January 26, 2012
Last week, DEC proposed two new regulations affecting power plants in New York State. Both implement provisions of the Power NY Act of 2011, and both apply to proposals to construct or modify power plants with the capacity to generate at least 25 megawatts.
First, DEC proposed carbon dioxide emissions limits for new and expanded power plants (so long as the expansion adds at least 25 megawatts of capacity). These limits are measured on the basis of a 12-month rolling average by dividing the total emissions of CO2 by the total megawatts generated or fuel input into the plant.
The limits are:
- 925 pounds of CO2 per megawatt-hour of electrical output, or 120 pounds of CO2 per million Btu of input for combined cycle combustion turbines, stationary internal combustion engines firing only gaseous fuel, or boilers firing over 70% fossil fuel, and
- 1450 pounds of CO2 per megawatt-hour, or 160 pounds of CO2 per million Btu of input for simple cycle combustion turbines or stationary internal combustion engines firing either liquid fuel or a combination of liquid and gaseous fuel.
Second, DEC proposed regulations governing analysis of environmental justice issues when power plants are sited under the reauthorized Article X of the Public Service Law. According to DEC Commissioner Joe Martens, these are the first such regulations in the country.
The proposed environmental justice regulations require an initial analysis of the area immediately surrounding the proposed facility to determine whether that area includes an “environmental justice area” containing a minority or low-income community that may already bear a disproportionate share of environmental impacts. If so, an application to site a power plant must include an analysis of any significant adverse environmental impacts to the environmental justice area resulting from the plant’s operation or construction. Such an assessment must include:
- An analysis of the plant’s cumulative impact on air quality,
- A comprehensive analysis of the environmental justice area, and
- A comparison of that area to the county or other adjacent communities (for facilities proposed within New York City, this includes the entire city) to determine if the impacts to the environmental justice area are disproportionate.
The regulations also require the applicant to identify, analyze, and implement mitigation measures that will avoid any disproportionate significant adverse environmental impacts to the maximum extent possible. If the impacts cannot be avoided or minimized, the applicant must offset the impacts.
The proposed environmental justice regulations state that they are “not intended to … create any right to judicial review involving the compliance or noncompliance of any person with this Part.” DEC also acknowledges, however, that the Power NY Act “expressly provides for judicial review” of power plant siting determinations. Thus, it is unclear to what extent, if any, the proposed regulations’ disclaimer precludes judicial review of the Act’s mandatory environmental justice analysis, or whether such limitation would be deemed consistent with the underlying statute.
Comments on both sets of proposed regulations are due by 5 p.m. on March 15, 2012. Information on filing comments is available here.
For more information, contact Jeffrey Gracer.
December 8, 2011
On November 17, 2011, the New York State Public Service Commission (“PSC”) decided to postpone its decision on Covanta Energy Corp.’s (“Covanta’s”) petition to classify waste-to-energy power as “renewable” under New York’s Renewable Portfolio Standard (“RPS”). New York’s RPS aims to produce 30% of the state’s electricity from “renewable sources” by 2015, up from approximately 21% in 2009.
To attain that goal, the RPS provides production incentives for renewable electricity generation, funded through a surcharge on ratepayers’ electricity bills and administered by the New York State Energy Research and Development Authority (“NYSERDA”). Eligible renewable electricity generators participate in a competitive solicitation process for the incentives, which are provided based on the megawatt-hours of renewable electricity delivered toNew York ratepayers or used on site. Additionally, the generator transfers all rights to the “RPS attributes” to NYSERDA, so the generator cannot benefit from the resulting pollution reductions under other emissions trading programs.
Most of the incentives to date have gone to wind, hydroelectric, biomass, and landfill gas projects, though a range of other sources – from solar, tidal and wave energy to anaerobic digesters converting agricultural biogas into electricity and heat – are also eligible. Covanta’s prior requests to include waste-to-energy facilities in the RPS, in 2004 and 2010, were both denied by the PSC.
Covanta’s petition presents a controversial question, as waste-to-energy plants provide an alternative to fossil fuels, but simultaneously present a number of environmental issues that are different from those associated with traditional renewable energy sources. Environmentalists and the New York Attorney General’s Environmental Protection Bureau have opposed the petition, citing, among other things, concerns regarding mercury emissions.
Proponents of waste-to-energy facilities argue that incineration for power production is better for the environment than transporting the waste to landfills. Covanta submitted a letter to the PSC on December 6th clarifying its position and highlighting the greenhouse gas benefits of waste-to-energy facilities. Covanta reasons that environmental benefits from waste-to-energy production make waste-to-energy a more environmentally-attractive option than landfill gas recovery, a method which is currently RPS-eligible.
A middle ground approach has been adopted in other states, including Connecticut, New Jersey, Massachusettsand Pennsylvania, whereby waste-to-energy facilities may receive subsidies, but not to the same degree as their zero emissions renewable generator counterparts. DEC officials have supported this compromise as an appropriate measure in the event that the PSC decides to allow waste-to-energy plants in the RPS.
