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Utility Dive: Final Clean Power Plan rule published; 24 states sue EPA; Indiana joins lawsuit

Posted by Laura Arnold / October 23, 2015 / Posted in Uncategorized / No Comments

Final Clean Power Plan rule published; 24 states sue EPA

By Robert Walton | October 23, 2015

Dive Brief:

The final U.S. Environmental Protection Agency's Clean Power Plan rule was published in the Federal Register this morning, setting off a 90-day period for comments and opening the door for two dozen states to file legal challenges.
The rule was published in three packages, including the final CPP, standards for modified sources and a proposed federal compliance strategy.
The rule's publication means states and energy companies who were earlier rebuffed by the legal system for filing premature challenges can now take their case to court. Already, a coalition of 24 states and fossil fuel interests hasfiled suit to challenge the regulatory package, and separate challenges are expected from other mining and fossil fuel interests in coming weeks.

Dive Insight:

More than two months after final Clean Power Plan plan was announced, the Obama Administration has published the final rule in the Federal Register, formally setting off the public comment period and opening the door to numerous legal challenges.

A coalition of 24 states has teamed up a coal company to challenge the plan, which calls for a nationwide 32% reduction in greenhouse gas emissions by 2030 below 2005 levels. West Virginia Attorney General Patrick Morrisey, who is leading the challenge, said the agency overstepped the regulatory authority granted to it under the Clean Air Act, a landmark clean air package passed first in 1970 and updated in 1990.

“EPA claims to have sweeping power to enact such regulations based on a rarely-used provision of the Clean Air Act but such legal authority simply does not exist,” he said, according to The Hill. The coalition filed its challenge with the U.S. Court of Appeals for the District of Columbia Circuit.

Over the summer, courts twice tossed out a challenge filed by Oklahoma, saying the state would need to wait for the final rule. Observers expect a lengthy legal battle, with the ultimate showdown likely coming before the U.S. Supreme Court. Clues to how the court may evaluate the case, legal scholars told Utility Dive earlier this year, may lie in its decision to remand the agency's Mercury and Air Toxics Standards back to a lower court in June.

Included in the government's publications is the federal strategy for compliance, which the EPA will implement in states that refuse to file compliance plans, or submit inadquate ones. State leaders in Oklahoma, Kentucky, Texas and Wisconsin have said they will refuse to comply with the emissions regulations, and many others are considering similar action, such as requiring any compliance plans to be approved by the state legislature.

EPA acting assistant administrator Janet McCabe told reporters yesterday that the delay between the August announcement of the final targets and the rule being published was standard for a document this size. Publishing the rule was “a routine, standard process," she said, according to Power Magazine.

The comment period ends Jan. 21, 2016.

The Hill: Obama sued by 24 states over coal rule

By Timothy Cama - 10/23/15 08:51 AM ED

A coalition of 24 states and a coal mining company filed lawsuits Friday to challenge the most significant piece of President Obama’s environmental agenda, his signature climate change rule for power plants.

The litigants accuse the Environmental Protection Agency (EPA) of going far beyond the authority Congress granted to it by ordering a significant transformation of states’ electricity generation, moving away from fossil fuels like coal and toward lower-carbon sources like wind and solar power.

They are asking the Court of Appeals for the District of Columbia Circuit to overturn the rule. They also want the court to immediately stop its implementation while it works its way through the courts.

West Virginia Attorney General Patrick Morrisey (R), who is leading the legal fight against the plan, called it “the single most onerous and illegal regulations that we’ve seen coming out of D.C. in a long time.”

On a call with reporters, Morrisey repeated many of the long-held arguments against the rule: that it will hurt his state’s coal mining industry, raise power rates for consumers and risk electricity reliability.

“EPA’s rule is flatly illegal and one of the most aggressive executive branch power grabs we’ve seen in a long time,” he said. “The EPA cannot do what it intends to do legally.”

Morrissey said he wants the court to rule on a stay “as soon as possible.” He noted it took a federal judge about a month to delay an EPA water regulation earlier this month, and said that could be a “guidepost” for how long litigation might take.

