hardly conservative bastions, have rejected the arguments in favor of divestment. Our own spring intern, Lexi Osborn, took down the divestment arguments in an op-ed for the Greeley Tribune back in February:

Divestment activists appear willing to jeopardize university assets in the name of saving the planet. Yet they may not realize how ineffective their project would be.

A new report by the American Security Project found that university divestment from fossil fuels will have no mitigating effects on carbon emissions. Divestment does not decrease the demand for fossil fuels; it merely moves the money around. The campaign additionally ignores the complexities of transitioning to a “renewable and emission-neutral economy.”

Another study by University of Oxford found that, even if all capital were divested from university endowments and public pension funds, it would be such a small percentage of the market capitalization of traded fossil fuel companies that the divestment would barely impact the fossil fuel industry.

But the divestment of fossil fuel assets might not be the real goal of the campaign. In a video interview, Klein states that they are using the movement to create a space where it is easier to tax, nationalize and undermine oil companies. She claims that the people have a right to the oil industry’s “illegitimate” profits to make up for the crisis created by this sector.

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The U.S. Senate moved beyond court injunctions on the EPA’s stalled Waters of the United States rule this week, with Republicans pushing forward on a repeal measure and another calling for revisions, with the former facing a veto from the Democratic administration, and the latter falling to Democratic opposition in the Senate itself:

“Coloradans know when they’re getting soaked,” Colorado Sen. Cory Gardner, a Republican, said following votes on Tuesday. “This rule is so poorly written and ill-conceived that multiple federal judges have put halts on its implementation.”

The resolution that passed in an effort to essentially repeal the rule fell under the Congressional Review Act, which allows for a simple majority to disapprove of any regulation. It passed Wednesday 53-44. The White House has already issued a veto threat.

The measure calling on the Environmental Protection Agency to rewrite the water rule required a procedural vote to advance. But it fell three short of the 60 votes needed, with Democrats leading the effort to stop the bill.

Gardner supported a rewrite in order to enact stronger state and agricultural protections with more input from local communities. He also supported the resolution eliminating the rule.

“The WOTUS rule is a classic example of federal overreach, giving the EPA authority to regulate ponds, ditches and tiny streams across Colorado and the West,” Gardner said.

Sen. Michael Bennet helped quash the rewrite measure.

***

The ongoing battle between the city of Boulder and Xcel Energy received clarification from the Public Utilities Commission this week.

***

Despite production records, Noble Energy sees losses in the third quarter due to lower commodity prices, and will likely trim staff numbers later this month.

October 29 Colorado Energy Cheat Sheet: Hickenlooper vs. Coffman over EPA lawsuit; EPA spill report short on info says New Mexico; Frack or Treat

October 29, 2015 by michael · Comments Off
Filed under: CDPHE, Environmental Protection Agency, Legal, Legislation, PUC, regulations, solar energy, wind energy 

Attorney General Cynthia Coffman’s decision to challenge the Environmental Protection Agency’s authority to implement the Clean Power Plan has initiated a constitutional battle in the eyes of Governor John Hickenlooper:

Gov. John Hickenlooper said Monday he will seek the state Supreme Court’s opinion on the legality of Attorney General Cynthia Coffman’s lawsuit to stop implementation of the Clean Power Plan.

“This notion of everyone suing all the time every time you disagree with a specific remedy, a specific statute, is part of what makes people so frustrated with government,” Hickenlooper, who supports the plan, said in a meeting with The Denver Post’s editorial board.

“Except in very rare circumstances, generally the governor is supposed to make that decision in concert with the attorney general,” Hickenlooper said of the lawsuit. “But the governor should have that final say.”

Hickenlooper’s office pushed the issue further, saying the AG’s actions “just gets in the way” of state plans to cooperate with the CPP:

“The statute that we’re looking at speaks of prosecuting and defending on the request of the governor,” said Jacki Cooper Melmed, Hickenlooper’s chief legal counsel, citing Colorado’s revised statutes, title 24, article 31, part 1.

Cooper Melmed said she is worried about conflicts as some Coffman deputies work with Hickenlooper’s administration to implement the plan while others in the attorney general’s office try to quash it.

“This just gets in the way,” Cooper Melmed said of the lawsuit. “There’s no wall really high enough to allow these two things to happen out of the same office.”

Coffman, for her part, said she was “disappointed” in the Governor’s decision.

Former Colorado Attorney General Gale Norton called Hickenlooper’s stance “unusual” when it comes to the relationship between AG and Governor, even when representing opposing parties:

“For the governor to try to challenge in this way is unusual,” Norton said.

In almost all cases where a governor challenges an attorney general, Norton said, rulings are in the attorney general’s favor.

“The attorney general represents the state and not the governor,” Norton said. “The attorney general is elected to provide independent representation of the state’s interest.”

The Pueblo Chieftain and the Colorado Springs Gazette support Coffman’s lawsuit, while the Denver Post welcomes the clarification that the Colorado Supreme Court’s advice might bring.

Steamboat Today has a great roundup of other reactions for and against the lawsuit.

***

It’s not just states suing the EPA over the Clean Power Plan–at least 26 states filed almost immediately after the ruling was published last Friday–but other lawsuits are on their way from the U.S. Chamber of Commerce, National Rural Electric Cooperative Association and National Association of Manufacturers.

The EPA, meanwhile, is touting its flexibility–a “wide range of choices”–in allowing states to file extensions:

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Taking another crack at busting the CPP progress, this time using pre-existing Congressional review legislation:

Lawmakers opposed to the Obama administration’s climate rule for power plants are moving to block the regulations from taking effect.

Several senators will offer Congressional Review Act (CRA) resolutions Monday that seek to stop the Clean Power Plan. Senate Majority Leader Mitch McConnell (R-Ky.), a longtime opponent of carbon regulations for the power sector, will schedule a vote on the resolutions soon after they come out.

“I have vowed to do all I can to fight back against this administration on behalf of the thousands of Kentucky coal miners and their families, and this CRA is another tool in that battle,” McConnell said in a statement.

The Congressional Review Act gives lawmakers the ability to end an executive branch regulation through an act of Congress.

***

Communities around Colorado continue to struggle with mine runoff, the August EPA spill in southwest Colorado not withstanding:

Toxic mines hang over this haven for wildflowers, contaminating water and driving residents — like counterparts statewide — to press for better protection.

A local group went to federal court this month seeking long-term assurances that a water-treatment plant will always remain open as the collapsed tunnels and heaps of tailings leak an acid mix of heavy metals: arsenic, cadmium, zinc and others.

State data show these contaminants reaching Coal Creek — the primary water source for Crested Butte and the Gunnison Valley’s green pastures — at levels exceeding health standards.

“A lot of people are nervous,” said Alli Melton of High Country Conservation Advocates. “We’d like to get it as clean as possible.”

But the EPA isn’t being all the helpful, as the Interior Department inspector general report on the Gold King Mine/Animas River spill concluded, as the U.S. Chamber points out:

These two quotes from the report illustrate just how careless EPA was:

EPA has “little appreciation for the engineering complexity.”

“[T]here appears to be a general absence of knowledge of the risks associated with these [abandoned mining] facilities.”

Even EPA’s internal investigators didn’t hold back on the agencies irresponsibility. Its initial review concluded the spill was “likely inevitable,” but the agency wasn’t prepared to contain a spill before digging into the mine.

That isn’t much consolation for the folks in Colorado, New Mexico, Utah, and the Navajo Nation affected by the spill, as New Mexico’s top environmental watchdog Ryan Flynn said, quoted again by the Chamber:

While the report reveals that an EPA decision was made to refrain from validating the flawed water level estimates with a previously used successful procedure (using a drill rig to bore into the mine from above to directly determine the water level of the mine pool prior to excavating the backfill at the portal); the report says absolutely nothing about who made the decision to fly by the seat of their pants, by digging out the closed Gold King Mine tunnel based on un-validated estimates of what volume and pressure of contaminated water would be violently released.

Here in New Mexico, we are already quite clear on the fact that EPA made a mistake, as the DOI’s report underwhelmingly reveals. What we were wondering, and hoped the report could tell us, is why EPA made the mistake, and who at EPA made the decisions that authorized dangerous work to proceed based on un-validated estimates. It is shocking to read the DOI’s “independent investigation” only to find that it overlooks the who, the how, and the why. [emphasis added]

***

How big are subsidies for electric cars? Without the $5,000 tax credit in Georgia, the state saw sales of electric vehicles plummet nearly 90% in just two months:

According to Georgia car registrations, sales shot up as electric car buyers rushed to take advantage of the tax credit before it expired. But the numbers declined sharply in July and took a swan dive in August — the most recent month tabulated:

electric-vehicle-sales-in-Georgia-in-2015-data-compiled-by-Don-Francis

The decline from 1,338 in June to 148 in August represents a drop of 88.9 percent.

Read the rest of this excellent Watchdog article here.

