Andrew Shaw

Democrats Articulate a Climate Change Vision

Introduction

On June 30th, Democrats on the House Select Committee on the Climate Crisis released a comprehensive climate change report, which established a goal of reaching net-zero greenhouse gas (GHG) emissions.

While the Select Committee does not maintain any actual legislative authority, the Democratic staff report includes over 100 legislative recommendations for multiple House Committees. In some respects, the report’s recommendations expand beyond just merely climate change, addressing environmental justice, water infrastructure and job creation.

The Select Committee’s report comes amidst a busy several weeks with respect to Democrats articulating a vision for climate change. Former Vice President Joe Biden, the presumptive Democratic Presidential nominee, released on Tuesday an updated clean energy and climate change plan that aims to achieve no later than 2050 a net-zero economy. Among other provisions, Biden proposes requiring that utilities generate 100 percent of their electricity from non-emitting sources by 2035. Biden’s proposal largely mirrors recommendations released by a Biden-Sanders Unity Task Force on climate change that attempted to reconcile the moderate and progressive wings of the Democratic Party. And, House Democrats, on July 2nd, passed H.R. 2, The Moving Forward Act, a US$1.5 trillion infrastructure package that extends renewable tax incentives and invests US$70 billion in clean energy.

As to the House Select Committee report, the majority of the legislative recommendations are unlikely to be passed into law this year. Yet, the report could serve as the basis for a climate change legislative agenda next year, especially if the Senate and Presidency come under Democratic leadership.

The House Select Committee report includes recommendations for tax credits, market reform, clean energy standards, grid modernization, nuclear energy industry, natural gas development, carbon pricing, federal procurement, carbon capture, transportation, environmental justice, and agriculture. Below is a summary of some of the key recommendations in each of the areas.

Tax Credits

  • Extends the Production Tax Credit (PTC) and the Investment Tax Credit (ITC) for renewables.
  • Extends the offshore wind ITC at 30 percent and establishes an ITC for energy storage.

Market Reform

  • Amends the Federal Power Act to provide that rates that do not incorporate the cost of CO2 emissions are unjust, unreasonable, unduly discriminatory and/or preferential.
  • Directs the Federal Energy Regulatory Commission (FERC) to conduct rulemaking that would require ISOs/RTOs better integrate renewable energy, battery storage, distributed energy resources, and demand response.

Clean Energy Standard (CES)

  • Requires that utilities provide 100 percent clean energy by 2040. The report states that clean resources include renewables, hydro, nuclear and sources employing carbon capture.
  • Clarifies that a federal CES would not preempt state clean/renewable energy standards.

Grid Modernization

  • Clarifies that FERC can exercise backstop siting authority for interstate electric transmission facilities within a National Interest Electric Transmission Corridor.
  • Establishes a DOE program to support states and local governments siting electric transmission lines.
  • Directs FERC to promulgate incentives to improve the capacity and efficiency of the bulk electric transmission system.
  • Authorizes DOE funding to identify and evaluate climate-related risks to electric grid infrastructure.
  • Establishes a competitive grant program for state and local governments to invest in technologies and strategies to improve the resilience of the electric distribution system.

Nuclear

  • Directs the Department of Energy (DOE) to support small modular reactors through research and development, federal financing, loan guarantees or pilot programs.
  • Directs the Nuclear Regulatory Commission to increase inspections at aging nuclear plants.

Natural Gas

  • Reinstates Obama-era Environmental Protection Agency (EPA) standards on methane emissions associated with new and modified oil and gas sources. The report also calls for reinstating an Obama-era Bureau of Land Management (BLM) rule, which set limits on methane emissions from oil and gas sources operating on federal lands.
  • Directs EPA and BLM to conduct rulemakings to achieve reductions of methane emissions from new and existing oil and gas sources of 65-70 percent by 2025 and 90 percent by 2030. In addition, the report directs EPA and BLM to prohibit the use of routinely flared gas at oil wells.
  • Requires that natural gas pipeline operators install technology to mitigate leaks and report any leaks immediately. The report also increases civil penalties for violations of federal safety laws and regulations.
  • Amends the Natural Gas Act to clarify that FERC must consider upstream and downstream natural GHG emissions associated with interstate natural gas pipelines and LNG facilities and bolsters protections for landowners.
  • Eliminates current exemptions that the oil and gas industry enjoys to the Clean Air Act, Clean Water Act and the Resources Conservation and Recovery Act.
  • Ends tax incentives for oil and gas production.

