Environmental update

April 24, 2015 | By Andrew Skroback in New York

The US Environmental Protection Agency announced earlier this year that it would delay finalizing both its rule to control carbon dioxide emissions from new power plants and its “Clean Power Plan” rule to reduce emissions from existing or modified power plants until sometime this summer.

The agency said the delay is necessary because new issues have been identified that will have to be addressed by better coordinating these different rules. It also said it will issue a model federal implementation plan for states to follow as a guide to drafting their own state implementation plans for existing and modified plants.

Since these announcements, EPA has continued to push each state to develop its own unique plan to comply with carbon dioxide standards for existing and modified power plants, rather than ultimately subjecting themselves to a federal implementation plan. This is because a number of Republican officials and agency detractors have urged states to “just say no” and refuse to comply with the federal plan once it is finalized.

Senate Majority Leader Mitch McConnell (R-Kentucky), for example, has urged states to “carefully review the consequences before signing up for this deeply misguided plan.”

Other critics are suggesting that EPA lacks statutory authority to require power plants to do more than simply improve how efficiently they operate.

The Clean Power Plan sets a different carbon dioxide emissions rate for each individual state. States can develop their own plans for how to comply. The federal government could impose its own model plan on states that fail to establish their own plans to meet emissions targets.

Industry Guidance

The American Wind Energy Association and the Solar Energy Industries Association published a handbook on March 30 suggesting how states might comply with the Clean Power Plan by switching to renewables to cut carbon emissions from existing power plants.

The handbook, “Incorporating Renewable Energy into State Compliance Plans for EPA’s Clean Power Plan,” gives an interpretation of the draft EPA rule and technical support documents and offers step-by-step guidance to states on how to incorporate renewable energy into their state compliance plans.

It points states to renewable integration studies suggesting wind and solar energy can be added to the power system without harming reliability, a concern raised by critics of the Clean Power Plan. The handbook says the cost of wind energy has fallen by more than 50%, and installed solar system prices have dropped by 49%, since 2010.

It also provides state officials with guidance on calculating carbon reductions from wind and solar energy and on tracking the reductions. The two trade associations say they will update the handbook after EPA releases its final rule this summer.

Northern Long-Eared Bats

The US Fish and Wildlife Service said April 1 that it is listing the northern long-eared bat as merely “threatened” rather than “endangered” under the Endangered Species Act.

The bat was originally proposed for listing as “endangered” in 2013 due to a severe decline in the species caused by white-nose syndrome, a fungal disease affecting cave-hibernating bats. The bat is found in 37 states, from Maine to North Carolina along the east coast, west to Oklahoma and north into the Dakotas, Montana and Wyoming, as well as 13 Canadian provinces. White-nose syndrome has been confirmed or is suspected in up to 28 states, with particular devastation reported in the northeast.

The US Endangered Species Act prohibits any harming, harassing or killing of both endangered or threatened species unless an “incidental take” permit has been issued.

When a species is listed merely as threatened rather than endangered, the Fish and Wildlife Service may issue general rules of limited scope to protect the species. The agency issued an “interim rule” and is accepting public comments through July 1, 2015.

Under the interim rule, all purposeful taking would be prohibited in all states where the bat is located except for taking associated with removing the bat from human structures. For areas of the country affected by white-nose syndrome, the new rule would further prohibit all unpermitted incidental takes with some exceptions. The exceptions — where an incidental take permit is not required — include forest management practices, maintenance and limited expansion of transportation and utility rights-of-way, removal of trees and brush to maintain prairie habitat, and limited tree removal projects, so long as these activities protect bat maternity roosts and hibernacula.

The strictest restrictions would apply during the two-month pup-rearing season in June and July when the bats occupy their hibernacula and are most vulnerable.

Incidental takes of the northern long-eared bat in wind, solar, mining, construction, agricultural, and oil and gas activities are exempted only in parts of the country not yet affected by white-nose syndrome — most commonly in the bat’s western range. In other parts of the country, an incidental take permit is required for any takes in connection with these activities.

The interim rule will be effective starting May 4, 2015.

Indiana Bats

A federal district court in mid-March upheld the US Fish and Wildlife Service’s issuance of an incidental take permit for the killing of a limited number of endangered Indiana bats at a 100-turbine wind farm proposed for Champaign County, Ohio. The project is called Buckeye Wind.

A non-profit group, Union Neighbors United, that was formed to fight the project challenged the finding by the US government that the take permit will minimize and mitigate the effects on bats “to the maximum extent practicable.”

The Indiana bat has long been protected as an endangered species. Concerns for its future have increased in recent years due to the spread of fungal white-nose syndrome to hibernating bat populations. No Indiana bat hibernaculum are reported in the immediate vicinity of the Buckeye project, but operation of its wind turbines has the potential to “take” Indiana bats that migrate through the area in the spring and fall.

Buckeye proposed various steps to minimize the harm to bats from its project, including varying the wind speed at which its turbines will rotate to minimize the number of bats that collide with the blades during key times of the year. The project will be required to do ongoing monitoring and will acquire and protect approximately 200 acres of bat habitat.

