Major Win in Massachusetts with Clean Energy and Climate Bill

On July 21st, the Massachusetts House and Senate announced they had reached an agreement on a compromise climate change bill, released that bill unanimously from the committee of conference, and passed it in both branches. The sprawling 96-page bill touched upon practically every sector, including transportation, energy, and buildings. Governor Baker then sent the bill back to legislature with amendments, most of which were rejected, before ultimately signing the bill today. So now we’re just left with the question: “Uh, what’s actually in it?”

Acadia Center Priorities

As to be expected, the conference committee bill is a compromise bill between the separate climate bills passed by the two branches and contains significant elements from each proposal. Significant portions of Acadia Center priorities, including some listed below, were included in this legislation as well. The bill limits Mass Save from incentivizing fossil fuel equipment starting in 2025, aiming instead to promote electrification. It also requires the creation of a stakeholder Grid Modernization Advisory Council and adds a requirement for utilities to submit grid modernization plans to that Council. This language was based upon legislation which Acadia Center drafted in 2018. The conference committee legislation also allows regional solicitation for long-term contracts for offshore wind and transmission and creates a Clean Energy Transmission Working Group to do a full analysis of the barriers to major transmission upgrades. Acadia Center is specifically named as a member of that working group. The legislation also removes biomass from the Renewable Portfolio Standard, a concept for which Acadia Center has long advocated.

The Senate Proposal

From the Senate side, the compromise legislation increases rebates for ZEVs, adds an additional incentive for low-income customers, and requires new MBTA bus purchases to be ZEVs by 2030. It also aims to boost energy storage, fix some issues hindering the solar industry, and allows ten cities and towns to require fossil-fuel free new construction.

The House Proposal

The House climate bill primarily centered around offshore wind, and this final version reflects major elements of that as well. It aims to develop the offshore wind industry through infrastructure, investment, and job training. These sections also have a strong focus on economic inclusion and labor protections and fix issues with the procurement process, such as the conflict of interest stemming from utilities selecting winning bids.

Governor’s Amendments

In sending the bill back to the legislature, Governor Baker offered several pages of amendments, including $750 million in ARPA spending on clean energy. However, most of these were rejected. The legislature did accept a few, including the elimination of a price cap provision on offshore wind, something for which the Governor has long advocated.

What Isn’t In the Bill?

Unfortunately, as with most compromises, the final bill does not contain all that we hoped it would. It excludes a top environmental justice priority, which would increase air quality monitoring and require the state to establish baseline air quality for air pollution hotspots. It also does not include language which would have set up a successor to the state’s solar program or a provision to set electrification targets for the commuter rail system. Disappointingly, the final proposal also excludes significant swaths of dedicated funding that were present in the original versions, including funding for EVs, charging infrastructure, and clean energy.

Still, wide ranging climate improvements in nearly every sector is worth celebrating. The Governor, the legislature, and environmental activists deserve credit for delivering a strong climate bill and should take a well-deserved rest. Now let’s recharge and gear up for the climate bill for next session.

For more information:

Kyle Murray
Senior Policy Advocate-Massachusetts
kmurray@acadiacenter.org
617-742-0054, ext. 106

Baker signs major climate bill into law

Governor Charlie Baker signed a major climate bill into law on Thursday that will accelerate the clean energy transition in the state by boosting offshore wind and solar, and — in a first for Massachusetts — allowing some cities and towns to ban the use of fossil fuels in new buildings and major renovations.

…

“The economic development bill is fairly essential, as a lot of the climate programs need funding to work,” said Amy Boyd, policy director of the clean energy advocacy group Acadia Center.

Read the full article in The Boston Globe here. 

R.I.’s New Heat Pump Program Offers Incentives to Install Energy-Efficient Systems

Hot or cold, Rhode Islanders can’t win when it comes to regulating their homes’ temperature.

The state registered its first heat wave of the year last month when temperatures exceeded 90 degrees for six consecutive days. Residents in the Providence area experienced the fourth-warmest July on record and the third driest, with less than half an inch of rain measured.

With 73% of the state’s housing stock built before 1980, Rhode Island residents are more likely to feel the heat, and spend more on heating or cooling their homes.

But Rhode Islanders looking forward to the colder months to beat the heat will still be sweating — Rhode Island Energy, formerly National Grid, announced last month ratepayers would be paying more for electricity and natural gas this winter.

Resident customers will pay an average of $52 more a month as the utility doubles its summertime rates for the winter, from 7.8 cents per kilowatt-hour to 17.8 cents starting in October.

The utility cited the rising cost of natural gas worldwide and increased demand for it in Europe and Asia as the reason for raising prices. The final rate is subject to approval by state regulators before it goes into effect.

