 Good afternoon everyone welcome to our briefing this afternoon to discuss EPA's clean power plan Will it work? Will it be upheld? Big questions that we're going to be looking at this afternoon. My name is Carol Werner I'm the executive director of the environmental and energy study Institute, and we're very glad that you're here to Be part of this whole discussion that indeed is a very complicated one we know that certainly since the Environmental Protection Agency came forward last year with their draft proposal for the clean power plan That there have been many many questions. There's been a lot of consternation in different places. There's also been Very mixed views across the country and among different sectors and among policymakers at all levels Suffice it to say Many times there's been confusion. There has been certainly interest and and also as people have looked for ways in which to really reduce greenhouse emissions in All sectors of our economy and particularly in terms of the power sector This is a very very important piece of the policies that have been put forward by the Obama administration. I Think that the EPA has tried to crisscross the country to meet with countless people and Organizations and industry groups over and over and have made quite clear that what they put out that they were wanting to really Assertain reactions and they certainly have received those with About four million comments that have been received on their docket page And indeed we are very very pleased this afternoon to Have this opportunity to hear from two people who have really looked at this whole issue With regard to the clean power plan and kind of the whole history around clean air regulation and Bring a great deal of experience to this whole area of the law and thinking about how it does get implemented at Different levels of government. So to start us off this afternoon. I'm pleased to introduce Michael Berger Mike is the executive director of the Saban Center for climate change law at Columbia Law School He's his current research in advocacy focuses on domestic and international efforts to reduce greenhouse gas Emissions to promote climate change adaptation through pollution control resource management land use planning and through green finance He has written and published a great deal and is a co-founder and member of the environmental law collaborative before joining Columbia Law School, he had been at The Roger Williams University School of Law where he was an associate professor and taught environmental law administrative law and literature He was also director of the environmental and land use law in externship program He also brings experience from teaching at NYU School of Law and he had been in the environmental law division of New York City's office of corporation counsel So again, he brings a number of years of experience of looking at important environmental law issues Mike Good afternoon. Thank you Carol and thanks to EESI for inviting me down To give this talk today So I'm coming from the Saban Center for climate change law at Columbia Law School Where we have as our mission to develop innovative legal techniques to combat climate change And we do that on both the mitigation and adaptation fronts one of the and we do this by Developing techniques and then training law students and lawyers in their use and then working with partners in the government academic non-profit and private sectors to try and implement these these approaches to legal innovation one of the things that we do is We track very closely developments obviously In regulation and legislation and the courts and we've been very closely following EPA's regulation of greenhouse gas emissions through the clean air Act and the Litigation challenges that have been brought to those regulations and that's what I'll be talking about today. So I'm going to start off by giving sort of a brief and simplified Background on the clean air act on what EPA has been up to and on some of the key Supreme Court cases that have touched on EPA regulation Then turned briefly to the section 111b new source performance standards for new sources And the and take a little bit more time to talk about section 111d, which are the new source performance standards for Exit well the standards for existing plans and the illegal debate that has surrounded that initiative So the basic breakdown of the clean air act is that it regulates it through a number of different mechanisms And there are a number of different ways that it breaks out First of all it regulates by air pollutants type criteria pollutants, which are the national ambient air quality standard pollutants Hazardous pollutants or so haps under section 112 and then other pollutants, which are greenhouse gas emissions Among other things it also regulates differently by source types So mobile sources are regulated under one title of the act and stationary sources are Regulated under other titles of the act Finally it matters where you are and whether you're in compliance with national ambient air quality standards in terms of What standards will apply if you're in an attainment area one set of standards applies if you're in a non attainment area another set of standards applies There are a number of shortcomings For the clean air act when it comes to dealing with the climate change problem. It was quite simply not written to address this problem so Looked at most honestly It was designed to deal with local and regional air quality problems not global climate change The numerical thresholds for getting in under certain provisions are far too low to deal with the Quantity of emissions that you have when dealing with carbon dioxide And it's a forfeit with international mechanisms that are currently being constructed The performance and technology standards have a number of problems as well But I'll focus on the last note there, which is that they're primarily for pollution sources, right? They don't apply to alternatives to sort of end-of-the-pipe Reductions and they don't address consumption and behavior consumer behavior They're designed primarily to address New sources and there's a limited history and limited ability to deal with emissions from existing sources Doesn't cover land use and there are no real funds in the act to deal with climate change So turning to the history of greenhouse gas emissions Regulation it all kind of started with the petition to regulate greenhouse gas emissions from motor vehicles back in the early 2000s And this was brought because section 202 of the Clean Air Act provides that the administrator shall Basically regulate quote-unquote any air pollutant which in the EPA administrators judgment Causes or contributes to air pollution that endangers the public health And so there was a petition filed by environmental groups in a number of states to make such an endangerment finding One of the key issues that wound up arising in the EPA's determination was whether or not Carbon dioxide and other greenhouse gas emissions could be considered an air polluted under the meaning of the act So many years After the petition was filed EPA did respond and decided that it would not in fact Make such an endangerment finding it actually decided that it would not make a decision whether to make an endangerment finding And it gave two reasons one reason was that greenhouse gas emissions carbon dioxide are not air pollutants under the meaning of the act And second that even if it were they would probably decide to decline to exercise their discretion to make such a judgment So to make an endangerment finding at this time or at that time That case wound up going up to the Supreme Court and the mass versus EPA decision where the Supreme Court ruled that Carbon dioxide is an air pollutant and that EPA does have the authority to regulate and that the reasons that it gave for not doing so Were inadequate and so they didn't have to regulate greenhouse gas emissions But they had to go back and make the determination and give a better explanation if they were going to not do so When they went back and looked at it again, and there was a change of administration Low and behold EPA decided that there was an endangerment and so moved forward with the finding what that finding did was trigger Everything that has happened since so on the one hand you have the motor vehicle rule Where EPA has reduced greenhouse gas emissions through a combined program It's a regarding cafe standards Which in turn triggers requirements under the new source performance standards and the PSD the prevention of significant deterioration program While this was all going on there was a separate lawsuit that was filed in In the mid 2000s and that was a common law nuisance claim where a number of states the city of New York and Three land trusts three private land trusts filed a common law nuisance claim against four power companies and the Tennessee Valley Authority saying that their contributions to climate change amounted to a federal common law public nuisance and asking the courts to impose Limitations on their their carbon dioxide emissions So they were actually thinking an injunction to regulate from the courts by the time it got up to the Supreme Court Much of the some EPA had begun to regulate they had already regulated motor vehicle emissions And they were starting to regulate stationary sources as well What the Supreme Court ruled in a p versus Connecticut