EPA Testimony of K.K. DuVivier Denver, Colorado July 29, 

2014 

Good evening. My name is K.K. DuVivier. I am wearing my hardhat tonight to represent my dual 

perspectives on the issues before us all. 

First, I am an energy geek and expert. I am a tenured full professor of law at the University of 

Denver Sturm College of Law. My research expertize is in Energy Law. Before law school and practice as 

a natural resources attorney, I was, by profession, a field geologist. In my case, once a geologist, always 

a geologist, so I was delighted to be a participant in the Colorado School of Mines Energy and Minerals 

Field Institute last summer where I received this hard hat and had the opportunity to visit both the Craig 

mine-mouth coal plant and the Bowie underground longwall coal mine. 

However, I'm also coming today as a mother who saw her child need an inhaler for asthma 

because we lived close to a coal-fired power plant when she was growing up, and as a soon-to-be 

grandmother who wants something better for the next generation. 

I have authored numerous articles on energy law issues and a book called The Renewable 

Energy Reader, published by Carolina Academic Press in 2011. I have a second Energy Law text due next 

year to my publisher, Lexis Nexis. I try to keep an objective focus in my work, but in my research, I 

couldn't help but notice that fossil fuels have over time enjoyed, and continue to enjoy, an unfair 

advantage over renewables in the form of entrenched advantages, subsidies, and most relevant here, 

avoidance of externalities. Shifting the cost of detrimental externalities, such as carbon and other 

emissions, away from those who produce them distorts the market and stalls the development of 

cleaner alternatives. 

The genius of the industrial revolution was to convert fossilized solar power into current 

productive power, thus many times leveraging the work potential of a single human or animal. Fossil 

fuels have contributed great benefit to promote civilization, but civilization is also paying the price for 

giving fossil fuels a free ride on the pollution and emissions they have created. A few of the most telling 

things to me in the EPA's proposed rule (which I actually had to read because I am a law professor) were 

Tables 1 and 2. These tables (attached) showed that the net monetized benefits of the Proposed 

Guidelines Regional Compliance Approach were $28 to $49 Billion by 2020 and $48 to $82 Billion by 

2030. Alternatively, the net monetized benefits for the Proposed Guidelines State Compliance Approach 

were $27 to $50 Billion by 2020 and $49 to $84 Billion by 2030. Furthermore, these figures did not 

include benefits that EPA said it could not monetize like ecosystem effects and visibility impairment. 

Consequently, I strongly support the EPA's Clean Air Act (CAA) section 111(d) Clean Power Plan 

because it will require America for the first time to address, at least to some degree, the true cost of our 

love affair with carbon-based energy and its impact on the world's climate and its peoples. 

Specifically, the EPA's Clean Power Plan is an excellent solution first, because it is based on 

reasonable approaches through its 4 building blocks: 

(1) Making improvements to our aging fleet of coal-fired generating plants that date back to the 

1970s or before; 
EPA Testimony of K.K. DuVivier Denver, Colorado July 29, 2014 Page 2 

(2) Substituting generation from more carbon-intensive Energy Generating Units with less 

carbon-intensive EGUs (such as NGCC); 

(3) Expanding generation from low or zero carbon emission sources; and 

(4) Expanding demand-side energy efficiency programs. 

Second, the Plan has achievable goals. The EPA conducted extensive information gathering 

before proposing this rule. The CAA requires that the standard be based on Best Systems of Emission 

Reduction (BSERs). Furthermore, as opposed to section 110 standards, which reflect scientific 

achievability but not cost, these section 111(d) plans consider other factors including cost and technical 

feasibility. Thus the goals and guidelines EPA has set in this rule are conservative, scientifically-based, 

and reasonable. 

Third, the Plan is an excellent solution because it structures this rule so that EPA partners with 

the states and allows each state flexibility to customize its plan to the specific energy, environmental, 

and economic needs of its citizens. While some states may have better renewable energy resources than 

others, National Renewable Energy Laboratory maps show that every state has potential to meet 

significant portions of its electricity needs, and energy efficiency is something that is available to all. 

