Surprise, Surprise: New York's Climate Act Is All Virtue Signaling and No Plan

Guest Post by Roger Caiazza of Pragmatic Environmentalist of New York.

I believe the biggest shortcoming of the Hochul Administration’s implementation of the Climate Leadership & Community Protection Act (Climate Act) is the lack of a plan.  For example, in order to implement a transition to meet the mandate that all electricity must be generated by “zero-emissions” resources by 2040 it is necessary to define “zero emissions.” On November 4, 2024, the Department of Public Service (DPS) staff finally proposed definitions for two key components of the 2040 target.  This post describes my impressions of the definitions.

Background

On November 4, 2024, the DPS staff proposal concerning definitions for key terms (Staff Proposal) in Public Service Law §66-p.  The Introduction of the Staff Proposal explains:

In this proposal, the Department of Public Service Staff (Staff) suggests interpretations of key terms in the provisions of the Climate Leadership and Community Protection Act (Climate Act), codified in Section 66-p of the Public Service Law (PSL), which directs the Public Service Commission (Commission) to establish a renewable energy program and design it to achieve particular targets. At issue in this proposal is the language of PSL §66-p(2)(b), which directs the Commission to establish a program pursuant to which, by the year 2040, the “statewide electrical demand system will be zero emissions.” Of particular note, neither of the terms “statewide electrical demand system” nor “zero emissions” are expressly defined in the Climate Act or in the PSL. This lack of statutory definition requires the Commission’s interpretation of these terms to ensure proper regulatory implementation.

The last sentence understates the obvious – it is impossible to implement a plan if we don’t define these terms.  I have highlighted the two terms in the law that are the focus of the definitions, § 66-p, 2:

No later than June thirtieth, two thousand twenty-one, the commission shall establish a program to require that: (a) a minimum of seventy percent of the state wide electric generation secured by jurisdictional load serving entities to meet the electrical energy requirements of all end-use customers in New York state in two thousand thirty shall be generated by renewable energy systems; and (b) that by the year two thousand forty (collectively, the “targets”) the statewide electrical demand system will be zero emissions. In establishing such program, the commission shall consider and where applicable formulate the program to address impacts of the program on safe and adequate electric service in the state under reasonably foreseeable conditions.  The commission may, in designing the program, modify the obligations of jurisdictional load serving entities and/or the targets upon consideration of the factors described in this subdivision.

Note that the program to implement these mandates has already been established so these definitions have not been addressed thus far.  Also note that there is specific language mandating consideration of the implementation program impacts on “safe and adequate electric service.”  On one hand, they have been working on the implementing programs without defining these key terms and on the other hand, they have a mandate to make sure it works.  I do not think they can protect reliability without a plan that addresses definitions of these terms.

Statewide Electrical Demand System

One of the key definitions describes the statewide electrical demand system.  This is an esoteric concern that is less relevant in my opinion because it is basically just concerns emissions accounting.  The definition problem is that the electricity used in the state comes from sources within the state and imported from other states.  DPS has a good handle on the characteristics of power generated within New York but there is much less information for imported power.  The document does a good job explaining the limitations for New York to impose restrictions on imported electricity based on source type.  DPS Staff basically recommended tracking the emissions and accounting for the different source types. 

There are related concerns with facilities and process emissions.  This boils down to accounting for emissions in specific situations such as those related to co-generation facilities that provide both process energy and generate electricity for on-site use. The Staff Proposal concludes “In sum, Staff reads the legislature’s use of “system” as reflective of an intent to not encompass every power-generating resource in the state, but only those that participate in the operation of the statewide electric grid and do so in a routinized or systematic way.”

In my career I spent a lot of time preparing emission compliance reports.  The accounting issues related to the these definitions make me very glad I will not have to address these problems now that I am retired.

Zero Emissions

The more important definition is for “zero emissions”.  The Staff Proposal states:

The Commission’s interpretation of this term will lay the foundation for decisions about planning, investments, and more in the run-up to 2040. That interpretation must address several issues: whether non-greenhouse gas emissions count; which aspects of a resource’s emissions profile to count; whether and how to count emissions from fuel production processes that arguably occur outside the power sector; whether the emissions attributed to a resource should be counted on a gross basis or on a net basis that recognizes the potential for use of particular feedstocks to reduce or wholly avoid emissions that would occur otherwise; how “zero” should be applied as a threshold; and the significance of the Climate Act’s categorization of a fuel cell that does not consume fossil fuels as a “renewable” resource.

