In the summer of 2019 Governor Cuomo and the New York State Legislature passed the Climate Leadership and Community Protection Act (CLCPA) which was described as the most ambitious and comprehensive climate and clean energy legislation in the country when Cuomo signed the legislation. I have maintained that this legislation is deeply flawed because it presumed that its aspirational targets could be met without doing a feasibility study, that is to say they put the cart before the horse. Before I can prepare a post on the differences between the new emissions inventory and the old one I want to discuss another flaw in the structure of the act.
I am a retired air pollution meteorologist with nearly 40-years experience analyzing the effects of meteorology on electric operations. I believe that gives me a relatively unique background to consider the potential quantitative effects of energy policies based on doing something about climate change. I have been following the implementation of the CLCPA and posting on it as it develops. The opinions expressed in this post do not reflect the position of any of my previous employers or any other company I have been associated with, these comments are mine alone.
CLCPA greenhouse gas emissions (GHG) reporting
In § 75-0105, the CLCPA mandates a statewide greenhouse gas emissions report. No later than two years after the law was promulgated, and each year thereafter, the New York Department of Environmental Conservation (DEC) must issue a report on statewide greenhouse gas emissions from all greenhouse gas emission sources in the state. The report is required to “include an estimate of what the statewide greenhouse gas emissions level was in 1990”. It is supposed to be a “comprehensive evaluation” not only of direct emissions but also include an “estimate of greenhouse gas emissions associated with the generation of imported electricity and with the extraction and transmission of fossil fuels imported into the state”. There are explicit requirements to ensure it is high quality: “The statewide greenhouse gas emissions report shall utilize best available science and methods of analysis, including the comparison and reconciliation of emission estimates from all sources, fuel consumption, field data, and peer-reviewed research” and “shall clearly explain the methodology and analysis used in the department’s determination of greenhouse gas emissions and shall include a detailed explanation of any changes in methodology or analysis, adjustments made to prior estimates, as needed, and any other information necessary to establish a scientifically credible account of change. Finally, it requires DEC to hold at least two public meetings to seek public input regarding the methodology and analysis.
The next section in the CLCPA, § 75-0107, Statewide greenhouse gas emissions limits, mandates that “No later than one year after the effective date of this article, the department shall, pursuant to rules and regulations promulgated after at least one public hearing, establish a statewide greenhouse gas emissions limit as a percentage of 1990 emissions, as estimated pursuant to section 75-0105 of this article”. There also is a requirement that “in order to ensure the most accurate determination feasible, the department shall utilize the best available scientific, technological, and economic information on greenhouse gas emissions and consult with the council, stakeholders, and the public in order to ensure that all emissions are accurately reflected in its determination of 1990 emissions levels”.
There is a contradiction in these two sections. How can § 75-0107, Statewide greenhouse gas emissions limits, establish a limit estimated pursuant to § 75-0105 which is due later than this requirement? Both sections mandate the use of the “best available” information and consultation with the public, but the timing requirements preclude that from happening.
In order to meet the requirements of § 75-0107 New York State Department of Environmental Conservation (DEC) Commissioner Basil Seggos released proposed regulation Part 496 to establish statewide greenhouse gas emission limits based on 1990 emissions on August 14,2020. In my opinion, the process is not meeting the requirement to use the “best available” or consult with the public. I show below that the description of the emission inventory methodology is less extensive than the previous NYS GHG emission inventory and much less comprehensive that the EPA inventory that I would define as the “best available”. Consultation with the public is not possible until November. In order to meet the legislative mandate schedule, the rule has been officially proposed. During the comment period, consultations with the public are forbidden and the only recourse is to comment on the regulation. In my opinion, consultation with the public should be an iterative process with multiple opportunities to interact with the DEC and respond to comments by others.
Documentation
Up until this time the “official” New York greenhouse gas emission inventory was prepared by the New York State Energy Research and Development Authority (NYSERDA). This inventory of greenhouse gas emissions in the state follows the standard Intergovernmental Panel on Climate Change (IPCC) protocol. The July 2019 edition is 73 pages long and there is an accompanying fact sheet and a 196 page supplement: New York State Oil and Gas Sector Methane Emissions Inventory.