The climate rule, dubbed the Clean Power Plan, seeks a 32 percent cut in the power sector’s carbon emissions by 2030, compared with 2005 levels. Each state has been assigned a specific emissions goal based on its unique circumstances, with flexibility in how the goals are met.

West Virginia and Murray led a similar coalition in two lawsuits earlier this year against the regulation that were deemed premature by the D.C. court. The first was before the final rule had been announced, and the second was in August, before it was published in the Federal Register.

The Obama administration has been steadfast in its defense of the legal backing of the rule.

The EPA said its rule is legal and will pass all court challenges.

“The Clean Power Plan has strong scientific and legal foundations, provides states with broad flexibilities to design and implement plans, and is clearly within EPA’s authority under the Clean Air Act,” EPA head Gina McCarthy said in a Friday statement.

“We are confident we will again prevail against these challenges and will be able to work with states to successfully implement these first-ever national standards to limit carbon pollution the largest source of carbon emissions in the United States,” she said.

The West Virginia and Murray lawsuits came the day the rule was published in the Federal Register, the first day court challenges can legally be filed.

The states joining West Virginia are Texas, Alabama, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, New Jersey, Ohio, South Carolina, South Dakota, Utah, Wisconsin, Wyoming, Arizona and North Carolina.

The attorneys general of 15 liberal states, along with the District of Columbia and New York City, are planning to intervene in the lawsuit to support the EPA.

Those state and city officials, led by New York State, said in August that they “fully anticipate defending the rules if they are challenged in court.”

Friday also marks the first day lawmakers can file challenges under the Congressional Review Act, which allows Congress to quickly overturn regulations.

Congressional Republicans are planning to file resolutions quickly against the climate rule, but Obama has promised to veto any such legislation.

Devin Henry contributed.

This story was updated at 10:29 a.m.

Missouri appellate court rules that solar panels can stay in subdivision

Posted by Laura Arnold / October 21, 2015 / Posted in solar / No Comments

Missouri appellate court rules that solar panels can stay in subdivision

WRITTEN BY Karen Uhlenhuth

A Missouri appellate court ruled on Tuesday that homeowners associations in the state may not force the removal of solar panels if their association deed restrictions do not specifically prohibit them.

In May 2014, a subdivision in the St. Louis suburbs told a couple living there that they would have to remove the solar panels from the rear-facing roof of their house. The homeowners, Susan Hanley and Brian Hauge, then asked the circuit court to dismiss the association's demand that the solar panels be removed.

The trial court ruled in August, 2014 that the couple did not have to remove their solar panels. The court grounded its decision in the fact that the deed restriction did not list solar panels as one of the features that the board of trustees could control. Without a specific mention of solar panels, the court said, the association's board of trustees had no jurisdiction over them.

The appellate court on Tuesday affirmed the trial court's decision, meaning that the solar panels can stay.

Although an appellate-court ruling typically serves as a precedent within the area covered by that court, the judges in this matter included a statement instructing lawyers not to cite this ruling in related cases. The ruling will not be published either.

Steve Jeffery, the lawyer representing the homeowners, said he wasn't certain why the court opted not to publish the ruling, although he theorized that it might have been due to an admonishment of the association's attorney that was added to the end of the decision.

Although that probably will diminish the impact of the ruling, Jeffery said that the court's analysis likely will make its way through the Missouri legal community grapevine, meaning that it may discourage some subdivisions from demanding the removal of solar panels.

Subdivisions throughout Missouri and numerous other states have challenged members who have opted to put up solar arrays. For a few years, bills allowing solar panels within the confines of homeowner associations have been introduced into the Missouri General Assembly. They've never gotten much traction.

Subdivisions built decades ago, before the advent of residential solar installations, almost inevitably will have no mention of solar panels among the features they prohibit, Jeffery said. That would mean that, without a revision of the deed restriction, it would be difficult for an association to make a case for the removal of a solar array.

Even though this case lacks the power of precedent, Jeffery said, “Most courts I think would have to agree with the analysis used, because it is pretty clear.”

