Archive for the ‘Global Warming’ Category

Obama Administration channels Bush and opens up the seas to oil

Written by Mike Pisauro on April 5th, 2010 in Federal, Global Warming, Ocean, Politics | No Comments »

Last week the Obama Administration announced that it would open up the outer continental shelf or oil and gas production. It was a proposal that is very reminiscent of the Bush Administrations removal of the decades old ban on offshore drilling which I wrote about in “Another short sighted solution that solves nothing.”  While this proposal sounds like a Bush administration plan, it is supposed to be part of a broader energy strategy.  President Obama in is announcement of the plan said:

I want to emphasize that this announcement is part of a broader strategy that will move us from an economy that runs on fossil fuels and foreign oil to one that relies on homegrown fuels and clean energy.  And the only way this transition will succeed is if it strengthens our economy in the short term and the long term.  To fail to recognize this reality would be a mistake.

The problem with the plan is that I do not thin it will do what it is supposed to do.  The Obama Administration’s plan to open up the OCS will do little to reduce fuel prices or availability of fossil fuels.  It is also naïve to think that the oil and gas developed off our coasts will remain in the country.  That oil and gas will go to the highest bidder no matter where they are located.  It will also subject to the OCS from additional pollution.  Pollution that is caused by the drilling process.  Pollution that is caused by leaks in the systems of offshore drilling platforms, vessels and from the pipelines.  Pollution that may arise from spills and other accidents.

Our oceans are already severely impacted by our pollution.  To increase the amount of chemicals that are leaked into the oceans through the drilling process is not going to help our oceans.  Also, is there were to be a major spill, that would devastate NJ’s economy.  In 200?, NJ tourism was the second or third biggest industry in the State.  If an oil spill was to occur off our coast, it could foul our beaches.  And oil spills do occur.  In January of this oil an oil tanker spilt 450,000 gallons in Port Arthur, Texas.  In 2007 a tanker spilled 57,000 gallons of fuel into the San Francisco Bay causing $70 million of damage to the fisheries and beaches.  I am not even mentioning The Valdez.  By some estimates Hurricane Katrina caused 6.5 millions gallons of oil to be spilled into the environment.

There is another problem with opening up the OCS for oil and gas exploration.  Even though the President suggests this is a short term plan.  The short term plan seems to be counter to the Administrations clean energy platform and to combating global energy. As President Obama said last years United Nations Conference on Climate Change:

Now, as the world’s largest economy and as the world’s second largest emitter, America bears our responsibility to address climate change, and we intend to meet that responsibility.  That’s why we’ve renewed our leadership within international climate change negotiations.  That’s why we’ve worked with other nations to phase out fossil fuel subsidies.  That’s why we’ve taken bold action at home — by making historic investments in renewable energy; by putting our people to work increasing efficiency in our homes and buildings; and by pursuing comprehensive legislation to transform to a clean energy economy.

I am also very concern that this new push for more oil and gas signals a retreat from or at least will impact our Country’s move toward renewable energy and to away from a commitment to combat climate change.  How are we going to stop incentivizing oil and gas when we open up more areas for drilling?  Are we going to lease them out for their full value?  How are we going to grow the green energy while telling the world that oil and gas is here to stay?  How do we credibly tell the world that we will lead it in solving climate change, when we cannot let go of the past.

Opening up the OCS for more oil and gas exploration is the wrong policy for many reasons.

