At a time when our governors and our President were preparing to address their constituents, CLF was (and is) making news – news that raises a series of enduring questions: In our country, where is the line between federal and state authority? How clear is it? Who gets to draw it? Why would you draw it in one place instead of another?

These questions are so challenging because they are so fundamental; Americans have wrestled with these same questions for over 200 years. You’ll recall that our first national government, under the Articles of Confederation, was too weak to do the job. The Constitution granted greater power to the national government, but had to be balanced by the Bill of Rights, securing the rights of individuals and of states. The rest of our efforts to get the federal/state balance right has been marked by long periods of contentious negotiation and flashbulb moments of fractious history –national banking, secession and the Civil War, the busting of industrial trusts, the New Deal, and civil rights for all.

Protecting our health and our environment has been a part of the national and regional negotiations for decades. Recent events have provoked further discussion.

By the 1960’s and ‘70’s, when Congress began to address environmental protection and energy in a serious way, its constitutional authority to do so was relatively clear. It exercised that authority boldly, for the great benefit of generations of people and other species. However, as in much of our federalist system, there’s still a sharing of power between national and state governments, both by design and by default. The zone between federal and state authority is sometimes gray. It’s in that messy, gray area that many of our most controversial environmental issues are being debated.

These debates continue to this day. Take two of CLF’s hot issues recently in the news: Vermont Yankee and Cape Cod nitrogen pollution.

Vermont Yankee

The first is the adverse federal court decision CLF (and the State of Vermont) received on Vermont Yankee, the aging nuclear power plant in Vernon, VT. The decision affirmed the Nuclear Regulatory Commission’s broad authority over safety issues relating to nukes. It  preempted a role for states and handed a major victory to Entergy Corporation.

However, as Anthony Iarrapino points out in this blog post, the fight is far from over. There is a clear role for states in shaping our energy future; in the absence of federal action, states are leading the effort in promoting a clean energy future. Furthermore, as Anthony pointed out in his post, the court said:

“This Court’s decision is based solely upon the relevant admissible facts and the governing law in this case, and it does not purport to resolve or pass judgment on the debate regarding the advantages or disadvantages of nuclear power generation, or its location in this state. Nor does it purport to define or restrict the State’s ability to decline to renew a certificate of public good on any ground not preempted or not violative of federal law, to dictate how a state should choose to allocate its power among the branches of its government, or pass judgment on its choices. The Court has avoided addressing questions of state law and the scope of a state’s regulatory authority that are unnecessary to the resolution of the federal claims presented here.”

Even in the highly “federalized” area of nuclear power there is an undeniable role for states.

Cape Cod

The second is a settlement in principle of our litigation to clean up pollution from sewage on Cape Cod. This is a great step forward – one that  has attracted the focused attention of anti-environmentalists in Congress, as this article attests.

They preposterously allege collusion between environmentalists and the EPA in cases like this to expand federal jurisdiction beyond what Congress authorized in the Clean Water Act, thereby trumping state authority.  However, the federal/state line under the Clean Water Act is about as blurry as they come, in part because the facts relating to pollution and its impacts are extremely complex. As in all cases, the facts matter. Careful, dispassionate assessment of the scientific facts about discharges and pollution, and how the law applies to those facts – not political grandstanding by Members of Congress – is what’s necessary to achieve the visionary goal Congress as a whole committed to decades ago: the elimination of polluting discharges to United States waters, by 1985! It’s time we lived up to that commitment.

There is opportunity in messy, gray areas like the shifting federal/state interface: we can go forward or backward. That is, we can develop sensible allocations of authority between federal and state governments to achieve the public goals behind all of these public initiatives – a healthy environment and a healthy economy, or we can descend into politically motivated mudslinging that obscures the real issues and thwarts real progress.

At CLF we are committed to rational, fact-based discussion of the issues, and prudent forward motion that yields a thriving New England, for generations to come and for all. We know this terrain well. You can count on us to keep working it.

Working with Americans for a Clean Energy Grid and the New England Clean Energy Council we here at the Conservation Law Foundation had the privilege to co-sponsor the New England Clean Energy Transmission Summit.  We were overwhelmed by the massive turnout and tremendous interest from the general press as well as trade press (subscription required).

I will write more about the event in later posts but we wanted to get out into the world the videos of two of the keynote speeches.