was that the Clean Air Act and the EPA regulation it authorizes Preempted or displaced the federal common law nuisance. So The common law has no role any longer in dealing with direct regulation of greenhouse gas emissions So we're gonna focus now briefly on the PSD program And the regulation of sources under there So it matters whether you're looking at the PS which program you're looking at The new source performance and it matters because the standards that will apply to the stationary sources differ If you're regulating under the NSPS program, you have the best system of emissions reduction Technology that is adequately Demonstrated if you're dealing with new source review, it's lowest If you're dealing with PSD, it's best available control technology. It also matters because the regions where they apply are different NSPS are everywhere NSR is in non-attainment PSD is in attainment. The scope also matters NSPS are the only nationwide standards that you see up here. The others are facility specific finally it matters because EPA establishes the new source performance standards, whereas the standards for Prevention of significant deterioration and new source review are usually set by states under the existing cooperative federalism programs set up under the Clean Air Act so PSD kicks in because Under the regulation applies to regulated new source review pollutants and that includes any pollutants That is otherwise subject to regulation under the act But there are these quantitative limits that apply And the term major so they don't the the PSD provisions only apply to major emitting facilities and a major emitting facility is one that is defined by the quantity of Pollution that that emits or has the potential to emit 100 tons per year Or 250 tons per year the problem for climate change, of course is that the number of sources that need this threshold are Extraordinary You're talking about very very very small sources that would satisfy these quantitative requirements so in order to address that problem EPA issued the tailoring rule in 2010 which fit with it said that I was going to phase in regulation of You know gas emissions under the PSD program in step one They were going to regulate they're going to regulate sources that are already subject to the PSD requirements the so-called any way sources Then they were going to its step two Include other sources and these other sources are sources that are not otherwise Under the PSD program so they would come under the PSD program solely because of the quantity of greenhouse gas emissions that they were That they emit and then under step three their EPA says it's going to address smaller sources So the lawsuit that was brought challenging this tailoring rule among other things Started off as the coalition for responsible regulation versus EPA. There were actually a large number of lawsuits that were filed But this is the simplest way to refer to all of them And they're the DC circuit upheld the tailpipe and the timing rules So the motor vehicle rules and the rules that EPA had Promulgated saying this is the timing they're going to approach The DC circuit said that the Clean Air Act in fact compels EPA's interpretation that both any way sources and these other sources are included in the PSD program and then finally they denied standing to the plaintiffs to challenge certain other aspects of what EPA was doing This was affirmed in part in the UARG case from last year. So the question that was presented in UARG United Air Resources Group versus EPA Was the whether EPA permissively determined that its regulation from new motor vehicles triggered these requirements under the PSD provisions and We have on the one hand The Supreme Court upheld EPA's interpretation as a reasonable one to regulate the any way sources and then they rejected EPA's Interpretation that it had the authority to regulate these other sources which would come in only because of their greenhouse gas emissions as an unreasonable And that was basically the the key outcome of that case This of course is an important case because power plants contribute a large quantity of the greenhouse gas emissions from stationary sources And as you'll see on the bottom left of the slide here the any way sources account for the bulk of it All right So while there was certainly some mixed responses from the environmental community about this 83% of the emissions are captured under the Supreme Court's decision in this case only 3% are left out so turning to the The new source performance standards on the right side of the slide This happens under a different section of the act So now we're looking at section 111 B of the of the act which says that the administrator shall publish a list And publish regulations for these source categories What EPA has done so far was they issued a preliminary proposal for new source performance standards for New or modified stationary sources And their greenhouse gas emissions They revised the proposal they said that they're going to be separate standards for natural gas and coal-fired plants Basically coal-fired plants are going to require carbon capture and sequestration a technology that has been demonstrated to some degree and several pilot projects that have received federal funding but has not been necessarily Widely disseminated or shown to be economically viable for every power plant The final rule is expected this summer And the big question with this rule is is anyone building new power new coal-fired power plants and the answer Simply in this country is no They're building them elsewhere, but they're but they're not building them here So it's a to the extent that this would require CCS. It's a small universe of facilities that are going to be effective if any So there were some early challenges to the rule as far back as 2012 There was a challenge to a portion of the rule that a that the DC circuit rejected as being Not ripe. The decision was not yet final There was another case filed in Nebraska district court that made a particular argument that said that the 2005 EP Act basically barred EPA from pegging new source performance standards to CCS because it was not an adequately demonstrated technology and I I expect that we might see that again, but that argument again But for the time being the case was kicked out of court dismissed because it was not a final rule So turning finally to section 111d which has been the part of all this that is most in the news and is really the clean power plan that Is that issue today? The the section 111d provides that the administrator is going to establish a standard And it's going to use best system of emissions reduction in order to establish this standard for the states and then states are going to submit plans Similar to that provided by section 110 in order to come into compliance with this standard And the section the similar to section 110 plans is important because that's the provision That's the section of the act that provides for state implementation plans right So Ken is going to talk a bit more about this These these are the plans the section 111d plans are supposed to be similar to SIPs, but they're not SIPs and The federal implementation plan that EPA will create under section 111d is not a section 110 fit But they're similar So what's happening here well EPA must act through the states under section 111d to that extent It's very similar to what happens with criteria pollutants under 108 109 and 110 It states have to be given sort of first crack at this So the schedule right now. We're on on track for a summer 2015 final guidelines a proposed federal implementation plan States then are supposed to submit their SIPs or their it says SIP here, but SIP. They're 111d plans by summers 2016 states will Kind of automatically get a one-year extension as I understand it if they request it in a two-year extension if they're going to participate in a multi-state plan and Then compliance will actually kick in in summer of 2020 so what are the guidelines well the overall goal is nationwide to reduce carbon dioxide emissions from affected sources 30% below the 2005 levels Each state is allocated its own emission performance goal each state has to submit a plan and EPA will impose a plan where states either refuse to submit Or submit a plan that's determined to be inadequate The basis for the 111d for the for the Guidelines or the goals that the states are going to have to achieve Are these so-called building blocks and again Ken will talk I think in more detail about these But the proposed rule relies on for so-called building blocks heat improvement heat rate improvements at affected units the substitution of gas fired for coal fired plants Substitution of nuclear or renewable generation for carbon-based Generation and then the use of demand side energy efficiency that reduces generation So here EPA is relying your member earlier on I said that one of the problems is that the Clean Air Act doesn't really address consumer behavior or consumption of energy here EPA is relying on that as a building block to determine what the standard is for the states So the principle legal arguments that have are some of which have already materialized and some of which will materialize shortly EPA cannot regulate regulate these units at all under section 111 D because they're already regulated under section 112 and the hazardous air pollutants program EPA cannot regulate