On July 18, 2019 former New York Governor Andrew Cuomo signed the Climate Leadership and Community Protection Act (CLCPA), which establishes targets for decreasing greenhouse gas emissions, increasing renewable electricity production, and improving energy efficiency. I have been posting articles about the feasibility of the CLCPA targets and got the following comment in response to my post CLCPA Feasibility Relative to NYSERDA Patterns and Trends: “Please provide a cross reference to the fact that CLCPA includes nuclear power as acceptable form of renewable energy”. This post provides a more complete discussion than my reply.
I have written extensively on implementation of the CLCPA because I believe the solutions proposed will adversely affect reliability and affordability, will have worse impacts on the environment than the purported effects of climate change, and cannot measurably affect global warming when implemented. 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.
When I started researching this comment request, I was confident that the legislation actually listed nuclear as a renewable energy system. However, when I researched it, I found out I was wrong. Subsequently I discussed this with colleagues who are more attuned to New York policy and legislative considerations than I am. As is usual with any aspect of the CLCPA whenever you start to dig into the details there are complicating nuances.
Climate Change Regulations
There are three implementing regulations for the CLCPA legislation that became effective on January 1, 2020. Article 75 – Climate Change was added to the New York Environmental Conservation Law.
§ 66-p. Establishment of a renewable energy program was added to the New York Public Service law. Finally, § 54-1523. Climate adaptation and mitigation projects was added to the Environmental Protection Act.
For the purposes of this article the relevant regulation is § 66-p. “Establishment of a renewable energy program”. The pertinent amended language reads:
§ 66-p. Establishment of a renewable energy program.
1. As used in this section:
(a) “jurisdictional load serving entity” means any entity subject to the jurisdiction of the commission that secures energy to serve the electrical energy requirements of end-use customers in New York state;
(b) “renewable energy systems” means systems that generate electricity or thermal energy through use of the following technologies: solar thermal, photovoltaics, on land and offshore wind, hydroelectric, geothermal electric, geothermal ground source heat, tidal energy, wave energy, ocean thermal, and fuel cells which do not utilize a fossil fuel resource in the process of generating electricity.
2. No later than June thirtieth, two thousand twenty-one, the commission shall establish a program to require that:
(a) a minimum of seventy percent of the state wide electric generation secured by jurisdictional load serving entities to meet the electrical energy requirements of all end-use customers in New York state in two thousand thirty shall be generated by renewable energy systems; and
(b) that by the year two thousand forty (collectively, the “targets”) the statewide electrical demand system will be zero emissions. In establishing such program, the commission shall consider and where applicable formulate the program to address impacts of the program on safe and adequate electric service in the state under reasonably foreseeable conditions. The commission may, in designing the program, modify the obligations of jurisdictional load serving entities and/or the targets upon consideration of the factors described in this subdivision.
The renewable energy systems definition clearly excludes nuclear. My colleagues all agreed that was a deliberate choice. It also excludes renewable natural gas that is to say methane from landfills and other organic sources. That also was a deliberate design choice by the “anti-natural gas in any form” zealots who drafted the regulation.
The first electric system target in the public service law mandates 70% renewable energy by 2030. Clearly the intent was that 70% of the electric energy has to come from the defined renewable energy systems. Note that the 2040 100% Carbon-free Electricity target is for a different set of energy sources. Also note that there is a lifeline such that the Public Service Commission can modify the obligations to meet the target if there are issues with “safe and adequate electric service”.
In my conversation with colleagues who are more conversant about environmental policy in New York, I explained that my work suggests that meeting the 2030 target is impossible with 70% solar thermal, photovoltaics, on land and offshore wind, hydroelectric, geothermal electric, geothermal ground source heat, tidal energy, wave energy, ocean thermal, and fuel cells which do not utilize a fossil fuel resource in the process of generating electricity resources. A forthcoming post will delve into the numbers but for the moment trust that assessment.
