Today, the Patrick Administration reached a breakthrough settlement agreement in the proposed merger between NStar and Northeast Utilities, which, if approved, will create one of the country’s largest public utilities. The agreement is a big win for renewable energy, as it positions Massachusetts to finally unleash the power of Cape Wind, our region’s most promising new clean energy source, and to lead the rest of the country forward on offshore wind.

The settlement ensures that this powerful new utility will be in lockstep with Massachusetts’ nation-leading clean energy policies and propel the state forward instead of backwards in implementing them.

This is a significant advancement for Massachusetts and all of New England in a number of regards:

• It removes the last major hurdle to building Cape Wind;
• It ensures that the Commonwealth will continue to reap the cost savings and environmental benefits of the Massachusetts Green Communities Act;
• It will help ensure that imported hydropower does not diminish other renewable energy deployment in Massachusetts and beyond;
• It will reduce barriers to installation and operation of small, distributed renewable energy generating facilities in Massachusetts; and
• It will freeze the merged utility’s rates for 4 years, will require transparent public review of NSTAR’s electric and gas rates before the rate freeze expires, and will deliver – upon approval of the merger – an immediate 50% credit to Massachusetts customers based on expected merger savings during the first 4 years following merger approval

We applaud the Administration for recognizing that a lot of ground needed to be made up in order for this merger to benefit the public and for covering that ground with thoughtful terms that benefit ratepayers and the environment both in the short and the long-term.

For the press release, as well as background materials on CLF’s long standing engagement on this issue, click here.

Protest at Salem Harbor Power Plant. Courtesy of Robert Visser / Greenpeace.

This week the Conservation Law Foundation (CLF) and HealthLink secured an Order from the US District Court in Massachusetts requiring Salem Harbor power plant owner Dominion to shut down all four units at the 60-year-old coal-fired power plant by 2014. In bringing a clear end to the prolonged decline of Salem Harbor Station, this settlement ushers in a new era of clean air, clean water and clean energy for the community of Salem, MA, and for New England as a whole.

The court’s order is based on a settlement with Dominion to avoid CLF’s 2010 lawsuit alleging violations of the Clean Air Act from going to trial. The terms of the settlement, which can be found here, ensure that:

• Units 1 and 2 at the plant must retire (indeed are retired) by December 31, 2011; Unit 3 by June 2014;
• Dominion may not repower the retired coal-burning units, even if a buyer for the power was to come forward;
• Neither Dominion, nor any successor, may use coal as fuel for generating electricity on that site in the future;
• Dominion must fund projects of at least $275,000 to reduce air pollution in Salem and surrounding municipalities that have been impacted by the plant’s emissions.

The settlement, and the legal actions which led to it, provide a template to force plant shutdowns as changing market conditions, public health concerns and cleaner energy alternatives push the nation’s fleet of old, polluting dinosaurs to the brink. What makes this outcome unique is that, as part of its advocacy strategy, CLF filed a successful protest at the Federal Energy Regulatory Commission in Washington DC which effectively prevented Dominion from collecting above market costs for operating this aging and inefficient power plant. This first-ever ruling by FERC is in stark contrast to coal power plant retirements in other areas of the country which were brought about by agreements to pay (i.e., compensate) plant owners for shutting down their plants. In the case of Salem Harbor Station, retirement resulted from legal action to deny the plant’s owner compensation and cost-recovery by ratepayers.

A little background: Most of the nation’s coal-burning fleet, were designed, constructed and began operation in the 1950’s and 60’s. More than 60% of them have been operating for 40 years or more, meaning that they are now beyond their useful design lives. This is the case for all of New England’s remaining plants, which generally were built more than 50 years ago. In addition to the excess pollution and inordinate adverse impact these plants impose to public health and the environment, they are finding it difficult to compete with newer, cleaner and more efficient power producing technology. In the market, the day of reckoning has arrived. New England’s coal-fired power plants are losing their shirts. They are rarely asked to run by ISO-New England, the operator of our regional electricity system, because their power is more costly (i.e., out-of-market) than the region’s cleaner and more efficient power generating fleet.

