Barking Up the Wrong Tree: Can Existing Policies Accurately Account for Carbon Sequestration and...

Copyright Jody Endres 2010, All Rights Reserved

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Barking Up the Wrong Tree: Can Existing Policies Accurately Account for Carbon

Sequestration and Adequately Protect Forests in the New Bioenergy Paradigm?

Jody M. Endres, J.D., M.A.Senior Regulatory Associate

The Energy Biosciences Institute

Dallas Bartz, 3rd Year Law StudentShauna Yow, 2nd Year Law Student

Presented to the Strategic Directions in Social, Legal and Environmental Dimensions of Research on Biofuels

September 25, 2010


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The Emerging Issue• Numerous forums are questioning whether

bioenergy feedstocks are "renewable/sustainable"• Carbon accounting (neutrality)• "Other sustainability"

• Forest biomass particularly singled-out


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The Emerging Issue• The "answer" to whether existing law offers

adequate protections in the new bioenergy paradigm is complicated by:• Inconsistent federal laws and regulations• Gaps in federal laws and regulations• Non-existent federal law (e.g., RPS, C & T)• Reliance on individual state mechanisms to

gauge sustainability that may suffer same problems

• Standards not tailored specifically to energy biomass


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Research Rationale

1. How governments (federal, state) account for GHG values and "other sustainability" of forest biomass will influence its viability as an energy feedstock, and industry expansion• Existing standards versus• New standards versus• Hybrid


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Research Rationale2. The skepticism surrounding sustainability–

particularly forest biomass–has the possibility to both:• Benefit cropped biomass because: • Skepticism may hold up forest biomass as a

satisfactory feedstock to satisfy mandates, thus lessening competition

• Disadvantage cropped biomass because:• FB would have otherwise driven adoption

allowing cropped biomass sector to develop• Standards may "bleed over"


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Research Approach

1. Critically analyze:• Definitions and meanings of biomass

"sustainability" in:• federal and state forest legislation (& court

interpretations) CA, MA, NY as state case studies

• private forest standards• Regulatory inconsistencies and gaps, both

• between laws in federal and state schemes, and

• within each federal and state law


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Research Approach

2. Qualitative, comparative study of the regulatory and 3rd party approaches to highlight pros and cons of each regime

Normative approach generates set(s) of policy options for government, industry and other stakeholders

3. Future work • "Good Governance" theory• Expand analysis to other national and

international standards


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Presentation Outline

• Universe of Federal definitions and meaning of biomass feedstock "sustainability"• 7 different laws• Divided into:• GHG Accounting• "Other" Sustainability

• State case studies• Focus on California

• Preliminary conclusions


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The Universe of Federal Definitions of Biomass Feedstock "Sustainability"


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• Required by the Consolidated Appropriations Act of 2008 (40 C.F.R Part 98)

• Requires emitters >25,000 MT CO2e/yr and 16 "all-in" categories to annually report 6 GHG pollutants

• Commenters urged biomass carbon neutrality

1. GHG Reporting (Stationary Sources)


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• 8/11/10: Proposed amendments• Establishes default values for stationary sources

burning biomass• Biomass CO2 not counted toward 25K metric ton

threshold• No other "sustainability" requirements• http://edocket.access.gpo.gov/2010/pdf/2010-183

54.pdf

1. GHG Reporting (Stationary Sources)

http://edocket.access.gpo.gov/2010/pdf/2010-18354.pdf

http://edocket.access.gpo.gov/2010/pdf/2010-18354.pdf


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• Issued 4/15/10• Per IPCC methodology:• Does NOT count stack emissions toward

reported total b/c "no net addition"• Instead, measures net carbon fluxes in the

wooded or cropped reservoirs (LU-LUC-F)

2. U.S. UNFCCC GHG Inventory Report (EPA)


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• 7/28/10: Petition for reconsideration filed by Center for Biological Diversity Biomass combustion is not carbon neutral

• Based on the Data Quality Act of 2001 & regs• Requires "accuracy, reliability, lack of bias, and

transparency regarding data used, assumptions, and analytical methods"

• http://epa.gov/climatechange/emissions/usinventoryreport.html


http://epa.gov/climatechange/emissions/usinventoryreport.html

http://epa.gov/climatechange/emissions/usinventoryreport.html


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• Demands that EPA amend report to include:• CO2 emissions from biomass combustion, and associated

land use change, are included in national totals because:• Short-term impacts of emissions are significant, even

if re-sequestered in the future• Net effects vary depend on :• Source of biomoass• Sequestration capacity of soil and vegetation• Changes in land use• Time lapse between emission and sequestration

• No assumed carbon neutrality



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• Final rule issued 5/13/10• Establishes "tailored" thresholds for GHG emissions

from stationary sources • Raised from 100/250 tpy to 75,000/100,000 tpy

• Covers 70% of all GHG emissions (power plants, refineries, cement plants)

• Did not exempt emissions from biomass• http

://www.epa.gov/NSR/documents/20100413fs.pdf

3. CAA GHG Final Tailoring Rule (EPA)

http://www.epa.gov/NSR/documents/20100413fs.pdf

http://www.epa.gov/NSR/documents/20100413fs.pdf


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• Issued 7/8/10• Seeks comments to develop accounting approach

for emissions from bioenergy and other biogenic sources

• Asks for assessments of science and policy analysis of different approaches

4. EPA Call for Information (Tailoring Rule)


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• Asks if a distinction should be made between "renewable" and "sustainable" feedstocks and those that are not• If so, what should the indicators be?• Especially forest feedstocks

• Asks for information regarding land management drivers resulting from projected change in biomass utilization rates

4. EPA Call for Information (Tailoring Rule)


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• Issued 2/8/10• Requested comments on assigning GHG values in order

to qualify for subsidy• All "eligible material" and "eligible crops" must be

produced pursuant to• Crops: Conservation plan (CCC/FSA)• Forests:• Private lands • Forest Land Enhancement Plan or "equivalent"

state or private plan• Federal lands (Healthy Forests Act)

5. The Biomass Crop Assistance Program Proposed Rule


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• LCA and ILUC for biomass pursuant to statute• Source restrictions• Only private land• No conversion after certain date• Forests • Slash or thinnings w/ ecological

communities caveat• Preventative measures

• "Other sustainability" evaluated this year

6. RFS2


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• Does not address carbon neutrality per se; "LCA" but eliminates ILUC until advisory decision

• GHG value of offsets assigned to "advisory board"• Advisory board must provide recommendations on

other environmental impacts of offsets• Provides consistent definition of "renewable biomass"

for new RPS and RFS2 (but not Title V or BCAP)• Expands use of federal forests pursuant to

management plan• Private land=no reference to plans

• Internationally, EPA must consult with Dept. of State, and certify national programs

7. Waxman-Markey (H.R. 2454)


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Federal Law GHG Accounting? "Other" Sustainability?

GHG ReportingYes; CO2 does not count toward threshold, but no automatic neutrality (instead, default)

No

UNFCCC Reporting Yes; carbon neutrality. No

GHG TailoringYes; biomass carbon neutrality not assumed

No

GHG Tailoring Call for Information

Seeks comments on biomass valuation issue

Seeks comments, especially for forestry

BCAP Proposed Rule

No; seeks comment on GHG valuation as qualifier

Yes for both crops and forests; forest biomass from private lands subject to individual state rules

RFS2Yes; LCA and ILUC included Possible in future under

statute

W-M

Yes; LCA only; ILUC excluded from calculation

-Federal lands=yes-Private=no-Only RFS2 and RPS-Requires certification of practices in 3rd countries


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State Case Studies of Forestry SustainabilityLaws and Regulations


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• Several laws come into play when defining biomass "sustainability"• A.B. 32• CA Envtl. Quality Act (CEQA)• Forest Practices Act (FPA)• CA Endangered Species Act (CESA)• Porter Cologne Water Quality Act

(PCWQA)• Timber Productivity Act of 1982 (TPA)

California


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Examples of the complicated nature of defining "sustainabilty":• Harmonizing A.B. 32 with CEQA and FPA with regard to

how GHG emissions/sequestration from forests treated in environmental review

• Each lead agency has own discretion on GHG measurement methodology

• Compliance with EIR in forestry context may be demonstrated, in some cases, by compliance with previous habitat conservation plans• An example where law is not "new biomass

paradigm" specific

California


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• Exceptions arguably exist in the FPA to environmental review of "other sustainability" considerations• Timber Harvest Plans (THPs) and Sustainable Yield

Plans (SYPs) Forest health excepted Fire protection excepted

• Forest Practice Rules (FPRs) Combustion fuel for the production of energy

excepted• With some habitat and water quality

constraints

California


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The C & T Program• The Governor's Climate and Forestry Task Force (2009)• Joint Action Plan• Recommendations on how to incorporate

international regimes into compliance grade certificates valid in CA C & T regime• GHG Accounting issues• "Other Sustainability" considerations being

considered in working group• REDD+• Voluntary carbon market standards

How will this reconcile with CA's own standards?

California


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Preliminary Findings/Conclusions


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SustainabilityForestry Cropping

GHGs

"Other"Sustainability(e.g., water quality,

biodiversity)

•Concerns are more pronounced in media, stakeholder negotiations, and emerging GHG stationary source permitting•Possible to use forest biomass at all?

•Cellulosics: While concerns exist (invasiveness & GMs, land conversion), sustainability issues do not appear to be a "deal breaker" or "road block"•Corn/food crops

Share basic "how to account" issue

SRWB?


