The Climate Leadership and Community Protection Act (Climate Act) has a legal mandate for New York State greenhouse gas emissions to meet the ambitious net-zero goal by 2050. This post describes Climate Act requirements for the Climate Action Council responsible to develop the plan to meet that goal.
Everyone wants to do right by the environment to the extent that they can afford to and not be unduly burdened by the effects of environmental policies. I have written extensively on implementation of New York’s response to that risk because I believe the ambitions for a zero-emissions economy embodied in the Climate Act outstrip available renewable technology such that it will adversely affect reliability, impact affordability, risk safety, affect lifestyles, and will have worse impacts on the environment than the purported effects of climate change in New York. New York’s Greenhouse Gas (GHG) emissions are less than one half one percent of global emissions and since 1990 global GHG emissions have increased by more than one half a percent per year. Moreover, the reductions 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.
Climate Act Background
The Climate Act establishes a “Net Zero” target (85% reduction and 15% offset of emissions) by 2050. The Climate Action Council is responsible for preparing the Scoping Plan that will “achieve the State’s bold clean energy and climate agenda”. They were assisted by Advisory Panels who developed and presented strategies to the meet the goals to the Council. Those strategies were used to develop the integration analysis prepared by the New York State Energy Research and Development Authority (NYSERDA) and its consultants that quantified the impact of the strategies. That analysis was used to develop the Draft Scoping Plan that was released for public comment on December 30, 2021. Comments on the draft can be submitted until July 1, 2022.
This post was drafted as part of my analysis to determine how the comments will be considered by the Climate Action Council. As shown below there are specific mandates for the Scoping Plan and public comments in the Climate Act itself.
Climate Action Council in the Climate Act
The Climate Act defines the composition and responsibilities of the Climate Action Council in § 75-0103.
In this section I will summarize the sections of the law related to the Council and provide comments.
Section 1 establishes the Climate Action Council and describes its membership. Up until last month there were 22 members, but now another member has been added. Twelve members are agency heads appointed by the Governor. The remaining “at large” members are non-agency “experts”, two appointed by the governor, three each appointed by majority leaders of the Assembly and Senate and one each appointed by the minority leaders of the Assembly and Senate. It is not clear who decided to add a position and who chose the new member who represents labor unions. Naïve me would think it would require a change to the law.
Note the member responsibilities. All but three are high-ranking administrators which presumably means that in order to provide any meaningful responses they have to rely on their staff to provide synopses of the material presented to the Council so that they can make comments and keep up with their other responsibilities. Frankly I would be shocked if most of the agency heads do anything other than what they are told to do by the Administration. There are only three staff level people who I expect would have to provide comments based entirely on their own work.
I prepared a summary table of Council membership. Of the 23 members of the Council only 8 come from energy sector organizations or have some background in the energy sector. Four of the energy sector members are agency heads and two others represent renewable energy organizations. Gavin Donohue represents the Independent Power Producers of New York an organization that represents both renewable and traditional energy organizations. The only member from the traditional energy sector is Donna DeCarolis, President of National Fuel Gas. She is the only member outside of state agencies that has any responsibility for keeping energy available to customers and who has no ties to the zero-emissions agenda. On the other hand, there are four appointees and one agency head that are primarily interested in environmental interests. One of these members also represents environmental justice interests.
Section 2 notes that “at large members shall include at all times individuals with expertise in issues relating to climate change mitigation and/or adaptation, such as environmental justice, labor, public health and regulated industries.” It isn’t clear to me what this language intended. Does “include at all times individuals with expertise in issues relating to climate change mitigation and/or adaptation” mean they are all supposed to have climate change expertise representing environmental justice, labor, public health and regulated industries? I have not seen indications that many at large members have any particular expertise in climate change mitigation and/or adaptation albeit those terms are so loose to not have a lot of meeting. It is extremely telling that energy sector expertise is not mentioned as a specific criteria unless you assume that regulated industries refers to the energy utilities.
Sections 3 and 4 state that members will not be compensated and defines that the Commissioner of the Department of Environmental Conservation and head of the New York State Energy Research & Development Authority will be co-chairs.
One reason for this post is to try to understand how the Council will make decisions about the Scoping Plan. Section 5 states that “each member of the council shall be entitled to one vote”, and that “The council’s approval and adoption of the final scoping plan pursuant to this section, and any subsequent interim updates thereto, shall require a supermajority of the council.”.
