SB 810 — Implementing federal Affordable Clean Energy rule

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Red = new code to be enacted WEST virginia legislature regular session Enrolled Committee Substitute for Senate Bill 810 Senators Smith and Cline, original sponsors [Originating[Passed inMarch the4, Committee2020; on the Judiciary;

reportedin oneffect February90 24,days 2020]from passage]     AAN BILLACT to amend and reenact §22-5-20 of the Code of West Virginia, 1931, as amended, relating to adoption of a state plan implementing the federal Affordable Clean Energy rule pursuant to section 111(d) of the federal Clean Air Act.

 (a)The LegislativeWest findings.Virginia Department of Environmental Protection shall propose a legislative rule for promulgation in accordance with §29A-3-1 of this code to implement the Affordable Clean Energy rule, consisting of Emission Guidelines for Greenhouse Gas, Emissions from Existing Electric Utility Generating Units (EGUs) pursuant to the federal Clean Air Act, section 111(d).

— (1) The United States Environmental Protection Agency has proposed a federal rule pursuant to Section 111(d) of the Clean Air Act, 42 U.

S.

C.

§7411(d), to regulate carbon dioxide emissions from electric generating units.

(2) The rule is expected to go into effect on or about June 30, 2015, and will require each state to submit a state plan pursuant to Section 111(d) that sets forth laws, policies and regulations that will be enacted by the state to meet the federal guidelines in the rule.

(3) The creation of this state plan necessitates establishment and creation of law affecting the economy and energy policy of this state.

(4) The Environmental Protection Agency has stated that any state plan it ultimately approves shall become enforceable federal law upon that state.

(5) The state disputes the jurisdiction and purported binding nature asserted by the Environmental Protection Agency through this rule, and reserves to itself those rights and responsibilities properly reserved to the State of West Virginia.

(6) Given the economic impact and potentially legally binding nature of the submission of a state plan, there is a compelling state interest to require appropriate legislative review and passage of law prior to submission, if any, of a state plan pursuant to Section 111(d) of the Clean Air Act.

(b) Submission of a state plan.

— Absent specific legislative enactment granting such powers or rule-making authority, the Department of Environmental Protection or any other agency or officer of state government is not authorized to submit to the Environmental Protection Agency a state plan under this section, or otherwise pursuant to Section 111(d) of the Clean Air Act:

Provided, That the Department of Environmental Protection, in consultation with the Department of Environmental Protection Advisory Council and other necessary and appropriate agencies and entities, may develop a proposed state plan in accordance with this section.

(c) Development of a Proposed State Plan.

— (1) The Department of Environmental Protection shall, no later than one hundred eighty days after a rule is finalized by the Environmental Protection Agency that requires the state to submit a state plan under Section 111(d) of the Clean Air Act, 42 U.

S.

C.

§ 7411(d), submit to the Legislature a report regarding the feasibility of the state's compliance with the Section 111(d) rule.

The report must include a comprehensive analysis of the effect of the Section 111(d) rule on the state, including, but not limited to, the need for legislative or other changes to state law, and the factors referenced in subsection (g) of this section.

The report must make at least two feasibility determinations:

(i) Whether the creation of a state plan is feasible based on the comprehensive analysis;

and (ii) whether the creation of a state plan is feasible before the deadline to submit a state plan to Environmental Protection Agency under the Section 111(d) rule, assuming no extensions of time are granted by Environmental Protection Agency.

If the department determines that a state plan is or is not feasible under clause (i) of this subsection, the report must explain why.

If the department determines that a state plan is not feasible under clause (ii) of this subsection, it shall explain how long it requires to create a state plan and then endeavor to submit such a state plan to the Legislature as soon as practicable.

Such state plan may be on a unit-specific performance basis and may be based upon either a rate-based model or a mass-based model.

(2) If the department determines that the creation of a state plan is feasible, it shall develop and submit the proposed state plan to the Legislature sitting in regular session, or in an extraordinary session convened for the purpose of consideration of the state plan, in sufficient time to allow for the consideration of the state plan prior to the deadline for submission to the Environmental Protection Agency.

(3) In addition to submitting the proposed state plan to the Legislature, the department shall publish the report and any proposed state plan on its website.

(d) If the department proposes a state plan to the Legislature in accordance with subsection (c) of this section, the department shall propose separate standards of performance for carbon dioxide emissions from existing coal-fired electric generating units in accordance with subsection (e) of this section and from existing natural gas-fired electric generating units in accordance with subsection (f) of this section.

The standards of performance developed and proposed under any state plan to comply with Section 111 of the Clean Air Act should allow for greater flexibility and take into consideration the additional factors set forth in subsection (g) of this section as a part of any state plan to achieve targeted reductions in greenhouse gas emissions which are equivalent or comparable to the goals and marks established by federal guidelines.

(e) Standards of performance for existing coal-fired electric generating units.

— Except as provided under subsection (g) of this section, the standard of performance proposed for existing coal-fired electric generating units under subsection (c) of this section may be based upon:

(1) The best system of emission reduction which, taking into account the cost of achieving the reduction and any nonair quality health and environmental impact and energy requirements, has been adequately demonstrated for coal-fired electric generating units that are subject to the standard of performance;

(2) Reductions in emissions of carbon dioxide that can reasonably be achieved through measures undertaken at each coal-fired electric generating unit;

and (3) Efficiency and other measures that can be undertaken at each coal-fired electric generating unit to reduce carbon dioxide emissions from the unit without switching from coal to other fuels or limiting the economic utilization of the unit.

(f) Standards of performance for existing natural gas-fired electric generating units.

— Except as provided in subsection (g) of this section, the standard of performance proposed for existing gas-fired electric generating units under subsection (c) of this section may be based upon:

(1) The best system of emission reduction which, taking into account the cost of achieving the reduction and any nonair quality health and environmental impact and energy requirements, has been adequately demonstrated for natural gas-fired electric generating units that are subject to the standard of performance;