Carbon Pricing

  • Places (but does not specify) a price on CO2 emissions and states that any carbon pricing regime should be structured to support energy-intensive, trade exposed industries and low- and medium-income households. The report emphasizes that the imposition of carbon pricing should not be used to provide liability protections to large emitters.

Federal Procurement

  • Directs the federal government to purchase 100 percent of its electricity needs from clean sources by 2040.

Carbon Capture

  • Bolsters DOE funding for technologies, including carbon capture, that reduce industrial emissions.
  • Expands existing 45Q carbon capture tax credit and enacts a separate ITC specifically for carbon capture and utilization projects.

Transportation

  • Directs EPA to create new GHG emission standards for passenger vehicles, light-duty vehicles, and trucks, along with medium- and heavy-duty vehicles. The report would also allow states to adopt and enforce California’s motor vehicle emission standards.
  • Establishes a technology-neutral national zero-emission vehicle (ZEV) sales standard to ensure all light-duty vehicles sold by 2035 are zero-emission and expedite the use of zero-emission vehicles in industries that have zero-emissions vehicles available.
  • Develops a Low Carbon Fuel Standard to build on the Renewable Fuel Standard (RFS) to institute a technology and feedstock neutral benchmark that would lower the carbon standard over time based on lifecycle assessment of carbon intensity fuels.
  • Increases the per-manufacturer cap on the electric vehicle tax credit.
  • Invests in research, development, demonstration and deployment to develop new zero-emission technologies for manufacturing in the transportation sector .
  • Directs EPA to set GHG standards for new and existing aircrafts.
  • Creates a new program within the Department of Transportation (DOT) to share costs with state and local governments and private sector technology developers to deploy resilient solutions for public transit electrification, including smart grids.

Environmental Justice

  • Doubles EPA’s enforcement budget and directs the agency to make environmental and climate justice one of its enforcement and compliance assurance priorities.
  • Directs DOE to identify best practices to increase electric vehicle supply equipment deployment in environmental justice and vulnerable communities.
  • Directs the EPA to develop a methodology to assess the cumulative and disproportionate impacts of pollution on environmental justice communities to incorporate into agency decision-making.
  • Directs EPA to ensure that individuals in affected environmental justice community are involved in the development of environmental projects in their communities.
  • Creates a grant program to support Historically Black Colleges and Universities, tribal colleges, and other Minority Serving Institutions establishing environmental and climate justice centers.

Agriculture

  • Modifies existing US Department of Agriculture (USDA) programs to encourage farmers to employ practices that increase carbon sequestration and reduce GHG emissions.
  • Directs the Department of Treasury and USDA to study federal tax credits to incentivize carbon sequestration and GHG reduction on farms.
  • Establishes a grant program to provide states and tribes with funding for soil carbon sequestration programs to support healthy soil initiatives.
  • Directs USDA to provide additional grant funding or equipment rental loans for farmers to transition to low-emissions equipment.
  • In addition to these recommendations, the report includes legislative recommendations relating to public health, climate resiliency, international climate change engagement, confronting climate risks to US national security and bolstering the climate science, among other proposals.

In addition to these recommendations, the report includes legislative recommendations relating to public health, climate resiliency, international climate change engagement, confronting climate risks to US national security and bolstering the climate science, among other proposals.

US Senate Commerce Committee Marks up and Passes Autonomous Vehicles Bill

The US Senate Committee on Commerce Science and Transportation (the Committee) today marked up and passed bipartisan legislation, S.1885, the AV START Act, proposed by Senators John Thune (R-SD) and Gary Peters (D-MI). The bill now moves forward for a vote by the full Senate and will then need to be reconciled with similar legislation that passed the House in early September.

Key provisions of the bill include:

Clarifying federal, state and local roles: Mirroring the legislative provisions in the SELF-DRIVE Act (H.R. 3388), which passed the House in early September, the bill codifies the Department of Transportation’s (DOT’s) lead national role for AV safety standards and performance while supporting state and local roles in determining traffic laws, registration and licensing. This approach avoids a patchwork of state and local safety standards that could stunt sector innovation.

Protecting Americans with disabilities: The bill expressly prohibits the denial of a license to operate a self-driving vehicle on the basis of a disability. Corresponding best practices are outlined for drivers with disabilities as this technology emerges. Ahead of the hearing the American Association for People with Disabilities, the National Federation of the Blind, the National Council on Disability and a coalition of other similar interests all endorsed the legislation.

Safety reports: The bill requires vehicle manufacturers to submit, prior to the testing or deployment, safety evaluation reports to the Secretary of Transportation (the Secretary) on safety, crashworthiness and cybersecurity based on testing, validation and assessment protocols.