Section 6 explains how to replace vacancies. It is not clear to me that at-large members would change if the ruling party in the assembly or senate changes. I think it is important to note that the Governor directly chose two members and indirectly chose 12 others through the agency heads. Consequently, the administration controls the actions of the Council and that could change with a different governor.
Section 7 describes the Advisory Panels that provided “recommendations to the council on specific topics, in its preparation of the scoping plan, and interim updates to the scoping plan, and in fulfilling the council’s ongoing duties”. They no longer are active so I am not going to discuss them here. I did a posts on the Power Generation Advisory Panel and their enabling initiatives last year if you are interested.
Section 8 convenes a just transition working group. In my opinion, this was a political ploy to garner support from specific constituencies. With regards to my primary concerns related to the Scoping Plan this group has little influence.
Section 9 basically mandated that NYSERDA will provide the support necessary to complete the Scoping Plan.
Section 10 states that “The council shall consult with the Climate Justice Working Group (CJWG) established in section 75-0111 of this article, the Department of State Utility Intervention Unit, and the federally designated electric bulk system operator.” I believe that there is inordinate deference paid to the CJWG but will address that in a separate article. It is not clear to me whether the federally designated electric bulk system operator refers to the New York Independent System Operator (NYISO). If so, I have not seen many signs of that consultation. If not then excluding NYISO is an egregious error. In any event the New York State Reliability Council should have been included.
Section 11 defines the Scoping Plan and schedule for reporting:
The council shall on or before two years of the effective date of this article, prepare and approve a scoping plan outlining the recommendations for attaining the statewide greenhouse gas emissions limits in accordance with the schedule established in section 75-0107 of this article, and for the reduction of emissions beyond eighty-five percent, net zero emissions in all sectors of the economy, which shall inform the state energy planning board’s adoption of a state energy plan in accordance with section 6-104 of the energy law. The first state energy plan issued subsequent to completion of the scoping plan required by this section shall incorporate the recommendations of the council.
The New York Energy Plan is the “comprehensive roadmap to build a clean, resilient, and affordable energy system for all New Yorkers”. When I started working in the New York electric utility sector the emphasis was on reliability and affordability and the energy plan was developed by energy experts. The last Reliability Study was in 2012. Since then, the emphasis has shifted such that now politically correct “clean” energy is the top priority. In addition, the energy plan is no longer drafted by energy sector experts. Instead it is supposed to “incorporate the recommendations of the council” with minimal Council member energy system expertise. There is no question in my mind that reliability and affordability are at risk with this approach.
Section 12 sets the logistical requirements. It specifies that the draft scoping plan will be developed in “consultation with the environmental justice advisory group, and the climate justice working group”, hold regional public comment hearings, and provide “meaningful opportunities for public comment from all segments of the population that will be impacted by the plan”. Finally, it mandates that “On or before three years of the effective date of this article, the council shall submit the final scoping plan to the governor, the speaker of the assembly and the temporary president of the senate and post such plan on its website.”
In my opinion, the Climate Act and the scoping plan process have focused too much on specific aspects and not enough on the big picture. In Section 13 there are specific requirements to “ensure the attainment of the statewide greenhouse gas emissions limits”. The measures and actions considered in such scoping plan shall at a minimum include:
a. Performance-based standards for sources of greenhouse gas emissions, including but not limited to sources in the transportation, building, industrial, commercial, and agricultural sectors.
b. Measures to reduce emissions from the electricity sector by displacing fossil-fuel fired electricity with renewable electricity or energy efficiency.
c. Land-use and transportation planning measures aimed at reducing greenhouse gas emissions from motor vehicles.
d. Measures to achieve long-term carbon sequestration and/or promote best management practices in land use, agriculture and forestry.
e. Measures to achieve six gigawatts of distributed solar energy capacity installed in the state by two thousand twenty-five, nine gigawatts of offshore wind capacity installed by two thousand thirty-five, a statewide energy efficiency goal of one hundred eighty-five trillion British thermal units energy reduction from the two thousand twenty-five forecast; and three gigawatts of statewide energy storage capacity by two thousand thirty.
f. Measures to promote the beneficial electrification of personal and freight transport and other strategies to reduce greenhouse gas emissions from the transportation sector.
g. Measures to achieve reductions in energy use in existing residential or commercial buildings, including the beneficial electrification of water and space heating in buildings, establishing appliance efficiency standards, strengthening building energy codes, requiring annual building energy benchmarking, disclosing energy efficiency in home sales, and expanding the ability of state facilities to utilize performance contracting.
h. Recommendations to aid in the transition of the state workforce and the rapidly emerging clean energy industry.
i. Measures to achieve healthy forests that support clean air and water, biodiversity, and sequester carbon.
j. Measures to limit the use of chemicals, substances or products that contribute to global climate change when released to the atmosphere, but are not intended for end-use combustion.
k. Mechanisms to limit emission leakage as defined in subdivision eleven of section 75-0101 of this article.
l. Verifiable, enforceable and voluntary emissions reduction measures.