So why don’t they all retire? Unfortunately, there are several factors that can, in many instances, complicate matters. For Salem Harbor Station: system reliability (i.e., keeping the lights on). Because these plants were built so long ago, and unfortunately in close proximity to population centers where demand for power is greatest, the system was designed assuming that electricity is being generated at these locations. Thus, removing electricity generation from these sites can create reliability risks at times of peak electricity consumption. This was the case for Salem Harbor. Try as we might (including NStar’s recent $400 million transmission upgrade in the North Shore), when ISO-NE modeled worst case conditions, it still found that Salem Harbor was needed for reliability and consequently required ratepayers to pay to maintain Salem Harbor, even though its power was far more expensive to produce than more modern plants. To break this logjam, CLF filed a protest at FERC claiming that ratepayers were getting bilked (in legalese: paying rates that were unjust and unreasonable) and that a small investment to develop a reliability alternative for the plant would save the ratepayers money and would safeguard public health.

FERC agreed — at least with the money part (as FERC is a financial, not environmental regulatory agency). Its December 2010 order granting CLF’s protest compelled ISO-NE and the region’s electricity market participants to expedite the process for developing reliability alternatives for Salem Harbor’s expensive power (in utility parlance, to replace its “reliability function”). Shortly thereafter, ISO-NE crafted a new plan that will keep the lights on at reasonable cost to customers, while also creating a more flexible, reliable grid.

The new plan calls for simple and relatively inexpensive electric transmission line upgrades that will meet the area’s reliability needs without Salem Harbor Station and allow for the deployment of newer and cleaner energy resources like energy efficiency, conservation and renewables such as wind and solar. As soon as the plan was approved in May of 2011, the die was cast and Salem Harbor’s retirement became imminent. To its credit, the very next day Dominion announced that the plant would be shut down. As we all know, corporation’s make decisions based primarily on economics; once FERC denied them the above-market rates they had been collecting for years to maintain the plant, Dominion was compelled to retire the plant. Couple that with the prospect of major expenditures for pollution upgrades that would result from CLF and Healthlink’s lawsuit, there was only one rational outcome. Good-bye Salem Harbor station. Next up (or should I say, down): Mt. Tom, Brayton Point, both of which are uneconomic and facing the end of the road.

As I said in a joint press statement with Healthlink (found here), “This outcome sends a signal to coal plant operators everywhere that they cannot avoid costs through noncompliance with the Clean Air Act. These obsolete plants that either have decided not to invest in technology upgrades or are retrofitting at ratepayers’ expense are doomed: they are staring down the barrel of cheaper and cleaner alternatives to their dirty power and public and regulatory pressure to safeguard human health. When these plants can no longer get away with breaking the law as a way to stave off economic collapse, I predict we will see a wave of shutdowns across the country.”

The history of Salem Harbor Station is both long and tortured (recall then-Governor Romney standing at the gates of the plant in 2003 and saying that the plant was killing people). Despite its bleak financials and unjustifiable damage to public health and the environment, Salem Harbor Station continued to operate and pollute for a decade or more beyond when it should have succumbed to age and obsolescence.

Shanna Cleveland, staff attorney at CLF said, “The Court’s Order coupled with our successful FERC protest have finally put an end to a half century of toxic and lethal air pollution from Salem Harbor Station. The very factors that have been propping the power plant up for years beyond its useful life – cheap coal, lax environmental oversight, and overdue reliability planning – have been pulled out from under it.”

For more, including quotations from said Jane Bright of HealthLink and Massachusetts State Representative Lori A. Ehrlich, as well as more background on CLF’s Salem Harbor Station Advocacy, read the press release here.

From left: Barbara Kates-Garnick, Carl Horstmann, Tommy Beaudreau, and Sue Reid. Credit: Meg Colclough.

Earlier today my colleague Sue Reid, VP & Director of CLF Massachusetts, joined state and federal officials to announce the latest milestone for obtaining plentiful and clean renewable wind energy from the Outer Continental Shelf offshore of Massachusetts. Specifically, they initiated the process for developers to begin leasing and site assessment, and for data gathering and public input, to facilitate off shore wind deployment in an area approximately 12 nautical miles south of Martha’s Vineyard and 13 nautical miles southwest of Nantucket. (The federal press release can be found here.) The “Call Area” as it is termed, was identified following consultation with ocean users, such as fishermen and other stakeholders, through an intergovernmental renewable energy task force led by Massachusetts officials.

Today’s announcement follows President Obama’s State of the Union address, in which he expressed the compelling need to develop alternative sources of energy. CLF agrees: the environmental imperative and ongoing energy transformation replacing obsolete uneconomic fossil fuel power plants requires deployment of the full range of available renewable energy resources. Because offshore wind is strong and persistent, it is among our most robust emissions-free renewable energy sources. We also support the laudable efforts of the Commonwealth and federal government, who share jurisdiction over marine resources, to join initiatives to expand our clean energy resources with efforts to engage in thoughtful ocean planning, both of which have been major themes in Massachusetts. Massachusetts has been a leader in both coastal marine spatial planning and in offshore wind deployment. Those experiences are now being replicated by other states and the federal government – something CLF welcomes.