Ratepayers regardless will feel that pinch; 54% of homes in Rhode Island are heated by natural gas. Another 32% rely on home heating oil, and they won’t be getting a reprieve from high prices either. The average price of home heating oil in New England has hovered around $5 a gallon for much of the summer, a time when prices are typically half that.

Relief may be on the way.

Gov. Dan McKee has rolled out the state’s new High-Efficiency Heat Pump Program (HHPP), allocating $25 million from American Rescue Plan Act money to spur the installation of heat pumps and provide funds for workforce development in the HVAC sector.

“Shifting our thermal sector to electric heat and away from fossil fuels is critical in our fight against climate change,” McKee said in a press release. “Furthermore, the reduction of greenhouse gas emissions will help lower pollution-induced health impacts, especially for those living in communities with high asthma rates.”

The program allocates $11.2 million for residential incentives, applicable to any homeowners who heat their home with natural gas, propane, or heating oil, according to the latest draft of the program from the Office of Energy Resources (OER). Under the proposal, homeowners would be eligible for a $1,250 incentive for every ton of cooling and heating capacity of the equipment used.

Another $7.2 million would go toward “enhanced incentives” targeting low-income and disadvantaged communities, while $5.2 million would go for community incentives, available to small businesses, nonprofits, and other organizations. The program also allocates $1.3 million for workforce development.

The governor has pledged 40% of the funds will go toward the state’s disadvantaged communities, as defined by the U.S. Department of Energy.

“Heat pumps are energy efficient,” Hank Webster, Rhode Island director of the Acadia Center, said. “They are at least three times more efficient than even natural gas furnaces, and many more times that for oil and propane.”

A fossil fuel heating system running on propane, natural gas or heating oil must heat something else and then transfer that heat in the building, losing a lot of potential energy in the process.

But heat pumps can both heat and cool a home using only electricity. They operate similarly to air-conditioners: removing the warm air from a home in summer and adding warm air in winter.

“It’s much more efficient because it’s moving heat as opposed to generating it,” Webster said.

Heat pump installation will be key to meeting the emission reduction goals of the Act on Climate law. Combined, residential, commercial, and industrial heating make up the largest share of greenhouse gas emissions statewide at 35.4%, according to the Rhode Island Department of Environmental Management’s latest inventory.

Heat pumps are about as close to zero emissions as most major appliances get. Instead of running on fossil fuels, they run on a building’s electrical supply, meaning the only emissions result from the way the building’s electricity is generated. For advocates, heat pumps are renewable grid ready.

The Acadia Center estimates a home switching from heating oil to a heat pump reduces the equivalent emissions from taking a dozen cars off the road for one year. A home can reduce its emissions by 58 tons over the lifespan of the equipment.

Only 8% of Rhode Island homes run on electric heat. Meanwhile states such as Maine, with even colder winters than here in southern New England, have installed more than 46,000 heat pumps since 2013, and state officials have pledged to install another 100,000 by 2025.

But adoption here in Rhode Island remains slow. A 2020 study commissioned by National Grid showed that 60% of residents surveyed said they had no prior knowledge of central heat pump systems. Another 64% said they had little to no prior knowledge of ductless heat pump systems.

McKee’s new heat pump program lists consumer education as one of its key goals but allocated no specific amount of money for outreach initiatives. The money for outreach will be expected to come from the three categories of incentives or workforce development funds.

Costs are a big barrier to heat pump adoption, hence state incentives for consumers. Equipment needs and installation costs can vary, making gauging average costs difficult.

Changing an existing home to a ductless mini-split heat pump could cost on average up to $15,582 on its own, according to the 2020 National Grid study.

“The high cost of heat pump installation also presents a major barrier to adoption, with the average customers noting they were ‘not very likely’ to install a heat pump with incentives,” wrote the study’s authors.

They continued, “The willingness to pay study revealed that incentives of at least $3,600 per system are needed to drive the average consumer to be likely to install a heat pump, with many scenarios requiring significantly higher incentives.”

Current incentives are distributed by OER from Regional Greenhouse Gas Initiative (RGGI) proceeds, and Rhode Island Energy from energy-efficiency funds.

OER committed $2.75 million to its heat pump incentive program in April 2020. From March 2021 to December 2021, the incentives from OER helped 450 customers convert from fossil fuel systems to heat pumps.

On the utility-side incentives, Rhode Island Energy has awarded $3.1 million in rebates to customers who installed a total of nearly 4,000 central and mini-split heat pump systems.

This year’s RGGI proposal filed with the Rhode Island Public Utilities Commission would allocate $1.5 million to heat pump incentives.

But with such a high upfront cost — much of the existing incentives in place function as rebates or zero interest loans — the current program leaves the state’s low-income and disadvantaged communities behind, much of whom already suffer from higher temperatures thanks to the urban heat-island effect and lesser amounts of tree canopy shade.

