Via E&E Publishing:

Jeffrey Tomich and Kristi E. Swartz

As U.S. EPA continues to work on a final version of the Clean Power Plan for release later this summer, conservative lawmakers in more than a dozen states are trying to ensure they get the final say on how their state responds to it, citing concerns about electric rates, reliability and jobs.

A measure signed by West Virginia’s governor this month would require the Legislature to approve of the state’s plan to cut carbon emissions before the plan is submitted to EPA (ClimateWire, March 5). Similar bills requiring legislative approval or review are winding their way through committees in states, especially throughout the Southeast and Midwest.

For the most part, the bills are referendums on the Obama administration’s plan to reduce greenhouse gas emissions from the power sector. And most are based on model legislation put forward in December by the American Legislative Exchange Council.

The bill, H.B. 849, directs the state’s Department of Environmental Protection to submit Florida’s compliance plan to the Legislature before sending it to EPA.

Sponsor Rep. John Wood, a Republican from Winter Haven, told committee members he’s concerned about the cost to electric ratepayers and wants to make sure the Legislature is involved in forming the Sunshine State’s plan for meeting EPA’s targets.

A Democratic lawmaker quizzed Wood about the bill, specifically whether he had taken into consideration the cost to public health from air pollution.

“Now if you consider CO2 to be a pollutant, then everybody zip up their mouths and don’t exhale for the rest of the meeting because you are polluting the air,” Wood answered. “God gave us CO2 to grow plants, to exhale, all of that.”

Critics bash bills as ‘duplicative’

Clean energy advocates and other critics of the bills are pushing back, calling the measures redundant, expensive and unnecessary.

Aliya Haq is tracking the Clean Power Plan bills as climate change special projects director for the Natural Resources Defense Council. By her count, such legislation has died or stalled in seven states, including Mississippi. Bills are still pending in about a dozen others.

Haq and other critics of the proposals say they do nothing to help states that are being given maximum flexibility by EPA to come up with specifically tailored strategies to meet the carbon reduction targets.

“It’s odd because presumably the conservative legislators are trying to lambast the EPA, but really they’re really shooting their states in the foot,” she said.

In some states, environmental regulators are actively opposing the bills, noting that compliance plans are being developed with extensive input from a wide range of technical experts: regulators, utilities, grid operators and economists.

Minnesota’s Pollution Control Agency, for instance, initiated a work group of more than 130 people from 64 organizations — utilities, the state Department of Commerce, the regional grid operator, the Public Utilities Commission, the Chamber of Commerce and others — to examine issues associated with implementation of a plan to cut carbon emissions, Greta Gauthier, the agency’s legislative director, told a state House committee Monday.

“The bill’s insertion of a legislative process on top of that sounds duplicative,” she said, warning that the measure bill could be a disincentive for groups because of a risk that the Legislature could easily invalidate their work.

What’s more, bills also increase the cost to states and bring the threat of the EPA imposing a federal implementation plan (FIP) on states that don’t develop an approved plan on their own.

“Whether we all want to get FIP-ped is a question going forward for all of us,” said J. Drake Hamilton, science policy director for Fresh Energy, a St. Paul, Minn.-based clean energy advocacy group.

In the end, the committee passed the bill (H.F. 333), which would give the Minnesota Legislature veto power over the implementation plan developed by the state’s environmental regulators.

Bill supporters want states to have final say

Rep. Jim Newberger, who represents the district northwest of the Twin Cities that’s home to the Midwest’s largest coal-burning power plant, Xcel Energy’s 2,400-megawatt Sherburne County generating station, is the bill’s lead author.

He said the bill gives elected officials the final say on the state implementation plan and “prevents a handful of agency workers directing the future of Minnesota.”

Two utilities, the state’s electric cooperatives and the Chamber of Commerce all testified in favor of the measure, as did the coal lobby. Whatever plan is sent to EPA, they said, would fundamentally reorder how power plants are dispatched in the state — a weighty decision that should be left to an elected body.