Our informative and inspiring lunch speaker was Rep. Ed Markey (D-Malden MA), the Ranking Democratic Member of the House Natural Resources Committee and Senior Member of the Energy and Commerce Committee. The whole video is well worth watching and features some powerful comments about climate, the state of politics and reasons for both fear and hope.

The last panel featured a video message from Bill McKibben who was unable to follow through on his plans to come and speak because of his need to be in Washington to lead efforts to “blow the whistle on Big Oil” and how dirty energy was cheating in Congress.  But give him a listen to understand where he was and the essential imperative facing our energy system, environment, nation and world.

Overwhelming thanks to the folks at Americans for A Clean Energy Grid who did the hard work of managing the event, filming it and now hosting on their website all the videos and powerpoints from the event.

Sleep is a wonderful thing, and it’s necessary for good health. As someone who doesn’t always get enough, I understand people’s concern that wind turbines are disturbing their sleep, or if built, will. Yet the report this week from  the state’s expert review on the science did not find sufficient scientific evidence that wind turbine noise impacts are loud enough or have the right characteristics to physically disturb people’s sleep.

The panel did find limited evidence that some people are annoyed by noise from wind turbines, due to a combination of “the sound itself, the sight of the turbine, and attitude toward the wind turbine project.” In other words, if you are annoyed by the presence of wind turbines, you might also be annoyed by the noise from them. Still, the report disavows claims that wind turbines are associated with adverse health effects.

But, if you are one of the 44% of Americans who have trouble sleeping (according to a Consumer Reports 2008 survey) and you are annoyed by nearby wind turbines, it’s not hard to see how you would link the two together and associate sleep problems with the sound from the turbines. The value of a scientific review is to sort out whether there is sufficient evidence to support claims that the cause (i.e., noise from wind turbines) resulted in the effect (sleep disturbance or health problems). The review by the state’s expert panel did not find sufficient evidence to support the causal link between noise from wind turbines and health problems or disease, debunking the claims of “wind turbine syndrome.”  “Claims that infrasound from wind turbines directly impacts the vestibular system have not been demonstrated scientifically.”

The story is a bit more complicated for sleep disturbance. The report states, “A very loud wind turbine could cause disrupted sleep, particularly in vulnerable populations, at a certain distance, while a very quiet wind turbine would not likely disrupt even the lightest of sleepers at that same distance.” The question becomes, how loud is loud enough? or what is the threshold at which disturbance occurs?, and that answer doesn’t definitively exist.The science tells us some of what we need to know, but still leaves uncertainty about how to ensure that wind turbines don’t disturb poor sleepers. For example, if the disturbance is a function of one’s attitude about wind turbines, it might not be possible to avoid disturbance for some people.

The key question is, what do we do with this information? How does the science help us make sound decisions about siting wind energy? The data do not suggest we stop all development of wind energy facilities because they pose unacceptable health risks. The evidence does not support that. Regardless of how uncomfortable we may be about making decisions under uncertainty, the reality is that we always operate under uncertainty – and there is no avoiding that. We can never be certain about the future. An appropriate path forward for wind energy decision-making is to use the best available information to make siting decisions that address abutters’ concerns, such as incorporating good design principles to minimize any annoying effects. In fact, that is what the expert panel recommends.

The good news is that having a wind turbine in your back yard will not make you sick. The bad news is you might be disturbed by it, and that is an important consideration for decision makers. Those directly impacted by wind siting decisions should have the opportunity to participate in them, to minimize the potential for disturbance. CLF Ventures’ Wind Siting Guide offers guidance on how to engage stakeholders in such decision processes.

Renewable wind energy offers many benefits, including energy independence, reliable pricing, and no ongoing emissions. As we strive to achieve a cleaner energy future, which necessarily includes wind turbines, we will need to take measures to minimize the annoyance impacts of living near them, since they will always be in somebody’s back yard. Robust community processes will help us make better design decisions and minimize the impacts.

The headlines following yesterday’s federal court decision overturning Vermont laws giving the legislature a say in the continued operation of Vermont Yankee make it seem like the case was a total victory for Louisiana-based Entergy Corporation and its multi-million dollar legal dream team.  Not so!

The decision makes clear that State officials — specifically the state’s Public Service Board — still have broad authority to deny Entergy the “Certificate of Public Good” on grounds that are traditionally within the authority of the state to decide, including economics, land use, and trustworthiness of the plant’s owners to be honest, fair-dealing members of the state’s business community.  Unless Entergy receives a Certificate of Public Good authorization from the Board, it cannot continue operating the plant for another 20 years past its long-scheduled retirement date of March 2012.