Forty percent of the funds from the new incentive program will go toward communities in census tracts designated as disadvantaged communities (DAC) by the U.S. Department of Energy. Forty census tracts in Rhode Island are designated as DACs, primarily clustered in the urban core. It includes 20 tracts in Providence, 10 in Pawtucket, four in Central Falls, two in Cranston, and two in East Providence.

As proposed, the new incentives could cover between 50% and 100% of the total cost, including equipment, installation, and other necessary upgrades.

A 100% incentive will be automatically available to low-income residents enrolled in the Supplemental Nutrition Assistance Program (SNAP), Low-Income Home Energy Assistance Program (LIHEAP), Supplemental Security Income (SSI), Medicaid, Rhode Island Works, public assistance, or if they are a discounted rate customer to the utility.

Residents who live in a disadvantaged community are eligible for a 50% incentive.

OER said it expects the new program to go online sometime in winter 2023, with the final allocations for each incentive subject to change. Until the end of the month, the department is soliciting public comment and feedback on the program as drafted.

Read the full article in ecoRI news here.

Advancing DEIJ through Partnerships

Acadia Center recently became a founding member of Browning the Green Space (BGS), a membership-based non-profit organization seeking to advance diversity and inclusion in the clean energy industry. BGS, founded by Kerry Bowie who currently serves as the Executive Director of the organization, was borne out of the overwhelming need to diversify the climate and clean energy workforce with voices that are often excluded in climate solutions while making efforts to promote the inclusion of communities that suffer the impact of climate change.  

Black, Indigenous, and People of Color (BIPOC) are underrepresented in the clean energy sector and in the decision-making process for climate solutions. Communities of color and low-income communities have continually shouldered unequal environmental pollution and harm and, as climate change impact intensifies, these communities in addition to other frontline communities will suffer extreme climate-related events associated with climate change. BGS understands the implications of the climate impacts on frontline communities and the need to ensure that their lived experiences not only form solutions for the future but that they are also included in the workforce and rewarded for their contributions.  

Acadia Center supports the mission and vision of Browning the Green Space. Across our initiatives and programs, we consistently observe that increased participation of minority voices can produce better outcomes for people and communities. While working to ensure our commitment to diversity, equity, inclusion, and justice values are prioritized, we hope that through BGS and other coalition opportunities, we can collaborate on best practices and resources that push the vision of an equitable, climate-safe future for all communities.    

Acadia Center Summer Internships

Acadia Center is pleased to have provided three internship opportunities this summer.  The work of these exceptional students has proven beneficial to their learning and to our organization as a whole. We are grateful for their time and talent.

Sarah Smith is a rising junior at Brown University studying political science. She is from Yarmouth, Maine and, as a Mainer, has a deep personal connection to and investment in the New England environment. Sarah has been researching the potential of mass timber as a substitute for concrete and steel in construction, and the subsequent environmental benefits. Using engineered wood in place of conventional construction materials can decrease the embodied carbon of the building as well as sequester carbon from the harvested trees. There are several high-rise mass timber projects in the works in the United States, and many more globally. Sarah has been distilling existing research and compiling next steps into a memo for the Acadia Center to have as a future resource.

Joseph Wapelhorst is a second-year law student at Georgetown University Law Center, where he is a member of the Journal of Law and Public Policy. As a legal intern at the Acadia Center, he has supported senior regulatory attorneys by conducting research on the Supreme Court’s recent changes to the EPA and federal administrative state’s authority as well as the power of New England states to phase out gas utilities. His work has focused on whether New England states possess the authority to shift away from gas utilities to more renewable energy sources, their obligations to serve their citizens in doing so, and the cost allocation methods that would be used in such efforts.

Meenakshi Jani is a rising senior at Amherst College, where she is majoring in environmental studies and history. At Amherst, she has been involved in organizations such as the Environmental Justice Alliance, where she helped to lead the campaign for divesting the college’s endowment from fossil fuels and the prison-industrial complex. As a DEIJ/legislative intern at Acadia Center, she has been researching transportation advocacy in the region. Specifically, she has been analyzing the story of the Transportation and Climate Initiative and its implications for future clean transportation advocacy in the Northeast. She has also been reading the transportation policy proposals of organizations in and beyond the Northeast, such as in the Midwest, West Coast, Canada, and the EU, to examine how those can be incorporated into Acadia Center’s clean energy advocacy. In addition, she is compiling a database of environmental advocacy organizations in the region.

Massachusetts is getting hotter. Our electricity system is not prepared.

In July, as a heat wave bore down on the Boston area, warnings landed in the inboxes of National Grid and Eversource electricity customers: Demand was expected to be high, each company warned, and making a small change to conserve energy at home could help avoid outages.

