UP IN THE AIR: WILL CALIFORNIA’S METHANE
GAS MITIGATION LAWS AND POLICIES LOWER
GLOBAL GREENHOUSE EMISSIONS?
Catherine Keske*
Introduction ............................................................................................... 492
I. Prevalence of Methane Gas Emissions and Impacts on Climate Change
............................................................................................................ 496
II. The Energy Independence and Security Act of 2007 (EISA) and
California Laws Facilitate the Use of Dairy Methane Biogas in the
Transportation Sector ......................................................................... 498
III. Will California Reduce its Methane Emissions by Innovation or
Evacuation? ........................................................................................ 500
Conclusion................................................................................................. 504
INTRODUCTION
Anthropogenic climate change is wreaking havoc in California. In recent
years, increases in the frequency and intensity of drought,1 wildfires,2 rising
sea levels, 3 and flooding 4 have devastated California communities and
*
Catherine Keske, Ph.D., Professor of Environmental Management, Management of Complex
Systems Department, School of Engineering, University of California-Merced, 5200 North Lake Road,
Merced, California, 95343. Portions of this paper were discussed in her presentation, Climate Change and
Methane Reduction in California, presented on October 25, 2019 at the VJEL Symposium, Bridging the
Gap: Reconciling Agriculture and Environmentalism. Funding for this research was provided by the
California Strategic Growth Council (SGC) Climate Research Program Grant Agreement #CCR20014.
1.
See generally Noah S. Diffenbaugh et al., Anthropogenic Warming Has Increased Drought
Risk in California, 112 PROC. NAT’L ACAD. SCI. U.S. 3931 (2015) (discussing the increased frequency of
drought in California).
2.
See A.L. Westerling et al., Climate Change and Growth Scenarios for California Wildfire, 109
CLIMATIC CHANGE 445, 445–46 (2011) (anticipating increases in wildlife burn area and variability in fire
severity); A.L. Westerling & B.P. Bryant, Climate Change and Wildfire in California, 87 CLIMATIC
CHANGE 231, 231 (2008) (stating wildfire activity in California “has greatly increased in recent years”).
3.
Kendra L. Garner et al., Impacts of Sea Level Rise and Climate Change on Coastal Plant
Species in the Central California Coast, PEERJ, May 12, 2015 at 1–2.
4.
See Michael Dettinger, Climate Change, Atmospheric Rivers, and Floods in California – A
Multimodel Analysis of Storm Frequency and Magnitude Changes, 47 J. AM. WATER RESOURCES ASS’N
514, 514 (2011) (anticipating increase in atmospheric river “episodes,” leading to more frequent and
severe floods).
2020] Will California Methane Laws Lower Global GHG Emissions? 493
delivered a cascade of financial consequences. 5 Arguably, the deleterious
impacts of climate change in California and elsewhere have only just begun.
Aggressive greenhouse gas (GHG) emission mitigation is critical to either
reduce the effects of climate change or possibly even reverse its course.6
A series of laws enacted in California target 40% and 80% reductions in
the state’s GHG emissions from 1990 levels by 2030 and 2050, respectively.7
The laws provide the California Air Resources Board (CARB) with teeth to
regulate carbon intensity (CI) to effectuate these goals.8 County, state, and
federal financial incentives complement these Acts to develop renewable and
alternative energy technology with lower GHG emissions and environmental
impacts than fossil fuels.9 Ostensibly, California’s cadre of laws and policies
place the state on a trajectory to accomplish its climate change mitigation
goals. From 2004 to 2017 (the most recent year for which data are available),
the state’s total GHG emissions declined by 14%.10 And, GHG emissions per
capita were reduced by 24% from a 2001 peak.11 United States net GHG
emissions decreased 10% from 2005 to 2018, 12 while the world’s carbon
5.
Id. at 514–15; see Katherine Blunt & Erin Ailworth, PG&E Reaches $1 Billion Settlement with
Paradise, California Governments, WALL ST. J. (June 18, 2019), https://www.wsj.com/articles/pg-esettles-with-some-california-communities-on-wildfire-claims-11560894354 (describing PG&E’s liability
for “deadly wildfires sparked by its equipment” in 2017–18); Faiz Siddiqui, California’s New Normal:
Wildfires, Ash and Power Outages Could Last a Decade (Oct. 26, 2019),
https://www.washingtonpost.com/nation/2019/10/26/this-is-new-norm-fire-ravaged-wine-countryrolling-blackouts-become-way-life/ (showing how weather and fire conditions in California are
worsening).
6.
See James Hansen et al., Target Atmospheric CO2: Where Should Humanity Aim?, OPEN
ATMOSPHERIC SCI. J., May 2008, at 1–2, 16 (asserting prompt policy changes are necessary to avoid
dangerous climate effects).
7.
CAL. HEALTH & SAFETY CODE § 38566 (West 2019); Cal. Exec. Order No. S-3-05 (June 1,
2005).
8.
See, e.g., CAL. HEALTH & SAFETY CODE § 38510 (West 2019) (charging CARB with
monitoring and regulating GHG emissions sources); id. § 38561 (directing CARB to create a scoping plan
to achieve maximum feasible emissions reduction).
9.
See
California
Laws
and
Incentives,
U.S.
DEP’T
OF
ENERGY,
https://afdc.energy.gov/laws/state_summary?state=CA (last updated Oct. 2019) (listing available
incentives in California).