For more information on the firm’s practice in the areas of energy and waste-management, contact Jeff Gracer and Paul Casowitz.
Update (December 14, 2011): In a recent letter to the PSC, Covanta withdrew its petition to classify waste-to-energy power as renewable under the New York RPS.
August 18, 2011
The New York City Department of Environmental Protection (“NYCDEP”) recently released a report discussing the economic and environmental effects of a hypothetical retirement of Indian Point Energy Center (“Indian Point”), which comprises two large nuclear generation units in Cortlandt, New York in the Lower Hudson Valley. The report discusses some of the negative implications of shutting down such a major generator of electricity. Nuclear power results in no air pollution and has low marginal costs to generate electricity. As a result, the report concludes that most potential replacements for Indian Point would result in higher electricity prices and more air pollution. The report estimates that retiring Indian Point could increase costs to consumers across New York State by up to 10%, or over $1 billion dollars per year, starting in 2016. The report also found that retiring Indian Point could result in substantial increases in local air pollutants and greenhouse gases.
In order to continue operating over the long term, Indian Point needs to be re-licensed by the U.S. Nuclear Regulatory Commission and needs a new water quality certificate from the New York State Department of Environment Conservation. New York Governor Andrew Cuomo’s longstanding position is that Indian Point should be shut down because of the risks that it may pose to nearby populations, including those in New York City.
Gov. Cuomo recently signed legislation that reinstates Article X of the Public Service Law. Article X centralizes and streamlines the siting approval process for new power plants in New York. Part of the justification for this legislation was that streamlining siting approval would make it easier to replace Indian Point.
Entergy, the owner of Indian Point, continues its campaign to re-license the plant; notable public relations efforts include maintaining a dedicated twitter feed and reportedly attempting to hire former Mayor Rudolph Giuliani to be a spokesman for the safety of the plant.
Sive, Paget & Riesel represents the Town of Cortlandt in the ongoing state and federal proceedings relating to Indian Point’s proposed relicensing.
Mark Lebel is a Summer Associate at Sive, Paget & Riesel
June 6, 2011
The nation’s first tidal energy power plant may take shape in New York’s East River, under a pilot project recommended for approval last month by the Federal Energy Regulatory Commission (“FERC”). In December 2010, Verdant Power applied for a license to install 30 underwater turbines between Roosevelt Island and Queens, which would enable tidal power to be sold over the national electric grid for the first time ever.
Tidal power represents an often-overlooked but growing renewable energy source, more predicable than wind or solar power, but often encumbered by high start-up costs. The strong, fluctuating currents in the East River – which is actually a tidal strait between the New York Harbor and the Long Island Sound – make this water body an ideal location for the generation of tidal energy. Verdant previously tested six tidal turbines in the proposed project location; they were used to power a Gristedes supermarket and a parking garage on Roosevelt Island.
The need for FERC licensing and other federal approvals triggered the National Environmental Policy Act (“NEPA”), requiring an analysis of the project’s significant, adverse environmental impacts. On May 3, FERC released an Environmental Assessment reporting no such impacts, thereby allowing the project to move forward without a more intensive Environmental Impact Statement. In particular, with respect to local fisheries, FERC based its Finding of No Significant Impact on its finding of only “minimal impacts on aquatic resources” from Verdant’s prior turbines, and on the company’s plans to conduct additional monitoring throughout the phase-in of its new plant. The results of this monitoring, however, could affect analysis under NEPA for future tidal projects.
June 1, 2011
New Jersey Governor Chris Christie announced Thursday, May 26 that New Jersey would withdraw from the Regional Greenhouse Gas Initiative (“RGGI”), a cap-and-trade initiative of 10 northeastern and Mid-Atlantic states to reduce greenhouse gas emissions from the power sector. New Jersey is the first state to withdraw from RGGI.
At a news conference announcing his decision, Governor Christie stated that a review of RGGI showed that “this program is not effective in reducing greenhouse gases and is unlikely to be in the future. . . . [T]he whole system is not working as it was intended to work.” He stated further that the reduction of greenhouse gases in New Jersey was due to the state’s increased use of natural gas and decreased use of coal, which were driven by “the market and not RGGI.” Governor Christie also stated that RGGI “does nothing more than tax electricity and tax our citizens and tax our businesses with no discernible or measurable impact upon our environment.”
In response to Governor Christie’s announcement, the remaining 9 states issued a statement affirming their commitment to RGGI and confirming that the next carbon allowance auction, scheduled for June 8, will take place. However, the states will have to evaluate how the withdrawal will affect those of New Jersey’s allowances that are currently in circulation.
Several of the member-states issued individual statements reiterating their support for RGGI. For example, New York Department of Environmental Conservation Commissioner Joseph Martens stated that “[t]he RGGI program has been extremely successful in supporting clean energy, reducing electricity bills and lowering greenhouse gas emissions throughout the region,” and that it has led “to savings for thousands of New York residents and businesses and to the creation of thousands of high quality jobs.”