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It’s almost Halloween, so we’ll end on a spooky anti-energy note from Energy in Depth:

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The Community Environmental Legal Defense Fund (CELDF) has been waging an extreme campaign to ban fracking through so called “Community Bill of Rights” ballot initiatives, especially targeting communities in Colorado, Ohio, and Pennsylvania. The group has already forced taxpayers to pay tens of thousands of dollars to defend their illegal ordinances and it is now planning to hit communities in California, Oregon, New Hampshire and Washington State. In fact, as Energy In Depth’s new video shows, this Halloween, CELDF’s extreme (and expensive) campaign could be coming to a ballot box near you.

October 22 Colorado Energy Cheat Sheet: Another CO mine faces WildEarth Guardians Lawsuit; EPA panel in GJ draws large crowd; regulatory freeze as part of debt ceiling debate?

UPDATE–Clean Power Plan rule will be published in Friday’s Federal Register, opening the door for multi-state lawsuits over the next two months:

CLEAN POWER PLAN – LADIES AND GENTLEMEN, START YOUR ENGINES: EPA’s carbon rule for power plants will formally be published in tomorrow’s The Federal Register, according to a pre-publication notice that showed up this morning. That means tomorrow kicks off the 60-day clock to sue over the rule. Expect the first suits to be filed shortly after the court opens for business Friday.

The Clean Power Plan, covering existing power plants, is available here. The rule for new, modified and reconstructed power plants is here. And the proposed federal implementation plan, set for finalization next year, is available here.

Just in time, environmentalists are holding a press call this morning outlining a legal defense for the rule. Meanwhile, the House Energy and Power Subcommittee also just happens to be holding a hearing this afternoon on CPP legal issues – and the witness list includes Elbert Lin, West Virginia’s solicitor general and likely one of the people who will argue against the rule in front of judges down the line.

As Alex Guillen reports this morning for Pros, “The timing of the rules’ publication , nearly three months after President Barack Obama rolled them out at the White House, makes it unlikely that a court will act to block them ahead of December’s Paris talks, where some 200 nations will gather to hash out a pact to address climate change.”

More to come.

***

Another Colorado mine is facing a lawsuit from the WildEarth Guardians, but this time, the communities of western Colorado are preparing ahead of time:

MAKE A STAND

Each day, thousands of rural Coloradans, small businesses, schools and farms rely on the clean, low-cost energy fueled by Trapper Mine’s nearly 200 employees. For more than three decades, Trapper has provided affordable energy across the West, jobs to hundreds of families and vast civic and economic benefits to our northwestern Colorado community.

Now, we need our community to Stand with Trapper.

On October 29, from 4 to 8 p.m., the federal Office of Surface Mining will host a public meeting to gather public comments on the scope of an environmental assessment the agency will prepare in response to a lawsuit brought by WildEarth Guardians. The October 29 public meeting includes a comment period through November 12 to further gather input. All public comments during this phase are due to OSM no later than November 12—and must be in written form.

The agency’s completion of this assessment is vital to Trapper’s future.

We ask that you attend this meeting and provide support for Trapper’s workers and their families, the positive impact Trapper makes to the community, the mine’s nationally recognized environmental stewardship and reclamation efforts—and its commitment to providing affordable and reliable energy.

The public meeting will be held October 29, from 4 to 8 p.m., at the Moffat County Fairgrounds’ Pavilion Building. The event will provide an opportunity to ask questions andmeet with OSM and Trapper representatives and to provide written comments on the environmental assessment.

Community members can also provide written comments via email and written letters to OSM. For more information and to submit comments, please click here.

Thank you for Standing with Trapper.

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More on the public comment:

Bill Ray, public information officer for Trapper, said Moffat County’s attendance at the meeting and participation throughout the comment process is crucial.

“This process is vital to Trapper’s future, and we believe to the community’s future,” he said. “We encourage community members to come to the meeting, to provide written comments and to stand with Trapper.”

Ray said throughout the comment period, Trapper would continue to work with the community to help it stay informed. Future public meetings organized by Trapper are a possibility but none have been scheduled so far.

Chris Holmes, public affairs specialist for OSMRE, said all comments are accepted but substantive ones are the most useful.

“The comments that we look for are those that have carefully examined all the issues, looked at the specific permit that’s in question and the revisions,” he said. “Substantive comments are what carry the most weight.”

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Could the debt ceiling provide a mechanism for pushback against regulatory overreach and “midnight” regulations promulgated between next year’s election and the new President’s inauguration? A proposal from the Republican Study Committee called “Terms of Credit: Budget, Work, Grow”:

Grow: In order to give firms and workers certainty and allow the economy to grow, freeze all
regulations until July 1, 2017.
• Current freeze – Prohibit any significant regulatory action through July 1, 2017, subject to
health, safety, and national security waivers
• No midnight rules – Prohibit any new regulatory action between the date of a presidential
election and the next inauguration, again subject to health, safety, and national security
waivers

You can view the bill summary here, and the full text of the bill here.

The freeze on regulations would include the Environmental Protection Agency’s Clean Power Plan. More to come.

***

Dan Haley, president and CEO of the Colorado Oil and Gas Association, has an op-ed in The Hill calling for the U.S. to allow crude oil exports, with Colorado taking a lead:

In my state of Colorado, this is not a partisan issue but one of common sense and business opportunity. Colorado Governor John Hickenlooper, a Democrat, and Senator Cory Gardner, a Republican, both support lifting the ban. Plus, with Reps. Ken Buck (R), Mike Coffman (R), Doug Lamborn (R), Ed Perlmutter (D) and Scott Tipton (R) all voting to dump this outdated policy, once again we see Colorado as a leading bipartisan voice for this issue.

Colorado’s elected officials understand the world, and our economy, have changed greatly since the 1973 Arab oil embargo led Congress to pass the ban on U.S. oil exports in nearly all circumstances.

In today’s world, oil and liquefied natural gas (LNG) exports offer a path away from OPEC domination of the world’s energy markets. Unstable regimes in Russia and the Middle East should not be allowed to hold such sway over the international market. Increasing U.S. production and exports strengthens our country’s energy independence and national security and benefits our allies across the globe.

While opponents of lifting the ban argue that it could raise the price of gasoline studies have clearly shown the opposite is actually true. According to the U.S. government’s Energy Information Administration, exporting U.S. oil would encourage more production while opening up new markets which can further ease the prices at the pump with the additional supply.

Lifting the export ban is a major opportunity for this country and one that should not be missed. It is time that we cement our nation as the global energy leader it is destined to be and create thousands of well-paying American jobs in the process.

But Garfield County is not optimistic about immediate development, thanks to new oil and gas regulations, and activists are happy for the additional red tape:

Garfield County commissioners are worried that proposed new state rules to address conflicts between oil and gas development and neighborhoods could unduly drag out how long it takes companies to get approval to drill.

“It adds a year to the process,” Garfield Commissioner Tom Jankovsky said Monday about a proposed local government consultation process, echoing a concern also raised by Commissioner John Martin.

Jankovsky said the proposal could add $500,000 to $1 million to the cost of developing a well pad.

But Leslie Robinson, president of the Grand Valley Citizens Alliance, said the extra time is warranted to address concerns such as the possible impacts of drilling to the thousands of residents in Battlement Mesa.

“It should go through this long process,” she told commissioners.

The commissioners are working to submit comments to the Colorado Oil and Gas Conservation Commission as that agency prepares to act on two recommendations of a recent state task force. The agency is looking to require energy companies to consult with the affected local government when proposing a large drilling operation near an urban residential area, and require companies to provide long-term drilling plans to local governments.

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(Former PUC chair Ray Gifford offers details about the EPA’s Clean Power Plan, photo courtesy of Colorado Senate GOP)
About 100 people on Colorado’s western slope attended a panel on the coming storm of EPA regulations, co-sponsored by the Independence Institute, the National Federation of Independent Businesses, Americans for Prosperity, and the Colorado Senate Republicans:

The U.S. Environmental Protection Agency’s proposed Clean Power Plan would have long-term negative impacts on the nation’s coal industry if it survives a legal challenge, one expert on the issue said on Tuesday.

At a one-sided forum sponsored by several right-leaning groups, Denver attorney and former Colorado Public Utilities Commission chairman Ray Gifford told about 100 Western Slope residents and government officials the impact the plan would have on coal-fired power plants specifically, and the coal industry in general.

Under the plan, which is to become official in the next few weeks but doesn’t fully go into effect for a few years, states would be required to reduce ozone emissions from power plants by 32 percent of 2005 levels by 2030.

States would have to come up with their own plans for achieving that goal by the end of next year, but can request a two-year extension if they can show they are making “substantial progress” toward a viable plan, Gifford said.

While he and others questioned whether the EPA has the legal authority to implement such a plan — lawsuits have already been filed challenging it — Gifford also said the federal agency is playing loose and easy with the facts behind the idea.

“The state lawsuit is essentially going to say that the EPA has vastly exceeded its authority, which is true,” Gifford said. “It’s undertaken a rule of scope and scale that’s never been contemplated before essentially by taking over the nation’s electric grid and dictating the change by 2030, and the assumptions that it uses are arbitrary and capricious, which are the legal magic words. How that (lawsuit) goes is anybody’s guess.”