10. CAL. AIR RES. BD., CALIFORNIA GREENHOUSE GAS EMISSIONS FOR 2000 TO 2017 3 (2019).
11. Id.; see also CAL. AIR RES. BD., CALIFORNIA GREENHOUSE GAS INVENTORY (MILLIONS OF
METRIC TONNES OF CO2 EQUIVALENT)—BY IPCC CATEGORY 22 (2007) (showing that California’s total
annual GHG emissions actually increased from 430.724 CO2 equivalent in 1990 to 471.1 CO2 equivalent
in 2000, although GHG emission calculations and Global Warming Potential (GWP) are calculated
slightly differently for these two datasets).
12 . Press Release, U.S. Envtl. Prot. Agency, Latest Inventory of U.S. Greenhouse Gas Emissions
and Sinks Shows Long-Term Reductions, with Annual Variation (Apr. 13, 2020),
https://www.epa.gov/newsreleases/latest-inventory-us-greenhouse-gas-emissions-and-sinks-shows-longterm-reductions-0; see generally U.S. ENVTL. PROT. AGENCY, DATA HIGHLIGHTS: INVENTORY OF U.S.
GREENHOUSE GAS EMISSIONS AND SINKS: 1990-2018 (2020) (summarizing GHG emissions and sinks
nationwide).
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dioxide (CO2) emissions alone increased 46.37% from 2000 to 2014.13 The
contrasts between state, national, and international GHG emissions is
potentially indicative of emissions leakages, 14 defined as “any change in
emissions from sources not covered by the GHG policy or program that is
caused by the GHG emissions policy or program.”15
As the fifth largest economy in the world, California’s market power
clearly influences global commerce and the resulting environmental
impacts.16 The state has a large consumer-demand base and is a renowned
hub for spinning off technological innovation: when California moves, others
respond. 17 However, in order to effectively reduce GHG emissions on a
global level that will aggressively curb climate change, transformative
interventions with the largest sources of GHG emissions (the agricultural,
transportation, and energy generation sectors) 18 cannot be limited to
California. In order to truly address climate change, technological
advancements must simultaneously mitigate GHG emissions while
facilitating economic growth inside and outside of California, and across
developed and developing nations.
This article posits that California’s emerging dairy biogas supply chain
infrastructure exemplifies technological advancement that may have a
tractable impact on mitigating worldwide methane emissions that contribute
13. See Tom Boden et al., Global CO2 Emissions from Fossil-Fuel Burning, Cement Manufacture,
and Gas Flaring: 1751-2014, CARBON DIOXIDE INFO. ANALYSIS CTR. (Mar. 3, 2017), https://cdiac.essdive.lbl.gov/ftp/ndp030/global.1751_2014.ems (listing raw data of CO2 globally).
14. See MEREDITH FOWLIE & DANNY CULLENWARD, INDEP. EMISSIONS MKT. ADVISORY COMM.,
REPORT ON EMISSIONS LEAKAGE AND RESOURCE SHUFFLING 1 (2018) (discussing how heavily regulated
GHG producers can become less competitive than producers in other jurisdictions that are not subject to
emissions requirements).
15. Id. A rebound, or backfiring, effect may also cause net global GHG emissions to rise through
increased consumer consumption attributable to perceived improvements in environmental quality (“My
environmental footprint is lower for this product so I can consume more of it”), or increased production
in locations where environmental impacts aren’t transparent or valued (the invisible impacts of
consumption). Kenneth Gillingham et al., The Rebound Effect is Overplayed, 493 NATURE 475, 476
(2013). The rebound effect occurs when a policy designed to reduce environmental impacts has the reverse
effect, and environmental impacts actually worsen. Id. at 475. Energy efficiency and conservation policies
present notable rebound effects, in that consumers increase their consumption with improved energy
efficiency, although the magnitude of rebound effects is debated. See id. at 475–76 (discussing the
rebound effect).
16. California Now has the World’s 5th Largest Economy (May 4, 2018),
https://www.cbsnews.com/news/california-now-has-the-worlds-5th-largest-economy/.
17. See id. (describing the reasons for California’s large economy); Thomas Fuller, The Pleasure
and Pain of Being California, the World’s 5th-Largest Economy (May 7, 2018),
https://www.nytimes.com/2018/05/07/us/california-economy-growth.html (explaining Silicon Valley and
technology giants are a “big part of California’s success”).
18. Global Greenhouse Gas Emissions Data, U.S. ENVTL. PROT. AGENCY,
https://www.epa.gov/ghgemissions/global-greenhouse-gas-emissions-data#main-content (last visited
Apr. 29, 2020); see Hansen et al., supra note 6, at 1, 14, 16 (describing prompt policy changes that should
be made regarding coal use, agriculture, and other practices to prevent dangerous climate effects).
2020] Will California Methane Laws Lower Global GHG Emissions? 495
to global climate change. Whether this will occur is highly dependent upon
governmental and market forces. Small-scale anaerobic digesters have been
successfully used for some time to transform methane by capturing it from
organic waste and converting it into electricity. 19 Recently, the scale and
scope of these practices have greatly expanded in California due to a cadre
of innovative governmental policies.20 The federal Renewable Fuel Standard
(RFS) Program, promulgated by the Energy Policy Act of 200521 and revised
as “RFS2” 22 under the Energy Independence and Security Act (EISA) of
2007, 23 and state initiatives turned biogas from dairy manure into a hot
commodity for California’s transportation sector. 24 California’s rapidly
expanding statutes, regulations, and financial incentives have provided grants
to install new farm anaerobic digesters.25 The biogas is reconditioned into
Renewable Compressed Natural Gas (R-CNG) at regional fuel hubs and
transported through newly expanded natural gas pipeline infrastructure to
power natural gas vehicles.26 In addition, fuel-cell technology is converting
biogas into electricity without combustion; the electricity is being used to
power plug-in electric vehicles (PEV), including state vehicle fleets. 27
Updated carbon offset and international GHG cap-and-trade programs also
19. See Catherine Keske, Anaerobic Digestion Technology: How Agricultural Producers and the
Environment Might Profit from Nuisance Lawsuits, 52 NAT. RESOURCES J. 315, 315, 320 (2012)
(explaining that anaerobic digestion systems are built so that microorganisms can break down organic
materials in a closed space where there is no oxygen).