But still, outages happened, from Acton to West Roxbury, Newton to Chelsea, silencing the reassuring whir of air conditioners. Another bout of intense heat is due this week that will test the power grid yet again, raising the question of how the energy system will respond as extreme temperatures become more frequent and intense due to climate change.

The networks of wires and substations that bring electricity to homes and businesses are already stressed as housing density increases, experts say, and many parts of them will likely need upgrading or expanding in a future when demand could double or even triple as the state relies ever more on clean electricity to replace fossil fuel power.

“These outages can occur during the worst possible time, in sizzling temperature conditions, because the substations are not necessarily expanded upon over time to keep pace with pockets of electric demand in various communities,” said Richard Levitan, president of Levitan and Associates, an energy management consulting firm. “A failure for a day or for hours when it’s 100 degrees is potentially devastating.”

On social media during the July heat wave, some of the unlucky and unhappy customers mused the outages were akin to problems in Texas, where the energy grid’s failure to keep up with demand had catastrophic consequences. But the energy grid here, operated by ISO-New England, has not had failures such as in Texas, and had plenty of surplus capacity each day of the heat wave, even as demand rose with increased use of air conditioners.

What happened, instead, were failures in the distribution system — the substations, transformers, and wires that bring electricity from power lines into neighborhoods and homes. These localized networks are affected by the demands of a specific street or area— eased in some places, perhaps, by the presence of solar panels on homes or intensified by the demands of big users such as apartment buildings with air conditioners and fast-chargers for electric vehicles.

The pressure on those local networks is a problem that will only become more urgent, experts said.

“You have to start with the basic infrastructure question: are we building infrastructure fast enough and forward-looking enough to anticipate what our future is going to look like, and is it being built in a way that addresses extreme weather?” said Jeff Dennis, general counsel at Advanced Energy Economy, an industry group, and a former director of the Federal Energy Regulatory Commission’s division of policy development.

At National Grid, Carol Sedewitz, vice president of electric asset management and engineering, said the company’s equipment is designed for the hottest temperatures that Massachusetts has seen in recent years, even 100 degrees. But it is only designed to withstand that heat for short periods and risks failing when cooler weather doesn’t come quickly.

“Your substation equipment depends on that,” she said.

Now that heat waves are often lasting longer, and nighttime temperatures are staying higher than they used to, Sedewitz said, rethinking how certain equipment can be expected to perform is a must, as is redesigning it for more extreme weather, such as heavy precipitation, high winds, drought, and more intense heat waves.

Craig Hallstrom, president of electric operations for Eversource, said outages in his company’s service area during the heat wave were the result of overheating equipment, which caused some joints and cables to fail.

“A lot of the failures were in the underground system, where there isn’t a lot of air flow, and the lines tend to hold their heat,” he said.

As Eversource and National Grid, which are responsible for delivering the lion’s share of electricity in the state, plan for the future, they’re looking at upgrading to transformers that can carry a greater load.

Doubling of demand for electricity does not necessarily mean a need to double the amount of infrastructure, experts said, because newer equipment would likely be able to handle higher demand. But there will need to be some new substations and transformers — and those can come with controversy.

In East Boston, for instance, Eversource is trying to build a new substation, but the choice of location next to a playground alongside the Chelsea Creek has led to strong resistance among community advocates, who fear the regular flooding at that location could spark a fire. They also note that environmental justice communities have historically borne the brunt of industrial infrastructure, and that siting decisions now can either help remedy past harms or make them worse.

As the utilities try to find locations for new substations, they’re also developing a new kind of distribution system.

Right now, for the most part, electricity travels in one direction: from a power source — such as a gas-fired fossil fuel power plant, or, increasingly, from renewables like solar and wind — to a building. But that’s changing.

With the growth of solar energy on rooftops, more businesses and homeowners are generating the power they need. In the future, experts say, such installations will increasingly be able to send excess solar electricity back into the grid, but that requires new advanced metering equipment and new market rules to allow energy to go in both directions.

Developments in battery technology will also affect the shape of the grid and neighborhood networks.

“In the future, most of us will have some level of a large battery at home,” said Dan Dolan, president of the New England Power Generators Association, whether that’s an electric vehicle or something like a Tesla Powerwall, that can store energy generated by solar panels and then use it as backup power. There are even scenarios where the car battery in a new electric vehicle could send power back to the home.

Policy experts, the state Department of Public Utilities, and the utilities are considering how to modernize the grid so that in the near future, customers could be incentivized to charge their vehicles at times of low demand, and then use the battery of their cars to help power their homes during a heat wave, decreasing the strain on local networks.

