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Howard Learner joined EETV’s Monica Trauzzi to discuss improving the Midwest’s electricity grid. Howard explores a range of energy market topics including proposed lines to support mines in Michigan’s Upper Peninsula, lines that would carry wind power from the Great Plains to the Midwest, MISO’s recent peak demand forecast, and the role of distributed generation solar in creating an affordable, reliable grid.
CHICAGO – With a growing number of residents not owning automobiles, and the increase in bicycle and transit use, business and policy experts are brainstorming ways to make Chicago a “car lite” city.
According to Howard Learner, executive director of the Environmental Law and Policy Center, there will always be vehicles on the road, but it’s time to rethink the way cities can be designed to better serve cars, buses, bicycles and pedestrians.
“We’re at the beginning of a time of very significant change and opportunities to do things better and different, improve people’s mobility with less pollution, and make the way we get around in Chicago’s economy work better,” he declared. At an event last week, community members and business and policy leaders shared ideas and visions on how to improve the safety and effectiveness of the city’s transportation infrastructure. An estimated 28 percent of Chicago residents do not own cars.
After years of heavy reliance on lighting upgrades and other programs, the state’s two largest utilities, Commonwealth Edison (ComEd) and Ameren Illinois, are now coming up short on meeting state-mandated efficiency goals.
However, Illinois Commerce Commission orders released last month show there are still plenty of opportunities to further cut energy consumption, according to clean energy advocates who are part of the stakeholder group involved in the proceedings.
House and Senate negotiators unveiled a new five-year Farm Bill on Monday, a $956 billion piece of legislation that’s been worked on for the past two years and, if passed, will be in effect for the next five.
The House is expected to vote on the bill on Wednesday, with the Senate voting sometime after. The bipartisan bill has gained attention from some liberals for its cuts to food stamps — a program that makes up about 79 percent of the Farm Bill’s cost — and from some conservatives, who think the current bill doesn’t save enough compared to the current funding. But there’s also several energy and environmental implications in this Farm Bill, especially in the realm of conservation, which at $56 billion makes up 6 percent of the bill’s total funding.
CHICAGO (AP) — An Illinois pollution panel on Thursday rejected proposed emergency rules to control piles of petroleum coke along Chicago shipping channels, saying Gov. Pat Quinn and the Illinois Environmental Protection Agency failed to prove there was an imminent threat to public health and safety.
Instead, any new ordinances must go through the regular rulemaking process to provide more time to consider what protections are needed, the Illinois Pollution Control Board said.
Residents on Chicago’s southeast side have complained about growing piles of petroleum coke, or “petcoke,” saying they fear it can cause respiratory and other health problems and pollute waterways. Their complaints gained attention from city and state officials in August, after petcoke blew into a neighborhood and a park.
The grainy black substance is a byproduct of oil refining, used as fuel in coal and cement plants or in products such as bricks and cement. The piles have been growing as nearby refineries process more oil from Canadian tar sands.
Quinn proposed rules last week to require terminals that store the petcoke to immediately install dust-suppression systems and prevent storm water runoff. He also wanted operators of petcoke and coal terminals throughout Illinois to fully enclose piles within two years.
But industry officials called Quinn’s action “regulatory overreach” because Chicago’s health department and aldermen already have proposed rules and petcoke handlers have taken steps to prevent the material from blowing around again. Plus, at least one handler already has said it’s willing to build structures to enclose its piles.
What’s more, they said, Quinn’s regulations would have applied to all bulk storage areas — including downstate coal terminals — that haven’t drawn complaints and could force some to temporarily shut down.
Industry officials also complained they had only a few days to respond to the proposal.
“You hardly have time to get your arms and your head around what the issues could be,” said Tom Wolf, executive director of the Illinois Chamber of Commerce’s energy council. “Put facts on table and let’s go through (the rulemaking) process.”
Quinn’s office issued a statement saying it was disappointed with the board’s decision but is “reviewing alternative options (to) ensure that nobody has to live with harmful dust blowing into their community,” but did not say what those options are.
A Quinn spokesman did not immediately return phone and email messages seeking details on the options.
Environmental groups and residents, some of whom wanted a halt to all petcoke operations until the piles were enclosed, said petcoke continues to blow around and endanger residents.
