ESG & Industry Updates

Yesterday, the Senate voted to block President Obama’s Clean Power Plan with respect to the new EPA regulations on Power Plant Emissions announced in August, as well as blocking the moratorium on new Coal Fired Plant building. (For a refresher on those regulations, read this “Obama, EPA Announce First-Ever Federal Limits on Power Plant Emissions” )

The Senate challenged the regulations under the somewhat obscure Congressional Review Act which allows the legislature to vote to block enactment of new federal regulations as long as they do so within 60 days of publication. It was a fairly clever move, given the rules came out in August, but because technically they were not published until October, they were fair game.

The rationale behind using the Congressional Review Act cited was that nearly half of the States are suing the EPA over these specific parts of the Clean Power Plan, and several are vowing to refuse to comply pending said lawsuits.

The Review Act also is not subject to filibuster and only requires a simple majority, not 60 votes – so the final count of 52-46 (on both the emissions regulation vote, and the moratorium vote) was sufficient to block the regulations. That is, until it hits the President’s desk, where it will immediately be vetoed. It’s extremely unlikely that a veto could be overridden, so essentially this legislation will drop off in the same fashion the Keystone Bill did earlier this year.

The Power Plant portion of the multiple Climate Change resolutions proposed by the Administration is essentially the centerpiece to the overall plan. The timing of the vote is not advantageous for the Administration because, as we’ve mentioned, the Climate Change Summit is to be held in France a few days from now.

 Essentially, the regulations are critical for the U.S. if a broad Climate Change agreement is to be secured at the conference, which is really the entire point of it – to broker a global agreement.  Without being able to cite massive overhauls and regulation of emissions on a broad scale, the U.S. has much less of an ability to point to what we are doing as a model for a global pact.  

In a surprise move Monday, TransCanada issued a request to the U.S. State Department that they pause the ongoing review of the project until the legal challenges in Nebraska are settled. (Interestingly and somewhat ironically, this is the exact same reason Secretary of State John Kerry gave for why the review was taking so long when asked last year.)

The project that we’ve all been debating for the past several years was looking at a likely rejection from the State Department and the prevailing theory is that TransCanada would like the review process to linger on, in the hopes that the proposal lands in front of a more friendly Administration in 2016, after the Presidential Elections.

The White House put forth this same theory, that the petition was a play to get a more friendly administration to rule on the project and spokesman Josh Earnest said the White House will summarily dismiss the petition for that reason.

TransCanada denies there is any politics at play. Even if it were political, however, the political moves are certainly not one-sided.

The reason cited for the timing of the petition is because Obama is expected to veto the project ahead of the upcoming UN Summit in Paris on Climate change, in order to make a statement on the U.S.’ commitment to battling Climate Change.  Not an apolitical move in and of itself, no?  (In fairness, it has become pretty clear that the President intended to veto no matter what the timing was.)

The Keystone projects’ prominence in the political realm had substantially faded in the face of tumbling oil prices but the issue has come up again with the beginning of the election cycle, with Presidential Candidates on both sides being asked their positions on the project in interviews and debates. The bid from TransCanada this week only added fuel to that fire. 

Whether the move was political, or simply meant to re-raise the issue, it most certainly puts pressure on the Administration to make a decision. That can’t be exciting for the President.  One would think he would rather pass it on to the next person anyway and avoid both the gains and fallouts politically from making the decision.

It will be interesting to see if the veto comes down before Paris, or if the project trudges on longer and longer despite a refusal to pause. 

On Monday (August 3^rd), President Obama unveiled his latest initiative to combat Climate Change, in the form of new proposed regulations on power plant emissions. The plan would reduce emissions from power plants to 32% below the 2005 benchmark levels by 2030 (by 870 megatons). This is the first time federal limits on this type of emissions would be enacted, and the EPA’s Clean Air Act is cited by the administration as allowing for said federal limits.

From the EPA press release on the new regulations:

“By 2030, the plan will cut carbon pollution from the power sector by nearly a third and additional reductions will come from pollutants that can create dangerous soot and smog, translating to significant health benefits for the American people. By 2030, emissions of sulfur dioxide from power plants will be 90 percent lower and emissions of nitrogen oxides will be 72 percent lower, compared to 2005 levels”

(You can read the full EPA Press Release here: EPA Newsroom )

The estimated cost of the program is $8.4 billion annually, according to an EPA spokesperson, and the benefits are projected to be between $34 and $54 billion per year, including health benefits.

Under the rule, individual states must draft and adopt compliance plans by 2018 and meet initial projected targets by 2022.

Industry groups and officials are obviously not thrilled with the new rule, citing potential billions in infrastructure costs associated with moving away from coal power generation. Additionally, the plan includes a target of the US generating 28% of its power via “renewable” sources versus the current 13% level – this does not include natural gas, and further complicates how exactly states and utilities can make changes to hit these targets.

The earlier draft in 2014 included more assumptions that the move would be from coal to natural gas (which generates around a 50% reduction in carbon emissions), this ruling in that regard is even more cumbersome, with the additional costs and difficulty of going from coal to wind, solar, or nuclear – when it's already expensive to go from coal to natural gas.

Critics are citing this as another example of the “War on Coal” and Legislators from coal heavy states cite job and revenue hits they believe the new rule will cause. Some Attorneys General have already signaled they are filing suit, arguing the rules go far beyond the Clean Air Acts provisions, and some states have declared they will refuse to follow the guidelines.  Of note however, is that recently the Supreme Court ruled in favor of the EPA re: the Clean Air Act and methane regulations, and it may very well do so again on this case.

We shall see - stay tuned!