Dismantling the Latest Legal Delays in the Fight for Cape Wind

Jan 28, 2014 by  | Bio |  Leave a Comment

WindThe new year has brought more of the same when it comes to the decade-long battle over the Cape Wind offshore wind energy project proposed to be built in federal waters off the coast of Massachusetts. While Europe continues to leap forward with deployment of offshore wind – tapping into this resource’s unparalleled capacity to deliver tremendous quantities of clean electricity – yet another dubious lawsuit has been filed in an effort to further delay America’s first offshore wind project. In a week that saw Cape Wind again successfully beat back its opponents’ legal claims, this time winning a favorable decision from a federal appellate court , longtime Bill Koch–backed Cape Wind opponents filed yet another new lawsuit in federal court in Boston.

The case is called Town of Barnstable v. Berwick; however, no one should be fooled as to who’s really driving this new case. As detailed in press reports and earlier posts, we have good reason to believe that it’s Mr. Koch’s Alliance, not the Town, that is continuing to pay the bills in the ongoing pursuit of a longstanding strategy of “delay, delay, delay.” This is expected to be the first of two posts that will focus on the new lawsuit’s fatal flaws.

Latest Legal Claims Fail to Stand Up to Scrutiny
We will set aside, for now, the new lawsuit’s fundamental errors of fact and instead focus on explaining why the new legal claims are wrong. Basically, this new lawsuit alleges that the Cape Wind project violates the United States Constitution in two ways: first, that Cape Wind allegedly violates the Supremacy Clause (because federal law governs interstate electricity markets); and, second, that Cape Wind supposedly violates the Commerce Clause (on the claimed basis that Massachusetts is impermissibly favoring an in-state developer over possible out-of-state developers, even though most of the Cape Wind project will be built in federal, not state, waters).

Two recently decided federal lawsuits in Maryland and New Jersey are instructive in understanding that both of the anti-Cape Wind arguments in this new lawsuit are without merit. In fact, these two legal arguments are so weak that they would reveal the real purpose of this newest anti-Cape Wind lawsuit – i.e., delay through endless, meritless litigation – even if Mr. Koch had not publicly confessed to such a strategy.

Let’s look at both of the new lawsuit’s central arguments separately.

The “Supremacy Clause” Does Not Apply
The “Supremacy Clause” of the U. S. Constitution says that federal law generally trumps state law; in areas where the federal government has pervasive, all-encompassing laws and regulations, states are not allowed to enact laws or policies that directly contradict the existing federal laws. Wholesale, interstate electricity markets are an area that the federal government regulates, through a federal agency called the Federal Energy Regulatory Commission (FERC).

In many parts of the country, FERC has created independent companies to manage and run the regional electricity grid. Here in New England, FERC has licensed the Independent System Operator-New England (ISO) to manage and run central aspects of New England’s electricity grid. For Pennsylvania, New Jersey, Maryland, and several other states, FERC has licensed a company called PJM to play a similar role with respect to that region’s electricity grid. Because PJM and ISO are very similar to each other, these two recently decided cases I referred to above may have some legal bearing on the recently filed lawsuit against Cape Wind. (For those who are interested, the names of the two lawsuits I am discussing are: PPL Energyplus, LLC v. Nazarian, the Maryland case; and PPL Energyplus v. Hanna, the New Jersey case. I’ll refer to them here as Nazarian and Hanna.)

PJM and ISO are concerned with making sure that their respective geographic regions always have enough electricity to keep the lights on for electricity customers. One thing that they do to ensure this is to run a so-called “Forward Capacity Auction” three years ahead of time. Electricity generators bid into this auction, in effect offering to sell electricity in the geographical area three years in the future. These Forward Capacity Auctions are a principal means by which these operators of the electricity grid ensure that they will have enough electricity in the future. The procedures used to run these auctions are approved in advance by FERC; the auctions themselves are monitored by FERC; and FERC has to approve the results of the auctions. In short, federal law governs every aspect of the ways these auctions are run.

What happened in both the Nazarian and Hanna cases is that, after the capacity auction was run by PJM, Maryland and New Jersey were concerned that there would be a future shortage of electricity in their states. As a result, after the auction was run, and after the federal agency (FERC) approved the results of the auction, Maryland and New Jersey tried to do an impermissible end-run around the auction results by offering additional money – outside the auction – to anyone who would build a power plant in their states. In fact, in the Maryland case, the state actually said publicly that the reason for its action was specifically to do an end-run around federal law and regulations that were responsible for the PJM auction and its results! Not surprisingly, the courts in both cases ruled that state laws or policies could not directly contradict federal law in a specific area in which the federal government has exclusive jurisdiction. This violates the Supremacy Clause.

