Month: August 2024

Ten years ago, toxins from harmful algal blooms in Lake Erie’s western basin left an entire Ohio city without safe water for several days.

One cause of the Toledo water crisis: phosphorus from farm fields and wastewater systems that reached Lake Erie’s western basin and its warming, shallow waters.

A decade later, 1.85 million acres of cropland in that basin has been voluntarily enrolled in a water quality initiative known as H2Ohio. With financial and technical assistance from the state and local Soil and Water Conservation Districts, enrolled farmers agree to adopt nutrient management plans and practices proven to reduce runoff.

At the Midwestern Legislative Conference Annual Meeting, an expert panel discussed the progress being made under H2Ohio, as well as whether voluntary programs like it are enough to protect the region’s water resources. Ohio Sen. Theresa Gavarone, who serves as Ohio’s representative on the Great Lakes-St. Lawrence Legislative Caucus Executive Committee, introduced the session. Great Lakes Commission executive director Erika Jensen moderated the discussion.

‘All of the Above’ Approach
In 2015, Ohio, Michigan and Ontario agreed to reduce phosphorus inputs into Lake Erie by 40 percent by 2025. For Ohio to reach that goal, whether in 2025 or beyond, many more acres of farmland in the western basin will need to be enrolled in H2Ohio. The current number, 1.85 million acres, represents about 40 percent of the total. Joy Mulinex, director of the Ohio Lake Erie Commission, said enrollment of between 65 and 75 percent of farm acreage in the basin is needed to reach the phosphorus reduction goal. The state is pursuing several other strategies as well.

“H2Ohio has been an all-of-the-above approach,” Mulinex told MLC attendees.

Through the initiative, Ohio is replacing private septic systems, restoring and improving wetlands, and investing in pilot projects that use new technologies to reduce and remove phosphorus. (Ohio also is paying for the removal of lead service lines through the program.)

H2Ohio began in 2019 and is coordinated by three state entities: the Environmental Protection Agency and the departments of Natural Resources and Agriculture. The General Assembly appropriated $270 million for H2Ohio in the most recent biennial budget.

Beyond Ohio and the Great Lakes region, other programs and partnerships with producers are being implemented.

“It is in our economic, ecological, and social best interest to reduce nutrients in our waterways,” said Kirsten Wallace, executive director of the Upper Mississippi River Basin Association, whose member states are Iowa, Illinois, Minnesota, Missouri and Wisconsin.

According to Wallace, there are signs of progress on water quality. The amount of suspended sediment in the river has fallen, thanks in part to improvements in wastewater treatment and the adoption of effective edge-of-field farm practices.

Wallace also highlighted the promise of a “batch and build” model first started in Iowa’s Polk County. With a mix of local, state and federal funds, conservation projects now move forward on multiple agricultural lands at once. The result in Iowa has been a simplified process for producers, and a much larger number of farm fields that have installed bioreactors and saturated buffers, both of which reduce runoff.

Still, Dan Egan, author of “The Devil’s Element: Phosphorus and a World out of Balance,” stressed that more action is needed to reach reduction goals and improve the health of water systems.

He called for regulations that would restrict the size of concentrated animal feeding operations. These CAFOs, Egan said, continue to be a major source of nutrient runoff because of the manure produced on them. He also pointed out a potential opportunity for policymakers: find ways of turning a pollutant into a domestic food security tool.

According to Egan, domestic sources of phosphorus (vital to agriculture production) are due to run out in the next 40 years. One solution is to invest in technologies that reclaim and more efficiently use it.

“We’re already starting to manage [phosphorus] differently,” he said. “In Wisconsin, they’ve implemented a program where the biggest of the dairies are installing digesters to strip the methane out of the manure … and we can not only take out the methane, we can take out the nutrients [polluting waterways].”

The post Great Lakes: Ohio, other Midwest states are investing more in water quality, exploring new ways to manage phosphorus appeared first on CSG Midwest.

In late June, the 40-year-old Chevron doctrine came to an end.

Its demise is the result of two U.S. Supreme Court decisions, referred to collectively as Loper Bright, that mark the start of a new judicial era on federal rulemaking and the deference — or now, the lack of it — given to federal agencies to interpret laws passed by the U.S. Congress.

As lawmakers learned only a few weeks after the landmark ruling, this kind of shift already has been occurring in some states.

