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The Political Climate Gets Legal December 17, 2013

Posted by Jamie Friedland in Climate Change, Law.
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This blog has been quiet for a while, but that does not mean the writing has stopped.  Here’s a link to my first print publication with the Columbia Journal of Environmental Law, entitled, The “Lone Grid” State: Texas as the Ideal Location for State-Level Climate Regulation (pdf).  In short, I argue that the interaction between the interstate electrical grid and the Constitution’s limitation on state regulation of interstate commerce may actually make Texas better able to enact a strong climate program than even California.  Enjoy!

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Democratic Energy Agenda Outmaneuvered by Hypocritical Republicans August 8, 2010

Posted by Jamie Friedland in Climate Change, Congress, Media, Offshore Drilling, Politics.
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In these difficult times for the mainstream media, many traditional outlets are shying away from calling out politicians for obvious contradictions.  Overzealous attempts to avoid accusations of media bias have muzzled the watchdogs that a healthy democracy requires.  In this political free-for-all, the Republican minority is dishonestly yet deftly outmaneuvering the reform agenda.  This is readily apparent in an examination of the oil spill response bill.

I actually pity Sen. Reid right now.  He has an impossible task.  Look at how this mess played out:

The oil spill presented a rare political opportunity to advance the long obstructed climate agenda.  Despite a successful bill in the House, it was clear the Senate was not ready for a similar plan.  So Reid dropped the climate initiatives and pushed an energy bill.

In order to attract even a single Republican vote, the more ambitious and indeed necessary energy solutions were stripped.  As time went on, it became difficult to even call it an “energy” bill.

Still, Republicans and their industry allies demanded that the oil spill response bill contain only provisions pertaining directly to oil spills (a short-sighted strategy that treats symptoms instead of the disease).  Without a supermajority, Reid was forced to remove all but the most uncontroversial energy provisions.

The only remaining contentious item in the bill is the oil spill liability cap.  Democrats want to make oil companies actually pay for the damage they cause.  Republicans are protecting the liability cap on behalf of smaller members of the oil industry.  This should have been a slam dunk.   So what happened?

It is no secret that the larger Democratic tent includes some oil state senators who protect Big Oil, not unlike their Republican colleagues.  One would like to believe, however, that these senators, such as Mary Landrieu (D-LA) and Mark Begich (D-AK), want to help their party advance the minor energy reforms in this bill and prevent future spills.  Indeed, these two senators are now crafting a liability compromise to remove that roadblock.

In order to strike while the iron was still at least warm, Sen. Reid tried to push the bill through before the August recess.  So Senate Republicans shrewdly prevented Democrats from negotiating, even among themselves.

Republican staffers made it clear that if the bill were opened to amendments, they would hijack the debate and use the opportunity to file divisive, partisan amendments, purely to score political points and drag out the process.  They said their amendments would attack the broader Democratic energy agenda, including cap-and-trade and the EPA’s authority to regulate greenhouse gases.

This is blatant hypocrisy.  After insisting that Sen. Reid’s bill focus narrowly on oil spills, Republicans threatened to derail the oil spill response bill by injecting broader energy issues.  But did the mainstream media call them out for this political duplicity?  No.

Knowing that Republicans would surely back up their amendment threats, Reid was forced to advance the bill without accepting amendments, a process known as “filling the tree.”

Because Reid wasn’t accepting amendments, Republicans attacked Democrats for shoving through another “partisan” bill without accepting any minority input – a lie, because many of the bill’s provisions were actually coauthored by Republicans!  Additionally, the necessary parliamentary maneuver angered centrist Democrats*.

Democrats lost this round decisively.  Republicans hit the bill from all sides.  To me, it called to mind an image of Sen. Reid as a little boy, trapped in a circle of Republican bullies shoving him back and forth between them.

With the compromise in the works, this bill may pass after the recess.  But without media referees, the reform agenda will continue to struggle.

*To be fair, there was concern that more conservative Democrats, led by Sen. Jay Rockefeller (D-WV), might also take advantage of the amendment opportunity to limit EPA authority on greenhouse gases.

Those who do not learn from oil spills… August 7, 2010

Posted by Jamie Friedland in Congress, Media, Offshore Drilling, Politics.
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Last week, the Senate failed to pass even an anemic oil spill response bill.  The oil industry learned a lesson from this episode, and it’s not the lesson we’d hoped to teach them.

The bill that was pulled contained commonsense measures to prevent oil spills.  Simple ideas like making oil companies fully liable for the damage they cause.  “You break, you buy” is not a tough concept, and the oil industry has zero goodwill with the public right now.  This should have been simple.

