Comment Log Display

These comments are in response to the California Air Resources
Board (CARB) request for comments on its Second 15-Day Notice of
Public Availability of Modified Text for the Proposed Regulation AB
32 Cost of Implementation Fee.

Western Area Power Administration (Western), a federal agency,
continues to express concerns that the CARB’s regulations include
Western as a regulated entity.  While Western respects the state’s
initiatives to implement AB32, Western is bound by Federal laws and
regulations.  The Supremacy Clause of the United States
Constitution does not allow a state to directly regulate the
Federal government without its consent or within a field regulated
entirely by the Federal government.  Western understands the CARB
believes the Clean Air Act provides a waiver of sovereign immunity
for these regulations.  While Section 118 of the Clean Air Act, 42
U.S.C. § 7418, provides a limited waiver of sovereign immunity and
under certain circumstances requires federal facilities to comply
with federal, state, interstate and local requirements for the
abatement of air pollution to the same extent as any
nongovernmental entity, under the Act, there must be an action by
the United States to delegate authority over greenhouse gases to
the state before a federal agency may comply with state
regulations.  There are current initiatives associated with
comprehensive greenhouse gas regulations pending before both the
U.S. Congress and EPA.  However, as of this writing, Western
understands neither the U.S. Congress nor the U.S. Environmental
Protection Agency (EPA) has promulgated any such comprehensive laws
or regulations on greenhouse gases.  While Congress or EPA, in the
near future, may decide to comprehensively regulate greenhouse
gases as air pollutants , until such time, Western does not have
authority to bind Congress, EPA or other federal agencies with
jurisdiction over such matters. Furthermore, these regulations that
CARB is proposing to promulgate directly impact Western’s primary
mission of marketing federal power, a field regulated entirely by
the federal government.  Therefore, Western continues to believe
the regulations should not include Western as a regulated party in
the RES.  

In the past, Western has worked with state agencies, including
CARB, to provide information that the state needs.  For instance,
Western voluntarily reports its greenhouse gas emissions to assist
the state meet its goals.  In the event CARB would like additional
information from Western, Western is willing to evaluate the
request and will work with CARB.  However, Western, at this time,
cannot consent to direct state regulation under AB32.

If you have any questions with regard to the above, please feel
free to contact me at (720) 962-7017 or kawamura@wapa.gov.