Beyond Sensibility: New Culture Threatens Regulatory Foundation

Can the existing federal and state environmental regulatory structure provide adequate certainty for energy production given our US climate-change goals?

According to conclusions from a recent Texas electric grid-forecasting study, ‘Over the next 20 years, due to the free market alone, ERCOT can expect to see a cleaner grid that relies on Texas-produced natural gas, wind and utility-scale PV solar power at little additional cost to consumers.”

But the report probably did not consider challenges to regulatory certainty that have become increasingly common in the environmental permitting process for energy producing states.

Power generation in Texas could include even more renewables, cleaner natural gas, and emission free nuclear power at little increased cost to meet US greenhouse gas (GHG) adapting goals.

But between now & then, how do we get there? The “one size fits all” White House Clean Power Plan (for now delayed for review by the U.S. Court of Appeals D.C. Circuit) does not consider variables in market forces and the process of environmental regulation at the state level. Large energy production states, like Texas, are often portrayed to be in denial of climate science by opposing the Environmental Protection Agency (EPA), but acquiescence to federal control will not yield adequate guidance for certainty needed in energy planning investments.

The process of environmental regulation relies on legally achievable thresholds, with the presumption that public health and safety can be achieved when state-issued permit guidelines are followed and enforced. States have delegated federal authority to implement environmental standards and enforce through the permitting process as partners with the EPA.

But the notion of acceptable environmental standards for energy production is increasingly challenged at all levels. Perception of environmental injustice has added another dimension to the discussion. Skeptics of environmental regulatory certainty often focus on pollutants-CO2 emissions, effects on wildlife, and a desired democratization of advocacy, etc. Supporters of power generation want regulatory focus on permit predictability and reliability concerns. If permits, federal, state, or local are not attainable, financing of needed power production will not be either.

Even wind energy, which is emission free, very low–cost, and not subject to fuel price risk has been criticized for accidental bird kills. U.S. Fish and Wildlife recently proposed changes to policy from 5-year permits to 30-year permits for wind energy producers, and US wind capacity could triple by 2030 under the Clean Power Plan. Should we accommodate an industry that collectively reduces US greenhouse gases, or should we consider threats to iconic wildlife and vistas more important?

Can the US achieve a collective balance, to accommodate the numerous objections to regulatory compromise? What happened to the concept of federalism, the principle that the states– not the national government– are in control and responsible for developing their own policies?

Despite challenges, Texas leadership will continue to address and pursue regulatory certainty by relying on sound science, advanced technology, and common sense. Public acceptance not withstanding, balancing energy production and consumption needs will continue to require a strong regulatory structure.

Adapting to environmental challenges resulting from an ever growing Texas population requires a combination of strong, enforceable legal thresholds in the permitting process and increased public support for sustainable environmental limits.

Link to article in Austin Lawyer

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