Yet for all of BP’s technical incompetence and possibly criminal negligence, they have thus far succeeded in minimizing the regulatory blowback from this terrible, preventable catastrophe.  Their formula is simple:

1)     Lie to downplay the spill size;

2)     Deny media access so that nobody can disprove the lie;

3)     Spend a tiny fraction of profits on lobbying; and, inevitably,

4)     …Repeat

We know that BP has consistently downplayed the size of the spill.  They used dispersants to keep oil underwater and then chose to measure the spill rate solely by the size of the surface oil slick.  That’s willful deception.

Yet because BP withheld video footage and denied reporters access, nobody could authoritatively challenge their claims (except maybe the government, but that’s another story).

And finally, over the last few months, the big five oil companies (BP, Chevron, ConocoPhillips, ExxonMobil and Shell) have spent $18 million lobbying to kill the oil spill response bill.  Compared to their $21.7 billion in combined profits over the last quarter alone, that is a tiny investment.

And it worked.

Surely this legislative gridlock is influenced by the toxic political climate in Washington, but the industry has taken note of BP’s success.  In fact, we have already seen tactics from this new playbook employed elsewhere.  (Which means, unfortunately, that we have already had more oil spills since Deepwater Horizon…we didn’t pass this oil legislation how?)

In Michigan, there are numerous reports that Enbridge Inc. is denying media access to areas damaged by its recent oil spill.  In China, the amount of oil spilled when a pipeline exploded is suspected of being massively downplayed.  This pattern is not going to stop on its own.

Oily shoreline in Dalian, China, where BP's spill response tactics are already being replicated.

During future oil spills, what incentive does a company have to be honest or transparent about the damage it is causing?  None.

Not only have we failed to hold the oil industry accountable for unacceptable damage and deplorable safety records, we have taught them how to get away with it even when, for a few weeks, the whole country actually cares about the environment.

The oil industry has not learned from its mistakes.  Why should they?  It’s much cheaper to pay for lobbyists.  With limited liability, taxpayers and victims pay for much of the damage oil spills cause.

Case-in-point: despite the looming phase-out of single-hulled tankers like the Exxon Valdez, Exxon still hires more of these risky supertankers than the next 10 biggest oil companies combined.

Failing to pass this weak bill will be even worse than having done nothing.  It will let Big Oil know they can bully and buy their way out of any transgression, no matter how heinous.   Those who do not learn from their oil spills are doomed to repeat them.

And right on cue comes news that in Alaska, just thirty miles from the Arctic National Wildlife Refuge, BP is gaming the system to loosen restrictions and oversight on a new drilling project…

A Guide to Corn Ethanol July 22, 2010

Posted by Jamie Friedland in Climate Change, Politics.
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A follow-up post explains the current political attempt to extend $6 billion a year in senseless tax credits for corn ethanol.

What is Corn Ethanol?

Corn ethanol is a biofuel: a fuel made from agricultural crops.  We use it primarily to power cars.  As its name implies, corn ethanol is a grain alcohol produced by the fermentation and distillation of corn.  And yes, that is the same “ethanol” that is responsible for the inebriating effects of liquor.

Corn ethanol is actually very similar to Everclear, if you’ve ever had the misfortune of crossing paths with the 190 proof “beverage” that is, regrettably, illegal in only 14 states.  In fact, the only difference between grain alcohols like Everclear and the corn ethanol used as a fuel is a “denaturing agent,” such as gasoline, that is added after production to render the fuel alcohol [officially] undrinkable – in order to exempt it from heavy alcohol taxes.

This is how corn ethanol is made.

Benefits of Corn Ethanol

Corn ethanol is a renewable fuel source because it is grown from corn.  Although, like gasoline, it releases carbon dioxide in the atmosphere, growing more corn removes carbon dioxide from the air, so it forms a cycle with no direct net increase in atmospheric carbon dioxide.  This is, in and of itself, preferable to the one-way transfer of carbon from fossil fuels into the atmosphere as in gasoline.

As a fuel, ethanol undergoes combustion much like gasoline.  It actually burns more cleanly than gasoline and other fossil fuels, because unlike coal, corn doesn’t contain large amounts of sulfur and other pollutants to be released when burned.   This industry website touts many of the environmental benefits of burning corn ethanol as a fuel source compared to gasoline.  One of them is decreased direct carbon dioxide emissions*.  I haven’t checked into all of the listed benefits, but they are likely at least based on fact**.