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(NFIB’s Tony Gagliardi gives an update on the Waters of the United States rule (l-r: Gifford, State Sen. Ray Scott, R-Grand Junction, photo courtesy of Colorado Senate GOP)

Two more EPA panels will be held next week–Wednesday October 28 in Pueblo, and Thursday October 29 in Denver.

***

An additional 500-600 gallons of orange water is being emitted from the Gold King Mine every minute since the August blowout, costing taxpayers nearly $15 million and prompting more calls for “Good Samaritan” legislation:

The Aug. 5 blowout at the Gold King Mine created memorable images of orange water that flowed from Colorado’s Animas River into the San Juan River in New Mexico and Utah. Clean-up has cost taxpayers $14.5 million and counting. But some say spills like this aren’t the main concern.

“Blowout scenarios — they are impressive, they get a lot of attention, they are probably not the biggest issue,” said Peter Butler, co-chair of the Animas River Stakeholders Group. “The biggest issue is more the continuous metal loading that comes from the mining sites.”

Take the site of the Gold King Mine spill. Construction crews have now finished a $1.5 million temporary wastewater treatment plant for the Gold King Mine. EPA on-scene coordinator Steven Way explains that 500 to 600 gallons of orange water has continued to gush out of the mine since last August.

But that facility is only handling water from the Gold King Mine. It’s not treating water from two additional old mines and an underground tunnel that are draining another 500 gallons of wastewater every minute.

The Animas River isn’t the only Colorado river running orange.

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Speaking of water–another Front Range vs. rest-of-the-state battle is shaping up over the precious resource:

Objections from Front Range cities are forcing state officials to make a last-minute overhaul of Colorado’s water plan and pledge to build new reservoirs that enable population growth.

Aurora, Colorado Springs, Denver and Northern Colorado Water Conservancy District providers also are demanding that the state detail plans for the diversion of more water across mountains to the Front Range.

That puts them at odds with Western Slope residents, who Tuesday weighed in with their own demand that Gov. John Hickenlooper block diversion of more water.

The Colorado Water Plan, 30 months in the making, spells out how the state intends to supply water for the 10 million people projected to live in the state by 2050. Hickenlooper has ordered the Colorado Water Conservation Board to complete the plan by Dec. 10.

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The solar energy industry blames think tanks and utilities (and the fossil fuel companies that fund them) for its poor market performance in a new report:

After years of rapid growth, Colorado’s once red-hot solar energy industry has faded recently, according to a new report from Environment Colorado, which blames fossil fuel-funded think tanks and utilities for raining on the state’s solar parade.

According to “Blocking the Sun: 12 Utilities and Fossil Fuel Interests That Are Undermining American Solar Power,” Colorado’s solar power capacity increased 44 percent a year from 2010 to 2013, but then dropped dramatically between 2013 and 2014, knocking the state from 7th to 10th in terms of solar power capacity per capita in the United States.

“Despite the fact that we have one of the best solar assets in the country, Colorado’s market share is shrinking nationwide due to weak utility support and uneven legislative progress,” said Alex Blackmer, president of the 5,000-member Colorado Renewable Energy Society, on a conference call with reporters late last week.

Independence Institute comments to CDPHE on Clean Power Plan implementation in Colorado

Thanks to the Colorado Department of Public Health and Environment for holding this event.

A few comments for the agency to consider.

First, in your December 2014 comments, the Colorado Department of Public Health and Environment, the Colorado Public Utilities Commission, and the Colorado Energy Office all maintained that ‘In Colorado, the PUC has exclusive statutory authority to regulate the IOUs and associated electric resource decisions’ and that ‘depending upon the plan elements proposed by Colorado, legislation may be needed to clarify or direct state agencies on their respective roles and authorities’–and since no legislation appears to have clarified this point, how do you expect to proceed?

Second, the state’s top law enforcement official Attorney General Cynthia Coffman believes the CPP to be overreach and has joined more than one dozen other states suing the EPA to stop the CPP. The EPA has even said in its brief in response to petitions for extraordinary writ in the D.C. Circuit:

“…if a state believes it appropriate to do so, it could defer much of the planning effort until judicial review is complete. The initial submittal requires substantially less than a state plan.”

We are pleased to hear today that this advisement has been acknowledged and that CDPHE will take the maximum time allowed.

Third, we hope that you include more input from citizens and ratepayers, the most important stakeholders in the state. A recent Magellan poll revealed 59% of Colorado voters want to WAIT for all legal challenges to be completed BEFORE Colorado complies and the EPA says that’s okay. So it seems prudent to wait for legal challenges to be completed. In the meantime we shouldn’t be planning compliance but rather studying what the CPP’s impact on the economy and Colorado’s working family, low income and minorities in a fair and open way. We need to know the full impact of the estimated $600 additional cost per year per Colorado family for no measurable impact on emissions.

In that light, we wonder how Colorado will remain committed to ensuring reliable and affordable electricity if it pushes forward with a plan without allowing legal challenges to be resolved?

Thank you for this opportunity to speak on behalf of Colorado citizens and ratepayers. We appreciate CDPHE’s process and support an open, transparent stakeholder process subject to relevant legislation.

Colorado to join Clean Power Plan lawsuit against EPA, says AG Coffman

August 29, 2015 by michael · Comments Off
Filed under: Environmental Protection Agency, Legal 

A welcome development–Attorney General Cynthia Coffman says joining a lawsuit “where we need to be” when it comes to Colorado and the Environmental Protection Agency’s Clean Power Plan, finalized earlier this month:

Colorado has joined a growing list of states that will sue the Environmental Protection Agency in an attempt to stop the implementation of President Obama’s controversial Clean Power Plan.

Attorney General Cynthia Coffman said the lawsuit, challenging the EPA’s authority, represents “crucial litigation” against the measure first proposed last year. More than 20 states are expected to be a part of the filing.

“We have been looking at (the plan) and evaluating whether or not there is such an impact on Colorado that we needed to put our name on a lawsuit ,” Coffman, a Republican, said in an interview Friday with The Denver Post. “… We just determined this week that is exactly where we need to be.”

This would be the second lawsuit joined by the state of Colorado. A judge earlier this week blocked the EPA from moving forward in 13 states, including Colorado, on the agency’s Waters of the United States rule.

EPA overreach and drastically elevated electricity prices form the basis of concern, accompanied by legal questions over the agency’s legal authority to steer a state’s electricity portfolio:

“If you make a change like the one we will see if this rule is implemented, I think it has the potential to cost jobs,” Coffman said. “I think it will impact the rates that we pay for our electricity. And I think it impacts the rights of our state government to make these decisions about how electricity is delivered.”

The Colorado Mining Association, an industry association with more than 1,000 members, commends Coffman for challenging the EPA’s regulations.

“By joining this lawsuit, General Coffman seeks to protect Colorado consumers from skyrocketing electricity prices as well as increased costs for all goods and services that are produced using electricity,” the association said in a Saturday news release.”The EPA regulations are legally flawed, will cost Colorado jobs and threaten the reliability of the electrical grid,” the association said in a Saturday news release.

August 27 Colorado Energy Cheat Sheet: Bennet says ozone rule “not going to work”; net metering gets a boost from PUC

bennet

Sen. Michael Bennet, joined a bipartisan group of officials in Colorado questioning the proposed Environmental Protection Agency’s new ozone rule proposal at the recent Colorado Oil and Gas Association Energy Summit in Denver:

Senator Bennet and Gardner participated on a panel hosted by the Colorado Oil and Gas Association on August 26. Below is the question posed to Senator Bennet, and his response:

Manu Raju, Politico: Senator Bennet, a big issue here in the room is the ozone standards. Environmental groups, EPA officials are concerned about excessive levels of ozone; that they could lead to premature death and respiratory problems. The business community warns that the standards EPA is proposing would be very bad here in Colorado; it would cost a lot of jobs. The current ground-level ozone standard set in 2008 is 75 parts per billion. EPA’s proposal is lowering it to 65 to 70 parts per billion, and it could go even lower. Question to you: Do you think the EPA proposal is fair? Should they go to 65 parts per billion?

Senator Bennet: I’m deeply concerned about it. I think we should understand how they arrived at that conclusion, because the way some statutes are written, they don’t sometimes have the flexibility we think they should have. And this is the perfect example of applying the law and doing it in a way that doesn’t make sense on the ground. Because of the pollution that’s come in from other Western states, from across the globe, from wildfires in the West, we have significant parts of our state that would be in non-attainment [unintelligible] from the very beginning of the law. That doesn’t make any sense. That’s not going to work.[emphasis added] Having said that, we need to care a lot about our kids and the elderly and the quality of the air that they breathe, and we need to care about children in our state that have asthma. So my hope is that we can work together to get to a rational outcome, but I’m not—The one that’s been proposed is not yet there.