“Electric cars and buses, along with solar and storage, can even give energy back to the grid when there’s an unexpectedly hot or cold day,” said Melissa Birchard, director of clean energy and grid reform at Acadia Center, a nonprofit advocating for clean energy.

A fully charged Ford F-150 Lightning can provide enough electricity for an entire house for up to 10 days, according to Ford. And last summer, an electric school bus in Beverly was used to provide more than 50 hours of energy back to the electricity grid.

Electric school buses, which are used for just a few hours each day during the school year, and even less during the summer, are just one of the new technologies that offer promise in that regard, said Birchard.

Dennis, of Advanced Energy Economy, said it’s all about rethinking the tools that are available. “You really need to make demand much more flexible, and really make it a grid resource,” he said. “If we’re going to have large fleets of electric vehicles with batteries in them, let’s make those things a grid resource.”

Read the full article in The Boston Globe here.

The legislature is closing in on a major climate bill. Will real estate developers stand in the way?

As the state legislature enters the home stretch on a major new climate bill, a familiar battle line is being drawn, pitting real estate developers and climate advocates against each other on a crucial question: Should communities be allowed to ban fossil fuel hook-ups for new buildings?

That question concerns just one aspect of a wide-ranging bill. The measure will would reconcile an ambitious House bill focused on developing offshore wind with a Senate bill that includes a broader array of climate provisions, including measures to increase the number of electric vehicles on the road, make public transportation greener, and pour money into the development of clean energy.

But in the final days of negotiating the bill before it goes to the governor’s office, a contentious debate has arisen over a provision in the Senate bill that would allow 10 communities to ban fossil fuel hookups in new buildings.

It’s an issue that has dogged the state for years, since Brookline first attempted to ban new fossil fuel hookups in 2019. Attorney General Maura Healey subsequently advised that such a step violated state law. Since then, several communities have attempted to pass so-called “gas bans” via home rule petitions, but none have been implemented.

The measure proposed in the Senate bill would launch a pilot of sorts, allowing Cambridge, Newton, Brookline, Lexington, Arlington, Concord, Lincoln, Acton, Aquinnah, and West Tisbury to opt in.

Developers and fossil fuel interests are pushing back hard. In an email blast to its members Thursday, NAIOP Massachusetts, a lobby for developers and building owners, wrote: “FINAL CLIMATE BILL ANTICIPATED TO INCLUDE FOSSIL FUEL BANS – NAIOP NEEDS YOUR HELP.”

The response from climate groups was swift.

“We know that the gas industry and their allies are organizing and communicating with the lawmakers, opposing what we want,” wrote organizers from Mothers Out Front, on a web page that urges followers to press legislators to support the ban, along with other priorities.

As of noon Friday, 250 members had used the website to send emails to legislators, according to Andra Rose, who coordinates the legislative team for Mothers Out Front.

“Now is the time to stop it,” Rose said, referring to the state’s reliance on natural gas. “The way to stop it is with the lowest-hanging fruit: New buildings, and buildings that are going through major renovations.”

Tamara Small, the CEO of NAIOP, said there are risks to switching off fossil fuels entirely, including concerns that electrified sources of heat wouldn’t be adequate on the coldest days. She said full electrification could stress the grid, and that it would increase costs for builders and homeowners.

“In a nutshell, while our members are successfully pursuing electrification for all product types, only hybrid electrification is feasible at this time, particularly for office and lab properties,” she said via e-mail, referring to a combination of gas and electric.

Christine Milligan, spokeswoman for National Grid, agreed, calling hybrid electrification “the least costly, most effective way for our customers and the Commonwealth to achieve our net zero goal.”

But climate advocates — as well as Senator Mike Barrett, a Democrat from Lexington, the author of the Senate bill — said exemptions would be allowed for facilities like labs and hospitals, and that across the region, fully-electric buildings are coming online and proving that they can withstand the cold of a New England winter.

They also question whether it actually costs more to build a fully-electric building.

According to a report commissioned by the state Department of Energy Resources, thanks in large part to new rebates from Mass Save, it usually costs less to build fully electric. Compared to a house built according to the base building code, for instance, a fully electric, five-bedroom single-family home in Worcester would save a builder $20,062 and save the buyer $548 a year.

A large gas home, meanwhile, would cost $3,184 more than the base for the builder, while saving the buyer $302 a year compared to a house built to the base building code. An all-electric small single family home would provide even greater savings. A small single family home using gas, meanwhile, would cost a builder nearly $8,000 more than a house built to the base code, and would cost the homeowner $496 a year. A 6-unit multifamily also offered savings if all-electric.

According to the analysis, the only example that did not offer savings if it were fully electric was a townhouse, which could cost a builder $11,492 compared to the base code, but would still save the buyer $316 a year.