These two decisions simply have no applicability to Cape Wind. Neither the Commonwealth of Massachusetts nor the developers of Cape Wind nor the utilities that signed contracts with Cape Wind are trying to do an end run around the ISO’s Forward Capacity Auction – nor around any federal statute, regulation or rule. In fact, the Cape Wind project was well on its way to being permitted before the ISO ever held its first Forward Capacity Auction in February 2008.

State Interests Trump Commerce Clause Concerns
The second argument being advanced in the recently filed anti-Cape Wind lawsuit relates to the U. S. Constitution’s Commerce Clause. Basically, as a general rule, the Commerce Clause says that in the absence of a compelling justification no individual state can pass a law that benefits in-state residents and harms out-of-state residents. For example, Massachusetts cannot pass a law that says: “At all grocery stores in Massachusetts, in-state residents get a 10% discount on the prices shown, and all of-of-state residents must pay a 10% premium on the prices shown.” This (hypothetical) law would violate the Commerce Clause because it discriminates in favor of in-state residents and against out-of-state residents.

In both the Nazarian and Hanna cases, the plaintiffs claimed that the state laws that would encourage construction of in-state power plants violated the Commerce Clause because they were aimed at getting power plants built – but in state only. However, the courts in both cases ruled that this does not violate the Commerce Clause. That is, the holdings in both Nazarian and Hanna cut directly against the legal theory that the anti-Cape Wind lawyers are asserting in the newly filed case.

In both Nazarian and Hanna, the courts found that states have regulatory authority over many aspects of siting and permitting power plants. These include environmental concerns and legitimate concerns about getting enough electricity for their state’s electricity customers. In both Nazarian and Hanna, the courts found that these legitimate areas of state interest trump any Commerce Clause concerns.

In fact, the Judge in the Nazarian case wrote that individual states are allowed to facilitate the financing and construction of “certain types of power plants within its borders (such as environmental-related regulation)” without offending the commerce clause. Of course, that is what Massachusetts did when it established a requirement for electric utilities to enter long-term contracts to buy clean renewable energy – a requirement that ultimately resulted in two long-term contracts signed between utilities and Cape Wind, as well as a number of contracts with other projects. What’s more, most of the Cape Wind project isn’t even located within the borders of Massachusetts – it’s in federal waters. The judge in the Nazarian case also said that federal law specifically “preserve[s] states’ jurisdiction over certain direct regulation of physical generation facilities [including, specifically to] promote certain environmentally desired types of generation facilities.” Again, this holding shows why the new lawsuit against Cape Wind will fail.

New Day, Same Old Delays
We all know there is a climate-change emergency, and that it is crucial to develop non-carbon-emitting power plants to avoid the worst consequences of climate change. We all know that building Cape Wind is good public policy.

Based on a review of the latest weak, meritless claims advanced by opponents, we also know that their central strategy appears to be nothing more than the same old “delay, delay, delay.”

The Good, the Hopeful and the Ugly: Clean Energy in America and New England in the Fall of 2013

Sep 25, 2013 by  | Bio |  Leave a Comment

First, the good:  There’s some good news to report: The Commonwealth of Massachusetts and the State of Connecticut are well on the way to implementing key provisions in the clean energy laws that CLF helped craft. These provisions ensure that for years to come the residents of both states will enjoy the benefit of clean and cost-effective renewable energy generated by solar and wind power.

In Massachusetts, the Boston Globe reports, the utilities are proposing to buy 565 Megawatts of wind power from six wind projects in Maine and New Hampshire.  At least two of those projects will be built by Boston based First Wind.

The Connecticut utilities, reports the Hartford Courant, are proposing to purchase 270 Megawatts of clean power, with 250 of those Megawatts coming from a wind farm in Aroostook County, Maine and 20 Megawatts from a solar project in Sprague and Lisbon, Connecticut.

For over a decade, Conservation Law Foundation has been advocating for states to encourage and require these kind of cost-effective long term contracts between utilities and renewable energy developers (in financial jargon, “going long”). These kinds of contracts are a smart and cost-effective way of managing the transition to a clean energy economy and are consistent with the restructured competitive electricity system and markets that CLF helped to create in our region in the 1990’s. CLF supported similar contracts to make the Cape Wind project possible and worked to shape the laws in both Massachusetts and Connecticut that enabled and mandated the contracts that have just been proposed in both states.