The following are the current member-states of RGGI: Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New York, Rhode Island, and Vermont.
April 13, 2011
While the use of hydraulic fracturing to extract natural gas from shale has generated substantial concerns about its water quality and conventional air pollution impacts, such opposition has rarely focused on greenhouse gas (“GHG”) emissions. Instead, it has been widely assumed, including by some environmental organizations, that natural gas is the least harmful “bridge fuel” to reduce GHG emissions during a transition from coal to alternative energy sources. That core assumption was called into question this week following the release of a new study finding that total GHGs from natural gas extracted through hydraulic fracturing (“shale gas”) may match or exceed those from coal. The validity of these conclusions, however, is already the subject of intense debate.
The study, by three Cornell University researchers, reported that the primary GHG emissions from hydraulic fracturing are not carbon dioxide from the burning of natural gas, but methane released during the fracturing process, the operation of the wells, and the transportation and storage of the fuel. Because methane is a far more potent greenhouse gas than carbon dioxide, the study concluded that over a 20 year time frame “the GHG footprint for shale gas is at least 20% greater than and perhaps more than twice as great as that for coal.” Carbon dioxide remains in the atmosphere for longer than methane, but even over a 100-year period the study found that shale gas emissions were “comparable” to coal emissions. The study’s data and methodology have already been disputed by the oil and gas industry, principally because the assumed rate of fugitive emissions is at odds with industry standards and practices. The report’s authors acknowledge that better data is needed on the amount of methane emissions that leak or are otherwise lost during and after hydraulic fracturing operations, which is now likely to become a focus of increased attention.
Additional obstacles for fracturing proponents surfaced during a Senate Environment and Public Works Committee hearing yesterday, as an Environmental Protection Agency (“EPA”) official affirmed that drilling companies that use diesel fuel in hydraulic fracturing operations without a permit are in violation of Safe Drinking Water Act. A 2010 report revealed inconsistent positions among state environmental regulators concerning the use of diesel as a fracturing fluid, and last year EPA posted a statement on its website that: “Any service company that performs hydraulic fracturing using diesel fuel must receive prior authorization …” The Independent Petroleum Association of America and U.S. Oil & Gas Association are challenging that posting in the D.C. Circuit Court of Appeals, alleging that EPA imposed new substantive requirements without undertaking the rulemaking procedures required by the Administrative Procedures Act (“APA”).
In New York, a bill that would have required the disclosure of hydraulic fracturing chemicals was rejected in the Senate Environmental Conservation Committee yesterday. The legislation, S. 425, drew support from a majority of Committee members voting, but fell one vote short of the eight required to bring it to the Senate floor. Fracturing disclosure legislation is also pending in the United States Congress. While such disclosure is not currently required nationwide, a new website from the Ground Water Protection Council and the Interstate Oil and Gas Compact Commission, funded in part by the Department of Energy, has collected chemical data voluntarily submitted by participating oil and gas companies and published it in a searchable database.
December 14, 2010
On December 13, Governor David A. Paterson issued Executive Order No. 41, effectuating a moratorium on horizontal hydraulic fracturing drilling for natural gas (known as “fracking”) until at least July 1, 2011, but allowing vertical fracking. Two days earlier, the Governor vetoed legislation that would have imposed a moratorium on horizontal and vertical fracking until May 15, 2011.
The Governor’s Executive Order requires the New York State Department of Environmental Conservation (“NYSDEC”) to finish its review of public comments submitted to a Draft Supplemental Generic Environmental Impact Statement (“SGEIS”) analyzing the impacts of fracking, and make any necessary revisions. The NYSDEC must also publish a revised Draft SGEIS by June 1, 2011, accept public comments on that document for at least thirty days, and issue a report to the Governor identifying any regulatory conditions that must be included in fracking permits to protect public health and the environment.
In a press release issued December 11, Governor Paterson stated that he vetoed the legislation because, although it “was well intentioned, [it] would have a serious impact on our State if signed into law. Enacting this legislation would put people out of work – work that is permitted by [NYSDEC] and causes no demonstrated environmental harm, in order to effectuate a moratorium that is principally symbolic.”
Representatives of the oil and gas industry applauded Governor Paterson’s veto of the bill. While praising the Executive Order’s moratorium on horizontal fracking and its requirement of additional public review, some environmental groups expressed concern that the Order includes a loophole for vertical drilling by oil and gas companies. The Natural Resources Defense Counsel (“NRDC”) stated that oil and gas companies may drill vertical wells now, with the intention of converting them to horizontal wells later, which could potentially circumvent the on-going environmental review process. NRDC also expressed concern that the industry could drill a number of closely spaced vertical wells in lieu of one horizontal well, creating “significant additional surface disturbance and environmental impacts.”
NYSDEC reviewed over 14,000 comments to the Draft SGEIS over the course of several months. Because the Draft SGEIS must now be revised and re-released for public comment, which NYSDEC must review, the issuance of the Final SGEIS will most likely be delayed until at least the fall of 2011.
Older Posts »
|
|
| |
|