The first policy question that comes up is the rationale behind the overly ambitious 2030 target. Ultimately the decision on that target was made by a few key individuals with former Governor Cuomo at the top. The first possibility is that the authors didn’t understand the magnitude of the effort needed and inadvertently chose an impossible target for the decision makers. Given the rhetoric that meeting the “climate change challenge is only a matter of political will” it is possible that they actually believe it. The second possibility is that political optics were the primary rationale despite recognition that the targets were overly ambitious. Given that we are talking about targets that are nine years away, cynics might wonder if this was the case with the presumption that the decision makers would be out of office by then or that the voters would have forgotten who passed the legislation.
The second policy question is what happens when it becomes obvious that the targets cannot be met. This question arises on several time frames for the 2030 target. The first time it comes up is in in the current planning phase. Preliminary modeling of all advisory panel recommendations to the Climate Action Council which includes all sectors of the economy indicates the collective recommendations fail to meet the near- and long-term emission reduction targets. The integration analysis presumably has to increase the emission reduction strategies until the plan meets the targets and that comes out later this year. There is a requirement for an on-going assessment of the status of emissions reductions relative to the targets so the question can come up once the strategies are implemented. Finally, in 2031 we will know for sure whether the 70% target was achieved.
What happens when it does become obvious that the target cannot be met? The 2040 target includes the language that the PSC may “modify the obligations of jurisdictional load serving entities and/or the targets” but it is not clear to me that allows changes for the 2030 target. The politicians who put the state in this bind could argue that these are just goals but the environmental advocates and renewable energy grifters have already started flatly stating that this is the law and that it must be enforced. While there are certainly legal constraints on litigation for this, there seem to be many lawyers willing to push the envelope on legal standing when it comes to suing deep pocket fossil fuel companies for alleged impacts of climate change. As a result, I suspect that failure to meet the targets will result in litigation.
There is another aspect of this that is relevant. The CLCPA did not incorporate any funding mechanism and it is wildly optimistic to think that the targets can be met without additional funding. The last legislative session considered the Climate and Community Investment Act (CCIA) that was intended to fund many aspects of the CLCPA. Once the costs and direct consumer impacts in the CCIA were estimated by some observers (there is yet to be an estimate of costs by the state agencies) there was a groundswell of disapproval, many legislators backed off support, and the legislation did not pass. Every indication is that next legislative session this bill or something similar will be back. The environmental community and environmental justice activists are going to be pushing for passage but will have to overcome the obvious problem of costs.
As I will show in a future post, there is no way that New York can expect to meet the 2030 target for 70% of the electric system energy requirements powered by the defined renewable energy systems of the CLCPA. In my original assessments of feasibility, I had the mistakenly believed that nuclear power could be used to help meet the 2030 target because that was the only way the state could come close but it turns out I was wrong. Nuclear is an acceptable source for the 2040 zero emissions electric system but cannot be used for the 2030 goal. It is a sign of the times that there are activists that want to shut down the upstate nuclear units as well and that will make the 2040 target more difficult. This post clarifies the definitions and addresses possible reasons why the legislation was drafted to make that distinction. I don’t believe there is any rationale for this that puts the authors of the legislation or the politicians that approved the law in a good light: they either knew and didn’t care or didn’t bother to check feasibility.
I am not sure whether there will be consequences for this particular aspect of the abominable CLCPA. As the implementation requirements are defined and impossibility of meeting this target becomes evident, I don’t see how this can continue to be a blind spot for New Yorkers. Hopefully the public will catch on soon that the costs for this virtue-signaling action will be significant and that New York’s contribution to global warming is so small that anything we do cannot have a measurable effect on the alleged warming from GHG emissions. If that does not end the nonsensical implementation, maybe when the legal requirements to mandate use of electric vehicles or ban the use of natural gas for home heating, cooking and hot-water will initiate protests. Unfortunately, many in industry agree with me that it might take a catastrophic blackout with impacts comparable to the Texas blackout in February 2021 to finally motivate voters to demand the repeal of the CLCPA.