Sustainability & Climate Change Reporter : Pacific Northwest Sustainability Lawyers & Attorneys : Lane Powell Law Firm : Renewable Energy, Environmental Law

The demise of the climate bill in the U.S. Senate now leaves the Regional Greenhouse Gas Initiative (“RGGI”) and the Western Climate Initiative (“WCI”) as the only cap-and-trade programs in the U.S.  RGGI, which covers 10 northeastern and mid-Atlantic states, holds its ninth auction of emissions allowances in September; meanwhile the WCI, made up of seven U.S. states and four Canadian provinces, has just released a design document for its program, the centerpiece of which is cap-and-trade.

In the on-going vacuum created by the lack of federal legislation to put a price on carbon, the states continue to be where most of the action is. But all is not necessarily well at the state level. Prices for RGGI’s emissions allowances have dropped substantially from a year ago and the viability of WCI’s ambitious design could hang on the outcome of this November’s vote in California to suspend the state’s climate law.

RGGI Pricing

RGGI has been up and running since September 2008 as the only market-based mandatory emissions allowance program in the U.S.  Although RGGI is limited to the power generation sector, the predominance of coal-fired power plants among its member states makes that sector a signficant source of greenhouse gas emissions. 

Finding a meaningful, sustainable price for RGGI carbon allowances has been tricky.  RGGI’s first auction in September 2008, emissions allowances sold for $3.07 per metric ton, they reached a high of $3.51 per ton in the March 2009 auction, but dropped to $1.88 in the most recent auction last June. The next auction on September 8, 2010, will be an important indicator of the health of the U.S. emissions allowance market.

WCI-Lite?

The WCI design has been two years in the making.  The primary component is a cap-and-trade program that is broader than RGGI's.   The WCI design uses a market-based approach and targets reducing greenhouse gas emissions 15%  below 2005 levels by 2020.   Amy Boyd at the Foley Hoag Law and Environment Blog provides a good summary of WCI's key design features, as well as pointing out some of the details yet to be determined.

But, as Felicity Berringer pointed out in her New York Times Green blog earlier this week, the WCI program leaves out, for now, transportation emissions, which are one of the key sources of the region’s greenhouse gas emissions. Mobile sources constitute a larger share of most WCI members' emissions than does power generation due to the greater reliance on hydro power.  WCI’s design, however, intends to wait until 2015 to cover emissions from transportation and other fuels.

During the course of developing the design, the regional and national economies took a deep nosedive and still have not recovered, leading to a decline in the number of states agreeing to implement the program.  Legislatures in Washington and Oregon failed to pass measures to authorize participation in the cap-and-trade program; Arizona and Utah likewise are standing on the sidelines. That leaves California and New Mexico, along with the Canadian provinces of British Columbia, Ontario and Quebec, as only jurisdictions moving forward with cap-and-trade.

Wither California?

The big unanswered question overshadowing WCI’s design is what effect would passage in California of Proposition 23 have on the regional cap-and-trade program?  Prop. 23 would suspend California’s climate change law, AB 32, until the state’s unemployment drops below 5.5% for four consecutive quarters, which has only happened three times in the past 22 years.  Since California represents a third of all the WCI’s greenhouse gas emissions, pulling that state out of the WCI could have a significant impact on the viability of the cap-and-trade program. 

Could WCI, with or without California, team up with RGGI to create an emissions allowance market that covers a large portion of the U.S. greenhouse gas emissions?   RGGI has issued a statement congratulating WCI on the release of its design, looking forward "to continued collaboration to share best practices and successful innovations," and concluding that "working together, state and regional programs can serve as a model for strong national climate policy, and as an engine for a cleaner energy future."  So, it looks like, in the absence of federal leadership, the states will continue to do the heavy lifting.

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Six Washington state taxpayers have filed a lawsuit (PDF) to stop implementation of Gov. Christine Gregoire's May 2009 Executive Order to reduce greenhouse gas emissions.  The lawsuit claims the governor exceeded her constitutional authority and invaded the province of the legislature by issuing the order, but the challenge is a real stretch in light of existing state climate change law, the Governor's inherent power to communicate to state agencies what she wants them to accomplish, and what the Executive Order actually requires.