*“Direct” emissions measure the greenhouse gases released simply from burning corn ethanol or gas.  However, if you include “indirect emissions” – the greenhouse gases released in the agricultural production and transportation of corn as well as the production of the ethanol – those emissions likely more than negate the direct benefits.

**Similarly, a 2009 University of Minnesota study found that if you include the entire lifecycle of corn-based ethanol, the other air quality benefits are at least negated as well.

Since 1985, new fuel-injected engines have been designed to withstand the corrosive effects of ethanol at a concentration of 10%.  Per the Renewable Fuel Standards in the 2005 energy bill, ethanol is currently blended into about 50% of our nation’s gasoline. In the U.S., it is most commonly found in 10% mixtures with gasoline or the less used 85% mixture (E10 and E85 respectively).  “Flex Fuel” engines detect the ethanol concentration in the gas tank and optimize performance.

So if ethanol provides all these benefits over gasoline, why aren’t we just using pure ethanol in our cars?

Problems with Corn Ethanol

Ethanol cannot be mixed with water and corrodes many metals, even when mixed with gasoline.  As a result, ethanol cannot be transported through nation’s existing gasoline infrastructure of metal pipelines.  In fact, there are no ethanol pipelines anywhere in the world.  Instead, ethanol must be transported via retrofitted truck, rail, or boat, and that is costly.   That being said, the Department of Energy says that an ethanol pipeline could be feasible in the future under the right circumstances.

There are plenty of other complications.

Depending on local irrigation requirements, it can take over 550 gallons of water to produce a single gallon of corn ethanol.  Another study expressed this a different way: it takes approximately 36 gallons of water to produce enough corn ethanol to drive a standard car one mile.  Think about that.  36 gallons per mile, NOT miles per gallon.

This image shows how much water each state uses to produce ethanol.  States in that darkest red use more than 600 billion liters of water

(158 billion gallons).

At that rate, it would take over 1000 gallons of water to produce enough ethanol to fill the gas tank of a single Ford Explorer.  America’s water resources are already stressed; ethanol production does not provide nearly enough benefit to justify squandering our vital water resources.

Other than water, increased fertilizer used to grow more corn for ethanol is causing even larger dead zones in the Gulf of Mexico (maybe that’s not a problem anymore).  Such dead zones form when excess fertilizer runs off farm fields into rivers.  Those rivers transport the fertilizer to larger bodies of water where, in the presence of massive artificial enrichment, microorganism populations explode and use all of the oxygen in the water, killing off all marine life contained therein.  Water without oxygen is known as hypoxic and cannot sustain life, hence “dead zone.”

Food for Fuel

Another major problem with corn ethanol is that we are using a food crop as gasoline.  If using food to fuel our SUVs while millions of children starve around the world rubs you the wrong way, you are not alone.

As the Economist pointed out in 2007:

“the demand of America’s ethanol program alone accounts for over half the world’s unmet need for cereals.

And they’re not talking about Wheaties, those “cereals” are grains that starving people need but cannot get.

Additionally, basic economic theory dictates that scarcity has effects on the existing supply as well: in the two years following the corn ethanol mandates that began in the 2005 energy bill, food prices jumped 75%.  Yet another reason why corn growers love ethanol.

Ethanol Releases More CO2 Than Gasoline

Numerous studies have demonstrated that the lifecycle production of corn ethanol may release as much as 50% MORE greenhouse gases than gasoline.  You have to drive all those tractors and fertilize the fields and harvest the corn and transport it to the ethanol plant which itself uses more power and then you have to transport the ethanol…all that uses fossil fuels.

As Tom Philpott at Grist put it: “corn-based ethanol is really just a clever way to convert natural gas and coal into car fuel.

There is still debate on this topic, but there is a reason why the industry has repeatedly lobbied the government and EPA to ignore lifecycle emissions and indirect land-use changes (discussed below) in their relevant calculations.  Regardless of the exact numbers, it is clear that corn ethanol does not provide large greenhouse gas benefits over gasoline.

Indirect Land-Use Change

From a climate change standpoint, corn ethanol poses an additional problem.  Shifting American cropland to produce fuel instead of food has consequences that cascade around the world.

First, the world population is always growing.  Second, increasingly more corn is being used to feed cattle as an upwardly mobile global population demands more meat.  This means that barring dramatic increases in crop yield/acre, we would need more cropland than we had before – even if we weren’t using some of our most fertile land to grow fuel.  So with 20% of U.S. corn (as of 2007) going into cars as ethanol instead of into bellies as food, there is a worldwide demand for more cropland.