Though drafted quickly, the rules were needed “to address what we do believe is an emergency situation, so we’re disappointed that the board chose not to address them that way,” said Jennifer Cassel, an attorney with the Environmental Law & Policy Center.
But she said she’s glad that there eventually will be permanent rules; emergency rules would have expired after 150 days.
Chicago officials have proposed city-specific regulations that include calling for storage facilities to enclose materials like petcoke. Proposed ordinances pending before the City Council include a ban on the substance, although Mayor Rahm Emanuel has said such a step isn’t likely.
Quinn said the pollution board’s process would help inform whether a ban on storing petcoke was necessary.
Attorney General Lisa Madigan’s office, which helped file lawsuits against the companies, has said it is drafting statewide legislation on petcoke regulation, which could be taken up later this year.
With Winnetka officials expected to hire a firm this month to design a tunnel under Willow Road to discharge stormwater into Lake Michigan, three environmental advocacy organizations recently have expressed concerns that the $34.4 million project might fall short of federal requirements and regional guideposts.
A letter obtained by the Tribune sent on Oct. 31, 2013, by the Environmental Law and Policy Center and the Natural Resources Defense Council to Winnetka Village President Gene Greable stated: “We have serious concerns about whether pollution discharges into Lake Michigan from the proposed Willow Road Tunnel will meet Clean Water Act requirements.
ELPC Executive Director Howard Learner asked the Milwaukee Journal-Sentinel, “Why should residential and small business customers in Wausau, WI, subsidize the electricity costs for two mines in the Upper Peninsula of Michigan?” Read the article.
Two judges had ruled that the U.S. Environmental Protection Agency overstepped its bounds in ordering states to significantly reduce their air pollution because of the impact on neighboring states – namely the impact of Midwestern coal plant emissions on Eastern states. An evenly split 4-4 Supreme Court ruling on CSAPR – since Justice Samuel Alito recused himself – would mean the appeals court’s decision is upheld.
The CSAPR arguments are pegged to two joined cases filed against a Homer City, Pennsylvania coal plant owned by EME, the same parent company of Chicago’s now-closed coal plants. (See the Supreme Court blog’s coverage of the cases here.)
On the same day, the EPA defended its Mercury and Air Toxics Standards (MATS) in front of a three-judge panel in the U.S. Court of Appeals for the D.C. Circuit. The court is expected to look more favorably on the MATS rule than it did upon CSAPR last year, and a decision is expected within several months.
We talked with Howard Learner, executive director of the Environmental Law and Policy Center, about the significance of the arguments and his predictions about the outcome (the ELPC is a member of RE-AMP, which also publishes Midwest Energy News).
Midwest Energy News: How did you feel about the oral arguments on CSAPR, and how do you think the Supreme Court will ultimately rule?
Learner: Forecasting Supreme Court decisions based on oral arguments can be hazardous to one’s health, but there are some directional indications here in light of precedents and the overall case before the court. I think the Supreme Court Justices seemed to be impressed with the analogies that the deputy solicitor general was presenting on behalf of the EPA.
When we’re dealing with ozone problems in the eastern states and the physical reality that pollution moves across state lines, it is difficult to determine exactly how much of the pollution, for example, affecting New Jersey’s airshed came from New Jersey sources versus Ohio sources versus Missouri sources. The EPA came up with its reasoned judgment about how to allocate responsibility among the states. Supreme Court precedent has accorded the EPA considerable respect for and deference to its scientific and technical expertise and judgment.
Look for a potential 6-2 decision in which the Justices would uphold the EPA’s CSAPR standards, based on leanings from the Justices’ questions and case law precedents.
What do you think of the industry argument that under CSAPR an upwind state could be forced to reduce its emissions more than the amount it is contributing to downwind states?
The difficulty here is that we’re dealing with a physicality problem – pollution moves in the atmosphere and doesn’t stay strictly within state lines. Air over New Jersey is being affected by pollution from upwind states.
There’s no way to perfectly allocate responsibility for pollution among the states, and there are different reasonable approaches. The question isn’t whether the agency’s approach is perfect, it’s whether among competing approaches, the agency is within the zone of reasonableness.
