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On Thursday, a 2-1 decision by the Third District Court of Appeal in Sacramento upheld California’s program to reduce carbon emissions. California’s controversial and signature cap-and-trade program creates a firm limit on carbon emissions and auctions allowances that permit companies to release greenhouse gases into the atmosphere. Covered entities are generally large emitters of greenhouse gases, who under the program must surrender emissions allowances or offset credits to cover their emissions, or face monetary penalties or other negative consequences. Auctions are a key component of how California expects to meet its targets to reduce emissions to 1990 levels by 2020, and 40 percent below 1990 levels by 2030.
Continue Reading California Court of Appeals Upholds California’s Cap-and-Trade Program

Two new bills, similar in concept but differing in approach, seek to align renewable energy output with peak electricity demand. Currently, the California Renewable Portfolio Standard (RPS) requires investor-owned utilities to procure 50% of total retail sales of electricity from renewable energy resources by 2030. If enacted, the bills would expand the RPS from a clean energy procurement mechanism to include, for the first time, the procurement of non-fossil fuel based capacity resources.
Continue Reading California Lawmakers Introduce Clean Peak Standard Legislation

Section 1 of the Order sets forth various policy objectives, many of which (e.g., clean, reliable, affordable, safe energy) are goals that should garner bi-partisan support.  How these policies are interpreted by the various heads of agencies will be one factor guiding America’s energy future.  Another policy factor may be critical, contained in section 1(d), that “all agencies should take appropriate actions to promote clean air and clean water for the American people, while also respecting the proper roles of Congress and the States concerning these matters in our constitutional republic.”  This interplay between various states’ initiatives (and those states’ renewable portfolio standards) and the direction in the Order may impact the overall direction and tone set in the Order.
Continue Reading Brief Overview of President Trump’s Energy Independence Executive Order

President Trump and four executives of his administration held a press conference this afternoon in the Environmental Protection Agency’s (“EPA’s”) Map Room. Rick Perry (Secretary of Energy), Ryan Zinke (Secretary of Interior), Scott Pruitt (EPA Administrator), and Vice President Michael Pence provided opening remarks, flanked by coal mining representatives.  Secretary Perry started by noting it…

Wyoming has one of the nation’s best wind resources.  But if a contingent of state senators and representatives there have their way, electric utilities located in the state will be slapped on the wrist for using it (or other renewables, for that matter).  Senate File 71, which has been introduced in the Wyoming State Senate…

Today, the Eighth Circuit determined that the Next Generation Energy Act (“NGEA”), a Minnesota law that established power sector standards for carbon dioxide emissions, was unconstitutional (decision available here). In so doing, the Court affirmed the decision of District Court Judge Susan Nelson, whose 2014 decision we covered in “Court Declares Minnesota…

Oregon legislators passed Senate Bill (SB) 1547 into law yesterday, creating aggressive timetables for eliminating coal-fired electricity from the State and setting a 50% Renewable Portfolio Standard (RPS) by 2040. A diverse group of utilities, consumer advocacy organizations, and renewable energy advocates support the bill.  Next stop for SB 1547 is Oregon Governor Katherine Brown’s desk, where she is expected to sign the bill into law.

Key provisions and significance of SB 1547 include:

50% RPS by 2040

Oregon’s two largest utilities – PacifiCorp and PGE – will have a 50% RPS standard by 2040, meaning 50% of their electricity supply must be derived from renewable energy sources. The two largest utilities serve approximately 70% of Oregon customers’ electricity needs. There was no change to the existing requirements on consumer-owned utilities.

  • This is one of the most aggressive RPS standards in the nation, matched only by California and New York, which have a 50% target by 2030, Vermont, which has a 75% target by 2032, and Hawaii, which has a 100% target by 2045.
  • The existing ratepayer protections relating to RPS compliance were retained, capping the incremental costs of compliance at 4% of the utilities annual revenue requirement for a compliance year. A new provision was added to permit the Oregon PUC to temporarily suspend RPS compliance if the utility determines that grid reliability is seriously compromised.
  • The Oregon PUC will implement competitive bidding rules governing electric companies’ RPS implementation plans to ensure that electric companies acquire electricity from diverse renewable energy generators.

