Friday, November 25, 2011

Surely you don't believe renewable energy is economical?

If you ever thought it might be, the following article will poke HUGE holes in your thinking.

Green Energy Myths

By James Crawford

Now that Solyndra has become a household word and with all the rhetoric about getting rid of thermal electric generation and using “clean,” “green,” renewable energy instead, we need to take a good look at renewable energy systems. They are springing up and failing all over the place. They are being put on parking garages, rooftops, and filling open spaces in our desert. Green energy systems are being built not because they are profitable, efficient, or make any economic sense. They are being built only because of government subsidies and mandates. The electric company ratepayers and the tax payers are footing the bill.


Let’s first take a look at solar. Public Service Company of NM (PNM) is in the process of installing 5 major solar arrays around the state including one in Los Lunas. We will use them as a model.

Before we go any further, we need to understand the concept of “capacity factors.” All electric power generation has a capacity factor that is less than 100% since nothing works 100% of the time or with 100% efficiency. Since it is dark half the time we know solar can never exceed 50% capacity. So because of cloudy days and other losses solar only has a capacity factor of about 20% on average.

Capacity factor is never disclosed in media coverage of green energy installations. Nominal installed capacity is the only thing described. Readers and listeners are led to believe much more generating capacity is being created along with exaggerated claims of homes served.

The PNM arrays each occupy 50 acres and have a rated capacity of 5 megawatts if they produced at full capacity 100% of the time. So in fact a 5-megawatt array is only going to actually produce about 1 megawatt (5x.20) of power for consumption by consumers. One megawatt produces about 8766 (number of hours in a year) megawatt hours or 8,766,000 kilowatt hours of electricity per year. We look at kilowatt hours because that is how consumer use is measured.

PNM estimates that the average household uses about 7200 kilowatt hours per year. Each of the 5 PNM arrays can supply the power needs for about 1200 (8,766,000/7200) “average” homes. Average consumption in Texas is over 14,000 kilowatt hours so one array would only cover about 635 Texan homes. Many utilities estimate the average household use at 10,000 kilowatt hours. But what the heck, we will use PNM’s 7200 just to give green energy the best break we can.

PNM is required to buy excess daytime solar power from people with private solar arrays. This is called distributed generation. So with their own arrays and the private arrays, PNM claims to have 45 megawatts of solar capacity. So accounting for the 20% capacity factor, 45 megawatts translates to 9 megawatts of actual usable production. That is 78,894,000 kilowatt hours. That will provide for 10,096 “average” homes.

The big push to convert to renewable energy is because of the perceived evil of thermal generating plants like coal-fired plants. Again we will use PNM as a model and look at the San Juan Generating Station. Environmental activists would like to see the San Juan plant closed down, so let’s look at what it would take to replace it with solar panels.

San Juan has a nominal capacity of about 1743 mega watts. Coal thermal plants have a capacity factor of about 85% to 95% but we will use 85%. Therefore, San Juan is cranking out 1482 megawatts or about 13 million megawatt hours of usable power per year. Now it starts to sound like we are talking about the national debt since 13 million megawatt hours is 13 billion kilowatt hours! That is enough for 1.8 million “average” homes! It would take 1482 of PNM’s 5 megawatt 50 acre arrays to serve that number of homes and would cover about 74,100 acres!

Protection of Mesa Verde National Park is one of the big reasons environmentalists want San Juan closed. Mesa Verde is only 52,000 acres. So to do away with San Juan, all of Mesa Verde and half again more would have to be covered with solar panels! The combined size of the Sandia Mountain and Manzano Mountain Wilderness areas is also only a bit more than the 74,000 acres. Wouldn’t that be a pretty view from the valley to have them covered with solar panels?

A couple of other solar arrays have also been in the news recently. One is the Santa Teresa array, which is also in New Mexico, but owned by El Paso Electric; the other is advertised as the biggest array of its kind, the Agua Caliente facility in Arizona.

The Santa Teresa array has a gross capacity of 20 megawatts, which converts to 4 megawatts using our 20% capacity factor. That would power 4870 of our NM “average homes”. El Paso, however, claims it would power 6600 homes. To achieve that, the capacity factor would have to swell to an unlikely 27%. Since their power is going to Texas homes, they can only power 2500 Texas homes!

The Aqua Caliente project is an excellent example of the misrepresentations about solar arrays. The gross capacity is 290 megawatts or as we have seen 58 megawatts of actual usable electricity. 58 megawatts will power 70,615 of our NM “average homes.” The developers claim that they will power 225,000 homes. To do that, the array would need a capacity factor of 63.7%! In other words it is rarely dark or cloudy in AZ. Capacity factors between 10% and 30% could be argued one way or the other but 64% is out of the question!

Earlier brief mention was made of PNM buying the excess daytime solar power produced by private solar arrays on people’s houses, parking facilities, etc. i.e. distributed generation. So how does that work out for us?

This has to be one of the most ludicrous programs ever devised. PNM sells their residential power for around $.07 per kilowatt hour. They buy the surplus solar power from private individuals for around $.15 per kilowatt hour to sell back to you for $.07. Who do you think makes up the $.08 per kilowatt hour bonus going to someone with a solar panel? It is us, the rest of the sucker ratepayers of course! On top of that the private solar panel owner gets both state and federal subsidies and in some cases outright grants to cover the cost of installation. The average ratepayer not only pays more in electric bills but also kicks in taxes at the state and federal levels.

A couple of Los Lunas and Belen restaurants recently proudly announced they are installing solar arrays that will eliminate their electric bills altogether. To do that they have received outright grants from the federal government along with the federal tax credits covering over half the cost. The rest is covered by state tax credits and PNM paying double for the surplus daytime electricity. In other words all the PNM ratepayers and U.S. and NM tax payers are footing the electric bills for these businesses.

No announcement has been made that these restaurants will close after dark. How will people be able to read the menu in the dark? Of course the lights are going to stay on, but the businesses will be buying back electricity at less than half the price they just sold it for earlier in the day. Menu prices already cover utility expenses. Do you suppose there will be an immediate reduction in menu prices or that we will get a discount on the menu prices if we bring in our tax returns and electric bills? It is not likely. The largess will go into the owners’ pockets.

Another local example, is the plan for the City of Belen to install a solar facility to serve the sewer treatment plant. The nominal capacity is 0.5 megawatts, which converts to 0.1 megawatts of actual usable electricity. The installation will then generate 876,600 kilowatt hours per year. That is enough for about 122 of our “average” homes. Since the kilowatt hours of use by the treatment plant was not published we do not know if that is enough to run the plant like the proponents claim. However, the media reported a South Korean Company will build the facility for $6 million, take all the subsidies, tax credits, and the PNM inflated payments for excess electricity and then sell the facility to the city in seven years for $2.7 million. Based on data from the U.S. Energy Information Administration, a plant like this should cost about $2.3 million to start with. So after reaping all the government subsidies the company sells a used facility to the city for more than it should cost originally!

These situations are small local examples of corporate cronyism and public private partnerships where government is deeply involved in or in bed with private enterprise and picks the winners and losers based on politics rather than economic freedom. It creates an unfair advantage over the competition and squanders taxpayer money. All competitors would probably like the taxpayers and rate payers to take care of their electric bills.


Let’s take a look at wind power. New Mexico is home to three existing major wind farms. We will take a close look at the New Mexico Wind Energy Center, which supplies wind power to PNM.

