WEST virginia legislature
2020 regular session
Introduced
Senate Bill 810
By Senator Smith
[Introduced February 17,
2020; referred
to the Committee on Energy, Industry, and Mining; and then to the Committee on
the Judiciary]
A BILL to amend and reenact §22-5-20 of the Code of West Virginia, 1931, as amended, relating to adoption of a state plan implementing the federal Affordable Clean Energy rule pursuant to section 111(d) of the federal Clean Air Act.
Be it enacted by the Legislature of West Virginia:
ARTICLE 5. AIR POLLUTION CONTROL.
§22-5-20. Development of a state plan relating to carbon dioxide emissions from existing fossil fuel-fired electric generating units.
The West Virginia Department of Environmental Protection shall submit to the 2021 Regular Session of the West Virginia Legislature its proposed rules implementing the “Affordable Clean Energy” rule (“ACE”), consisting of Emission Guidelines for Greenhouse Gas (GHG) Emissions from Existing Electric Utility Generating Units (EGUs) pursuant to the federal Clean Air Act section 111(d).
(a) Legislative
findings. —
(1) The United States
Environmental Protection Agency has proposed a federal rule pursuant to Section
111(d) of the Clean Air Act, 42 U. S. C. §7411(d), to regulate carbon dioxide
emissions from electric generating units.
(2) The rule is expected
to go into effect on or about June 30, 2015, and will require each state to
submit a state plan pursuant to Section 111(d) that sets forth laws, policies
and regulations that will be enacted by the state to meet the federal
guidelines in the rule.
(3) The creation of this
state plan necessitates establishment and creation of law affecting the economy
and energy policy of this state.
(4) The Environmental
Protection Agency has stated that any state plan it ultimately approves shall
become enforceable federal law upon that state.
(5) The state disputes
the jurisdiction and purported binding nature asserted by the Environmental
Protection Agency through this rule, and reserves to itself those rights and
responsibilities properly reserved to the State of West Virginia.
(6) Given the economic
impact and potentially legally binding nature of the submission of a state
plan, there is a compelling state interest to require appropriate legislative
review and passage of law prior to submission, if any, of a state plan pursuant
to Section 111(d) of the Clean Air Act.
(b) Submission of a
state plan. — Absent specific legislative enactment granting such powers or
rule-making authority, the Department of Environmental Protection or any other
agency or officer of state government is not authorized to submit to the
Environmental Protection Agency a state plan under this section, or otherwise
pursuant to Section 111(d) of the Clean Air Act: Provided, That the
Department of Environmental Protection, in consultation with the Department of
Environmental Protection Advisory Council and other necessary and appropriate
agencies and entities, may develop a proposed state plan in accordance with
this section.
(c) Development of a
Proposed State Plan. — (1) The
Department of Environmental Protection shall, no later than one hundred eighty
days after a rule is finalized by the Environmental Protection Agency that
requires the state to submit a state plan under Section 111(d) of the Clean Air
Act, 42 U. S. C. § 7411(d), submit to the Legislature a report regarding the
feasibility of the state's compliance with the Section 111(d) rule. The report
must include a comprehensive analysis of the effect of the Section 111(d) rule
on the state, including, but not limited to, the need for legislative or other
changes to state law, and the factors referenced in subsection (g) of this
section. The report must make at least two feasibility determinations: (i)
Whether the creation of a state plan is feasible based on the comprehensive
analysis; and (ii) whether the creation of a state plan is feasible before the
deadline to submit a state plan to Environmental Protection Agency under the
Section 111(d) rule, assuming no extensions of time are granted by
Environmental Protection Agency. If the department determines that a state plan
is or is not feasible under clause (i) of this subsection, the report must
explain why. If the department determines that a state plan is not feasible
under clause (ii) of this subsection, it shall explain how long it requires to
create a state plan and then endeavor to submit such a state plan to the
Legislature as soon as practicable. Such state plan may be on a unit-specific
performance basis and may be based upon either a rate-based model or a
mass-based model.
(2) If the department
determines that the creation of a state plan is feasible, it shall develop and
submit the proposed state plan to the Legislature sitting in regular session,
or in an extraordinary session convened for the purpose of consideration of the
state plan, in sufficient time to allow for the consideration of the state plan
prior to the deadline for submission to the Environmental Protection Agency.
(3) In addition to
submitting the proposed state plan to the Legislature, the department shall
publish the report and any proposed state plan on its website.
(d) If the department
proposes a state plan to the Legislature in accordance with subsection (c) of
this section, the department shall propose separate standards of performance
for carbon dioxide emissions from existing coal-fired electric generating units
in accordance with subsection (e) of this section and from existing natural
gas-fired electric generating units in accordance with subsection (f) of this
section. The standards of performance developed and proposed under any state
plan to comply with Section 111 of the Clean Air Act should allow for greater
flexibility and take into consideration the additional factors set forth in
subsection (g) of this section as a part of any state plan to achieve targeted
reductions in greenhouse gas emissions which are equivalent or comparable to
the goals and marks established by federal guidelines.