20. See, e.g., CAL. DEP’T OF FOOD & AGRIC., DAIRY DIGESTER RESEARCH AND DEVELOPMENT
PROGRAM: REPORT OF FUNDED PROJECTS (2015-18) 3, 9 (2019) (discussing results of significant
legislative funding for 64 dairy digester projects).
21. Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat. 594, 1068 (codified in relevant part
at 42 U.S.C. § 7545 (2018)).
22. Clean Air Act, 42 U.S.C. § 7545(a) (2018).
23. Energy Independence and Security Act of 2007, 42 U.S.C. ch. 152 (2018).
24. See, e.g., CAL. HEALTH & SAFETY CODE § 38566 (West 2019) (directing the Board to reduce
GHG emissions by 40% below 1990 levels by 2030); Advanced Clean Cars Program, CAL. AIR RES. BD.
(Feb. 8, 2019), https://ww2.arb.ca.gov/resources/fact-sheets/advanced-clean-cars (describing regulations
to control emissions); DDRDP Demonstration Projects, CAL. DEPT. OF FOOD & AGRIC.,
https://www.cdfa.ca.gov/oefi/ddrdp/DemoProject.html (last visited Apr. 29, 2020) (describing grants for
dairy digester projects); California Alternative Energy and Advanced Transportation Financing Authority
(CAEATFA), CAL. STATE TREASURER, https://www.treasurer.ca.gov/caeatfa/ (last visited Apr. 29, 2020)
(describing funding available to assist in reducing GHG emissions).
25. See, e.g., CAL. HEALTH & SAFETY CODE § 38501 (West 2019) (directing CARB to design
emissions reduction measures); DDRDP Demonstration Projects, supra note 24 (describing grants for
dairy digester projects); California Laws and Incentives, supra note 9 (listing available incentives).
26. Natural
Gas
Basics,
U.S.
DEP’T
OF
ENERGY,
https://afdc.energy.gov/fuels/natural_gas_basics.html (last visited Apr. 29, 2020).
27. See generally FUEL CELL TODAY, USING FUEL CELLS IN…CONVERTING WASTE TO ENERGY
(2012) (describing the use of fuel cells to convert biogas to energy for use in electric vehicles).
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support this developing supply chain and infrastructure by creating demand
for methane conversion and GHG emission reduction.28
As the nation’s largest dairy producer and the most populous state,
California is highly motivated to cultivate a cost-effective energy supply
chain for its transportation sector while striving to fulfill its heavily mandated
and regulated GHG targets. 29 However, it is up in the air as to whether
California’s GHG mitigation programs will expand to a scale so that there
are lasting impacts on climate change. It is also unclear whether its
infrastructure will eventually buckle due to federal policy changes and GHG
emission leakages if dairies and other industries relocate to avoid regulation.
The rest of the article is organized as follows: section I discusses the
prevalence of methane GHG emissions from agriculture and the associated
implications for global climate change. Section II summarizes the alignment
of federal and state laws that facilitate renewable fuel generation. Section III
elaborates upon the financial incentives created and explores whether
California’s expanding methane biogas capture supply chain will endure if
the financial incentives taper from this confluence of policies. The
conclusion is that the methane biogas supply chain could be scaled outside
of California to mitigate climate change in the long term, if it is used in
conjunction with other renewable energy sources to displace petroleumbased transportation fuels and methane leakages are effectively mitigated.
I. PREVALENCE OF METHANE GAS EMISSIONS AND IMPACTS ON CLIMATE
CHANGE
In spite of relatively aggressive GHG emission reduction policies and an
overall state decrease in GHG emissions since 2000, California’s annual
methane emissions have headed in the opposite direction. 30 The State’s
methane emissions increased approximately 16% from 2000 to 2017, though
California’s overall GHG emissions declined by 10% over that same
28. See CAL. HEALTH & SAFETY CODE § 38561 (West 2019) (directing CARB to implement
emissions reduction measures); id. § 38562 (extending internationally recognized cap-and-trade system,
effective 2031); INT’L CARBON ACTION P’SHIP, USA—CALIFORNIA CAP-AND-TRADE PROGRAM 1–6
(2020) (describing California’s program, including its interaction with other programs internationally).
29. M. Shahbandeh, Top U.S. States Based on Milk Production 2016 – 2018 (Apr. 3, 2019),
https://www.statista.com/statistics/194968/top-10-us-states-by-milk-production/; Hans Johnson et al.,
California’s
Population,
PUB.
POLICY
INST.
CAL.
(Mar.
2017),
https://www.ppic.org/publication/californias-population/; see also Terence Chea, California Targets
Dairy
Cows
to
Combat
Global
Warming
(Nov.
29,
2016),
https://www.kqed.org/science/1201862/california-targets-dairy-cows-to-combat-global-warming
(describing the dairy industry’s role in combating GHG emissions).