‘Green Tea’ Party? Far right Republicans, liberal Democrats aligning on Michigan renewable energy issue

Posted by Laura Arnold / October 21, 2015 / Posted in Uncategorized / No Comments

'Green Tea' Party? Far right Republicans, liberal Democrats aligning on Michigan renewable energy issue

By Emily Lawler | elawler@mlive.com
on October 20, 2015 at 7:28 AM, updated October 20, 2015 at 8:44 AM

LANSING, MI — Rep. Jeff Irwin is a proud progressive, and Rep. Gary Glenn is widely considered one of the most conservative Republicans in the Michigan legislature. But they're working together on an energy package that would encourage renewable energy in Michigan.

Virtually undiscussed in the House until very recently, net metering — the process of individuals producing their own energy and selling excess back onto the grid — has in some ways dominated the Senate Energy and Technology committee's discussion on energy reform.

Solar advocates say the operative Senate bill would devastate the state's solar industry by changing how net metering customers are reimbursed for power they feed into the grid. Utilities say ratepayers are subsidizing these solar customers and the change is only fair.

Now House bills 4878, 4879, 4880 and 4881, introduced last month, aim to streamline regulations and expand access for residents, businesses or organizations which want to produce their own renewable energy.

The package is also bipartisan, boasting Rep. Scott Dianda, D-Calumet, and Rep. Ed McBroom, R-Vulcan, as sponsors along with Irwin and Glenn.

Glenn, a Midland Republican, sponsored a bill in the package that would allow community organizations, businesses and individuals to collaborate on co-op style renewable energy gardens. He's looking at it from an economic standpoint.

"I think the more diverse and more competitive energy supply we have, the more secure and profitable our energy supply would be. And so we end up at the same point as people who are motivated more by environmental concerns," Glenn said.

Irwin, an Ann Arbor Democrat who campaigned in part on environmental issues and has fought tirelessly for things like land preservation and renewable energy, comes at net metering from a more environmental standpoint.

He thinks the whole question of subsidies is one that we have to drill down on. Solar producers are producing extra energy during the expensive mid-day peak, right when when power companies need it most, he pointed out.

"The price of energy when solar is generating its energy is higher, and that ought to be considered," Irwin said.

His bill in the package aims to make sure that renewable producers are getting a fair price for what they produce. In addition, it opens up the field for more renewable energy producers.

Amy Heart, spokesperson for The Alliance for Solar Choice, said the bipartisan package reflects strong public support for rooftop solar and also a trend the Alliance has seen crop up in several states.

"In Michigan we have seen great support across the aisle and across the political spectrum, but this is true in other states across the country, as well," Heart said.

In Georgia, a group called the "Green Tea Coalition" formed.

Green Tea Party has a certain ring to it, but Michigan Conservative Energy Forum Executive Director Larry Ward said it was sort of a misnomer for what's going on in Michigan.

Ward's group advocates for renewable energy based on jobs and economic grounds. It's definitely not the global warming perspective green groups come from, but on issues like renewable energy or the net metering package, they end up aligning.

"I've always said at the end of the day I think we're advocating for the same thing, but for different reasons," Ward said.

And although Ward's group, and legislators like Glenn, come from deeply-rooted conservative perspectives, they run up against some Republicans who want to make sure utilities and non-solar ratepayers aren't unfairly subsidizing their solar-enabled neighbors.

As the debate over Michigan's entire energy future wages on separately in the House and Senate, it's not clear where the bipartisan package on net metering will land.

Irwin said he was hopeful that House Energy Policy Committee Chairman Rep. Aric Nesbitt, R-Lawton, would see the opportunities that some of the package's Republican co-sponsors envision. Overall, net metering pales in comparison to larger energy issues the legislature is grappling with — like whether to allow competition from alternative energy suppliers and how to tweak renewable portfolio and energy efficiency standards in light of looming federal regulations.

"This is one rather small and interchangeable part in this whole debate," Irwin said.

It hasn't gotten a hearing or picked up steam yet, but for now it's the only bipartisan legislative answer to Senate net metering legislation.