As a result, landowners around the world are converting land to farmland.  What’s wrong with that?  Well, think about what types of land can be converted to farms.  Deserts can’t be converted to support agriculture.  What can?  Forests.  Rainforests.

High food prices and surging food demand are among the major causes of deforestation.  When forests are cleared, all the carbon that was stored in all that plant life is released – and all the carbon dioxide those plants were going to remove from the atmosphere will remain in the air.

Because we're using our food for fuel, people in other countries are burning down forests to make more farmland to grow food. The carbon emissions from this deforestation can fairly be attributed to corn ethanol.

To make matters worse, the easiest way to convert a dense forest to cropland or pasture is a technique known as slash and burn.  This creates viable farmland for a few years, but has tragic long-term consequences. The absence of roots causes soil erosion, and after a few years, slash and burn quickly leads to desertification; the land becomes unsuitable for either forests or agriculture.

This prompts farmers to simply move deeper into the forest to slash and burn another plot.  Obviously, this is not sustainable.

Ethanol is Politically Attractive

While the environmental benefits have been essentially dispelled, corn ethanol was an attractive fuel source for another reason as well: it is homegrown and can be used to displace [a very small fraction of] our reliance upon foreign oil.  This makes corn ethanol not really an effective energy security policy but rather an effective energy security talking point.

Ethanol is more politically attractive than sensible.  Corn producers have a lot of clout in the sparsely populated Midwestern states, which gives them outsized influence in the Senate.  Additionally, Iowa is a major corn producer, and because Iowa is the permanent location for the first presidential primary, opposing such a major demand of corn producers is political suicide for a presidential candidate.

Conclusion:

Corn ethanol should be used, if at all, as a transition fuel on the way to cellulosic ethanol, about which I hope to post soon.  The corn ethanol industry is mature, yet it has two different layers of federal financial support.  That doesn’t make any sense.

A Canadian oil company is marketing its E10 ethanol blend as “Mother Nature’s Fuel.”  That is terribly dishonest; Mother Nature definitely bikes to work.  Corn ethanol, while derived from a natural feedstock, is neither an energy solution nor an environmental boon.

CCS: An Energy Wild Goose Chase, Not Silver Bullet July 15, 2010

Posted by Jamie Friedland in Climate Change, Coal, Congress, Politics.
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Carbon Capture and Sequestration (CCS) is the much-hyped “clean” in “clean coal.”  Contrary to industry advertising, as of yet, it doesn’t really exist – so neither does “clean coal.”  If carbon-pricing ever occurs (and at some point it will), CCS will be vital to the survival of the coal industry.

So on Wednesday, a bipartisan pair of coal state senators pushed for yet more funding for this technology.  Sen. Jay Rockefeller (D-WV) and Sen. George Voinovich (R-OH) are seeking $20 billion to support large-scale CCS demonstration projects.

So how does it work?

Burning coal releases a lot of carbon dioxide.  Today, CO2 simply vented into the atmosphere with the rest of coal’s air pollutants. As a greenhouse gas, CO2 emissions are causing climate change, so CCS seeks to capture that carbon dioxide before it gets released and store it someplace other than our atmosphere.  In theory, if we can filter out the CO2 from coal combustion and store it safely, we could burn fossil fuels to our hearts’ content without exacerbating global warming.  CCS technology can potentially remove 80%-95% of CO2 emissions from power plants and other industrial sources.

Cost aside, the major technical issue with CCS is figuring out where to store all that gas.  There are two major options for storage:

  1. Geological storage
  2. Ocean storage

Geological Storage:

The most obvious place to store CO2 is within the Earth.  Our planet is rich with geological formations that naturally hold gases underground; it within these geologic traps that we currently drill for oil and natural gas.  Like helium in a balloon, light gases attempt to rise through the ground.  When impermeable rocks form solid, dome-shaped formations, gases become trapped there, having risen as high as they can.

The most attractive potential CCS sites are deep saline reservoirs, unmineable coal seams, and oil and gas reservoirs.

There are a number of geological formations that can theoretically store CO2 underground.

In regard to that third option, geo-sequestering CCS has been conducted on a small scale since the 1970s.  Subterranean gas injection is one of the techniques known as “Enhanced Oil Recovery,” often abbreviated EOR. Injecting gases into oil reservoirs can artificially increase the pressure within a given well, thus enabling the recovery of oil that would not have otherwise been obtainable.  It helps get a little more oil out of a depleting well. CCS can help us make the most of our existing domestic oil infrastructure instead of drilling in new, sensitive areas.  Whether such operations are suitable for long-term carbon storage is under investigation.

