Constitutional Crisis: Arizona Residential Energy Standards Initiative

Front cover of the Arizona Constitution adopted in 1891

Front cover of the Arizona Constitution adopted in 1891

If the Renewable Energy for a Healthy Arizona Amendment (REHAA) passes, it will pit the Arizona Department of Environmental Quality (ADEQ), the Arizona Corporation Commission (ACC), and the Maricopa Association of Governments (MAG) against each other.  Although MAG completes SIP revisions for their respective counties and ADEQ submits them to EPA, the state constitutional crisis is activated when the ACC usurps their authority by implementing the REHAA.

The REHAA could appear on the ballot in Arizona as an initiated constitutional amendment on November 6, 2018 if proponents can get 225,963 valid signatures by July 5, 2018. The ballot initiative was filed with the secretary of state on February 20, 2018 and if approved, Arizona Public Service (APS) says it will create negative market conditions that will force them to close the Palo Verde nuclear plant. 

The measure would require electric utilities that sell electricity in Arizona to acquire electricity from a certain percentage of renewable resources each year. The amount would increase each year from 12 percent in 2020 to 50 percent in 2030 and each year thereafter.  The measure would define renewable energy to include solar, wind, biomass, certain hydropower, geothermal, and landfill gas energies.  In reality, replacement power for Palo Verde will predominately come from natural gas-fired baseload electricity production. Thus, there will be additional nitrogen dioxide emissions, increased ozone and smog production and more Clean Air Act violations. 

It is common knowledge that APS will close Palo Verde if ARESI passes.   MAG will be forced to complete a SIP that cannot meet the EPA requirements under the Clean Air Act for ozone attainment.  The ADEQ will be forced to submit a SIP that cannot meet the EPA requirements.  EPA might have to take over the program, as is allowed under the law.  EPA does not have any authority to force Palo Verde to stay open. Nuclear power plants are regulated by the Nuclear Regulatory Commission (NRC).  Thus, this constitutional alteration will throw the state clean air program into chaos.

A state initiative that closes what is a significant ozone control measure (operation of emission-free Palo Verde) would usurp the power of the state agencies in charge of regulating the Clean Air Act at the state level with a measure that runs directly counter to its mission. The façade of putting the measure to the voters is disingenuous because informed proponents know they are bypassing the established channels for regulating the Clean Air Act at the state level.  The Arizona Corporation Commission is in no way authorized or capable of managing or regulating CAA goals.  Yet the passage of the ARESI will put ACC in charge of meeting the requirements of the CAA.

MAG would also be placed in the position of writing a SIP that it knows would not work. No state agency should engage in any activity that promotes the addition of one pound of an EPA Criteria Pollutant.[1] This is because state agencies should be promoting measures that reduce air pollutants, particularly pollutants in which they are in noncompliance.  The measure would be usurping the regulatory powers of DEQ and MAG and would automatically force them to work against their own missions.

Passage of the Arizona Renewable Energy Standards Initiative will create a constitutional crisis.  It will unnecessarily pit state agencies against each other.  It will trigger such a constitutional crisis by creating an obstacle to the state’s achieving attainment of the Clean Air Act rules.  The initiative should be voided by vote or fiat.

[1] Criteria Pollutant: The Clean Air Act requires EPA to set National Ambient Air Quality Standards (NAAQS) NAAQS are currently set for carbon monoxide, lead, ground-level ozone, nitrogen dioxide, particulate matter, and sulfur dioxide (six common air pollutants also known as Criteria Air Pollutants).