Washington's Climate Law

The Washington legislature in 2008 established greenhouse gas emissions targets for the state  -- reduce emissions to 1990 levels by 2020; 25% below 1990 by 2035; and 50% below 1990 by 2050.  That same session also set benchmarks for reducing vehicle miles traveled, which are a key component of the state's GHG reduction program since the transportation sector contributes a substantial share of the state's GHG emissions. 

During the 2009 session, the legislature considered SB 5735 (PDF), which would have directed the Department of Ecology to establish statewide and sector-specific GHG emission caps and criteria for forestry offsets; continue participation in the development of the Western Climate Initiative's (WCI) cap-and-trade program; and implement an electric vehicle and alternative fuels infrastructure program.  SB 5735, however, did not pass and so Gov. Gregoire issued Executive Order 09-05 (PDF).

Taxpayer Lawsuit

The Complaint in the taxpayer's lawsuit quotes a confidential briefing document from then-Ecology director Jay Manning stating that the Governor directed preparation of "an executive order that accomplishes what the bill would have authorized and more."  Even if true, most of the provisions in the order already are authorized by existing law, although the Complaint brushes existing statutory authority aside as "purportedly  authorizing such actions." [emphasis added] 

But there's no purportedly here.  For example, the Executive Order directs Ecology to continue participating in the WCI, and under RCW 70.235.030(1)(a) Ecology already has been told to "develop in coordination with WCI a design for a regional multisector market-based system to limit GHG emissions."  Similarly, to fulfill the statutory mandate to participate in designing the cap-and-trade system, Ecology reasonably would be expected to develop emission benchmarks by industry sector and also forestry offsets, both of which are key components of the WCI's cap-and-trade program. 

A second statute adopted in 2008, RCW 47.01.440, set benchmarks for reducing vehicle miles traveled and requires that Ecology develop a collaborative process with the Transportation and Commerce departments, regional planning councils and businesses to devise strategies, including public transportation options.  The Executive Order does virtually the same thing by directing the Department of Transportation to work with local governments, business and environmental representatives on the issue. 

Directive to Agencies

Even if the legislature had not adopted the climate bills in 2008, the Executive Order still should be valid because the Governor is allowed to direct state agencies to accomplish her policies, although the directives would not have the force and effect of law.   A 1991 Attorney General Opinion, Wash. AGO 1991 No. 21 (available on Westlaw at 1991 WL 521712), issued in connection with another governor's wetlands preservation executive order, described three basic types of executive orders: 1) general policy statements to persuade and encourage persons within and outside of government to accomplish the Governor's policy; 2) directives from the Governor to state agencies communicating what the Governor wants the agency to accomplish; and 3) operative effect executive orders.  

According to the opinion, only the last type of order has the force and effect of law.  That does not mean that the first two types of executive orders are invalid or voidable.  Indeed, the AG's opinion recognized that the Governor can direct state agencies to take actions to accomplish her policies and fire the agency head if he or she does not comply.

"Force & Effect of Law"

The lawsuit claims that the Executive Order is void because it improperly has the "force and effect of law," but there is no Washington case law interpreting the term and Black's Law Dictionary calls it "a redundant legalism."   Black's defines it to mean "legal efficacy."  

But the actions that the order directs the various agencies to undertake -- "continue participating," "provide estimates," "request recommendations," "work with business to develop benchmarks," "develop recommendations," "develop strategies," and "provide alternatives" -- all sound like they stop well short of having any teeth to them.  Put another way, how could there be any legal consequence to anyone if the agencies  provide estimates, request recommendations, work with business, develop strategies or provide alternatives? 