Nothing in the Court’s decision upsets that aspect of longstanding Vermont state law — a law that applies to all sorts of power generating projects located in Vermont’s borders — the so-called “Section 248 process”. On page 4 of the Court’s decision the judge clearly states as follows:

“This Court’s decision is based solely upon the relevant admissible facts and the governing law in this case, and it does not purport to resolve or pass judgment on the debate regarding the advantages or disadvantages of nuclear power generation, or its location in this state. Nor does it purport to define or restrict the State’s ability to decline to renew a certificate of public good on any ground not preempted or not violative of federal law, to dictate how a state should choose to allocate its power among the branches of its government, or pass judgment on its choices. The Court has avoided addressing questions of state law and the scope of a state’s regulatory authority that are unnecessary to the resolution of the federal claims presented here.”

So where does that leave things?

Fortunately, CLF has played a leading role in the ongoing Public Service Board proceedings involving Entergy’s application for a new Certificate of Public Good.  Tapping some leading industry experts, CLF has presented a clear case that continued operation of the Vermont Yankee is NOT in the public good of the citizens of Vermont.

Our case rests entirely on grounds that are specifically not placed out of bounds by the Court’s decision yesterday.  These include economics and the failure to have sufficient funds available close the plant and restore the site at the end of its useful life.  Also the claims of an economic benefit from the revenue sharing agreement and the lack of a power contract all show that continued operation does not benefit Vermont.  Add to that the failure of Entergy officials to be forthcoming and provide truthful information about underground pipes, and Entergy’s failure to abide by existing water quality permits and there are many areas of traditional state concern that remain.

The court’s decision is a definite setback, but there are still many opportunities.  Vermont shouldn’t be forced to prop up this old reactor.  Enough is enough.  The Court’s decision left many avenues still open for Vermont to have a say in whether Vermont Yankee continues to operate for another twenty years.

Yesterday, the U.S. District Court issued a decision on Vermont Yankee. We at CLF have been involved in and commenting on the trial and on related issues as they arise. Knowing it can sometimes be hard to track down these various resources, I wanted to take a moment to share a selection of them with you.

• CLF’s Statement in Response to the U.S. District Court’s Decision.
• A copy of the decision itself.
• Timeline of CLF Advocacy on Vermont Yankee

Trial commentary:

• Post-trial commentary, by Sandy Levine
• Post-trial commentary, by Anastasia Douglas
• Pre-trial, by Sandy Levine

Blog posts:

• Untrustworthy Again – Entergy Orders New Fuel for VT Yankee
• CLF, VPIRG support Vermont, oppose Entergy request to keep Vermont Yankee going
• Court blocks Vermont Yankee bid to stay open
• Cleanup Needed NOW at Vermont Yankee
• Conservation Matters cover story: “Vermont Yankee: The Costs of Nuclear” 

Breaking News: In response to today’s decision by the U.S. District Court that Vermont Yankee may continue operation beyond March 2012, Sandra Levine, a senior attorney in CLF’s Vermont office said, “This is a setback for Vermont and a setback for clean energy.  This decision forces Vermont to prop up an old, polluting nuclear reactor, and its untrustworthy owners. This matter will likely go back to the Vermont Public Service Board.  We hope they will confirm that Vermont Yankee has outlived its useful life and is ready to retire.  It is time to end Entergy’s legacy of broken promises and lackluster oversight.  Vermont is ready to join New England’s move away from obsolete, dirty, power plants and lead the region in its transition to clean, renewable energy. We hope the State will appeal the Court’s decision and seek to affirm its right to determine its energy future.”

A little background on a long-running case: By the terms of a Vermont law passed in 2006, as well as the 2002 approval of the sale of Vermont Yankee, and a 2002 express agreement with Entergy, approval by Vermont is needed for the plant to continue to operate after 2012. In 2002, the Vermont Public Service Board approved the sale of the Vermont Yankee facility to Entergy.  The sale included an agreement by Entergy not to operate the plant after 2012, when its license expires, without obtaining regulatory approval from the Vermont Public Service Board. Concerned about whether it would be good for Vermont if Vermont Yankee to operated past 2012, the Vermont Legislature passed a law in 2006 requiring approval of the Legislature before the Public Service Board could issue a new license. In 2008 and 2009 proceedings were underway at the Public Service Board to consider a license extension.  In an historic vote in 2010 the Vermont Senate declined approval.  In April 2011, Entergy filed a lawsuit in U.S. District Court challenging Vermont’s authority to regulate and license the power generation facilities operating in the state. Conservation Law Foundation and Vermont Public Interest Group (VPIRG) later intervened on Vermont’s side in the lawsuit. For a complete timeline of the activities leading up to today’s decision on Vermont Yankee, click here.