Earlier this month, The Center for Regulatory Solutions issued a report that included opinions from Democrats, Republicans, and other elected officials from across the state opposing or pushing back against the EPA ozone rule. A sampling of those statement can be found in our August 13 edition.

***

Net metering, a handout from folks who don’t own solar panels to those who do, in the form of retail price reimbursement for the electricity they generate–gets a boost from a unanimous Public Utilities Commission decision to keep the current rates in place:

Colorado’s Public Utility Commission ruled Wednesday afternoon that no changes were needed to the state’s net metering process, meaning that homeowners with solar arrays will continue to receive retail rates for energy they produce.

“The PUC voted (3-0) today to maintain the status quo for the net metering program and close the docket,” PUC spokesman Terry Bote confirmed via email.

Net metering provides a credit for every kilowatt-hour an array puts on the grid at the same price residential customers are charged for electricity – about 10.5 cents.

Xcel Energy, the state’s largest electric utility, has been pushing a plan to cut the incentives for each kilowatt-hour produced to a fraction of a penny, but solar users and industry groups have lobbied hard against changes that would remove a key financial incentive.

“This appears to be the outcome we have been working towards in more than a year of work on this docket,” said Rebecca Cantwell, executive director of the Colorado Solar Energy Industries Association. “We have worked in full collaboration with other members of the solar industry, and this represents a tremendous amount of hard work from many people. Xcel officials could not immediately be reached for comment.

“Key financial incentive” = subsidy.

From my op-ed late in 2014, as the PUC was steering through a slate of meetings to determine the “value of solar”:

At issue is the method of calculating the “value of rooftop solar,” as the Public Utilities Commission chairperson put it this year. Solar proponents believe the credits for excess electricity generated by solar panels and pushed back onto the grid should continue to get 10.5 cents per kilowatt-hour — the average of annual residential retail rates.

Xcel is arguing for a reduction to 4.6 cents, saying the costs associated with maintaining the grid made the reimbursement unfair.

Xcel representatives called maintaining the 10.5-cent credit a “hidden cost” for its 1.2 million Colorado ratepayers. “Everybody needs to pay for the cost of the grid,” said spokesperson Hollie Velazquez Horvath.

Rooftop solar uses the grid in multiple ways. For customers pulling energy when the sun isn’t out (or near maximum generation) or pushing electricity onto the grid at the peak of summer, the grid balances supply and demand, regulating and stabilizing electrical output. It also acts as the exchange mechanism when a customer goes from generating and reselling excess electricity, to periods when the customer needs more electricity than the solar panel provides.

Customers who generate enough “revenue” from their net metering credits end up paying little or nothing for the grid costs. The costs get shifted to the utilities’ non-solar customers.

In other words, solar proponents advocate that non-solar ratepayers continue to subsidize grid maintenance for solar customers and then purchase electricity from those same solar customers at a price higher than they would pay for Xcel to generate the power.

The PUC has closed the docket on this proposal, but the legislature may look to take up the issue of net metering in future sessions.

***

Speaking of Sen. Michael Bennet (D-CO), the Democrat up for reelection in 2016 has some words of advice for embattled Democratic Party presidential frontrunner Hillary Clinton on #KeystoneXL:

DENVER — Sen. Michael Bennet (D-Colo.) on Wednesday dinged Hillary Clinton for punting on the issue of Keystone XL oil pipeline.

“I think she should take a position,” Bennet said of his party’s presidential frontrunner at a Colorado Oil and Gas Association conference here. “She should take a position for it — or she should take a position against it.”

Speaking at a forum moderated by POLITICO, Bennet said he supports building the pipeline. He is up for reelection next year in this perennial swing state and could face a tough battle if the GOP fields a formidable opponent.

***

A Colorado Association of Commerce and Industry panel of five of the state’s Congressional delegation was split on whether federal or state and local authorities were the best in dealing with oil and gas regulations–an issue Colorado registered voters in a recent Independence Institute poll said should go the state’s way, 37 to 5 percent, over DC-based rulemaking:

On energy legislation, the three Democrats and two Republicans who represent portions of metro Denver took not two but three different stances on which government should be most responsible for oversight of the oil and gas industry:

Democratic U.S. Rep. Diana DeGette of Denver said that while she respects the laws the state has drafted, the federal government must play a role in regulating the effects of drilling on waterways that flow between states.

Coffman said that regulations should fall to the state government, where bodies like the Colorado Oil and Gas Conservation Commission are much more in touch with the needs of local residents.

And Democratic U.S. Rep. Jared Polis of Boulder — who last year backed two state constitutional amendments to increase the role of cities and counties in regulation of drilling before pulling the measures— said it is actually local governments like those in Weld County that should decide where and how oil rigs should be allowed to operate in their communities. “I don’t trust the D.C. politicians. I don’t trust the Denver politicians,” said Polis, a fourth-term congressman. “This is a decision that should be made at the local level.”

Don’t be too impressed with Polis’s “local level” mantra as anti-fracking activists look to resurrect ballot issues designed to ban oil and gas development under the guise of “local community control.” Polis backed similar measures in 2014 before they were pulled in favor of Governor John Hickenlooper’s oil and gas commission.

***

The Clean Power Plan may have been finalized on August 3, but serious questions about the EPA’s assumptions for the rule remain, as an analysis by Raymond L. Gifford, Gregory E. Sopkin, and Matthew S. Larson show (all emphases added):

• EPA scaled back on carbon dioxide reductions from coal plant improvements and energy
efficiency in its Final Rule under the Clean Power Plan, but nevertheless increased its
carbon reduction mandate from 30 percent to 32 percent by 2030. EPA did so through its
use of “potential renewables” as the variable driving eventual state carbon budgets. EPA now
forecasts that incremental renewable energy electric generation (Building Block 3) will more
than double, from 335,370 gigawatt hours in the Proposed Rule to 706,030 GWh in the Final
Rule.

• EPA uses a complicated and unprecedented methodology to achieve its new renewable
energy forecast for the years 2024 through 2030. Looking to historic renewable capacity
additions during 2010-2014, EPA selects the maximum change in capacity for each renewable
resource type that occurred in any year over the five-year period, and adds this maximum
capacity change year-over-year from 2024 through 2030. The maximum capacity addition
year selected by EPA for each resource is more than twice as much as the average over 2010
- 2014.

EPA’s methodology fails to account for the fact that expiration of the production tax
credit, or PTC, drove the development of renewable energy resources during 2012.

Renewable energy capacity additions fluctuated substantially between 2010 and 2014,
especially the largest component of Building Block 3, onshore wind power. EPA uses the
anomalous year, 2012, to predict future growth of wind power. In 2012, the wind production
tax credit was expected to expire at the end of the year, causing producers to rush to install as
much wind capacity as possible. Other renewable resource types also showed non-linear and
unpredictable trends during 2010 – 2014.

• EPA’s renewable energy expectations diverge by an order of magnitude from the EIA’s
base case renewable energy capacity and generation forecasts over the 2022 – 2030 period.
Notwithstanding these incongruences with EIA’s forecasts, EPA suggests that its forecasted
renewable energy additions would occur in the normal course even without the CPP.

EPA assumes that fossil fuel generation could be displaced based on the average capacity
factors of renewable energy resource types (e.g., 41.8 percent for onshore wind power).
However, utilities and restructured market system operators assign a much lower capacity value
for wind power, in the 10-15 percent range, because wind production is often not available during
peak load conditions.
To the extent that the EPA’s assumed renewable energy displacement of
fossil fuel resources does not occur because wind, solar, or other intermittent generation is not
available, system capacity will in real terms be lost absent planners assigning a much lower
capacity value to the given renewable resource (and in turn adding additional capacity, be it
fossil-based or renewable).

The authors conclude:

Setting aside enforceability, the President gave EPA a goal in his Climate Action Plan: achieve a 30% carbon emission reduction by 2030. EPA proceeded to solve for that goal with a capacious construction of the BSER [Best System of Emission Reduction] under the Clean Air Act. While gas “won” in the near-term under the Proposed Rule, in the end renewable energy resources assume a Brobdingnagian role in determining the level of carbon emission reductions that are purportedly possible under the BSER. EPA’s Final Rule constructs a method that solves for a conclusion, instead of having a method that yields a conclusion. Of even greater concern, EPA’s use of renewable average capacity factors instead of capacity credit exacerbates reliability risks to the electric system during peak load conditions. The end result may be unknown, but the method of getting there is highly questionable at best.

***

LINKS

Despite tanking oil prices, a new outfit, Evolution Midstream, announced a planned $300 million launch, saying of the current situation that “this too shall pass.”

Paving the way for the EPA’s Clean Power Plan, the billionaire Tom Steyer funded and pushed a “state-level advocacy network” to prop up the controversial plan and give endangered politicians cover.

Colorado’s oil and gas production projected to fall, according to a University of Colorado study.

***

Animas River updates

EPA officials knew of a “blowout” potential as much as a year before the Animas River spill, but even the release of this info took place late on a Friday, in what AP reporter Nick Riccardi called a “very late-night document dump on Gold King mine”:

U.S. officials knew of the potential for a catastrophic “blowout” of poisonous wastewater from an inactive gold mine, yet appeared to have only a cursory plan to deal with such an event when a government cleanup team triggered a 3-million-gallon spill, according to internal documents released by the Environmental Protection Agency.