What makes this lawsuit even more odd is that no one challenged the Governor's 2007 executive order (PDF) that established GHG emissions reduction targets a year and a half ahead of the legislature.  What makes this later Executive Order different?  Probably nothing, except perhaps the move in California to halt that state's climate change law, AB 32, has emboldened opponents everywhere.  To be sure the economy is in far different shape than it was in 2007, with the state's budget in continuing dire straits, but that does not make the Executive Order an unconstitutional intrusion on the legislature's prerogatives.  There may be other ways to challenge the state's involvement in climate change regulation, but this lawsuit does not appear to be one of them.

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Reuters reports that an environmental consulting firm has concluded about 40% of the British firms that are supposed to register for the UK's new Carbon Reduction Commitment Energy Efficiency Scheme (CRCEES) don't even know they have an obligation to do so and are likely to miss the September 30 registration deadline.

The CRCEES launched on April 1 and affects approximately 20,000 U.K. businesses, including banks, hotels, and schools, as well as industries.  This blog noted before the launch that the UK program can be complicated despite efforts to make it simple.  The Users Guide (PDF) published by the UK Environment Agency tries to explain the program, including who must register, but apparently figuring it out isn't as easy as designers might have hoped. 

According to Reuters, the study by WSP Environment & Energy concluded that there was a lack of awareness and engagement among participants about the CRCEES.

Using a worst-case scenario analysis, WSP said some 6,000 of the 15,000 lower energy users affected by the scheme, firms that "had at least one half-hour electricity meter settled on the half-hourly market across the whole organization" in 2008 but consumer less than 6,000 megawatt hours, will fail to make the required information declaration to the agency by September 30.

The fine for lower energy users who miss the deadline is a one-time ₤500 (~$764.14 USD).  But another 1500 heavy energy users also will miss the registration deadline and they face fines of ₤5000 (~$7,641.50 USD) plus ₤500 per day for up to 60 days.

It's unclear whether those fines actually will be levied.  The U.K. Environment Agency may need to launch a targeted awareness campaign first.  But this also is a lesson that it's one thing to have deadlines and quite another to get everyone on board.

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As U.S. facilities collect their greenhouse gas emissions data this year to submit the first reports to the federal  Environmental Protection Agency next March, one of the issues has been how the agency will treat information that a company considers confidential.  Under the EPA's proposed rule it appears that most of the data provided by facilities will be publicly available and not protected as confidential business information (CBI).

Greenhouse Gas Reporting Rule

The EPA's Mandatory Reporting of Greenhouse Gases rule, (40 CFR Part 98), issued under the authority of the Clean Air Act, took effect January 1, 2010.  It requires that facilities collect their greenhouse gas emissions data annually and file reports by March 31 of each year starting in 2011.  

The two main groups of facilities subject to the reporting rule are direct emitters, which are those facilities that release GHGs from industrial processes and stationary fuel consumption, and suppliers of fuels and industrial GHGs.  Manufacturers of vehicles and engines are not included in the reporting rule.

Confidentiality Rules

Under the Clean Air Act, for example in the Acid Rain Program, the EPA has taken a case-by-case approach to confidential information reported by emitters.  The general rule is that "emission data" -- identity of the facility and the amount, frequency, concentration or other air quality related characteristics of emissions -- are publicly available. 

With the GHG Reporting Rule, however, facilities will have to report more than 1,500 unique data elements (PDF),  which would make it unwieldy to engage in a case-by-case determination of confidentiality.  The proposed rule would decide confidentiality according to which sector is reporting and the category of the data, with the tendency in favor of disclosure.  In addition to eliminating case-by-case determinations, the EPA would not provide prior notice to an individual facility when data is released.   

Direct Emitters

For industrial facilities, the general principle is that all data reported are either "emission data" or non-CBI, with only limited exceptions.

• Emission Data -- facility name and address, emissions, inputs to the emissions equations, the calculation methodology and methodological tier and data elements reported for periods of missing data.  Publicly Available.
• Not Emissions Data/Not CBI -- unit/process static characteristics and unit operating characteristics that are not inputs to equations, and test and calibration methods.   Publicly Available.
• CBI -- production/ throughput data and raw materials consumed, provided the data are not inputs to emission equations, and process-specific and vendor data submitted in best available monitoring methods extension requests.   Not Publicly Available.

