Renewable Portfolio Standards: An Avenue for Fostering Alternative Energy Projects
Government’s response to the focus on climate change must be holistic and visionary. One regulatory avenue for fostering alternative energy projects that assist in the battle against climate change is a Renewable Portfolio Standard (RPS). At its core, an RPS is a requirement that retail electricity suppliers purchase a certain percentage or quantity of renewably generated energy. Currently 25 states and Washington DC have mandatory targets for retail electricity purchases and 4 states have non-binding goals. In 2007 the House of Representatives passed an RPS, but the US Senate did not.
While most RPS programs share a common goal of encouraging the production of renewably generated energy, they vary in terms of purchase goals, timeframes for compliance and eligible technologies. Wind, solar, and geo-thermal are eligible under most of the RPS programs, but eligibility criteria varies widely with respect to other technologies and fuel sources such as bio-mass, landfill-gas, municipal solid waste, hydropower, and fuel cells. While the advantages in terms of climate change impacts associated with renewably generated energy may seem obvious (no emissions), less obvious may be the results stemming from the expansion of several states’ RPS programs into non-renewable areas.
The variety of RPS programs has allowed for many designs and policies to be demonstrated. Although not technically renewable, combined heat and power, energy efficiency and demand side energy efficiency have found their way into several of the RPS programs. By reducing demand for electricity, air emissions from current fossil fuel fired power plants is reduced to the extent that power is not needed. Arguably, the impact from reducing the demand of one megawatt of power, should have the same air emissions impact as the creation of one megawatt of renewably generated power and as such the nexus to demand management and energy efficiency in an RPS becomes self evident. Energy efficiency, demand management, and renewable energy should co-exist in an RPS and are a fundamental part of the future of our energy delivery system. As states continue to adopt and refine RPS programs, policy makers should bear in mind what this future of a sustainable energy delivery system may look like.
The US Department of Energy (DOE) has promoted (in part) a vision of the future that includes a hydrogen based energy delivery system that begins with small-scale distributed generation (DG) systems fueled by hydrogen. These DG systems provide stationary power and may also dispense hydrogen for hydrogen-fueled vehicles. DOE has funded several projects that evaluate the potential for the generation of wind-to-hydrogen, solar-to-hydrogen, geothermal-to-hydrogen and hydro-to-hydrogen, hydrogen generation systems. The common denominator is that renewably generated electricity is used to power an electrolyzer to generate hydrogen. Renewably generated hydrogen is the future. To bridge the gap to the future, however, Renewable Portfolio Standards should be developed that include hydrogen generated from fossil fuels.
One notable Wind-to-Hydrogen (also Solar-to-Hydrogen) demonstration funded by DOE is in Hawaii at the Kahua Ranch test site. There, the wind turbine has been configured to produce 48VDC, the solar array has been redesigned to produce 48VDC and each of these generation sources is connected to 24 battery cells allowing 48VDC short term electricity storage. The electricity is used to power an electrolyzer that generates hydrogen which is then stored in a low pressure hydrogen storage tank. When electricity is needed the hydrogen is used to run a 48VDC Plug Power Gencore Fuel Cell system.
Fuel cells utilize hydrogen and hydrogen-rich fuels to generate electricity and useful heat in a remarkably efficient way. A fuel cell is an electrochemical device that combines hydrogen and oxygen to create electricity heat and water. Because the conversion of hydrogen occurs without combustion, fuel cells do not produce the emissions normally associated with combustion such as carbon dioxide, oxides of nitrogen, carbon monoxide and particulates. Fuel cells are secure, reliable and high-quality power at the point of demand, with some systems able to provide high quality thermal energy as well as electric energy. Because many renewables like wind and solar produce intermittent power, a natural symbiotic relationship exists since fuel cells have the ability to generate electricity regardless of weather conditions. Fuel cells can act as a power storage technology converting off-peak generated wind and solar energy to peak power. Clean power that emits virtually no pollution during the power generation is a natural complement to intermittent renewable technologies such as wind and solar.
Introducing fuel-neutrality for fuel cells into every RPS in the short term will provide a bridge to renewably generated hydrogen. Currently, supplies of renewably generated hydrogen are scarce and the delivery systems not readily available. Simply put, today’s fuel cells that use existing fossil fuels (much more efficiently and cleaner than any combustion engines) can also use hydrogen from renewable sources as they become cost-competitive and the production and delivery of renewably generated hydrogen catches up with the demand. In this manner, the use of hydrogen from the conversion of hydrocarbons is seen as a temporary expedient to the long-term development of fuel cells. Moreover, even when they run off of fossil fuel derived hydrogen, the inherent efficiencies of the fuel cell systems, and the lack of combustion is an incremental advancement in the fight against climate change.