In speaking alongside Tommy P. Beaudreau, Bureau of Ocean Energy Management Director, and Barbara Kates-Garnick, Massachusetts Under Secretary of Energy, on the steps of the Wind Technology Testing Center, Sue said:

“One might think it’s unusual for environmental advocates to be championing efforts to develop energy resources; after all, CLF led the charge successfully fighting off all oil and gas drilling in New England waters. That’s because we recognize that, while we need to pursue a portfolio of clean energy alternatives, there is NO other resource that has the sheer magnitude of clean energy potential as offshore wind. Offshore wind holds promise for displacing many gigawatts of fossil fuel-fired generation, keeping the lights on and homes and businesses thriving while we shut down old, dirty, inefficient coal and oil-fired plants.”

She also underscored how important this work is. She said:

“While most local eyes are trained on a different Tommy, out in Indianapolis for a certain small-stakes football game, we’re thrilled that this Tommy, the new quarterback of the Obama Administration’s offshore renewable energy team, is in Massachusetts, focused on moving the clean energy ball rapidly down the field here, in concert with the Patrick Administration and a host of other stakeholders. This is a battle that we must win. Success is our only option.”

Sue is right – milestones like this help us to realize the potential for a new clean energy future—one that is being fostered in Massachusetts through some of the strongest state renewable energy policies in the nation. Our challenge is to advance from salutary policies to new renewable energy deployment that benefits Massachusetts with jobs, economic activity, cleaner air and a healthier environment. Today’s development was one step on a path just begun.

Courtesy of bradlee9119@flickr. Creative Commons.

The triple bottom line has become both a catch phrase and, increasingly, a realistic goal for everyone from investors to activists and urban developers. But in Massachusetts, aging MBTA trains and infrastructure coupled with proposed fare hikes and service cuts stand in the way of achieving the triple-bottom-line promise of Transit-Oriented Development (TOD).

TOD projects are generally comprised of mixed-use or mixed-income developments that are situated within a half-mile of a mass transit station. They provide residents with easy access to the places they want to go (jobs, doctors, movie theaters, etc.) and place businesses within reach of employees and consumers along the mass transit system.

One of the advantages of TOD projects is their potential to achieve triple-bottom-line returns, providing economic, environmental, and community benefits simultaneously. By encouraging people to use mass transit and rely less on automobiles, TOD projects help to reduce both noxious auto emissions and climate-altering greenhouse gases. In fact, people in highly walkable neighborhoods drive nearly 40% fewer miles than their counterparts in the least walkable neighborhoods, which can reduce traffic-related emissions by as much as 2,000 grams of CO₂ per person per day. Furthermore, the increased walking (at least 10 minutes daily on average) reduces the risk of obesity, regardless of age, income, or gender.

So TOD opens up new opportunities for growth without requiring the costly, carbon-intensive infrastructure needed for cars, and contributes to healthful, walkable neighborhoods that attract both businesses and residents. Sounds great, right?

Unfortunately, there’s a hitch. TOD projects rely on the assumption that the transit system is capable of supporting them. Here in Massachusetts, proposed MBTA fare increases and service cuts, as well as our aging transportation infrastructure, may prevent TOD projects from delivering on their promise. This is a bad thing for Massachusetts residents, for our economy, and for our environment.

The MBTA is old. After putting off badly needed maintenance on the Red Line for several years, an entire section has been shut down on weekends for emergency repairs, cutting off access for parts of Cambridge, Somerville, and beyond. And faced with a $161 million budget deficit, the T is now considering drastic fare increases and draconian service cuts, including potential elimination of over 100 bus routes as well as weekend service on the commuter rail and some subway lines.

The MBTA’s proposed fare increases and service cuts are unacceptable for MBTA riders and could prove disastrous for TOD projects, past, present, and future. Discouraging people from taking public transportation—either by eliminating MBTA service or making that service prohibitively expensive for riders—undermines the triple-bottom line goals of TOD. It may sound obvious, but TOD requires a healthy, functioning, financially accessible transit system to realize its full potential.

