Archive for the ‘Clean Power Plan’ Category

RPS Evolving: States Take On U.S. Climate Goals

Posted April 19th, 2017 by SRECTrade.

This article by Allyson Browne was originally published in the American Bar Association’s Natural Resources & Environment Spring 2017 Issue: Science & The Law. It provides an in-depth look into how states across the U.S. are carrying the country’s torch towards Paris pledges with impactful RPS programs. In addition, the article breaks down the Clean Power Plan to illustrate how states could evaluate and implement similar obligations in harmony with existing RPS policies. These state actions will be increasingly important as the EPA endeavors to review the Clean Power Plan under President Trump’s recent Executive Order

As the Clean Power Plan (CPP) undergoes judicial review and faces a likely unsupportive Trump administration on the federal stage, states across the country are bringing their renewable portfolio standards (RPS) back to the top of their legislative agendas. Although the CPP is not the primary driver of today’s RPS reformation, its future will undoubtedly impact the future of RPS policies across the country, if not cause an RPS revolution—one way or the other. Historically, federal policies, including the federal production tax credit and the investment tax credit, have served primarily to support RPS programs and renewables deployment. Moreover, the Federal Energy Regulatory Commission’s (FERC) regulation of the wholesale electricity market has increased competition in the renewables sector by reducing barriers to project development and market participation, particularly with respect to requirements placed upon electricity suppliers and utility companies for renewables integration. Examples of such regulation are FERC Order 2003, Standardization of Generator Interconnection Agreements and Procedures (issued July 24, 2003), and FERC Order 764, Integration of Variable Energy Resources (issued June 22, 2012). As states look beyond their RPS target years and goals, the CPP has the ability to influence RPS program design much more heavily than did its federal predecessors. The CPP could prompt states to more closely align renewable energy goals with emissions reduction goals, thereby minimizing legislative and regulatory overlap and enabling states—and the nation as a whole—to recognize the maximum benefits of these broader climate change policies. But this is not to say that RPS programs will weaken if the CPP is struck down. Conceivably, the rejection of the CPP could lead to a great awakening of state leadership in our clean energy and climate future.

Renewables technology has progressed significantly since the first RPS was enacted in Iowa in 1983. Iowa Code § 476.41, et seq. And RPS programs, which require retail electricity suppliers to supply a minimum percentage or amount of their retail load with eligible sources of renewable energy, are constantly playing catch-up to these ever-evolving market dynamics. Technological innovations and the diversification of financial products have driven down project costs and broadened accessibility. States have provided incentives such as rebates or net metering credits. Project developers and service providers have adapted to meet the varied conditions of their markets. The result is a diverse portfolio of U.S. RPS policies, as states across the country have designed, implemented, revised, frozen, annulled, or otherwise modified their individual RPS programs as the renewables sector has matured over the course of the past 33 years.

Today, 29 states and the District of Columbia have compliance RPS programs. Altogether, the obligations apply to 55 percent of total U.S. retail electricity sales. See Galen L. Barbose, U.S. Renewables Portfolio Standards: 2016 Annual Status Report, Lawrence Berkeley National Laboratory No. 1005057 (April 2016). And these figures do not include states with voluntary renewable energy goals, such as North Dakota, Utah, and Virginia. See Jocelyn Durkay, State Renewable Portfolio Standards and Goals, Nat’l Conf. of State Legislatures (Dec. 28, 2016).

Although most RPS programs share common elements (such as imposing penalties for lack of compliance and utilizing some form of tradable renewable energy credit (REC) to track compliance), no two states share an identical RPS. States differentiate their RPS policies with unique targets and time frames, entities obligated and exemptions, eligibility rules and definitions, carve-outs, contracting or procurement requirements, and the use of cost caps and floors. Barbose, supra. This differentiation has empowered states to design programs that best fit their needs, market dynamics, and renewables goals. Modifications can be made when and where the barrier to entry is too high, or if the RPS imposes exorbitant costs on ratepayers. Consequently, the majority of states with RPS have hit their targets, with 94 percent achievement in 2013 and 95 percent achievement in 2014. Id.