(e) Standards of
performance for existing coal-fired electric generating units. — Except as
provided under subsection (g) of this section, the standard of performance
proposed for existing coal-fired electric generating units under subsection (c)
of this section may be based upon:
(1) The best system of
emission reduction which, taking into account the cost of achieving the
reduction and any nonair quality health and environmental impact and energy
requirements, has been adequately demonstrated for coal-fired electric
generating units that are subject to the standard of performance;
(2) Reductions in
emissions of carbon dioxide that can reasonably be achieved through measures
undertaken at each coal-fired electric generating unit; and
(3) Efficiency and other
measures that can be undertaken at each coal-fired electric generating unit to
reduce carbon dioxide emissions from the unit without switching from coal to
other fuels or limiting the economic utilization of the unit.
(f) Standards of
performance for existing natural gas-fired electric generating units. —
Except as provided in subsection (g) of this section, the standard of
performance proposed for existing gas-fired electric generating units under
subsection (c) of this section may be based upon:
(1) The best system of
emission reduction which, taking into account the cost of achieving the
reduction and any nonair quality health and environmental impact and energy
requirements, has been adequately demonstrated for natural gas-fired electric
generating units that are subject to the standard of performance;
(2) Reductions in
emissions of carbon dioxide that can reasonably be achieved through measures at
each natural gas-fired electric generating unit; and
(3) Efficiency and other
measures that can be undertaken at the unit to reduce carbon dioxide emissions
from the unit without switching from natural gas to other lower-carbon fuels or
limiting the economic utilization of the unit.
(g) Flexibility in
establishing standards of performance. — In developing a flexible state plan to
achieve targeted reductions in greenhouse gas emissions, the department shall
endeavor to establish an achievable standard of performance for any existing
fossil fuel-fired electric generating unit, and examine whether less stringent
performance standards or longer compliance schedules may be implemented or
adopted for existing fossil fuel-fired electric generating units in comparison
to the performance standards established for new, modified or reconstructed
generating units, based on the following:
(1) Consumer impacts,
including any disproportionate impacts of energy price increases on lower
income populations;
(2) Nonair quality
health and environmental impacts;
(3) Projected energy
requirements;
(4) Market-based
considerations in achieving performance standards;
(5) The costs of
achieving emission reductions due to factors such as plant age, location or
basic process design;
(6) Physical
difficulties with or any apparent inability to feasibly implement certain
emission reduction measures;
(7) The absolute cost of
applying the performance standard to the unit;
(8) The expected
remaining useful life of the unit;
(9) The impacts of
closing the unit, including economic consequences such as expected job losses
at the unit and throughout the state in fossil fuel production areas including
areas of coal production and natural gas production and the associated losses
to the economy of those areas and the state, if the unit is unable to comply
with the performance standard;
(10) Impacts on the
reliability of the system; and
(11) Any other factors
specific to the unit that make application of a modified or less stringent
standard or a longer compliance schedule more reasonable.
(h) Legislative
consideration of proposed state plan under Section 111(d) of the Clean Air Act.
— (1) If the department submits a proposed state plan to the Legislature under
this section, the Legislature may by act, including presentment to the
Governor: (i) Authorize the department to submit the proposed state plan to the
Environmental Protection Agency; (ii) authorize the department to submit the
state plan with amendment; or (iii) not grant such rulemaking or other
authority to the department for submission and implementation of the state
plan.
(2) If the Legislature
fails to enact or approve all or part of the proposed state plan, the
department may propose a new or modified state plan to the Legislature in
accordance with the requirements of this section.
(3) If the Environmental
Protection Agency does not approve the state plan, in whole or in part, the
department shall as soon as practicable propose a modified state plan to the
Legislature in accordance with the requirements of this section.
(i) Legal effect.
— Any obligation created by this section and any state plan submitted to the
Environmental Protection Act pursuant to this section shall have no legal
effect if:
(1) The Environmental
Protection Agency fails to issue, or withdraws, its federal rules or guidelines
for reducing carbon dioxide emissions from existing fossil fuel-fired
electrical generating units under 42 U. S. C. §7411(d); or,
(2) A court of competent
jurisdiction invalidates the Environmental Protection Agency's federal rules or
guidelines issued to regulate emissions of carbon dioxide from existing fossil
fuel-fired electrical generating units under 42 U. S. C. §7411(d).
(j) Effective date. —
All provisions of this section are effective immediately upon passage
NOTE: The purpose of this bill is to remove limitations placed upon the Department of Environmental Protection with regard to the Obama Administration’s Clean Power Project (CPP) and to ensure proper development and approval of the Trump Administration’s Affordable Clean Energy (ACE) rule. The DEP will not be able to comply with EPA ACE requirements without repeal of this article.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.