New Mexico Wind Energy Center has 136 wind turbines on 9,600 acres in central NM and has a nominal capacity of 204 megawatts.

Once again we need to consider capacity factor to find out how much usable electricity is being generated. We don’t have to worry about nighttime since the wind often blows at night. However, it doesn’t always blow and often does not blow at optimum speeds. Anything less than 8 miles per hour is too slow and over 55 miles per hour is too fast. Optimum is somewhere in the middle. Because of wind variability and turbines being down because of mechanical problems, capacity factor is about 25% on average.

The 204-megawatt installation can yield about 50 megawatts of usable power. That figure converts to 438,300 megawatt hours or 438,300,000 kilowatt hours. Using our PNM average home consuming 7200 kilowatt hours that will serve 60,875 homes.

So how much wind power will it take to substitute for that evil San Juan Generating Station? San Juan has a capacity of 1743 megawatts. We will use our 85% capacity factor. Therefore, San Juan is cranking out 1482 megawatts or about 13 million megawatt hours per year. Now it starts to sound like we are talking about the national debt since 13 million megawatt hours is 13 billion kilowatt hours! That is enough for 1.8 million “average” homes!

Based on the NM Wind Energy Center data, it takes 192 acres of windmills to generate one usable megawatt of electricity. So it will require 284,544 acres to generate the electricity produced by San Juan. The NM Energy Wind Center uses about 47 acres per nominal megawatt. However, the industry average is about 86 acres per nominal megawatt. If we use the industry average figure, it would take 344 acres per usable megawatt and would then require 509,808 acres of wind farm to replace San Juan! Based on US Census data, Valencia County contains 1068 square miles or about 683,520 acres. It would require covering 75% of Valencia County’s land area with windmills to replace San Juan!

It would then take 30 New Mexico Energy Center wind farms to produce the same 1482 megawatts of power produced by San Juan.

Other installations around the country are even worse. The Roscoe wind project in Texas uses 128 acres per megawatt covering 100,000 acres. The Shepherds Flat project along the Columbia Gorge in Oregon uses 94 acres per megawatt covering 80,000 acres. The land use for these projects is astounding. Instead of growing corn and burning it in our cars, we would have to cover the whole state of Kansas with wind turbines to replace just 20% of the US generating capacity!


No matter what spin is put on it, solar and wind is prohibitively expensive and cannot compete in any kind of free market competitive situation. Wind and solar can’t exist without government mandates and subsidies.

Let’s look at costs for coal, wind and solar using data from the U.S. Energy Information Administration. A modern coal plant would cost $4.579 million per nominal megawatt or $5.387 million per actual usable megawatt. A solar plant the size of the ones being built by PNM would cost $6.050 million per nominal megawatt or $30.250 million per actual usable megawatt. A wind farm would cost $2.423 million per nominal megawatt or $9.752 million per actual usable megawatt.

Solar costs almost 5.6 times more than coal and wind costs nearly twice as much!

Now let’s put all this into perspective using our San Juan Generating Station example. What would it cost to replace San Juan with a new coal plant, solar plant, or wind plant?

To replace San Juan’s 1482 megawatts of actual usable electricity a new coal plant would cost $8.0 billion. A solar array would cost $44.8 billion. A wind plant would cost $14.5 billion. Wind and solar just cannot be justified on any economic grounds!

Fixed operation and maintenance costs follow the same pattern. Coal costs $74,360 per actual usable megawatt. Wind costs $112,280 per actual usable megawatt. Solar costs $130,200 per actual usable megawatt.

The costs for building these wind and solar monstrosities do not even come close to being all the costs. Since they occupy such huge tracts of land, they are usually sited away from already developed areas. The transmission infrastructure simply does not exist to move the electricity from remote locations to urban areas where the people live. Serious investments in transmission lines will be required for any significant expansion of wind and solar to occur.

Transmission line costs are quite variable but seem to range from $2 million to upwards of $4 million per mile depending on line voltage and terrain. A new 100-mile line could cost as much as a half billion dollars!

The transmission lines also add to the area impacts. The size of the plants themselves is huge, but transmission lines will add a significant amount of acreage. Transmission lines are typically 200-feet wide. Therefore transmission lines would occupy an additional 24 acres per mile. A new 100-mile line would affect an additional 2400 acres.

The other cost of wind and solar that is never mentioned is the need for and cost to build the extra thermal plants that will be needed to make up for wind and solar capacity factors. Right now the 80% and 75% down time of solar and wind are being absorbed by the approximately 15% peaking reserve built into the existing thermal system. Once government mandates force utilities to install enough wind and solar to exceed the present reserve, new thermal plants will have to be built to provide the needed peaking power.

If we covered Kansas with a wind plant and generated 20% of the nation’s power needs, it would take a thousand new 600-megawatt gas plants to provide the backup base-load power.

Of course since the additional thermal plants will be needed only when wind and solar are not generating, they will only have to work part time. They will have to repeatedly surge back and forth from full power to standby. That is an extremely inefficient and uneconomic use of a multimillion-dollar facility.

Ironically, the environmental mania to have more wind and solar production is going to force construction of more thermal capacity than would have been needed if no solar or wind were added at all! More San Juan’s will have to be built rather than being decommissioned!


Green jobs, green jobs, green jobs. The country’s unemployment problem will be solved by green jobs! That is the spin going around the country. Let’s take a look at the job situation.

As most people are aware, Spain has actual experience in the lavish government subsidized solar business. The Spanish experienced a loss of over 2 regular jobs for every green job they were able to create! Their economy is in the tank. Spain’s experiment does not bode well for the U.S. green jobs bonanza.

The media coverage of the wind and solar arrays we have been using as examples all make a big deal of the number of jobs they will create temporarily for a few months during construction. However, they routinely fail to disclose the number of permanent jobs once construction is complete.

PNM did state that no permanent jobs will be created because of their new solar arrays. It was reported that the Santa Teresa array will have one permanent employee and a couple of security people. The New Mexico Wind Energy Center has a staff of about 15.

Once constructed, wind and solar arrays just do not provide many jobs. Both types of facilities don’t require much human supervision because much of the monitoring is done remotely. A few maintenance people are needed, but there again one maintenance crew can service several sites.

Earlier we said that it would take 1482 PNM arrays to substitute for San Juan. If we are generous and assume a permanent position for every 5 arrays, about 300 people would be employed on a fulltime basis. We also said that it would require 30 New Mexico Wind Energy Centers to substitute for San Juan, which would provide about 450 jobs.

So how does 3 or 4 hundred jobs compare to evil San Juan? San Juan employees 394 people in the generating facility and another 529 in the mining operation. The total employment is 923 people. The San Juan Generating Station is located in San Juan County. San Juan County has about 52,000 people employed in the county. That means that direct employment by the San Juan plant accounts for about 2% of the county’s employment, which is a significant amount when all the economic multipliers are considered for retail, housing, etc. There is no possible way 300 to 400 jobs for solar or wind scattered all across the state could substitute for the San Juan economic generator or electric generator!

Environmental Impact:

If we can just get rid of those evil thermal power-generating plants the planet will be saved! That is the elite environmentalist mantra carried by the media. The belief is that wind and solar are clean and green and have no environmental impacts.

They do, however, have their share of impacts.

The environmental community which has been pleading for the death of coal-fired power will soon be using the National Environmental Policy Act, the Endangered Species Act and others to bring renewable energy projects to a screeching halt as well.