In April 2020, the US Environmental Protection Agency its annual Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2018. The complete report is 733 pages, has ten chapters and nine appendices. In my opinion that sets the standard for the “best available” supporting information for an emissions inventory.
In order to meet the CLCPA deadline for an emission limit one year after promulgation, DEC was forced to propose Part 496, Statewide Greenhouse Gas Emission Limits. That includes an emissions inventory for 1990 but the only documentation is in the Regulatory Impact Statement. The section on needs and benefits includes a description of sectoral methods and results that comprises the entirety of the documentation for the 1990 emissions inventory. The documentation is on the order of 20 pages so it clearly is not “best available”.
Stakeholder Input
According to the Regulatory Impact Statement:
“The Department conducted pre-proposal, stakeholder outreach starting the date on which the CLCPA went into effect, or January 1, 2020, through May 2020. This included two public webinars held on February 14 and 28, 2020 to discuss the scope and key considerations of this rulemaking as well as other presentations and meetings with various stakeholders, including members of the Climate Action Council, by request. For example, the Department presented to the Manufacturers Association of Central New York and the Air and Water Managers Association in May 2020 and participated in meetings with Covanta, National Fuel Gas, and natural gas transmission pipeline companies62 in April 2020. The Department also consulted with other State agencies and authorities, including NYSERDA, the Department of Transportation, the Department of Public Service, and the Department of Agriculture and Markets. The Department reviewed the feedback received in this stakeholder outreach as part of further developing Part 496.”
The Regulatory Impact Statement for proposed Part 496 explains that DEC worked with NYSERDA to incorporate the CLCPA requirements that differ from the IPCC protocol and conduct new analyses as needed for the rulemaking. They also noted that:
“Some of these analyses were also assisted by a NYSERDA consultant (Eastern Research Group, Inc) and subcontractor (Synapse Energy Economics, Inc) and reviewed by subject matter experts from the US Environmental Protection Agency, the US Department of Energy, the Environmental Defense Fund, and university partners. Additional stakeholder input is described later in this document. New analyses were not required in all cases, as the new requirements of the CLCPA do not completely differ from the methodology historically used by NYSERDA. As such, many components of the estimates provided here are the same or similar to the previous State inventory.”
One of the big changes in the proposed 1990 emissions inventory is how methane is handled. A primary reference in the RIS is a Science article that was also published as an Environmental Defense Fund (EDF) report that claims “that in 2015, supply chain emissions were ∼60% higher than the U.S. Environmental Protection Agency inventory estimate”. Given that the paper is cited as “proof” that the proposed bottom-up baseline is valid, it is inappropriate for New York policy to be reviewed by subject matter experts from EDF that were from the organization that published such an influential paper on the methane emissions.
I believe that an effective public stakeholder process has to be an iterative process including a DEC document for discussion, a DEC presentation of their rationale, a chance for the public to respond with questions and comments, a response to those comments that is available for the public to consider, and another chance to provide comments. DEC held webinars that were very general in nature and offered little opportunity for technical questions. Stakeholders responded with their thoughts but there was not another round of discussion. Instead the inventory went into rule making and it is impossible to get answers to anything but general questions. The rule-making process requires a public hearing but that won’t be interactive either. It is only an opportunity to publicly submit comments which, frankly, can be done more effectively in written comments.
Conclusion
There are serious problems with the promulgation of an emissions standard based on an unvetted 1990 emission inventory. There is no opportunity for meaningful comments based on a fully documented inventory. The CLCPA inconsistency of the timing of the comprehensive statewide greenhouse gas emissions report that is issued a year after the emissions standard is required to be promulgated is an indictment of the political process that produced the CLCPA. The rush to meet the schedule has over-ridden the alleged goal of using the “best available” inventory.
My fear that the CLCPA answer is already in the back of the book appears to be coming true. The emission inventory is only one aspect of this massive transition. If there is no opportunity for meaningful discourse for this element what hope is that there will be opportunities to fully evaluate other aspects of the rule. Not only is the cart before the horse, the cart is fully loaded without the opportunity to examine its contents.
Pragmatic Environmentalist of New York 