U.S. Senate to Offer Own Energy, Climate Change Bill

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1 CLIMATE CHANGE/ENVIRONMENTAL July 2009 US Senate to Offer Own Energy, Climate Change Bill US Sen Barbara Boxer (D-Calif), Chair of the Senate Environment and Public Works, has scheduled a series of four hearings over the next two weeks to assist Senate efforts to draft its own climate legislation this summer that seeks a more comprehensive approach to US energy and climate change policy This comes after the US House of Representatives recently passed HR2454, the American Clean Energy and Security Act of 2009 (ACESA), by a vote of 219 to 212 Sponsored by Rep Henry Waxman (D-CA), Chairman of the House Energy and Commerce Committee, and Rep Ed Markey (D- MA), the over 1500-page bill had undergone several revisions in recent months before its June 26th passage There are several significant aspects of House bill covered in the following alert, including the political dimensions of its passage in the House, its prospects for Senate passage, and a summary of key provisions within the bill s four main sections Political Dimensions of ACESA Bill Passage Passage of the ACESA in the House of Representatives has significantly elevated the chances of implementation of significant carbon reduction regulation Over the past two years, a series of unsuccessful Senate and House votes have drawn into question whether such initiatives would ever become law Last week's vote changed these perceptions The bill passed by a deceptively narrow margin, with eight Republicans joining the Democrats However, the bill would have easily passed without the GOP votes, as many conservative Democrats who voted No indicated they would have willingly changed to assure passage of the bill The focus on the climate change issue will now be in a far less-enthusiastic Senate In particular, environmental activists will apply pressure on Senate Democrats (like Senator Bayh) who have refused to embrace the more radical provisions contained in Waxman-Markey This group of Senators, informally referred to as the "Gang," will determine what, if anything, becomes law We anticipate that healthcare legislation will occupy the attention of Congress during July, and believe a serious Senate vote will not take place on climate change until the fall This will not keep the matter from being a focus of lobbying in the Senate though, and if chances for passage of a Senate bill were to improve significantly, there could yet be a Senate vote in July

2 The big question is whether a bill can be voted upon in the Senate, negotiated in a Conference Committee between the House and the Senate, and signed by the President before Congress adjourns in November The critical factor will be how much political capital the President is willing to spend Our view is that he will make this attempt as long as it does not jeopardize his healthcare initiative Those potentially affected by this legislation should review the following summary If you see a game-changing provision that could significantly improve or damage your business model, now would be the time to consult your industry association, lobbyist, or attorney If you would be impacted in lesser ways, pay close attention to what happens in the Senate this July, and make your plans for the fall Barnes & Thornburg will continue to monitor this important legislation Summary of the ACESA The ACESA has four main sections: (1) Title I: Clean Energy; (2) Title II: Energy Efficiency; (3) Title III: Global Warming Pollution Reduction Program; and (4) Title IV: Transitioning to a Clean Energy Economy Each of these Titles is discussed below I Title I: Clean Energy Renewable Electricity Standard The ACESA requires retail electric suppliers to meet an increasing percentage of their load with electricity generated from renewable resources and electricity savings The bill creates a renewable electricity standard ( RES ) that would require large utilities in each state to produce an increasing percentage of their electricity from renewable sources, or purchase the equivalent credits In general, the RES requires 6% of electricity to come from renewables by 2012, and 20% by 2020 Up to 5% may come from efficiency improvements If a state determines that its utilities cannot meet the target, the efficiency component can be increased to 8% and the renewable component decreased to 12% Qualifying renewable sources are wind, solar, geothermal, biomass, marine and hydrokinetic energy, biogas and biofuels derived exclusively from eligible biomass, landfill gas, wastewatertreatment gas, coal-mine methane, hydropower projects built after 1988, and some waste-to-energy projects RES has been criticized as taking too narrow a view of what constitutes renewable energy, focusing on factors other than greenhouse gas emissions The manager s amendment adopted on the House floor broadened the definition of renewable energy resource by broadening the definition of renewable biomass (to match the definition in the 2008 Farm Bill), and the definition of qualified hydropower Some environmental groups have withdrawn support for the bill because it allows efficiency reductions to count against the RES mandates They were seeking a more complete overhaul of US energy production Some in the renewable energy industry, such as the American Wind Energy Association, also would like to see a more stringent RES The bill does not count nuclear energy as renewable energy There also is concern that the RES will disproportionately impact some parts of the country due to the limited availability of renewable fuels to meet the RES In particular, the Southeast will likely have to buy credits from other parts of the US, increasing energy costs more in that part of the country The expansion of the definition of biomass for the purposes of the RES was part of an agreement negotiated between Chairman Waxman and the Chairman of the House Agriculture Committee, Rep Peterson Under that agreement, the US Environmental Protection Agency (EPA)