Fuel & Industrial GHG Suppliers

None of the data to be reported by facilities in the fuel and industrial GHG supply sector would be considered "emission data' because those data relate to potential future GHG emissions from the eventual use of the products, and not emissions from the suppliers' facilities.  

• Not CBI -- facility name and address, calculation, test and calibration methods; and data elements reported for periods of missing data not related to production/throughput or materials received.  Publicly Available.
• CBI -- emission factors; supplier customer and vendor information; amount and composition of materials received; data elements reported for periods of missing data that are related to production/throughput or materials received; and process-specific supplier  and vendor data submitted in best available monitoring methods extension requests.  Not Publicly Available.
• Mixed CBI -- depending on the nature of the source category, GHGs reported, production/ throughput quantities and composition; and unit/process operating characteristics.  May or May Not Be Publicly Available.

Aggregating Information

Even where EPA designates information as protected CBI, the agency wants to publish compilations of the data if it can be done in a manner to protect the confidentiality of the data elements.  EPA is considering using the data to create tables or charts by source category or geographic distribution, or by using numerical ranges for individual facilities but maintaining the confidentiality of actual reported values.

Rule Not Final

For facilities that have been reporting under the EPA's Acid Rain Program, the proposed GHG reporting confidentiality rules will not represent a significant change since all of the data submitted under the Acid Rain Program has been publicly available and there have been no confidentiality assertions.  The proposed GHG reporting rules, however, greatly expand the data elements to be reported and are likely to raise confidentiality concerns that the Acid Rain Program rules did not.  In addition, the GHG reporting rules will apply to many facilities that have not been subject to the Acid Rain Program.  Not only will those facilities be confronted with a new and complex reporting regime, but the confidentiality rules are likely to add a layer of confusion about what is and is not publicly available. 

The EPA's Federal Register (PDF) notice for the proposed rule provides a number of questions on which the agency is soliciting public comment.   The comment period is open until September 7, 2010.

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California is sending mixed signals on climate change issues these days.  While the state has been a leader in adopting both cap-and-trade and renewable portfolio standards (RPS) as parallel strategies to reduce greenhouse gas emissions, those two tracks seem to be diverging.  An initiative, Prop. 23, seeks  to roll back the state's landmark cap and trade measure, but at the same time the state legislature is considering uping the ante on RPS to drive the state towards a greater percentage of renewable energy. 

At the center of it all is the Global Warming Solutions Act of 2006, also known as AB 32, which established a framework for California to develop regulatory and market mechanisms for reducing the state's greenhouse gas emissions -- to 1990 levels by 2020 and 80% below 1990 by 2050.  AB 32 authorizes the state Air Resources Board (ARB) to adopt regulations implementing a cap-and-trade program, and it has been doing this in conjunction with the Western Climate Initiative's region-wide cap-and-trade.  The first mandatory caps are to take effect in 2012.

Prop. 23 v. AB 32

When he signed AB 32 in August 2006, Gov. Arnold Schwarzenegger hailed it as "unquestionably good for business.  Not only large, well-established businesses, but small businesses that will harness their entrepreneurial spirit to help us achieve our climate goals."  Since then, however, the economic recession has hit California hard, prompting fears that implementing AB 32 would cost jobs.

The result of that concern is Prop. 23, called by backers the California Jobs Initiative (PDF).  It would suspend AB 32 until the state unemployment rate drops to 5.5% or below for four consecutive quarters.  Since unemployment in California currently is above 12%, and the state has only had four consecutive quarters below 5.5% three times in the past 36 years, approval of Prop. 23 effectively would end California's efforts on cap and trade.  (That could turn the Western Climate Initiative into what Amy Boyd of Foley Hoag has referred to as the "Mid-Canada Initiative," because California is alone among the U.S. members of WCI to authorize participation, joined by the Canadian provinces of British Columbia, Ontario, Quebec and Manitoba.)