Next week I’ll be participating in a clean energy summit in Boston that will feature Congressman Ed Markey and FERC Commissioner Cheryl LaFleur. Attendance at this event is free. Please RSVP today.

This event brings together key Federal officials from the Administration and Congress, their state counterparts, clean energy industry leaders and the environmental community and energy consumers to forge clean energy solutions that benefit our economy and our environment drawing on the full range of options from renewable energy to transmission infrastructure to demand side solutions like energy efficiency.

Please join me and others for this engaging, important conversation.

New England Clean Energy Transmission Summit

January 23, 2012
9:00am – 4:30 pm

RSVP for FREE

Agenda: Click here

The Federal Reserve Bank of Boston
Connolly Center, Fourth Floor
600 Atlantic Avenue, Boston, Massachusetts

Featuring:

Congressman Ed Markey
U.S. House of Representatives

Commissioner Cheryl LaFleur
Federal Energy Regulatory Commission (FERC)

Seth Kaplan
Conservation Law Foundation

In the mid-1990’s a Vermont ski area executive told me this joke.

“How do you make a small fortune in the ski industry in New England?” he asked.

“Start with a large one.”

He was talking about the challenges he faced then, which seemed normal at the time:  limited water for snowmaking, labor shortages, skyrocketing costs of doing business, aging baby boomer population, and inconsistent (though generally reliable) snowfall. The snow sports industry now faces a much more fundamental challenge: a shrinking winter.

But for a recent cold snap, a light dusting on MLK day, and a destructive storm in October, our winter here in New England has been largely without snow. The temperature has been high – in many instances, far higher than normal.

Consider recent temperature trends as reported by @JustinNOAA – the Twitter feed by NOAA’s Communications Director. On Friday, December 9^th, he Tweeted: “NOAA: 971 hi-temp records broken (744) or tied (227) so far this January.” The day before broke “336 hi-temp records in 21 states.”

Rising temperatures are a death knell for falling snow. On the final day of 2011, only 22% of the lower 48 had snow. Today, New England remains largely untouched by snow. A glance at NOAA’s snow depth map shows most of New England with 4 or less inches of snow. This was true of my New Year’s hike with my brother and his dog up Camel’s Hump. As the background of the photo shows, there was little snow across the surrounding Green Mountains.

With so little snow, New England is suffering. While ski mountains have been making snow (and areas like Sugarloaf and Stowe are reporting recent snow fall), other outdoor recreationists are suffering. Some seasons haven’t even started yet, weeks if not months into their normal season.

Snowmobilers, for instance, are facing one hell of a tough time. With so little snow in most of New England, they’ve been prevented from riding over familiar terrain. Ice fishermen, too, are facing lakes and ponds that, by this time of year are usually covered in a thick layer of ice by mid December. Today, many that are usually frozen by now remain open bodies of water.

The effects of this extends beyond our enjoyment to our economy. According to a story on NPR, reported by Maine Public Broadcasting, the unseasonably warm winter has meant millions of dollars in lost revenue for sporting good stores, lodging, and recreation. One store in the story has reported a decline in sales by around 50%.

Competitive cross-country and downhill skiers suffered, too. They’ve have had their race schedule reshuffled due to rain last week. According to the US Ski Team development coach Bryan Fish, quoted in the Boston Globe, “We’ve had the same challenges on the World Cup. It is always a challenge in a sport that relies on the climate.”

That is precisely the problem. People are drawn to New England to live, work and play for its climate: its warm summers, stunning falls and picture perfect winter landscapes, suitable for a wide range of outdoor activities. Walk down the halls of our states offices and you’ll see signs of that passion right here at home: people wearing ski vests, pictures of people snow shoeing, cabins nestled into densely fallen snow. If our climate changes – which the IPCC and others have repeatedly demonstrated it will – then New England will be a very different region than the one we all have come to know and to love.

That’s why I ask you to help us protect our New England winters. Help us protect the places where we enjoy ourselves.