30. CAL. AIR RES. BD., supra note 10, at 1, 3, 15.
2020] Will California Methane Laws Lower Global GHG Emissions? 497
period.31 In contrast, U.S. methane levels decreased by 18.1% between 1990
and 2018.32
California’s increasing methane emissions are attributed to its
bourgeoning dairy industry, which is the state’s largest source of
anthropogenically created methane.33 The California dairy industry doubled
its milk production from 1970 to 1994, 34 and the state now accounts for
approximately 20% of all U.S. milk production. 35 California agriculture
contributes approximately 8% of all state-level GHGs, though emissions
associated with crop production have generally declined since 2000. 36 In
contrast, GHG emissions from dairy manure management and enteric
fermentation increased between 2000 and 2007 as the industry expanded, and
the levels have remained relatively constant from 2007 onward.37 Due to the
overall decline in GHG emissions, dairies now comprise a larger overall
proportion of California’s GHG emissions, accounting for roughly 60% of
the state’s total agricultural emissions.38 Recognizing the significance of the
consistently lingering levels of methane generated by livestock, the
California Legislature enacted Senate Bill 1383, which set a goal of reducing
methane from 2013 levels by 40% by 2030.39
Reducing anthropogenic methane is critical for climate change
mitigation. Methane presents a relatively high radiative heating effect per
molecule and per unit mass relative to CO2 over a relatively short (20 to100
years) time horizon, earning it the description as a “short-lived climate
pollutant.”40 Though estimates range upon the scientific study methodology
and assumptions used, it’s generally accepted that methane provides
approximately 28–36 times the Global Warming Potential (GWP) of CO2
during a 100-year time horizon and 84–87 times the GWP of CO2 over a 20-
31. Id. at 15.
32. Greenhouse Gas Inventory Data Explorer, U.S. ENVTL. PROT. AGENCY,
https://cfpub.epa.gov/ghgdata/inventoryexplorer/#allsectors/allgas/gas/all (last visited Apr. 29, 2020).
33. CAL. AIR RES. BD., supra note 10, at 15.
34. L.J. BUTLER, MAINTAINING THE COMPETITIVE EDGE IN CALIFORNIA’S DAIRY INDUSTRY PART
II—CHALLENGES AND OPPORTUNITIES iii (1994).
35. WILLIAM A. MATTHEWS & DANIEL A. SUMNER, UNIV. OF CAL., CONTRIBUTIONS OF THE
CALIFORNIA DAIRY INDUSTRY TO THE CALIFORNIA ECONOMY IN 2018: A REPORT FOR THE CALIFORNIA
MILK ADVISORY BOARD ES-1 (2019).
36. CAL. AIR RES. BD., supra note 10, at 15.
37. Id.
38. Id.
39. S.B. 1383, 2015-2016 Reg. Sess. (Cal. 2016) (enacted) (requiring adoption of regulations to
reduce methane emissions from livestock manure); CAL HEALTH & SAFETY CODE §§ 39730.5, 39730.7
(West 2016).
40. S.B. 1383, 2015-2016 Reg. Sess. (Cal. 2016); see generally L.D. Danny Harvey, A Guide to
Global Warming Potentials (GWPs), 21 ENERGY POL’Y, 24 (1993) (describing methane as a GHG).
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year time horizon. 41 Methane also interacts with other GHGs to create
additive impacts depending upon how much is released, how long it remains,
and how strongly the gas affects the atmosphere.42 Methane is a precursor to
ozone, another GHG.43 Eventually, methane oxidizes into CO2, in which case
it may remain in the atmosphere for hundreds of years and its atmospheric
concentrations may persist for thousands of years.44
Avoiding methane generation altogether is a preferred strategy to
converting it into CO2. 45 However, transforming methane into CO2 is an
opportunistic strategy to reduce GWP and climate change over a “short term”
100-year interval, when methane is clearly a potent GHG. Moreover,
methane transformation may combat long-term climate change if the
transformed methane displaces fossil-fuel sources for a net decrease in
overall CO2 emissions (essentially “foregone CO2 emissions”). In sum, if
biogas methane is transformed into energy in lieu of petroleum-based fuels
without creating additional leakages, there may be a cumulative reduction in
GHG emissions. Reductions may occur in both the agriculture and
transportation sectors, where the conditioned biogas can fuel natural gas and
electric vehicles. Section II summarizes how U.S. laws and policies align to
effectuate this scenario.
II. THE ENERGY INDEPENDENCE AND SECURITY ACT OF 2007 (EISA)46 AND
CALIFORNIA LAWS FACILITATE THE USE OF DAIRY METHANE BIOGAS IN
THE TRANSPORTATION SECTOR
Biogas generated from methane digesters may be counted as renewable
fuel under the national RFS2 program promulgated by EISA, which has been
in effect since 2007. 47 EISA requires that transportation fuel sold or
41. Understanding Global Warming Potentials, U.S. ENVTL. PROT. AGENCY,
https://www.epa.gov/ghgemissions/understanding-global-warming-potentials (last updated Feb. 14,
2017).
42. See Ivar S. A. Isaksen et al., Atmospheric Ozone and Methane in a Changing Climate, 5
ATMOSPHERE 518, 518, 520, 530 (2014) (showing “climate-chemistry interactions” between methane,
ozone, and nitrous oxides).
43. Understanding Global Warming Potentials, supra note 41.
44. Id.; L.D. Danny Harvey, supra note 40, at 28.
45. See Annika Carlsson-Kanyama & Alejandro D. González, Potential Contributions of Food
Consumption Patterns to Climate Change, 85 AM. J. CLINICAL NUTRITION 1704, 1706 (2009)
(demonstrating that minimizing agriculture-based methane in food production has given rise to food
movements calling for low to zero meat and dairy consumption).