Indeck's Compact Clause Challenge

Written by Mike Pisauro on April 25th, 2009 in Clean Air, Federal, Global Warming, legislation | No Comments »

As I wrote recently, Indeck Corinth, L.P. has filed suit against the Governor of New York, the NY Department of Environmental Conservation and other agencies, challenging that state’s participation in the Regional Greenhouse Gas Initiative (RGGI). According to the complaint Indeck, a power generating company, alleges the state’s participation in RGGI is illegal for multiple reasons. The most interesting of these claims is that RGGI, itself, is “unconstitutional.” Indeck alleges that RGGI is an interstate compact that, under the Unites States Constitution, requires the consent and approval of Congress. Specifically under Art. 1, §10 Cl. 3 of the Constitution provides:

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a Foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Indeck alleges RGGI is an interstate agreement or company but which has not been approved by Congress , is, in fact, illegal. The complaint also provides that:

Congress has the power to regulate emissions and establish interstate emission limits, which it has expressly chosen not to do. RGGI’s supplemental regulations are stricter than Federal regulations promulgated by the United States Environmental Protection Agency and thus, impermissibly encroach on Federal supremacy and interfere with the Federal interest in climate policy and Federal interest in regulating a national and international pollutant.”

One would think that after 200 plus years of having a constitution, one of the earliest portions of that constitution would have a clear and easy answer to this question. As with many things in law, however, there is no easy answer. Having said that, a review of the case law and commentary would seem to suggest that RGGI can operate legally – without obtaining Congress’ approval. In the last 100 years, caselaw dealing with this issue clearly demonstrates that that there are interstate compacts that require congressional approval and there are those that do not. The question seems to hinge on whether the interstate compact could/would have the potential to increase the political power of the states over the federal government.

The leading case in this area of the law is: United States Steel Corp. v. Multistate Tax Commission, 434 U.S. 452 (1978). In Multistate Tax Commission the Court indicated that, if read literally, the Compact clause would prevent any grouping of states from entering into any kind of agreement no matter how trivial and short in duration. The Court did not believe that this was the result the constitutional framers would have desired. The Court then reaffirmed the “test” from an earlier case that limited the need for Congressional approval to “formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States.” The Court also looked to see how the compact acted against these four questions:

· did the compact give the states or the multistate agency powers it did not already have?

· did the States delegate their sovereign power to the agency?

· did the state’s have the freedom to reject or accept the model rules and?

· could the States withdraw if they wanted?

In Multistate Tax Commission, the plaintiffs were challenging the creation of a multistate agency by several states to deal with the taxation of businesses with locations in multiple member states. The Court ultimately rejected the challenge by United States Steel under the compact clause. One of the reasons the Court gave was that, by joining together, the States were not doing anything that they could not have done on their own. Therefore, the answer to the first question is “no,” The multistate compact did not give the States power they did not already have.

The situation with RGGI is very similar to Multistate Tax Commission. Each State has the power to regulate air pollution independently of one another (note that GHGs are considered air pollution and can be regulated under the Clean Air Act – but that is a topic for another post.) It is conceivable that each State could independently regulate GHG emissions and create their own auctions for allowances. Each power generator in each state would then have to buy allowances from that state. Multistate generators would have to buy allowances in each state in which they had power plants. The multistate generators would not be able to transfer a NJ allowance to NY if they need to emit additional GHGs in NY. This system would be inefficient and might even cause more leakage than what is already occurring. RGGI is only improving the efficiency of a cap and trade system - it is not increasing the state power or RGGI’s power and, therefore, should pass muster on this requirement.

As to the second question, the Memorandum of Understanding signed by the RGGI explicitly states that RGGI has no regulatory or enforcement authority and that authority is reserved to the States. Therefore, the answer to that question is clearly “no.”The States did not give up any of their sovereign authority to RGGI.

As to the third question, there is nothing in the MOU that explicitly requires a State to adopt all portions of the Model Rule. Also, if I recall correctly, the model rule provides for various options that the State could adopt.

Lastly, in regards to the fourth question, the MOU also provides that any State can withdraw from RGGI with 30 days notice.

Based on the Court’s test RGGI will likely prevail against Indeck’s challenge under the Compact Clause. There may be other constitutional challenges, for example under the Commerce Clause, which may be of concern. Also, proposed Federal law would supplant RGGI for several years. But for now RGGI will be with us.