While few new RPS policies have been enacted in recent years, states continue to modify existing policies in response to changing market conditions, program success and end-dates, and federal policies. As states begin to approach their target years or achieve (or exceed) target goals, states are evaluating whether and how to extend targets into the future. Under currently enacted laws, 20 states will reach the terminal year of their RPS by 2026. Id.

Recent legislative activity evidences this period of reformation. State legislatures have introduced and enacted more than 200 RPS-related bills since the beginning of 2015. See EQ Research, available at http://eq-research.com/. Most notable are the five jurisdictions (California, Oregon, New York, Vermont, and D.C.) that have adopted policies requiring at least 50 percent renewables, and Hawaii—the first U.S. state to establish a 100 percent RPS goal. Id. In addition to extending and expanding RPS time frames and goals, states have modified RPS programs by introducing resource-specific or distributed generation carve-outs, refining resource eligibility rules and definitions, and relaxing geographic preferences or restrictions. Barbose, supra.

As we approach common terminal years in 2020 and 2025, we are likely to see continued legislative and gubernatorial action on RPS programs and renewables goals. But approaching targets are not the only reason why states are revisiting and revising their RPS policies. Endogenous factors, including compliance costs, legal challenges, and other state- and local-level market and policy conditions are the primary internal drivers of RPS reevaluation. On the federal front, continued FERC regulation and the impending decision on CPP are making states rethink—and redesign—RPS policies to ensure continued compliance with federal law. Even before CPP leaves the bench, some states are planning ahead to ensure that their RPS programs will support their CPP-compliance programs. Pennsylvania, for instance, is already designing its CPP state plan, undeterred by the U.S. Supreme Court’s February 2016 decision granting a stay on the CPP pending the resolution of legal challenges. See Susan Phillips, Wolf says PA will move forward on Clean Power Plan, StateImpact Pennsylvania (Feb. 10, 2016); and Chamber of Commerce v. EPA, 136 S. Ct. 999 (2016) (order in pending case).

The CPP is the first-ever national standard aimed toward reducing carbon pollution from power plants, the nation’s largest source of emissions. See EPA, Fact Sheet: Overview of the Clean Power Plan (2015). Recognizing that fossil fuels will “continue to be a critical component of America’s energy future,” the EPA put forth the CPP to ensure that fossil fuel-fired power plants operate “more cleanly and efficiently, while expanding the capacity for zero- and low-emitting power sources.” Id. The CPP establishes interim and final carbon dioxide (CO2) emission performance rates for two subcategories of fossil-fuel-fired electric generating units (EGUs): fossil fuel-fired electric steam generating units (i.e., coal- and oil-fired power plants) and natural gas-fired combined cycle generating units. Id.

Under the CPP, states and utilities can implement the standards and meet these goals through one of three methods: a rate-based state goal measured in pounds per megawatt hour (MWh), a mass-based state goal measured in total short tons of CO2, or a mass-based state goal with a new source complement measured in total short tons of CO2, also known as a state measures plan. States need to develop and implement plans which, when combined with other state or regional initiatives, will ensure compliance with the CO2 emissions performance rates over the 2022–2029 compliance period, and with the final CO2 emissions performance rates, rate-based goals or mass-based goals by 2030 (or later, if the CPP is further delayed). The EPA estimates that the pollution reductions required by the CPP will yield climate benefits of $20 billion, health benefits of $14–34 billion, and net benefits of $26–45 billion. Id. Complementary or additive RPS programs will amplify these benefits by incentivizing additional renewable deployment, implementing stronger energy efficiency standards, and more.

Under any of the three methods, compliance will be tracked via emissions trading. See Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,662 (Oct. 23, 2015) (to be codified at 40 C.F.R. Part 60). How an existing RPS and its tracking mechanism will interplay with a state’s CPP plan and its emissions trading will depend on the state’s CPP compliance path. Under a rate-based state goal, renewable energy facilities, energy efficiency units, new nuclear facilities, or performance upgrades at existing nuclear, hydro, and natural gas combined cycle power plants will produce emission rate credits (ERCs), which represent one MWh of zero-emission generation. These ERCs will be added to the denominator of the pounds per MWh until the EGU (either individually or on a state average basis) satisfies the required rate.

