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Washington Proposes State Greenhouse Gas Reporting Requirements Independent of National Reporting

Posted in Legislation, Natural Resources and Environment, Regulatory

This won’t be the last time that someone shrieks, “Don’t these guys talk to each other!?!”

On September 22, 2009 the United States Environmental Protection Agency (EPA) issued its final greenhouse gas reporting rule, requiring annual reporting of greenhouse gas emissions by a wide range of manufacturers, electricity generators, municipal solid waste landfills, manure management facilities for large animal production operations, refineries and natural gas distribution facilities, suppliers of industrial greenhouse gases, and manufacturers of mobile sources. On September 21, 2009 the Washington Department of Ecology (DOE) issued its proposed rule regarding greenhouse gas reporting, covering many of the same emitters, but also covering operators of fleets of on-road and off-road vehicles, marine vessels and aircraft and other mobile sources.

The federal rules are about 1300 pages long, and the state rules are 129 pages long. The rules differ not just in who is covered, but in the amount of emissions that are reportable. Because the state rules cover businesses with fleets of vehicles as well as large industrial emitters, the state rules will affect far more businesses than the federal rules. Although the state rules will not go be adopted until January 20, 2010, they require reporting in 2010 of emissions that occurred in 2009 for many emitters. So in short, the state rules will require reporting of emissions by companies that did not have the rules available to them during the period when they needed to be recording their emissions. Only time will tell whether companies have the records needed in order to be able to report their 2009 emissions.

To perhaps complete the irony for those who want governments to be efficient and coordinated, the state rules begin with the declaration:

Should the federal government adopt rules sufficient to track progress toward the emissions reductions required by RCW 70.235.020, the department must amend this chapter, as necessary, to seek consistency with the federal rules to ensure duplicate reporting is not required. It is the department’s intent that the reporting requirements of this chapter be consistent with any federal greenhouse gas emission reporting requirements to the extent required by RCW 70.94.151.

The new state rules were mandated by Washington’s 2008 Legislature. At that time the Legislature was moving towards adoption of a Washington-specific greenhouse gas cap-and-trade program. A greenhouse gas reporting system is an essential element of a cap-and-trade program, so getting the reporting system in place was a logical first step in moving toward that objective. When that cap-and-trade legislation came to the 2009 Legislature, however, the bill as presented by DOE was far to ill-defined and indefinite for the Legislature to pass it. Although the Legislature spent most of the 2009 session working towards a bill that it could pass, in the end, cap-and-trade was left to the federal government, at least for the moment.

Last spring the U.S. House of Representatives passed a climate change bill that included a cap-and-trade system. That bill has been languishing in the Senate while the Senate tried to act on health care reform. As the Senate has started to see an end in sight to the health care reform debate, cap-and-trade and federal climate change legislation is beginning to move in the Senate. There is every reason to think that the climate change debate will be as contentious and partisan as health care reform has been. Nonetheless, it is at least possible that within the next year there will be major federal legislation.

The question will then become, is there a good enough reason why Washington State should have its own greenhouse gas reporting system? Admittedly the underlying legislation in Washington calls for a broader reporting responsibility than EPA has so far adopted. That means that if only the federal system is utilized, some significant sources of greenhouse gases may not be fully understood. The other consideration, though, is that both the state and the federal system impose major new regulatory costs, and it is not clear that the benefit of having two systems is sufficient to justify the cost of imposing a second system of reporting on companies doing business in Washington.

That is of course something the Legislature needs to resolve. But it is fair to ask the Legislature to step back, and tell DOE to step back, and give the federal government a chance to act. The push for a Washington-specific climate change regulatory system was largely motivated by the unwillingness of the federal government to act during the Bush Administration. With the Obama Administration working hard to get Congressional action on climate change, arguably the Washington Legislature can leave what must be a national system to be truly effective in the federal government’s hands.