The required new transmission grid will require thousands of miles and acres of land devoted to power lines. Of course miles and miles of National Forests, Wildlife Refuges and other public lands would be affected and construction proposals will not withstand the environmental challenges under the National Environmental Policy Act, Endangered Species Act, etc. Also, outside of public land, many private landowners will not be receptive to power-line construction, either.

As we have already seen that just to replace the San Juan Generating Station, the area impacted by the new transmission grid would be a drop in the bucket compared to the area that would have to be devoted to solar panels or wind plants.

The wildlife habitat and other environmental conflicts would be significant and never pass muster at the altar of the elite environmental extremists.

On top of covering immense tracts of land, solar arrays and wind plants are ugly. As we have already seen off Cape Cod, the elite environmental extremists like the Kerrys and Kennedys don’t want windmills cluttering up their view. The “Not in My Back Yard” scenario will undoubtedly play out elsewhere for both wind and solar.

Wind turbines also affect the visual landscape because of the flicker and strobe effect of the whirling blades.

Windmills are noisy along with being ugly. Wind turbines produce a steady tiresome low frequency audible sound along with inaudible infrasound. Wind turbine noise is often 10 dB louder than background sound levels (sometimes even 20 dB or more). Acousticians have long known that any increase over 5 dB begins to trigger complaints, with 10dB the threshold for widespread problems.

Wind-turbine syndrome can cause headache, dizziness, nervous fatigue, depression, and sleep problems. The health claims are hard or impossible to prove. Much more telling are community response rates that affirm in some rural communities that 25-50 percent of people hearing turbines near the regulatory sound limits feel that their quality of life is severely impacted.

There are cases in this country as well as Europe where property values have been adversely affected, and some people have been forced to vacate their properties because of their proximity to wind plants.

Once the elite environmental extremists get the wind generators located outside their pristine view areas, they will then have to worry about the number of birds being sliced and diced. The Fish and Wildlife Service estimates that about 440,000 birds including protected species such as the California condor are ground up in windmill plants each year. In California, about 67 golden eagles per year are minced by the wind plants. Wind plants in California are being turned off during bird migration periods to reduce the damage. Keep in mind that also reduces the capacity factor, making wind even less attractive as an alternate energy source.

Wind plants are about twice as deadly as coal plants. There is always a huge outcry when a coal mining disaster is publicized. However during the six-year period between 2003 and 2008 the average death rate for wind was 0.0220 per million megawatt hours and for coal was about half that at 0.0147 per megawatt hours!

Even the distributed solar generating can be dangerous. Because the power companies are required to take excess power from private solar arrays into their system, they have no way to know if and when their lines are being charged by these systems. There are documented cases of injuries to line workers working on down lines that they thought were not energized but actually were with power coming in from private systems.

Oh, but will wind and solar reduce pollution? Maybe not so much! We saw earlier that it would take about 1000 new gas-fired generating stations to back up renewable sufficient to produce 20% of our nation’s energy. Their emissions will largely offset any reductions achieved by the renewable facilities. As an example, Denmark produces about 20% of its power with wind but because of the low capacity factor they ended up using 50% more coal-generated power and have increased their emissions by 36%!

To cover huge areas with solar panels or windmills, it takes a huge amount of material. It takes mining, quarrying, drilling, piping, milling, manufacturing, transporting, and installing to produce the metals, concrete, plastics, fiberglass, resins and on and on to make and install wind and solar plants. All of those operations are extremely energy intensive and will likely consume more energy than the plants will generate in their useful life.

Solar-panel production also needs raw materials and particularly rare earth minerals. The U.S. currently does little mining or processing of rare earths. More than 95% of current production capacity for rare earth metals is currently in China.

Solar panel manufacture can also be deadly.

Several solar companies produce Cadmium Telluride (CdTe) thin film photovoltaics (PV). CdTe is a compound formed from Cadmium and Tellurium. While Tellurium is rare, Cadmium is a highly toxic human carcinogen. According to the Occupational Safety and Health Administration (OSHA), the compound CdTe is also a carcinogen. Depending on the level of exposure, health effects range from kidney damage, fragile bones, and lung damage to death.

Rare earth mining in China has turned towns and hamlets into “cancer villages.” Rivers run murky white to shades of orange. Fish and ducks are dead. And villagers bury friends and neighbors who die of cancer in their 30s and 40s.

The bottom line is that all energy sources come with some type of risk and to assume that solar panels are an economic and environmental panacea is wrong.

One of the most ludicrous claims is how a renewable plant will be equivalent to taking cars off the road. First of all, electric power generation has nothing to do with automobiles. The press releases touting the amount of carbon dioxide reductions in terms of how many cars can be eliminated are just misleading the public. We could cover the county with renewables and no fewer cars would be on the road!

PNM claims CO2 reductions equivalent to 1000 cars from their 50-acre arrays. Of course this is based on nominal capacity. So if we apply our 20% capacity factor to the cars as well as the megawatt nominal capacities we come up with 200 cars per megawatt per year for the PNM sites.

The only thing that makes any sense is to talk about whether or not these renewable facilities could substitute for CO2 from a coal-fired plant like San Juan. According to EPA, the average car produces about 5.5 tons of CO2. The 5 PNM sites would reduce 1000 vehicle equivalents. So we have 1000 vehicle equivalents producing 5.5 tons of CO2 each. That is 5,500 tons. Once again going back to the bedeviled San Juan Generating Station as an example, it produces about 13.8 million tons of CO2. The press releases make the number of vehicle equivalents sound like a big deal but those we mentioned would only substitute for 0.0004% of San Juan’s CO2! A half day down time on one boiler would save more CO2 than these solar arrays.

It is doubtful these kinds of impacts will be acceptable to any environmentalists who are not in it for the money. Elite environmental extremists are pushing massive subsidies for wind and solar. However, if they were to get their wish and they consider the realistic environmental impacts, the luster may start to dull.

Bribery and Coercion:

Why would any power company in its right mind invest two to five times more to build and operate wind and solar plants, pay more for distributed generated power than it can be sold for, or build a bunch of unneeded and inefficient thermal plants just to provide for base load power to back up wind and solar?

The answer of course is found in bribery in the form of loan guarantees, outright government grants, subsidies, tax credits, and coercion in the form of government mandates.

The biggest direct mandates are Renewable Portfolio Standards (RPS). New Mexico is one of 30 states with a mandatory renewable portfolio standard. The NM RPS requires power companies to obtain 10% of their power from renewable sources in the years 2011 through 2014; 15% in the years 2015 through 2019; and 20% in subsequent years. Lest those mandates are not restrictive enough, the power companies can’t even achieve their mandated percentages of renewable sources by seeking the lowest-cost alternative. The NM RPS goes even further and mandates the mix of renewable sources. Wind has to be no less than 20% of the renewable portfolio; solar no less than 20%; non-wind and non-solar (biomass, etc.) no less than 10%; and distributed generation no less than 1.5% through 2014 and 3% thereafter.

A Heritage Foundation analysis of a national 22.5% national RPS found that it would cause a 36% jump in household electric rates; a 60% jump in industrial electric rates; a $5.2 trillion reduction in GDP; and loss of more than one million jobs.