Increasing the RPS

RPS has been a key component alongside cap-and-trade in California's strategy for reducing greenhouse gas emissions.  The state accelerated the original 20% target for renewables from 2017 to the end of this year.  Through executive orders, Gov. Schwarzenegger increased the goal to 33%, but extended the deadline to 2020.   The governor's 2009 executive order directed ARB, under its AB 32 authority, to adopt regulations implementing the 33% RPS.  ARB will hold a public hearing (PDF) July 22 on its proposed Renewable Electricity Standards and is scheduled to adopt the regulations the next day.

Prop. 23 Affect on RPS

Prop. 23, however, not only would suspend AB 32, but also provides that any regulations adopted prior to the effective date of Prop. 32 are to be void and unenforceable until the suspension is lifted.  Thus, if ARB adopts the Renewable Electricity Standards later this month, those regulations would be subject to suspension under a successful Prop. 23. 

The Governor's 2009 executive order also contemplated that the RPS regulations ARB adopts should encourage the development and use of renewable energy beyond those required in the RPS Program.  If ARB is no long involved in RPS because of Prop. 23, there conceivably could be some slow down in development of renewable energy in California due to uncertainty about which agency should take up that role and how. 

Statutory Expansion of RPS

Perhaps prompted in part by  Prop. 23, as well as the ability of the next governor to rescind the RPS executive orders, the legislature is considering SB 722 to provide statutory authority in the Public Utilities Code for increasing the RPS.   

While Prop. 23 does not touch the Public Utilities Code, one aspect of SB 722 could be drawn into the AB 32/Prop. 23 imbroglio.  SB 722 expands application of the RPS to publicly owned electrical utilities and provides that ARB would have authority under AB 32 to enforce any failure to comply.  Suspending ARB's enforcement authority would make toothless the inclusion of publicly owned utilities and create uncertainty in that sector.   

If the back and forth during the signature drive was any indication, the pro and con campaigns over Prop. 23 are bound to be expensive and loud.  In the meantime, those looking to California for guidance on climate change regulation may have to look elsewhere. 

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The U.S. Fifth Circuit Court of Appeals on May 28th issued a decision (PDF) that will warm the heart of an appellate lawyer, but leave the rest of us scratching our heads.  On Friday, the court dismissed the appeal in the Comer climate change lawsuit, but not on the merits of whether the courts should hear lawsuits challenging companies' contributions to climate change.  Instead, the dismissal was based on the intricacies of procedural rules for en banc review and quorums.  The result eliminates one of the two landmark climate change appellate decisions, leaving only the Second Circuit's decision in Connecticut v. AEP to allow such lawsuits and a question whether the Supreme Court will consider the issue.

Background

In Comer the plaintiffs alleged that energy companies' greenhouse gas emissions had caused greater damage from Hurricane Katrina.  The plaintiffs asserted claims for nuisance, trespass and negligence.  The district court dismissed the case on grounds that the plaintiffs lacked standing and the claims involved political questions to be resolved by the executive and legislative branches.  Last October, a three-judge panel of the Fifth Circuit reversed and reinstated the claims.  In so doing, the Fifth Circuit joined with the Second Circuit in allowing climate change claims to proceed in the trial courts.  In late February, however, the Fifth Circuit granted rehearing en banc, signaling a potential reversal and, if so, setting up a classic "conflict of the circuits" primed for U.S. Supreme Court review.

Majority Decision

Between the time the court voted for en banc rehearing and the May 28th decision, one of the six judges who had voted for rehearing declared herself recused, which meant that fewer than a majority of  the 17 active judges of the Fifth Circuit were left to hear the case.  

In a short four-page decision, five of the remaining eight judges said there was no quorum and, therefore, the court had no option other than to dismiss the appeal.  Because a local rule vacates the original panel decision upon acceptance of en banc rehearing, the original district court dismissal decision remains intact.