The vision of the future displayed in the Kahua Ranch project will only be advanced in the short term if fuel cells that utilize hydrogen reformed from fossil fuels are made a part of any federal RPS. At its core, a RPS should promote technologies that have a legitimate chance of substantially lowering pollution, reducing stress on the utility grid, spurring economic development, increasing our energy independence and fostering demand for hydrogen production and delivery systems that will eventually be renewably generated.
Initially, it may sound counter intuitive, but by allowing hydrogen generated from fossil fuels in any RPS, a critical component to generating the demand for renewably generated hydrogen will be in place and our path toward a more sustainable and energy independent future will be advanced. This model is not without precedent. New York, Pennsylvania, Connecticut, Minnesota, Colorado, Maine all include fuel cells as renewable resources regardless of the fuel supplied.
The US's Existing Climate Protection Laws: Will They Work?
Less than a decade has passed since the accepted wisdom was that the US would enact a greenhouse gas control regime to implement the framework climate treaty and the Kyoto Protocol, which the Senate would have ratified after much debate. Yet today it appears that our national climate strategies are going off in unanticipated directions that would have astonished the climate pundits of ten years ago.
Last December, Congress enacted a fuel, vehicle mileage, and overall energy efficiency law that will clearly help lower carbon emissions. The Senate will vote on a comprehensive climate bill in June, if the sponsors have their way, but that bill is a far cry from implementing legislation for Kyoto. The states may soon have blanketed a large part of the nation with regional and state climate initiatives that will be so pervasive that they will set the bar for the key components of over-arching federal legislation – and preserve a major role for state and local governments. There is even talk of bilateral climate agreements with India and China, and also a totally new international approach that would target greenhouse gas emissions sector-by-sector across the economies of the developed nations.
Furthermore, while all this is taking place, it appears that the Environmental Protection Agency and the environmental community have discovered – with the help of the Supreme Court – that the US has had a greenhouse gas regulation law in place for decades, well before Kyoto. By ruling a year ago that greenhouse gases are “air pollutants” under the motor vehicle emissions control provision of the Clean Air Act, the Court made the entire Act a little pregnant with the potential for federal regulation of all manner of greenhouse gas sources – the thousands of sources controlled under state implementation plans to achieve federal ambient standards, new and modified stationary sources, emitters of air toxics, sources in clear-air areas of the country, and others regulated under the Act. The particular trigger for new motor vehicle emissions regulation is a statutory determination that greenhouse emissions may reasonably be found to endanger public health or welfare, but other Clean Air Act provisions contain the same or a similar trigger for greenhouse “air pollutants” as well.
The key Clean Air Act provisions involved were rather elegantly analyzed for a House subcommittee on April 10, 2008 by the EPA’s air program administrator Robert Meyers in 19 pages of testimony, which he prefaced by saying that a full explanation “could easily fill a text book.” The relevant sections, most of which are covered in the seven petitions states and private organizations have filed, are an alphabet soup of the Clean Air Act specialists favorite programs: NAAQS, SIPs, PSD BACT, Non-attainment RACT, NSPS, HAPS MACT, aircraft, ship, and locomotive emissions provisions, and the welter of road and non-road vehicle and equipment engine and fuel emissions requirements that the Act authorizes.
To plunge into the greenhouse ramifications of any one of these programs is to plunge deep. Our Ports and Harbors Practice, for example, is considering the myriad of greenhouse gas controls that may be relevant to shippers, port authorities, transportation networks, and others on, or on the way to or from, the nation’s ports and harbors.
The EPA has tried to put off the reckoning, but the Clean Air Act has been held to be applicable to greenhouse emissions. The question is, can we live with it – can we make it work as a climate statute? States and environmental groups appear at first to be saying yes, we can, but the EPA is skeptical and has initiated a national head-scratching over the issue. The groups are pressing for a court order for EPA to come clean and issue the endangerment finding, which the groups say they have conclusive evidence that the Agency has already made. The EPA has come to the brink of making the endangerment finding more than once, only to recoil from taking the first fateful step toward conscripting the Clean Air Act into the federal climate arsenal.
Recently, the Agency has contrived to prolong its agony. It announced that it would issue an advanced notice of proposed rule making this spring inviting the public to offer its comments on climate science (endangerment) and “the broader ramifications” to “many relevant sections of the Clean Air Act” of using it as the primary policy tool for controlling greenhouse emissions. These comments would then help the Agency issue a second proposed rule that would set forth the Agency’s views on how to comply with last year’s Court decision.
