OTHER TASK FORCES, COMMISSIONS, AND COMMITTEES

Report of the Clean Power Plan Implementation Study Committee to the 2016

CHAIRPERSON: Representative Dennis Hedke

VICE-CHAIRPERSON: Senator Robert Olson

OTHER MEMBERS: Senators , Forrest Knox, Mike Petersen, and ; Representatives Tony Barton, , , , and Randy Powell

CHARGE The Clean Power Plan Implementation Study Committee shall:

● Hold informational hearings; and

● Receive updates from the Kansas Department of Health and Environment, the Kansas Corporation Commission, and the Attorney General about the implications of the adoption of a state plan pursuant to docket EPA-HQ-OAR-2013-0602 (the federal Clean Power Plan) concerning the impact to: ○ Electric ratepayers; ○ Electric utilities; ○ The reliability of the electric grid in Kansas; and ○ The overall sovereignty of the State.

February 2016 Clean Power Plan Implementation Study Committee

REPORT

Conclusions and Recommendations

The Committee makes no conclusions or recommendations.

Proposed Legislation: None.

BACKGROUND August 1, 2014, Kansas and 11 other states filed a Petition for Review in the U.S. Court of Appeals The 2015 Legislature passed HB 2233, which for the D.C. Circuit, the case for which was established the procedure for developing and captioned State of West Virginia, et al., v. United submitting a state plan (Plan) to the U.S. States Environmental Protection Agency, Case No. Environmental Protection Agency (EPA) to 14-1146. The 12 petitioning states also intervened comply with the proposed federal Clean Power in a private preemptory challenge to the CPP rule, Plan (CPP) rule. The bill created the Clean Power which was In re Murray Energy Corporation, in Plan Implementation Study Committee the U.S. Court of Appeals for the D.C. Circuit, (Committee), which was directed to hold Case Nos. 14-1112 and 14-1151. The two cases informational hearings and receive updates from were consolidated for briefing and oral argument. the Kansas Department of Health and On June 5, 2015, the D.C. Circuit ruled against the Environment (KDHE), Kansas Corporation petitioners on the ground that the CPP rule in its Commission (KCC), and the Attorney General preliminary form could not be challenged until it about the implications of the adoption of a Plan for became final. the CPP. Members appointed to the Committee will serve a term from July 1, 2015 to June 30, After the CPP rule was announced on August 2017. 3, 2015, 11 of the 12 original states, plus four others, filed an Emergency Petition for The Committee was authorized to meet one Extraordinary Writ in the D.C. Circuit, asking for day. the CPP rule to be stayed. A panel of the D.C. Circuit denied the Petition on September 9, 2015. At the time of the Committee hearing, the Chief COMMITTEE ACTIVITIES Deputy Attorney General stated Kansas is precluded from any additional legal challenges The Committee met on October 1, 2015, in until the CPP rule is published in the Federal the Statehouse. The Committee first reviewed the Register. The Chief Deputy Attorney General then specifics of HB 2233. reviewed the legal problems with the CPP rule, as identified by the Office of the Attorney General: the CPP rule unlawfully exceeds the authority of Office of the Attorney General the EPA and contains multiple legal defects, each of which provides an independent basis to The Chief Deputy Attorney General provided invalidate the rule in its entirety. an update on the legal status of the CPP rule. On

Kansas Legislative Research Department 7-1 2015 Clean Power Plan Implementation Study Kansas Department of Health and re-dispatch and power flow models. The Director Environment (KDHE) then outlined the scope of work that was anticipated in order to accomplish the KCC’s The Air Monitoring and Planning Chief and directives under HB 2233. Environmental Program Administration Supervisor (Supervisor) for KDHE discussed the Southwest Power Pool (SPP) CPP rule in detail, discussing key dates, affected units in Kansas, changes from the proposed CPP The Senior Vice President for Governmental rule to the final CPP rule, and the emissions Affairs and Public Relations and the Vice reductions that Kansas will need to achieve by President of Engineering for the Southwest Power 2030. The Supervisor discussed the various state Pool (SPP) provided the SPP’s impact assessment plan types that Kansas could choose from and the of the proposed CPP rule. The SPP performed two compliance paths provided by the final CPP three assessments on the draft rule: rule. The Supervisor also discussed what the path forward would be, including evaluating the impact ● Reliability Impact Assessment: assessed of a more stringent goal; reviewing types of plans the impact of EPA’s projected generator and their requirements; determining which retirements on the transmission system approach is best for Kansas; reviewing options for and resource adequacy; dealing with stranded assets; developing a plan to meet the public process provisions; continuing coordination with the KCC, utilities, and ● Regional Compliance Assessment: stakeholders; and reviewing the Model Rule and evaluated changes to existing resources Federal Plan and preparing comments to be and resource plans needed to comply with submitted to the EPA. the CPP rule under a regional compliance approach; and The Supervisor provided an initial calendar of dates for the Committee, with a submission of an ● State-by-State Compliance Assessment: initial state plan with an extension request by evaluated changes to existing resources September 2, 2016. and resource plans needed to comply with the CPP rule under a state-by-state Kansas Corporation Commission (KCC) compliance approach.

The Director of the Utilities Division The SPP found after conducting these (Director), KCC, stated the agency staff is assessments that state-by-state compliance is more continuing to review the final rule. The KCC and costly than regional compliance and is more KDHE staff have weekly calls to discuss the CPP disruptive than a regional approach to the rule and have bi-weekly calls involving the KCC, reliability and economic benefit provided by SPP’s KDHE, and all stakeholders. The Director stated a markets. In addition, the SPP found that more new general investigation would be opened soon after generation and transmission infrastructure likely is the Committee’s meeting, to identify least-cost needed for state-by-state than for regional compliance options that maintain reliable electric compliance. service, be an open proceeding that affected parties may petition to intervene and submit The SPP representatives stated the SPP stands comments, allow KDHE to participate per the ready to assist in any way that it can to ensure a terms of the Memorandum of Understanding reliable, cost-effective approach to compliance signed by the two agencies, and encourage all with the proposed CPP rule. The SPP encourages affected non-jurisdictional utilities to intervene states to begin coordination with the SPP early and and participate. often during the development of state plans.

The Director stated a request for proposal has been issued to engage a consulting firm with the necessary experience and modeling program to run

Kansas Legislative Research Department 7-2 2015 Clean Power Plan Implementation Study National Perspective impact to the IOUs’ customers. The Executive Director expressed the IOUs’ support for a state A national perspective on the proposed CPP plan, the development process of which allows for rule was presented by the Department Chair for gathering data, getting regulatory input, and Environment (Washington, D.C., office) and factoring in the results of litigation. In addition, partner of Baker Botts, LLP, an international law the Executive Director added that the trading of firm. The representative stated there are legal allowances could be a valuable tool for reducing vulnerabilities regarding the proposed CPP rule, CPP customer impact, especially when done under which include whether the EPA has the power to a state plan. The Executive Director stated the SPP regulate under existing law, whether the proposed is reviewing and addressing potential reliability standards are more stringent than existing impacts and their current analyses support the standards, whether the EPA can require renewable value of a trading option, which could require energy under the proposed CPP rule, whether there legislative action to allow it in Kansas. are limits to EPA’s authority under the proposed rule, and other CPP-specific elements, including Industry Perspective — Cooperatives and remaining useful life of power plants, state Municipals obligations, and potential issues of leakage. The Executive Manager, Environment, for the Additional information on the national Sunflower Electric Power Corporation perspective was provided by the Vice President of (Sunflower) provided the cooperative utilities’ State Policy and General Counsel, American concerns about the proposed CPP rule. The Energy Alliance, who stated the proposed CPP rule Executive Manager stated cooperative customers picks winner and losers. The representative also access coal-based energy from Sunflower and provided information regarding the various ways Westar Energy assets. He said coal is the state’s states could comply with the proposed rule and the most economical fossil fuel and there is no role of state legislatures in complying with the emission control technology that can reduce rule. The representative provided three scenarios carbon dioxide emissions on currently installed to consider: fossil fuel electricity generating units. The Executive Manager continued by stating ● Submit a fully-compliant initial state renewable resources already saturate the western implementation plan by September 2016; and central Kansas electricity grid and there is doubt that more can be added. Additionally, the Executive Manager stated the EPA directs that Submit a partial or non-compliant initial ● electricity generation be redispatched, such that state implementation plan by September existing natural gas combined cycle units will 2016; or operate at a 75.0 percent capacity factor, and that this will reduce utilization of lower-cost Kansas ● Refrain from submitting an initial state coal-based units to less efficient capacity factors. implementation plan by September 2016. The Executive Manager also stated the proposed CPP rule will strand investment and that Industry Perspective – Investor-owned Utilities Sunflower’s transmission rate has doubled since 2008. Adding additional wind requires more The Executive Director for Environmental transmission reliability upgrades, which adds more Services, Westar Energy, provided testimony on costs. behalf of Westar Energy, Kansas City Power and Light (KCP&L), and Empire District, all of which The Director of Environmental Services, are investor-owned utilities (IOUs). The Executive Kansas City Board of Public Utilities (BPU), Director stated the IOUs were planning to presented the concerns of the municipal electric approach the CPP rule on parallel paths. First, the utilities. In addition to BPU, some units at the IOUs are planning to challenge the rule in the Coffeyville and Winfield municipal power plants courts, but at the same time, the IOUs will be are affected. The Director stated the proposed CPP analyzing the rule and working with KDHE to rule will be detrimental to BPU customers and support the option of a state plan with the least lower income earners in the service area, causing

Kansas Legislative Research Department 7-3 2015 Clean Power Plan Implementation Study an estimated 31.0 percent electric rate increase some of the most affected by the increased rates. without escalation cost. The Director stated the The Director stated BPU supports KDHE in CPP will potentially cause stranded assets, developing a state plan in lieu of a federal plan and including a $250.0 million air pollution control transferability of credits may need to be codified project initiated prior to the proposed CPP rule to in statute. BPU believes, the Director stated, that comply with Cross State Air Pollution Control submitting a state plan provides the most Rule and Mercury and Air Toxics Rule. BPU economic and viable path to meet the proposed expects a negative impact on reliability, and the CPP rule. Director added that BPU supports the comments filed on proposed CPP rule by KDHE and all other Kansas utilities. The Director focused on the CONCLUSIONS AND RECOMMENDATIONS potential impact to rate payers, stating that because BPU services some of the lowest income earners Following its review, the Committee makes no in the state, the rate payers in the area would be conclusions or recommendations.

Kansas Legislative Research Department 7-4 2015 Clean Power Plan Implementation Study