The EPA released the documents late Friday following weeks of prodding from The Associated Press and other media organizations. While shedding some light on the circumstances surrounding the accident, the newly disclosed information also raises more questions about whether enough was done to prevent it.

The Aug. 5 spill came as workers excavated the entrance to the idled Gold King Mine near Silverton, Colorado, unleashing a torrent of toxic water that fouled rivers in three states.

A June 2014 work order for a planned cleanup noted the mine had not been accessible since 1995, when the entrance partially collapsed.

“This condition has likely caused impounding of water behind the collapse,” the report said. “Conditions may exist that could result in a blowout of the blockages and cause a release of large volumes of contaminated mine waters and sediment from inside the mine.”

An EPA internal review post-spill revealed that they never checked the water levels or the pressure contained within the mine despite their June 2014 work order:

Dangerously high water pressure levels behind the collapsed opening of the Gold King Mine were never checked by the Environmental Protection Agency, in part because of costs and time oversights.

The revelations came Wednesday as the EPA released an internal review of a massive Aug. 5 blowout at the mine above Silverton. The report called an underestimation of the pressure the most significant factor leading to the spill.

According to the report, had crews drilled into the mine’s collapsed opening, as they had done at a nearby site, they “may have been able to discover the pressurized conditions that turned out to cause the blowout.”

EPA officials claim they were caught unaware:

EPA supervisor Hays Griswold, who was at the scene of the blowout Aug. 5, told The Denver Post in an interview this month conditions in the mine were worse than anticipated.

“Nobody expected (the acid water backed up in the mine) to be that high,” he said.

The report says, however, that decreased wastewater flows from the mine, which had been leaching for years, could have offered a clue to the pressurization. Also, a June 2014 task order about work at the mine said “conditions may exist that could result in a blowout of the blockages.”

The inability to obtain an actual measurement of the mine water pressure behind the mine’s blocked opening “seems to be a primary issue,” according to the review. It went on to say if the pressure information was obtained, other steps could have been considered.

It did not elaborate on what those steps could have been.

“Despite the available information suggesting low water pressure behind the debris at the adit entrance, there was, in fact, sufficiently high pressure to cause the blowout,” the review says. “Because the pressure of the water in the adit was higher than anticipated, the precautions that were part of the work plan turned out to be insufficient.”

Stan Meiburg, EPA’s deputy administrator, said during the call that “provisions for a worst-case scenario were not included in the work plan.”

The 3 million gallon orange spill was, apparently, the worst-case scenario.

The internal investigation called the agency’s preparedness when it came to analysis of the water issue as “insufficient.”

It may take a while–many years–to know how the toxic minerals and metals released by the EPA will settle in the sediment of the Animas River and further downstream:

As communities along the Animas River continue to wonder about the long-term consequences of the Gold King Mine spill, one of the biggest questions remaining is the orange sediment lying along riverbeds and riverbanks.

What’s in it? How long will it be there? How might it affect our drinking water and our health? These are all concerns for community members, and many experts say we may not know until time goes by and a few spring runoffs continue to wash it downstream.

The EPA isn’t getting off the hook with the release of internal reports admitting lack of preparation or failure to measure water levels, or even late-night docu-dumps:

Republicans say the administration has been too wrapped up in guarding the world against climate change to address environmental dangers closer to home and should be held accountable, according to Texas Republican Lamar Smith, who is leading a probe into the spill in the House.

“Even in the face of self-imposed environmental disaster, this administration continues to prioritize its extreme agenda over the interests and well-being of Americans,” said Smith, chairman of the House Science, Space and Technology Committee.

The committee has scheduled a Sept. 9 hearing on the spill and has requested the head of EPA and the contractor involved in the mine incident to testify. It appears from the internal reports that the contractor involved in the spill was the same one that drafted the blowout report.

The report that was released “in the dead of night” Friday raises new questions about the depth of EPA’s culpability, according to Smith. “The actions that caused this spill are either the result of EPA negligence or incompetence,” he said. “We must hear from all those involved to determine the cause of what happened and how to prevent future disasters like this.”

The agency’s lack of timely dissemination of documents and details has been a theme since the spill erupted earlier this month.

But partisan flaps at the federal level between Republicans in Congress and one of the administration’s favorite agencies is not the only scene of squabbles, as local officials allege Republican Attorney General Cynthia Coffman had a partisan agenda in mind when scheduling meetings in Durango in the aftermath of the spill.

And finally, Silverton decided to seek federal funds for clean up operations after years of reservations over possible “Superfund” designation:

After two decades resisting Environmental Protection Agency funds for cleanup of the festering mines that dot its surroundings, Silverton on Tuesday announced it is seeking federal help.

A joint resolution passed by the town’s board and the San Juan County Commission says officials will work with neighboring communities to petition Congress for federal disaster dollars they hope will address leaching sites quickly.

“Silverton and San Juan County understand that this problem is in our district, and we feel we bear a greater responsibility to our downstream neighbors to help find a solution,” the resolution said.

The decision is a paradigm shift for the small town of about 650 year-round residents in the wake of a 3 million-gallon wastewater spill Aug. 5 at the Gold King Mine in the mountains to the north.

August 13 Colorado Energy Roundup: EPA dumps on Colorado with Clean Power Plan, Ozone rule–then releases a toxic mess!

August 13, 2015 by michael · Comments Off
Filed under: CDPHE, Environmental Protection Agency, Legal, Legislation, PUC 

To say the Environmental Protection Agency has been in the news lately would be an understatement. Just this time last week, less than 24 hours after triggering a spill of toxic sludge including heavy metals into the Animas River in SW Colorado, most folks were unaware of the situation due to a lack of EPA communication–but more on that in a minute.

They were too busy focused on the new carbon-cutting Clean Power Plan rules being dumped on the state by the regulatory side of the agency.

Here’s a recap of the CPP, as Independence Institute’s Mike Krause can explain:

Or more in depth from former Colorado Public Utilities Commission chair, Ray Gifford:

Last week the EPA finalized the rule, as we told you in last week’s edition of the Energy Roundup, with the Colorado Attorney General Cynthia Coffman considering joining a multi-state lawsuit challenging the CPP’s legality, and legislators possibly returning to some form of transparency or oversight for the CPP state implementation plan, now with pushed back deadlines (and therefore more sessions to seek legislation).

The Independence Institute has a CPP backgrounder that provides further details.

EPA Administrator Gina McCarthy discussed the launch of the CPP in a video on Tuesday.

***

Hot on the heels of the CPP, the EPA expects to finalize rules for ground-level ozone some time in October. But large and small businesses alike, from the National Association of Manufacturers to Colorado Association of Commerce and Industry, joined the Center for Regulatory Solutions (CRS), a project of the Small Business Entrepreneurship Council (SBE Council), in a press call yesterday to announce a new study that looked at the effects of the ozone rule on Colorado. The sheer volume of bipartisan commentary opposing the proposed ozone reduction is particularly eye-opening in these normally contentious times, and shows a break with the EPA on new regulations–the ozone rule might be a step too far following so closely behind the CPP:

“This ozone proposal gives the federal government far too much control over state and local planning decisions that shape the Colorado economy,” said Karen Kerrigan, President of the Small Business and Entrepreneurship Council. “Colorado is one of the biggest success stories of the federal Clean Air Act, but now the EPA is moving the goalposts. The standard is so strict – approaching background levels in some areas – that the vast majority of the state economy will be found in violation immediately. Violation of the ozone standard gives EPA the authority to effectively rewrite state and local environmental laws the way Washington wants.”

“No wonder this EPA proposal has been met with such strong and diverse opposition from across Colorado’s political spectrum. Washington officials, all the way up to President Obama himself, should listen to the voices coming from Colorado and across the country and once again give the current standard a chance to work.”

A sample of the key findings:

By lowering the National Ambient Air Quality Standard from 75 parts per billion (ppb) into the 65 to 70 ppb range, EPA would force, with a single action, at least 15 counties in Colorado to be in violation of federal law. These happen to be some of Colorado’s most populated counties, concentrated in the Denver metropolitan area, but a number of counties on the Western Slope may be dragged into non-attainment as well. Together, these 15 counties are responsible for 89 percent of Colorado’s economy and 85 percent of state employment. (Page 3)

Under the Clean Air Act, cities and counties that do not meet the NAAQS for ozone are placed into “non-attainment,” or violation of federal environmental standards. Once in non-attainment, local and state officials must answer to the federal government for permitting and planning decisions that could impact ozone levels. State officials are required to develop an “implementation plan” that imposes new restrictions across the economy, especially the transportation, construction and energy industries. The EPA has veto power over these implementation plans. States that refuse to comply, or have their implementation plans rejected, face regulatory and financial sanctions imposed on them directly from the federal government. (Page 19)

The report, entitled “Slamming the Brakes: How Washington’s Ozone Plan Will Hurt the Colorado Economy and Make Traffic Worse” has revealed that opposition to the ozone rule with a river of comments from Colorado state and local officials.