MMS releases final rule for offshore renewable energy's leasing

Written by Mike Pisauro on April 22nd, 2009 in Federal, Global Warming, Ocean, Renewable Energy, Wind | No Comments »

On Earth Day, MMS released for publication the final rule on offshore renewable energy leasing of the outer continental shelf.  The 579 rule.  You can find the rule (here) and the much much shorter press release (here).  This is good news for New Jersey.  Once the rule takes affect after 60 days, the three proposed wind farms can begin the leasing process.  Assuming the environmental impact statements show that the harm to the ocean environment is minimal or none then NJ can get just a little closer to its goal under its energy master plan.

Hopefully, I will get a chance to reveiw the final rule and I will post my thoughts.

Happy Earth Day!

RGGI's 3rd Auction adds to NJ coffers

Written by Mike Pisauro on April 5th, 2009 in Clean Air, Global Warming, Renewable Energy | No Comments »

On March 18th RGGI had its third auction of CO2 allowances. Overall the auction brought in $117,248,629.80. The auction sold not only 2009 allowances at $3.51 per ton and also sold some 2012 allowances at $3.05 per ton. Of the total proceeds, NJ will receive $15,909,991.11 for the 2009 allowances and 864,058.90 for the 2012 allowances.

How will the $16,774,050.01 be spent in NJ? NJ enacted the Global Warming Solutions Fund (2007 c. 340) back in the very beginning of 2008. The statute provides on how the funds received from the RGGI auction will be allocated.

Sixty percent of the receipts will be sent to the NJ Economic Development Authority. The EDA is to provide grants or other financial assistance to commercial, institutional and industrial groups’ implementation of energy efficiency projects and installation of efficient electric generation facilities which could, but does not have to include renewable energy systems.

Twenty percent of the funds are to be dedicated to the reduction of electricity demand or costs of electricity for low and moderate income residential customers.

Ten percent goes to DEP for support of local government’s efforts to reduce greenhouse gas emissions. These efforts can include energy efficiency, renewable energy and land use programs.

Lastly the remaining ten percent is to be used by the DEP for forest and tidal marsh stewardship and restoration programs.

Hopefully, NJ takes these funds and uses them to truly achieve maximum results of reducing energy consumption through effective energy efficiency programs and the promotion of renewable energy. The next auctions are scheduled for June 17th and Sept. 9th. Beyond that may be an issue as a recent lawsuit by Indeck Energy is challenging NY’s RGGI program. Are other companies going to follow? In a future post I will take a look at the Indeck suit.

Governor takes small steps for renewable energy, more needed.

Written by Mike Pisauro on April 4th, 2009 in Global Warming, land use, legislation, Renewable Energy, Solar, Wind | No Comments »

Late last year the State finalized its Energy Master Plan. That plan was several years in the making and was over a decade overdue. The EMP called for increasing NJ’s energy efficiency and the generation of electricity from renewable energy. The State also tied its Global Warming Response plan very tightly with the Energy Master Plan. The sooner NJ puts in place the policies necessary to achieve the twin goals of reducing our generation of energy from dirty power and reducing our global greenhouse gas emissions the better of we will be economically and environmentally. In baby steps towards these goals, the Governor recently signed into three law three bills that will reduce our use of fossil fuels and encourage the development of electricity form renewable energy.

P.L. 2009 c. 33 (A1558/S2265) will help encourage solar energy by making solar photovoltaic panels an option you can choose as when you buy new construction. This new laws requires developer of 25 homes or more to explain to new home buyers the benefits of solar energy, the financial incentives available and to install the panels on the new home if chosen by the buyer. By making solar energy systems just another option a home buyer can choose from as their new home is built, hopefully we will continue to grow NJ’s place as a leader in renewable energy.

P.L. 2009 c. 35 (A2550/S1299) defines solar and wind facilities as a permitted use in industrial zones with 20 or more acres. This bill would help prevent municipalities from excluding solar and wind facilities from industrial zones. In essence towns cannot prohibit renewable energy in these zones by defining them as not a permitted use. They will still be able to discourage these systems by setting up prohibitive setback requirements or height limitations.