46. Energy Independence and Security Act of 2007, 42 U.S.C. ch. 152 (2018).
47. 42 U.S.C. § 7545(o) (2018); id. § 17021; see also KELSI BRACMORT, CONG. RESEARCH SERV.,
R44045, THE RENEWABLE FUEL STANDARD (RFS): WAIVER AUTHORITY AND MODIFICATION OF
VOLUMES 1 n.2 (2019) (“P.L. 109–58 (Title XV, Subtitle A, Section 1501) established the RFS under
Clear Air Act Section 211(o); P.L. 110–140 expanded the RFS partly with the requirement of larger annual
volumes and the addition of greenhouse gas accounting requirements, among other things.”).
2020] Will California Methane Laws Lower Global GHG Emissions? 499
introduced into commerce in the United States on an annual average basis
contains a specified amount of renewable fuel.48 All replacement renewable
fuels require reductions in “lifecycle GHG emissions” compared to gasoline
or diesel fuel sold or distributed in 2005. 49 Assessing lifecycle GHG
emissions involves a scientifically rigorous assessment of the aggregate
direct and indirect emissions (e.g. land use changes) at all stages of fuel and
feedstock production and distribution.50 The GHG mass values are adjusted
for comparative GWP. 51 Setting mandatory lifecycle GHG emission
reduction thresholds compared to average petroleum fuels used in 2005 for
four renewable fuel categories facilitates the transition to lower CI, nonpetroleum based alternative fuels, and chiefly towards advanced and
cellulosic (non-cornstarch ethanol) technology. 52 RFS2 ratchets up the
federally required increases in renewable fuel volumes, from nine billion
gallons in 2008 to 36 billion gallons in 2022, for the four renewable fuel
categories, with D-3 Cellulosic Biofuel targets comprising the largest
proportion of the four.53 The RFS2 requires that volumes for D-3 Cellulosic
Biofuels incrementally increase over time through 2022, at which point the
EPA will revisit them.54
Methane biogas produced from organic matter qualifies as a D-3
Cellulosic Biofuel and reflects an 80% reduction in lifecycle GHG emissions
compared to petroleum-based fuels.55 However, calculating the supply and
demand for renewable fuels for RFS2 compliance is highly nuanced and
dynamic. Due in part to historically deficient supplies of D-3 Cellulosic
48. 42 U.S.C. 7545(o)(2) (2018).
49. See id. § 17022 (requiring the Secretary to award grants “for advanced biofuels with the
greatest reduction in lifecycle greenhouse gas emissions compared to the comparable motor vehicle fuel
lifecycle emissions during calendar year 2005”).
50. PANKAJ BHATLA ET AL., WORLD RES. INST., GREENHOUSE GAS PROTOCOL: PRODUCT LIFE
CYCLE ACCOUNTING AND REPORTING STANDARD 72–73 (2011); see generally OFFICE OF TRANSP. & AIR
QUALITY, ENVTL. PROT. AGENCY, EPA-420-F-09-024, EPA LIFECYCLE ANALYSIS OF GREENHOUSE GAS
EMISSIONS FROM RENEWABLE FUELS (2009) (discussing EPA’s lifecycle GHG emission calculation
protocol).
51. See BHATLA ET AL., supra note 50, at 85 (discussing appropriate steps for companies to
calculate lifecycle GHG emissions, including applying a GWP to emissions data).
52. See 42 U.S.C. § 7545(o)(1)(C) (2018) (defining baseline lifecycle GHG emissions as that of
gasoline or diesel sold as fuel in 2005); see generally STEFAN UNNASCH, LIFE CYCLE ASSOCS., GHG
EMISSIONS REDUCTIONS DUE TO THE RFS2: A 2018 UPDATE (2019) (describing the effect of RSF2’s
lifecycle GHG emissions reductions).
53. 42 U.S.C § 7545 (o)(2)(B)(i); 40 C.F.R. § 80.1425(g)(1) (2019) (designating cellulosic biofuel
as D-3 for Renewable Identification Numbers).
54. See 42 U.S.C § 7545 (o)(2)(B)(i)(III) (mandating the incremental increase of cellulosic
biofuels through 2022).
55. MATTHEN TOMICH & MARIANNE MINTZ, COW POWER: A CASE STUDY OF RENEWABLE
COMPRESSED NATURAL GAS AS A TRANSPORTATION FUEL 1, 8 (2017).
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Biofuel, the values are subject to annual supplemental notices of EPA
rulemaking, as well as periodic exemptions, such as small refineries.56
Clearly, there is room to improve methane biogas collection practices to
meet the D-3 Cellulosic Biofuel mandates and to reduce GWP. In California,
the state’s legal infrastructures mandating GHG57 and methane reduction58
combined with CARB’s regulatory oversight over the transportation sector
improve methane biogas collection. 59
III. WILL CALIFORNIA REDUCE ITS METHANE EMISSIONS BY INNOVATION
OR EVACUATION?
The fragile web of federal and California state laws surrounding the use
of dairy biogas creates uncertainty about whether California will reduce
methane emissions 60 through innovation or evacuation. Will California’s
rapidly evolving practices to convert methane from dairy biogas to displace
petroleum-based vehicles remain financially viable if the EPA significantly
reduces RFS2-mandated volumes after 2022?61 What will happen if federal
laws limit California’s authority to enact more rigorous state air quality and
emissions rules than federal standards? 62 Will dairies eventually relocate
outside of California where there are less stringent state regulations leading
to methane leakages and increased global methane emissions? Or, will
anaerobic digesters generate enough revenue to encourage dairies to remain
in the state and add more dairy cows? Understanding this conundrum requires
additional discussion of the current federal and state financial incentives to
produce dairy biogas.
