Climate + Energy Project

Summary: Testimony was heard on HB 2182, a bill which puts the Sunflower air permit back into play and restricts the current powers of the KDHE Secretary to protect the health and environment of Kansas. Hearing had to be quick because House was going into session on budget bill, so it will continue tomorrow.

General themes raised – is an air permit a right or a privilege? How does the public interest in supporting a market balance with the public interest in managing risks to health and environment?

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Called to order. Hearing on HB 2182 opens.

Cindy Lash briefs bill. Relating to KDHE. Limits county home rule powers re air quality, limits state powers re Clean Air Act – restricts state to act within limits of federal government on clean air act. State standards cannot be more stringent than federal, and cannot be enforced prior to date of act. Secretary cannot deny air quality permit if criteria of Clean Air Act has been met. Reconsideration of Secretary’s previous decisions – Sunflower permit would have to be reconsidered. If Secretary ruled unfavorably on reconsideration, applicant would have immediate judicial review by appeals court (within 15 days, MH thinks). Amendments included to Secretary’s current permitting powers. Amendments included on Secretary’s powers to redress emergent, immediate threats to human health and environment not addressed yet at federal level.

Rep. Sloan for Cindy – Q: Where is language on counties again? A: (answers) Q: And can Secretary require applicant to meet any new EPA standards established since 2006, or is he limited to standards in 2006? A: I don’t know.

Proponents

Mark Calcara, Sunflower Electric
Supports bill. Proud to support it with coalition of industry throughout state, They have accomplished the goal of raising level of debate above the clamor of last year to focus on major issues – first, should this state regulate emissions not regulated by Clean Air Act? We think it should be consistent with federal government. MO OK and CA have similar statutes. If you support this you will not be unique or unusual, you will be like other states. Look at KDHE response to our suit – national regulation supports level playing field of state industry. We want to compete for jobs and industry and don’t want to be different than anyone else. If you want to regulate more strictly, then come up with clear rules – but then you take risk of being pre-empted by federal law when they come up with carbon regulation. Second – is this state going to follow the rule of law? All our fundamental rights and freedoms depend on this. Last year this issue got such interest we had to move the hearing to larger room (MH’s notes from last year’s hearings are fairly centralized here). At the time Hammerschmidt from KDHE testified, and his response troubled me. KDHE staff recommended the permit and Secretary denied it anyway. Hammerschmidt said the staff had to follow rules, but Secretary has broader discretion. How is that right? Secretary should follow law, he took an oath. We can’t regulate on basis on whim and this statute protects that. Rule of law separates free and democratic nations. If we violate this law then all of our other freedoms are at risk. At what point do our freedoms end and tyranny begin? We will lose our freedoms inch by inch by well meaning Americans who think ends justify means. Some believe regulation of CO2 and denial of permit is okay and we can overlook rule of law in this instance. If we make this exception the exception will swallow the rule, and that will swallow our freedom. No freedom is won forever we have to win it again and again and again. Tyranny is the first time the rule of law is deviated from. You stand as watchman, in unique position, to win freedom – not for Sunflower or Chamber but for all Kansans. I ask you to support this legislation and support freedom one more time.

Amy Blankenbiller, Kansas Chamber of Commerce
Representing broad business coalition – farm bureau, KLA, Midwest Energy, etc. Diverse folks with common interest. We are not here today to talk about environmental regulation, but to talk about due process, regulatory process. That’s a more fundamental and basic question – how do we want to do business in Kansas? How do we make more sure than ever that Kansas is open for business? This bill is step in right direction to instate regulatory confidence and certainty in Kansas. Businesses do not have confidence in Kansas – like the Hyperion Refinery, which did not choose to come to Kansas, they had no confidence in our regulatory climate. Businesses grapple with these questions every single day, they invest in permitting process, and when rules change, this hurts them. They need to be given certainty. Bill – county rule authority means more consistent application of law across state. And, we do not want to go above federal law. Rule of law provision – it needs to exist in Kansas. Emergency powers provision – (MH misses)

Ally Devine, lobbyist with cattle industry (she doesn’t say exactly for who – KLA?)
Supports bill. County home rule statute – Kansas pre-empts this area and home rule. State controls all air regulation, so counties may not regulate that area. We are proposing the same that we do in water law, we want one regulator, we don’t want variations across county lines, we don’t want forum shopping. We don’t want county by county process for water. They have that in NE and it is a disaster. We propose a county home rule exemption. Amendments to 65-3012 – federal law, it has roots in federal law of emergency applications, when public’s interests are being affected. What does that mean for KS? Current permitting process in Kansas explains rules of game. And everything emits something, it depends whether we regulate it or not. We regulate pollutants, dust, odors to some degree – air contaminants defined and standards set. There is a process for permits and applications, and appeals. It’s all spelled out. The emergency powers are at odds with permitting process. Emergency powers shouldn’t override permitting process. (MH – Bremby didn’t use emergency powers) Emergency powers have no appeal. There are no safeguards for business interests. You should have public hearing if so. And who knows who gets regulated anymore, anyone could get regulated. Individuals have rights, due process, rules of evidence apply, because we need to clarify who is in charge when.

Written testimony

Opponents

Tom Thompson, Sierra Club
Opposes building of coal-fired power plants because they emit GHGs that contribute to global warming. This plant will emit incredible volumes of CO2, Climate change is real, and something needs to be done about it. This bill denies climate change and contributes to it, will have incredibly high emissions rates. Kansas has wind energy, we don’t need coal. We need to develop an energy plan that decreases CO2 and increases renewables. This bill also limits Secretary’s authority to protect human health and environment. The Supreme Court has ruled that CO2 is a pollutant that may be regulated if it presents a threat. This bill  is in conflict with Clean Air Act.  Requiring state laws not be stricter than federal is a dangerous precedent, and 15 day response time by secretary is inadequate.

Written from Nancy Jackson and Tom Gross, KDHE.

Questions?

Rep. Johnson for Ally – Q: Tell us how cattle are worst polluters in country. A: I want to put facts on record. Epa has released record that ag produces 6.4% of US GHGs, livestock is 2% of that total. Ag is way less than 10% of total US emissions, and it is overstated by most media.

Rep. Talia for Calcara and Blankenbiller Q: Rule of law – legislative makes law, executive carries it out, judiciary decided. This bill strips judiciary of power and executive. How is this good policy? A: There is separation of powers and legislature is people governing themselves, it sets policy and law. Executive implements law, judiciary interprets. Not inconsistent for this legislature to answer question of how executive interprets emissions rules and regs. KDHE exists only because legislature formed it, and shaped it (MH – EPA helped out, too) So this legislature can decide strictness of regulations.

Rep. Sloan for Calcara Q: Does the Secretary have power to review anything since 2006? A: (answers) (basically no) Q; So if new mercury standard has been adopted between 2006 and 2009 then Secretary can’t implement it? A: Only if federal clean air act does. No need for public comment, he could implement the rule immediately. Q: I don’t see where it says that.

Rep. Svaty for Calcara Q: If you see government as constant power struggle between state and federal authority, then don’t state legislators given up power by restricting state agency to federal actiuons? Aren’t we giving up power? A: You are not abdicating, you are choosing path state will go, whether we regulate, we are not giving up authority, just making a decision…. MH did not follow.

Rep. Long for Calcara Q: Date of Jan 1, 2006 – we are now in 2009, so why are we going back that far? Why don’t we have them make a whole new application? Substantial change has occurred since 2006 – like Mass v. EPA – so why don’t we start all over? A: Reason for 2006 deadline is that Sunflower filed in March 2006, and other applications might have fallen victim to. This doesn’t ensure reissuance of permit, what was second pat of question? Q: Mass v. EPA. A: That case didn’t say CO2 had to be regulated at state level, there is rules and regs process ongoing at EPA right now.

Rep. Kuether for Calcara Q: I feel like I was in court this morning, listening to attorneys argue cases. I’m frustrated that we don’t have more time because hearing is so short and we are missing a lot of financial questions that will have to go unanswered here. Those other states you mentioned, do they too restrict powers of the Secretary? A: I would say directs them.

Rep. Sloan for Calcara Q: Why language stricken on Secretary’s powers here? Page 8, 1-9. A: This is secretary’s ability to issue order. The federal law requires restraining order so that’s what we want state to do. The law offers adequate protections for secretary…. (MH misses) This needs to be sorted out in court, and that takes too long. This brings proper balance between … MH misses again.

Hearing will continue tomorrow at 9:00 a.m. Conferees please return. House members now have to go to budget vote on floor of House.

— Maril Hazlett, www.climateandenergy.org