beyond the fence line that is they can't require the Inclusion of new facilities that are not already included renewable energy nuclear energy and they can't Require states to do anything concerning concerning consumption The BS er the best system of emissions reduction determination is unreasonable because it looks at these beyond the fence line measures And then finally as a sort of catch-all EPA is not the energy regulator And so anything that it has to anything that it says that really pertains to energy is beyond its authority So there has been One lawsuit that was filed already There actually is a second West Virginia versus EPA that I'm not going to touch on but the Murray Energy Corporation case Was filed in 2014 and this is the Case that says because they're regulating these same facilities under 112 and the hazardous air pollutants program They cannot regulate under 111 D Note that there was an argument last week or the week before On this Michigan versus EPA case where some of these same parties were arguing that the EPA's regulation under section 112 Was it improper? So the defense is EPA's action is not final So this case like the other cases that I've mentioned so far was just not is not properly in court And then there's a tricky issue of statutory interpretation about this House amendment and the Senate amendment And which one is the proper way to read section 112 In addition we have the more popular and more visible arguments that have been set forth by Professor Lawrence tribe first as as an amicus in the Murray energy case and then more publicly in in various in testimony to Congress in Publications and through senator Mitch McConnell's Reliance on his arguments in his letter to governors encouraging them to refuse to comply In essence there are a few arguments that Professor tribe makes One is that the process of creating and developing these state plans and any federal plan violates the 10th amendment and amounts to an unconstitutional commandeering of state resources That the burdens on coal plants in particular are unconstitutional because or are an unconstitutional taking because they interfere with investment-back expectations That the singling out of coal amounts to a violation of the coal plants due process rights That the interpretation that EPA has offered expands their authority beyond there's that the statutory authorization And all of which for any lawyers in the room sort of gets bracketed under or Under the same single umbrella that these raised serious constitutional questions And so EPA's interpretation has to be determined to be unreasonable and can't be given deference under the Chevron doctrine Now there are a number of responses to these arguments And I'll quickly summarize them here First there's no 10th amendment issue because what's happening under section 111 is Analogous to section 110 and the sips fits process in fact It's very similar to the cooperative federalism model that has existed In the clean air act the clean water act another federal legislation for over 40 years in addition the clean power plan as proposed does not mandate any specific state action and in fact preserve state flexibility to use whatever mix of Measures the states find appropriate to achieve the given standard And as I said, this is the same thing that's been done for for over 40 years under section 110 It's not a taking because the power plants still have significant value I think that the estimate is that power plants will still contribute 30 percent I mean that coal plants will still contribute 30 percent of the nation's energy supply under the clean power plan And that's certainly natural gas fired power plants are not going anywhere also Businesses are not insulated from future regulation by the takings clause if every time there Was a new environmental problem that was discovered The existing polluters were insulated from regulation by takings clause There would be very little ability to deal with environmental problems Finally the interpretation doesn't expand EPA's authority because these existing plants are already under EPA jurisdiction So very very briefly. I want to touch on the just say no campaign the Gist of senator McConnell's letter is that professor tribes legal rhetoric is Reliable and appropriate that EPA is attempting to compel states to do more than they would do on their own That supreme court precedent Basically counsels against allowing EPA to undertake any such expansion of its authority But the deadlines that are imposed this 2016 2017 2018 deadline They're all there in order to force states to act before this litigation can be resolved and that ultimately Submission of a plan is tantamount to surrender to EPA's control Why states should ignore this? First of all as I said the the legal rhetoric lacks legal merit If you say if a state says no it in fact does see the control to EPA because EPA will then be the one designing the plan for the state EPA will likely be limited in what it can do within the state's boundaries But it will still be the one designing the plan And so the state is in fact surrendering control to EPA in that instance Rate paper rate payers likely fair worse under a fit because it likely will be limited to power plants And these other more innovative measures will be difficult if not impossible for EPA to implement So rate payers will we'll get stuck with the bill And then there are a number of other reasons that are summarized there The most important one being that climate change is not going away The supreme court has said that EPA has the authority to regulate under the Clean Air Act There's a natural natural sequence that I've sort of traced over the course of this presentation That leads ineluctably to the conclusion that EPA will be regulating power plants or that power plants will be regulated Under section 111d. So if not now it will come at some future point Finally, you know the right side of this of this chart basically shows the Contribution of coal to greenhouse gas emissions by the entire U.S. Economy and the natural gas power And the natural gas power plants as well in the lighter blue there So you can see that and it's really necessary to address emissions from this sector in order to address Greenhouse gas emissions and the climate change problem in the United States The last slide I have here Just shows If we continue with business as usual along the top there how how far we exceed our global climate budget of 450 parts Vermillion which would keep us within the two-degree goal that has been recognized by the international community as a goal which will keep us beyond which we get into the You know unknown unknowns scenario So you can see here that you know state compliance with this particular plan will go a long way towards Achieving our eventual goals Thanks very much And that was a very impressive tutorial that you just walked us through But we thought that it was really important to kind of understand some of the the history of the Cases that had been brought with regard to the Clean Air Act and to walk through a lot of these issues And what are some of the key? legal arguments that are being raised and and What what do we know? What do we understand about all of them? So now we are going to turn and take another look at okay So so what does this mean in terms of? Well, if if we're going to have some sort of a clean power plan We don't know exactly what it will look like in terms of the issuance of that final rule But how would it work? What do we know in terms of how could it work because what we've heard is that and know that That states would be given a lot of flexibility Some direction, but a lot of flexibility to come up with what they would see as being more appropriate for their own situation And and from a state perspective sometimes that's good sometimes not so good in terms of looking at all that flexibility So to talk to us about that We have somebody who it has comes from working a lot with states in the past and it can Colburn who is going to address this issue in just a few minutes is a senior associate with the US program for the regulatory assistance project or Commonly known as rap, but he does not really do music as part of this whole thing. I just didn't want to mislead you about that and rap rap plays a very Kind of unusual and very Important and helpful role. I think in so many different policy fronts across the country in terms of thinking about air regulation all sorts of energy policy For state regulators at the commission level energy offices Air offices, etc. And it is actually a non-profit group of Experienced former utility and environmental regulators who provide assistance to public utility commissions and regulatory agencies throughout the US throughout China the EU in India Before that can actually have been with an independent consultancy Doing work on energy air water climate issues in which he was providing assistance and working through different kinds of climate plans with NGOs with progressive companies with foundations with with a variety different state agencies and I first met Ken Many years ago or a number of years ago That sounds better a number of years ago when he was the executive director of Nescom Which is the Northeast States for coordinated air use management and And before that he had led the air resources division for the state of New Hampshire And he had also worked for a business group in in