In a sharply worded decision, the Vermont Public Service Board made clear yesterday that it intends to holds Entergy to its commitments.

The Board stated that the provision of Vermont law that allows licenses to continue while a new proceeding is underway “does not provide authority for Vermont Yankee to continue operating, and storing spent nuclear fuel derived from such operation, while Entergy VY’s petition for a new or amended CPG remains pending.” (p.25).

The decision makes it clear that Entergy’s current license includes obligations that preclude storing fuel generated after March 21, 2012. (p.19) It also recognized that the Board order approving the sale to Entergy back in 2002 relied on Entergy’s promise not to operate after 2012 unless it had approval from the Board. (p.18)

The Board further chastised Entergy and its multi-million dollar legal team noting it expected them “to provide better organized and more cogent briefing.” (p.9 fn. 19).

The Board’s decision was made “in full recognition of the federal District Court’s decision” and does not cross purposes with it. It clarifies Entergy’s commitments and obligations. Entergy should be held to their promises. Entergy cannot simply pick and choose which obligations it will follow.

It is not clear what’s next. The ball is in Entergy’s court. It can and should comply with its obligations and keep its promises.

As the scheduled retirement date for Vermont Yankee approaches, it becomes clearer than ever that this costly, tired, leaky and polluting plant’s days are numbered.

The disappointing Federal Court decision that limited action by the Vermont Legislature to close Vermont Yankee kept intact review by Vermont utility regulators.

That review began and Entergy is being pressed hard to justify its continued bullying and defiance. 

Conservation Law Foundation’s recent recommendations note:

• The Vermont law that was not struck down by the federal court precludes storing waste generated after March 21, 2012.
• Entergy’s current authorization precludes operation after March 21, 2012 except for decommissioning.
• The sale of Vermont Yankee to Entergy in 2002 was approved based on a promise not to operate past March 21, 2012.

The broken promises from Entergy continue.  A new book, aptly titled “Public Meltdown” that highlights some of CLF’s work, provides great insight into how the public lost trust in Entergy and Vermont Yankee over the past few years.  Entergy’s recent actions continue this sad trend.

*UPDATE* 3/20/12  – Late Monday the federal district court issued a disappointing new order that precludes the State from taking some actions, while an appeal is pending, regarding storage of spent fuel.  This is a step backwards for clean energy.  Vermont may be forced to store additional nuclear waste for years while this appeal winds its way through the courts.  Five minutes later, Vermont regulators issued a stunning rebuke to Entergy that makes it clear they intend to hold Entergy to its promises and commitments.  Stay tuned.

With Northern Pass and other new transmission projects on the horizon, CLF and other leading New Hampshire environmental organizations are presenting a special free webinar on what it really means for New England to import more hydroelectric power from Canada.

The webinar will be next Friday, March 9, 2012, 2:30 to 4pm EST. Click here to register. All you’ll need is a computer and an Internet connection. Please join us, and spread the word to friends, family, and colleagues. The webinar is sponsored by CLF and our friends at the Appalachian Mountain Club, Conservation New Hampshire, The Nature Conservancy in New Hampshire, and the Society for the Protection of New Hampshire Forests (SPNHF). 

A scene along the Romaine River from Seeking the Current (copyright Chercher le Courant)

The idea is to provide an accessible summary of the environmental and energy implications of imports, including the often-overlooked impacts of the new hydropower developments in Canada that will supply the power. One of the key questions is what new imports will really mean for the climate, and I’ll explain the findings of a recent report commissioned by CLF on the greenhouse gas emissions of hydropower. As we’ve often pointed out, whether and how to import more hydropower from Canada is a critical issue for the entire region’s energy future. And it’s not just about New Hampshire and Northern Pass — just last week, the developer of the Champlain Hudson project in New York announced that it is moving forward with a revised proposal for an underwater and underground transmisssion line between Canada and New York City that will have the support of state officials, municipal governments, and environmental groups.

During the webinar, you’ll hear from me, and also from Tom Irwin, CLF Vice-President and CLF-NH Director; Ken Kimball, AMC Director of Research; and Will Abbott, SPNHF Vice President for Policy and Land Management.

The webinar will feature a special guest appearance by Québecois filmmaker Nicolas Boisclair, who will be in New Hampshire this month for a series of screenings of his documentary film, Seeking the Current, which shines an unsparing light on Hydro-Québec and its ongoing $8 billion hydropower project on the Romaine River. We’ve put all the details on the screenings (and the webinar too) at this link.

For more information about Northern Pass, sign-up for our monthly newsletter Northern Pass Wire, visit CLF’s Northern Pass Information Center (http://www.clf.org/northern-pass), and take a look at our prior Northern Pass posts on CLF Scoop.