Section 14 specifies how the Council will develop the Scoping Plan. The Council is supposed to “Consider all relevant information pertaining to greenhouse gas emissions reduction programs in states in the United States Climate Alliance, as well as other states, regions, localities, and nations.” Unfortunately, I haven’t seen much sign in the draft plan that discusses the experience of other jurisdictions. I cannot help but wonder if that is related to the fact that experiences elsewhere have seen affordability and reliability issues.
Section 14 also states:
b. Evaluate, using the best available economic models, emission estimation techniques and other scientific methods, the total potential costs and potential economic and non-economic benefits of the plan for reducing greenhouse gases, and make such evaluation publicly available. In conducting this evaluation, the council shall quantify:
i. The economic and social benefits of greenhouse gas emissions reductions, taking into account the value of carbon, established by the department pursuant to section 75-0113 of this article, any other tools that the council deems useful and pertinent for this analysis, and any environmental, economic and public health co-benefits (such as the reduction of co-pollutants and the diversification of energy sources); and
ii. The costs of implementing proposed emissions reduction measures, and the emissions reductions that the council anticipates achieving through these measures.
c. Take into account the relative contribution of each source or source category to statewide greenhouse gas emissions, and the potential for adverse effects on small businesses, and recommend a de minimis threshold of greenhouse gas emissions below which emission reduction requirements will not apply.
d. Identify measures to maximize reductions of both greenhouse gas emissions and co-pollutants in disadvantaged communities as identified pursuant to section 75-0111 of this article.
In my opinion, the Draft Scoping Plan does not include “the total potential costs and potential economic and non-economic benefits of the plan for reducing greenhouse gases” so it does not “make such evaluation publicly available”. In order to meet that requirement, I believe that all control measures should be listed, with the assumptions used, with the costs and expected emission reductions for each one provided. The Draft Scoping Plan does include cost and benefit analyses. Unfortunately, even though specific cost numbers are not available my analysis disagrees with theirs.
In Section 15 there is a requirement to update the plan at least once every five years and “make such updates available to the governor, the speaker of the assembly and the temporary president of the senate and post such updates on its website”.
Section 16 includes another mandate to consider efforts at other jurisdictions. It states: “The council shall identify existing climate change mitigation and adaptation efforts at the federal, state, and local levels and may make recommendations regarding how such policies may improve the state’s efforts.”
Finally, Section 17 requires the council to “maintain a website that includes public access to the scoping plan and greenhouse gas limit information”.
Update on Public Hearings and Comments
At the May 26, 2022 Climate Action Council meeting there was an update on the public hearings held and a discussion on the plan to deal with the comments. The following slide notes the highlights. At the time of the meeting, they had received nearly 18,000 written comments. Obviously, those will take an enormous effort to review. The comment response plan presented says that every comment will be reviewed. The comments will be categorized by staff reviewers. The Council will get a summary of the comment categories and “synthesis” of the comments. Then the Council and sub-groups will be consider comments. Staff will provide “proposed approaches to incorporate/respond to feedback”. They promised that the comments will be posted on the Climate Act website.
My reading of this and the impression I got from the meeting is that the Climate Action Council is going through the motions of the public comment process. From what I have seen the review process has not started in earnest. If the public comments were truly going to be considered then I think it would be appropriate to make comment distillation an on-going process from the get go. I also don’t see why the comments have not been posted to the website. It would be relatively easy to just provide a list of comments as they have been received and there is no reason why they couldn’t also list the comments in some broad categories. At the meeting there was some discussion asking why there hasn’t been any information about the comments provided to the Council. The response was that because past experience showed there are a lot of submissions received at the end of the comment period that they didn’t want to deal with that. That does nothing to dissuade my impression that the comment process is all for show.