New Hampshire So he brings a great deal of experience across sectors in terms of working for business working at the state and regional level On all of these issues and now working with a group of former regulators to really help States to help businesses to help all sorts of stakeholders Look at these issues and what do they mean and and how would one go about? starting to design and implement Something like the clean power plan Ken Thanks, Carol, and thanks for your kind words Yeah, I'm reminded of a time when my position in New Hampshire was a political appointee And I was nominated by a Republican Initially, and and he and I were riding up in the elevator one day in the state house And he was trying to introduce me to another fellow on the on the elevator And he couldn't remember you know all that long lengthy names of these divisions of state agencies and I Interrupted him halfway through so I'm the state airhead So that that may be the easiest way and may also explain some of my remarks as well Let's see if I can learn how to drive this thing. You'll note before I do that. I slightly modified Carol's Introduction here will it work? Guess I have a light. No, it doesn't show on the screen. Sorry about that Will it work? I'm not sure I know or anybody know at this point But how will it work? I do have some insights with respect to prior experience on the air side So Carol's already given the introduction the only thing I would add is that as a group of veteran regulators mostly PUC and some air guys I'd like to frame it as we advise current regulators to so they can avoid making the same mistakes. We did We we are non-advocacy so there were not four million in one comments We did not file comments and we don't intervene in dockets or in the notice and comment proceedings We just have quiet conversations with existing regulators so they can depend on us rather than figuring They'll see us in an advocacy role around the corner Carol already gave you my background So let's turn to what I hope to cover for you today I want to set aside a bit of the hype and just look at what some of the markets are saying to start with It's always useful to look at what the markets think about things as a compass And then touch on a number of ideas of how the clean power plan is likely to work and then just some key takeaways There's more than these ideas or issues as well. So hopefully we'll have some time for you to raise yours Setting aside the hype and looking at the markets. This is an excerpt from a recent piece that UBS put out it starts with What the clean power plan has been lamented for a long time, but it looks to them at least like it's going to be Legally binding that coal retirements are not likely to happen because the key plot can the clean power plan I keep saying 111 D. I trust you all know these synonyms anyway It's more likely to come from other eggs and the fact that the coal plants have weaker economics at this point In fact UBS sees the next wave of capital expenditures for utilities is Deriving from the carbon rules and that smart managers smart management teams will be in front of their regulators now With plans to achieve the clean power plan targets And thus were likely to get faster capex expenditures rolling With a slight restatement of my favorite line in here to say if you're not at the table You're they say you're on the table. I say you're on the menu. It's the way I learned that one It amounts to the same they they actually continued in a different piece about mats itself the mercury and toxics and Said on that one. Does it really matter and their assertion there is That they don't think many coal. This is with respect to the Supreme Court Concealing this issue that it doesn't really matter most of the coal plants will not elect to continue their operations few have played in PJM at least its capacity market and That they have resource adequacy plans in place We don't think that many will opt to delay retirement. So even mats may not be a big play More importantly more broadly the power sector is dramatically changing at this point So it may be that just say no isn't a very wise answer utility dive recently surveyed 400 Electric utility executives and this is hard to read because of the colors I pilfered it right out of their materials, but it says what three emerging technologies Do you think your utility should invest in now and it's things like energy storage and efficiency and renewables? It's you know down the bottom is coal gasification and other and and carbon capture So that's a pretty clear indication the second thing they asked or another thing they asked was what do you think your utility's business? Model will be the top one dark bar is the traditional integrated utility model You see that drops by about three times and in this place is Electric utility services companies and integrators and so forth So that's then a then a third point the raise of what business models are you guys thinking of and that's all efficiency and DG and aggregators and This one was most surprising to me. How do you think EPA should proceed and they said this is what? 60 62% of them said EPA should hold to its current emissions targets and schedules or 28% said should increase make it more aggressive So almost two-thirds are saying get her done So I would suggest to you that the that just say no might not be a good place for Elected officials to position their states going forward against the industry trends not just EPA's clean power plant so Imagine you all think when EPA finalizes the rule then the states have to buckle down and attend to those four building blocks, right? Not so actually BSE are which is the best system emission reduction how EPA? Built the targets using those four bill block building blocks goes away The states get the target and they get a clean sheet of paper EPA steps back lets them work and moves into approval mode or not if the plan is deficient And then if it is deficient then the EPA needs to of course implement a federal plan This is all pretty uncharted territory We don't have much guidance One thing we do know is that states get first crack at implementation And this reminds me of Alphonse and Gaston after you know after you I insist please It may be that EPA has given too much flexibility or the terms of the act provide too much flexibility Because the states are saying what do you want us to do? Give us some guidance here and in EPA said whatever you think is best and And this is states and can you give us some direction please and he pays well How about some innovation you know come in with something and this is all based on the cooperative federalism that Michael mentioned that Once the standard set EPA has to step back and let states come in with the plans that most nearly meet their needs And in fact EPA has been litigated for not having done that and lost in the past on other issues associated with haze And ozone and so forth So you can bet with everybody targeting one lawsuit or another is Michael covered against EPA on 111d that they are going to keep their lips absolutely shut About anything associated with what you the state should do so after you I insist One thing we do know is that a 111d state compliance plan is not a sip and a colleague And I recently did a paper on that so the website is there Hopefully it's legible on your on your handouts What it points out really is that the act which calls under 111d for similar to section 110 Plans are not the same as they're not identical to so there's little state experience with 111d in fact In the trade we refer to it as the 40 year old virgin because it's been used so Infrequently in the as a part of the Clean Air Act There's relatively little cost in useful life Experienced at the states of head because usually they're dealing with national ambient air quality standards Which are explicitly told them the act not to consider cost except when it comes to final implementation The measures timing and contents of the state plans are equally uncharted EPA has given a little bit of what it expects what it needs a list of sources that kind of thing But pretty little and there's almost no precedent as well for multi-state options There was the Northeast those on transport region under the act as a Western regional air partnership but that grounds pretty thin as well and What the federal response is and wanted when it's instituted is also uncharted and so a lot of Uncharted ground now one thing the states could do is treat it like a sip But if they do that then they'll foreclose options with respect all the flexibility that he pays provided So I was talking about markets if I'm a financial advisor Taking the sip route is selling you bonds. All right, they're safe. You know, it'll work. They'll be approved But your returns your rewards your opportunities will be far less than if you also had the opportunity to go after equities and other markets So that's the analogy to 110 if you take a standard 110 sip approach to 111d opportunities an example of the differences Certainly evident in the way the regulators need to interact the air guys in the and the PUC guys Historically seeing this two-by-two matrix. There's is diametrically opposed, right? The the air guys had the authority to adopt the admissions requirements and the PUC guys have nothing to say about that and Who gets to determine who pays how much for these this opportunity? PUCs determine