3 also is prevented from calculating international land use changes that may result from increased use of biofuels when determining the carbon footprint of biofuels under the existing Renewable Fuels Standard, pending a study by the National Academy of Sciences and joint action by EPA and the Department of Agriculture Investments in Clean Energy By 2025, the bill would direct an estimated total of $190 billion to energy technologies and efficiency measures: (1) $90 billion to energy-efficiency and renewableenergy technologies; (2) $60 billion to carbon-capture-and-sequestration technology; (3) $20 billion to electric vehicles and other advanced automotive technologies; and (4) $20 billion for basic scientific research and development The bill also creates a Clean Energy Deployment Administration ( CDEA ) within the federal government that would provide loans and loan guarantees to spur more private investment in energy technology Carbon Capture and Sequestration The ACESA has several provisions designed to foster the development of geologic carbon sequestration which involves capturing carbon emissions and pumping them underground The ACESA requires that EPA study and report on obstacles to geologic sequestration and develop regulations for sequestration sites The bill also provides funding for sequestration demonstrations through assessments from retail customers of fossil-fuel-powered electric utilities and provides incentives for deployment of sequestration technologies Finally, the bill requires EPA to establish strict new source performance standards for coal-fired power plants Modernizing the Electricity Grid The ACESA includes provisions to promote the deployment of smart grid technology and enhanced transmission planning Because many good locations for renewable energy generation are far from existing transmission lines, siting of new transmission has been held up by multiple environmental reviews In the manager s amendment, the bill addresses this issue in the West, by giving the Federal Energy Regulatory Commission (FERC) authority to approve the siting of new transmission lines if a state fails to act, denies an application, or imposes unreasonable conditions (commonly referred to as FERC backstop authority ) Although siting transmission lines also is an issue in other parts of the country, the bill provides this authority to FERC only in states in the Western Interconnection II Title II: Energy Efficiency Provisions Building Standards The ACESA establishes national standards for building efficiency, requiring new buildings to be 30% more efficient in 2012 and 50% more efficient in 2016 compared to specifically enumerated commercial and residential building standards States are offered allowances that they may sell to support adoption and enforcement of the new standards The Department of Energy must enforce the standards in states that do not incorporate the building standards into their state building codes These building code energy efficiency provisions were advocated by standards organizations but have been accepted by the part of the real estate industry represented by the Real Estate Roundtable Notwithstanding the upfront costs (defrayed in part by funding from the sale of allowances dedicated to the adoption of these new standards), energy efficiency investments are expected to recoup their costs in energy savings in a short time Section 204 of the bill establishes a Building Energy Performance Labeling Program, under which EPA will promulgate regulations establishing labels for residential and commercial buildings that describe the energy efficiency

4 performance of the building There is concern over the effect of this labeling program on the resale market for older homes Appliance Standards The ACESA mandates new efficiency standards for lighting products, commercial furnaces and other appliances Vehicle Standards The ACESA contains requirements for EPA to promulgate carbon emission standards for heavy-duty vehicles and off-road vehicles, such as construction equipment, trains and large ships The bill also integrates consideration of climate change into the existing transportation planning process to reduce transportation-related energy consumption Additional Efficiency Measures The ACESA contains measures to increase efficiency of water use and promote energy savings by the federal government and other public institutions The legislation creates a new energy efficiency program for small utilities with dedicated funding III Title III: Reducing Global Warming Emission Cap The ACESA enacts a new Title VII of the Clean Air Act which will provide declining limits on greenhouse gases from large domestic emission sources The legislation requires that emissions from a number of industrial entities, such as electricity producers, oil refineries, natural gas suppliers, and stationary sources emitting more than 25,000 tons of carbon equivalent a year, be reduced The economy-wide emission reduction goals for the US (from 2005 levels) include a 3% cut by 2012, a 17% cut by 2020, a 42% cut by 2030, and an 83% cut by 2050 Emissions Allowances ACESA requires that major emission sources obtain allowances for each ton of carbon or equivalent emitted If an emission source emits fewer tons of carbon or equivalent than it has allowances, it can trade excess allowances or bank them for future use In the early years of the program, approximately 80% of allowances will be given to sources to ease the burden of transition imposed by the new legislation The transition period begins to phase-out in 2025 and by 2030, 70% of allowances will be auctioned The total value of allowances is estimated at $70 to $80 billion in 2015 to $90 to $120 billion in 2030 Emissions allowances will be used for a variety of purposes, including protecting consumers from energy increases, assisting energy intensive, trade vulnerable industries in transitioning, investing in clean energy and energy efficiency, domestic and international adaptation, assisting and training workers, preventing deforestation, and ensuring the program is budget neutral The agreement between Chairman Waxman and the Chairman of the House Agriculture Committee included an increase in the allowances provided to rural electricity cooperatives The cap and trade program is the centerpiece of the bill and has garnered the most debate Many are concerned over the impact of these cap and trade provisions on the economy and consumers According to the Congressional Budget Office (CBO), the economy wide cost of complying with the cap on greenhouse gas emissions is estimated to be about $110 billion in 2020 (when the US is mandated to achieve a 17% reduction in emissions), which averages out to $890 per household Approximately $85 billion in allowances in 2020 will be allocated in a way that CBO estimates will result in benefits that flow back to consumers, resulting in a net economy-wide cost of about $22 billion, which averages out to $175 per household The $85 billion in allowances that are estimated to net out compliance costs include $137 billion for low income households in the form of tax credits and energy rebates, $145 billion for electricity and natural gas distribution companies with instructions to

5 pass the savings on to residential consumers, $141 billion for certain energy-intensive, tradevulnerable businesses to offset their costs (CBO uses this as an offset for consumers by assuming consumers own stock in these companies), $271 billion for electricity and natural gas distribution companies with instructions to pass the savings on to commercial and industrial customers (again CBO uses this as an offset for consumers by assuming consumers own stock in these companies), and another $55 billion for businesses and another $92 billion for the government for public purposes (again CBO assumes this funding will offset costs to consumers) Consumers who do not meet the definitions of low income in the bill (above $23,000 for singles and $42,000 for a family with two children, or 150% above the poverty line) and who do not own stock in businesses receiving free allowances would incur net costs above the averages in the CBO estimate Also, CBO does not estimate the costs of transitioning from coal and oil to more expensive, less greenhouse gas intensive energy sources, on individual sectors of the economy that are not receiving free allowances, or the impact on the gross domestic product generally Another issue that is the subject of continuing debate is the regulation of the market for allowances The bill allows a derivatives market for allowances Concern over the potential for abuse resulted in bill language giving the Commodity Futures Trading Commission the authority to regulate the allowance derivatives market This language is opposed by the House Financial Services Committee, which intends to supersede it with legislation of its own Emission Offsets The ACESA also allows capped emission sources to increase their emissions if they can obtain offsetting emissions credits from uncapped sources At least half of the emissions offsets can be obtained from international sources However, if domestic offset sources are unavailable, an even larger percentage of offsets can be obtained internationally Although the availability of international offsets will decrease the cost of compliance with the emission caps significantly, there is a concern that it will result in a transfer of wealth from the US to overseas According to CBO, approximately $78 billion will be transferred overseas in 2020 for the purchase of offsets and another $64 billion will be transferred overseas to fund efforts to prevent deforestation, to encourage the adoption of more efficient technologies, and to help developing countries adapt to climate change As part of the agreement between Chairman Waxman and the Chairman of the Agriculture Committee, the Department of Agriculture is given authority to administer a program for generating and selling domestic offsets from agriculture and forestry Notwithstanding these changes, many agriculture and food groups continued to oppose the legislation due to concerns over energy costs, and costs of compliance with the legislation One issue is the inability to count emissions reductions as offsets if the offset activity (such as no-till or low till farming practices) began before January 1, 2001 Some argue that use of this date eliminates many agricultural offsets The bill also provides credit for early action to reduce emissions In section 740 of the bill, a person participating in program approved by EPA can receive credits for emission reductions that occur after January 1, 2009, from offset projects initiated after January 1, 2001 Under section 795 of the bill, a person can exchange existing offset credits that were issued from an approved program before January 1, 2009, for emission allowances created by the bill A person can receive allowances equal to the value of their credits during the period from January 1, 2006, and January 1, 2009, resulting from actions that achieved emission reductions between January 1, 2001, and January 1,