Some of the Justices seemed to recognize that in order to protect public health, the EPA has to have some room to reasonably interpret broad statutory terms such as “substantial contribution.” There was an indication that at least a majority of the Justices seem to be viewing the agency’s approach to be within the zone of reasonableness.
Do you think cost should be considered in demanding emissions reductions from different states?
There’s no one-size-fits-all approach. Some parts of the Clean Air Act consider cost and some don’t. The section dealing with non-attainment for ozone transport and “substantial contribution” does include a benefit-cost element. By contrast, sections dealing with mercury and air toxics don’t really require consideration of costs.
The pre-eminent goal of the Clean Air Act is to protect public health and remove endangerments. In the parts of the Act dealing with toxic air emissions that have very serious impacts on public health, cost is not a pre-eminent consideration.
What the EPA is attempting to do is look to those places, such as ozone transport, where it’s most cost-effective to reduce emissions. So for those who are concerned with economics and cost, the EPA’s approach is very effective. Some of the states challenging the ozone transport rules are essentially arguing that cost should not be a pre-eminent part of the decision.
What do you think of the MATS hearing before the appeals court, and do you think the court will uphold that rule?
The MATS case is different than CSAPR. First of all it’s before the DC Circuit Court of Appeals, not the Supreme Court, and it has a cluttered history. The EPA went through an extensive notice and comment rule-making period, issuing a draft rule, getting comments from many groups and, indeed, after moving to finalize the rule, then took it back and tweaked it in early 2013 to adjust for some particular concerns raised by some industry groups.
Keep in mind that industry is divided on this one. Some companies that own coal plants are strongly opposing these standards. There are other energy companies that own coal plants that have already installed mercury pollution reduction equipment and they’d like to see a level playing field of everyone complying so they don’t face a competitive disadvantage. The natural gas and nuclear industry have generally been supportive of the MATS as they see a competitive advantage to be gained.
There comes a time for finality, predictability and consistency for how mercury and other air toxic pollution are to be reduced by coal plants and others by installing modern pollution control technologies. The mercury standards have been battered about for a number of years. The EPA has devoted considerable scientific and technical analysis to these public health rules.
The challenges brought by industry are somewhat arcane. The fact is some of the critics don’t want the rules altogether, while some others want them tweaked or skewed in their favor.
The Supreme Court’s opinion in American Electric Power vs. Connecticut (2009) recognizes the EPA’s scientific and technical expertise to which courts should defer in reasonable cases. Reading the tea leaves here and reading what was said in oral arguments, there seems to be at least some inclination among the judges on the D.C. Circuit that they recognize that this mercury pollution standards case is appropriate for deferring to the agency’s expertise.
If MATS and CSAPR are upheld, what will that mean for coal plants in the Midwest?
If the CSAPR and MATS standards are upheld by the courts, that will clearly force many Midwestern coal plant owners to invest in more modern pollution control equipment and further retrofit their plants in order to achieve cleaner air. That will affect the ongoing economic viability of some of the coal plants in the highly competitive power markets in the Midwest. Some of the owners will choose to invest in modern pollution control equipment and be part of the solution, and some will choose to shut down the plants because of the market economics — they’ll conclude it’s not worth throwing good money after bad.
For many years, these older coal plants have been shifting costs onto the public in terms of their pollution and resulting harmful public health and environmental impacts. The coal plant owners have been externalizing their costs onto the public. The Clean Air Act implementation standards will force polluters to internalize their costs and reduce the shifting of pollution costs to the public.
What does the situation with MATS and CSAPR say about the regulatory and political climate now compared to the Bush years when the predecessor to CSAPR was struck down by the D.C. Circuit federal appeals court because it was too lenient?
There have been attempts in Congress by some to improve the Clean Air Act standards and others to weaken its standards. Since 1990, however, the Act has not been amended in any serious way.
We live in a divided country when it comes to overheated partisan politics. President Obama was elected by a significant margin in 2012, and elections have consequences. During the campaign, some industry opponents blasted President Obama for his so-called “war on coal” – a misnomer – but they lost.
The EPA is now moving forward with long-delayed Clean Air Act standards that were called for by legislation passed by Congress in 1977 and 1990. The courts will, hopefully, now confirm the EPA’s authority to issue these standards.