And from Washington, hopeful news: Environmental Protection Agency administrator (and wicked big Red Sox fan) Gina McCarthy announced that EPA is moving forward with the regulations required by the Clean Air Act to regulate emissions of Carbon Dioxide, the primary greenhouse gas causing global warming, from new power plants. As CLF noted in our statement hailing this move:

The emissions limits proposed by EPA are critical to reducing the climate pollution that is raising sea levels, increasing extreme weather events and imposing devastating consequences on people and countries around the globe . . . For the past ten years, actions by the northeast states and countless power plant owners in the region have demonstrated that reducing greenhouse emissions is not only good environmental policy, but also enhances the region’s economic prosperity by more efficiently and cost effectively making and using electricity. Our long experience in decreasing electric sector greenhouse gas emissions in New England, while also reducing energy costs, has blazed a path for EPA to follow in implementing the requirements of the Clean Air Act.

 In a moving and unusually personal essay, Ms. McCarthy explained the regulations and put them the context of her long career in Massachusetts that began with her work as a town public health agent:

I didn’t plan for a life built around protecting the environment. In fact, I started my career as a health agent in the town of Canton, Mass., and later worked for the Stoughton Board of Health. But at some point I realized that at its core, the issue of a clean environment is a matter of public health. The two are inextricably linked.

 This is the perspective that we need to embrace – focusing on the practical connection between reducing emissions and protecting the public health.  This perspective underlay the efforts to slash dangerous emissions in the Northeast and is a solid foundation for the work that EPA is now doing nationally.

And, sadly and unsurprisingly, the “Ugly” is found on Capitol Hill in Washington DC: Recently, I wrote here about what a great choice President Obama made when he nominated Ron Binz of Colorado to be a Commissioner (and the Chairman) of the Federal Energy Regulatory Commission. Mr. Binz is a reasonable and moderate man with an even temperament, a good sense of humor, deep knowledge of the energy world, the ability to see things from a range of perspectives (drawing on his broad experience as a consumer advocate, businessman and state energy regulator) and a clear sense of how to manage the difficult transition that the energy system is experiencing.

It is therefore very disappointing that his nomination is “in trouble.” Mr. Binz is being attacked for having had incidental contact with a lobbying firm hired by others to respond to the massive and unprecedented campaign against his nomination. The closest thing to a substantive complaint against Mr. Binz is this: he has stated that if the Federal government continues to move forward with the regulation of greenhouse gases that, unless carbon capture and sequestration (CCS) is perfected and made commercial for natural gas fired power plants so they can run without contributing to global warming, gas will no longer be usable as a major fuel at some point in the future.  In public remarks, that reflect very mainstream thinking in the energy industry, he noted this reality and said that absent CCS the move away from gas must begin before 2035, using the phrase “dead end” to describe the situation.  If you have an appetite for deep engagement of complex energy issues featuring Jim Rogers, the retiring CEO of Duke Energy and Mr. Binz check it out on Youtube – the “controversial” remarks used to create a phony controversy can be found around the 30 minute mark.

Given the current state of affairs on Capitol Hill it is possible, if not likely, that this excellent nomination will fail. That would be a shame indeed.

 

Renewable Energy on Vermont Dairy Farms — Challenges and Opportunities

Jul 25, 2013 by  | Bio |  1 Comment »

A version of this article first appeared in the Sunday July 21 edition of the Rutland Herald /Times Argus.

Helping farms and Vermont businesses thrive while cleaning up the environment is a win all around.

Conservation Law Foundation is pleased to serve on the Executive Committee to help Vermont’s homegrown Green Mountain Power Cow Power program to pave the way for cleaner air, happier farm neighbors and more successful Vermont businesses.

The program works by turning farm manure into electricity. The average cow produces more than 30 gallons of manure a day. Multiply that amount by 1,000 — the numbers of cows on a typical Cow Power farm — and you have a lot of cow manure. That means there is also a lot of methane, which can be used to create electricity.

Here is how it works. The manure is placed in a digester at the farm that converts the waste into methane gas. The gas fuels an engine that runs an electric generator.

Gases that would otherwise create a nuisance and release harmful and very potent greenhouse gases are instead captured to produce electricity.

Farms have an additional revenue source, and the rest of us have cleaner air and renewable power.

Currently GMP Cow Power farms are producing electricity for nearly 3,000 Vermont homes and businesses. With the expansion of GMP Cow Power so that it is now available to any GMP customer, there are opportunities to grow the program even further. Customers can sign up and make a voluntary 4-cent-per-kilowatt-hour payment on all or a portion of their electric bill. The contribution goes directly to support Cow Power projects to reduce pollution and produce 100 percent renewable power that gets used in Vermont.

Methane is one of the most potent greenhouse gases. Its global warming impact over a 20-year horizon is nearly 75 times more potent than carbon dioxide because methane traps radiation much more effectively. But instead of simply being released into the air, farm methane can be used to produce electricity. This reduces pollution and makes the farm methane projects some of the best fighters of climate change.