However, CCS took a big hit just two months ago, when researchers at Texas A&M determined that CCS will require 5-20 times more underground reservoir capacity than previous thought.

Ocean Storage:

In theory, injecting CO2 at great depths within the ocean could keep the carbon out of the atmosphere for a geologically significant amount of time.  At depths of over 1000 meters, CO2 will simply dissolve in the water.  At depths of over 3000 meters, CO2 forms a liquid denser than seawater and pools at that depth for a time before ultimately dissolving.  A number of other ocean storage theories exist.

All of them are terrible ideas. Even if we could guarantee that oceanic CO2 never returned to the atmosphere (we cannot), carbon dioxide causes plenty of problems in the ocean as well.  We don’t even understand all of the potential consequences of oceanic CCS, but we do understand that it would cause ocean acidification, about which I have already written an entire post.

Transportation:

Regardless of where the CO2 is stored, a second major technological hurdle is transportation.  After capture at each stationary source, CO2 would need to be transported to whatever storage sites were to be used.  This could be done most economically via pipeline.  However, this is no simple matter.

“That CCS and related legislation generally focuses on the capture and storage of CO2, and not on its transportation, reflects the current perception that transporting CO2 via pipelines does not present a significant barrier to implementing large-scale CCS.”  –Congressional Research Service 2007, p. 2.

…but it does.

The various technologies required to build a CO2 pipeline network are each individually considered mature.  However, integrating them and deploying them at such a large scale would a considerable challenge.

Widespread CCS use would require its own dedicated national CO2 pipeline network.  That network does not exist. Currently, there are approximately 3,600 miles of CO2 pipeline in operation within the US, mostly to support EOR operations.  In contrast, there are approximately 500,000 miles of natural gas and hazardous liquid (such as gasoline) pipelines across the country.

To utilize CCS, we would need CO2 pipelines running across the country from hundreds of major stationary emitters to reservoirs. That infrastructure would have to be built from scratch.

Politicians have not seemed to notice yet, but this contributes to yet another critical problem with CCS…

Very High Cost:

CCS is an expensive venture.  Massive amounts of federal funding have already been funneled into CCS research and development.

The stimulus bill included $3.4 billion for CCS programs related projects.  Department of Energy budgets for fiscal years 2008-2010 included a combined total of $1.26 billion in direct CCS or CCS-related funding.  Federal loan guarantees for CCS were first authorized in the Dick Cheney Energy Policy Act of 2005.  The Omnibus Appropriations Act of 2009 restated that authority indefinitely and provided an additional $8 billion in coal-related loan guarantees.  The Cheney energy bill also included $1.3 billion in tax credits for advanced coal projects (source).

That’s about $14 billion right there.  This before the $20 billion now proposed by Senators Rockefeller and Voinovich. Why so much money?

A University of California study found that laying the 16 inch diameter pipeline that CCS would require would cost $800,000/mile (in 2002 dollars) although costs for individual pipelines could vary by a factor of 5 depending on location.

Last year, a Harvard study put the future of CCS in serious doubt.  These researchers determined that the “realistic” cost of first-generation CCS will be about $150/ton of CO2.  That price tag would make this technology infeasible.  We emit a LOT of CO2 each year.  Some analysts believe that, if utilized, CO2 sequestration rates could rise to over 1 billion tons of carbon per year by mid-century.  Even if that cost/ton came down as the technology advanced, the annual price tag would be staggering.

For reference, last year, analysts suggested a price ceiling of $35/ton of CO2 for cap-and-trade credits because costs higher than that were deemed prohibitively high.  In 2007, the Bingaman-Specter cap-and-trade bill had a price ceiling at $12/ton of CO2 (although commentators corrected deemed this ridiculously low).  The point is that $150/ton is beyond uneconomical.

Coal’s low price is what makes it so attractive to utilities (it certainly doesn’t have any other redeeming qualities).  Coals’ days without CCS are numbered, but CCS’s high costs make coal an unrealistic fuel for the future.

Safety:

Leakage out of the reservoir is a major concern.  Even stable rock formations shift in earthquakes.  In order for CCS to be an effective climate mitigator, sequestered carbon would have to remain underground for thousands of years.  Seismic activity presents a danger of undoing all that sequestration.

But even beyond climate concerns, if a carbon reservoir leaked near a populated area, that escaping carbon dioxide would pose a significant health risk.