Here’s a sample of the bipartisan criticism:

State Senator Cheri Jahn (D):

“Coloradans care deeply about the environment. After the great progress we have made on air quality, our state should be praised, not punished. This ozone proposal out of Washington, D.C. scares my constituents, because it could hamstring our regional economy and cost jobs.

We have worked so hard to bring manufacturing jobs to Colorado, and by moving the goal posts on ozone, the EPA is going to chase manufacturing jobs away from our state. This plan could also gum up the approval process for badly needed road and transportation investments, which will make our traffic worse, and make it much harder to attract new industries, grow existing businesses, and strengthen Colorado’s middle class.”

State Senator Ellen Roberts (R):

“If the EPA carries out this ozone plan, Western Colorado will be placed at a terrible economic disadvantage. We have worked hard to responsibly care for our environment even as we grow and diversify our economy.

Tightening the ozone standard any further just does not make sense when the existing standard, which is less than 10 years old, is working. I urge the EPA to reconsider this plan and leave the 2008 standard in place.”

State Senator Jerry Sonnenberg (R):

“The EPA’s proposed new standards would drive small family farms such as mine out of business. We have never been able to afford new equipment and if the only way to comply with this new standard is with new equipment, my family would have to leave agriculture. Even if we could meet the standards with expensive upgrades to our machinery, the increased costs to finance those upgrades, as well as the fuel and the fertilizer, takes a marginally profitable farm and turns it into one that can’t make its payments.

Unless you want to see the family farm only as a memory, one must make the EPA understand that their new standards will have a devastating effect on rural America and the agriculture economy.”

Routt County Commissioners Douglas Monger (D), Cari Hermacinski (R), Timothy Corrigan (D):

“We set and meet high standards because we know it is good for our people and our state. So you might expect us to support the Environmental Protection Agency’s proposed standards for ground-level ozone. Those standards, however, are too overbearing and are meeting with a lot of resistance even in places where air quality regulations are welcome…

These standards must not be implemented. If they go forward as proposed, they will do more than put good people out of work and cause hardships for communities that have done so much to protect the land, air and water around them. They will turn away a lot of people who have been receptive to the idea that government can be trusted to do environmental regulation the right way.”

NAM also released a video ad buy, to be seen across Colorado over the next few days:


***

Only the sheer quantity of toxic material–some 3 million or so gallons of Sunny-D colored water laden with heavy metals–comes close to the media coverage of one of the biggest environmental stories in recent Colorado history.

Most of the stories have been widely publicized and shared, so here is a quick look at this EPA-related (not strictly energy-related) blockbuster news blitz from just the past two days alone, in reverse chronological order (most recent first):

EPA Contractor Behind CO Mine Spill Got $381 Million From Taxpayers:

The EPA is not letting the public know the names of the government contractors responsible for spilling three million gallons of toxic wastewater from a southern Colorado mine. The agency is holding the information close — so close, the Colorado attorney general’s office doesn’t have it.

A spokesman with the Colorado attorney general’s office told The Daily Caller News Foundation the EPA had not disclosed the names of the federal contractor that caused millions of gallons of wastewater into the Animas River — leaked contaminants include zinc, copper, cadmium, iron, lead and aluminum.

EPA Withholding Mine Spill Info From State AGs:

The EPA is not letting the public know the names of the government contractors responsible for spilling three million gallons of toxic wastewater from a southern Colorado mine. The agency is holding the information close — so close, the Colorado attorney general’s office doesn’t have it.

A spokesman with the Colorado attorney general’s office told The Daily Caller News Foundation the EPA had not disclosed the names of the federal contractor that caused millions of gallons of wastewater into the Animas River — leaked contaminants include zinc, copper, cadmium, iron, lead and aluminum.

Animas River outfitters shut as plume passes, but say they’ll endure:

“Very difficult,” said Alex Mickel, who has turned hundreds of customers away from his Mild to Wild Rafting each day since the Environmental Protection Agency accidentally unleashed a 3 million gallon torrent of toxic mine water into the headwaters of the Animas last week.

“We are anticipating around $150,000 to $200,000 in lost revenue,” Mickel said. “But from an emotional standpoint, it’s difficult to see a beautiful river damaged in this way.”

Animas River spill leaves Colorado, neighbors weighing EPA lawsuit:

The attorneys general of Colorado, New Mexico and Utah said Wednesday that a lawsuit against the Environmental Protection Agency is an option in the wake of a massive mine wastewater spill caused by the agency.

All three, however, agreed that it’s too early to say if they will sue.

“I would hope that it would not be necessary,” Colorado’s Cynthia Coffman, a Republican, said of a suit in an interview with The Denver Post. “The statements by the (EPA’s administrator) indicate the EPA is accepting responsibility for the accident. The question is: What does that mean? What does accepting responsibility mean?”

Hickenlooper drinks Animas River water to make a point:

Gov. John Hickenlooper on Tuesday drank a hearty gulp of the Animas River in an effort to highlight that the river has returned to pre-contamination conditions.

The governor and his health department director, however, cautioned that citizens should not be freely drinking from the river, because the water was unsafe for consumption even before the Environmental Protection Agency released an estimated 3 million gallons of mining wastewater into it.

But the drinking exercise indicated that state officials are more than confident that the river does not pose a toxic risk to humans, as they publicly stated on Tuesday.

“Am I willing to go out there and demonstrate that we’re back to normal?” Hickenlooper asked out loud after The Durango Herald raised the idea with the governor. “Certainly. I’m happy to do that. I’m dead serious.”

Navajos Distrustful OF EPA Promises On Toxic Mine Spill:

Navajo Nation is furious with the EPA, not just because the agency accidentally spilled three million gallons of toxic mine waste in the region, but because the agency is allegedly trying to get tribal members to waive rights to future compensation for damages incurred by the toxic spill.

“The federal government is asking our people to waive their future rights because they know without the waiver they will be paying millions to our people,” Navajo President Russell Begaye told Indianz.com. “This is simple; the feds are protecting themselves at the expense of the Navajo people and it is outrageous.”

Congressmen: EPA Must Answer For Spilling Toxic Waste:

Republican congressmen are calling for the EPA to be held accountable for spilling 3 million gallons of toxic mine wastewater into the Animas River last week, especially since the agency is a government entity and won’t be punished to the same degree a private company would for spilling waste.

“The EPA must be held accountable for its actions,” Rep. Lamar Smith told The Daily Caller News Foundation in an emailed statement. “If a private company caused such a disaster, it would be hit with substantial penalties and would be required to pay for cleanup.”

“In this case, it will be the taxpayers who foot the bill,” the Texas Republican said. “The EPA has an obligation to the families and businesses that have been devastated by this spill.”

Screen Shot 2015-08-12 at 9.51.55 PM

From the Denver Post house editorial:

The U.S. Environmental Protection Agency’s clumsy, tone-deaf response to the toxic disaster on the Animas River was an embarrassment even to the EPA. One agency official managed to admit the reaction was “cavalier,” but that’s putting a mild face on it.

Top EPA official takes responsibility for Colorado mine spill:

EPA Administrator Gina McCarthy said Tuesday in Washington, D.C., that she takes full responsibility for the spill, which she said “pains me to no end.” She said the agency is working around the clock to assess the environmental impact.

Hickenlooper sees a silver lining:

“Colorado’s governor thinks a mine spill accidentally triggered by an EPA crew will move the state and federal government to more aggressively tackle the “legacy of pollution” left by mining in the West.

Gov. John Hickenlooper said Tuesday that much of the wastewater has been plugged up, but the state and the Environmental Protection Agency need to speed up work to identify the most dangerous areas and clean them up.

The former geologist says that if there’s a “silver lining” to the disaster, it will be a new relationship between the state and the EPA to solve the problem.”

Navajo Nation Mourning, Pleading for Help After Toxic Mine Spill Contaminates Rivers

John Hickenlooper calls Animas River disaster “unacceptable”:

Gov. John Hickenlooper on Tuesday stood on the banks of the Animas River and said last week’s spill of 3 million gallons of contaminated mining waste water into its flow was “in every sense, unacceptable.”

He said the long-term effects of the spill, which happened as the Environmental Protection Agency was investigating the contaminated mine, are unknown.

The governor said he has spoken with the head of the EPA, Gina McCarthy, and described her as “committed” and “firm” in her resolve to respond to the spill. McCarthy will be in Durango and New Mexico on Wednesday, she said Tuesday on Twitter.

“I think we share the anger that something like this could happen,” Hickenlooper said. “But I think that said, our primary role is now: that’s behind us and how are we going to move forward.”

EPA Shrugs after Spilling Millions of Gallons of Toxic Water into a River in the Mountain States

EPA Chief Apologizes as Anger Mounts:

Environmental Protection Agency Administrator Gina McCarthy apologized Tuesday for a mine spill in Colorado that her agency caused last week and planned to travel to the area Wednesday, amid increasing criticism from lawmakers about the EPA’s response.