On top of RPS, NM power companies are also mandated to implement energy-efficiency programs to realize energy savings of 5% by 2014 and 10% by 2020 based on 2005 generation levels. This mandate is why you can buy a new Energy Star refrigerator and get a check from the power company. Not only are you paying more on the electric bill to cover the rebate but also spending money on an appliance that you probably don’t even need! The energy savings are not going to cover the cost of the new appliance!

Perhaps more indirect but no less coercive are the raft of federal and state air- and water-quality regulations promulgated by EPA and the New Mexico Environment Department.

New Mexico has not one but two regulations to cap and reduce carbon dioxide emissions from power plants. The companies will have to purchase carbon offsets or reduce output from coal-fired plants, both of which will add to electric bills.

Then EPA gets into the act and comes out with new regulations on a regular basis to control regional haze, ozone, hazardous air pollutants, coal ash, and now carbon dioxide. Dealing with all these rules requires companies to undertake major retrofit projects, reduce output, or just shut the doors. Most of the mandates require huge investments of funds and yield imperceptible environmental benefit.

A recent example is the EPA ruling that PNM will have to install retrofit technology to the San Juan plant to improve visibility at Mesa Verde and other national parks. The cost could be as much as a billion dollars and there will be no perceptible change in visibility.

Solar and wind certainly can produce some electricity. They undoubtedly can and will have a niche in future US power production. However, that should only happen when they can be economically viable on their own merit without the massive bribery and coercion forcing them on us now.

Thursday, November 3, 2011

Surprise? All that taxpayer money for "green jobs" has yielded almost nothing!

Read CARE favorite Diana Furchtgott-Roth's report on the latest Congressional hearing.

Obama's Green-Energy Jobs Lie

By Diana Furchtgott-Roth

November 3, 2011.

For several years the public has been told that "green energy" --an expansive term that embraces renewable energy, pollution reduction, and conservation-- will create jobs in America, lots of jobs. And that the federal government must subsidize green energy to create these jobs.

Now it turns out that story is nothing but a fairy tale.

At a hearing Wednesday before a House Oversight and Government Reform subcommittee, the Inspector General of the Energy Department and an Assistant Inspector General of the Labor Department testified that funds authorized by Congress to create green jobs had not been spent or, if spent, had yielded meager results.

Elliot Lewis, the Labor Department's assistant IG for audit, testified that an audit of the Department's green jobs training program showed that only 2.5 percent of individuals originally enrolled were still employed in the jobs for which they were trained six months after the start of their job. Whether they had gone on to other jobs, green or otherwise, or become unemployed, the Department's tracking system did not say.

Gregory Friedman, IG of the Energy Department, testified that as of late October, 45 percent of funds appropriated by the 2009 American Reinvestment and Recovery Act (the stimulus bill) for green energy had not been spent, because few "shovel ready" projects existed.

The testimony of the two IGs shows why green jobs programs have not succeeded in increasing employment. Instead, government money is either wasted, or unspent.

Mr. Friedman said, with regard to weatherization programs, "The main abuses were charging for work that wasn't completed or done at all, abusing priority sequence, premiums for things that could have been gotten for a lower cost."

Take the Green Jobs training sponsored by the Labor Department's Employment and Training Administration. As of June 30, ETA had awarded $490 million of the $500 million provided by Congress for the program. The funds were awarded to state workforce agencies, community colleges, and nonprofits. Green jobs were defined as those "associated with products and services that use renewable energy resources, reduce pollution, and conserve natural resources."

ETA money trained some workers in green jobs such as hybrid- and electric-car auto mechanics, weatherization of buildings, and solar panel installation. Other workers received job referrals, training in basic workforce readiness skills, and credentials and support services to overcome employment barriers.

Yet, two-and-a-half years after Congress passed the Recovery Act and almost three-quarters of the way into the program, grantees had spent only $163 million, about a third of the funds earmarked for them.

With only 1,336 trainees still employed after six months, my simple mathematical calculation yields a taxpayer cost of $121,257 per job.

Perhaps it was a good thing, given the meager results, that so little was actually spent by the states.

Here's how the numbers break out. Out of 53,000 people who were served by the ETA programs, 47,000 enrolled in training. Of them, 26,000 completed training, and 8,000 found jobs. Of the 8,000, only 1,366 were employed six months later.

With the number employed by the Green Jobs program less than two percent of ETA's target of 69,717, and another $327 million left unspent, the program does not appear to be on track. In its defense, ETA told the IG that in the remaining months of the program the grant recipients would manage to spend more money and train more people.

But this appears unlikely, the Labor Department IG said. He recommended that any of the unspent $327 million that was not being used by the states be returned to the Treasury.

The Energy Department had similar problems spending its recovery funds, according to IG Friedman. Out of the Energy Efficiency and Conservation Block Grant Program, almost a third, or $879 million, had not been spent as of March 31, two years after enactment. In Energy Delivery and Energy Reliability, $2.6 billion, or 57 percent, was unspent.

Even more disconcerting, when the funds were spent, the work was often of poor quality. In one state audit, 9 out of 17 weatherized homes failed inspection due to substandard workmanship. One subcontractor gave preference to relatives and employees, even though the target population was elderly and handicapped residents.

In response to a question by Representative Scott DesJarlais, a Tennessee Republican, Mr. Friedman explained that state and local government were unprepared to receive the grants. "Not to make light of a serious situation, but it was like attaching a lawn hose to a fire hydrant," he said. "The governments were overwhelmed."

The IGs held out no hope for better outcomes, a sentiment shared by other witnesses.

David Montgomery of NERA Economic Consulting, testified that opportunities for green jobs are few because the price of carbon emissions in America is too low. If the government wants to create green jobs, he said, it must tax carbon emissions directly.

Without a carbon tax, there is no demand for green technology, and it remains dependent on everlasting government subsidies, Montgomery argued. That's why there's no mass market now for electric vehicles, and no broad market for green technology beyond the one created by federal and state governments.

This would further increase energy prices and slow the economy. Yes, businesses and consumers would change technology to save money, just as the higher gasoline taxes in Europe have resulted in smaller, more fuel-efficient cars. But this would leave consumers less cash on hand for other expenditures.

Gregory Kats, president of Capital E, a venture capital firm, and a witness for the Democrats, testified that the need to invest large amounts of money in the economy has posed serious challenges, including scaling up capacity for training, developing programs, and recruiting.

But, on balance, he concluded that "evaluation of employment impact from multiple non-partisan organizations...demonstrate large and positive employment impact from ARRA clean energy and green funding."

Mr. Kats is on weak ground, because since the end of the recession, in June 2009, the economy has gained only 841,000 nonfarm payroll jobs, a small return on $825 billion in stimulus spending. If jobs were actually created by government spending, and there is scant evidence to support such a proposition, the stimulus bill cost nearly $1 million per job created.

American students are graduating from high schools, technical schools, and colleges where they are being taught that government investments in green energy will lead to more jobs. But when they search for jobs, these students are learning the hard way that the government-inspired stories about green energy leading to jobs is nothing more than science fiction, and more fiction than science.

Diana Furchtgott-Roth is a senior fellow at the Manhattan Institute.

Tuesday, November 1, 2011

Obama administration continues to take rights away from states

This time the EPA's target is New Mexico, which will cost electricity users an extra $120 TAX a year.

EPA’s Shocking New Mexico Power Grab

By William Yeatman* A Competitive Enterprise Institute/Rio Grande Foundation Working Paper October 2011

· William Yeatman is Assistant Director of the Center for Energy and Environment at the Competitive Enterprise Institute.