While Illinois’ mercury pollution reduction standards have been implemented, in some cases the federal standards might cover specific additional toxics emissions beyond mercury. Illinois was a leader in adopting mercury pollution reductions in 2006 and 2007, these are helping achieve significant public health benefits and cleaner rivers and Great Lakes.
However, Midwest Generation and Ameren (now Dynegy) have been given waivers of part of Illinois clean air interstate standards for sulfur dioxide and nitrogen oxide. The implementation of CSAPR is thus very important.
What will happen if the Supreme Court does not reinstate CSAPR?
Until CSAPR is reinstated in some form, then the Clean Air Interstate Rule (the Bush-era standards) will continue to apply. Presumably if the Supreme Court were to uphold the (appeals court decision shooting down CSAPR), it would do it in a way that provides guidance to the EPA. The Court would say what’s wrong here and needs to be fixed.
How would you feel if that happened?
There really does come a time for predictability and finality.
The Clean Air Act was passed by Congress many years ago, and its implementation has been long delayed while public health harms continue. Sooner or later these public health protections should be moved forward.
This transcript was lightly edited for clarity and brevity.
EPA Tells Court U.S. Mercury, Toxics Rule is Legally Justified
ELPC’s Howard Learner on Importance of MATS Case
BY VALERIE VOLCOVICI
WASHINGTON — (Reuters) The U.S. environmental regulator argued in court on Tuesday that its rule limiting mercury and hazardous air pollutants is “appropriate and necessary,” not an improper interpretation of the federal Clean Air Act as industry groups and some states contend.
The U.S. Court of Appeals for the District of Columbia Circuit, the second most powerful court in the country behind the Supreme Court, heard two cases challenging the Environmental Protection Agency’s first rules to crack down on mercury from the country’s fleet of electric generating units.
The EPA’s Mercury and Air Toxics Standard (MATS) applies to 1,400 of the country’s largest power plants and would come into force in 2015, or in some cases, 2016.
The MATS rule was finalized in December 2011 but has been subject to several petitions for reconsideration from groups ranging from pollution control equipment vendors to power plant developers. The EPA has said that MATS could prevent up to 11,000 premature deaths, and generate $90 billion in health benefits, each year.
The three-judge panel asked a number of detailed questions to the dozen or so lawyers representing the EPA, green groups, the energy industry and states. The judges appeared skeptical of industry’s argument that the agency did not take the proper steps to determine that it was “appropriate and necessary” to regulate those pollutants.
Neil Gordon, Assistant Attorney General for the state of Michigan, which opposes MATS, said the EPA’s interpretation of the word “appropriate” was unlawful since the agency did not weigh regulatory costs in its decision to regulate the pollutants.
But Chief Judge Merrick Garland, a Democratic appointee, questioned Gordon’s argument, saying, “nowhere does Congress require (the EPA) to evaluate cost” in its determination for the need to curb mercury and other toxic substances to protect public health.
Arguments at the hearing, held even though the court was closed for a snow day in Washington DC, lasted nearly four hours. That was longer than planned and longer than arguments in similar regulatory cases, observers said.
“The panel was well versed in the case and thoroughly read the briefing. The questions were really probing around the salient issues,” said John Suttles, a lawyer for the Southern Environmental Law Center who represented the American Lung Association as an environmental intervener in the case.
He said the EPA made a strong case that it was within its rights in regulating the pollutants and that he “didn’t really see an indication that court disagreed with EPA.”
But Eric Groten, an industry lawyer specializing in the Clean Air Act for Vinson & Elkins, said he would be surprised if the MATS was affirmed in its entirety.
“There were so many issues argued that it increases the chance the EPA got something wrong,” he said.
Groten noted that some judges questioned whether the EPA “artificially skewed the data” used to set mercury limits by basing them on the best performing power plants rather than a wider sample.
The judges, which also included Democratic appointee Judith Rogers and Republican appointee Brett Kavanaugh, are expected to take a few months to deliberate and could reach a decision by February or March.
A conclusion to the case will end years of “pingponging” between the EPA and the DC Circuit court.
“If the EPA prevails in the MATS case, that moves this set of standards forward and brings finality, stability and predictability to the reduction of mercury and other air toxics for coal plants,” said Howard Learner, an attorney and executive director of the Environmental Law and Policy Center.