Ms. McCarthy said at a news conference in Washington that she was still learning about what happened, responding to a question about whether the EPA was reviewing changes in how it cleans up old mines. “I don’t have a complete understanding of anything that went on in there,” she said. “If there is something that went wrong, we want to make sure it never goes wrong again.”

EPA won’t face fines for polluting rivers with orange muck:

Unlike BP, which was fined $5.5 billion for the 2010 Deepwater Horizon disaster, the EPA will pay nothing in fines for unleashing the Animas River spill.

“Sovereign immunity. The government doesn’t fine itself,” said Thomas L. Sansonetti, former assistant attorney general for the Justice Department’s division of environment and natural resources.

And of course, some folks don’t think the EPA should be blamed . . .

August 6 Colorado Energy Roundup: Clean Power Plan Edition

Colorado’s expected targets on carbon reduction from the finalized Clean Power Plan unveiled Monday:

Colorado’s 2030 goal of a 28 percent reduction in overall carbon dioxide emissions — or a 40 percent reduction in the pounds of CO2 emitted per megawatt hour of electricity generated — was set using a 2012 benchmark.

“Having them stick to that baseline year of 2012, we don’t necessarily get credit for being early thinkers and early movers,” said Dr. Larry Wolk, executive director and chief medical officer of the Colorado Department of Public Health and Environment.

Colorado’s Attorney General Cynthia Coffman has vowed to review the new rules and could consider joining a multi-state lawsuit against the Clean Power Plan:

Attorney General Cynthia Coffman said the plan “raises significant concerns for Colorado” and that she’s considering joining other states in a legal challenge.

Citing concerns about potential job losses and an unrealistic set of goals and timelines, Coffman said in an e-mail she will ” carefully review the EPA’s plan and evaluate its long term consequences for our state.”

“But as I put the best interests of Colorado first, it may become necessary to join other states in challenging President Obama’s authority under the Clean Air Act.”

It is not clear at this time how long Coffman will take to render a decision on whether or not to join that lawsuit, but the Colorado Department of Public Health and Environment’s Dr. Wolk said that the agency is pushing forward:

“It is the right thing to do,” Wolk said.

If there’s a legal challenge to be had related to EPA authority, that’s a matter specific to the attorney general, he said.

“But it is not something we would use to deter our efforts, which have been underway for several years,” Wolk said.

Governor John Hickenlooper’s office told the Denver Post, “We respect the due diligence of the attorney general in reviewing the plan and will watch the next steps closely.”

Hickenlooper has already made it clear his administration welcomed the Clean Power Plan, and would not join an effort to thwart that plan at the state level.

The final rule moves the deadline for state implementation plans back, and the CDPHE has given an initial nod to allowing the legislature to vote on the agency’s plan:

The final state plan will go to the legislature for approval before submission to the EPA. An initial state plan will be due September 2016 with an option for states to request a two-year extension to September 2018 for submission of the final plan.

How much input the Colorado legislature will have remains to be seen due to the possibility of legislation in 2016 and even 2017. Colorado may file for an extension, giving the legislators additional opportunities to consider enabling legislation, procedural requirements such as a stronger or even mandatory role for the Public Utilities Commission, or other variations on how Colorado submits its CPP SIP. The 2015 session saw SB 258, the Electric Consumers’ Protection Act, pass out of the Senate in bipartisan fashion but ultimately die in Democratically-controlled House. The bill would have sought transparency for the CPP state plan by requiring PUC hearings and deliberation, as well as an up or down vote by the Colorado legislature as a whole.

The Independence Institute published a backgrounder in April, during the rule finalization process, that took a look at possible economic and legal implications of the CPP:

– Will require a new regulatory regime, and holistically seeks to remake the nation’s energy policy;
– Will incur massive costs;
– Will greatly affect energy reliability across the country;
– Is likely illegal; and
–Won’t have any measurable impact on global CO2 emissions.

A quick look at Colorado’s CO2 emission levels from the 2012 baseline show a 40.5 percent reduction in carbon by 2030, from 1973 pounds per megawatt hour down to 1174. Interim goals would reach approximately 31 percent reduction between 2022 and 2029, with states receiving some flexibility on reaching the step reductions. The EPA estimates that by 2020, Colorado would see a 14 percent reduction–without any Clean Power Plan guidelines.

States’ goals fall in a narrower band, reflecting a more consistent approach among sources and states.

At final, all state goals fall in a range between 771 pounds per megawatt-hour (states that have only natural gas plants) to 1,305 pounds per megawatt-hour (states that only have coal/oil plants). A state’s goal is based on how many of each of the two types of plants are in the state.

The goals are much closer together than at proposal. Compared to proposal, the highest (least stringent) goals got tighter, and the lowest (most stringent) goals got looser.

o Colorado’s 2030 goal is 1,174 pounds per megawatt-hour. That’s in the middle of this range, meaning Colorado has one of the moderate state goals, compared to other state goals in the final Clean Power Plan.

o Colorado’s step 1 interim goal of 1,476 pounds per megawatt-hour reflects changes EPA made to provide a smoother glide path and less of a “cliff” at the beginning of the program.

The 2012 baseline for Colorado was adjusted to be more representative, based on information that came in during the comment period.

Screen Shot 2015-08-06 at 12.58.53 AM

The full text of the EPA’s outline for Colorado is here:

Colorado Clean Power Plan Goals

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So why can the EPA project an additional 14 percent reduction of carbon emissions by 2020 without the Clean Power Plan?

Energy In Depth has the details, via the Energy Information Administration:

According to a report released today by the Energy Information Administration (EIA), monthly power sector carbon emissions reached a 27-year low in April of 2015. In that same month, natural gas was, for the first time, the leading source of American electricity. As the EIA puts it:

“The electric power sector emitted 128 million metric tons of carbon dioxide (MMmt CO2) in April 2015, the lowest for any month since April 1988…Comparing April 1988 to April 2015 (27 years), natural gas consumption in the sector more than tripled.” (emphasis added)

EIA-chart

EID concludes, “As the EIA’s report clearly shows, these environmental benefits are due in large part to an American abundance of safely produced, clean-burning natural gas.” EPA’s administrator Gina McCarthy has repeatedly pointed to natural gas as a “bridge” or key component in reducing carbon.

But natural gas as a “building block” for CPP compliance is threatened by the next EPA rule to come down the regulatory turnpike, the ground-level ozone rule to be finalized in October, according to the Institute for Energy Research.

***

Studies have considered the cost to the economy and the toll in human terms due to job loss:

President Barack Obama’s plan targeting coal-burning power plants will cost a quarter of a million jobs and shrink the coal industry by nearly half, according to a new report by the American Action Forum (AAF).

The president released final regulations from the Environmental Protection Agency (EPA) on Monday, which require every state to meet strict emission standards for coal-burning power plants in the next 15 years.

The so-called “Clean Power Plan” will cost the industry $8.4 billion, nearly 10 times more expensive than the most burdensome regulation released this year, according to AAF, a center-right think tank led by Douglas Holtz-Eakin, former director of the Congressional Budget Office.

“This week, the Environmental Protection Agency (EPA) released its final greenhouse gas (GHG) standards for existing power plants,” according to the report, authored by AAF’s director of regulatory policy Sam Batkins. “The final plan will shutter 66 power plants and eliminate 125,800 jobs in the coal industry.”

Job loss will be substantial due to the shuttering of coal-fired power plants, including those in Colorado.

It will also likely be heavily localized, as the tenuous situation in northwest Colorado facing the Colowyo Mine and Craig’s coal-fired plant illustrate–and this comes before the state considers how to implement the Clean Power Plan.

Moffat County, where both the mine and power plant reside, would see just a few hundred jobs on the chopping block, but this would devastate the area, as a recent video from Institute for Energy Research showed:

***

Reaction to the rule varied across the spectrum, and the Denver Business Journal gathered a handful of the more pointed statements from both sides:

Joel Serface, managing director of Brightman Energy, a renewable energy development company.

“The Clean Power Plan is a huge opportunity for Colorado’s economy. By tackling the rising economic costs of climate change, we can modernize our energy infrastructure, stimulate innovation and help create thousands of good, new Colorado jobs in high-growth sectors like wind and solar.”

State Sen. John B. Cooke (R-Weld County):

“The Governor needs to commit himself to a true public process, including a rigorous review by the people’s representatives in the Colorado General Assembly, before giving a green light to Colorado’s implementation of this new federal mandate. These rules are being challenged in federal court by sixteen states, and I hope that Colorado’s Attorney General will join that lawsuit now that the EPA rules are final. The fact is, the Clean Air Act passed by Congress does not authorize these costly dictates, and there is a good chance the US Supreme Court will block these rules for that reason.”

