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.

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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.

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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]

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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.

July 2 Colorado Energy Roundup: New Belgium signs ‘Brewer’s Climate Declaration’

More reaction from the ongoing Colowyo Mine saga in northwest Colorado, as Colorado Public Radio profiled residents from the community on what the possible mine closure would mean:

It’s been nearly two months since a judge required the federal government to take another look at a 2007 mining plan it approved for the Colowyo Mine outside Craig. Reaction in the small town of 9,000 was swift with much of the frustration directed at WildEarth Guardians, an environmental group that initiated the lawsuit.

Brent Malley moved from Phoenix, Arizona, to Craig 10 years ago to work at the mine, which supplies fuel to the nearby Tri-State Generation and Transmission Association power plant. Tri-State also owns Colowyo.

“It’s a much cleaner coal, low sulfur. I deal with that on a daily basis,” said Malley, who analyzes the coal at Colowyo. “There’s a bias against coal and I think it comes from pre-World War II where you saw really dirty conditions and miners getting hurt.”

Another resident, Rev. Jason Wunsch, called the actions against the Colowyo Mine–and the community–by WildEarth Guardians an “abuse.”

“The way it went about things through litigation and not through organic community dialogue I think was both an abuse to the public, but I think it will be a loss for authentic environmentalists,” Wunsch told CPR.

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In a week filled with blockbuster Supreme Court decisions, the court’s ruling on the Environmental Protection Agency’s mercury rule flew somewhat under the radar, but the agency’s illegal rule had already done the damage intended, and even offered the EPA an “out” in future rulemaking:

A measure of the Environmental Protection Agency’s radicalism is that on Monday even this Supreme Court shot down one of its regulatory abuses. The agency’s extraconstitutional law-writing was too much even for the Court willing last week to tolerate the rewriting of laws for ObamaCare subsidies and housing discrimination.

In Michigan v. EPA, several states and industry groups challenged a 2012 EPA rule related to mercury emissions, which was really a pretext to force most coal-fired power plants to shut down as part of the Administration’s climate agenda. Though the rule was then the most expensive the federal government had ever issued, the EPA said it had no obligation even to consider costs when deciding whether it was “appropriate and necessary” to regulate.

“One would not say that it is even rational, never mind ‘appropriate,’ to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits,” Justice Antonin Scalia writes. “EPA’s interpretation precludes the agency from considering any type of cost—including, for instance, harms that regulation might do to human health or the environment.”

But imposing those economic costs and forcing the closure of coal-fired power plants in the process of the rule’s implementation had already occurred in between the 2012 promulgation of the rule and the Supreme Court’s finding this week. Too little, too late.

But while the initial reaction appeared to have a silver lining in forcing the EPA to consider costs, the agency got a reprieve from not only the minority who sided with the rule, but from the majority as well:

But here’s the, er, catch. Justice Scalia’s opinion says the agency can’t regulate without considering costs, but his decision also says the EPA can still decide what counts as a cost. Uh-oh.

And sure enough, Justice Elena Kagan’s dissent offers the EPA a soft-landing path for future law-writing. She does not say EPA can ignore costs altogether. But she and the three other liberals would have blessed the mercury rule because the EPA would allegedly scrutinize costs at some indeterminate point, eventually, down the line.

So while Michigan is a welcome rebuke to EPA arrogance, presumably the agency can still do most of what it wants as long as it claims to have considered costs. In any case, most of the utilities targeted by the EPA rule have already shut down those coal plants or spent billions to comply. They won the legal battle but lost the climate war.

In other words, the make-it-up-as-you-go agency’s agenda in bringing forth coal-killing regulations received the green light to conjure up any cost methodology it wanted to justify the rule, and to do so whenever it pleased.

That doesn’t bode well for future rule implementation of the EPA’s upcoming Clean Power Plan (carbon reduction) or ground-level ozone targets.

Sen. Mike Lee (R-UT), in an op-ed at Forbes, illustrated the EPA’s attitude toward the Supreme Court’s ruling, and their attitude in general when it comes to their role in the rulemaking process:

To make matters worse, the EPA sees no problem in a regulatory process that forces electricity companies to comply with an illegal regulation. “EPA is disappointed that the Court did not uphold the rule, but this rule was issued more than three years ago, investments have been made and most plants are already well on their way to compliance,” an EPA spokesperson said in a statement.

As long as the rule did what was intended, even when dinged by the Supreme Court, the agency’s mission was accomplished.

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New Belgium Brewing appears to be doubling down on its environmental commitment even as it is still contending with pushback on its support of WildEarth Guardians, the activist group responsible for threatening the Colowyo Mine (see above) through its litigation:

The beer industry is booming, but water resources are becoming scarce while warmer temperatures and extreme weather events are hurting hop production.

“They do say whiskey’s for drinking and waters for fighting out here. And there’s a reason they say that,” said New Belgium’s Bryan Simpson.

Now, brewers are finding ways to integrate green business practices and they want others to do the same. Three Colorado breweries are joining a national call-to-action, signing the “Brewer’s Climate Declaration.”

The declaration signed by New Belgium, along with a couple dozen other companies, sees climate change as a threat to its basic ingredients–water and hops:

Warmer temperatures and extreme weather events are harming the production of hops, a critical ingredient of beer that grows primarily in the Pacific Northwest. Rising demand and lower yields have driven the price of hops up by more than 250 percent over the past decade. Clean water resources, another key ingredient, are also becoming scarcer in the West as a result of climate-related droughts and reduced snow pack.

That’s why leading breweries are finding innovative ways to integrate sustainability into their business practices and finding economic opportunity through investing in renewable energy, energy efficiency, water efficiency, waste recapture, and sustainable sourcing. To highlight the steps they are taking and issue a call to action to others, brewers are signing the Climate Declaration.

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A Colorado thin-film solar supplier company goes belly-up due to flagging sales:

Faced with slumping sales in its solar inverter business, and no suitors willing to step in to buy it, Advanced Energy Industries, Inc., announced Monday it was getting out of the business.

The move will cost the company millions of dollars and likely hundreds of jobs.

The impact on jobs at the Fort Collins-based business is unknown, but the company said in a statement it expects to spend $260 million to $290 million to wind down the company, including $15 million in employee termination costs and $30 million to $45 million in severance and other expenses related to the decision.

As of Dec. 31, AE, which develops power and control technologies for thin-film manufacturing and solar-power generation, employed 1,583 people globally. Founded in Fort Collins in 1980, AE manufactures inverters in Fort Collins, Canada and China.

Abound Solar, a thin-film solar panel manufacturer, filed for bankruptcy in 2012 despite a $400 million loan guarantee from the Department of Energy. Tracking the declining global share of thin-film solar and difficulties seen in other companies in places like China, it’s easy to see that the once highly touted technology hasn’t caught fire the way proponents once envisioned.

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Despite top rankings as a manufacturer of wind technology and employment of wind-related workers, Colorado must increase its wind energy efforts, according to a new report from Environmental Entrepreneurs:

But the state needs to do more, according to the report.

The state needs to implement the federal Clean Power Plan, which would cut carbon emissions from “dirty” power plants in Colorado by 35 percent in part by increasing clean renewable energy.

Secondly, the state needs “new policy direction … to expand the state’s renewable energy portfolio.”

“Colorado’s leaders need to take action with policy opportunities that are good for its economy and good for its environment,” the 16-page report concludes.