A state with an existing RPS that uses RECs to track compliance will need to decide whether and how ERCs and RECs will be issued, tracked, and retired together or separately. In its guidelines, the EPA clarifies that ERCs were intended to be unique and separate from RECs, and that a single generating unit could produce both an ERC and a REC for each MWh generated where eligibility overlap exists. But in practice, managing ERCs and RECs in the same compliance universe will be no easy undertaking—there will be issues with double-counting, existing forward contracts, and whether a facility can still claim its renewable attributes if it keeps its RECs, but trades away its ERCs. Id.

Emissions trading under a mass-based state goal is much more straightforward—states will be issued emissions allowances, which can be auctioned (traded) or given away. Compliance will be determined solely on total tons of CO2 emitted. As designed, there is no direct relationship between a state’s CPP plan and its RPS; rather, the two plans would exist contemporaneously. Id.

States with RPS, energy efficiency standards, and other related programs are best suited for a mass-based state measures plan. The state measures plan allows a state to leverage its existing policies, programs, and compliance mechanisms to meet the standards imposed by the CPP. And, rather than being the primary enforcement mechanism, the mass-based emissions standard acts as a federally enforceable backstop that only kicks in if the state measures fail to achieve the required reductions. There are no ERCs under this plan, and states can continue to utilize RECs to track RPS compliance, focusing CPP compliance efforts on bolstering their existing RPS and other programs instead of establishing entirely new programs and tracking tools. Id.

It is evident that the EPA carefully crafted the CPP to exist in harmony with state RPS programs and to provide a path for all states to reduce overall emissions while incentivizing renewable energy development—including those already on the right track. And although the CPP or similar federal policies would be instrumental in accelerating America’s timetable for achieving its Paris Agreement goals, states have proven willing to push for progress on their own. Now more than ever, it is imperative that states renew their commitments to renewable energy, promoting a sustainable renewables industry that supports continued job creation, grid resiliency efforts, and energy independence. As we enter into the era of Trump—and with it, an uncertain federal position on climate policy—states will take hold of the power to determine and define the nation’s stance for renewable energy and against the threat of climate change. Will we stand united?

Allyson Browne, Director of Regulatory Affairs & General Counsel

© 2017. Published in Natural Resources & Environment, Vol. 31, No. 4, Spring 2017, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

Clean Power Plan: 2016 & Beyond

Posted March 9th, 2016 by SRECTrade.

On February 9th, the U.S. Supreme Court ordered in a 5-4 decision to issue an unprecedented emergency stay on the Environmental Protection Agency’s (EPA) Clean Power Plan (CPP), as states and other stakeholders continue to present legal challenges before lower courts. The Clean Power Plan calls for a 32% reduction of carbon dioxide emissions by 2030 (from a 2005 baseline), requiring states to present their initial compliance plans to the EPA by 2022.

The implementation of the CPP could encourage the states to consider instituting new–or to improve existing–state Renewable Portfolio Standards (RPS) to help meet their goals. Today, only twenty-nine states, Washington, D.C., and two territories have adopted an RPS. Seven of these RPS states have a solar carve out, where a specific percentage of renewable energy requirements must be satisfied with solar energy resources. In addition, eight states and two territories have set some form of renewable energy goals. The CPP’s call to action will mandate all 50 states to develop cost-effective plans to combat climate change, improve air quality and create new jobs.

Twenty-nine states, the U.S. Chamber of Commerce and other entities invested in fossil fuels are challenging the CPP. Many of these CPP opponents argue that the EPA is acting beyond its authority and that, at a minimum, the CPP’s merits must be fully reviewed before imposing federally mandated plans upon the states. CPP opponent Wyoming Governor Matt Mead stated that he is “thrilled” that the EPA’s climate rule was stayed, because the stay may leave the door open for the new administration to evaluate whether there is a “better way to go” than what the CPP would require. However, it is possible that the issue will be brought back to the Supreme Court for a decision before the new president is sworn in on January 20, 2017, leaving time for President Obama to make the Plan law before he leaves the White House.