The environmental plaintiffs are pressing hard for a court order requiring EPA to make the endangerment finding. They argue that the Supreme Court’s decision leaves no room for the EPA to organize a national town hall meeting on the advantages and disadvantages of using the Clean Air Act to control greenhouse gases. They reason that the Court required the agency to make an endangerment finding or give cogent scientific reasons why it could not. No other paths lie open, they say.
The Agency’s invitation for public comment seems designed to resurrect its view, rejected by the Court, that the Act would provide only an “inefficient, piecemeal approach” to controlling emissions and that a regulatory scheme that included “all significant sources and sinks” would be best. Perhaps. But an agency rule making is not the place for this legislative debate, one which Congress has already initiated and seems inclined to bring to a conclusion in a time frame that may turn out to be less protracted than EPA’s two-step rule-making process is likely to be.
In fairness to EPA, regulating greenhouse emissions through the Clean Air Act is likely to be a bit like opening Pandora’s Box to find a Trojan Horse inside. The statute may reach greenhouse “air pollutants,” but just barely, and its extensive implementing provisions were not designed with climate protection in the front of the congressional mind. The Agency appears to have concluded, we think correctly, that if it regulates motor vehicle greenhouse emissions as the states and environmental groups demand, they have to act favorably on petitions that the groups have also already filed to regulate the greenhouse emissions from a full Mother Hubbard’s cupboard of emitter bones and snacks already alluded to – airplanes, ocean vessels, off-road and recreational vehicles, sources in mining, agriculture, and construction, outdoor power equipment, and the like. This may not be the systematic, finely tuned, and comprehensive solution the nation deserves to the climate challenge, but such is the logic of the situation in which US climate policy is now mired.
It may well be that the states and environmental plaintiffs are forcing the issue on the Clean Air Act, not actually expecting or even wanting to remake it as a climate protection statute. Their purpose may be to force Congress to reach the same conclusion EPA has reached and thus pressure Congress into enacting a comprehensive climate law before the courts turn the Clean Air Act into a greenhouse gas nightmare. Chairman John Dingell appears to have fallen hard for the strategy, recently calling for federal cap-and-trade legislation to correct the “hideous mistake” the Supreme Court made. But in the meantime, the EPA is obliged to try to reconcile existing law with demands for piecemeal greenhouse regulation under the welter of Clean Air Act provisions that various groups have lined up like dominoes, ready to ask the courts to tip over.
EPA’s strategy has been dismissed by state and environmental groups as one of delay until the Administration comes to an end January 20, 2009. Listening to the skillful but beleaguered EPA Administrator at press conferences on the President’s program lends some support to this view. But Administrator Johnson does make a point that while the Clean Air Act Endangerment Stew is simmering, Congress has enacted – in important part with Administration endorsement – a law that actually may lower vehicle and other carbon emissions below the steep upward trajectory they were on only a couple of years ago. The Energy Independence and Security Act (EISA) of 2007 specifies a national mandatory fuel economy standard, a “CAFE standard,” of 35 miles per gallon by 2020, which should, the White House says, increase vehicle efficiency by 40 percent. The new law also hikes the renewable fuels mandate passed in 2005 to 36 billion gallons by the year 2022 (although plenty of pundits have begun to point out the climate and air quality downside of corn ethanol.) The new Act includes a lighting efficiency requirement for phasing out incandescent bulbs by 2014 and lighting efficiency improvements of up to 70 percent by 2020. There are also significant appliance and federal operations energy efficiency requirements in the legislation.
Based on the President’s “20 in 10” program set out in his 2007 State of the Union message (20 percent reduction in gasoline use by 2010), the Administration’s other energy savings and “green” source programs, and the EISA, the EPA has argued, somewhat logically, that all these measures are more effective than – or at the least the functional equivalent of – the command-and-control regulations that may in time be served up from the Clean Air Endangerment Stew. In fact, EPA has suggested in the past that these steps comply legally with the Supreme Court’s decision in Massachusetts v. EPA. This is what the national town hall advanced notice of proposed rule making is all about. It is also the current version of the rule making that EPA once wanted to launch, i.e., a multi-departmental rule that would involve several statutes (including the Clean Air Act) and implement the President’s 20-in-10 agenda.
More fundamentally, the Clean Air Endangerment Stew has now locked the courts, the EPA, and Congress in a struggle over how tripartite constitutional government should approach climate policy, a classic separation of powers issue that only lacks the states to make this a battle over federalism as well. As we move forward on climate in Congress, it might be wise to heed the admonition of Chancellor Bismarck. “Do not ask how legislation and sausages are made.”