P.L. 2009 c. 34 (A2507/S1932) gives BPU the authority/requirement to grant money to companies that was to install cogen facilities. Cogen facilities are systems that use oil/gas/etc. to generate not only electricity but heat as well. Normally, fossil fuels are used to generate heat for a building or electricity but not both. By encouraging the use of cogen the overall use of fossil fuels will decrease.

There is one bill that was considered by both houses of the legislature on March 16th – A3062/S1303. These bills would define wind and solar systems as inherently beneficial. This definition is necessary because many towns require a person who wishes to install a renewable energy system (in particular wind) to apply for a variance. With certain variance applications a person will have to prove that the renewable energy system is “inherently beneficial.” This term has never been defined by the legislature up to now, but we have had to rely on each individual town and the courts to provide the definition on a case by case basis. While this bill is not best solution it is a step in the right direction.

The run of the mill variance application is time consuming, money consuming process without any guarantee that the end result will be favorable. When the variance application is for renewable energy the process because more expensive and more time consuming. Also, it will drive everybody who opposes change to the hearings. These “nimby” people will spout “facts” to oppose the project which have very little relationship to reality. Declaring renewable energy as inherently beneficial, one hurdle is removed from the process.

All of these bills are good first steps to reaching the goals of the energy master plan and the global warming response act. There are several other bills, that will further these goals even more, that have been introduced and are awaiting consideration. I will discuss these bills in a future post.

EPA reconsidering its earlier denial of Ca. waiver

Written by Mike Pisauro on March 6th, 2009 in Clean Air, Federal, Global Warming | No Comments »

I read a very good blog post from the NRDC regarding the EPA’s reconsideration of California’s request for a waiver under the Clean Air Act so that California can implement stricter greenhouse gas emission regulations for automobiles.  The post is here. Once the waiver is granted, New Jersey’s regulations which adopt the California regulations will be effective.  These clean car regulations is part of New Jersey’s plan to address global warming gases under its Global Warming Response Act.

Administrator Jackson was the Commissioner of DEP at the time that DEP adopted the Ca. regulations and she was very involved in the passage of the Global Warming Response Act.  I believe that bodes well for her decision to grant the waiver.

More promises on NJ's open space

Written by Mike Pisauro on January 18th, 2009 in Clean Air, Clean Water, Global Warming, Highlands, legislation, Politics, Sustainability | 1 Comment »

During this year’s State of the State speech, Governor Corzine stood before both houses of the legislature and spoke about the State’s commitment to open space. He said:

A second topic of vital concern is “open space,” and it’s a tough one. Not because we don’t want it, but because it’s a tough financing issue. Open space preservation has always been one of New Jersey’s priorities and which should be today, and it must be addressed before June 30th. It is my preferred approach that we put in place a long-term funding solution.

That said we need, at a minimum, an interim-bonding question for November’s ballot to extend the financing the voters approved in 2007.

On the face of it this is good news for the State’s open space program as that program is out of money. Unfortunately, this is not the first time that the Governor committed himself to open space preservation. He has on multiple occasions spoke on his and the State’s commitment to preserving open space. He has not followed through with his commitment. In fact he has on occasion worked against open space funding. In 2007 the legislature was moving strongly on passing legislation that would have created, with voter approval, a long term funding solution for open space. The Governor’s office stopped it and gave us a temporary solution instead, P.L. 2007 Ch. 119. When he signed P.L. 2007 Ch. 119, he promised that he would work with the legislature, during the lame duck session, to put in place a permanent solution. There was no leadership from the Governor’s office and his promise that during Nov and December 2007 a solution would be worked out did not occur.

Then on Sept. 5, 2008, Gov. Corzine issued Executive Order 114 regarding the Highlands. That E.O. provides that:

WHEREAS, in enacting the Highlands Act, the Legislature found and declared that, as a matter of wise public policy and fairness to property owners, a strong and significant commitment by the State is necessary to fund the acquisition of exceptional natural resource value lands; and

WHEREAS, it is vital that the Garden State Preservation Trust be reauthorized and that a statewide transfer of development rights program be considered to meet the open space and agricultural preservation needs of the Highlands Region and the State, and, in part, to address landowner equity issues in the Highlands Region.