· photo credit:

President Barack Obama’s Environmental Protection Agency (EPA) has moved aggressively to usurp policy making authority from the states. In West Virginia and Kentucky, for example, the EPA has effectively overhauled Clean Water Act (CWA) permitting regimes, in disregard of administrative procedure rules.1 Texas Attorney General Greg Abbott has sued the EPA six times over its decision to reject state’s 17-year old “Flexible Permit” air quality permitting program for refineries.2 Oklahoma Attorney General Scott Pruitt is suing the EPA over its proposal to impose Clean Air Act controls at six coal fired power plants that cost almost $1 billion more than what the Sooner State had proposed.3 And that is just the beginning.

On August 22, 2011, the EPA committed its most outrageous affront to environmental federalism, with New Mexico as the victim. Specifically, the EPA refused to consider New Mexico’s visibility improvement plan, required under the Clean Air Act (CAA), and imposed a federal plan in its stead. This paper demonstrates how the EPA ran roughshod over New Mexico’s rightful authority, at a cost of almost $340 million to New Mexico ratepayers. Thanks to the EPA’s power grab, 500,000 PNM ratepayers in New Mexico are facing a $120 per year electricity tax4 (PNM is the state’s largest utility). The “benefit” of this tax, according to peer- reviewed research, is a visibility “improvement” that is imperceptible to most people.

New Mexico’s plight is right out of a Kafka novella: The EPA has never adequately explained what it is trying to do. It is being completely unreasonable yet circumspect. Its proposed rulemaking failed to articulate clearly why New Mexico’s proposal was unacceptable, and the final rulemaking addressed comments by citing either passages of its oblique proposed rulemaking5 or unidentified passages of the final rulemaking.6

All we know for sure is that it has crafted an ad hoc regulatory regime for visibility improvement that treats New Mexico differently from every other state. The EPA has singled out New Mexico for arbitrary enforcement of the agency’s own dubious interpretations of two related Clean Air Act sections:

The Regional Haze provision, which provides that states work together to improve visibility at federal National Parks and Wilderness Areas, while giving the states a high degree of control; and

The Good Neighbor provision for visibility, which provides that states demonstrate they have implemented adequate measures to ensure that their emissions do not “interfere with measures required to be included in the applicable implementation plan for any other protect visibility.”7

In June 2011, New Mexico regulators completed a plan that would have achieved the requirements of both the Good Neighbor and Regional Haze provisions. However, the EPA refused to even consider New Mexico’s plan, based on arbitrary, unnecessary deadlines that the EPA set for New Mexico, and for no other state.

Two months later, the EPA imposed a federal visibility plan on New Mexico. It was $700 million more expensive than the state plan, which, again, met all of the EPA’s own requirements.8 To put it another way, the EPA’s took the liberty of exceeding its own cost- effectiveness regulations. In order to justify these exorbitant costs, the EPA created a hybrid authority from the Clean Air Act’s Good Neighbor and Regional Haze provisions. Illogically (and likely illegally), the EPA found that together, these provisions mandate emissions controls 10 times as expensive as would have been required by the sum of the individual provisions. No other state has been subjected to visibility regulations that were far more stringent than the EPA’s own criteria.

It gets worse. The EPA alleged that New Mexico violated the Good Neighbor provision for visibility based on a vague, undefined standard that was more lenient for other states. The EPA fails to explain why it treated New Mexico differently.

New Mexico's Visibility-Improvement Controls Meet EPA's Requirements...

NOX Controlled Emissions Rate (lb/mmBTU)

Controls mandated by EPA's Regional Haze provision authority 0.24

Controls mandated by EPA's (claimed) Good Neighbor provision authority 0.28

New Mexico's proposed controls 0.23

Controls imposed by EPA’s federal implementation plan 0.05

..Yet, EPA Is Imposing Controls That Far Exceed Its Own Rules, and Cost $700 Million More

NOX Controlled Emissions Rate (lb/mmBTU) Cost ($millions)

New Mexico's proposed controls

(which meet all federal and state laws and regulations) 0.23 64

Controls imposed by EPA 0.05 779

The EPA’s actions warrant a response. The New Mexico Legislature should express its disapproval in the strongest possible terms. Lawmakers should send a message to the White House, informing it that New Mexico objects to the EPA’s capricious and arbitrary machinations. A description of the EPA’s abuse of power regarding each provision follows.

The Regional Haze Provision

In 1977 and 1990, Congress passed amendments to the Clean Air Act providing that states work together to improve visibility at federal National Parks and Wilderness Areas. Together, these amendments are known as the Regional Haze provision.9

Notably, this provision accords states a uniquely high degree of control relative to the EPA. According to the EPA’s 2005 Regional Haze implementation guidelines, “[T]he [Clean Air] Act and legislative history indicate that Congress evinced a special concern with insuring that States would be the decision-makers”10 on visibility-improvement policy making. The courts, too, have interpreted the Clean Air Act such that states have primacy on Regional Haze decision-making. In the seminal case American Corn Growers v. EPA (2001), which set boundaries between the states and the EPA on Regional Haze policy, the D.C. Circuit Court remanded the EPA’s 1999 Regional Haze implementation guidelines for encroaching on states’ rightful authority.11

Under the Regional Haze provision, states must establish “Reasonable Progress” goals to improve visibility on a regional basis. A primary mechanism by which states would achieve Reasonable Progress is a requirement that all major emitters built between 1962 and 1977 install what is known as Best Available Retrofit Technology (BART) to improve visibility.

BART is not any particular technology, but a process. First, states have to decide which emitters contribute significantly to visibility impairment at any and all federal National Parks and Wilderness Areas. Then, for each source, the law requires that states must perform a five-factor analysis, which includes:

1. Cost of compliance;

2. Energy and non-air quality environmental impacts of compliance;

3. Any existing pollution control technology in use at the source;

4. Remaining useful life of the source; and

5. The degree of improvement in visibility which may reasonably be anticipated to resultfrom the use of such technology.12

New Mexico Singled Out Under BART Rules

In 2005, the EPA published BART guidelines that establish targets for power plants to reduce visibility-impairing pollutants, known as “presumptive limits.” For coal-fired electricity generating units smaller than 750 megawatts, the 2005 guidelines were only recommendations, so states could essentially decide on any emissions control technology after regulators performed the BART five-factor analysis. But for coal power plants larger than 750 megawatts, like the 1,800-megawatt San Juan Generating Station, these BART “presumptive limits” were mandatory.13

From December 2010 to May 2011, the New Mexico Environmental Department (NMED) performed the five-factor BART analysis in a public rulemaking, in accordance with all applicable procedural law. The plan was predicated on the EPA’s 2005 guidelines, and it set emissions controls for the San Juan Generating Station, near Farmington, at the BART “presumptive limits.” In fact, the NMED had no choice in the matter—state law forbids air quality regulators from setting emissions limits pursuant to federal law at a level that is more stringent than what the federal government requires.14 On June 3, 2011, the Environmental Improvement Board approved the Regional Haze plan by a unanimous vote.15

The NMED’s visibility-improvement plan met all state and federal laws and regulations. Despite this, the EPA in August 2011 rejected the state’s cost-effectiveness analysis, a key component of the BART process.16 Then the EPA, based on its own cost-effectiveness analysis, imposed emissions requirements on the San Juan Generating Station that far exceeded its own “presumptive limits.”