Therefore, I want to thank the panel again for listening to us tonight, and in conclusion, I would 

like to urge the EPA not to compromise or water down this proposed rule. Instead, based on my 

expertise, I would recommend implementing it as proposed. The cost of waiting any longer to address 

the problem of carbon pollution is just too high. Thank you. 
K.K. DuVivier 

•;4.0,1-4r1‘.,- 
The Renewable Energy Reader is a concise, reader-friendly sourcebook for U.S. 

renewable energy law. Each chapter provides historical background as well as 

illustrations and technology charts to give readers context for better 

understanding renewable energy sources and related legal issues. Each chapter 

also includes closely-edited excerpts from some of the most prominent primary 

and secondary legal sources —articles, cases, statutes, and regulations—

highlighting current and potential legal challenges to the advancement of 

renewable resources. The book provides an accessible reference for lawyers, law 

students, policy-makers, and the general public, providing an overview of the 

significant legal implications of renewable energy development. 

K.K. DuVivier is a professor of law at the University of Denver Sturm College of 

Law. She worked as a geologist before law school and, prior to entering 

academia, practiced law in the natural resource area for eight years, first at the 

national law firms of Arnold & Porter and Sherman & Howard and then as an 

Assistant City Attorney in the land use department for the City and County of 

Denver. In developing The Renewable Energy Reader, Professor DuVivier visited 

renewable energy facilities across the country and collaborated closely with 

renewable energy experts, including several from the National Renewable 

Energy Laboratory (NREL), a 32-year leader in renewable energy research and 

development. 

ISBN 978-1 59460-873-5 

608735 

Cover photo (0 James Steiellgotolta 

cc1 2), 

Table t—Summary of the Monetized Benefits, Compliance Costs, and Net 

Benefits for the Proposed Guidelines in 2020 aBack to Top 

3% Discount rate 7% Discount 

rate 

Proposed Guidelines 

Regional Compliance 

Approach 

Climate benefitsL $17. 

Air pollution health co- 516 to 537 515 to 

benefits' $34. 

Total Compliance $5,5 $5.5. 
costs' 

Net Monetized $28 to $49 $26 to 

Benefits' $45. 

Non-monetized Direct exposure to 50 2 and NO 

Benefits 2. 1.3 tons of Hg. Ecosystem 

Effects. Visibility impairment_ 

Proposed Guide ines 

State Compliance 

Approach 

Climate benefitst) $18 

Air pollution nealth co- $17 to $40 $15 to 
Air pollution health co- $17 to $40 $15 to 

benefits' $36. 

Total Compliance $7.5 $7.5. 

Costsd 

Net Monetized $27 to $50 $26 to 

Benefits' $46. 

Non-monetized Direct exposure to SO 2 and NO 

Benefits 2. 1.5 tons. Ecosystem effects. 

Visibility impairment. 

[Billions of 2011$/ 
Table 2—Summary of the Monetized Benefits, Compliance Costs, and Net 

Benefits for the Proposed Guidelines in 2030 aBack to Top 

% Discount rate 7% 

Discount 

rate 

Proposed Guidelines 

Regional Compliance 

Approach 

Climate benefitsb $30. 

Air pollution health $25 to $59 $23 to 

co-benefitsc $54. 

Total Compliance $7.3 $7.3. 

Costsd 
Net Monetized $48 to $82 $46 to 

Benefits' $77. 

Non-monetized Direct exposure to SO 7 and NO 2. 

Benefits 1.7 tons of Hg and 580 tons of 

HCI. Ecosystem Effects. Visibility 

impairment. 

Proposed Guidelines 

State Compliance 

Approach 

Climate benefitsb $31. 

Air pollution iealth $27 to $62 $24 to 

co-benefits' $56. 

Total Compliance $8.8 $8.8. 

Costsd 
Net Monetized $49 to $84 $46 to 

Benefits' $79. 

Non-monetized Direct exposure to SO 2 and NO 2. 

Benefits 2.1 tons of Hg and 590 tons of 

HCI. Ecosystem effects. Visibility 

impairment. 

[Billions of 2071$]