Continue Reading Oregon legislators pass historic renewable energy bill, with 50% RPS and coal-fired electricity phaseout

As we discussed in a previous post, on January 14, 2016, the U.S. Fish and Wildlife Service (Service) published a final 4(d) rule under the Endangered Species Act for the northern long-eared bat.  As we noted, although the final 4(d) rule was widely viewed as a “win” for the wind industry, environmental organizations were…

Ed. – originally authored by Kevin Johnson and Thomas Wood.

The U.S. Supreme Court’s order on February 9, 2016 staying EPA’s implementation of the Clean Power Plan (CPP) will create at least a year of uncertainty about the shape of the future electric power regulatory framework, with implications for states, utilities and other electric power providers, and for the many other stakeholders potentially affected by the CPP. The CPP is the regulatory program issued by EPA on October 23, 2015, that requires states to develop plans to reduce carbon (CO2) emissions by meeting either state-specific mass caps (tons/year) or state-specific emission rate intensity limits (lb/netMWh).   The CPP seeks to establish a whole new style of regulation using authority under section 111(d) of the Clean Air Act.

Supreme Court Halts CPP Implementation

Twenty-nine (29) states and a number of utilities, labor unions and trade associations challenged the legality of the CPP.  These appellants sought a stay of the rule from the D.C. Circuit in November 2015.  The petition for a stay was denied on January 21, 2016.  The appellants then appealed to the U.S. Supreme Court — a move that most pundits thought was futile as it is extremely rare for the Supreme Court to grant such a stay.  In order to grant a stay, the Court needed to find that if the D.C. Circuit were to uphold the CPP, (1) there is a reasonable probability that four Supreme Court Justices would vote for review of the D.C. Circuit opinion; (2) there is a fair prospect that a majority of the Supreme Court would vote to reverse the D.C. Circuit’s opinion upholding the CPP; and (3) that there is a likelihood that immediate, irreparable harm would result from the denial of a stay.  By granting the stay, it appears that five of the nine Supreme Court justices (Roberts, Scalia, Alito, Kennedy and Thomas) indicated that they believe there is a fair prospect that they would vote to overturn the D.C. Circuit were the D.C. Circuit to uphold the CPP.  The Court’s action prevents EPA from further implementation of the CPP until the petitioners’ appeal is decided. The underlying challenge to the CPP is proceeding on an expedited schedule with oral argument set for June 2 and 3, 2016.

In addition, another factor in the Court’s stay decision was likely the pending deadlines for states to take compliance actions. The deadline for states to submit initial plans demonstrating how they would comply with the CPP was September 6, 2016.  While virtually all states were likely to request an extension for plan submittal until September 2018, states still needed to show progress on their plans by this September, and many states, including several of the 29 appellant states, were beginning the planning process.

Next Steps: Back to the D.C. Circuit
Continue Reading U.S. Supreme Court Stays Clean Power Plan Implementation: Next Steps

In April 2015, the U.S. Fish and Wildlife Service (“Service”) published a final decision to list the northern long-eared bat as threatened and, rather than publishing a final 4(d) rule, opted to publish an interim 4(d) rule and open a 90-day comment period to gather additional information and potentially refine the interim 4(d) rule.

As we discussed in a post last year, the effect of the interim 4(d) rule depended on the location of a particular activity. For areas of the country not affected by white-nose syndrome, the interim 4(d) rule exempted incidental take from all activities.  For areas of the country affected by white-nose syndrome, the interim 4(d) rule exempted from Endangered Species Act take prohibitions the following activities: (1) forest management practices, (2) maintenance and limited expansion of transportation and utility rights-of-way, (3) prairie habitat management, and (4 ) limited tree removal projects, provided these activities protected known maternity roosts and hibernacula.  Under the interim 4(d) rule, those activities were exempted provided: (1) the activity occurred more than 0.25 mile (0.4 km) from a known, occupied hibernacula, (2) the activity avoided cutting or destroying known, occupied roost trees during the pup season (June 1–July 31), and (3) the activity avoided clearcuts (and similar harvest methods, e.g., seed tree, shelterwood and coppice) within 0.25 mile (0.4 km) of known, occupied roost trees during the pup season (June 1–July 31).  Thus, with a few narrow exceptions, the interim 4(d) rule prohibited all incidental take within areas of the country affected by white-nose syndrome, including take resulting from the operation of utility-scale wind turbines.
Continue Reading U.S. Fish and Wildlife Service Issues Final 4(d) Rule for Northern Long-Eared Bat Under Endangered Species Act