To do just that, I suggest a few things:

1)      Help us transition away from inefficient, 20^th century energy to clean energy of the 21^st century. As a recent EPA report showed, power plants account for 72% of greenhouse gases – by far the largest contributor to global warming in the U.S. Here at CLF, we’re pushing for a coal free New England by 2020.

2)      Also according to the EPA, transportation accounts for the second largest portion of greenhouse gasses. Ride your bike, walk, or take public transportation to work, to do your errands or your other daily tasks. It makes a big difference.

3)      Support both national and regional or local environmental organizations. As I wrote in a NY Times letter to the editor recently, local environmental organizations “have known for years what the nationals are only now realizing: we’ve got to engage people closer to where they live.” Support local, effective environmental organizations who are creating lasting solutions in your area.

4)      Make yourself heard; write letters to your Senators, Congressmen and Representatives. Ask tough questions, and don’t settle for easy answers.

5)      And be sure to get outside. Plant a garden, even if it’s a small one in a city. Go for a hike, or for a bike ride. And take a friend or family member. Remind yourself and others why we need to protect our environment.

By doing all of these simple but important things, you can help us keep winter, winter.

The rise of dedicated public fact checking services like PolitiFact, FactCheck.org and the Washington Post Fact Checker has been a generally good thing. However, these services can go astray when they decide that a statement which would be improved with clarification is “false” – a practice that weakens the “false” label when it is applied to an outright falsehood.

This unfortunate phenomena was on display when the Rhode Island edition of PolitiFact critiqued a comment by Senator Sheldon Whitehouse about the interplay between the deployment of renewable energy resources like solar panels and ending U.S. dependence on imported fossil fuels, like the oil that is refined into gasoline.

In their critique, the Providence Journal staff writing and editing the item examine comments that Senator Whitehouse made in support of federal tax incentives for renewable energy:

“Let me just bring it home,” Whitehouse said, as he referred to his notes. “In Rhode Island, this [grant program] has facilitated solar panel installations on three new bank branches. The TD Bank has opened up in Barrington, in East Providence and in Johnston, Rhode Island. Those projects created jobs, they put people to work, they lowered the cost for these banks of their electrical energy, and they get us off foreign oil and away, step by step, from these foreign entanglements that we have to get into to defend our oil supply.”

The Politi-Fact RI folks decide to look narrowly at the question of whether electricity production from solar panels always and consistently directly reduces use of oil.  This is definitely part of the story and, as I emphasized when I spoke to their reporter when he was working on the “piece, it is a direct relationship that used to be more present back in the days (not too many years ago) when more of our electricity came from oil. But is still a real relationship, especially during the days in the summer when air conditioning drives up electric demand to its highest levels of the year.  As ISO New England (the operator of the regional electric grid) told Politi-Fact RI “oil is used more on days when demand for power is high” although the reporters dismiss this reality (despite the fact that these peak hours are when air pollution is at its worst and the fact that the entire system is designed to meet that moment of peak demand) as “isolated.”

Senator Whitehouse was making three points, only one of which is addressed by the simple “displacement” analysis of what generation is pushed out by deployment of new renewable sources:

• Moving to cleaner electricity generation from renewable sources like wind and solar is an essential piece in an overall conversion of our economy and energy system (including energy used to move the wheels on our cars, trucks and buses round and round) away from dirty and imported fossil fuels. In places like East Providence RI where TD Bank (as highlighted by Senator Whitehouse) is installing solar panels on the roof of their branches in close proximity to a Chevrolet dealer selling the Chevy Volt you can seeing that future taking shape.

• Senator Whitehouse’s larger point about ending “foreign entanglements” is of particular significance, moving beyond the question of oil, to people in and around Rhode Island because the largest power plant in what is known in the wholesale electricity world as “Greater Rhode Island” (a geographical label of particular pride and amusement to native Rhode Islanders) is the Brayton Point Power Plant. That facility, just over the border in Somerset Massachusetts, has burnt coal imported from Indonesia and Colombia in recent years.

• And the direct displacement issue is real: while there is less oil used to generate electricity these days it is worth pondering the overlap between peak solar energy generation (do we really need a link to show that it makes more electricity when it is sunny?) and those peak hours of electricity demand during the summer when it is hottest and air conditioners across the region are roaring away.

All of this suggests that the specific comment by Senator Whitehouse that Politi-Fact Rhode Island evaluated are solidly grounded in facts and accurate observations.