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• If there is no federal climate bill to unify statutes and resulting sustainability rulemaking:• Risks inconsistent GHG and "other sustainability"

standards between federal regimes• Risks reliance within federal regimes on 50

different states' laws• W-M does not go far enough to unify programs and

their definitions• Covers RPS, RFS2 and CAA; not BCAP• Does not address cropping sustainability

The Current State of the Federal Bioenergy Regime With Regard to "Sustainability"


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• But, with regard to inconsistencies if no unifying federal bill:• For cropping, "other sustainability" rules not likely to

be inconsistent from state to state under BCAP because:• conservation planning on private lands unified

through national, state and local NRCS practice standards

• Unless FSA accepts private, third-party certification• Forestry standards will be inconsistent if federal laws

or regulations rely on state laws (e.g., BCAP)



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• Where gaps exist in federal regulation (e.g., without a federal climate bill that contains a RPS):• individual state bioenergy regulations have

emerged, with attendant proliferation of sustainability requirements

• Elliott's comment about electric v. biofuel cars



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• Whether federal or state policy, the question remains unanswered regarding whether sustainability standards must be more biomass-specific • Exceptions for environmental review may exist

that do not take into account a possible, new "biomass paradigm," especially for forests

• Perhaps conservation practices for cropping should reward biomass for going above current baseline



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Thank you for your time and attention!

Jody M. EndresUniversity of Illinois

Energy Biosciences Institute(217) 333-9579

[email protected]


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Extra Slides


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To be considered "eligible biomass" that is "sustainably harvested" for purposes of qualifying for the Regional Greenhouse Gas Initiative (RGGI) carbon trading program:1. Certification• A USDA Forest Stewardship Plan, AND• A harvest plan based on the NY RPS BMPsOR• Forest tax eligibility (management plan)OR• Third party certification

New York


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2. Meet "permanence criterion"• 100 year conservation easement, OR• Enough time to ensure carbon neutrality

New York


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• Manomet Ctr. For Conservation Sciences "Biomass Sustainability and Carbon Study" (6/2010)• Commissioned by MA Dept. of Energy Resources• GHG study not favorable to forest biomass in

short-term (2050)• "Other sustainability"• At low cost scenario, only residues harvested• But, presents 4 options to ensure sustainable

harvests for all scenarios Concludes current laws not adequate

Massachusetts


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4 options recommended:1. Self-monitoring/self-reporting2. Require an approved forest management plan3. Require environmental impact assessment4. Establish formal standards

Massachusetts


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Federal Law GHG Accounting? "Other" Sustainability?

GHG ReportingYes; CO2 does not count toward threshold, but no automatic neutrality (default)

No

UNFCCC Reporting Yes; carbon neutrality. No

GHG TailoringYes; biomass carbon neutrality not resolved

No

GHG Tailoring Call for Information

Seeks comments on biomass valuation issue

Seeks comments, especially for forestry

BCAP Proposed Rule

No; seeks comment on GHG valuation as qualifier

Yes for both crops and forests; forest biomass from private lands subject to individual state rules

RFS2Yes; LCA and ILUC included Possible in future under

statute

W-M

Yes; LCA only; ILUC excluded from calculation

-Federal lands=yes-Private=no-Only RFS2 and RPS-Requires certification of practices in 3rd countries


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Eligible Land Eligible SourcesOnly private land

(non-federal)Planted crops & residues (non-

forested)Land cleared prior to EISA

enactment (12/19/07)Planted trees & residues

Actively managed or fallow (crops)

Animal wastes & byproducts

Forest slash and precommercial thinnings (with ecological communities restriction)

Separated yard and food wastes

Biomass from areas near structures at-risk of fire

How RFS2 Defines “Renewable Biomass”


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BCAP Project Area Eligible Land and Materials

Eligible Land Eligible Material

Definition of Renewable Biomass*, EXCEPT for:

Only private land Title I cropsNo native sod after 5/22/08

Nothing noxious (federal and state law determination)

No CRP, WRP, GRP *Renewable Biomass: organic material (commodity crops, plants , trees, and residues), wastes (food, animal, yard), algae


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BCAP CHST Eligible MaterialLand Type Definition of Renewable

BiomassCHST Eligible Material

Federal Land Materials from preventative or restorative treatments only, pursuant to forest management plan

Same

Private and Indian land

Feed grains, other commodities, other plants and trees, wastes*, algae

NO:Title I cropsAlgaeAnimal WastesFood WastesMSW

*CHST-eligible wastes: crop residues (20% limit), wood wastes and residues

• Chair, CSBP Field Testing Task Force; Co-Chair, Leonardo Academy Environmental Subcommittee

• NREL Presentation Nov. 2010

• The Important Role of Multicriteria Decision Analysis in Bioenergy Law and Policy, Geo.Wash. J. Energy & Envtl. L. (Spring 2011)

• Renewable energy reader (Spring 2011)

• A.B. 118 journal article

Systems Level Analysis

Copyright 2010 Jody Endres

Barking Up the Wrong Tree: Can Existing Policies Accurately Account for Carbon Sequestration and...

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