New Mexico’s Regional Haze strategy, which, again, met all applicable federal and state laws and regulations, cost $73.8 million; the EPA’s plan cost $748 million. PNM’s 500,000 New Mexico ratepayers would bear $397 million of this cost. The EPA plan would increase electricity bills by $9.50 a month, according to an analysis by the utility.17

That is a lot of money, especially considering that the “benefits” are invisible. Peer-reviewed research suggests that the there is at most a 50 percent chance the visibility “improvement” wrought by the EPA’s preferred controls could be perceptible by the general population on the seventh-worst visibility day of the year at Mesa Verde, the national park closest to the San Juan Generating Station.18

The EPA has not approved a single regional haze submission, but it has proposed federal plans for two other states in addition to New Mexico: Oklahoma19 and North Dakota.20 However, those two states had proposed regional haze plans that failed to meet the EPA’s mandatory “presumptive limits.”21 New Mexico, on the other hand, proposed a plan in full compliance with federal and state laws and regulations. In a contortion of logic, the EPA is rejecting New Mexico’s cost-effective analysis for a plan that achieves the EPA’s own target for cost- effectiveness. It is the only state subject to this bizarre reasoning.

New Mexico Singled out by EPA’s Self-Imposed Regional Haze Deadline

In its August rulemaking, the EPA claimed that it could not even consider NMED’s plan, because it was submitted after its January 15, 2011, deadline.22 Thus, the EPA claimed that, “Because...New Mexico did not timely formulate and submit its BART determinations, we have the authority and the responsibility to make a NOX BART determination for [the San Juan Generating Station].”23

But New Mexico was not the only state to submit a Regional Haze plan late. Colorado, Montana, North Dakota, and Wyoming also made late submissions. Under a consent decree with environmentalist litigation organizations, the EPA will get around to judging those plans by: January 2012 for North Dakota; June 29, 2012, for Montana; September 10, 2012, for Colorado; and October 15, 2012, for Wyoming.24

For these states, the EPA was compelled to act by three environmentalist organizations (WildEarth Guardian, the National Parks Conservation Association, and the Environmental Defense Fund), and the earliest deadline was established in January 2012. Yet for New Mexico, the EPA acted on its own accord. The EPA chose to ignore New Mexico’s visibility strategy on the basis of this arbitrary, self-imposed deadline, set months before that of every other state, in blatant disregard of Congress’ intent to have the states take the lead on Regional Haze.

The Good Neighbor Provision

To borrow a poker term, New Mexico had the “nuts” vis a vis the EPA on visibility improvement policy. The EPA wanted the most expensive controls installed at the San Juan Generating Station, but New Mexico’s Regional Haze plan was unassailable. Not only did Congress afford the states a uniquely high degree of sovereignty over the EPA on visibility improvement policy, but New Mexico regulators submitted a plan that meets the EPA’s own rules.

The EPA, however, had an ace up its sleeve. In an unprecedented seizure of power, its proposed rulemaking to impose a federal visibility plan on New Mexico, published January 7, 2011, claimed that the agency has dual-authority under the Clean Air Act to run roughshod over New Mexico on visibility-improvement policy.25 In addition to the Regional Haze provision, the EPA also claims to have authority under the Good Neighbor provision of the Clean Air Act,26 which provides that states demonstrate they have implemented adequate measures to ensure that their emissions do not “interfere with measures required to be included in the applicable implementation plan for any other protect visibility.”

This is a dubious legal reasoning, because the Regional Haze provision explicitly mandates that states control emissions of haze-causing pollutants that significantly diminish visibility in all federal National Parks and Wilderness Areas, not just ones within their own borders. That is, the Regional Haze provision effectively requires states to meet the Good Neighbor provision. It makes no sense for Congress to create a program requiring states to work together to reduce visibility impairment in the Regional Haze provision, and then to also create a vague, amorphous, ill-defined separate source of authority with one phrase in the Good Neighbor provision, an altogether different section of the law.

More importantly, the EPA has yet to fully approve a single Regional Haze plan. How can the EPA know whether New Mexico is adversely affecting other states’ visibility improvement programs that do not yet exist? Indeed, this is the exact reasoning used by the EPA in 2006, when it published implementation rules for the Good Neighbor provision. In the rules, the EPA said that, “is not possible at this time to assess whether there is any interference with measures in...another State designed to ‘protect visibility’...until regional haze [plans] are submitted and approved.”27

According to the EPA’s own guidelines, the Good Neighbor provision for visibility is essentially a procedural requirement. All states had to do was make a “simple submission” indicating that they intended to submit a Regional Haze plan. To be clear: EPA’s 2006 interpretation of the Clean Air Act imparts no authority to the agency pursuant to the Good Neighbor provision. Now, however, the EPA is interpreting it as an independent source of power!

The EPA’s apparent power grab pursuant to the Good Neighbor provision of the Clean Air Act is being challenged in federal court by PNM, among others,28 so the legality of the agency’s interpretation remains in question. What is not in question is that the EPA created a regulatory program under the Good Neighbor provision that treats New Mexico differently than every other state.

New Mexico Singled out under EPA Good Neighbor Provision Rules

As noted above, the EPA’s own Good Neighbor provision guidelines interpret compliance as a clerical matter, and not as a source of authority. In accordance with its 2006 Good Neighbor provision implementation rules, the EPA in 2007 and 2008 approved “simple submissions”— promises to submit a Regional Haze plan—submitted by Arizona,29 Iowa,30 Kansas,31 Minnesota,32 Nebraska,33 Nevada,34 South Dakota,35 Utah,36 and Wyoming.37

Like these states, New Mexico submitted a plan to comply with the Good Neighbor provision, one that comported with the EPA’s own 2006 guidelines. However, without explanation, the EPA remained silent on the Good Neighbor provision plans for visibility improvement submitted by a handful of states, including New Mexico. These states were left in regulatory limbo for years. Notably, former Governor Bill Richardson’s administration objected to the EPA’s refusal to approve New Mexico’s submission. The NMED expressed its “fundamental concerns regarding the workability of the [Good Neighbor provision proposal] review process” and also stated that the EPA’s refusal to act results in “a never ending cycle of [proposal] submissions without approvals.”38

In August, more than three and a half years after New Mexico submitted its Good Neighbor provision proposal, the EPA reversed itself and claimed that its 2006 implementation rules were published “in error.” Whereas those 2006 guidelines rightly asserted that it was “impossible” to know whether one state is interfering with other states’ visibility-improvement programs if such programs do not yet exist, now the EPA is arguing that it is possible to determine whether a state is violating the Good Neighbor provision, based on what the state “should” have in its Regional Haze plan, even if that plan has not yet been approved by the EPA (to date, the EPA hasn’t approved a single plan).39

Unfortunately, the EPA failed to put forth concrete rules to assess the approvability of a state’s Good Neighbor visibility proposal in the absence of an approved Regional Haze plan. So there is no objective referent. Troublingly, the EPA interprets “should” differently for New Mexico than it does for other states.

For New Mexico, the EPA decided that the Good Neighbor plan “should” have controls at least as stringent as those assumed by the Western Air Regional Partnership (WRAP), a group of Western states that formed to coordinate their environmental modeling regarding visibility improvement. In its proposed rulemaking, the EPA stated that, “any discrepancies between what was included in the WRAP photochemical modeling and what is presently enforceable, is a concern.”40 The EPA concluded, on the basis of this “discrepancy”41 that New Mexico is interfering with visibility improvement programs in other WRAP states, and, therefore, is in violation of the Good Neighbor provision.

