Barking Up the Wrong Tree Can Existing Policies
Barking Up the Wrong Tree: Can Existing Policies Accurately Account for Carbon Sequestration and Adequately Protect Forests in the New Bioenergy Paradigm? Jody M. Endres, J. D. , M. A. Senior Regulatory Associate The Energy Biosciences Institute Dallas Bartz, 3 rd Year Law Student Shauna Yow, 2 nd Year Law Student Presented to the Strategic Directions in Social, Legal and Environmental Dimensions of Research on Biofuels September 25, 2010 Copyright Jody Endres 2010, All Rights Reserved 1
The Emerging Issue • Numerous forums are questioning whether bioenergy feedstocks are "renewable/sustainable" • Carbon accounting (neutrality) • "Other sustainability" • Forest biomass particularly singled-out Copyright Jody Endres 2010, All Rights Reserved 2
The Emerging Issue • The "answer" to whether existing law offers adequate protections in the new bioenergy paradigm is complicated by: • Inconsistent federal laws and regulations • Gaps in federal laws and regulations • Non-existent federal law (e. g. , RPS, C & T) • Reliance on individual state mechanisms to gauge sustainability that may suffer same problems • Standards not tailored specifically to energy biomass Copyright Jody Endres 2010, All Rights Reserved 3
Research Rationale 1. How governments (federal, state) account for GHG values and "other sustainability" of forest biomass will influence its viability as an energy feedstock, and industry expansion • Existing standards versus • New standards versus • Hybrid Copyright Jody Endres 2010, All Rights Reserved 4
Research Rationale 2. The skepticism surrounding sustainability– particularly forest biomass–has the possibility to both: • Benefit cropped biomass because: • Skepticism may hold up forest biomass as a satisfactory feedstock to satisfy mandates, thus lessening competition • Disadvantage cropped biomass because: • FB would have otherwise driven adoption allowing cropped biomass sector to develop • Standards may "bleed over" Copyright Jody Endres 2010, All Rights Reserved 5
Research Approach 1. Critically analyze: • Definitions and meanings of biomass "sustainability" in: • federal and state forest legislation (& court interpretations) Ø CA, MA, NY as state case studies • private forest standards • Regulatory inconsistencies and gaps, both • between laws in federal and state schemes, and • within each federal and state law Copyright Jody Endres 2010, All Rights Reserved 6
Research Approach 2. Qualitative, comparative study of the regulatory and 3 rd party approaches to highlight pros and cons of each regime Ø Normative approach generates set(s) of policy options for government, industry and other stakeholders 3. Future work • "Good Governance" theory • Expand analysis to other national and international standards Copyright Jody Endres 2010, All Rights Reserved 7
Presentation Outline • Universe of Federal definitions and meaning of biomass feedstock "sustainability" • 7 different laws • Divided into: • GHG Accounting • "Other" Sustainability • State case studies • Focus on California • Preliminary conclusions Copyright Jody Endres 2010, All Rights Reserved 8
The Universe of Federal Definitions of Biomass Feedstock "Sustainability" Copyright Jody Endres 2010, All Rights Reserved 9
1. GHG Reporting (Stationary Sources) • Required by the Consolidated Appropriations Act of 2008 (40 C. F. R Part 98) • Requires emitters >25, 000 MT CO 2 e/yr and 16 "all-in" categories to annually report 6 GHG pollutants • Commenters urged biomass carbon neutrality Copyright Jody Endres 2010, All Rights Reserved 10
1. GHG Reporting (Stationary Sources) • 8/11/10: Proposed amendments • Establishes default values for stationary sources burning biomass • Biomass CO 2 not counted toward 25 K metric ton threshold • No other "sustainability" requirements • http: //edocket. access. gpo. gov/2010/pdf/201018354. pdf Copyright Jody Endres 2010, All Rights Reserved 11
2. U. S. UNFCCC GHG Inventory Report (EPA) • Issued 4/15/10 • Per IPCC methodology: • Does NOT count stack emissions toward reported total b/c "no net addition" • Instead, measures net carbon fluxes in the wooded or cropped reservoirs (LU-LUC-F) Copyright Jody Endres 2010, All Rights Reserved 12