Safety standards: The bill expands the Secretary’s existing discretionary authority to allow for a streamlined process for federal motor vehicle safety standards to prioritize safety for up to 80,000 vehicles per manufacturer three years after enactment after an amendment from Senator Richard Blumenthal (D-CT) that lowered the exemption from 100,000.

Maintains status quo for trucks and buses: Despite some proposals to have the legislation apply to trucks and buses, the Act applies only to vehicles weighing 10,000 pounds or less.

Cybersecurity: The Secretary is directed to convene and partner with AV manufacturers to develop and implement policies related to mitigate the risks of potential cybersecurity breaches. In addition, the bill mandates manufacturers to establish comprehensive plans for identifying and mitigating cybersecurity risks to self-driving vehicles.

The bill also establishes a DOT-led committee of experts to propose standards, including for data recording and data access and sharing. This public-private stakeholder forum will have a broad mandate to develop other recommendations for other policy issues related to self-driving vehicles over time.

Consumer protection: The bill also calls for the establishment of guidelines on “responsible consumer education and marketing.” These guidelines will educate consumers on the capabilities and limitations of this new technology and will be developed through a transparent, formal working group.

During the markup, Senator James Inhofe (R-OK) offered, and then withdrew, an amendment that would have included heavy trucks in the Act’s definition of a highly automated vehicle and would have given the National Highway Traffic Safety Administration (NHTSA) authority to regulate heavy trucks under the Act. Inhofe withdrew the amendment in response to opposition from several senators concerned about how automation would affect employment within the trucking industry. Committee Chairman John Thune (R-SD) committed to work with Inhofe on the trucking issue.

The Committee also adopted a number of non-controversial amendments by voice-vote. One of the more notable amendments, offered by Senator Tammy Duckworth (D-IL), would require the DOT to conduct a study on the transportation, mobility, environmental, energy security, and fuel economy impacts of highly automated vehicles on public roads.  Several amendments dealt with cybersecurity. For instance, the Committee approved an Inhofe amendment that would establish an advisory committee to provide recommendations to Congress on cybersecurity issues in relation to highly automated vehicles.  Another amendment, offered by Senator Roger Wicker (R-MI), would direct the DOT to develop additional cybersecurity resources to assist consumers in minimizing motor vehicle cybersecurity risks.

Congress and executive branch continue momentum toward bipartisan federal policies on autonomous vehicles

A week after the House of Representatives passed sweeping autonomous vehicle (AV) legislation, the Senate and the Trump administration both moved forward on AV policy initiatives this week, with Department of Transportation Secretary Elaine Chao releasing policy guidance, which is now out for public comment, and the Senate releasing a discussion draft of legislation and holding hearings on potential impacts to the trucking sector.

DOT’s Chao releases NHTSA policy guidance

On Tuesday at the University of Michigan, US Secretary of Transportation Elaine Chao announced the DOT and the National Highway Traffic Safety Administration’s (NHTSA) release of “Automated Driving Systems 2.0: A Vision for Safety.” Automated Driving Systems 2.0 provides guidance to industry and state regulators on managing this fast-evolving technology, fostering innovation and moving toward a holistic national approach to regulation and safety. The voluntary policy guidance, which replaces a previous voluntary guidance for the deployment and testing of self-driving cars issued by the Obama Administration, asserts that the second version provides “a more flexible approach to advancing the innovation of automated vehicle safety technologies.” The guidance encourages the development of best practices and making safety a priority. The document also provides technical assistance to states and examples of best practices for policymakers. It does not suggest new federal regulation at this time, explaining that the technology is new and rapidly evolving. The new guidance was published in the Federal Register on September 12 and the NHTSA has already commenced a 60-day public comment process.

The key change from the previous guidance involves the safety assessment for AVs that companies want to test and deploy. The 2016 guidance, “Federal Automated Vehicles Policy,” included a 15-point safety assessment process and allowed manufacturers to voluntarily submit their assessments of their vehicles and systems to the NHTSA, which would review and then publish them. The process was sparsely followed due to its voluntary nature. Under Automated Driving Systems 2.0, the safety assessment is scaled back to a 12-point process, manufacturers are no longer expected to submit them to the NHTSA for federal approval. In addition, Automated Driving Systems 2.0 guidelines are strictly focused on levels 3, 4 and 5 vehicles, in all of which the driver need not remain attentive during the system’s operation.