A four-person panel of experts led a discussion at the Midwestern Legislative Conference Annual Meeting about the ramifications and uncertainty likely ahead for legislatures, agencies and courts post-Chevron, at the state and federal levels. The session was co-hosted by the MLC Agriculture & Rural Affairs and Energy & Environment committees.

Chevron to Loper Bright

The Chevron doctrine originates from a 1984 U.S Supreme Court decision: Chevron U.S.A. v. Natural Resources Defense Council. According to the doctrine, in the absence of a clear directive given to a federal agency, courts should defer to an agency’s reasonable interpretation of the laws that it was congressionally charged to administer.

Over the 40 years of Chevron, federal lawmakers relied upon the rule “tens of thousands of times,” explained David Doniger, a senior strategist with the Natural Resources Defense Council.

Whether it’s Congress or a state legislature, he added, legislative branches are unlikely to have “the bandwidth, the expertise or the foresight to make the decisions at the granular level.”

Instead, they have deferred technical lawmaking and gap-filling to executive branch agencies, which can best adjust to the modern-day complexities of governance in a timely way.

But under Loper Bright, deference to these agencies is replaced with a “judges, judge” rationale,” Marquette University Law School professor Kali Murray said.

She explained the position of those who support the new approach this way: “When a particular term is ambiguous, our constitutional framework demands that a judicial actor resolve this conflict.”

Federal agencies, such as the Environmental Protection Agency, “saw the handwriting on the wall and stopped relying on Chevron some years ago,” Doniger told MLC attendees.

He said rather than explaining that “a law has several permissible readings … [n]ow the EPA says, ‘This is the best reading of a statute, and [then] explains why that’s true.’ “

According to Rusty Rumley, a senior attorney at the National Agricultural Law Center, Loper Bright won’t slow down the amount of or pace at which regulations are passed; it will change the process and how cases move through the courts.

The panelists disagreed on the merits of upending Chevron. However, there was agreement that, under Loper Bright, Congress will need to write more specific bills with precise language and instruction for agencies. Rumley cautioned that such details will be necessary, but may also hamstring the agencies or have unintended consequences.

New era in states as well

Mathura Sridharan, Ohio’s deputy attorney general and director of the Ohio Tenth Amendment Center, told attendees that by overturning Chevron, the U.S. Supreme Court appropriately returned rulemaking and authority back to an elected legislative body (Congress).

That same rationale also led the Ohio Supreme Court to reject state-level, Chevron-style deference in a 2022 decision.

In 2018, Chevron-style deference ended in Wisconsin as the result of a state Supreme Court decision and subsequently passed state legislation.

Six years later, Murray said, “we have not had really clear guidance on how to look backward to change the justification” of how agencies were interpreting laws under Wisconsin’s old legal framework.

Similar uncertainty now exists at the federal level: What happens to the regulations and enabling statutes that were passed in the 40 years between Chevron and Loper Bright?

The court said in Loper Bright it was not overturning past decisions that had relied upon Chevron. However, the MLC panelists agreed that industries and interest groups will litigate or relitigate agency authority to make specific regulations. As regulated entities ferret out these issues, “forum shopping” and a patchwork of jurisprudence will produce uncertainty.

Prospectively, legislators can adjust to the new era by more clearly defining agency authority and discretion in their statutes.

The post A peek at the post-Chevron world appeared first on CSG Midwest.

Caught between rising demand for electricity, the retirement of old generating plants and the slow pace of construction of new transmission lines, the Midwest’s electrical grid is in a perilous situation, a panel of energy and utility experts told legislators in July.

Ohio Sen. Bill Reineke, chair of the Midwestern Legislative Conference, helped organize and host the plenary session at the MLC Annual Meeting (which was held separately from the work done by the MLC’s Energy & Environment Committee).

Leading and moderating it was Tony Clark, a former North Dakota state legislator who also has served as a member of the Federal Energy Regulatory Commission and as chairman of the North Dakota Public Service Commission.

“Today’s topic can get weedy really fast,” said Clark, now a senior advisor to the law firm Wilkinson, Barker, Knauer, LLP. “It’s one of the more complicated ones [that] state policymakers deal with.”

States’ 3 regulatory models

As a starting point, Clark described the three types of regulatory models used by states to govern electricity markets: traditional, fully restructured and hybrid.