all of that and the air guys get no say so at last if nothing else 111d the clean power plan has started those two groups of regulators talking to each other into breaking down the stove pipe Indeed just to quote UBS again here state environmental regulators will become substantially more important with responsibilities rivaling those of PUCs and they even dictating resource adequacy as they unveil their sips well UBS called it sips because nobody's got a better shorthand, but as we just said it's not sips Now you're all aware of EPA's for building blocks. That's what it's covered Michael indicated There's several little spins on those, you know in the heat rate improvements stuff you can do with CHP or optimizing the plants Besides just burning more gas you could shut down some some of the aging plants renewables You all know about that's just lower greenhouse gas Generation and then there's a lot on the efficiency side, you know behavioral programs applying standards building codes other efficiency Programs, but what you may not be as it's familiar with is there's a host of other options that are not one of these four building blocks What about optimizing grid operations or reducing line losses, you know there's resistance in the line So the kilowatt hour you got might have taken 1.1 kilowatt hours to generate the point one gets lost along the way in resistance There's some there's some things we can do about that What about escos energy service companies and privately delivered energy efficiency even the states aren't counting that yet You're gonna let those tons sit on the table uncounted. I hope not. I hope the states aren't Encourage clean distributed generation Make changes in capacity markets states that have them IRP utility integrated resource cost planning lowest cost planning you could in Introduce something like cap and invest program similar to Reggie or something like it It has a lot of advantages or do environmental dispatch, which is non-trivial or carbon adder which one major Generation and tech and transmission company in the upper Midwest GRE great rivers proposed actually And of course you could all there's been some talk about carbon taxes Realizing indeed I would call your attention the fact there isn't just rate based approaches and mass based approaches also price based approaches If a state wants to go that way under its plan under if under its alphonse and guest on plan Finally, what about water even well, they said wait a minute. This is electricity, isn't it? But no Janet McCabe was asked at a narrow meeting National Association regulatory utility commissioners a year ago That given in a state like California where 19% of the electrical load is Water production Transportation and treatment of water what could water conservation measures be considered 111d? Compliance opportunities, and she answered affirmatively There's a menu of options that we've been helping the National Association of Clean Air agencies with and it'll list 25 of these and that's coming out later this spring I think it'd be end of this month early May something like that So I call your attention to look for that so the practical effect of 111d's building block Is then the conventional wisdom is that states will consider these four building blocks and likely do something in each one Each building block will likely be greater than zero what I'm suggesting to you is that the actual opportunity is far greater That there's this other building block or blocks and that you may indeed have some building blocks that EPA use that you don't use at all The bottom line is that states can it should think outside of that building block box and They ought to think in terms, you know the old saw about better seek forgiveness than ask permission This is better seek approval than ask permission An example of that this is EPA is a visualizer. It's a what to call a bridge chart how you get from here to there and the bar on the left shows their current or the 2012 emissions rate the bar on the right shows the target rate and then the steps in between and how they got them building block one is the the heat rate improvements and What Texas could do is? alleviate the burden on the plants themselves by instead Redoubling their energy efficiency efforts So if you make all those reductions come from a redoubling of energy efficiency, then you don't have to touch the On-site heat rate improvements at the plants Another thing to be mindful of is let's not be only thinking about generation units There are a lot of co-benefits that states need to keep in mind as well In this chart, and I'm sorry. I can't point at it because of the screen But the two by two matrix here is air quality benefits up and down Climate benefits right and left and there are things you can do for air quality like install scrubbers That that hurt the climate because they have parasitic load they take energy themselves so they've been more CO2 and Conversely, there's things you can do for the climate like diesels that hurt air quality because there's more particular missions and whatnot So the place you want to be is in that upper right corner where the efficiency is and in contemplating those multiple benefits the bottom line is that good air quality choices can help with 111d and vice versa and Though both of those choices if done right can also help with water And you can approach these things on an integrated multi-plutin basis and there's another link there We call it the integrated multi-plutin planning for energy and air quality You can actually add water to that, but I couldn't figure out how to make the acronym work Example of that, you know that EPA's clean air act advisory science advisory committee is considering revising the ozone next All of those gray dots are what would be added to the mix Depending on what the committee and what ultimately EPA decides to do with the ozone next you can see It's a near doubling maybe even more of the areas that could be in non-attainment Water is a main critical issue the black areas here are high stress for water And as you know steam electric generating units need steam Which means they need water and plants have been derated or even shut down Due to water temperature and quantity issues before so this this is a real issue for those plants as well And keep in mind risks generally with the industry changing so rapidly Major capital expenditures at this point looking beyond five years and most of them have been amortized over 30 It's like what are you crazy? You think you can predict what's going to happen for 30 years You're really looking at a rare stranded cost opportunity. I don't think any of us want to take that opportunity So again, you have efficiency down in the lower corner the least cost and the least risk The problem is that efficiency is really hard to measure At least there's not a whole lot of precedent for it Some of you may know that these rings on this power plant stack are where the continuous emission monitors are Those probes go in the stack and measure the concentrations of pollutants in the flue gas and that gets sent to the plant and to EPA and the local State agency as well. They measure the emissions in the plant which I represent with measuring tape and then all that feeds into EPA sips and that can actually be sips because these are sulfur knocks and so forth excuse me again Now energy efficiency of course is its energy So it should be measured and fed into sips in the same way, right? Well, yeah, except like the bulb shows there's millions of these sources Nobody knows of where they are and when they're on and so forth Well, true, but Well, wait a minute. EPA also regulates millions of other things They're called vehicles and they don't know where they are and when they're on how they run either and yet They use statistical analyses and models and assumptions and penetration figures To work numbers into sips Why can't we do that with efficiency? There's some other simple ways too many PUCs that have utility sponsored demand side management efficiency programs If a program's been done over and over again, they don't go to quite such a heavy and evaluation measurement and Yeah measurement evaluation and Verification thank you EM and V the acronyms get so deep in the air world. We just live with them We don't bother translating. Why can't we have deemed they so what they do in those circumstances? They have deemed reductions you do this program you install this many bulbs will deem you as it having achieved this much reduction Why can't reduction energy? Why can't we do the same thing with reduction in emissions? There's some assumptions you have to make with that what what was the system average emissions or whatnot But it can be done, you know, this is a case where you can really let excellent get in the way of the good There's other things you can do EPA has what's called the AP 42 emission factors Which is sort of a menu in the better your data the more credit you get they could do something similar for for energy efficiency Or it has mobile source models. Why can't it create models for efficiency as well? You know in in pops your inputs and now pops your emission reductions They've even taken some steps in that direction. They haven't just credentialed them yet as Qualifiable for 111d plan compliance and remember EPA has more Flexibility under 111d than they do under 110 everything isn't scripted in the act like it is