Advocates note that, unlike the situation when Brookline first proposed its ban in 2019, cities around the country are beginning to enact gas bans.

“This isn’t some sort of fanciful concept that no one is able to do,” said Kyle Murray, a senior policy advocate at the Acadia Center, a clean energy advocacy organization. “New York City‚ one of the largest cities and most economically powerful, just passed a ban on new fossil fuel hookups. New York is considering doing it statewide. DC is in the process of working on a ban on new fossil fuel hookups. This is not something that is out of left field, crazy, not able to be done.”

In Cambridge, housing advocate Becca Schofield, who co-chairs the non-profit A Better Cambridge and is an affordable housing developer, said she supports the fossil fuel banning measure, as long as the needs of low and moderate income people aren’t forgotten.

“The fear is that this would further limit affordable housing opportunities,” she said, adding that she would like to see exemptions for affordable housing developments. “Not that they’ll use it,” she said. “In my own work, I’m not making any new gas connections.”

The legislature technically has until the end of the month to finalize the bill, but it must send it to Governor Baker’s office by Thursday if it wants to ensure legislators will have time to override a veto from the governor’s office, should one come.

In late 2020, concerns from the real estate industry about the potential impacts on the price of housing development contributed to Baker vetoing the state’s landmark climate bill mandating that the state slash emissions to half of 1990 levels by 2030 and get to net-zero by 2050.

Baker, who has been vocal in his concern about a lack of affordable housing and the housing shortage in general, did not comment about the new proposal to allow gas bans in 10 communities. “The governor will carefully review any legislation that reaches his desk,” said spokeswoman Anisha Chakrabarti.

But activists worry that this issue could once again draw a veto.

“We can’t keep doing that — it doesn’t work for the health of the people or the planet,” said Karl Müller, a climate organizer with UU Mass Action and Mass Power Forward, who on Thursday and Friday was among a small group of activists singing and calling for the climate action at the State House.

“The stakes are high, and people need to see progress,” Müller said. “It’s an incredibly dark time to be an advocate, and to be caring about the planet and about justice. We need to keep moving forward.”

Read the full article in The Boston Globe here.

West Virginia v. Environmental Protection Agency

Last week, the Supreme Court decided a case that will have substantial impact on how greenhouse gas emissions and other public safety issues are regulated at the federal level.  The case, West Virginia v. Environmental Protection Agency, – US –, (2022), struck down a regulation that was never implemented and therefore does not immediately change any current EPA program to regulate climate change. However, the Court’s reliance for the first time on a new doctrine called the Major Questions Doctrine has potential to significantly impact future agency decisions where Congress has not explicitly outlined how to regulate – making it harder for EPA, and all other federal agencies, to advance their missions. In light of this decision, it is even more crucial for states, regions and communities to respond to the climate crisis and work to reduce greenhouse gas emissions.

Striking Down CPP’s Methods

The decision struck down the Clean Power Plan (CPP)’s approach restrict greenhouse gas emissions by incentivizing movement to clean energy but did not strike the goals of the CPP itself. The CPP is a 2015 Obama Administration approach to reduce climate pollution from the nation’s powerplants.  The court ruled that the EPA was not authorized by the Clean Air Act (CAA) to make such a major change to the nationwide grid. To make such a major policy decision, an agency like the EPA would need clear Congressional authorization, which the Court found Congress did not provide.

Historically, the EPA utilized the power given to it by Congress to regulate individual powerplant site emissions through pollution standards set by the agency. The Court found that the CPP was different because it marked a shift from using the EPA’s authority to require individual generators to reduce emissions to a program changing all generators’ methods for producing energy – namely, limiting their use of coal. While the EPA may have been right that climate change required more drastic action than requiring emission efficiency from “dirty” generators, the court found that Congress had not explicitly given the EPA the authority to make that decision.

This does present an obstacle to the goal the CPP was trying to achieve since the EPA now needs further authorization from Congress to take such a broad step. States, however, are not blocked from taking up the torch. Additionally, since the CPP never went into effect, the Biden administration may still craft a plan which takes more aggressive steps to curtail emissions while acting within the traditionally understood authority of the EPA, as defined by the Supreme Court. It would be a delicate balance, but the court’s opinion hints that the answer would lie in traditional regulation of individual sources rather than the restructuring of the national grid’s generators.

Major Questions Doctrine

The Court elevates a relatively new doctrine, previously cited only in one case’s dissent, to form the heart of its decision. See Gundy v. U.S., 139 S. Ct. 2116 (2019) (dissent)

This major questions doctrine (MQD) is a new way of approaching the Non-Delegation Doctrine (NDD). NDD is the principle that Congress may not delegate its legislative power to administrative agencies without violating the separation of powers in the Constitution. For almost a century, when Congress delegated its legislative power, it had to provide an “intelligible principle” to guide the agency’s exercise of discretion. See Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), In other words, Congress could only delegate if it made clear “the general policy” and the “boundaries of authority.”