Litigation in the lower courts is scheduled to begin on June 2, 2016, and a ruling from the Court of Appeals is expected by the end of 2016. Once an appellate decision is made, the case is expected to go back to the Supreme Court. But the sudden passing of Supreme Court Justice Antonin Scalia adds additional uncertainty and complexity to the future of the CPP, as the late Justice Scalia’s successor may very well shape the future of the Clean Power Plan. A new voice on the Court could result in a vote in favor of the CPP, which could swing the 5-4 decision in favor of lowering carbon dioxide emissions and fostering a sustainable change.

Alas, it remains to be seen if President Obama will successfully appoint a new Justice before the end of his term, potentially leaving the appointment to the next President. And if a new Justice is not appointed before the Court revisits the CPP, there is a chance we could see 4-4 decision from the Court on the issue, which would mean that the Court of Appeal’s ruling would be automatically upheld. As D.C. plays tug-of-war over the Supreme Court vacancy, CPP opponents are working to convince the lower courts that the CPP would spell economic disaster for the nation, while CPP’s proponents assert that the Plan would guide our nation away from coal-fired electricity and forestall millions of metric tons of greenhouse-gas emissions.

The Obama Administration vowed to press forward with the President’s climate policy. If approved, the Clean Power Plan would set a historic precedent on how environmental laws are structured and serve as an example for national and global policies. The CPP was instrumental in influencing heavily polluting nations such as China and India to sign the Paris Agreement at the 2015 United Nations Climate Change Conference.  The Paris Agreement aims to prevent, mitigate and respond to climate change. If the Clean Power Plan is ultimately struck down, the decision would challenge the implementation of national and worldwide environmental policies. Evermore, the selection of our next President and Supreme Court Justice will greatly influence the future of clean energy and shape how environmental issues are prioritized and responded to in the years to come.

Ohio Revisits RPS for Post-freeze Plans

Posted February 21st, 2016 by SRECTrade.

In June 2014, Ohio Governor John Kasich signed a bill that froze Ohio’s Renewable Portfolio Standard (RPS) for two years. With the freeze lifting after 2016, Gov. Kasich called upon Ohio’s Energy Mandates Study Committee in 2015 to provide guidance on how to proceed with the state’s RPS. The 12-member legislative committee released its report in September 2015, recommending that the RPS be frozen indefinitely. Now, despite having signed the bill freezing the RPS in 2014, Gov. Kasich has taken the stance that gutting the state’s renewable mandates would be “unacceptable“, positioning himself for a fight with his General Assembly on the state’s clean energy goals.

Enacted in 2008, the Ohio Renewable Portfolio Standard establishes annual benchmarks for renewable energy procurement. The RPS sets the percent of electricity that must be generated from renewable energy resources by 2027. Within the overall RPS, a percentage must be fulfilled with solar resources. This solar carve-out establishes how many SRECs must be purchased by electricity suppliers. The overall RPS and solar carve-out were originally structured to increase annually between 2009 and 2024, but were frozen at 2014 levels through 2016. The RPS is currently frozen at 2.5%, with the solar carve-out at 0.12%. In the 2014 bill, the RPS schedule was revised to resume with a two year delay after the freeze, but it is possible that Gov. Kasich and Ohio’s General Assembly will now move the RPS in another direction.

SB310, the bill enacting the freeze, also removed the in-state RPS requirement and adjusted the Solar Alternative Compliance Payment (SACP) schedule. The freeze and concurrent changes made to the RPS resulted in devaluing OH-eligible SRECs, harming those who invested in solar in reliance on the state’s commitment to clean energy. Since the bill passed in mid-2014, the value of OH SRECs has dropped from $45 to as low as $15.

While Gov. Kasich claims that the original Renewable Energy Portfolio Standard is “unpalatable“, he has vowed that he would return the program back to its original state if the General Assembly refuses to unfreeze the program. But Ohio’s mixed record on renewable energy and the recent developments on the Clean Power Plan make the future of the RPS uncertain. For now, Ohio joins many other states in the tug-of-war battle over renewable energy policies, making 2016 an important year in shaping the states’–and country’s–clean energy future.