2. U. S. UNFCCC GHG Inventory Report (EPA) 7/28/10: Petition for reconsideration filed by Center for Biological Diversity Ø Biomass combustion is not carbon neutral • Based on the Data Quality Act of 2001 & regs • Requires "accuracy, reliability, lack of bias, and transparency regarding data used, assumptions, and analytical methods" • http: //epa. gov/climatechange/emissions/usinventoryr eport. html • Copyright Jody Endres 2010, All Rights Reserved 13
2. U. S. UNFCCC GHG Inventory Report (EPA) Demands that EPA amend report to include: CO 2 emissions from biomass combustion, and associated land use change, are included in national totals because: • Short-term impacts of emissions are significant, even if re-sequestered in the future • Net effects vary depend on : • Source of biomoass • Sequestration capacity of soil and vegetation • Changes in land use • Time lapse between emission and sequestration • No assumed carbon neutrality • • Copyright Jody Endres 2010, All Rights Reserved 14
3. CAA GHG Final Tailoring Rule (EPA) Final rule issued 5/13/10 Establishes "tailored" thresholds for GHG emissions from stationary sources • Raised from 100/250 tpy to 75, 000/100, 000 tpy • Covers 70% of all GHG emissions (power plants, refineries, cement plants) • Did not exempt emissions from biomass • http: //www. epa. gov/NSR/documents/20100413 fs. p df • • Copyright Jody Endres 2010, All Rights Reserved 15
4. EPA Call for Information (Tailoring Rule) Issued 7/8/10 • • Seeks comments to develop accounting approach for emissions from bioenergy and other biogenic sources • Asks for assessments of science and policy analysis of different approaches Copyright Jody Endres 2010, All Rights Reserved 16
4. EPA Call for Information (Tailoring Rule) • Asks if a distinction should be made between "renewable" and "sustainable" feedstocks and those that are not • If so, what should the indicators be? • Especially forest feedstocks • Asks for information regarding land management drivers resulting from projected change in biomass utilization rates Copyright Jody Endres 2010, All Rights Reserved 17
5. The Biomass Crop Assistance Program Proposed Rule Issued 2/8/10 Requested comments on assigning GHG values in order to qualify for subsidy • All "eligible material" and "eligible crops" must be produced pursuant to • Crops: Conservation plan (CCC/FSA) • Forests: • Private lands • Forest Land Enhancement Plan or "equivalent" state or private plan • Federal lands (Healthy Forests Act) • • Copyright Jody Endres 2010, All Rights Reserved 18
6. RFS 2 • LCA and ILUC for biomass pursuant to statute • Source restrictions • Only private land • No conversion after certain date • Forests • Slash or thinnings w/ ecological communities caveat • Preventative measures • "Other sustainability" evaluated this year Copyright Jody Endres 2010, All Rights Reserved 19
7. Waxman-Markey (H. R. 2454) Does not address carbon neutrality per se; "LCA" but eliminates ILUC until advisory decision • GHG value of offsets assigned to "advisory board" • Advisory board must provide recommendations on other environmental impacts of offsets • Provides consistent definition of "renewable biomass" for new RPS and RFS 2 (but not Title V or BCAP) • Expands use of federal forests pursuant to management plan • Private land=no reference to plans • Internationally, EPA must consult with Dept. of State, and certify national programs • Copyright Jody Endres 2010, All Rights Reserved 20
Federal Law GHG Reporting GHG Accounting? "Other" Sustainability? Yes; CO 2 does not count toward No threshold, but no automatic neutrality (instead, default) Yes; carbon neutrality. No Yes; biomass carbon neutrality not assumed No GHG Tailoring Call for Information Seeks comments on biomass valuation issue Seeks comments, especially forestry BCAP Proposed Rule No; seeks comment on GHG valuation as qualifier Yes for both crops and forests; forest biomass from private lands subject to individual state rules Yes; LCA and ILUC included Possible in future under statute Yes; LCA only; ILUC excluded from calculation -Federal lands=yes UNFCCC Reporting GHG Tailoring RFS 2 W-M Copyright Jody Endres 2010, All Rights Reserved -Private=no -Only RFS 2 and RPS -Requires certification of 21 practices in 3 rd countries