The Fish and Wildlife Service approved a five-year take limit of up to 26 takes or 130 over a 25-year period.

In upholding the permit, the court rejected the claim by the non-profit group that the agency is required by law to select a project alternative that minimizes the taking of Indiana bats to the “maximum amount that can be implemented by the applicant” before applying mitigation measures to offset any take that could not be avoided or minimized.

The court said the law “permits an agency to place less emphasis on whether a program is the ‘maximum that can practically be implemented by the applicant’ if an applicant can first demonstrate that the minimization and mitigation provide substantial benefits to the species.

The agency had decided, before issuing the incidental take permit, that the minimization and mitigation measures proposed by the project company “fully offset” the impact of taking Indiana bats, and, thus, the court said, it was unnecessary to determine whether the plan was the “maximum that can be practically implemented by the Applicant.”

“Once the impact was fully mitigated,” the court said, “it was not necessary for [the Fish and Wildlife Service] to determine whether more mitigation was possible, or whether the impact could possibly be minimized further.”

Trends in Wildlife Regulation

Although Buckeye still faces additional hurdles, there are lessons the wind industry and those who finance wind projects can take away.

The Fish and Wildlife Service appears to giving the most negative attention to utilities that ignore the agency’s land-based wind energy guidelines and site-specific agency recommendations. The reverse appears true as well: the agency is more lenient with developers who take such steps early even when problems arise later.

This trend extends beyond endangered species issues to all federal wildlife laws, including the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act.

The reason is simple. Because construction and siting of wind farms are generally approved at the local level, the federal role is often limited to offering recommendations and then imposing fines against utilities found to have taken endangered species or protected habitat without a permit. The Fish and Wildlife Service likes to see wind developers take a variety of early steps, including survey work to assess risk and inform project adjustments, such as adjusting turbine speeds during migration season and delaying cut-in until the winds are stronger and fewer birds or bats are flying, or by making power lines and project facilities less attractive as perches.

The Buckeye litigation shows the potential benefits from working with the agency in siting a facility and then keeping in touch throughout the permit process, if needed, to establish mitigation measures and best management practices that minimize project impacts on threatened and endangered species. In contrast to agency treatment of what it considers “bad actors,” meaning those who do not follow the guidelines, developers who demonstrate good faith have less to fear from agency enforcement when issues arise.

Mercury

The US Supreme Court heard oral arguments in late March on whether the Environmental Protection Agency violated the Clean Air Act when it decided not to consider the financial costs of its regulations limiting emissions of mercury and other toxic air pollutants from power plants. The regulations in question are the 2012 mercury and air toxics standards, or MATS.

The consolidated case before the court is Michigan v. EPA. Various states and industry groups are arguing that the government’s decision not to consider cost was arbitrary and has led to a regulation with disproportionately high compliance costs of over $9 billion annually.

The government is arguing that section 112(n)(1)(A) of the Clean Air Act requires the EPA to assess and potentially regulate air toxics emissions from power plants, but does not explicitly require the agency to consider cost.

The Supreme Court is reviewing a narrow portion of a 2014 appeals court decision that upheld the MATS rule after concluding that EPA’s decision-making was reasonable and that the agency deserves deference. A decision is expected by June.

Carbon Emissions

President Obama released a blueprint at the end of March for cutting US greenhouse gas emissions by nearly a third over the next 10 years. The plan is being submitted to the United Nations in advance of a summit in Paris in December at which negotiators hope to reach a global climate change agreement.

The blueprint follows up on the joint climate change reductions pledged by the presidents of China and the United States — the world’s two largest greenhouse gas emitters — in Beijing last November. At that time, President Obama said the US would cut emissions 26% to 28% by 2025, and President Xi Jingping said that China’s presently escalating carbon dioxide emissions would peak by 2030 or earlier and pledged to increase China’s share of non-fossil fuels energy consumption to approximately 20% by 2030.

The release of the blueprint is supposed to show how the Obama administration intends to meet the US pledge and is intended to motivate other global emitters to make similar substantive pledges in advance of the Paris talks. The goals the US announced would not require any action by the US Congress. It relies on steps the administration can take on its own, such as the Climate Action Plan (for reducing carbon emissions from existing and modified power plants) that the administration is in the process of finalizing. Existing coal-fired power plants are the chief source of US carbon emissions.

Environmental groups have both praised the blueprint as a necessary first step and criticized it for not achieving deep enough reductions. At the same time, Republican leaders and climate change deniers have attacked the plan as harmful to the economy. The Senate majority leader, Mitch McConnell, said, “Even if the job-killing and likely illegal Clean Power Plan were fully implemented, the United States could not meet the targets laid out in this proposed new plan.” He warned other countries not to believe what is in the blueprint. “Considering that two-thirds of the U.S. federal government hasn’t even signed off on the Clean Power Plan and 13 states have already pledged to fight it, our international partners should proceed with caution before entering into a binding, unattainable deal,” McConnell said.