In their ruling, the majority outlined five options it considered and rejected:

• Ask the Chief Judge to appoint a judge from another circuit -- the court said that it was precluded by its own case law and statute from doing this.
• Declare a quorum under Fed.R.App.P. 35(a) -- the court said a quorum is a majority of the 17 regularly active judges in the circuit, not just as a body of non-recused judges.  Eight of the 17 immediately recused themselves from voting on the en banc request, leaving a bare majority of the court.  When one of the remaining nine recused herself, there was no quorum of the full court, even though there still would have been a quorum of the non-recused judges.
• Adopt a rule of necessity and allow disqualified judges to sit-- the court said there are no rules for doing this and it was not appropriate since the case might end up in the Supreme Court.
• "Dis-enbanc" the case, reinstate the panel order and issue a mandate -- the court said the case had been properly voted en banc, but now was without a quorum to conduct any judicial business and no authority to rewrite established circuit rules.
• Hold case in abeyance until composition of the court changes --  the court said there was no way to know when the current vacancy would be filled or if that judge would be recused and, in any event, decision should be made as promptly as possible.

Davis Dissent

Judge W. Eugene Davis wrote a dissent, in which Judge Carl Stewart joined.  Judge Davis argued that the local rule the majority relied on for vacating the panel decision was not intended to apply in a situation where the court, after voting a case en banc, loses its quorum and does not consider the merits of the appeal.  According to Judge Davis, the rule is intended only to alert practitioners and the courts that a panel opinion is not precedential pending consideration by the en banc court.

Judge Davis asserted that a judge from another circuit could have been appointed because the Acting Chief Judge was willing to request the Chief Judge designate a temporary judge if a majority of the eight en banc judges asked for it.

Dennis Dissent

Judge James Dennis wrote a lengthy separate dissent.  He referred to the majority decision as "shockingly unwarranted," "drastic," "precipitous" and "contrary to law and Supreme Court precedents."  He said in a footnote: "If we lack a quorum, then the group of judges who are purporting to issue the order of dismissal cannot issue such an order any more than a single circuit judge can dismiss a case on behalf of a three-judge panel."
 

Judge Dennis said the majority interpretation concerning the statutory definition of an en banc quorum was "implausible" and contrary to the established rule that "federal courts lack the authority to abstain from the exercise of jurisdiction that has been conferred."  He also argued that it is contrary to common sense and fairness, as well as "injudiciously mechanistic and arbitrary," to dismiss the appeal with the apparent intention to reinstate the district court's order dismissing the case even though a panel had already held the district court erred.

What's Next

The majority in the dismissal decision said that the parties still had a right to petition the Supreme Court for review.  One of the primary, but not only, bases for certiorari is to have a court of appeals decision that is in "conflict with a decision of another United States court of appeals."  This case, however, is not a clear-cut conflict.  The dismissal in Comer was on procedural, not substantive grounds, and there is no decision on the merits by the Fifth Circuit that conflicts with the Second Circuit AEP decision.  It appears that the result here may have created a more difficult hurdle to overcome for the appellants in Comer to obtain Supreme Court review of the district court decision.

That still leaves the AEP case as a potential for bringing the issue to the Supreme Court, but there has yet to be a petition for cert filed in that case.  The petition for cert was due June 8, but now has been extended by a month.

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The frequent critique of renewable energy, and wind power in particular -- that it's too intermittent and requires carbon-emitting backup capacity -- is turning into a flawed premise.  The National Renewable Energy Laboratory's recent Western Wind and Solar Integration Study (WWSIS) concludes that no additional backup generation would be required if renewable power provided up to 20 percent of the region's power, and reaching 35 percent could be accomplished through changes to operating practices.  WWSIS is the latest in a series of reports that have come to such a conclusion.

The intermittency argument, however, keeps popping up on a regular basis.  Take for example, a recent on-line column by Association of Washington Business President Don C. Brunell, which mirrored an earlier  article, entitled "Wind Power Has a Dirty (Carbon) Secret."  Both argued as more wind power comes to the grid it will require more backup by coal and natural gas to account for the intermittency of renewables.  Mr. Brunell used the critique to argue for more nuclear power as a non-carbon generating backup source. 