Emily Lawler is a Capitol/Business reporter for MLive. You can reach her atelawler@mlive.com, subscribe to her on Facebook or follow her on Twitter:@emilyjanelawler.

Wind-farm development slows in Indiana due in part to cheap natural gas

Posted by Laura Arnold / October 21, 2015 / Posted in solar, wind / No Comments

Wind-farm development slows in Indiana due in part to cheap natgas

Louisville, Kentucky (Platts)--20 Oct 2015 434 pm EDT/2034 GMT

Wind energy development has slowed in Indiana, in keeping with the national trend, with only two wind farms totaling 400 MW commissioned in the past four years, according to Indiana's State Utility Forecasting Group.
The latest project, the 200 MW Headwaters wind farm in Randolph County operated by EDP Renewables North America, was completed last December. According to a review by SUFG, located at Purdue University and the official energy adviser to the Indiana Utility Regulatory Commission, several factors have contributed to the decline in wind development, including decreased availability of capital thanks to the 2008 global financial crisis and the reduced competitiveness of wind in the face of abundant, low-cost natural gas.

Much of that new gas supply is coming from the Utica and Marcellus shale.

As wind has faltered in Indiana, however, solar energy has made inroads, although the state's 120 MW of installed solar capacity still is dwarfed by its more than 1,100 MW of installed wind capacity.

Solar is "certainly growing faster, though it has a ways to go to catch up," SUFG director Douglas Gotham observed in a Tuesday interview.

Until a decade ago, hydroelectric power was the leading renewable energy resource in the Hoosier state, but it generated only slightly more than 70 MW.

Indiana's first commercial wind farm began operating in 2008.

Since then, "we've developed a fair amount of renewables" in a state without a mandatory renewable portfolio standard, he noted.

Unlike neighboring states such as Michigan, which is slowly moving away from coal-fired generation, Indiana still gets about 80% of its power from coal.

And, also unlike Michigan, Indiana has an active coal mining industry that provides jobs, he added.

Indiana is among the top 10 coal producers in the US, regularly turning out more than 35 million st/year. There are no coal mines in Michigan and other regional states such as Minnesota and Iowa, where renewables are growing faster.

Gotham said Indiana has the ability to get more power from renewables. "Certainly," he said, "you could mandate more and you would get more. But the question is, what are the costs and are the policymakers willing to impose those extra costs in order to get the higher levels of renewables?"

So far, the answer appears to be no. Republican Governor Mike Pence is a strong supporter of coal and a vehement opponent of the Environmental Protection Agency's new Clean Power Plan aimed at cutting carbon dioxide emissions mainly from coal plants.

If wind energy is to resume growing again in Indiana, the CPP may be the reason, Gotham said. "Depending on how the state complies and what they are doing, you may see some growth in that area."

--Bob Matyi, newsdesk@platts.com
--Edited by Lisa Miller, lisa.miller@platts.com

WSJ: As Conservation Cuts Electricity Use, Utilities Turn to Fees

Posted by Laura Arnold / October 21, 2015 / Posted in Uncategorized / No Comments

As Conservation Cuts Electricity Use, Utilities Turn to Fees

Double-digit percentage increases for distribution, maintenance anger power consumers

By REBECCA SMITH

October 20, 2015

38 COMMENTS

Electric utilities across the country are trying to change the way they charge customers, shifting more of their fixed costs to monthly fees, raising the hackles of consumer watchdogs and conservation advocates.

Traditionally, charges for generating, transporting and maintaining the grid have been wrapped together into a monthly cost based on the amount of electricity consumers use each month. Some utilities also charge a basic service fee of $5 or so a month to cover the costs of reading meters and sending out bills.

Now, many utility companies are seeking to increase their monthly fees by double-digit percentages, raising them to $25 or more a month regardless of the amount of power consumers use. The utilities argue that the fees should cover a bigger proportion of the fixed costs of the electric grid, including maintenance and repairs.