For other WRAP states, however, the EPA treated “discrepancies” differently. Earlier in 2011, the EPA proposed to approve Oregon’s Good Neighbor plan for visibility,42 despite the fact that the EPA allowed the 568-megawatt Boardman coal-fired power plant, in northeastern Oregon, to emit almost four times as much sulfur-dioxide (SO2) as assumed by WRAP modeling—0.4 (lbs pounds of sulfur dioxide per million British Thermal Unit

SO2/mmBTU), well above the WRAP-determined emissions limit of 0.12 lbs SO2/mmBTU.43

The magnitude of Oregon’s “discrepancy” with WRAP modeling, which was approved by the EPA, is comparable with the magnitude of New Mexico’s “discrepancy,” which was disallowed by the EPA. San Juan Generating Station overshot the WRAP modeling assumptions by 0.025 pounds of nitrogen oxides (NOx) per million British Thermal Unit.44 San Juan is almost three times larger than Boardman, but the EPA is allowing the latter to emit NOx much more above the WRAP model’s limit than the former. Moreover, on a per weight basis, sulfur dioxide impairs visibility much more do than nitrogen oxides, so it makes no sense to regulate NOx more strictly for the purposes of visibility improvement.

Another example of the EPA’s capriciousness occurred in April 2011, when it approved Colorado’s Good Neighbor plan for visibility,45 even though it could not legally take into account 45,700 tons of sulfates and 5,200 tons of nitrogen oxides that had been assumed by WRAP modeling.46 For comparison, consider that the San Juan Generating Station would have complied with the EPA’s ad hoc criteria for Good Neighbor provision compliance by reducing nitrogen oxides by about 3,500 tons—which is 1,700 tons less than the 5,200 tons “discrepancy” that the EPA allowed for Colorado.

For New Mexico, a mere discrepancy of any size between emissions and modeling assumptions was cause for the rejection of a Good Neighbor plan, while large discrepancies did not affect approval for Colorado and Oregon. There is no way to know the reason for this disparate treatment, because the EPA never established impartial criteria.

New Mexico Singled out by EPA’s Good Neighbor Provision Deadline

Having seized an independent source of authority under the Good Neighbor provision of the Clean Air Act, the EPA then alleges that New Mexico is in violation of the provision, based on an arbitrary standard that was different for other states. Even if these shenanigans were legal (they’re likely not), New Mexico’s visibility improvement plan, submitted in July, would have achieved the requirements of both the Regional Haze and Good Neighbor provisions.

But the EPA in August refused to even consider New Mexico’s plan, because the agency claimed that it didn’t have the time to do so. In the first section, the EPA’s arbitrary Regional Haze deadline was explained. In addition to this bogus cutoff, the EPA stated that it was rushed to act in order to comply with an August 5 deadline to decide on New Mexico’s Good Neighbor provision proposal. Unlike the Regional Haze deadline, which was self-imposed, this Good Neighbor provision deadline was established by a court-approved consent decree.

As noted earlier, New Mexico submitted a proposal to comply with the Good Neighbor provision in September 2007. It met the EPA’s own implementation rules, but the EPA refused to act on it, thereby leaving New Mexico in regulatory limbo.

The Clean Air Act gives the EPA 18 months to either approve or reject a state submission, and in June 2009, an environmentalist litigation group, WildEarth Guardians, sued to compel action. Under the terms of the Consent Agreement, the EPA had until August 5, 2011, to either approve or reject New Mexico’s Good Neighbor provision compliance proposal.47 The EPA claims that this cutoff, in addition to its self-imposed Regional Haze deadline, is the reason that it could not even consider the visibility improvement plan submitted by New Mexico a month earlier.48

New Mexico, however, was not the only state subject to this consent decree. Under the original agreement, the EPA also had to move on proposals submitted by California, Colorado, Idaho, North Dakota, Oklahoma, and Oregon. Those states were treated differently.

California and Idaho are different circumstances altogether, in that neither is home to coal-fired power plants that are subject to visibility-improvement regulations. The EPA approved their plans this year. And, as already noted, the EPA approved Good Neighbor provision proposals for Oregon and Colorado using more generous (yet still undefined) criteria than was applied to New Mexico.

That leaves Oklahoma and North Dakota, in addition to New Mexico, as the only states still subject to the consent decree. Interestingly, the EPA used its discretion under the court-approved agreement to extend the deadlines to these states, to October 14, 2011, for Oklahoma49 and February 9, 2012, for North Dakota.50 If the EPA had pushed for the same treatment for New Mexico, then it would have given itself the time to consider New Mexico’s Regional Haze compliance proposal, which achieved all applicable federal and state laws and regulations.

Even if the EPA refused to try to change the August 5 deadline for New Mexico, as it did for other states, there is no basis in its claim that it had no choice but to impose a federal visibility plan on New Mexico due to the consent decree. In fact, it had the discretion to perform two actions:

1. Approve New Mexico’s Good Neighbor provision proposal because it comported with EPA’s existing rules; or

2. Approve the proposal under the EPA’s new, ad hoc rules, because New Mexico’s proposed visibility improvement plan included what the state “should have,” per the EPA’s own guidelines.


In short, the EPA’s supposed lack of discretion was a complete fiction.

Conclusion: New Mexico Needs To Fight Back

The San Juan Generating Station complies with every single health-based air quality standard pursuant to the Clean Air Act. Indeed, since 2005, PNM has invested nearly $300 million to upgrade emissions controls at the power plant. Now, however, the EPA is trying to impose almost $700 million in unnecessary costs, in order to achieve largely imperceptible “improvements” in visibility at National Parks and Wilderness Areas.

To be sure, New Mexico is subject to a Clean Air Act mandate to install retrofits at the 1,800 megawatt San Juan Generating Station that would control the emission of visibility-impairing pollutants. Accordingly, New Mexico air quality regulators composed a compliance plan that met all applicable state and federal laws and regulations. However, the EPA wanted New Mexico to install emissions controls that far exceeded its own requirements. So it manufactured an ad hoc regulatory regime specific to the Land of Enchantment. Simply put, New Mexico is being treated differently than every other state, in order to justify $700 million in costs beyond what the EPA’s own rules stipulate are necessary.

New Mexico lawmakers should send a strong message to the EPA that its actions are unacceptable. They should enact a resolution condemning the EPA’s arbitrary regulations and demand that New Mexico be treated like its peers. In so doing, they would be governing in the best interest of the nearly 500,000 New Mexicans who face a $120 per year electricity tax to pay for invisible benefits.


1 On October 6, 2011, a federal district court ruled that the EPA violated the Administrative Procedure Act by substantively changing the Clean Water Act permitting process for surface coal mines in Appalachia. The case had been brought by West Virginia, Kentucky, and the National Mining Association. See Case No. 1:10-cv-01220-RBW Document 96, filed October 6, 2011, available:

2 See 75 FR 41312 for the EPA’s rulemaking to end the Flexible Permit program. See also, Erin Mulvaney “Texas Vows to Fight EPA Regulations,” Dallas Morning News, March 11, 2011,

3 See 76 FR 16168 for EPA’s proposed Oklahoma rule; see also, “Oklahoma Attorney General Sues EPA over Regional Haze Rule,” press release from office of Oklahoma Attorney General Scott Pruitt,

4 PNM Submission to the Environmental Improvement Board, “Update Rate Impact Analysis,” February 11, 2011,

5 For example, see 76 FR 52390, “As explained in the notice of proposed rulemaking, we believe that the analysis conducted by the WRAP provides an appropriate means for designing a FIP that will ensure that emissions from sources in New Mexico are not interfering with the visibility programs of other states...” As explained in the second section of this paper, the EPA’s proposed rulemaking never established criteria for what constitutes “appropriate means.” Instead, the EPA applied different standards to different states.