The 2016 Obama guidance provided a model state policy on regulations for AVs. the Trump guidance moves away from this approach, providing instead a set of best practices for both state legislatures and highway safety officials that begins to more clearly define state and federal regulatory roles. Mirroring bipartisan legislation emerging in Congress, the new guidance clarifies a preferred, nationally uniform approach where the federal government defines safety standards and requirements and states and localities focus on traditional licensing and registration matters, with a view to avoiding a patchwork of uncertain regulatory approaches that could stifle sector growth.

The NHTSA states that the 60-day public comment process demonstrates its intention to “continually revise and refine the guidance to reflect continued by public input, experience, research and innovation.”

Senate CST Committee releases discussion draft of legislation

The Senate Commerce, Science and Transportation Committee has made progress on its work on AV legislation. The committee recently released its staff discussion draft days after the House passed its own AV legislation with strong bipartisan support.

The Senate draft mirrors the House bill, though it also differs from the lower chamber’s measure in some key respects. Like the House bill, the Senate draft would direct the Transportation secretary to establish a “Highly Automated Vehicles Technical Safety Committee,” which would provide the Transportation secretary recommendations on consensus-based performance standards and the harmonization of national AV safety standards with international standards. The House bill provides the advisory committee with a broader mandate that includes not just safety standards but also protection of mobility access for the disabled and elderly.

The Senate draft would also allow AVs to receive exemptions from NHTSA safety standards under certain circumstances, such as if an exemption would make it easier for the development or field evaluation of a new motor vehicle safety feature. Under the Senate draft, up to 50,000 AVs could qualify for this exemption in the first 12-month period after the bill is enacted. The House bill, on the other hand, would limit exemptions to 25,000 AVs in that first 12-month period.

The Senate draft also requires that each manufacturer submit to the Transportation Secretary a safety evaluation report for each new AV or AV driving system that it introduces into interstate commerce. The safety evaluation report shall include a description of how the manufacturer is addressing key issues related to AVs, including system safety, data recording, cybersecurity, human-machine interface and crashworthiness, among other issues.

The Senate draft notes that a number of key issues remain unresolved among CST Committee members, including state preemption and whether the measure should address autonomous trucks.

Senate hearing on autonomous trucking

Autonomous trucks was the subject of a September 13 CST Committee hearing featuring testimony from a diverse group of stakeholders. The hearing underscored a divide between labor and industry interests on whether autonomous passenger vehicles and autonomous trucks should both be included in this bill and regulated on the same track. Witnesses including American Trucking Associations President and CEO Chris Spear, Navistar President and CEO Troy Clarke and National Safety Council President and CEO Deborah Hersman, who argued that automated trucks should be part of the bill since regulations could then address both automated trucks and passenger cars, which would provide regulatory certainty and clarity, which is important for the sector’s development.

Ken Hall, General Secretary Treasurer of the International Brotherhood of Teamsters, disagreed, testifying that “the issues facing autonomous commercial trucks are fundamentally different, and potentially more calamitous than those facing passenger cars, and warrant their own careful consideration.” Hall urged lawmakers against “taking a cookie cutter approach” in addressing risks related to automated trucks.

Accordingly, it remains to be seen whether trucking issues will be folded into currently moving legislation or remain on a separate course and timetable.

Senator Gary Peters (D-MI), who has been engaged in discussions with Committee Chairman John Thune (R-SD) on the draft bill, stated that he does not believe automated trucks should be included in this measure due to issues related to safety and potential driver displacement. During the hearing, Peters and other Democrats on the Committee raised concerns about autonomous trucks having a negative impact on truck driver jobs. Spears contended that the technology would assist, not displace, truckers. Notably, the House bill was limited to automated passenger vehicles and did not address automated trucks.

Speaking for the Committee, Senator Thune expressed a commitment to introducing and passing bipartisan AV legislation, but he gave no timetable and the Committee will likely first have to address the divide on whether trucks should be part of the measure.

House passes regulatory regime for autonomous vehicles, debate moves to Senate

Today the House of Representatives passed H.R. 3388, the Safely Ensuring Lives Future Development and Research In Vehicle Evolution (SELF Drive) Act. The bill, which was approved on a bipartisan voice vote, establishes a national framework for the use of self-driving vehicles, and defines the roles of the federal and state governments for self-driving cars, otherwise known as autonomous vehicles (AVs), including a requirement for the Department of Transportation (DOT) to develop sweeping regulations for AVs. Congressional action to balance innovation and safety on this fast emerging new technology now moves to the Senate this Fall.

 

Read the full article on Dentons.com.