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October 27, 2020 Via Email to [email protected] New York State Department of Environmental Conservation Office of Climate

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October 27, 2020 Via Email to Climate.Regs@Dec.Ny.Gov New York State Department of Environmental Conservation Office of Climate October 27, 2020 Via email to [email protected] New York State Department of Environmental Conservation Office of Climate Change Attention: Suzanne Hagell 625 Broadway, 9th Floor Albany, NY 12233 Re: Comments on Proposed 6 NYCRR Part 496 On behalf of the undersigned organizations, Earthjustice respectfully submits these comments on the proposed 6 NYCRR Part 496, setting New York’s greenhouse gas (GHG) emissions limits for 2030 and 2050 pursuant to the Climate Leadership and Community Protection Act (CLCPA). By setting the actual limit for New York’s gross GHG emissions in 2030 and 2050, and by establishing which emissions will be counted toward that limit, the proposed rule sets the stage for all of New York’s future actions to reduce emissions under the CLCPA. It is critical that this initial rulemaking rests on a strong foundation: DEC should release sufficient information about current emissions for the public to understand what reductions will be necessary to achieve the limits, must include all sources of anthropogenic emissions in its baseline, and must identify limits for each type of GHG as required by the statute. Going forward, to ensure transparency and integrity in implementation of the CLCPA, DEC must track annual emissions in a consistent and transparent way, track emissions by location to ensure prioritized reductions in disadvantaged communities, establish a mandatory registry and reporting system, report both gross and net emissions as well as account for uncertainty, and ensure that accounting for net emissions adequately protects sequestration in the forestry sector. I. MORE INFORMATION IS NEEDED TO EVALUATE THE 1990 EMISSIONS BASELINE The new, higher estimate of 1990 emissions that is the basis of the proposed rule has the potential to catalyze aggressive action to reduce New York’s GHG emissions, particularly from the use of natural gas. Conversely, by allowing higher levels of emissions in 2030 and 2050 than what would have been allowed based on previous estimates, the new estimate could also allow New York to delay meaningful emission reductions. Without the ability to compare the new 1990 baseline estimate – and the 2030 and 2050 emissions limits – to New York’s current GHG emissions estimated using the same methodology and categories of emissions, the public is unable to evaluate the implications of the proposed rule for future policymaking to reduce emissions. The CLCPA sets new methods for measuring emissions that differ from the methodology used in previous state GHG inventories. In particular, the CLCPA requires the state to count NORTHEAST 48 WALL STREET, 15TH FLOOR NEW YORK, NY 10005 T: 212.845.7376 F: 212.918.1556 [email protected] WWW.EARTHJUSTICE.ORG emissions from extraction and transmission of fossil fuels and electricity imported into the state, and to use a twenty-year Global Warming Potential (GWP) to calculate CO2 equivalence for each type of GHG. ECL §§ 75-0101(2); 75-0105(3). The inclusion of out-of-state emissions related to New York’s energy use, along with the twenty-year global warming potential, increases the 1990 baseline almost 70% above the previous estimates in the existing NYSERDA GHG inventory.1 Counting the full emissions associated with New York’s energy consumption is a critical policy decision meant to push the state to address its reliance on imported fossil fuels, particularly natural gas. However, a higher baseline results in a higher emissions limit for 2030 and 2050. The current estimate for 2016 emissions in the NYSERDA inventory, 201.8 million 2 metric tons of CO2 equivalent (MMT CO2e), is already below the proposed 2030 statewide emissions limit of 240.83 MMT CO2e. See Figure 1. Unless DEC conducts its annual reporting using the same methodology and is conservative and transparent when accounting for life cycle GHG emissions from organic sources that sequester carbon for part of their life cycles, the state could simply declare that it has reached its 2030 limit without taking aggressive action to achieve significant emissions reductions. Figure 1. 1990-2016 emissions from NYSERDA3 inventory using GWP100. The line labeled “1990 Part 496” shows DEC’s baseline estimate using GWP20. This Part 496 baseline is 70% greater than the previous 1990 estimate from NYSERDA. Without updated methodology, previously reported emissions from 2016 fall below the proposed 2030 limit. The CLCPA requires DEC to update the current GHG emissions inventory by January 2022, using the same methodology used to calculate the 1990 emissions in the proposed rule. ECL § 75-0105. The GHG emissions reported under section 75-0105 will necessarily be higher 1 See NYSERDA, New York State Greenhouse Gas Inventory: 1990–2016 (July 2019), https://www.nyserda.ny.gov/-/media/Files/EDPPP/Energy-Prices/Energy-Statistics/greenhouse-gas- inventory.pdf (NYSERDA GHG Inventory); Marie French, New York Proposes New Accounting for Planet-Warming Gases — Key Step in State Goals, Politico (Aug. 14, 2020). 2 NYSERDA GHG Inventory at S-3, tbl.3-1. 3 Id. at App. B, tbl.B-1. 2 than previous estimates, which only include in-state emissions and do not use the twenty-year GWP, especially since methane emissions associated with natural gas have increased significantly in the past few decades.4 Recent studies estimate that increased methane emissions associated with the expansion of natural gas within the last fifteen years effectively cancel out 5 nearly all CO2 reductions in New York since 1990 from retiring coal plants and other measures. Because New York now uses more natural gas than in 1990, to power nearly all fossil-fuel electricity generation within the state as well as for a significant portion of building heating and hot water,6 DEC’s annual emissions report should reflect an increase in methane emissions that is parallel to or even greater than the increase in the DEC’s current estimate of 1990 emissions over the NYSERDA inventory. To allow the public to fully understand the impact of the proposed rule, DEC should release a draft updated emissions report for the most recent year where data is available. In the absence of that data, Robert Howarth’s 2020 study estimating 2015 emissions according to the CLCPA framework is instructive. It shows that while CO2 emissions from energy consumption decreased by 15% since 1990, methane emissions increased by 29%.7 DEC should follow Howarth’s methodology to ensure it is fully capturing the state’s emissions going forward. Howarth not only used the twenty-year Global Warming Potential for methane emissions but also a top-down estimate of fugitive emissions based on remote-sensing data, rather than the bottom-up estimate DEC used for its 1990 baseline.8 Recent data from top-down estimates suggest that using a bottom-up methodology may significantly underestimate fugitive emissions.9 DEC states in its Regulatory Impact Statement that insufficient data were available to conduct a top-down estimate of fugitive emissions for 1990, but that “validation of various top-down analyses is more likely for recent and future years of emissions.” DEC should commit to updating its methodology to include the best available methane emissions estimates, including ones informed by top-down accounting, to more accurately and comprehensively estimate current and future emissions in its annual reporting. A full accounting of current and future emissions using the best available data and the methodology required by CLCPA should ensure that, even with a higher emissions limit, New York will have to take meaningful steps to reduce emissions by 2030. Reductions from natural gas use in the residential and commercial building heating in particular, along with those in the 4 See, e.g., Hunter Cutting, Unexpected Surge in Atmospheric Methane, Climate Nexus, https://climatenexus.org/climate-change-news/methane-surge/ (last visited Oct. 18, 2020). 5 Robert W. Howarth, Methane Emissions from Fossil Fuels: Exploring Recent Changes in Greenhouse- Gas Reporting Requirements for the State of New York, J. Integrative Envtl. Scis. (2020), https://doi.org/10.1080/1943815X.2020.1789666. 6 See NYSERDA GHG Inventory at 6, fig.5; 10, tbl.5. 7 Howarth, supra note 5, at 6 tbl.2. 8 Id. at 6. Howarth notes that his estimates for methane emissions from energy are 41x higher than the former NYSERDA 1990 baseline due to the use of GWP20, accounting for imports, and the use of the top-down coefficient. The use of the top-down coefficient alone accounts for an increase in the estimate by 2–2.5x. 9 See Scot M. Miller et al., Anthropogenic Emissions of Methane in the United States, Proc. Nat’l Acad Sci. (2013). https://doi.org/10.1073/pnas.1314392110. See also Proposed Part 496 Regulatory Impact Statement; Howarth, supra note 5, at 4. 3 electricity sector, also become more urgent.10 The CLCPA demands aggressive measures to reduce New York’s emissions across all sectors to address the full climate impact of the state’s energy consumption, and DEC must conduct its annual emissions report with integrity to ensure meaningful reductions occur. II. MONITORING AND REPORTING ANNUAL EMISSIONS MUST BE TRANSPARENT AND CONSISTENT A. DEC must not use net accounting to artificially meet the 2030 emissions limit or to undermine the alternative compliance mechanism’s requirement of additional offsets. DEC has interpreted the CLCPA to conclude that emissions limits, as set forth in the proposed rule, should be established as a percentage of gross 1990 emissions, but that annual reports should calculate net emissions. See Proposed Part 496 Regulatory Impact Statement. This approach is confusing and not clearly required by the statute, which is silent as to whether the limits for 2030 and 2050 should be based on net or gross emissions levels. DEC’s assumption that net accounting will close the gap between the 2050 actual emissions limit and net zero emissions overlooks the role of the “alternative compliance mechanism,” see ECL § 75-0109(4).
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