Legislature, KCC would have say in state’s plan to meet EPA guidelines
by Ashley Booker, KHI News Service
With an approaching deadline to develop a statewide plan to reduce carbon dioxide emissions from power plants, legislators are discussing three bills to regulate a state agency’s progress toward that plan.
Bill supporters say more scrutiny will keep ratepayers and legislators involved as the state seeks to comply with controversial federal regulations. But environmental activists say legislative roadblocks could lead the federal government to develop its own compliance plan for Kansas.
The U.S. Environmental Protection Agency last year drafted proposed rules for the state to decrease carbon emissions, and final rules will come out this summer. The state will then have one year to create a state implementation plan (SIP) to comply. If the state doesn’t meet the deadline, the federal plan will be used.
Currently, the Kansas Department of Health and Environment is able to send the state plan to the EPA without legislative approval or Kansas Corporation Commission consideration. Legislators and KCC commissioners want to change that.
Two proposed bills, SB 151 and HB 2233, would take away the KDHE’s ability to set the state’s environmental regulations and give final approval to the KCC, which would have 300 days to review and amend them.
The KCC regulates Kansas utilities, among other functions, and acts as an arbitrator between utility companies and energy consumers on rate changes.
The bill also would take away KDHE’s ability to implement a carbon emissions trading mechanism, or “cap and trade,” without the Legislature’s approval. This mechanism allows utilities to trade their emission-compliance units to other utilities that don’t meet EPA’s emission standards.
The third bill, SB 170, would require KDHE to wait to draft or submit a SIP until legal challenge to the EPA rules are resolved. After that, the Legislature must review the plan. The bill also would cap non-fuel rate increases associated with greenhouse gas regulations at 1.5 percent and regulate the lifespan of existing electric units.
Tom Gross, from the KDHE Bureau of Air, said all three bills would create additional burdens and steps for KDHE staff and likely would mean that the federal government would step in.
“We are very concerned that absolutely as written, the bill(s) would guarantee a FIP (federal implementation plan),” Gross said.
The concern of KCC commissioners, who proposed both SB 151 and HB 2233, is there’s too little time to create a statewide plan to cut emissions 23 percent by 2030 from their 2012 levels, as the EPA draft rules dictate.
“Anytime you’re in a time crunch, your opportunity to make mistakes is increased. So we felt like defining a process was the best way to go about eliminating that risk,” said Commissioner Pat Apple.
KCC commissioners also are concerned their agency’s input for ratepayers won’t be part of the plan.
Americans for Prosperity, a limited government advocacy group, supports SB 170.
Roger Woods, a lobbyist for AFP, said the proposed legislation protects customers, ensures Kansas is covered legally and involves the legislature in the SIP process.
“It only makes sense that Kansas’ elected representatives would reserve final say on our state’s plan,” Woods said.
Multiple states, including Kansas, are suing the federal government over the EPA rules.
For environmental activists, involving the Legislature and waiting for the court rulings steers the focus from what they say the plan needs to be about: helping the environment and stakeholders.
“We need to look at the cost and benefits. That’s what (SB) 170 doesn’t do. It just looks at the costs,” said Zack Pistora, a lobbyist for the Sierra Club. “Increasing renewable energy would not only bring rates down over the long term but help our customers pay their bills.”
Pistora said input from the Legislature is needed as the plan is developed, but not for its final approval.
Dorothy Barnett, a lobbyist with the Climate and Energy Project, said the proposed legislation could lead to future setbacks.
“We are really concerned that by adding this legislation that we are going to subject Kansas to a federal implementation plan and limit our ability to work on a state-level regulation,” Barnett said. “Until the (EPA) rule is finalized this summer, this new law we believe is premature.”
Rabbi Moti Rieber, director of Kansas Interfaith Power and Light, said involving the Legislature is problematic because KDHE and the KCC are executive branch agencies and requiring their actions to be approved by the Legislature is “actually a violation of the separation of powers.”
That also was a concern for Rep. John Carmichael, a Democrat from Wichita.
He asked why HB 2233 was brought to the House Energy and Environment Committee, and why the Legislature was being asked to be arbitrators between the KCC and KDHE.
During hearings for SB 151 and HB 2233, KCC officials said they were willing to make amendments to the proposed bill. Those amendments would modify language on the emission trading mechanism and create a joint examination between KCC and KDHE to save time.
“That will allow us to work in a more coordinated fashion than two separate investigations, and we can have all stakeholders in the same process,” said Jeff McClanahan, director of the KCC’s utilities division. “Each of us would still exercise our current authority.”
Rep. Dennis Hedke, a Republican from Wichita and chairman of the House committee, asked the KCC and KDHE to work on those amendments before the committee considers the bill next week.
Sen. Robert Olson, a Republican from Olathe and chairman of the Senate committee, asked Americans for Prosperity to work with opponents of SB 170 before the Senate committee considers that bill next week.
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