Perspective

In the first place,  neither Washington nor Oregon, separately or together, are in any danger of reaching 20 percent renewable energy generation anytime soon.  While the two states have set renewable portfolio standards -- 15 percent by 2020 for Washington and 25 percent by 2025 for Oregon -- according to the American Wind Energy Association 2009 Annual Market Report (PDF)  both states are still in the single digits for actual renewable generation relative to their total generation (Washington, 3.28%; Oregon, 6.4 %).

Intermittency

It's true that wind power is intermittent in the sense that the wind obviously doesn't blow all the time (although it may seem that way in parts of eastern Washington).  Similarly, a solar project also is intermittent because it can't operate at night and during certain heavy overcast days.  But intermittency is not a new issue in the electricity generation world.  System operators have always had to deal with it because no power plant or system operates at 100 percent capacity all of the time.  Even as load fluctuates outages occur, sometimes unplanned. 

This is true even for nuclear power.  For example, the Nuclear Regulatory Commission noted as part of its most recent Annual Assessment (PDF) of the Columbia Generation Station, the lone nuclear power plant in Washington state, that six unplanned outages had occurred in the past two years and called on the operator to improve.  And when a large power plant, such as the Columbia Generating Station, goes off-line unexpectedly, it means a loss of as much as 1000 MW of capacity, which can give new meaning to the word intermittent. 

Operational Adjustments

But reviews of European and U.S. wind farms also have concluded that not every megawatt of renewable capacity needs to have a corresponding megawatt of nonrenewable or hydro backup generation.  According to one study: "It is now clear that, even at moderate wind penetration, the need for additional generation to compensate for wind variation is substantially less than one-for-one and is often closer to zero."  A report (PDF) by the European Wind Energy Association agreed:

The already established control methods and backup available for dealing with variable demand and supply are more than adequate for dealing with the additional variable supply such as wind power at penetration levels of up to 20% of gross demand.

This is the finding of the WWSIS as well, which concluded that only 89 hours of the year would require backup generation due to high demand.  Rather than build additional backup generation, the WWSIS recommends the following changes in the way the system operates:

• Sharing reserves over a large geographic region to reduce overall variability of renewables and load, and provide broader access to existing non-renewable generation for balancing;
• Implementing demand response, which would allow utilities to ask customers to reduce their load in exchange for favorable rates (a system already in use in Texas); 
• Changing from hourly scheduling to sub-hourly for generation and interstate exchange;
• Using state-of-the-art wind and solar forecasts for day-ahead commitments; and
• Providing better access to underutilized transmission capacity.

Changing practices is not easy, but its also not impossible and far cheaper than building more backup generation.  Consequently, the WWSIS study strongly suggests that the intermittency/ backup generation critique of wind power doesn't quite fly.   

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It was a sunny spring Sunday morning on May 18, 1980, when I casually strolled into work a little before 9 a.m. and was greeted by the KOMO-TV assignment editor saying, "The Mountain blew.  Really, its the big one."  And indeed it was.  Before long a camera crew and I were headed to Mt. St. Helens in a chartered helicopter.  Flying south from Seattle you could see the eruption boiling away into the sky.  This definitely was not the little puffs of ash and steam that we'd been seeing off and on the previous three months since Mt. St. Helens reawakened. 

Logjam

Our first destination was the North Fork of the Toutle River where we came upon a massive raft of logs, debris, mud and ash barreling downstream.  (The video we shot is starts at about 2:52 in on the KOMO excerpt and runs for about two minutes).   It was a dicey proposition circling over the narrow canyon to shoot the logjam because we weren't alone -- there were at least a dozen other helicopters and airplanes also circling to get photos.  I probably spent as much time spotting other aircraft for our pilot as I did looking at the incredible scene below.

Next we headed towards the town of Toutle, where we found a bend in the river and set the helicopter down on a gravel beach, tail pointed over the water so photographer Dave Mann could shoot the logjam as it came around the corner.  Our pilot kept the engine idling, which was a good thing because, just as the debris boiled into view, I looked down to see water rising over the skids.  We quickly got in the air and got some great shots skimming over the logjam.

