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MORRISEY LAYS OUT THE CASE: As coal interests and environmentalists prepare to face off in the Supreme Court, the case’s lead petitioner is giving a preview of the argument his state and others will make in favor of tamping down EPA’s regulatory authority.
During a forum at the National Press Club yesterday, West Virginia Attorney General Patrick Morrisey laid out his side in West Virginia v. EPA, which seeks to have the court limit the extent to which the EPA can regulate power sector greenhouse gas emissions under the Clean Air Act.
“We’ve never said that the EPA lacks any authority to address climate change,” Morrisey said. “It’s just, we have a much different definition in terms of what’s permissible under the Clean Air Act and the major questions doctrine.”
Major questions: Morrisey and friends will argue before the court on Feb. 28 that regulating the power sector as attempted by the Obama-era Clean Power Plan (a regime which, even though defunct, is integral to this case) has such a vast impact on the economy that it falls outside of EPA’s authority.
Moreover, they argue that lawmakers themselves should have to impose more specific rules for power plants to comply with “major questions” doctrine, which generally holds that matters of great significance to the national economy or political system ought to be left to Congress rather than federal agencies’ statutory interpretation.
“The reordering of the power grid will have a profound effect on the price of energy, and that’s deeply troubling,” Morrisey said, also noting West Virginia’s and other petitioning states’ reliance on the coal market.
“If you have something that’s that fundamental, that major, you have to make sure that Congress steps in,” he added. “Congress gets to make these major decisions of the day. When you have something with such significant political, social, or economic consequences, it’s the role of Congress to provide that clear statement.”
Expertise on trial: Morrisey also asserted that representatives rather than “unelected bureaucrats” should be responsible for making sweeping decisions, but part of the argument made by those who support a broad interpretation of EPA’s regulatory authority under the Clean Air Act is that agencies are best equipped with the personnel and expertise to generate the best regulations.
That’s why Congress created them in the first place, the argument goes.
“Almost all policy is set to some degree by the administrative state,” Nathan Richardson, associate professor of law at the University of South Carolina, told Jeremy back when the court took the case. “That’s true under administrations of both parties and has been since the New Deal.”
Richardson said a court decision challenging that could strain “the ability of the government to get things done and solve problems.”
The Biden administration view: The administration has yet to promulgate a new greenhouse gas emissions rule under the Clean Air Act and urged the court to reject the petition in large part for that reason.
But it also argued in briefs responding to the underlying petitions that states and companies’ arguments favoring a more limited reading of the law lacked merit.
In the meantime, the administration has moved to restrict other power plant pollutants, including mercury.
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PIPELINE INFRASTRUCTURE TO GET MORE ENVIRONMENTAL SCRUTINY: The Federal Energy Regulatory Commission voted yesterday in a party-line vote to begin considering how proposed gas infrastructure projects could affect climate change, as well as how they would impact local communities especially subject to pollution, as it weighs whether such projects are in the public interest.
A fact sheet put out by the commission explains, “The more interests adversely affected, or the more adverse impact a project will have on a particular interest, the greater the showing of public benefits from the project must be to balance the adverse impact.”
The policies reflect Democrats’ broader philosophical support for using regulatory authority to mitigate the negative consequences of climate change, as well as their emphasis on compensating for the impacts of pollution on minorities.
Energy and Commerce Chairman Frank Pallone said the commission’s votes “are a significant step towards protecting the property rights of private landowners and ensure that environmental justice communities are treated fairly and equitably in the pipeline certification process.”
Meanwhile, critics complained the decisions were outside of FERC’s scope as regulator of interstate energy infrastructure.
Senate Energy Committee Chairman Joe Manchin, a West Virginia Democrat, said the commission “went too far by prioritizing a political agenda over their main mission — ensuring our nation’s energy reliability and security.”
The industry view: As part of the commission’s new “interim greenhouse gas emissions policy statement,” any project expected to emit 100,000 metric tons of CO2 equivalent emissions per year “will be deemed to have a significant impact on climate change.”
Such requirements “add additional uncertainty to the already complex natural gas pipeline permitting process,” said Interstate Natural Gas Association of America President and CEO Amy Andryszak.
Pending and future projects are subject to the updated policy statements.
Spire update: The commission also decided yesterday to keep in place the temporary certificate it issued in December allowing operators of the Illinois-Missouri Spire STL Pipeline to keep the pipeline up and running. Commissioners were forced to reconsider the pipeline’s operating certificate after a court vacated and remanded it last summer.
SENATE GOP LOBBIES FOR MORE LNG EXPORTS: Republican lawmakers countered several of their Democratic colleagues yesterday in asking Energy Secretary Jennifer Granholm to encourage more exports of liquefied natural gas to support Europe.