Because CO2 is denser than air, when it leaks out of the ground it forms an invisible, undetectable cloud that pools near the ground and displaces the oxygen, suffocating any life nearby.  This has happened naturally and given us a glimpse of what could occur: in 1986, Lake Nyos in Cameroon released a large amount of CO2, silently killing nearly two thousand people and a large number of livestock.

1,700 people and 3,500 cattle within 16 miles of Lake Nyos were killed when the lake “outgassed” and CO2 displaced the oxygen near the ground.

CCS CO2 reservoirs could pose a substantial threat to nearby life. Pressurized carbon dioxide pipelines present would present a smaller, related risk.

Carbon Dioxide is Dangerous

Yes, carbon dioxide is necessary to sustain life on this planet.  That does not mean that more is better. For the “CO2 Is Green” crowd, I present this paragraph from the CRS report:

“CO2 occurs naturally in the atmosphere, and is produced by the human body during ordinary respiration, so it is commonly perceived by the general public to be a relatively harmless gas. However, at concentrations above 10% by volume, CO2 may cause adverse health effects and at concentrations above 25% poses a significant asphyxiation hazard. Because CO2 is colorless, odorless, and heavier than air, an uncontrolled release may accumulate and remain undetected near the ground in low-lying outdoor areas, and in confined spaces such as caverns, tunnels, and basements. Exposure to CO2 gas, as for other asphyxiates, may cause rapid “circulatory insufficiency,” coma, and death.” –Congressional Research Service 2007, p. 18.

This is what happened at Lake Nyos.

CO2: Pollutant or Commodity?

One additional minor but interesting potential complication for CCS is that CO2 could arguably be classified as both a pollutant and a commodity.  If climate-deniers figure this out, they will have a field day misconstruing this information, but CO2 could be classified as a pollutant by the EPA because of its excess greenhouse capabilities, but classified as a commodity by the BLM (Bureau of Land Management) on account of its application for EOR.  Only in this circumstance could CO2 be considered a commodity.

Even if EOR CO2 were classified as a commodity, because it is unlikely that all the CO2 involved in widespread CCS could ever be used in EOR operations, all that excess CO2 not used in this way would probably constitute an industrial pollutant.  This is not just an academic issue; conflicting classifications would have significant impacts on the regulatory process for pipeline construction.

Conclusion:

CCS demonstration plants are under way or planned in at least 10 countries including the U.S..  Our government is pouring money into this technology thanks to the Congressional sponsorship that coal industry campaign donations, lobbyists and jobs have bought.

However, the industry is lying to the public:clean, carbon-neutral coal”is decades away, if possible at all. The billions of dollars spent on this research could be better spent on real climate solutions; put $34 billion into solar and wind etc and we will have the clean, renewable energy infrastructure for our future.

Why the EPA Should Regulate Carbon July 7, 2010

Posted by Jamie Friedland in Climate Change, Coal, Congress, Politics.
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…because the Senate won’t.

Despite what is shaping up to be the hottest year on record, the ongoing oil spill  and pubic opinion polls showing that Americans are finally ready to address our entwined energy and climate crises, legislation remains blocked by the usual suspects: Republicans, lobbyists and perpetual election year politics.

Most people think that Congress is the governmental entity that ought to address an issue as sweeping as climate change.  I agree.  So do most congressmen – loudly.

Unfortunately, many those congressmen who angrily rant about the importance of congressional authority are the very same people blocking congressional action.

The Obama Administration has made it clear that it does not want to have to regulate greenhouse gas emissions through the Environmental Protection Agency.  Everybody would prefer that Congress pass a bill instead.  The House has.  The Senate, it seems, cannot.

Yet we must address a threat of this magnitude.  So if Congress won’t, the EPA should.  The Supreme Court agrees; if Congress doesn’t act, the EPA is legally obligated to regulate GHGs as a pollutant under the Clean Air Act. The EPA will not supersede legislative climate action; it will act in accordance with the Clean Air Act (written by Congress) unless Congress passes a newer law.

As the chances for such a law fade, it is worth examining what EPA carbon regulations might look like.

What Would EPA Regulations Looks Like?

There have been a number of bureaucratic hoops to jump through on the road to EPA carbon regulations.  Next January, when the EPA’s new gas mileage standards for cars comes into effect, greenhouse gases will finally be “subject to regulation” under the Clean Air Act.

First, new polluting power plants and industrial facilities would have to adopt the “best available control technologies” (BACT) for regulating carbon emissions.  The EPA gets to determine which technologies are “best.”  Carbon capture and sequestration technology could fall into this category if it was proven, but that’s a long way off.  In the meantime, the EPA would the mandate the use of existing technologies to reduce emissions and/or increase efficiency.