under 110 So they should be able to do this stuff readily State should also consider Joining together with their colleagues in other regions the larger the market area, of course We all know the likely that the more cost opportunities exist so lower costs will be more compliance opportunities exist So lower costs will be It might be wise for example to try to align your state partners with your Electricity balancing area your RTO if you have it or balancing area if not Many states don't want to go jump in bed Whole hog with another state or other states. It's complex. It's political, etc But some are and notably the West are thinking about well, couldn't we all just agree on say renewable energy? And we'll we'll measure it the same way. We'll track it the same way. We'll count it the same way Couldn't we do likewise with efficiency? So the Western states are already breaking that trail and a lot of that Infrastructure already exists as many of you know their strong rec markets renewable energy certificates Which are commodity used for meeting resource renewable portfolio standards in the states That tracking system is already pretty healthy on a national basis and this very little it has to be done to make it an efficiency And renewable tracking system I'm getting some message. I Hope I didn't do that more memory Good. He didn't blow up quick On federal enforceability something I should raise because that's caused a lot of attention You know that a lot of folks have said EPA wants to come in at least in PUC commissioners are quite concerned about EPA coming in and taking over their efficiency programs I think you all know that vertebrae Inside the Beltway here Could EPA do that? Would EPA do that? Has EPA ever done that? Maybe and no and no What what actually happens is EPA determines that you have a deficiency and notifies the state Gives the state the opportunity to correct that deficiency And then if it doesn't or can't EPA can implement its federal plan. It doesn't come in and run your plans The suit here needs fond of pointing out when she was an environment commissioner in Massachusetts There was a 20-year saga of EPA not Of the state of Massachusetts not succeeding with its plans and EPA still didn't come in and put the hammer down and run its Programs and that all by the way is what happens under 110 We just said 111 is even more flexible than that So how likely is it? Do you think not very? What will the federal plan look like another big area of interest? I don't know either right nobody except maybe somebody inside the agency does what we do know is That the states will relinquish their Alphonse and Gaston rights Right, they won't have first crack and EPA We also know is freed from adherence to the building blocks. It used a building blocks at the target end of story I got the target now. I can do what I want because you said you didn't want to do it You just said no Well, that's interesting EPA is like unlikely to do a different plan for every state, right? it's likely to develop a federal plan and implement it in the states Like maybe say a mass-based cap-and-trade system so could it be that EPA is being accused of wanting to do a mass-based cap-and-trade system and adjust say no states would drive it toward that outcome that might be a backfire that The force is suggesting just say no might not have anticipated. There's numerous other issues What's the glide what's going to happen the glide path treatment of nuclear units treatment of renewables and efficiency? Baseline safety valves we could talk about those if they're of interest, but I don't want to do so alone But don't whatever you do expect that all the answers will occur You know be clear in the final rule EPA is trying to do this on a schedule You all know the reasons for that and multiple No one's ever done it before there will be plenty of questions After EPA issues the final rule so the key takeaways for you Recognize that 111 D is not a sip right everybody repeat after me not a sip leave this room saying not a sip that's a new mantra Think outside the building blocks help your states think integrated in terms of these multiple benefits So they don't come back at you with those on and come back at you with PM You get it all at once think regional Think lease cost You notice in these discussions not a whole lot of people are thinking lease cost There are opportunities for lower cost options mostly efficiency and then finally to just paraphrase JFK Don't ask EPA what it needs to be right ask what you want it to be and submit that so thanks very much I hope we have a good dialogue from here Thanks so much. Well, we've had two great presentations in terms of looking at so many of the issues around 111 B and D under the clean power plan and Let's open it up for any questions or comments that you may have Take advantage of having these guys here. Okay, and please identify yourself. Okay, Mr. Bird. You mentioned that That Enforcement would begin in 2020 Can you tell me what would enforcement look like if you presumably you're enforcing against the plants? But if you've got our recalcitrant state, how does that what would happen? It's a very good question Plans under the existing proposed plan as it anticipated to begin in 2020 Section 111 doesn't section 111 D doesn't spell out what the penalties would be for non-compliance So what would enforcement look like? I I Imagine would be something similar to what you see with sips which is an effort to cooperate for a long period of time And there's no ability to withhold funds or anything like that So not quite sure Maybe somebody else has an answer to that My only contribution on that was we might have some insights as a result of when the federal plan is proposed Which is supposed to be done at the same time as the 111 D rule is finalized So I I don't know if EPA will give us more insights into that issue at that time, but that would be the next place I'd look hi Tom Tyler from the Environmental Council of the States. Thank you to you both EP the Supreme Court or the courts have upheld EPA for the mercury and air toxics rule and for the transport rule And people I know are looking at those and thinking is there any indication of how? EPA will fair for the 111 D clean power plan I know there was language from the courts, and I don't remember which case it was from saying, you know, yeah We're gonna uphold this but EPA shouldn't take vague parts of the Clean Air Act And it was something like that are narrow and drive a truck through them I think a lot of people read that to be at least one Judge and maybe more indicating you were looking at 111 D Can you remind us which case that was from who said it? And and if if we should be looking that as an indication of how EPA might fair When all of this litigation comes out right after the rule goes final. Thanks. I believe that that's UARG case and somebody correct me if I'm wrong on that I believe it's just a Scalia and I Believe that the issues are distinguishable that they're different the the issue in that case was whether that That was being referenced at that point was whether EPA could Start to regulate facilities that it does not currently regulate and whether these facilities that emit a hundred thousand tons per year of carbon dioxide equivalent emissions Could now be required to get prevention of significant deterioration and title five operating permits whereas previously they don't because they didn't meet or they don't meet the Existing thresholds So that would be an expansion of EPA's authority to facilities that currently are not under EPA is under these programs That's not what you're looking at under section 111 D You're not looking at an expansion of the EPA authority permitting authority to any facilities that aren't currently under their jurisdiction and to the extent that There's a concern and I think that there is a concern that EPA will try and go beyond the fence line and it may be that that reference in part Voices gives voice to that concern that EPA will make some effort to try and directly regulate the state PSC's or PUC's or they will try and implement energy efficiency renewable energy programs directly in the states Which would be an expansion of EPA authority. They don't do that I myself See believe that EPA is well aware that that would raise Legal cannot legal legal problems. So I don't see that as particularly likely Sean Kimmel with congressman Dan Lepinsky's office So there's some discussion about the amount of flexibility that's been offered to the states and how It's an opportunity, but also a challenge. Can you assess the resources that will be available to states to help them in making those decisions? I Think that's another unanswered question I think that EPA has indicated that they are preparing to have some kind of fund Which if not directly Targeted for that purpose Is only slightly circuitous to be helpful in that regard, but I'm really not on the front lines of the financial side of that So I think they're aware of it. I think You know ideally they will be doing the kind of modeling that will assist And be pretty generalizable for states But certainly they have to get past this final first one of the problems is that 111 D What it does contain statutorily is pretty thin as I indicated because the rest is left flexible But what it does contain is is some reasonably tight time frames You know the state air directors are used to