Official pronouncements around Washington state’s emerging Clean Air Rule usually prompt a spate of similar headlines and news stories. But less examined in those reports are some of the important background elements of the story. Here are some things to know.
First, the basic circumstances, which are well-known.
The Washington State Department of Ecology is moving toward re-issuing for public comment a draft Clean Air Rule next month. It results from an executive order by Governor Jay Inslee. If no legal challenges delay or derail it, the rule would be adopted this summer and take effect starting next year. It would become more stringent over coming decades. Covered would be industrial, commercial, institutional and consumer emissions of carbon dioxide and its equivalents.
Now, let’s take out the microscope.
Just like economic growth, reducing greenhouse gas emissions is an important state priority.
Under the guiding 2008 statute’s definitions the greenhouse gases likely to be regulated as CO2 equivalents under the looming Clean Air Rule include carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorcarbon, sulfur hexafluoride, and “any other gas or gases designated by the department by rule.”
Future Goals Pegged To 1990 Carbon Emissions
The legislature in 2008 set 2020, 2035 and 2050 reduction goals for emissions of carbon dioxide and equivalents in Washington, measured in million of metric tons (MMtCO2e).
The Washington goals are expressed in relation to 1990 baseline levels.
For 2020 the target is 1990 levels of 88.4 MMtCO2e, for 2035 it’s 25 percent less than 1990, and for 2050 it’s 50 percent less than 1990.
Gains Without Added Regulation
Washington emissions levels in the latest year for which data have been released, 2011, were already drawing near to the 2020 goal. This was without the impending rule, but with other regulations already in place. The data was released in December, 2014.
That 2014 Ecology Report on carbon and carbon equivalent emissions in Washington states that MMtCO2e levels had climbed to 101.6 by 2007 but then steadily decreased from there to 91.7 by 2011.
A table provided by Ecology projects the figure will begin to level off for 2012, to 92 MMtCO2e, but the actual reported totals for 2012 and 2013 will not be available until December of this year.
Yet by about August, prior to the issuance of the new emissions data, the Department of Ecology will have finalized the new rule’s limits. This will result in additional but as yet unspecified costs to business and consumers.
Less Than 2 Percent Of U.S. Emissions
It’s unclear exactly what Washington can accomplish on its own with the rule.
Washington State accounts for only 1.35 percent of U.S. MMtCO2e, according to 2011 state and nationwide data cited in a 2015 Report by the consulting firm Energy Strategies for the Washington Climate Collaborative. It was on a proposed carbon cap-and-trade bill which did not gain passage that year.
Industry and environmental advocates agree a uniform national policy would make more sense, but it’s hard to envision the U.S. Congress approving one. If adopted, a uniform national policy to cap carbon emissions would at least dampen the likelihood of jobs and carbon “leakage” from heavily-regulated to less-regulated states.
There is a greater risk of this when different states have different laws.
Avoiding such leakage is a stated goal of Washington state law in RCW 70.235.005.
That statute represents the intent of lawmakers in approving the state’s greenhouse gas reduction goals in 2008. It describes a number of intents, including, “minimize the potential to export pollution, jobs, and economic opportunities.”
Energy-intensive trade-exposed industries have continued to express strong concerns about compliance costs and growth restrictions as the Clean Air Rule process unfolds, even after the rule was pulled back in late February for a do-over. They say that without careful calibration of the rule by the state, leakage of jobs and carbon away from Washington could result.
Enforceability Could Be An Issue
Then there’s the question of the enforceability of the new rule. Inslee’s staff say the Governor is well within his powers to impose the new rule through executive order. However, it may be vulnerable to legal challenges.
The legislatively-approved carbon reduction goals used to justify the order and the related rule-making process, are not legally enforceable. That’s according to a detailed legal opinion issued last fall by State Attorney Bob Ferguson, a Democrat. It was developed at the request of State Sen. Doug Ericksen (R-42).
Methodology Earns Scrutiny
Some questions also arise about how MMtCO2e is actually measured in Washington, for the official reports that show how much progress is occurring.
Reported MMtCO2e annual emissions are now based on gross, not net emissions. Additionally, they include fuel consumed out-of-state.
In a 2007 groundwork volume Greenhouse Gas Inventory and Reference Case projections, 1990-2020, Ecology included net emissions, not just a gross measure.
And Table ES-1 in the document shows that including the carbon emissions-reducing effects of forestry and land use, and agricultural soils shaved a meaty 28.4 MMtCO2e off the gross total in each year. This net total was also referred to as “including sinks,” meaning carbon-absorbing materials in nature.
However, Ecology spokeswoman Camille St. Onge said in an email interview that this “was in the early days of us understanding carbon pollution. Since then, we’ve developed an emissions inventory program and greenhouse gas reporting program. Sinks/sequestration is not part of the emissions inventory report. The science and methodology behind carbon sinks is complicated and the numbers are uncertain…”
The numbers given across five different years in the 2007 report for sinks-based reductions are the same for each year, reflecting that they were the “best guess at the time,” St. Onge added.
Brandon Houskeeper, Director of Government Affairs for the Association of Washington Business, said a greater methodological concern is that under its current carbon emissions framework the state already requires annual sub-totals based not only on production of CO2 and CO2 equivalents, but also on their consumption.
The state says emissions reporters must include any “single facility, source, or site that emits at least 10,000 metric tons of greenhouse gases annually in Washington” and any “supplier of liquid motor vehicle fuel, special fuel, or aircraft fuel that supplies products equivalent to at least 10,000 metric tons of carbon dioxide annually in Washington.”
By contrast the U.S. Environmental Protection Agency bases emissions measurements on actual production only, not consumption, Houskeeper said. This provides a more accurate picture of actual emissions in the state, because some percent of fuel sold in one state can be consumed in another state, he added.
In Ecology’s December 2014 report providing the latest (2011) emission data for the state, 41.9 percent of MMtCO2e was estimated to come from transportation. This includes some unspecified percentage of fuel consumed outside the state.
Ecology will soon give the public a bigger taste of what to expect when the revised Clean Air Rule is released for public review and comment and next month.
The agency is staging a webinar on the Clean Air Rule April 27.