At a time when both carbon emissions and fuel prices continue to rise, Vermont is poised to reduce its reliance on fossil fuels and increase the use of renewable power – a good thing at the right time.

The legislature is considering a bill that would create a renewable portfolio standard (RPS), requiring that each electric utility acquire a percentage of its electricity from renewable sources. This is an important step in the fight against greenhouse gas emissions and climate change; CLF has testified that the bill needs to be strong and ambitious.

There’s no doubt the climate needs this bill. Levels of carbon dioxide in the atmosphere continue to shoot up, and global temperatures are rising. A warming global climate has led to increased evaporation, causing droughts and floods around the world. In his testimony before the committee considering the RPS bill, climate activist Bill McKibben described the rising worldwide occurrence of extreme weather events. Among these was Tropical Storm Irene, which devastated parts of Vermont at the end of last summer. McKibben urged the committee to act now, through measures such as an RPS, before our climate crisis gets worse.

The current version of the Vermont bill would require that by 2025 all electric utilities in Vermont get 30% of their power from renewable power plants commissioned after 2012. Whatever renewable sources are already generating power now (in 2012) would not count towards the 30% standard.

Currently Vermont only has voluntary goals for utilities to acquire a certain percentage of their power from renewable sources. A fundamental flaw of the existing program is that it allows utilities to sell renewable energy credits (RECs) from Vermont renewable projects to utilities in other states, yet still count that power as renewable in Vermont. This means that the renewable attributes of the power are counted twice. The bill currently in the legislature would correct this problem.

By enacting this bill, Vermont would not be alone. Twenty-nine other states already have an RPS, including all the other New England states, and other states as disparate as Texas and Hawaii. Their requirements vary widely. Maine has an ongoing 30% RPS; New Hampshire requires 23.8% by 2025; and Rhode Island requires 16% by 2020. Details of the requirements vary, but Vermont’s proposed program compares well with other states in the region.

Vermont needs a strong renewable standard. CLF continues to push for strong measures to tackle climate change and reduce pollution.

Christopher Kilian, CLF VP and Vermont Director, talks at the signing of H.258 with Gov. Peter Shumlin beside him. CLF Staff Attorney Anthony Iarrapino and Lake Champlain Lakekeeper Louis Porter are in the background.

A bill giving citizens more information about, and more say over, environmental enforcement cases in Vermont was signed into law by Gov. Peter Shumlin yesterday, the successful conclusion of a several-year-long effort by Conservation Law Foundation.

Under current law in Vermont, when environmental pollution cases brought by the state are settled, citizens often don’t know about it, and even if they do they have little chance to bring evidence they may have to light – even when they have been directly affected by those violations.

In July, when the newly signed act goes into effect, that will change. Anyone with an interest in such cases will be able to file comments, and those who can demonstrate that an interest of theirs was harmed by the pollution will be able to request a hearing before a judge to present their evidence.

The new law applies to both Vermont environmental laws and national programs administered by the state, a lack which had put the state at odds with federal requirements.

Shumlin said the change in the law will make state government more transparent, a priority of his administration.  CLF Vermont Director Christopher Kilian agreed, adding that the new law is “a big step forward for Vermonters to participate in their government”

The bill was worked on by the Vermont Agency of Natural Resources and was sponsored by Rep. Tony Klein and Rep. David Deen, the heads of the two environment committees in the Vermont House. In the Senate, it was championed by Sen. Ginny Lyons’ and her Natural Resources and Energy Committee.

During the two legislative sessions lawmakers worked on the measure several industry and business organizations which originally had concerns about the measure came to support its passage. Tom Torti, the president of the Lake Champlain Regional Chamber of Commerce, who joined the administration and CLF at the signing, said it is important to hold those who break environmental laws to account.

The Burlington Free Press story about the bill signing can be found here.

When shopping for a new car, it helps to know its fuel economy and how that stacks up with other models. What if you could have the same information when buying a new home? The Vermont Legislature is currently considering two bills, H-497 & S-143, which require sellers of buildings to provide information about a building’s efficiency. Sellers calculate a building’s efficiency using a free online tool approved by the Department of Public Service (Department). Buyers can then know a building’s energy rating. The rating is presented as a single number that compares that building with other similar buildings. In addition, a buyer could access other information such as the building’s total energy consumption, its square footage, energy intensity and annual energy costs.

This bill continues Vermont’s tradition of leading the nation in setting effective energy efficiency policies. It lets buyers know important energy use information before they make a big investment. The additional step of helping more customers improve their building’s heating efficiency is still needed. Vermont’s cold winters and old building stock makes bolstering buildings’ thermal efficiency low-hanging fruit.