But starting in the late 20^th Century, the Court applied a standard that was very deferential to the agencies’ own interpretation of whether Congress supplied the “intelligible principle” required. This is popularly known as Chevron deference, named for the case in which the court first made clear this deferential standard that allowed agencies to interpret statutes they administer. See Chevron, U.S.A., Inc. v. Nat. Resources Def. Council, Inc., 467 U.S. 837 (1984). Since broad delegations were necessary in the complex world of administrative agencies, and the judiciary is ill equipped to draw meaningful lines, the agency’s expertise usually won the day.

The MQD turns Chevron deference on its head. As a matter of interpretation, if Congress gives an agency responsibility or “powers of vast executive and political significance” they must be explicit on intent to delegate that authority and what the delegation entails or else the court will read it as not delegating. In other words, the more politically significant the issue is, the more likely the Court is to require an explicit statement from Congress. The MQD was first discussed in a dissent by Justice Gorsuch (and two others) in 2019 as a way to more strictly restrain the administrative agencies. It now has been adopted by the majority for the first time in West Virginia v. EPA.

A shift to the MQD to resolve cases involving agency regulation would bind agencies’ hands and require explicit Congressional approval for them to act. This would slow down the agency’s work and make the executive agencies more dependent on the legislative majority rather than the White House. This is especially troublesome for an EPA looking to take big steps to combat climate change since they would need more explicit authority to take measures that are not outlined in the statutes that give the EPA its power. It is not impossible to pursue progressive policies, but it will make the process more difficult.

The Importance of States and Regions

With federal agencies’ powers potentially curtailed, actions at the state and regional level are even more important. Thankfully, organizations like Acadia Center that focus on state, regional and local action are on the job.

One example of a successful regional effort to reduce GHG emissions is the Regional Greenhouse Gas Initiative (RGGI). Acadia Center was actively involved in its beginnings back in 2008 and 2009. In 2022, RGGI is predicted to deliver around $1B in allowance revenues for the eleven member states (including all of New England and New York). Because much of this money is invested in clean energy and energy efficiency within the member states, it returns significant economic and environmental benefits and CO2 reductions within the states. RGGI Inc. released a report in May that estimates that the $196M invested in 2020 will return $1.9B in lifetime energy bill savings and 6.6 million short tons of CO2 emissions avoided.

This fall, RGGI is undergoing the Third RGGI Program Review, and Acadia Center is seizing this opportunity to tailor the program to ensure that the priorities called for by environmental justice communities are fully addressed in the next phase of RGGI.  Historically, these communities have faced a disproportionate burden energy system pollution. During the program review, it is essential that each RGGI state critically consider equitable investment in communities that face the worst effects of polluting power plants. This ongoing program review provides a chance for states to consider the recent auctions, history of investments across the states, the need to directly address environmental justice communities, and other mechanisms associated with the cap-and-invest program. Acadia Center remains closely involved in RGGI policy conversations across the RGGI states and will continue to advocate for program reforms that drive equitable investment and climate action.

Inflation and supply chain problems blunt efforts to ramp up renewable energy

The bumpy road to better electric utility decisions

Maine’s transition to clean energy hinges on a wholesale transformation of the electrical grid. Several laws passed in recent years may improve grid planning, but legislating institutional change in the utility field could prove challenging.

A recent decision by the Maine Public Utilities Commission (PUC) points up how investor-owned utilities still steer the grid-planning process and how often they operate with clear conflicts of interest and a fuzzy understanding of their own systems. That’s a big problem since the PUC often defers to the presumed expertise of utilities in its decision-making.

In this instance, Central Maine Power requested permission to rebuild the Section 80 transmission line serving the Midcoast at a cost to New England ratepayers of $63.6 million. Now about 32 feet high, the transmission towers would increase to around 80 feet along a 22-mile corridor running from Winthrop to Warren.

For the first time ever in this case, ratepayers had two other state entities, armed with data from a third-party expert, advocating on their behalf. In a compelling written argument (see item 438), the Maine Office of the Public Advocate (OPA) and Efficiency Maine Trust claimed that the PUC’s preliminary justification for its decision “mischaracterizes the factual record” because it relies on “CMP’s outdated and undocumented assertions about the facts underlying the projected need for the Section 80 Rebuild.”

They further argued that “overbuilding” transmission lines  “is the most expensive way to respond to perceived but unknown needs and should not be approved here based on the scant CMP factual record before the Commission.” They advocated that the PUC defer a decision and seek a more thorough analysis from New England grid operators.