Coal industry groups said they hope that the DC Circuit and the Supreme Court, which heard another air pollution case Tuesday, strike down both laws, which they claim hurts jobs and the economy.
“EPA’s overreaching and overzealous rulemaking is crippling the nation’s coal-fueled electric sector and is a threat to our nation’s economy,” said Laura Sheehan, a spokeswoman for the American Coalition for Clean Coal Electricity.
(Reporting by Valerie Volcovici, editing by Ros Krasny and David Gregorio)
In Germany, Chicago energy experts find lessons for Midwest
By Kari Lydersen
Chicago energy experts who spent a week in Germany and Brussels in mid-November on a fact-finding expedition came back with a complicated take on Germany’s famous Energiewende, the sweeping transition to clean and renewable energy.
They were highly impressed with the fact that unlike the U.S., Germany has a cohesive national energy policy, and that it has meant rapid adoption of solar and wind power, including through substantial governmental support and subsidies.
But they also learned how Germany has in some ways been a victim of its own success, with the swift transition to solar and wind and the closure of nuclear plants raising reliability issues.
“They’ve been successful beyond their wildest dreams – there’s so much solar and wind coming on to their grid that it’s actually destabilizing their grid,” said Rachel Bronson, vice president of studies for the Chicago Council on Global Affairs, which convened the delegation along with the Konrad Adenauer Stiftung (KAS) – a think tank affiliated with German Conservative political parties. “It’s exciting, but there is too much (renewable power) coming on at times, and sometimes not enough.”
“There are some days where they get 80 percent of their energy from renewable energy, and some days they get one percent,” added Tom Wolf, executive director of the Energy Council of the Illinois Chamber of Commerce. “When the sun shines and the wind blows, they’ve built up so much that even on average they have more energy from renewable than from nuclear.
“A lot of people in this country would consider that an incredible victory, and it is amazing,” Wolf added. “But now the problems happen. I’ll call them challenges rather than problems.”
Another delegation member — Howard Learner, executive director of the Environmental Law & Policy Center — had a more “glass-half-full” take.
“What we’re seeing in Germany with a tremendous growth in renewable development is truly a glimpse into the future for the Midwest,” he said. “There are tremendous opportunities. And there are some challenges, but we have an opportunity to learn from them…We have a three- to four-year lead time here in the Midwest in terms of addressing those problems and learning from some of the German solutions.”
Nuclear phase-out raises fears
In the wake of the March 2011 Fukushima disaster, Germany pledged to close all nuclear reactors by 2022, and eight reactors were closed almost immediately. The plan, implemented by Conservative Chancellor Angela Merkel, was the culmination of a decades-long push against nuclear power by the Green Party and many German citizens.
The rapid phase-out of nuclear power is popular, but has presented concerns about making sure adequate generating capacity is available at all times.
The Chicago delegates said the trip gave them new insight into how the German response to Fukushima was influenced by their experience with the Chernobyl disaster three decades earlier.
“Chernobyl wasn’t just in the paper for them – people I talked to remembered Chernobyl very well,” said Wolf. “They couldn’t drink milk (from regional dairies), they worried about their kids playing outside, that moment really hit home for them.”
Still, the Chicagoans think the German decision to quickly phase out nuclear power may be based more on emotion than sound policy. Wolf compared it in his blog to what he sees as a somewhat misguided American obsession with energy independence.
“In a democracy, logic can lose out to perception,” he wrote.
German coal concerns
The group’s last stop was in Leipzig, an industrial city in former East Germany near some of the country’s sprawling open pit mines for lignite brown coal or “braunkohle,” which is wetter and dirtier-burning than the standard hard black coal found deeper underground.
Since the closing of nuclear plants, Germany has boosted its imports of hard black coal from the U.S., Colombia, Russia and other countries. An April 2013 report by German environmental groups said Germany increased its imports of U.S. coal 50 percent since last year, with most of it coming from Appalachia.
Germany also has its own hard coal, but much of it has become too expensive to mine. And in Germany, as in the U.S., there is significant popular opposition to coal. In March, Greenpeace released an academic study estimating that particulate matter from German coal plants causes 3,100 premature deaths each year. Many Germans are pushing for tighter limits on the mining and burning of brown coal, especially since recent and planned expansions of the brown coal mines eat up villages and forest.