State Case Studies of Forestry Sustainability Laws and Regulations Copyright Jody Endres 2010, All Rights Reserved 22
California • Several laws come into play when defining biomass "sustainability" • A. B. 32 • CA Envtl. Quality Act (CEQA) • Forest Practices Act (FPA) • CA Endangered Species Act (CESA) • Porter Cologne Water Quality Act (PCWQA) • Timber Productivity Act of 1982 (TPA) Copyright Jody Endres 2010, All Rights Reserved 23
California Examples of the complicated nature of defining "sustainabilty": • Harmonizing A. B. 32 with CEQA and FPA with regard to how GHG emissions/sequestration from forests treated in environmental review • Each lead agency has own discretion on GHG measurement methodology • Compliance with EIR in forestry context may be demonstrated, in some cases, by compliance with previous habitat conservation plans • An example where law is not "new biomass paradigm" specific Copyright Jody Endres 2010, All Rights Reserved 24
California • Exceptions arguably exist in the FPA to environmental review of "other sustainability" considerations • Timber Harvest Plans (THPs) and Sustainable Yield Plans (SYPs) Ø Forest health excepted Ø Fire protection excepted • Forest Practice Rules (FPRs) Ø Combustion fuel for the production of energy excepted • With some habitat and water quality constraints Copyright Jody Endres 2010, All Rights Reserved 25
California The C & T Program • The Governor's Climate and Forestry Task Force (2009) • Joint Action Plan • Recommendations on how to incorporate international regimes into compliance grade certificates valid in CA C & T regime • GHG Accounting issues • "Other Sustainability" considerations being considered in working group • REDD+ • Voluntary carbon market standards Ø How will this reconcile with CA's own standards? Copyright Jody Endres 2010, All Rights Reserved 26
Preliminary Findings/Conclusions Copyright Jody Endres 2010, All Rights Reserved 27
Sustainability GHGs "Other" Sustainability (e. g. , water quality, biodiversity) Forestry SRWB? Cropping Share basic "how to account" issue • Concerns are more • Cellulosics: While pronounced in media, concerns exist stakeholder (invasiveness & GMs, negotiations, and land conversion), emerging GHG sustainability issues stationary source do not appear to be a permitting "deal breaker" or • Possible to use forest "road block" biomass all? • Corn/food crops 28 Copyright Jody at Endres 2010, All Rights Reserved
The Current State of the Federal Bioenergy Regime With Regard to "Sustainability" • If there is no federal climate bill to unify statutes and resulting sustainability rulemaking: • Risks inconsistent GHG and "other sustainability" standards between federal regimes • Risks reliance within federal regimes on 50 different states' laws • W-M does not go far enough to unify programs and their definitions • Covers RPS, RFS 2 and CAA; not BCAP • Does not address cropping sustainability Copyright Jody Endres 2010, All Rights Reserved 29
The Current State of the Federal Bioenergy Regime With Regard to "Sustainability" • But, with regard to inconsistencies if no unifying federal bill: • For cropping, "other sustainability" rules not likely to be inconsistent from state to state under BCAP because: • conservation planning on private lands unified through national, state and local NRCS practice standards • Unless FSA accepts private, third-party certification • Forestry standards will be inconsistent if federal laws or regulations rely on state laws (e. g. , BCAP) Copyright Jody Endres 2010, All Rights Reserved 30
The Current State of the Federal Bioenergy Regime With Regard to "Sustainability" • Where gaps exist in federal regulation (e. g. , without a federal climate bill that contains a RPS): • individual state bioenergy regulations have emerged, with attendant proliferation of sustainability requirements • Elliott's comment about electric v. biofuel cars Copyright Jody Endres 2010, All Rights Reserved 31
The Current State of the Federal Bioenergy Regime With Regard to "Sustainability" • Whether federal or state policy, the question remains unanswered regarding whether sustainability standards must be more biomassspecific • Exceptions for environmental review may exist that do not take into account a possible, new "biomass paradigm, " especially forests • Perhaps conservation practices for cropping should reward biomass for going above current baseline Copyright Jody Endres 2010, All Rights Reserved 32