CLF is asking the state legislature and the governor to find a comprehensive solution to the MBTA’s funding problems, not just a band-aid for the coming year’s operating budget. And CLF Ventures is committed to finding triple-bottom-line solutions, like TOD, where profitable developments can also yield environmental and community benefits. Without continued investments in our transportation infrastructure in Massachusetts and a comprehensive solution to the T’s funding problems, TOD could become a triple-bottom loss for the economy, the environment, and for MBTA riders.

As the public hearings on the MBTA’s proposals for fare hikes and service cuts continue across the Commonwealth, Massachusetts Transportation Secretary Richard Davey is telling the media that he’s hearing that  T riders would rather pay more than have their service cut. Speaking on behalf of Transportation for Massachusetts (T4MA), CLF staff attorney Rafael Mares said that Secretary Davey’s remarks are disappointing, if not surprising, given the false choice the MBTA has given transit users.

Mares  said, “The MBTA has backed transit users against a wall, asking them to choose between two unacceptable scenarios. A fare increase may seem like the lesser of two evils to those who have a choice. But, what about those who can’t afford the increases and won’t be able to get to their jobs, or school, or a doctor’s appointment because they rely on public transportation? The MBTA has created a false choice between draconian service cuts and drastic fare increases. The reality is it’s a lose-lose situation for transit users and Massachusetts. If Secretary Davey is hearing a chorus of ‘I would rather pay more but not cut the service,’ it wasn’t singing at any of the hearings we’ve been attending.”

Mares continued, “The proposed fare increases and service cuts are unfair and only a band-aid. The MBTA’s proposals give the legislature a free pass, balancing the books solely on the backs of the riders. These proposed measures will push people off the T and into their cars, or leave them without any transportation at all. We need long-term solutions that share the burden of a working transportation system among everyone who benefits from it, which is to say everyone in Massachusetts. T4MA is calling on the legislature and the administration to immediately identify funds to reduce the T’s projected deficit and develop adequate, sustainable funding for transportation so we’re not repeating this conversation again next year.”

To read a copy of the original statement, click here.

Late on Wednesday night residents of Springfield celebrated an important victory in their longstanding fight against a biomass-burning plant that Palmer Renewable Energy (PRE) proposes to construct in their community. Acting on the petition of local residents Michaelann Bewsee and Toni and William Keefe,  the Springfield Zoning Board of Appeals (ZBA) overturned the two building permits that were issued to PRE last November. Media coverage of the ZBA decision is available here and here.

The ZBA declared the building permits unlawful because, in an attempt to avoid City Council review of the project, PRE had not obtained a special permit that is required for the proposed plant. Responding to convincing presentations from Ms. Bewsee and Attorney Pat Markey, the Zoning Board of Appeals determined that because the facility will engage in incineration, the Springfield Zoning Ordinance requires a special permit from the City Council before building permits can issue. CLF has worked closely with Ms. Bewsee, her organization, Arise for Social Justice, Toxics Action Center and the community group Stop Toxic Incineration in Springfield, to protest this proposed power plant, which would bring additional harmful air pollution to Springfield. Siting this project in this location would be particularly inequitable, as Springfield is already a grossly overburdened environmental justice community that suffers disproportionately from respiratory and cardiovascular diseases because of exposure to air pollution.

CLF warmly congratulates the community on this victory, and thanks the Springfield City Council for the important role it played in upholding the integrity of their Zoning Ordinance.

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.

Photo courtesy of John Walkey, Transportation for Massachusetts (T4MA)

State law requires the Massachusetts Bay Transportation Authority (MBTA) to balance its budget. The transit authority is facing a budget gap of $161 million for FY2013. In an attempt to address this problem, the MBTA is currently proposing huge fare increases (35% or 43%) and draconian service cuts (including the elimination of 101 weekday bus routes and all commuter rail service after 10pm and on the weekends) as we have described in previous blog entries. This would be a devastating blow to transit in the region, which is the most effective way to reduce greenhouse gas emssions from the transporation sector, improve air quality, reduce traffic congestion, and provide mobility to people who may not be able to get around in any other way.

State Representative Carl Sciortino recently wrote an excellent article on WickedLocal Somerville calling for a comprehensive solution to our state’s transportation funding problem rather than putting a band-aid on this crisis and making public transportation users suffer.  In his article he encouraged residents to voice their views and we can only second that. “There will be a number of public hearings around the region in the coming weeks. Attend. Speak up. Encourage friends and co-workers to do the same,” he said.

See below for a full list of public meetings. For the MBTA website, and a for more info, click here.

Public Meetings: