The state's top environmental officials asked legislators Tuesday to repeal the restrictions they placed on his agency just four years ago prohibiting it from regulating “greenhouse gases.”
Henry Darwin, director of the Department of Environmental Quality, told a House panel the 2010 law bars his agency from finding ways to deal with a new federal requirement that Arizona reduce carbon dioxide emissions by half. Darwin said if the state fails to come up with its own plan, one will be imposed by the federal Environmental Protection Agency.
“And none of us want that,” he warned.
Monday's 2 1/2-hour hearing before the Committee on Energy, Environment and Natural Resources did include the usual debate about whether there is such a thing as climate change and whether human activities are contributing to it.
Rep. Bob Thorpe, R-Flagstaff, cited the increased snowpack in Northern Arizona as proof the theory is all wrong. Anyway, he said, other things may be factors, like sunspot activity.
By contrast, Rep. Ethan Orr, R-Tucson, said he prefers to “follow the science,” including the peer-reviewed research about the issue.
There also was the expected objection to the whole idea of reducing the use of coal from the industry-sponsored American Coalition for Clean Coal Energy even as the Sierra Club touted the health benefits of reduced CO2 emissions.
But all that debate took a back seat as Darwin explained to lawmakers the reality of the situation — and why Arizona cannot afford to ignore the EPA mandate. The fear of what might happen if Arizona defers to the feds was enough to even convince the lobbyist for Tucson Electric Power and Unisource Gas and Electric to throw his support behind repeal of that 2010 law.
“The department needs to have its handcuffs removed on this effort,” said Larry Lucero. He said having Arizona power companies involved in a solution versus one imposed by EPA will ensure it is done “in an affordable manner that makes sense for our customers.”
The EPA rule gives states until June 2016 to come up with plans to reduce carbon dioxide from existing fossil fuel fired power plants. Arizona was told it has to reduce carbon emissions to 52 percent below 2005 levels, a figure Darwin said is the second highest in the country.
Darwin said his agency is weighing a legal challenge, saying he believes the EPA is acting outside its authority in setting what it calls “goals.”
“But the fact of the matter is — and I'll be very honest — is states and industry have not been very successful as of late in challenging EPA's ability to regulate greenhouse gases,” Darwin conceded. “I think it's prudent for Arizona that we start acting as if the rule might go final.”
Taking no action, he said, is not a good option.
“If we don't adopt a rule, we don't submit a plan to EPA, EPA will be left with no other choice — and have the express authority — to develop a plan for Arizona without stakeholder input,” Darwin said. And that means industry and utilities in the state having to live with the CO2 reduction plan crafted by the agency instead of one they actually helped craft.
But here's the problem.
The 2010 law specifically says DEQ “shall not adopt or enforce a state or regional program to regulate the emission of greenhouse gas for the purposes of addressing changes in atmospheric temperature without express legislative authorization.” Darwin said that law needs either to be repealed or, at the very least, that he be given that authorization to craft a response to the EPA rule.
He wants that action the next time the Legislature meets.
If nothing else, Darwin said rescinding the restrictions on his agency sends a positive message to federal regulators that Arizona is interested in being part of the solution. He pointed out that EPA can give states extra time to come up with plans.
“If the Legislature doesn't take action, or takes negative action, that might show EPA that we're not taking the issue seriously and they may not use their discretion to give us an extension,” Darwin said.
Gov. Jan Brewer, who signed that 2010 law — and who is Darwin's boss — did not immediately respond to requests for comments about her environmental chief wanting to rescind the limits. But Darwin said lawmakers need to understand that the factors caused them to bind his agency in the first place are no longer there.
One is that Janet Napolitano, Brewer's predecessor, signed an order in 2006 designed to require that new cars and trucks sold in Arizona emit less carbon dioxide and be more fuel efficient. Two years later, Napolitano ordered Arizona to participate in the Western Climate Initiative, a proposed “cap and trade” system to require major polluters to reduce carbon dioxide and other emissions or buy credits from other companies that have surpassed their reduction goals.
Both of those went away with the 2010 law.
“The Legislature was sending a very clear message at that point in time that they didn't want us as an agency dealing with greenhouse gas emissions unless the Legislature was involved,” Darwin said. But now, he said, there's a federal rule on the table that did not exist in 2010.
“So now the Legislature has an opportunity to tell us what they want to do about the rule,” he said.