Twenty-seven Senate Republicans signed on to a letter to Granholm arguing more LNG exports would help allies in the EU and deter Russia’s influence over them, enabled by Russia’s status as Europe’s largest single source of natural gas.
The lawmakers said specifically they were responding to a request 10 Senate Democrats made to Granholm on Feb. 2 to use her authority to limit LNG exports to Europe while Americans face higher prices.
The issue is close to home for those Democrats, seven out of 10 of whom represent New England states where natural gas prices in the region shot up from $8.38 per per million British thermal units in December — already high compared to other regions — to $20.55 MMBtu in January.
The administration has declined Democrats’ request to restrict or ban fuel commodities at least one before, and considering it has been in energy diplomacy mode for weeks to help ease pressure on European allies’ gas supplies, it would seem unlikely the Biden team would turn back now.
The legislative front: Three of the Republican signatories, Sens. Bill Cassidy, Mike Rounds, and Marco Rubio, went further yesterday and introduced legislation designed to speed up approval for gas export applications involving nations with which the U.S. has a free trade agreement.
WH UNVEILS ENVIRONMENTAL JUSTICE MAPPING TOOL: The White House Council on Environmental Quality released a preliminary mapping tool today aimed at identifying disadvantaged communities that are eligible for federal aid under the administration’s new environmental justice program.
The plan comes as the White House seeks to deliver on President Joe Biden’s pledge to channel 40% of climate and clean energy investments to disadvantaged communities in the U.S.
The draft “Justice40” screening tool, released this morning in beta mode, uses a set of 21 different socioeconomic and environmental indicators to help identify communities that are both low-income and at risk from climate change, pollution, or underinvestment. It includes socioeconomic factors such as unemployment rate, median household value, and number of high school diplomas, but notably does not include race.
That decision has been hotly criticized by some environmental groups, who argue that communities of color are disproportionately at risk for being affected by climate change. “It’s a major disappointment and it’s a major flaw in trying to identify those communities that have been hit hardest by pollution,” Robert Bullard, a professor of urban planning and environmental policy at Texas Southern University and a member of the White House Environmental Justice Advisory Council, told the Associated Press.
Speaking to reporters yesterday, CEQ defended the metrics of its mapping tool, saying that while it acknowledges “the role of racism and race in determining where environmental burdens are and have been in this country,” they also wanted the tool to withstand any potential legal challenges.
“We have a desire to make sure this tool is legally enduring,” one CEQ official said. “I think folks both within the government and externally have made clear we cannot be using race as an indicator to guide resource decisions to have that highest threshold for legal defensibility.”
CEQ said yesterday that it was unaware of any planned litigation over the mapping tool, and predicted many states would find it useful. It will be receiving public comment on the plan for the next 60 days.
EPA SAYS POWER PLANT EMISSIONS INCREASED IN 2021: U.S. power plant emissions were higher in 2021 than in 2020, according to the EPA, citing a rebound in coal-fired power generation caused by both a spike in natural gas prices and strong energy demand.
Those numbers were released today as part of the EPA’s annual report on power plant emissions trends, which can be read in full here. Other key takeaways:
- Compared to 2020, the EPA found a 6% increase in NOx emissions, a 20% spike in SO2 emissions, a 7% increase in CO2 emissions, and a 13% increase in mercury emissions.
- Overall electricity demand increased by 3% compared to the previous year.
- Meanwhile, the U.S. also saw a 16% increase in coal generation compared to 2020, marking the first one-year increase in coal-fired electricity since 2014.
In a statement, EPA Administrator Michael Regan said the numbers underscore the necessity for the U.S. to “urgently forge ahead” as it works to build out and support clean energy initiatives in the U.S.
WTI FALLS BELOW $90: Crude oil on the U.S. benchmark fell below $90 per barrel this morning for the first time in more than a week before rebounding above slightly above the mark.
Brent crude is also trading around $92 per barrel after flirting with $97 earlier in the week.
Analysts with energy commodities firm Energi Danmark said traders are looking closely at US-Iran nuclear negotiations.
“A new deal could end up lifting sanctions on the Iranian oil export, and this would of course be bearish for the market,” the group said in its daily market report.
The Rundown
E&E News 3 states with shuttered nuclear plants see emissions rise
Washington Examiner First new US nuclear reactors in 30 years hit by another six-month delay
Reuters U.S. utility unveils plan to supply Los Angeles with green hydrogen
NYT Expecting the Western drought to end soon? Not likely, forecasters say.
The Hill Firefighters sue over ‘forever chemicals’ in gear
Calendar
MONDAY | FEB. 21:
The Renewable Fuels Association kicks off its three-day National Ethanol Conference (NEC) in New Orleans. (More information about the annual event, including a link to register, can be found here.)