Since September there has not been any direction from the Governor’s office on open space funding.

At the beginning of December, the Department of Environmental Protection released its draft Global Warming Response Act Recommendation. The Plan calls for funding of GSPT and calls for the legislature to

Reauthorize the Garden State Preservation Trust, and provide for incentives, technical assistance, and project facilitation, to continue and enhance conservation of the State’s natural assets.

I hope that the cumulative weight of all these promises forces the Governor and the Legislature to act and put in place a permanent solution for open space funding. New Jersey needs to actively preserve open space. Preserving open space is vital to the State of New Jersey for multiple reasons.

Over the last several years, NJ has been loosing open space at a rate of 16,600 acres per year. As we continue to lose space we increase sprawl, increase the time it takes for people to travel from home to work and back again. This increases everyone’s commuter costs and increases the amount of air pollution, including greenhouse gases, we emmitt.

As we continue to develop and put impervious cover over our lands, we diminish our ability to recharge our aquifers. New Jersey relies heavily on aquifers for its drinking water, especially in South Jersey. It is also one of the most important tools for preserving the drinking water from the Highlands, which supplies water to over half of new jerseyans.

As we loose more and more open space, one of our tools to address global warming is lost. From a global warming perspective the “estimated 1.5 million acres –one third of New Jersey’s dry land mass” which has been preserved provides for “substantial amount of carbon storage.” Open space, especially forest, act as a carbon sink.

Open space preservation is also important from an economic perspective. The eco-tourism industry in New Jersey provides close to $3.9 billion in economic benefits. Our natural resources also provide about $19 billion in economic benefits. In a time when property values are decreasing, it has been found that properties in close proximately to open space have a higher value than properties further away. Our open space funds also go to preserving farmland. Open space funds can be used to get people out of the flood plains so that we do not have to rebuild homes that have been destroyed by floods on multiple occasions. Open space is a multifunction tool in our economic engine.

In short, the Governor and the Legislature must keep their promises to putting in place a permanent funding solution for open space. It is too important economically and environmentally for us to allow this promise to be broken again. For more information on the campaign for open space, you can visit the Keep It Green Campaign’s website.

Global Warming Action plan has been released.

Written by Mike Pisauro on December 18th, 2008 in Global Warming, Renewable Energy, Sustainability | 1 Comment »

Recently, the New Jersey Department of Environmental Protection released the State’s draft plan on addressing global warming.  (click here for a copy of the plan).  This plan behind schedule as the Global Warming Response Act required that the plan be presented to the Governor, legislators and the Treasurer no latter than June 30, 2008.  NJSA 26:2C-42(c).  At least part of the delay was the desire to utilize the State’ energy master plan which was released in October.

DEP will be holding several public hearings on portions of the plan in January with the intent of finalizing the plan.  This would also seem to me to indicate that DEP will not make the January 1, 2009 deadline for reporting how the State is doing with emissions, reduction of emissions and progress on the plan.

While I am reviewing the plan, here are a few highlights.  The Plan is broken down into sectors: Land Use, Transportation, Energy Efficiency, Renewable energy and provides many recommendations on how to proceed.  The Plan also points to three things the State has done while it was generating this plan:  The Energy Master Plan, RGGI and the State’s Low Emission Vehicle program.

I do not want to knock the State, but if these are the three major things the State has done to move its battle on global warming, I am somewhat disappointed.  First, we missed the first RGGI auction.  The second auction is scheduled for today and NJ is participating.  Second, the EMP was just finalized and many of its recommendations need legislative action.  Some of this Legislative action has been proposed for many months (if not a couple of years) and is not moving.  Lastly, the State’s adoption of the California low emission vehicle program is on hold and in litigation.  For California’s program to be in effect, EPA had to issue a waiver to California.  Once that waiver was issued the other states could follow.  EPA denied that waiver last year.   This denial has resulted in a lawsuit by California and a call for EPA to reconsider.  With the new administration and our new EPA administrator, Lisa Jackson, hopefully the waiver will be reconsidered and issued.