House

We spent the first day flying all over the area, getting as close in to the volcano as the no-fly zone permitted, shooting the rescue helicopters at work, seeing the leveled forest and lahar-choked river, the damaged rail bridge and decimated logging camp, and then feeding all the tape back to the station by hovering in the helicopter at 10,000 feet with the doors off and me holding the microwave stinger on my lap!   

At sunset we made a final run for the day up river to shoot new video for the late news and that's when we spotted a fully intact house floating downstream.  We shot that from the air and with our camera batteries on fumes ran downstream to catch the house as it met up with one of the remaining intact bridges.  We all thought the bridge would go, but instead the house disintegrated and we had the only video of it. 

Crockett

Over the next couple of days we talked to those displaced by the eruption and to survivors, including the incredible story by KOMO-TV cameraman Dave Crockett.  In all 57 people died in the eruption, but it would be two years before we discovered that most of them actually had been outside the designated restricted zone.  

It was an incredible experience to cover the Mt. St. Helens' eruption that week, particularly to have had as big a role with only eight months' on-air reporting under my belt (but that's what happens when you're the new kid, you get the crappy Sunday shifts).  My lack of experience definitely showed, but I think we did a credible job and I still feel humbled to have been a part of such a monumental event.      

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The 21-page summary (PDF) of the Kerry-Lieberman draft climate bill, known as the American Power Act, leaked a day ahead of the official release on Wednesday, May 12, and contains a lot for everyone.  As indicated by various reports that surfaced throughout the on-again, off-again process, the bill also contains provisions that would preclude EPA and the states from regulating greenhouse gas emissions ("GHGs").  

Draft Provisions

As outlined in the summary, the bill would set goals to reduce GHG emissions from a 2005 baseline by:

•  4.75% by 2013;
• 17% by 2020;
• 42% by 2030; and
• 83% by 2050.

Recognizing the difficulties inherent in getting votes in the Senate, the measure attempts to bridge (and in some cases adds fuel to) a number of contentious issues, with incentives for nuclear power, coal carbon capture and sequestration, offshore oil and gas production and electric vehicle infrastructure, together with an emissions allowance program. 

Blocking EPA

Its long been expected that to get enough votes to pass a climate bill it probably would have to nip in the bud GHG regulation by the EPA and the states.  Provisions in the summary of the proposed bill do just that and, if passed, would put the brakes on EPA's Endangerment Finding and its Tailoring Rule, as well as barring state-level programs, such as the Regional Greenhouse Gas Initiative ("RGGI") and the Western Climate Initiative ("WCI").

The EPA's climate efforts have had a target on them since they were released last December, as members of Congress and industry groups almost immediately sought to restrict the agency from moving forward.  The Kerry-Lieberman bill would do that, but it also gives the agency a role in the emissions allowance program, thus changing the agency's focus more than a complete preclusion.

State Impact

But the state-level programs are another story.  The bill provisions barring states from implementing or regulating cap-and-trade programs could encounter some resistance, particularly from Northeastern states reluctant to give up RGGI, which so far has raised $582 million in seven auctions.  The bulk of the RGGI proceeds have provided a much-needed shot in the arm to fund state-level energy efficiency and renewable energy programs, even as some states, such as New York and New Jersey, also have sought to use a portion of their RGGI proceeds to close general fund budget deficits.  Thus, losing RGGI money is not likely to be very popular with the ten member states. 

At the same time, while the WCI has yet to get off the ground, and may not if California's initiative to stop implementation of AB 32 is successful, many Western states believe they have a lot to lose from climate change impacts that a compromise bill like Kerry-Lieberman cannot address. 

It Isn't Over Until Its Over

Its too soon to say whether Kerry-Lieberman represents the beginning of the end for RGGI and WCI or if its simply another bump in the road.  As the fractious history of climate change legislation has demonstrated many times in recent years, proposing a bill is one thing, getting it passed is quite another. 

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