56. See 42 U.S.C. § 7545(o)(9) (providing small refiner exemption); BRACMORT, supra note 47,
at 4–5 (describing cellulosic biofuel waivers); KELSEY BRACMORT, CONG. RES. SERV., R43325, THE
RENEWABLE FUEL STANDARD (RFS): AN OVERVIEW 1 (2020) (noting a historic lack of cellulosic biofuel
production causing difficulty in meeting total volume requirement); Overview for Renewable Fuel
Standard,
U.S.
ENVTL.
PROT.
AGENCY,
https://www.epa.gov/renewable-fuel-standardprogram/overview-renewable-fuel-standard (last updated June 7, 2017) (noting additional flexibility for
cellulosic biofuel standard).
57. CAL. HEALTH & SAFETY CODE § 38566 (West 2019).
58. CAL. HEALTH & SAFETY CODE § 39730.5 (West 2019).
59. See CAL. HEALTH & SAFETY CODE § 38510 (West 2019) (charging CARB with monitoring
and regulating GHG emissions sources); see generally CAL. AIR RES. BD, supra note 10 (providing
overview of CARB’s management of the transportation sector).
60. See, e.g., CAL. HEALTH & SAFETY CODE § 39730.5(a) (West 2019) (setting goal to reduce state
methane emissions by 40% from 2013 levels by 2030).
61. BRACMORT, supra note 47, at 1.
62. See 49 C.F.R. §§ 531.7, 533.7 (2019) (demonstrating that this would repeal California’s waiver
to create more rigorous state air emissions standards than the federal standards for vehicles, including fuel
efficiency). Though California and other states have filed lawsuits to challenge the ruling, this exemplifies
the federal tensions with California, who exercises its discretion to enact state laws and regulations that
address climate change and that are more rigorous than federal standards. Ostensibly, federal restrictions
on California’s autonomy may continue and erode CARB’s regulatory authority.
2020] Will California Methane Laws Lower Global GHG Emissions? 501
Under RFS2, the EPA announces annual renewable fuel percentage
standards that are used to calculate the number of gallons each Obligated
Party (OP) must blend into their fuel every year.63 Renewable Identification
Numbers (RIN) demonstrate compliance.64 One RIN is roughly equal to one
gallon of ethanol. 65 Notably, the EPA requires OPs to demonstrate both
feedstock (supply) and transportation (end-use demand) to generate a RIN.66
On the demand side, OPs have a Renewable Volume Obligation (RVO)
to purchase renewable biofuels.67 In 2020, D-3 Cellulosic RVO increased to
540 million RIN, 29% higher than the 2019 RVO.68 Supplies, however, are
expected to fall considerably short of meeting the demand, as has historically
been the case.69 Because meeting the D-3 Cellulosic Renewable Fuel volume
demand has been consistently difficult due to inadequate supply, Congress
gives the EPA Administrator waiver authority to adjust the renewable fuel
volumes. 70 This is an option that the EPA Administrator has consistently
exercised.71 Waivers provide the OP with formulaically derived Cellulosic
Waiver Credits (CWC)72 that can be nested and combined with RINs from
other biofuel categories,73 creating a highly lucrative fuel portfolio for the
OP.
63. 42 U.S.C § 7545(o)(3)(B) (2018).
64. See 40 C.F.R. § 80.1127(a) (2019) (requiring obligated parties to demonstrate ownership of
sufficient, time-limited RINs to meet the Renewable Volume Obligation for the compliance period).
65. See id. § 80.1106(b) (2019) (requiring obligated parties to demonstrate satisfaction of the
Renewable Volume Obligation for the compliance period).
66. Id. §§ 80.1106(b), 80.1107.
67. See id. § 80.1106(b) (2019) (requiring obligated parties to demonstrate satisfaction of the
Renewable Volume Obligation for the compliance period); COVINGTON & BURLING LLP, AN ANALYSIS
OF THE RENEWABLE FUEL STANDARD’S RIN MARKET 5–6 (2019).
68. Proposed Volume Standards for 2020, and the Biomass-Based Diesel Volume for 2021, U.S.
ENVTL. PROT. AGENCY, https://www.epa.gov/renewable-fuel-standard-program/proposed-volumestandards-2020-and-biomass-based-diesel-volume-2021 (last updated Sept. 12, 2019).
69. See Proposed Volumes for 2020 and Biomass-Based Diesel Volume for 2021: Supplemental
Notice, U.S. ENVTL. PROT. AGENCY, https://www.epa.gov/renewable-fuel-standard-program/proposedvolumes-2020-and-biomass-based-diesel-volume-2021 (last updated Nov. 7, 2019) (reviewing how
RVOs are being calculated).
70. See 42 U.S.C § 7545 (o)(7)(D) (2018) (establishing procedures for the Administrator to reduce
the minimum volume requirements for cellulosic biofuel based on supply estimates).
71. U.S. ENVTL. PROT. AGENCY, CELLULOSIC WAIVER CREDIT PRICE CALCULATION FOR 2019 1
(2018) (“For any calendar year for which the projected volume of cellulosic biofuel production is less
than the applicable volume of cellulosic biofuel set forth in Clean Air Act (CAA) section
211(o)(2)(B)(III), EPA must reduce the required volume of cellulosic biofuel for that year to the projected
volume, and must provide obligated parties the opportunity to purchase cellulosic waiver credits (CWC).
The price of these credits is determined using a formula specified in the CAA.”); BRACMORT supra note
47, at 5–6.