Their advocacy made this case more visible, generating an unusual degree of public comment. Nearly 400 residents (myself included) weighed in to express concerns about the enlarged transmission line.

The Commission acknowledged the input and then voted to grant CMP’s rebuild request.

First established in 1914, the PUC has been operating in much the same manner for a very long time. Like the grid itself, the Commission needs an overhaul.

For that institutional change to occur, more Maine residents need to understand what happens in the arcane world of PUC deliberations. Welcome to case number 2011-00138, the first test of Maine’s 2019 “Non Wires Alternatives” (NWA) Act.

Understanding the significance of non wires alternatives

While more or larger transmission lines are sometimes needed to modernize the grid, in many cases the most cost- and climate-conscious choice does not involve more wires, concrete or steel. Much of the electricity Maine will need to get vehicles and heating systems off fossil fuels will come from distributed energy resources (DER, in utility lingo), which can include new generation (like and wind and solar systems), battery storage and “demand response,” managing the load on the grid by providing rate incentives for consumers to use energy at off-peak times.

“In an ideal world, a lot of innovation could happen at the edge of the grid — in generation, storage, and demand response. The utility could be an active participant, moving us toward cleaner, cheaper options,” observed Seth Berry, a long-time co-chair of the Legislature’s Energy, Utilities and Technology committee, who stepped down in June to devote more time to Maine’s Our Power campaign for a consumer-owned utility.

In the real world, investor-owned utilities typically ignore distributed energy resources because their profits derive primarily from a rate of return pre-established with state utility commissions (typically upward of 9 percent) on investments made in new infrastructure. Put simply, they have a vested interest in overbuilding the grid.

To counter that, the law charged the public advocate’s office with overseeing work by an expert to assess costs and benefits for each planned infrastructure project, determining whether ratepayers would be better served by distributed energy resources rather than more and bigger power lines.

The non wires alternatives legislation is a small step toward remedying the huge “asymmetry of resources” built into the system, Berry noted, in which utilities have far more legal and financial resources and more grid information than regulators or advocates. By establishing an outside review, the law makes regulators somewhat less beholden to utilities for data.

The Maine OPA hired an international engineering firm with a strong background as electrical system planning experts, and it has proven “incredibly competent at the technical side of [this process],” said Andrew Landry, OPA’s deputy director. With funding covered by Maine ratepayers, the firm undertook the sort of expert analysis that the PUC cannot do in-house.

It concluded in this case that DER options, such as new solar farms and demand response, could meet future demands without a transmission line rebuild. Efficiency Maine, which Landry said plays a “very important role… [providing] supporting analysis and recommended solutions on the customer side of the meter,” agreed.

Why did an improved process still lead to a poor outcome?

Just as the law had intended, the PUC had far more complete information on which to base its decision, with an outside technical review and greater public input.

But none of that changed the Commission’s decision. This might not bode well for recent laws intended to ensure that the PUC factors climate and equity considerations into its decisions and oversees the grid-planning work of utilities. These measures do not have the built-in oversight mechanisms of the NWA Act, which could make their prospects for influencing PUC decision-making even slimmer.

Staff at the public advocate’s office took several lessons from this frustrating initial test case. For more collaborative outcomes, Landry said, the expert NWA Coordinator will need to “have access to [utilities’] planning at a much earlier stage” and utilities will need “to have extremely clear planning standards” identified at the outset. In this instance, he said, CMP was “frequently adding new planning standards that our alternative would have to satisfy.”

The OPA found a shocking lack of data underlying CMP’s transmission line rebuild request. “I don’t know how they do planning,” Landry said. “It doesn’t appear they have enough data about their system, particularly at the distribution level, to analyze system needs.”

Advocates of grid reform, while disappointed with the Commission’s decision, express gratitude for the active role the OPA and Efficiency Maine took. With a new public advocate who knows utilities well, Berry said, the office “has the capacity to do some historic good serving the people of Maine and our energy future.”

Jeff Marks, a senior policy advocate with the nonprofit Acadia Center, said he’s hopeful that the combined impact of recent laws “will force the PUC to look at things more closely and come to different decisions.” Just days ago, the PUC did approve a non-wires solution in the second test case under the new law, eliminating the need to rebuild the Section 31 transmission line in Topsham, a smaller and less costly project than Section 80. The settlement that the public advocate negotiated with CMP in that case is expected to save ratepayers an estimated $8.5 million over time and provide additional consumer benefits like energy-efficiency savings.

Going forward, more citizens and advocacy groups will need to scrutinize the regulatory process to ensure that the needs of ratepayers, climate and equity receive fair consideration. Until significant change occurs in the grid-planning process or utility business model, Marks noted, “we need to hold the PUC’s feet to the fire.”

Read the full article in The Maine Monitor here.