“This is energy policy,” Marc Ourada, central region vice president for the American Council for Clean Coal Electricity, told committee members. “Energy policy is appropriately set by the Legislature and policymakers and not through a bureaucratic process and a SIP [state implementation plan] forced upon the state by the EPA.”

Bills filed in the Missouri House and Senate wouldn’t give the Legislature veto power over an implementation plan. But they would require a detailed cost-benefit analysis be submitted to the governor and leaders of both legislative chambers at least a month before the plan is submitted to EPA.

Dan Hutton, legislative director for state Sen. Gary Romine, the author of one of the bills (S.B. 142), said the intent is to provide additional data about the cost of implementation.

Similar reports are required when the Missouri Department of Natural Resources develops a new rule or compliance plan, he said. But they are typically done after submission to EPA.

“It’s a transparency piece,” Hutton said.

Ameren Missouri, the state’s largest electric utility, and electric cooperatives testified in support of the bill during a hearing last month, as did the state Chamber of Commerce. But not without concerns.

Warren Wood, an Ameren Missouri vice president, said the St. Louis-based utility wants to be sure the process doesn’t overwhelm the state Department of Natural Resources to the point that it triggers delays and invites EPA to impose a federal plan.

David Weiskopf, an attorney for NextGen Climate, believes that’s exactly what S.B. 142 and other bills like it across the country are meant to do — create unnecessary red tape to delay implementation of rules to slash greenhouse gas emissions.

“This bill puts additional strains on public resources that should be put toward implementing a plan,” he said.

There’s no cost data yet for the Missouri legislation. But the Minnesota bill would come with a $937,000 price tag for the 2016-17 biennial — a figure challenged by Republican supporters. Similar legislation in Kansas would cost the state $400,000 to $500,000 to hire consultants, according to a fiscal note.

The Kansas bills would require a joint investigation by the Kansas Department of Health and Environment and utility regulators to determine the cost of re-dispatching power plants. They would also require approval from a special legislative committee and prohibit participation in an organized carbon emission-trading market without specific statutory authority.

Some bills look to kill the rule

In addition to bills requiring legislative approval or review of Clean Power Plan strategies, lawmakers in states such as Georgia have filed resolutions urging withdrawal of the proposed rule.

“I’m tired of the federal government putting regulations on energy companies that are really not attainable … without a huge amount of money being invested, and that’s going to be passed on to the ratepayer,” said Sen. Brandon Beach of Alpharetta, an Atlanta suburb, who filed a resolution, S.R. 449, this week.

Beach said he’s frustrated that EPA isn’t crediting Georgia for work done so far to cut emissions by 30 percent and building two nuclear reactors. His criticisms mirror those of Georgia Power and state regulators, as well as South Carolina and Tennessee, which also are adding more carbon-free nuclear generation.

In some states, measures requiring legislative review of state implementation plans have also given rise to a bigger debate over separation of powers. State regulators tasked with submitting plans to EPA are generally appointed by governors, leaving some to question whether lawmakers should be allowed to have the last word on whether a plan is submitted.

Amanda Garcia, a staff attorney with the Southern Environmental Law Center, said a bill in Tennessee based on the ALEC model legislation presents just such an issue.

“It has the typical problems that you’re seeing in the legislation, namely interfering with executive authority to design and implement a plan,” Garcia said.

The same argument was raised in Minnesota, where ideological differences between the state’s Democratic governor and the Republican-controlled committee were on display.

Republicans at Monday’s committee meeting cited comments last summer by Gov. Mark Dayton, who challenged state business leaders to figure out a way to wean the state off coal. Democrats, meanwhile, questioned what they saw as efforts to shield the coal industry.

“Do you believe it’s appropriate to inject politics into science?” state Rep. Tim Mahoney (D) asked the bill’s sponsor.

“That’s a loaded question,” Newberger answered. “In our day and age, it’s impossible to separate politics and science.”

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