submitting sips over two and three and four year periods And 111 D calls for a one-year period Which EPA stretched if you work with other states to a two-year period and figured out some waiver or some Some emergency provision that could have a third-year extension But that's that's not just EPA's imagining. So that's actually part of 111 D So they're aware of it. I trust that they'll work on it, but I actually don't know specifically how Sorry Hi, Paul Donna who've led from the Department of Energy So I know that 11 D implementation plans are not sips, but is there a way that you can say how EPA will Evaluate plans that are submitted what sort of stringency they'll apply and what things might trips tapes up when they When what they apply for a plan I Think the answer is no with increasing VMs No, they haven't provided much guidance on that other than the simple things like list of and you know, whatever you're doing but what criteria they're going to use to evaluate especially where States depart from the rate-based approach. So if they're using a mass-based approach, they have to do a conversion EPA's prescribed a couple of ways to do that But there's a lot of data issues there and states may differ from EPA's, you know, initial simple interpretations So the the short answer on the first question about how EPA what criteria that we use I think is another thing we need to wait for the final rule The other two are even less certain I guess I would just add that and and are likely not all to be totally answered I think the first one criteria will be answered reasonably well in the final rule The others not so much probably there'll be an evolution here Sort of a case law Character to it, even though it's more regulatory proceeding and case law, but some something of that nature I think I would just add that I think the standard will be something akin to adequacy that will be the legal standard What is an adequate plan will be one that EPA is persuaded is sufficient to reach the standard That's set in terms of how they're dealing with 25 different building blocks and so more than what exactly they want to see You know, well, we'll have to wait and see But I agree. I think that there will be ample communications with the states as well as guidance and the like I actually hope they take that criteria because that will allow states a lot of freedom to do a lot of things like estimating energy efficiency emissions as if they were vehicles and Then if EPA is persuaded as adequate they can go ahead and if there's any true up or reconciliation necessary at a later time Where EPA? Finds that it's inadequate then the state can go back and fix that Do another measure and do that measure measure on a more stringent basis or you know, some corrective action Rather than coming in and running the efficiency program, which is not going to happen I Have a question for you Ken, which is no fair. I didn't know So It's directly related to this question and about calculating efficiency measures And I'm wondering if you could explain a bit why it hasn't been done yet If there's there are reasons for that and particularly the concern that immediately rises to my mind as well There's there are studies that show when efficiencies increase use also increases. So how how would you account for that? Wow, that's that's really three questions To address the last one first and then I'll have to be reminded of the first two What Michael talks about is is rebound that when when energy prices drop or efficiency increases as a tendency to use more You always hear about rebound rebound and Jevon's paradox and so forth and because it's nearly free now I leave the lights on I don't bother to turn them off You never hear about spillover Which is the opposite effect, which is when I went install the solar array and my neighbor said that's cool And he installed it we just measured the guy that got the rebate or whatever never any mention of spillover And that is what little research has been done on that shows it to be as big or bigger than rebound So rebound is another one of those red swimming vertebrae by and large and I've succeeded in forgetting the first The first question was just can you is there is there an explanation a historic explanation for why? Yeah, it's a really good question. I think it's evolutionary Originally, there was enough sort of low-hanging fruit at the end of the pipe that the end of pipe control measures were the way Pollution control solutions were were crafted is what people thought of Eventually along the way efficiency became clear as a more cost effective sometimes even negative cost saves money Approach but there was nothing really in the act and that that That supported it or encouraged it in fact arguably quite the contrary because most of EPA's life it has been Undertaking measures that directly reduce emissions at a facility So I put this scrubber in at this plant and it reduced these emissions That's a much harder trail To you know leave the breadcrumbs along the path for efficiency Because I reduce it, you know, I reduce my energy use so the electric plant nearby reduced their generation, right? Well, maybe not it might have been a different plan or it might have even been a plant in a different state And now it's not even on their same jurisdiction. How are we going to track that because we can't track the electrons? Okay, now we really got a problem the best we just ignore it and not do efficiency and that's basically what you pay has done until 2004 when it allowed Connecticut a little bit of leeway because Connecticut had such stringent legislated Energy efficiency programs so EPA felt it possible to go all the way to six percent They would allow up to six percent of the state's obligations to be met through efficiency. Well, that's not exactly cutting loose is it? So what if nothing else what 111d does you know set aside the merits of whether 110 really does say you have to track electrons We know that 111d does not say that So EPA you can run with this one now the trouble of course is they haven't got any infrastructure intellectual Basis yet for moving that forward. We a rapper trying to provide some of it to them with deemed reductions or mobile source analogy And hopefully they'll use it But this is if there's a place where EPA could fall down It would be on this front and you can't depend on states on doing this I was an air director for 40 years air directors have been told what to do under delegated authority of the act from EPA I'm a mechanic. I'm waiting there now saying What am I supposed to do? Right in fact, I left out two slides which cover this but if you want to talk about energy efficiencies savings energy savings I I'm We're going to get into em and v. We're going to get into time of use We're going to get into marginal plants, and I'm going to run screaming from the room And and if I stay in the room now we can talk about translating energy savings into emission reductions and now we're going to talk about What what time of day it occurred and whether it was net versus gross and whether there are free riders And now I don't understand any of this stuff. I'm really running from the room I know how to solve this problem. I'll just permit another gas plan And that's the dash to gas and that 30 years from now. We have the same problem and utilities behind me are saying yeah Yeah, we can rate base that that's a good idea. So EPA could screw this up But it's not in any way that you normally hear about in the news Terry hell with the passive house Institute and And In your slide, but many other technologies and policy options exist Is there any talk about including the grids existing grids of vulnerability? to attack as one of the Items that could be included in this That that's a really good question that should be under that general category I referenced of co-benefits I think I mentioned security there somewhere or maybe I'm thinking of something different That I've been working on but it should be included in there. It does not relate to emissions, you know, it's not energy generation or avoidance thereof With associated emissions, but it is one of those co-benefits like water like dollars like ozone like, you know other co-benefits in fact, I don't mean to Too too much here, but rap recently did a paper a year ago Call realizing the benefits of the what the full benefits of energy efficiency and includes things like Productivity and comfort and so forth Usually they're all just kind of lumped together and said other stuff that we're not gonna assign any money to Security is one of those But you tell me if it's a very important one and particularly after we saw parts of that grid here in DC go down yesterday, right? I do have questions for Kenneth as well But first for Michael it depends on how I'm gonna let me ask him You were listing the legal arguments in Murray energy, which of course is timely since it'll be argued tomorrow and you know, we can be sure that those will come no matter where that goes even if That that may stop 111D in its tracks But if it doesn't those are same arguments will come back and and on two of them The arguments were compelling, but you gave reasons against them very common sense One was on 10th amendment and I think the point you were making was Cooperative federalism as well established and the idea is states aren't forced to do anything if they don't do it He'll just do it instead I think