Thank you for your time and attention! Jody M. Endres University of Illinois Energy Biosciences Institute (217) 333 -9579 jendres 2@igb. uiuc. edu Copyright Jody Endres 2010, All Rights Reserved 33
Extra Slides Copyright Jody Endres 2010, All Rights Reserved 34
New York To be considered "eligible biomass" that is "sustainably harvested" for purposes of qualifying for the Regional Greenhouse Gas Initiative (RGGI) carbon trading program: 1. Certification • A USDA Forest Stewardship Plan, AND • A harvest plan based on the NY RPS BMPs OR • Forest tax eligibility (management plan) OR • Third party certification Copyright Jody Endres 2010, All Rights Reserved 35
New York 2. Meet "permanence criterion" • 100 year conservation easement, OR • Enough time to ensure carbon neutrality Copyright Jody Endres 2010, All Rights Reserved 36
Massachusetts • Manomet Ctr. For Conservation Sciences "Biomass Sustainability and Carbon Study" (6/2010) • Commissioned by MA Dept. of Energy Resources • GHG study not favorable to forest biomass in short-term (2050) • "Other sustainability" • At low cost scenario, only residues harvested • But, presents 4 options to ensure sustainable harvests for all scenarios Ø Concludes current laws not adequate Copyright Jody Endres 2010, All Rights Reserved 37
Massachusetts 4 options recommended: 1. Self-monitoring/self-reporting 2. Require an approved forest management plan 3. Require environmental impact assessment 4. Establish formal standards Copyright Jody Endres 2010, All Rights Reserved 38
Federal Law GHG Reporting GHG Accounting? "Other" Sustainability? Yes; CO 2 does not count toward No threshold, but no automatic neutrality (default) Yes; carbon neutrality. No Yes; biomass carbon neutrality not resolved No GHG Tailoring Call for Information Seeks comments on biomass valuation issue Seeks comments, especially forestry BCAP Proposed Rule No; seeks comment on GHG valuation as qualifier Yes for both crops and forests; forest biomass from private lands subject to individual state rules Yes; LCA and ILUC included Possible in future under statute Yes; LCA only; ILUC excluded from calculation -Federal lands=yes UNFCCC Reporting GHG Tailoring RFS 2 W-M Copyright Jody Endres 2010, All Rights Reserved -Private=no -Only RFS 2 and RPS -Requires certification of 39 practices in 3 rd countries
How RFS 2 Defines “Renewable Biomass” Eligible Land Eligible Sources Only private land (non-federal) Land cleared prior to EISA enactment (12/19/07) Planted crops & residues (nonforested) Planted trees & residues Actively managed or fallow (crops) Animal wastes & byproducts Forest slash and precommercial thinnings (with ecological communities restriction) Separated yard and food wastes Biomass from areas near structures at-risk of fire Copyright Jody Endres 2010, All Rights Reserved 40
BCAP Project Area Eligible Land Materials Eligible Land Only private land No native sod after 5/22/08 Eligible Material Definition of Renewable Biomass*, EXCEPT for: Title I crops Nothing noxious (federal and state law determination) No CRP, WRP, GRP *Renewable Biomass: organic material (commodity crops, plants , trees, and residues), wastes (food, animal, yard), algae Copyright Jody Endres 2010, All Rights Reserved 41
BCAP CHST Eligible Material Land Type Definition of Renewable Biomass CHST Eligible Material Federal Land Materials from preventative or restorative treatments only, pursuant to forest management plan Same Private and Indian land Feed grains, other commodities, other plants and trees, wastes*, algae NO: Title I crops Algae Animal Wastes Food Wastes MSW *CHST-eligible wastes: crop residues (20% limit), wood wastes and Copyright Jody Endres 2010, All Rights residues Reserved 42
• Chair, CSBP Field Testing Task Force; Co-Chair, Leonardo Academy Environmental Subcommittee • NREL Presentation Nov. 2010 • The Important Role of Multicriteria Decision Analysis in Bioenergy Law and Policy, Geo. Wash. J. Energy & Envtl. L. (Spring 2011) • Renewable energy reader (Spring 2011) • A. B. 118 journal article Systems Level Analysis Copyright 2010 Jody Endres
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