72. Id. at 5.
73. 42 U.S.C. § 7545(o)(1)(B) (2018); BRACMORT, supra note 47, at 5.
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Additional state financial incentives are available through California
Low Carbon Fuel Standard (LCFS)74 credits,75 which count additional GHG
emission reductions if both the supply source and the user are in California.
For example, dairies may convert methane into electricity for on-farm use to
cool and store milk.76 This situation provides farmers with electricity cost
savings and LCFS credits. 77 In another example, nitrous oxide emissions
(NOx), which have approximately 265-298 times greater GWP compared to
CO2 over a 100-year period,78 can be reduced 90% when dairy biogas is used
to offset petroleum-based fuels in California’s transportation sector.79 Biogas
converted into electricity to power vehicles does not qualify for federal RIN,
but California LCFS incentives still apply.80
This nexus of federal and state incentives has created several emergent
supply chain processes for supplying reconditioned dairy biogas to the
transportation sector.81 Biogas may be treated at regional facilities that serve
multiple anerobic digesters and farms, collected, and injected into the natural
gas grid for R-CNG transportation filling stations.82 The reconditioned gas
may also be exported outside the state as liquified natural gas (LNG). 83
Alternatively, the methane captured by the digesters may be converted into
electricity by fuel cells connected to the electrical grid and purchased by
electric vehicle (EV) charging stations to power EVs, for virtually GHG-free
fuel.84
74. As part of its Scoping Plan, CARB identified the Low Carbon Fuel Standard as an early action
to reduce GHG emissions. Low Carbon Fuel Standard, CAL. AIR RES. BD., https://ww2.arb.ca.gov/ourwork/programs/low-carbon-fuel-standard/about (last visited Apr. 28, 2020). The Low-Carbon Fuel
Standard (LCFS) is a key AB 32 measure and part of a portfolio of evolving GHG policies in California
over the past decade. Id.
75. Id.
76. Lydia Noyes, Using Methane Power on a Dairy Farm (Oct. 2018)
https://www.motherearthnews.com/renewable-energy/other-renewables/using-methane-power-on-dairyfarm-zm0z18onzsphe.
77. PYE RUSSELL ET AL., RENEWABLE NATURAL GAS: THE RNG OPPORTUNITY FOR NATURAL
GAS UTILITIES 1–3, 5 (2017).
78. Understanding Global Warming Potentials, U.S. ENVTL. PROT. AGENCY,
https://www.epa.gov/ghgemissions/understanding-global-warming-potentials (last updated Feb. 14,
2017).
79. RUSSELL ET AL., supra note 77, at 15.
80. Letter from Robert E. Cleaves IV, President & CEO, Biomass Power Ass’n, to Hon. Andrew
R. Wheeler, Acting Adm’r, U.S. Envtl. Prot. Agency (Oct. 24, 2018).
81. See MARGARET SMITH & JOHN GONZALEZ, U.S. DEP’T OF ENERGY, COSTS ASSOCIATED WITH
COMPRESSED NATURAL GAS VEHICLE FUELING INFRASTRUCTURE 2, 9 (2014) (highlighting different
methods of supplying natural gas to the transportation sector).
82. See
Renewable
Natural
Gas
Production,
U.S.
DEP’T
OF
ENERGY,
https://afdc.energy.gov/fuels/natural_gas_renewable.html (last visited May 2, 2020) (explaining how
biogas can be refined for use as a source of fuel).
83. Id.
84. See Michael J. McAnulty et al., Electricity from Methane by Reversing Methanogenesis, NAT.
COMM., May 2017, at 1, 2–4.
2020] Will California Methane Laws Lower Global GHG Emissions? 503
These complex and evolving initiatives are rapidly expanding
California’s infrastructure and demand for biogas-generated renewable
fuels. 85 This has prompted many dairy farmers to rely on consultants to
determine how they can maximize their financial benefits by facilitating
GHG reduction while ensuring they remain compliant with legal and
regulatory standards.86 On one hand, this infrastructure creates an efficient
mechanism for dairy methane gas capture in California. This is an issue with
which the state has struggled87 and has global implications for climate change
mitigation.
However, this emergent dairy biogas supply infrastructure also creates
perverse incentives for farmers to raise more dairy cows. This would allow
farmers to generate more methane and thus more revenue. Will the dairy
industry continue to grow in California? It may if: (1) the RFS2 volumes for
D-3 Cellulosic Biofuels are not impinged upon following the 2022 Reset; (2)
RFS2 federal financial incentives continue; and (3) California continues to
provide policy and financial incentives to offset petroleum-based fuels in its
transportation sector. The third will be predicated upon whether California’s
authority to implement more rigorous regulations of GHG emission
reductions is upheld, though it will add an additional layer of complexity and
uncertainty for the dairy industry.
In the face of considerable legal and regulatory uncertainty, there is
concern that dairies, particularly small ones, may relocate outside of
California where methane regulation is less stringent, and water is of greater
abundance. 88 The “evacuation” of dairies outside of California would
presumably generate methane leakages unless Congress extends the Clean
Air Act to include GHG emissions such as methane. In this case, other states
could replicate California’s model.
In sum, California’s emerging system of capturing dairy biogas to reduce
transportation sector fossil fuels is critically important to lowering the state’s
level of methane and overall GHG emissions. However, it remains unknown
whether California’s innovative practices that have spurned technological
85. See Christopher Yang et al., Meeting an 80% Reduction in Greenhouse Gas Emissions from
Transportation by 2050: A Case Study in California, 14 TRANSP. RES. PART D 147, 151–52 (2009)
(showing how improvements in efficiency and increased reliance on alternative fuels can reduce
transportation emissions); CAL. DAIRY CAMPAIGN, ECONOMIC FEASIBILITY OF DAIRY DIGESTER
CLUSTERS IN CALIFORNIA: A CASE STUDY 11–15, 25 (2013) (discussing state laws and regulations
supporting the development of dairy digesters and biogas projects).