This post was drafted as part of my analysis to determine how the comments will be considered by the Climate Action Council. It is impossible for any individual to review even the 18,000 comments received to date. Therefore, I agree that the only way to handle this is for staff reviewers to categorize and summarize comments. Even with that approach the sheer number of comments that have to be addressed is daunting. As a result, there will be a lot of judgement on the part of staff relative to the comments that rise to the level where review by the Climate Action Council is deemed necessary.
This is where my concerns about expertise come to the fore. A fraction of the comments will obviously not require Council consideration for a variety of reasons like being outside the scope of the Draft Scoping Plan. The response will simply be “thank you but your comment is outside the scope”. Comments that support particular points also fall into the no controversy category. The problem is that when it comes to controversial issues only eight members have energy sector expertise so it is not clear how energy controversies will be resolved correctly. I am particularly concerned that comments could be summarily dismissed in the screening process either by staff or in initial discussions by Council members that simply don’t have enough background and experience to understand the issue raised.
For example, consider my comments regarding the claimed benefits of the social cost of carbon. I raised a technical issue that affects the claim that the “cost of inaction exceeds the cost of action by more than $90 billion”. I showed that the methodology used inflates the numbers but most importantly, it is inappropriate to claim the benefits of an annual reduction of a ton of greenhouse gas over any lifetime or to compare it with avoided emissions. The Draft Scoping Plan claims benefits of between $235 and $250 billion but my calculation shows that the true benefit should be less than $60 billion. I am pretty comfortable saying that no one on the Council understands this issue so how are they going to be able to knowledgably vote on how to respond to this comment?
Finally, the voting process is mostly for show anyway. Because the Governor directly or indirectly appointed 14 members to the Council, those beholden to the Administration will vote as they are told. This is where it is going to get interesting. There are some vocal at large members who hold some extreme views on future strategies. For example, there are those that believe that the Climate Act has a mandate for no combustion because that is the only zero-emissions “solution”. Realistically, however, that precludes a lot of things that have no practical alternative (aviation is at the head of that list) or are strong personal preferences. Strictly speaking no combustion means no wood burning and that is simply unacceptable to many in rural areas who cannot afford any other alternative. Given the political pushback from rural areas I cannot imagine that Administration votes for the Scoping Plan would endorse the no combustion approach.
There are three aspects of the final Scoping Plan that have to be considered by the Climate Action Council according to the Climate Act. Unfortunately, I don’t think they will necessarily be addressed based on the the composition of the Council membership.
The Climate Act specifically states that the costs and benefits analysis must: “Evaluate, using the best available economic models, emission estimation techniques and other scientific methods, the total potential costs and potential economic and non-economic benefits of the plan for reducing greenhouse gases, and make such evaluation publicly available.” That information is not in the Draft Scoping Plan and the Council has not raised the issue.
The Climate Act includes a mandate to consider efforts at other jurisdictions: “The council shall identify existing climate change mitigation and adaptation efforts at the federal, state, and local levels and may make recommendations regarding how such policies may improve the state’s efforts.” That information is not in the Draft Scoping Plan and the Council has not raised the issue.
Some of the at large members have taken the position that implementation is necessary without restrictions because the Climate Act has specific emission reduction targets. However, § 66-p. “Establishment of a renewable energy program” includes a safety valve: “The commission may temporarily suspend or modify the obligations under such program provided that the commission, after conducting a hearing as provided in section twenty of this chapter, makes a finding that the program impedes the provision of safe and adequate electric service; the program is likely to impair existing obligations and agreements; and/or that there is a significant increase in arrears or service disconnections that the commission determines is related to the program”. I believe that requires the final Scoping Plan to consider reliability (safe and adequate electric service) and affordability (significant increase in arrears or service disconnections).
In my opinion, the Climate Act and the scoping plan process have focused too much on specific aspects and not enough on the big picture. For example, one council member said that staff should look into community ground-based heat pumps initiatives and the final draft addresses that concern. That is an in the weeds initiative that is well within the noise of emission reduction projections. The big picture is maintaining reliability and affordability. What the Council should be addressing is the standards for safe and adequate electric service and the criteria for significant increase in arrears or service disconnections. The current reliability acceptability standard is a loss of load expectation one day in ten years. When the electric system is dependent upon variable sources of wind and solar is that stringent enough? Will another reliability criterion have to be developed? A recent legislative proposal included a requirement for state agencies to identify policies to ensure affordable housing and affordable electricity (meaning that electricity costs no more than 6% of a residential customer’s income) for all-electric buildings. The Council should address whether that is the appropriate metric for the Climate Act and insist that the current status of that parameter be included in the final Scoping Plan.