6 For example, see 76 FR 52415, 52416, “As previously discussed, we have made findings related to the New Mexico SIP submission needed to address interstate transport and the requirement that emissions from New Mexico sources do not interfere with measures required in the SIP of any other state to protect visibility...” The only possible antecedent to “as previously discussed” is the fifth footnote of this paper, which leads to nowhere. See also comment 41.

7 Clean Air Act Section 110(a)(2)(D)(i)(II).

8 PNM Submission to the Environmental Improvement Board.

9 Clean Air Act Sections 169 A and 169 B.

10 70 FR 39137.

11 291 F. 3d 1: American Corn Growers Association v. Environmental Protection Agency, paragraph 22, “We agree with these petitioners that the [Regional ] Haze Rule’s Best Available Retrofit Technology (BART) provisions are inconsistent with the Act’s provisions giving the states broad authority over BART determinations.”

12 Clean Air Act, Section 169A(g)(1).

13 70 FR 39108, “[The Clean Air Act] clearly requires us to promulgate Best Available Retrofit Technology (BART) guidelines that the States must follow in establishing BART emission limitations for power plants with a total capacity exceeding the 750 megawatt cutoff.” The EPA cites 169(b) of the Clean Air Act, stipulating that, “in the case of a fossil fuel fired generating power plant having a capacity in excess of 750 megawatts, the emissions limitations required under this paragraph shall be determined pursuant to guidelines, promulgated by the Administrator...”

14 See NMSA 74-2-5 C.(1)(a): “Regulations adopted by the Environmental Improvement Board...shall be no more stringent but at least as stringent as required by the federal act and federal regulations pertaining to visibility protection in mandatory class 1 areas...”

15 NM Environmental Improvement Board, In matter of Proposed Revisions to the State Implementation Plan for Regional Haze under 40 CFR Section 51.09, June 6, 2011, 16 76 FR 52391, “PNM’s estimated costs for installing SCR on the units of the San Juan Generating Station [which were approved by the New Mexico Environmental Department and the Environmental Improvement Board] are higher than justified.” See generally, 76 FR 52391, 52392, “General Cost Comments.”

17 PNM Submission to the Environmental Improvement Board.

18 This is a conservative estimate. It is based on the New Mexico Environmental Department-modeled difference in visibility improvement at Mesa Verde between New Mexico’s preferred Regional Haze controls and those preferred by the EPA (1.12 deciviews). This difference is then applied to a chart (Figure 1), which was taken from Ronald Henry, “Estimating the Probability of the Public Perceiving a Decrease in Atmospheric Haze,” Journal of the Air and Waste Management Association Vol. 55 No. 11, p. 1764.

19 76 FR 16168.

20 76 FR 58570.

21 In Oklahoma, the state’s Regional Haze plan to address sulfur dioxide at six coal-fired power plants exceeded the presumptive limits established in the 2005 BART Guidelines. In North Dakota, the state’s regional haze plan to address nitrogen oxides emissions at three coal-fired power plants that operate a cyclone boiler exceeded the presumptive limits. See 76 FR 16168 and 76 FR 58570.

22 The EPA stated: “We received a RH SIP submittal from the state on July 5, 2011. Unfortunately, due to the timing of that submittal, we cannot evaluate it as part of this action. We note that this RH SIP submittal arrived approximately 31⁄2 years past the due date of December 17, 2007, and well past January 15, 2011, the date by which we were obligated either to approve a RH SIP submission or to promulgate a RH FIP, as a result of the 2009 finding of failure to submit the RH SIP,” 76 FR 32415.

23 76 FR 52387.

24 76 FR 34983.

25 76 FR 52415, “EPA has two separate sources of authority and obligations to take this action, i.e., a statutory obligation to promulgate a [federal plan] to meet the requirements of [the Good Neighbor provision for visibility] and a statutory obligation to promulgate a [federal plan] to meet the RH (Regional Haze) program requirements of the CAA (Clean Air Act).”

26 Clean Air Act, Section 110(a)(2)(D)(i)(II).

27 Memorandum to Regional Air Division Director, Regions 1-10, August 15, 2006, p. 9,

28 Oklahoma and North Dakota have sued the EPA over its use of the Good Neighbor provision for visibility as an independent source of power.

29 72 FR 41629.

30 72 FR 10380.

31 72 FR 10608.

32 73 FR 31366.

33 72 FR 71245.

34 72 FR 41629.

35 73 FR 26019.

36 73 FR 16543.

37 73 FR 26019.

38 In comments to the EPA on its proposed federal implementation plan for New Mexico, PNM cited a May 6, 2010 letter to the EPA from NMED, asking EPA to stop delaying and approve the state’s Good Neighbor provision proposal.

39 76 FR 52419, “[The Good Neighbor compliance plan] evaluation is supposed to consider what other states should have in their State Implementation Plans as of this point in time, and is not limited by the fact that other states may or may not have approved those [Regional Haze plans] at this point in time.”

40 76 FR 497.

41 Maddeningly, the EPA never elaborates on how it came to conclude that EPA violated the Good Neighbor provision for visibility. It mentioned an analysis (76 FR 497), “We have evaluated [New Mexico’s] discrepancies and determined that they are significant due to the changes in visibility projections in the modeling.” But the EPA doesn’t cite an analysis, nor does it explain itself any further.

42 76 FR 12651.

43 76 FR 12660, 12661, 12662.

44 76 FR 497, “Although the SJGS is subject to a federally enforceable permit, the permit’s 30-day rolling average NOx emission limit of 0.30 lb/mmBTU for all units is less restrictive than the emission rates modeled by the WRAP of 0.27 lbs/mmBTU for units 1 and 3, and 0.28 lbs/mmBTU for units 2 and 4 in addressing the daily visibility impacts.”

45 76 FR 22036.

46 76 FR 8329, “To account for measures that are not federally enforceable, EPA increased the Colorado emissions inventory 45,700 tons for sulfates and 5,200 tons for nitrates from the emission inventory used for Colorado in the WRAP 2018 reasonable progress modeling.”

47 WildEarth Guardians v. Lisa Jackson, Case No. 4:09-CV-02453-CW.

48 76 FR 52415, “We are under a consent Decree deadline with WildEarth Guardians that requires the Agency to take action by August 5, 2011, either to approve the New Mexico [Good Neighbor provision for visibility proposal] or promulgate a Federal Implementation Plan, to address the [Good Neighbor provision for visibility]. Because of the lateness of the July 5, 2011 submission, it is not possible to review and potentially approve the July 5, 2011, SIP submission by proposing a rulemaking and promulgating a final action by August 5.”

49 WildEarth Guardians v. Lisa Jackson, Case No. 4:09-CV-02453-CW Document 34. 50 WildEarth Guardians v. Lisa Jackson, Case No. 4:09-CV-02453-CW Document 37.

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