For example, the EPA could require any and all new coal-fired power plants to utilize integrated gasification combined cycle (IGCC) technology.  IGCC plants convert coal into a synthetic gas so that it can be burned more cleanly (in terms of non-GHG pollutants) and use excess heat from the primary combustion and generation to power a secondary steam turbine that generates extra electricity per unit of coal burned.  Or it could require new power plants use natural gas instead of coal.

Natural gas emits much less carbon than coal.  It’s not a long-term solution, but significant short-term gains could be achieved by switching from coal to natural gas.  The EPA could propose this change.

What is the “Tailoring Rule”?

Under the Clean Air Act, anyone trying to build or upgrade a facility that will emit a baseline level of a regulated pollutant (usually 100-250 tons per year) needs to get a permit from the EPA certifying that they are utilizing the “best available control technology” (BACT) to minimize their emissions.

For other Clean Air Act pollutants, like lead, 100 tons per year is quite a bit and well worth of regulation.  The problem here is that carbon emissions are on a much larger scale.  As the Clean Air Act is written, as many as 6 million buildings would need permits for their carbon emissions, including schools, churches, buildings that use heating oil…you get the idea.  Not the real targets of these regulations.

In May, the EPA released its “Tailoring Rule” to limit the focus of the permitting process to facilities that release >75,000 tons of carbon dioxide per year and already apply for other Clean Air Act pollutant permits.  This way, only the major polluters are subject to these regulations. The Tailoring Rule brings down the number of regulated buildings from 6 million to about ~550 of the biggest polluters.

For the record, when originally proposed, the cutoff was set at 25,000 tons per year, but after the comment period, the EPA realized that too many buildings would be unintentionally regulated (like schools and small businesses).

Additionally, any new power plants expected to emit more than 100,000 tons of GHGs per year would need to get a permit.  This would certainly cover all new coal plants, whose emissions are on the order of million of tons per year.

If the EPA does end up implementing these regulations, conservative groups such as the U.S. Chamber of Commerce will likely challenge the Tailoring Rule in court so that schools etc. would need be regulated as well.  Why?  Because they hate children.  …ok fine, because if the EPA enacts this policy, conservatives want it to become a regulatory nightmare.  Making the EPA permit the 6 million buildings that emit much smaller amounts of carbon each year would be impossibly cumbersome and cause considerable public backlash – so conservatives hope we would just scrap the whole thing and let them keep polluting for free.  Potential legal vulnerabilities such as this are a weakness of this less than elegant regulatory route.

Benefits of EPA Carbon Regulations

EPA regulations would hopefully be designed with less lobbyist influence than in Congress.

Most climate/energy bills – including the climate bill that pass in the House last year – end up “grandfathering” in some dirty coal plants.  That is, their emissions are exempted from regulation.  Such provisions completely undercut the energy bills that contain them by providing utilities with a perverse incentive to keep their oldest, most polluting plants open as long as possible.  They are written by lobbyists and exist solely as thank you’s from American legislators to their industry supporters.

Disgustingly, even the original Clean Air Act grandfathered in existing coal plants.

Everything Congress touches that is at all energy-related comes out blackened with soot and covered in tar balls.  The EPA is not impervious to industry demands, but it is certainly in a better position to stand up to industry than Congress (which isn’t saying much).

In fact, in many ways,

The EPA is Better Suited to Address this Issue than Congress

In 1997, economist Alan Blinder presented an interesting argument that some governmental challenges could and should be better solved by unelected experts.

Certain types of problems, Blinder correctly argued, are by nature better addressed by experts than by elected laymen in Congress.  These types of problems meet three criteria (discussed below):

  1. The issue deals with technical subjects requiring specialized knowledge.
  2. The issue is long-term, both in problems and solutions.
  3. The issue imposes short-term hardship to avert long-term hardship of much greater magnitude.

Consider the legislative challenges of issues that meet these criteria.  What follows are not critiques of our democracy but rather explanations of some unfortunate effects that institutional design can have upon policymaking.

Congress Lacks Specialized Knowledge:

Everybody knows that our elected representatives are not experts.  They are elected to represent us and cannot possibly be expected to have in-depth knowledge of all the issues our legislature must tackle.

To overcome this deficiency, they summon experts to testify before them.  But most testimony has little impact on legislation, and as anyone who has ever watched C-SPAN (or even the Daily Show) can tell you, sometimes “expert testimony” is nothing short of political theater.