While Vermont leads the way on electric efficiency, it still has a ways to go on improving heating efficiency. In 2012, Efficiency Vermont (EVT), Vermont’s efficiency utility, used 81% of its budget for electric efficiency resources and only 8% for heating efficiency. The divergence can be traced in part to funding sources. Electrical efficiency investments are funded from a savings charge on electric bills. Heating programs currently have limited funding available and rely mostly on proceeds from the Regional Greenhouse Gas Initiative (RGGI) and participation in the regional grid’s capacity market. To bolster heating efficiency programs, S-143 directs the Department to study additional mechanisms for funding these programs. Vermont’s 2011 Comprehensive Energy Plan has recognized the need for new funding sources for weatherization improvements in light of the fact that current policies will leave the State far short of reaching its goal of weatherizing 80,000 homes by 2020.

In Massachusetts, a system similar to the funding model for electric efficiency is being considered.  H.3897 would establish a comprehensive thermal efficiency program funded by a 2.5 cents per gallon savings charge on heating oil. Funds will be used to provide incentives for upgrading older inefficient oil heating systems, weatherizing, and helping low-income communities heat their homes in winter. Since 59% of Vermonters heat with oil, and savings programs are already available for gas users – which has limited availability in Vermont – it only makes sense for Vermont to expand the savings available for customers who rely on oil.

While some opposition from fuel dealers exists, given that heating oil prices are at an all-time high, there is a good opportunity now for fuel dealers to partner with customers to keep their houses warm, save energy, reduce pollution and grow jobs.  Information about a building’s energy use is a good first step, but Vermonters need more to keep more warmth inside and more money in their pockets.

The Vermont Statehouse

A bill nearing completion will soon give the public much more say in environmental enforcement actions in Vermont.

Historically in Vermont, agencies and violators of environmental laws have often negotiated resolutions behind closed doors without notice to affected members of the public. The results have often been weak penalties and ineffective remedial action by polluters, a problem which Conservation Law Foundation has long worked to correct.

Vermont’s exclusion of the public from environmental cases was not only bad policy, but contrary to the requirements of federal environmental law, as pointed out by the U.S. Environmental Protection Agency (EPA) and Vermont Environmental Division Judge Thomas Durkin.

The issue is also part of CLF’s petition asking the EPA to revoke delegated authority for the state to administer the Clean Water Act unless shortcomings in the program are corrected.

Last year, CLF and Vermont’s Agency of Natural Resources, which helped draft the bill co-sponsored by Rep. Tony Klein and Rep. David Deen, brought the issue before the Vermont Legislature. A long effort in the House, including many versions of the bill and testimony from a wide variety of interests in two committees, paid off in a 109-25 vote of support.

This year, the second of Vermont’s legislative biennium, the work was taken up in the Vermont Senate by Sen. Ginny Lyons’ Natural Resources and Energy Committee. Another round of rigorous review by legislators resulted in broad support for the bill, which won final support on a voice vote Thursday after Tuesday’s roll call of 27-2.

If the bill moves on to be signed by Gov. Peter Shumlin as anticipated, Vermont will not only come into compliance with federal requirements, but it will help make sure that environmental cases are fairly and thoroughly dealt with, including consideration of evidence, where deemed worthwhile by a judge, from those affected by pollution.

The measure goes beyond federal programs like the Clean Water Act – it offers the same opportunity for public participation in state environmental cases as well.

CLF was helped in its work on the issue by the Vermont Law School’s Environmental and Natural Resources Law Clinic, by members of CLF’s Vermont Advisory Board and by fellow environmental organizations, in particular the Vermont Natural Resources Council. Furthermore, as the bill was worked on and considered, some companies and industry groups who originally opposed the measure came to support its passage, helping to secure support by wide margins in both houses of the Vermont Legislature.

Entergy asked the Public Service Board today to just give it a new certificate of public good claiming no further review is needed. (Read the motion here.)

Judge Murtha’s decision was clear. The Vermont Public Service Board continues to have authority to review Entergy’s actions and determine if continued operation is beneficial to Vermont.

CLF opposed Entergy’s past efforts. This new request is premature. It is contrary to the Court’s order and ignores facts that are important for the Board to hear. Most notable is the fact that Entergy provided false information to the Board about buried pipes.

Entergy’s lack of trustworthiness cannot be ignored. It is an important matter that has bearing on whether Entergy should be allowed to continue to operate Vermont Yankee.

While Entergy might like to ignore these facts, Vermont won’t.

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.