Sixteen U.S. states, but none in the Midwest, have what would be classified as a purely traditional model, he said: one vertically integrated utility controls generation, transmission (the high-voltage lines from generating plants) and distribution (the wires to homes and businesses) as part of a state-regulated monopoly.

In contrast, Illinois and Ohio have fully restructured, deregulated electricity systems. (Michigan often is identified as a “partially restructured” market.) This means that the utilities “unbundle” generation, transmission and distribution, and retail electricity markets are open and competitive. Distribution is regulated by the state, generation and transmission by FERC.

All other states in the region, Clark said, have some kind of hybrid system, with a regulatory framework that is part traditional, part restructured.

4 pressures on the grid

Concern over reliability is common across many states, regardless of the regulatory model, and Clark said much of it comes from a confluence of factors.

First, unanticipated, rapid load growth has occurred due to a rise in electric vehicle fleets, an onshoring of industries, and the opening of many new energy-intensive data centers. Nationally, growth is about 1 percent annually, which doesn’t sound like much but is more than double what the demand increase has been, year over year, in recent history, he said.

Second, older generating plants have been retired. Third, these two trends are happening in a “carbon-constrained environment,” the result of state and federal policy choices or corporate buying practices/preferences.

Lastly, Clark said, “There’s no silver bullet that will replace that much capacity in a short amount of time that’s carbon-free.”

With that setup, Clark asked the session’s panelists — all leaders in the energy and electricity sectors — what they most want legislators to know about maintaining a reliable electric grid.

‘Know your commissioners’

One of their messages was to embrace the role, and opportunity, of bringing all stakeholders together to develop long-term outlooks and policy strategies. Few groups have the kind of convening power that state elected officials do.

Engage in conversations with your utilities and co-ops, and with all players in this field because they must be part of addressing the complex, difficult issues at play, said Maria Haberman, vice president of Ohio external affairs for American Electric Power and a former Ohio Senate staffer.

Todd Snitchler echoed some of these sentiments.

“If you don’t know your [public utility] commissioners, and you’re on committees with jurisdiction, you ought to know them,” and not just from their testimony in committees, but from meetings where you can learn about issues, said Snitchler, a former Ohio legislator and current president and CEO of the Electric Power Supply Association.

“Your state commissions typically have deep technical expertise, and those people want to help. They want to share the information they have so you can make better informed decisions.”

J. Arnold Quinn, senior vice president of regulatory policy at Texas-based Vistra Corp., and a former FERC staffer, urged lawmakers to resist calls to always “do something”; rash decisions, he said, can upset what markets may already be correcting.

For energy generators such as Vistra, Quinn said, projections of load growth look like a stable situation for long-term investments to meet that increased demand, but only if there is regulatory certainty.

“We don’t need a guarantee, we just need some sufficient level of confidence that the rules of the game are not going to change after we’ve made a big investment,” he said. “Just be mindful of how decisions you make affect those investment decisions.”

What customers want: Reliability

Snitchler highlighted two paramount issues for legislators to consider today, and for the foreseeable future.

There is enough power now for the U.S. economy, he said, but load growth is coming. Complicating matters are the unknowns about that growth; there are wide variations in the predictions about how much new generation will be needed and when.

“Reliability is now front and center,” said Snitchler, who also has served as a vice president of market development at the American Petroleum Institute and as a past chair of Ohio’s Public Utilities Commission and Power Siting Board.

Second, Snitchler said there is a “misalignment” between the aspirational goals of policymakers for cheap, low-carbon electricity and the operational realities of electric and natural gas systems.

The former is fine, but hard and fast deadlines create stresses on systems that are otherwise manageable, he said.

“All these policy decisions made at the state and federal levels have costs associated with them,” Snitchler said. “As market participants, we want to help achieve those outcomes. But in the end, if consumers can’t afford it, then they don’t support it.

“Consumers want three things: lights on, beer cold, water warm.”

According to Chris Zeigler, executive director for API Ohio, a division of the American Petroleum Institute, and a former Ohio legislative and congressional aide, natural gas is and will be the best near-term option to accommodate growing demand — especially for facilities that rely on baseload electricity 24 hours a day, seven days a week.

Natural gas is the largest source, 43 percent of utility-grade electricity generation, and more is available, he said.

“There are challenges with natural gas, but we believe it can help us tackle load growth issues if the right policies are in place,” he added.

The post Keeping the ‘lights on, beer cold, water warm’ appeared first on CSG Midwest.