86. See, e.g., Dairies, CAL. BIOENERGY, https://calbioenergy.com/dairies/ (describing how one
company helps dairies develop and finance biogas projects) (last visited Mar. 28, 2020).
87. See CAL. AIR RES. BD., supra note 10 at 15 (describing the trends in dairy GHG emissions
between 2000 and 2017).
88. Adam Ashton & Andrew Sheeler, Turning Poop into Power: California Dairies Appeal for
More State Climate Change Money (May 29, 2019),
https://www.fresnobee.com/news/business/agriculture/article230869984.html.
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innovation can be replicated elsewhere in a cost-effective manner. This is
critical in facilitating global climate change mitigation.
CONCLUSION
In conclusion, there is indeed potential for dairy methane biogas capture
to have a tractable impact on GHG and climate change mitigation. For
California’s methane reduction policies to reduce GHG emissions that
contribute to global climate change, the GHG emission reduction efficiencies
between the state’s agriculture and transportation sectors must expand in
California and replicate elsewhere in a cost-effective manner. Otherwise,
leakages will raise GHG levels nationally and internationally as industries
relocate outside of California, seeking lighter regulations.89
Using dairy methane biogas as a D-3 Cellulosic Biofuel has shown to
effectuate a net reduction in lifecycle GHGs emissions,90 though the adoption
of these practices on a larger scale relies upon the expanded use of EV and
R-CNG vehicles. 91 Demand from states like California, with large
governmental vehicle fleets, may drive the development of EV charging
infrastructure, which has been significantly and positively correlated with EV
adoption. 92 The expanded infrastructure necessary to support government
fleets may propel private sector EV demand. 93 However, until the EV
charging infrastructure matures, it will also be important for the State to
continue providing financial incentives94 both to grow EV infrastructure and
demand and support R-CNG vehicles. Moreover, though reconditioned
biogas provides one source of renewable biofuel, energy generation from
non-fossil fuel technology (e.g. solar energy) is paramount for EVs to have
larger scale GHG emission reductions that will affect global climate
change.95
Though multiple, diverse sources of renewable energy are necessary to
grow and support the emerging infrastructure for EVs, cultivating
California’s agriculture-based methane emissions is a significant step in
89. Thomas D. Peterson & Adam Z. Rose, Reducing Conflicts Between Climate Policy and Energy
Policy in the US: The Important Role of the States, 34 ENERGY POL’Y 619, 620 (2006).
90. OFFICE OF TRANSP. & AIR QUALITY, supra note 50, at 2 (2009); TOMICH & MINTZ, supra note
55, at 1, 17.
91. AMY MYERS JAFFE, THE FEASIBILITY OF RENEWABLE NATURAL GAS AS A LARGE-SCALE,
LOW CARBON SUBSTITUTE CONTRACT NO. 13-307 1, 4 (2016).
92. William Sierzchula et al., The Influence of Financial Incentives and Other Socio-Economic
Factors on Electric Vehicle Adoption, 68 ENERGY POL’Y 183, 184 (2014).
93. Id. at 184, 192.
94. U.S. DEP’T OF ENERGY, supra note 9.
95. Life Cycle Assessment Harmonization, NAT’L RENEWABLE ENERGY LAB.,
https://www.nrel.gov/analysis/life-cycle-assessment.html (last visited May 2, 2020).
2020] Will California Methane Laws Lower Global GHG Emissions? 505
expanding renewable biofuel technologies that will reduce GHG emissions
and mitigate global climate change. As California’s supply chain model for
R-CNG and EVs matures and becomes increasingly efficient, other states and
countries may adopt a similar supply chain infrastructure for biogas capture
and EVs. This may be true particularly if it becomes cost-effective to do so.
California, an early adopter of EV infrastructure, shoulders the innovation
costs and may leverage its market power to reduce costs so that technology
may be replicated elsewhere. 96 For some time, small-scale anaerobic
digesters have demonstrated to be economically feasible at the farm level.97
Moreover, advancements in the use of biogas as a renewable fuel for
transportation may enhance economic feasibility. It will be interesting to see
whether this remains the case after the federal RFS2 volumes are reset in
2022.
The problem of anthropogenic climate change requires more resources
and attention than strictly manure management. Methane biogas capture,
however, is a good place to begin. Technological innovations that reduce
environmental impacts and create efficiencies through a systems approach
may simultaneously drive economic development and mitigate GHG
emissions.98 Small improvements in these innovations add up.
96. See NEXT 10, POWERING INNOVATION: CALIFORNIA IS LEADING THE SHIFT TO ELECTRIC
VEHICLES FROM R&D TO EARLY ADOPTION 4-5, 26 (2011) (explaining California’s role in the adoption
of EV technologies). It is well established that California is known as being a hub for innovation, and that
its market power facilitates adoption of these innovations elsewhere.
97. KESKE, supra note 19, at 315.
98. Another hypothetical example is capturing CO2 emissions at the smokestack, transporting, and
injecting the emissions into the ground. See José D., Figueroa et al., Advances in CO2 Capture
Technology—the US Department of Energy's Carbon Sequestration Program, 2 INT’L J. GREENHOUSE
GAS CONTROL 9, 9-10 (2008) (identifying new technologies associated with injecting CO2 into the
ground).