ECPA: Mike Nasi’s testimony to Senate Agriculture, Natural Resources, and Energy

April 14, 2015 by Amy · Comments Off
Filed under: CDPHE, Legal, Legislation, New Energy Economy 

Colorado’s Electric Consumers’ Protection Act (ECPA), a bill to address Colorado compliance with the EPA’s proposed Clean Power Plan (CPP), received its first hearing on Thursday, April 9, 2015 in the Senate Agriculture, Natural Resources, and Energy Committee. Senators John Cooke (R-Greeley) and Jerry Sonnenberg (R-Sterling) are the prime sponsors of SB15-258. A number of people and organizations testified in favor of it including Catholic Charities, the Colorado Consumer Coalition, TriState Generation and Transmission Association, and our own Michael Sandoval. All made compelling arguments to support the ECPA. Below is the written testimony of one of the most compelling witnesses air regulatory attorney Mike Nasi.

The bill did pass out of committee with bi-partisan support on a 7-2 vote. Now it moves to Senate Appropriations.

For more information on the CPP and the ECPA, read the Independence Institute’s latest Issue Backgrounder “Colorado and the ‘Clean Power Plan’: Expensive, Ineffective, Illegal, and Impossible” by intern Lexi Osborn.

Also read Sen. Cooke and Sonnenberg’s commentary “No regulation without representation.”

Illegality of EPAs Clean Power Plan & Benefits of the Electric Consumers Protection Act (ECPA) SB15-258

April 9, 2015

TESTIMONY OF MICHAEL J. NASI

Jackson Walker, L.L.P Austin, Texas

My name is Mike Nasi.  I am a partner at the law firm Jackson Walker, located in the firm’s Austin, Texas office where I head up the firm’s air regulatory practice.  I am honored to be here before you today.  I have been asked to testify here today because I have been a practicing air quality attorney working with EPA air quality regulations for over 22 years and represent power generation interests, including rural electric cooperatives, in pending DC Circuit and U.S. Supreme Court cases regarding a number of recently-promulgated EPA air regulations targeting the electric generation sector.

As proposed, EPA’s Clean Power Plan is illegal.  This is not just my opinion, but the position of thirty-two states’ elected officials; huge swaths of the electric power, manufacturing, and chemical industries; various businesses and community organizations; and even those in the President’s inner circle.  As recently stated by Laurence Tribe – the renowned scholar and close advisor to the President:

“EPA is attempting [in the Clean Power Plan] an unconstitutional trifecta: usurping the prerogatives of the States, Congress and the Federal Courts – all at once. Burning the Constitution should not become part of our national energy policy.

The Clean Power Plan (CPP) is an unprecedented and unconstitutional attempt at a power grab by the EPA.  In direct conflict with the 10th Amendment of the U.S. Constitution, EPA intends to take over roles reserved to the states and remake them in their vision – including a takeover of electricity production, consumption and distribution.  Under the guise of “state flexibility,” EPA hopes to coax states, or, if necessary, coerce them to develop state plans that would create authority EPA does not otherwise have to enforce the “outside the fence” elements of the CPP.

The Clean Air Act places limits on EPA’s authority; specifically, to “defining” the best system of emissions reduction – BSER – and promulgating a guideline document.  It does not provide EPA the authority to set binding state-specific emissions rate targets or regulate electricity markets under the auspices of a federally enforceable state plan.  By setting such stringent emissions limits under incredibly compressed timelines, and by preventing states from considering actions they’ve already taken before the 2012 baseline year – including retirements,  significant build out of renewable generation and reductions in end-user demand – EPA has failed to provide the states with any of the state-led authority or flexibility required in the Clean Air Act.  This authority and flexibility is central to the cooperative federalism required by the Clean Air Act.

At its core, EPA does not have the authority to require states to undertake the actions contemplated in its BSER model – the so-called four building blocks of the rule.  Block 1 – increased coal power plant efficiency – is unreasonable and technologically impractical, if not impossible.  The remaining three blocks, however, are where EPA truly contravenes the Clean Air Act by looking “beyond the fence” for emissions reductions.  The plain language of Section 111(d) makes it clear that a standard of performance should only apply to an “existing source” “which emits or may emit an air pollutant.”   There is no discussion of “groups of sources” or “markets related to an existing source,” but rather, requires that standards apply to individual “existing sources” in isolation – “within the fence.”  Blocks 2 through 4 completely contradict the within-the-fence requirements.  Regarding Block 2, EPA has no authority to require re-dispatch of generation, which is left largely to the free market or the regional transmission organizations (“RTO”) and independent system operators (“ISO”) that oversee dispatch [and Public Utility Commissions].  EPA simply is not provided the authority under the CAA to set mandatory state emission budgets based on the emission reductions it calculates are possible from fuel switching,  renewable generation increases, or end-user energy efficiency.  This is also in direct contravention of the Federal Power Act, which leaves to the states exclusive jurisdiction over intrastate electricity matters.

The legal problems with EPA’s rule start well before reaching the question of their “beyond the fence” state budgets, however, as EPA has three significant statutory hurdles  it has not and cannot clear.  The explicit language of the Clean Air Act prevents EPA from promulgating this rule.  The Act states that EPA is prevented from applying Section 111(d) standards to source categories already regulated under Section 112 of the Act; fossil fuel power plants are regulated through Section 112 by the Mercury and Air Toxics Rule.  EPA claims that the Act is ambiguous due to drafting errors, but the language as codified in the United States code is clear.  Even accounting for drafting errors, the language still clearly prohibits EPA’s actions.  Furthermore, the Supreme Court has already spoken on this issue, in a note to its decision in AEP v. Connecticut, in which it stated: “EPA may not employ [Section 111(d)] if existing stationary sources of the pollutant in question are regulated under the…the “hazardous air pollutants” program, [Section 112.]”

The Clean Air Act also requires a valid new-source 111(b) rule to be in place before EPA may proceed to an existing source rule under Section 111(d).  These rules are still in the proposal stage, and even if finalized, are riddled with technical and legal flaws that in my opinion will result in the rules being vacated, which will remove this necessary legal prerequisite to any 111(d) rule. As recently pointed out by 13 state attorneys general (see attached March 25, 2015 letter),  EPA also failed to finalize the 111(b) rule within one year of proposal in violation of its mandatory duty to do so under 111(b)(1)(B) of the CAA.  As explained more fully in the AG letter, this violation stands to undermines EPA’s current schedule for finalizing the 111(b) and (d) rule this summer given that the 111(b) rule must be re-proposed and finalized before the 111(d) rule can be finalized. EPA has also failed to make a necessary Section 111-specific endangerment finding based on CO2 emissions from the fossil fuel source category.  EPA attempts to rely on its endangerment finding for GHG emissions from motor vehicles as the endangerment finding for this rule.  But this motor vehicle endangerment finding is based on a completely different section, even title, of the Clean Air Act; it was an endangerment finding for six separate greenhouse gases, not just CO2 as the Clean Power Plan addresses; and the statutory language of the endangerment finding itself is different, with the Section 111 standard imposing a greater burden on EPA.  EPA attempts to say that there is a “rational basis” for this rule, but this is simply not true; the rule, even if fully implemented, will have an almost imperceptible impact on global climate.

Colorado’s ability to comply with the Clean Power Plan is in serious question, though due to no fault of your own, but it is why any attempt to comply should be transparent for every Coloradan to see.  The sheer enormity of the emissions reductions and the incredibly short time constraints of the rule alone would be a daunting, if not impossible challenge, but the legal authority of state agencies to implement the rule is simply not there in many respects.  As an initial matter, the Air Quality Control Commission’s authority, as implemented by the Colorado Department of Public Health & Environment, is limited to drafting regulations directed at sources of air pollutants.  There is no authority to go “beyond the fence,” which, like the federal government, significantly constrains the ability to develop any plan addressing Blocks 2 through 4 of EPA’s BSER model.  The Public Utilities Commission is also subject to limitations on breadth of authority, that precludes it from addressing the environmental components and entities necessary to meet EPA’s budget.

I certainly would not recommend that Colorado create a plan that establishes authority that EPA itself does not have.  Having said that, I see value in the passage of SB 258 the Electric Consumer Protection Act because it would ensure the PUC’s oversight and actions to ensure that rates stay competitive and reliability is maintained.   Given the price increase and reliability risks in question, it makes good sense that the ECPA requires both PUC approval followed by the General Assembly’s approval because it will ensure that the public may participate in a transparent process and Colorado legislators have oversight over the submission of any plan.

I was encouraged to see that – the Colorado Department of Public Health and Environment, the Public Utilities Commission and the Colorado Energy Office – in official comments to the EPA about the CPP acknowledge that, “legislation may be needed to clarify or direct state agencies on their respective roles and authorities.”  There will be lawsuits, and the ECPA contains a smart safety valve provision that suspends or terminates any further action on a State Implementation Plan if the regulations are not adopted, are suspended, or are found to be contrary to law.

The ECPA is simply good government that provides a transparent framework. Without the ECPA, CDPHE has indicated that it will draft a plan and implement it behind closed doors, without public or legislative oversight. Without the ECPA, you will be ceding your authority, your responsibility, to unelected air quality regulators.

Thank you.

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