For example, in 2005, the notorious Sen. James Inhofe (R-OK and Congress’s most vocal climate-denier), who at the time chaired the Environment and Public Works Committee, invited fiction author Michael Crichton to advise the Senate on climate science because he had recently written State of Fear, a fictional story about murderous eco-terrorists.  Inhofe also made that book “required reading” for members of the top Senate environmental committee.

Jim Inhofe is the poster child both for senators not being experts and political theater. He once disputed climate science by saying “God’s still up there. We’re going through these cycles.” This man CHAIRED the Senate’s environmental committee for 5 years and remains its ranking Repubican member.

When you hear about the final deal-making and compromises being made to pass a law, it has nothing to do with expert testimony or pure policy considerations – it’s often just about pork barrel politics and a particular legislator’s demands.

It is easy to see why under certain circumstances, our country would be better served if experts in the field at hand were asked to craft sensible and efficient policies to address technical problems.

Congress Cannot Address Long-Term Problems:

It is never more than two years from an election year in Washington.  If congresspersons want to be reelected, they need to deliver short-term results to their constituents.

It is no surprise, then, that long-term problems are not legislative priorities; they appeal to our legislators’ responsibility and duty, but those are not the forces that drive Washington.

Even if addressing a long term problem did not cost anything today, it would present an opportunity cost because a House representative only has 2 years to deliver demonstrably for his constituents.

For long term solutions that have short term costs, the future prospects grow bleaker.  Add a degree of uncertainty and magnify it with disinformation and demagoguery, and it is obvious why climate bills are hard to pass.

Congress Cannot Impose Short-Term Costs for Long-Term Benefits:

Legislators are held accountable for the present, not the future.  Until the end of their careers, the desire for reelection prioritizes short-term considerations.  Think about a Representative in the House.  If a bill in the House could save his constituents money in 10 years but will cost them money this year, he would have to be reelected 5 times before his constituents would feel the actual benefits of that bill, but he would surely be held responsible for the cost.

If that representative’s constituents are totally on board with that bill, they may give him credit for his work in the short term.  But if it’s a contentious law and there is disinformation circulating, that vote could well cost him his job.

If the problem that bill solves is only a small one today, even if it’s going to get much bigger in the future, his constituents may resent him for imposing a cost to solve a problem that was not unbearable yet.  This is why Congress is a reactive, not proactive, body.

Climate change is a long-term threat with long-term solutions.  Unfortunately, we only have a short-term window to address it and it will impose short term costs.

It is the perfect storm of an issue that Congress really cannot handle.  It is exactly the type of issue that Alan Blinder was talking about.  That is why the responsibility of carbon regulation may well fall to the EPA.

Downsides to EPA Action

1. Limited Scope: EPA regulations, at least early on, would do very little to clean up our existing power plants.  Recall from the Tailoring Rule that these regulations apply only to new or upgrading plants (unless they release other Clean Air Act pollutants too).  Obviously, we would need to reduce our current emissions to meaningfully reduce our climate pollution.

2. Cost: Congressional action could achieve emission reductions more cheaply than the EPA regulations could.  If EPA establishes carbon regulations under the Clean Air Act, they will be traditional “command and control” regulations.  The EPA will dictate what emissions-reducing technologies are best, and mandate their use.

Instead of that approach, Congress could use more modern market-based initiatives like cap-and-trade to put a price on carbon.  This would spur innovation and let us achieve our emission reductions for less.  The EPA would mandate the use a current technology, with no incentive to develop better ones.

The cost factor and other differences between market-based initiatives vs. command and control regulations are outlined in this recent post.

3. It’s Not Enough: EPA carbon regulations would provide emissions reductions where we need them most – the energy sector.  But they couldn’t put a price on carbon, which is a vital step to achieving the long-term reductions necessary to avert the worst effects of climate change.

“The only way to cut emissions 80 percent by 2050 is to put a price on carbon, and the only folks who can do that are in Congress.” –David Bookbinder, Sierra Club.

4. Threat of Being Overturned: Legal challenges could slow the EPA process but probably not derail it altogether.  The real threat is that Congress could overturn anything the EPA does, as Lisa Murkowski has already attempted to do preemptively.

Conclusion:

By virtue of not having gone through Congress, EPA climate regulations would likely emerge looking more like a sound policy solution than anything Congress has ever produced.  However, these regulations would not be enough. Combined with a good energy bill, they could be part of a real solution, but we would still need some congressional action to truly address this threat.

A comprehensive climate/energy bill would be preferable to EPA regulations.  But if Senate conservatives block another climate bill, the EPA will take action.  It will at least be a long overdue step in the right direction.