Bronson and Wolf came away from their trip feeling the German government perhaps needs to do more to support the coal industry, to make sure it is available to provide baseload power as nuclear plants close.
“Coal remains important for industry, employment, as well as operations,” wrote Bronson in ablog post for the Chicago Council. “Unless policy is carefully crafted and reconsidered, all of the above is at risk.”
Wolf noted that the German policies which have encouraged an explosion of renewables have made it less profitable to run coal-fired power plants.
“We talked with people who said they can’t make money being the backup for wind and solar,” he said, noting that they toured a “beautiful” Leipzig coal plant which ramps up or down frequently depending when its power is needed – an inefficient way to operate. “Renewables get first crack at the grid. The problem is you can’t run a coal plant and all the machinations that go with it in the long-term just being backup power. You need some kind of compensation, or you need to tone down the tariffs or subsidies for renewables.”
Bronson said that while many people consider “clean coal” to be an oxymoron, she sees it differently especially after being in Germany “at a moment where they had just waved a wand and done away with nuclear.”
“They need coal,” Bronson said. “If you need coal, figure out how to make it cleaner.”
The trip offered numerous examples of how energy issues are inextricably linked across sweeping geographic areas, and can never be addressed in isolation.
The Chicago contingent heard about a serious challenge that the U.S. and Germany have in common in pushing for cleaner energy: the need for more transmission lines to get wind power from remote windy areas to population centers where it’s needed.
Wolf noted that “NIMBY” or “not in my back yard” is “a word in German too,” and even clean energy-loving Germans don’t want big transmission towers built near their homes.
“Not surprisingly there are a fair number of people in German communities who are unhappy with transmission running through their towns and their farmlands,” said Learner. “That’s an issue we’re also facing in the Midwest and nationally. For transmission planners to sit down with a map and have engineers draw lines that will move power from place A to place B is one thing, it’s another thing to engage with communities in between who don’t always see the value and benefit of transmission lines.”
He said that in Germany and in the Midwest, concern over transmission lines is motivation to also develop decentralized, smaller-scale wind and solar projects closer to where the power is needed.
Bronson noted that Germany’s location in the European Union actually presents parallels to the regulatory situation in the U.S., where states present a patchwork of different energy-related laws and policies even though the generation and distribution of energy typically crosses numerous borders.
The delegation members heard from Germans surprised at the booming growth of controversial hydraulic fracturing in the U.S. Bronson noted that fracking has been slow to take off in Germany and most of Europe in part because individual landowners are much less likely to benefit directly from fracking if they don’t own subsoil mineral rights.
American fracking, Bronson added, “has implications for them too,” since it increases U.S. coal companies’ motivation to export their product. Craig Morris, lead author of the German Energy Transition project, explained this trend in a blog earlier this year. “It’s an environment where their energy policy is shifting,” Bronson said, and U.S. fracking “is making it harder for them to do what they want to do,” even as it is helping to lower carbon emissions in the U.S.
Confidence in clean energy
Despite the challenges they observed, the delegation members said seeing the German experience first-hand inspired more confidence in growing renewables in the Midwest.
“Even in these difficult moments where (the Energiewende) doesn’t seem to be constructed right, the population really believes in a cleaner future and paying a cost to get there,” said Bronson. “That was pretty inspiring.”
They also said that as much attention as Germany is getting for its clean energy transformation, they think the U.S. is in better shape than many people realize. Learner pointed to a recent study by GE Energy Management showing that the PJM Interconnection could handle 30 percent renewables on the grid without endangering reliability, reducing costs to boot.
“We look at our own model and we’re so frustrated at not having an energy policy, and yet we have increasing use of renewables, increasing diversity with natural gas and alternatives to oil,” said Bronson. “Our carbon emissions are coming down while (Germany’s) are going up. If you look at the full plate we’re actually stumbling along kind of impressively.”
The ELPC is a member of RE-AMP, which also publishes Midwest Energy News.
The Energy Transition Project is run by the Heinrich Böll Foundation, a think tank affiliated with the German Green Party. The Heinrich Böll Foundation has supported Midwest Energy News reporters Kari Lydersen and Dan Haugen to report on clean energy development in Europe.