“The [electricity] grid is becoming a more complex machine, and there needs to be an equitable sharing of its costs,” said Lisa Wood, a vice president of the Edison Foundation, the nonprofit arm of the utility industry’s trade group Electric Electric Institute. A typical American household pays $110 a month for electricity, she said; more than half goes to cover fixed costs.

Utilities in at least 24 states have requested higher fees, according to the Environmental Law & Policy Center in Chicago, which opposes some of these increases. If regulators allow the fee increases, “the result is that low-use customers pay more than in the past, and high-use customers pay less,” said Bradley Klein, a senior attorney for the group.

The problem for utilities is that many consumers are using less power these days, in large part because appliances and equipment are getting more energy efficient. Even though U.S. homes are getting bigger, energy consumption per square foot is going down, according to the federal Energy Information Administration. The rise of rooftop solar power in some parts of the country also is chipping away at power sales.

In recent fights in Connecticut, Pennsylvania, Iowa and other states, regulators have said they are sympathetic to the plight of utilities but don’t want them to raise fees too aggressively.

Eversource Energy’s Connecticut Light & Power asked for permission last year to raise its fee 59% to $25.50 a month from $16. But the state’s utility regulator balked, instead granting the company permission to charge residential customers 20% more, or $19.25 a month, starting this year.

The size of the initial request angered customers so much that the Legislature got involved and passed a bill in June that requires the fee to be reviewed—and likely lowered—the next time the utility seeks a general rate increase.

“Fixed fees are unpopular because they disempower the customer and discourage investments in rooftop solar and energy efficiency,” said William Dornbos, Connecticut director for the Maine-based Acadia Center, a public interest group that promotes clean energy.

He says high monthly fees reduce the proportion of the total bill that a customer can lower by conserving energy, reducing the incentive to embrace solar and cut usage.

Eversource said Connecticut Light & Power’s cost of providing service, excluding the cost of the electricity itself, is about $35 a month per home. “We proposed what we believed to be a more reasonable charge,” said Mitch Gross, an Eversource spokesman.

‘The more dollars they collect through a fixed monthly charge, the less their revenue fluctuates’

—Tanya McCloskey, Penn. Office of Consumer Advocate

In Pennsylvania, PPL Corp., parent of Pennsylvania Power & Light, wants to raise its customer-service charge by about 42% to $20 from $14.13, as part of an overall 6% rate increase. Under its rate proposal, about 60% of the added revenues would come from a higher monthly charge.

PPL spokesman Paul Wirth said the utility figures it costs about $38 a month to provide service to a typical home, including the cost of meter reading and billing, but excluding the cost of electricity. “Since our cost to provide service is mostly fixed, we think our rate design ought to reflect that more accurately,” he said.

Pennsylvania’s Office of Consumer Advocate, which represents electricity customers, has generally opposed fee increases. Tanya McCloskey, the acting head of the agency, said she knows that for utilities, “the more dollars they collect through a fixed monthly charge, the less their revenue fluctuates from weather or recession or other things.” But she says she thinks utilities sometimes exaggerate the proportion of their costs that are truly fixed.

PECO, the Philadelphia utility that is part of Exelon Corp., agreed earlier this month to charge customers $8.45 a month apiece, up from $7.13, rather than the $12 it proposed in March.

Indianapolis Power & Light is asking state regulators for permission to boost its monthly fees, with the biggest percentage increases falling on customers who use little power. Households consuming less than 325 kilowatt-hours of electricity a month—about 15% of its customers—would pay $11.25 a month, 68% more than the current $6.70.

Residences using more than 325 kilowatt-hours of electricity would pay $17 a month, or 54% more than the current of $11. The utility also wants to increase the price for electricity by anywhere from 3.69% for the biggest consumers to 28% for the smallest users.

Ken Flora, Indiana Power’s director of regulatory affairs, said he thinks the proposal fairly distributes the costs of the electric grid. But the plan has drawn vigorous opposition from a broad coalition of consumer advocates, including those representing the elderly, the poor, and conservation-minded consumers.

Write to Rebecca Smith at rebecca.smith@wsj.com