Some of these issues are more important than others.  One of the topics during CAC meetings related to whether non-greenhouse gas emissions count.  Members of the Council who were appointed by Democrats ideologically favored the strict interpretation that zero emissions meant no pollutant emissions whatsoever.  Practically speaking the issue was related to the use of hydrogen which is the recommended zero-emissions fuel technology for hard to convert sectors and the place holder for the new Dispatchable Emissions-Free Resource (DEFR) that the Integration Analysis argues is necessary.  Everyone agrees that compliant hydrogen cannot be produced with fossil fuels, but the question was whether the hydrogen had to be used in fuel cells so that the only emission was water or whether it could be burned to produce energy.

I am sure that the ideologues are having fits over the proposed definition:

Staff recommends that the Commission interpret “zero emissions” to refer to greenhouse gases only and not to emissions of other air pollutants. Several points argue in favor of this interpretation. In New York, “unless a contrary intent is clear, lawmakers employ words as they are commonly or ordinarily employed.” Some commenters argue that no ordinary usage of “zero emissions” can be read to exclude particular pollutants, because ordinary usage would specify which are at issue if the intent was to include only some. But, in this instance, at least three aspects of the Climate Act reflect a contrary intent on the part of the legislature. Those are: (1) the Climate Act’s legislative findings; (2) several of its definitions; and (3) its references to “co-pollutants.” As other commenters note, these point to the same conclusion, namely that the legislature’s primary focus in the Climate Act is on the regulation of greenhouse gas emissions, and that it refers to co-pollutants for specific and discrete purposes that complement the regulation of greenhouse gases.

In my opinion this is a pragmatic decision so I support it.  It will be hard enough and expensive enough to produce hydrogen for the uses proposed without adding to the challenge by insisting that it be used in fuel cells.  While fuel cells are a proven technology for limited applications, trying to deploy them on the scale necessary in this instance would be a problem.

I am not particularly concerned with the other zero emissions issues. 

Conclusion

There are two Climate Act electric sector targets: 70% of the electricity must come from renewable energy by 2030 and all electricity must be generated by “zero-emissions” resources by 2040. The DPS has finally defined two terms relevant to those targets in Public Service Law §66-p: statewide electrical demand system and zero emissions.

The law mandated that a program be established by 6/30/2021 to meet the targets.  The fact that the terms crucial to the development of an implementation plan were defined 28 months after the program was supposed to be established epitomizes the lack of planning throughout the Hochul Administration’s implementation of the Climate Act.

The definitions themselves are not of particular interest to the public.  The “statewide electrical demand system” definition is an esoteric concern related to emissions accounting.  The practical consequence of the “zero emissions” definition is the pragmatic decision to accept some emissions rather than demanding no emissions for “zero emissions” technologies.  The best example is that this enables the use of technologies that burn hydrogen and emit nitrogen oxides instead of fuel cells that only emit water.

The DPS staff proposal also included a section titled “Reviewing Progress Towards Achieving the 2040 Target” that will be the subject of a future post.  The bottom line for this DPS report is that making progress is a moot point when there is no overall plan.  New York could be headed towards a policy dead-end that could be prevented if a study assessing whether the Scoping Plan outline of strategies is feasible was conducted first.  Given that no jurisdiction anywhere has developed an electric system reliant on wind, solar, and energy storage, a demonstration project would be best.

#Caiazza #ClimateAct #VirtueSignaling #Cllimate #ElectricGrid

Roger Caiazza blogs on New York energy and environmental issues at Pragmatic Environmentalist of New York.  This post represents his opinion alone and not the opinion of his previous employers or any other company with which he has been associated. Roger has followed the Climate Leadership & Community Protection Act (Climate Act) since it was first proposed, submitted comments on the Climate Act implementation plan, and has written over 450 articles about New York’s net-zero transition.