that's your argument and then the other one that I noted was that this isn't taking because Not each regulation, you know could be a taking on the investor-backed expectations. So I'm curious I trust those are both well established legally So you have reasons to believe that even though they're being argued by the plaintiffs. They won't succeed now or later And I was also wondering if if the plaintiffs succeed on the idea that it violates the 10th amendment Could that take down the whole cooperative federalism structure? It's well established under 110 But they'll be looking at it a new under 111 and depending on if they blew it up under 111 Could that be an issue for the way the Cleaner Act has worked for decades? I think my my first response is I believe that these are arguments that were raised by Peabody energy as an intervener Not by the plaintiffs, but that they will be presented that professor tribe will be given a chance to argue these points The argument that there's something different about the 111d setup In regards to the cooperative federalism is very dangerous Could it there? Yes, could it explode the whole the whole operation? I'm not I'm not really an alarmist So I wouldn't I wouldn't go that far, but it would certainly run contrary to All of the jurisprudence and to the way that the statute and other statutes have operated for a long time The way that I understand the the clean power plant in a way that Ken has discussed the building blocks and the relationship to BSE are It it just seems to me that there's There's no reason to believe that this is different than anything that's been approved many many times before Robert melts with the Congressional Research Service It's quite true that historically the mechanisms that have always been described as cooperative federalism Have not been susceptible to 10th Amendment challenge The Supreme Court decision in New York versus the United States is the main one however People in my office who attended the King versus Burwell argument said that for the very first time Canada and I believe they said so to my or raise the possibility that some cooperative federalism mechanisms could Circumstances be challengeable into the 10th Amendment, which would be quite a new frontier Great. Thank you very very much for your comment questions or comments in the back I'm with the hundred people foundation I'm wondering how the quadrennial energy review will affect the implementation of the clean power plan or if it will I Could almost do cart launch with I don't know for most of these questions. Good night. This this would be another one. I Don't think too much. I think ultimately DOE Improves our colleagues here from DOE could elaborate but my understanding is that it's focused this initial quadrennial energy review on transmission infrastructure or you know more upstream kinds of elements That would have less direct Relationship to generating units though obviously it's important for a number of reasons Renewable penetration so forth So I don't want to suggest that there be no relationship, but I think it'll you know It's a first waffle too. So it it probably won't have sunk in as much as it might or be as Developed with future focus areas of future quadrennial reviews That would be more helpful to the states and implementation I think that'll all happen with time Let's face it. This is you know what we've seen what three or four revision of the Ozone knacks a couple of revisions of particulate matter knacks We'll we'll see that I think the 111d requires an eight-year review of New source performance standards. So we'll be back. It's just that this is the first time So it's pretty groundbreaking and in terms of interest levels. Do you have any insight? Hi, I'm Audrey Towsher Towsher international my question is not with the quadrennial energy review But it's about what you think the realistic likelihood of EPS time frame for implementing the rule is Reliability has been an issue that's come up a lot by RTOs FERC Neighborhood and they've said we need more time to figure out dispatch rules transmission issues So I'm wondering if one of you or both of you could comment on Whether you think the implementation will be delayed Yeah, that would be one that I would never want to say never on but I doubt that the finalization of the rule will be delayed and EPA has a pretty careful tight rope to walk in terms of implementation because the extent that things are specified under 111d in the act They're shorter rather than longer. I think where you're apt to see the kind of delay that you're talking about is Perhaps in the form of enforcement discretion or you know I don't want to say looking the other way in the pejorative sense But EPA understands from its own experience. It's the first time it's done this So it's also the first time states have done this and I wouldn't be at all surprised if they do incorporate some kind of safety valve They're typically emergency waiver provisions in most federal acts anyway, so that wouldn't be surprising I would suggest that the history of Liability concerns at this stage of the game Being ultimately manifest in reality is is pretty thin You know there we were Matt's was the end of life as we know it to right and then it turned out to be a nothing burger and I I have well a Saying that I coined once upon a time facing this kind of situation was Ask an engineer to do something and you get nothing but problems Tell an engineer to do something and you get nothing but solutions So we are at the stage where we're asking the engineers and they're thinking everything that could go wrong When EPA signs that dotted line it is now telling the engineers and lots will go wrong But everything won't go wrong and some new good things will occur and I suspect that We might be in a situation, especially as the industry changes, especially as demand declines with improved technologies and alternate generation distributed generation opportunities so forth We might find it to be an equal nothing burger. I Would just that I second the point. I don't I don't see EPA's proposed rule Becoming finalized any later. I don't see any delay there. There's a clear reason to move that along As far as implementation the late submission of plans Similar to sips would not be a surprise It's happened before right there that things are handed in late. I Have done it myself and and and this is and there are a lot of technical difficulties here And there are political issues as well, right? So some some plans will not be submitted at all And so but they won't be late necessarily until until they're late So yeah, hi Davis borough's morning consult As you've discussed this the clean power plan is kind of fighting a battle on at least three different fronts here You've got one with Congress one with the federal courts One potentially with the White House if it changes, you know if the Oval Office changes hands in 2017 and then you can even add States into that who either refuse or or fail to meet their targets So I'd just be curious to hear your thoughts on which of those challenges pose the greatest threat to the success in the future Of the proposal. I'm not even sure how you handicap the three In you know rather than I'm in Washington so I can duck the question, right? I Really don't know how you would handicap or assess them relatively, but I would suggest that You know mother nature bats last right and climate change isn't going away So whatever we don't do now. We'll have to do later in one way or another a different way Probably more costly way because it's it'll be that much harder So I really don't know all of those could be serious hurdles as you suggest Yeah, I would second that I I do think that you know the rule will be final by the time this administration leaves and so what would have to happen for the next administration is a refusal to enforce or a Recision of the rule and they would have to go through notice and comment and that would be a big hullabaloo And that that has happened of course, but it's not it's not the common practice to to rescind existing rules So I think that I would handicap that one as a little bit less likely than the others the federal courts There are some legal vulnerability as I think in the In the way that EPA has gone about it, but I think it's fully defensible and likely to win otherwise And I just wanted to let you all know that we are hoping to do series looking at the clean power plan and To take a look at what some states are looking at in terms of approaches kinds of things that Ken was talking about how much are states really looking at that to also look at what a variety of businesses are doing that are also talking about Opportunities and how they see that how they are attempting to move And so we would welcome your suggestions in terms of things that you would like us like to see us Bring forward in these sessions also want to mention that on April 21st. We are going to be hosting with wires a whole day long session on a Transmission that will be getting into grid optimization issues looking at different security issues looking at 111D and so and the the Interplay of renewables in terms of the grid and how that affects all of this as well So I hope that you'll be interested in and participating in that because that will get into some of the issues that were raised here as well and of course we welcome you to Continue this whole conversation online