6 2009 Persons who are not participating in an approved program also can receive emission allowances for early reductions if they demonstrate to EPA that the reductions occurred IV Title IV: Transitioning to the Clean Energy Economy This title of the ACESA seeks to monitor the effectiveness of the legislation and encourage domestic and international adaptation to climate change and a clean energy economy Allowance Rebates and Reserve Allowances and Border Adjustment This section of the bill creates a program within Title VII of the Clean Air Act to ensure reductions in industrial carbon emissions through allowance rebates and international reserve allowances Under the rebate program, certain eligible industrial sectors will receive rebates to compensate them for costs incurred in complying with new carbon pollution limits established in Title VII of the Clean Air Act EPA will develop a rule to determine which sectors will receive rebates based on economic, trade, and emissions intensity factors The international reserve allowance provision provides a reserve allowance program that the President can implement beginning in 2020 if a finding is made that reserve allowances will be effective in reducing global output of emissions The purpose of the international reserve allowance program is to protect energy intensive, trade vulnerable industries Beginning in 2020, the bill requires a tariff on energy intensive goods imported from other countries do not adopt emissions caps This border adjustment, ie, a tariff in the form of a requirement that importers buy international reserve allowances, will apply unless the President receives explicit permission from Congress to waive the tariff President Obama has spoken out against this provision, expressing concern that it will be perceived as protectionist The US Chamber of Commerce has warned that the provision could spark a trade war The American Iron and Steel Institute has spoken out against the provision as not being strong enough to protect energy intensive, trade vulnerable industries Green Jobs, Clean Technology, Energy Tax Credits and Climate Change Adaptation This section of the ACESA seeks to create green jobs, encourage the export of clean energy technologies, protect low income consumers from price increases, and foster adaptation to climate change This section provides funding and grants to colleges to develop clean energy curricula and provides training for workers displaced as a result of Title VII of the Clean Air Act Additionally, provisions in this section provide tax credits and cash refunds to low income individuals to compensate for reduced purchasing power that may result from the bill In an attempt to encourage export of clean energy technologies, this section of the ACESA also establishes a Clean Energy Account that can be used to help developing nations establish clean technologies Finally, this section provides for the distribution of allowances to states and other countries to deal with the effects of climate change, including drought and extreme weather events Regulation of Uncapped Sources While the bill precludes applying existing Clean Air Act regulations to greenhouse gas emissions from capped sources, the bill does direct EPA to establish new source performance standards for certain uncapped sources with greenhouse gas emissions over 10,000 tons per year (not including methane emissions from livestock, ie, no cow tax) If you would like more information on these developments, please contact the Climate Change Practice Group or Environmental Department attorney with whom you work or one of the following Barnes & Thornburg attorneys: Fredric P Andes, Chicago ( ); Susan Bodine, Washington, DC ( ); Mindy Boehr, Indianapolis ( ); Joel T Bowers, South Bend ( ); Craig S Burkhardt, Washington, DC ( ); Charlie Denton, Michigan (

7 3974); David Heger, Indianapolis ( ); Christina M Landgraf, Chicago ( ); Jeff Longsworth, Washington, DC ( ); Larry McHugh, South Bend ( ); and Grant Peters, Chicago ( ) More information is available at wwwbtlawcom/environmental 2009 Barnes & Thornburg LLP All Rights Reserved This page, and all information on it, is proprietary and the property of Barnes & Thornburg LLP It may not be reproduced, in any form, without the express written consent of Barnes & Thornburg This Barnes & Thornburg LLP publication should not be construed as legal advice or legal opinion on any specific facts or circumstances The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation Please send address changes or requests to opt in or out of these alerts to megandecker@btlawcom

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