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.

The nation’s attention may be focused right now on the twists and turns of New Hampshire’s First in the Nation primary. But new pollution data from the Environmental Protection Agency put a more troubling spotlight on New Hampshire – and on its largest utility, Public Service Company of New Hampshire (PSNH). 

According to the data, PSNH is the region’s top toxic polluter, and PSNH’s coal-fired power plant in Bow, Merrimack Station, releases more toxic pollution to the environment than any other facility in New England. Because of PSNH, New Hampshire as a whole is first in New England in toxic pollution.

The numbers tell a striking story.  In 2010, Merrimack Station released 2.8 million pounds of toxic chemicals to the environment, mostly in air pollution.  That’s an astonishing 85% of the 3.3 million total pounds of toxic pollution released in New Hampshire in 2010. When you add in PSNH’s coal-fired Schiller Station in Portsmouth and its gas and oil-fired Newington Station in Newington, PSNH was responsible for a total of 3 million pounds of toxic pollution in 2010, more than 90% of New Hampshire’s toxic pollution. 

PSNH’s pollution isn’t saving energy consumers anything – PSNH’s rates are among the highest in New England because of the escalating costs of maintaining PSNH’s old, inefficient power plants. And those rates are slated to steadily climb as PSNH customers – mostly residents and small businesses – watch large commercial and industrial customers reject the costs of PSNH’s above-market coal-fired power to buy from cost-effective, competitive suppliers. As a result, most New Hampshire residents are left with the raw deal of paying among the highest rates for the dirtiest power in New England.

The data is a fresh reminder of why CLF is fighting so hard to hold Merrimack Station accountable for violating the Clean Air Act. In November, CLF made the case in federal court that PSNH’s failure to obtain permits for changes at Merrimack Station has meant that PSNH has evaded requirements for state-of-the-art pollution limits that would reduce its emissions of a wide range of toxic and other pollutants.

It’s true that PSNH’s much-touted and hugely expensive scrubber project now coming online at Merrimack Station will ultimately reduce some types of toxic pollution to the air. But PSNH wants to increase its energy rates by 15% to pay for the scrubber. Other required pollution controls, including those imposed by important new federal rules, may lead to further costs. This will make PSNH’s power plants an even worse deal for New Hampshire ratepayers.

Merrimack Station also sends more carbon dioxide into the air than any other source in New Hampshire, and the scrubber won’t change that. Burning coal is a dirty way to generate power that imperils the climate, and it is time for New England to abandon it for cleaner alternatives that safeguard our health and environment and transition us toward a new energy system.

New Hampshire may never be willing to relinquish its leading spot on the presidential primary calendar. But living with New England’s largest source of toxic pollution despite its unacceptable costs – to ratepayers and the environment – is a distinction that New Hampshire should be doing everything in its power to lose.

The announcement of a fare increase is never welcome news for transportation users, and Tuesday’s bombshell from the MBTA that it is proposing a hike of between 35% and 43% across the board come July, accompanied by drastic service cuts, made it a very unhappy New Year around the Commonwealth. CLF, along with our fellow members of Transportation for Massachusetts (T4MA) — a diverse coalition of Massachusetts organizations working for an environmentally sustainable, reliable and affordable transportation system — oppose a fare increase that by itself can’t begin to fix the T’s financial problems and is inherently unfair.

T4MA objects to the MBTA’s proposal because it attempts to solve a much larger problem of insufficient funding for public transportation exclusively on the back of transit riders, who are traveling in ways that reduce traffic and benefit the environment. Any fare increase should be part of a comprehensive financial plan that addresses not only the MBTA’s operating deficit for at least the next several years, but also provides the funds needed to address the T’s maintenance and capital needs without further driving up debt service costs.

Moreover, a blanket fare increase affecting the bus, subway, and commuter rail system at the same rate takes into account neither the different needs of different transit users nor the varied costs of providing transit for buses, the subway, and commuter rail. The result would be to disproportionately burden the transit users who can least afford it, particularly bus riders.

And it’s not just public transportation that’s chronically underfunded and nearing collapse. It’s our roads and bridges and the entire transportation system in Massachusetts. Likewise, it is not just public transportation that is supported by state and federal government — the construction and maintenance of roads and bridges is heavily subsidized. As both drivers and public transportation users share the benefits of a working transportation system–from easier access to where we need to go to reduced congestion to cleaner air–so must they share the burden of  financing it. Any fare increases must be paired with other revenue-generating mechanisms with a goal of funding a transportation system that works for everyone.

At a MassDOT Board of Directors meeting Wednesday, board members expressed deep concern about the MBTA’s proposal. T and MassDOT officials said that the public’s input will be key in finalizing a plan.

The public will have an opportunity to comment on the MBTA’s proposals in a series of hearings that will be held  around the state from mid-January through March. CLF and other T4MA members will be filing comments and testifying at the hearings to ensure that the interests of our various memberships are addressed in crafting the final proposal. We encourage you to attend a hearing and join us in calling for a plan that pairs any proposed increase with other revenue-generating mechanisms and fairly shares the burden of maintaining and improving our transportation system.

For more on the fare increase and how people are responding, check out some of the media coverage:

Proposed T Service Cuts, Fare Hikes: ‘Not An Easy Choice’ (WBUR)

MBTA Riders Could Face Steep Fare Hikes (AP)

“T” Faces Service Cuts, Fare Hikes (State House News Service)

MBTA Riders Face Fare Hikes as High as 43% (Fox 25 News)

The Cape Wind offshore wind project moved one big step closer to construction yesterday when the Massachusetts Supreme Judicial Court (SJC) affirmed the MA Department of Public Utilities’ (DPU’s) finding that the project’s costs are reasonable in light of the many benefits it will bring.

Massachusetts’s highest court upheld the November 2010 decision of the DPU, which approved a critically important contract between Cape Wind and National Grid in which the electric utility agreed to purchase half of Cape Wind’s output. Cape Wind opponents had appealed the DPU’s decision— the latest in an endless stream of ill-fated maneuvers intended to block the nation-leading clean energy project from being built.

CLF intervened in the appeal proceeding with fellow environmental groups NRDC and Clean Power Now, making the case that the DPU’s extensively-researched decision showed clearly that Cape Wind’s benefits would outweigh its costs. Among these benefits is the project’s close proximity to areas of high electricity demand, which gives it logistical advantages over obtaining power from more distant energy projects that have been proposed.

The High Court’s validation should make it easier for Cape Wind to secure a buyer for the other half of the wind farm’s output and attract project investors to help finance construction. When built, after more than a decade of exhaustive reviews, Cape Wind will be the nation’s first offshore wind project.

Encouraged by yesterday’s decision, Jim Gordon, president of Cape Wind, spelled out some of the benefits Massachusetts residents could anticipate when Cape Wind is built, including, “creating up to 1,000 jobs, providing Massachusetts with cleaner air, greater energy independence and a leadership position in offshore wind power.”

We at CLF say, “Bring it on…not a moment too soon!”