In short I still have to finish my review but I am glad that there is a plan and the State will be taking public comments on the plan.  I hope to have more information on the plan up shortly.

Hopewell Valley Green Market on Sat 10-18

Written by Mike Pisauro on October 16th, 2008 in Business, Global Warming, Sustainability | No Comments »

This Sat, Oct. 18th from 10 a.m. to 3 p.m. the Hopewell Valley Green Market will be having their first event.  The prime mover of the market is Tom Adelman.  The goal of the event is to demonstate to people some of the green options there are available.  Also to educate people and businesses how we all have an effect on the environment and the little and not so little things we can do to minimize that effect.  How we all can take just a little bit out of the major issue of our day: global warming.

This is an amazing demonstration of the old adage of “think global act local”  The market is presenting an opportunity for people to learn of the options that are available to them right in their backyard.  By bringing together merchants to display their “green” products it also provides an opportunity to cut through an amazing amount of green hype and greenwashing.

It is also an amazing demonstration of what a few energetic people can do.  I had been wondering with the faultering economy whether people’s environmental interests would wane and whether there really was a committment by the general population to a healthy environment.  The Hopewell Valley business community has clearly risen to the occassion and have shown their support.

For more information on the event go to their website (here).  I hope to see you there.

New Jersey Offshore Wind

Written by Mike Pisauro on October 14th, 2008 in Global Warming, Ocean, Renewable Energy | No Comments »

On Friday, October 3rd, the State came took a first, small step closer to its goal of having an offshore wind farm.  BPU announced that it has awarded a $4 million dollar grant to Garden State Offshore Energy for its proposal.  Garden State Offshore Energy proposed to build a 345.6 megawatt farm about 16 miles off the coast of Atlantic City.  This grant is the result of the State’s blue ribbon panel on offshore wind.  The panel recommended back in April 2006 that the State should seek a pilot program of up to 350 megawatts.  The panel’s recommendation was the result of a December 23, 2004 executive order setting up the panel and placing a moratorium on off-shore wind until the panel made its recommendations.  ( I am going to have to do a longer more comprehensive entry on the panel’s recommendations at a later time.)

Then on Monday October 6th, the Governor came out with an amazing announcement.  The State has announced that it is going to be the leader in offshore wind within the United States.  According to the Governor:

“Today, I am announcing that we’re not just doubling our commitment, we’re tripling it. New Jersey will support and encourage the development of 3,000 MW of wind power off its coast by 2020, which will be 13 percent of its total electricity. And we will get to 1,000 MW by 2012.”

While the Governor. in the original press release from BPU, called New Jersey a leader in renewable energy, that claim was strengthened by his announcement three days latter.  It seems that NJ is a leader on offshore wind at least on paper.  What this means is that of the five companies that submitted proposals to the BPU for offshore wind, at least two more companies will get a chance to move forward and start the lengthy process of siting, permitting and installing wind farms.  This is a major commitment to renewable energy.

There still many obstacles that must be overcome before the first monopole is placed in the seabed.  There are too many people who do not want a wind farm off of our coast because of its “visual pollution,” possible impacts on the tourist economy, or for some other reason.

The Governor’s announcement also changed the game somewhat.  The original proposal of the Blue Ribbon Panel was to begin with a pilot program.  What the Governor has announced is not a pilot program but a bold and necessary vision of the future.  Instead of installing 350 megawatts of offshore wind the goal is 1,000 megawatts by 2012 and 3,000 megawatts of renewable energy by 2020.  We need to install as much renewable energy as possible if we are have any chance of meeting the State’s goal of reducing our greenhouse gas emissions by 20% by 2020.  This is a very good start.  I hope that this not a greenwashing moment but a true committment by this administration.

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