These projects don’t just create renewable energy; they effectively capture some of the most potent global warming gasses.

Twelve GMP Cow Power farms remove the equivalent of over 40,000 metric tons of carbon dioxide from the atmosphere every year, in addition to replacing 6,800 tons of carbon from other electric sources. This is equivalent to removing more than 9,000 cars from the highway each year that would have burned 5.3 million gallons of gasoline. These are big numbers — and the biggest benefit comes from removing methane.

Removing farm-generated methane is great but it comes with some real challenges. The first is financial. The equipment is expensive and requires steadfast maintenance to operate smoothly. It is not like a refrigerator you plug in and forget about, and is mostly economically viable only for our larger farms at this stage of technological development.

To be a real success, we need to make this work for smaller farms as well. A few smaller-scale applications are underway that look promising. For instance, some simpler digesters are used in other parts of the world. The ingenuity of Vermont’s farmers and engineers will undoubtedly yield a product that works well on smaller farms within the next decade, but we don’t have it yet.

One way to improve the economics is to find a way to value and pay for the many real benefits of farm methane projects. They are counted now as renewable power, but offer additional advantages as well. One approach would involve credits or payments that recognize their value in reducing methane pollution. That could make it economically feasible to operate smaller-scale projects, or even applications that use digesters alone, without producing electricity.

Another opportunity – and challenge – is expanding the materials used in the digester. Some farms now use additional organic waste in their digesters, such as waste from ice cream manufacturing or fish production. Currently only pre-consumer waste can be used on farms, and off-farm substances cannot make up more than 49 percent of the total digested waste.

New opportunities arise as Vermont moves to expand digesting for managing solid waste. Some organic wastes are very good fuel for digesters and can produce more methane per pound than manure, but the challenge is to make sure the waste is handled well from beginning to end. After digestion is complete and electricity is made, waste and nutrients still remain. We must be careful not to import or spread more nutrients than our land is capable of absorbing on our farm fields. Lake Champlain is already suffering from excess nutrients, and digesting our waste should not be allowed to make this problem worse.

Another new possibility includes expanding how the “products” made with farm digesters are used. Currently farms use the heat produced from the digesters to keep the digester warm. But this heat could also be used to support greenhouses or a new district heating project, among other possibilities. The challenge is to be as resourceful as possible and, like our farms, use as much of the output as possible. This will expand the reduce, reuse and recycle practice even further by adding “upcycling” — converting waste materials into products of better quality or with greater environmental value — while providing an additional revenue source.

Cow Power presents real, exciting opportunities and challenges. The leadership and innovation Vermont’s farms, businesses, utilities and customers have already shown are poised to take these efforts even further.  If you are a GMP customer, your participation in GMP Cow Power and your 4 cents per kilowatt-hour makes a huge difference. Sign up now at: http://www.greenmountainpower.com/renewable/cow/enroll/

 

green-mountain-power

Connecticut Moves (Mostly) Ahead on Clean Energy

Jul 9, 2013 by  | Bio |  Leave a Comment

On July 8, 2013 the Governor of Connecticut, Dannel Malloy stepped up to the microphone and made a series of major announcements about the critical topic of energy.

Connecticut Clean Energy

Governor Malloy’s first task at the podium was to present the law he had just signed which set in place and partially implemented a Comprehensive Energy Strategy for the Nutmeg State. As CLF said in our press statement, this new law position Connecticut to take critical steps toward reaping the benefits of energy efficiency, our strongest, best and most widely available renewable resource.  The State can create the much-needed jobs and consumer savings it seeks by ramping up the state’s electricity and natural gas efficiency programs, rather than rushing to build costly and unnecessarynew natural gas infrastructure. Under its energy strategy Connecticut is moving to foster some great infrastructure, like charging stations for electric vehicles, but is also taking some very questionable steps towards building new natural gas pipes that will last for decades – long after we will have had to kick the fossil fuel habit if we are going to avert climate disaster.

The second subject of the announcement by Governor Malloy was the official launch of a large-scale purchase of energy from wind and solar power projects.  Thanks to this purchase, Connecticut residents will benefit from cleaner air, more stable energy prices and new, green jobs. This initiative allows Connecticut to join with Massachusetts to purchase energy ‘in bulk’ and have each state recognize the considerable economic benefits of regional collaboration. Connecticut’s purchase seeks to bring under contract wind power capable of producing over 500 Megawatts of electricity – which means that during peak wind conditions those wind farms will be producing more power than the mammoth and obsolete oil and coal power plants that blight the waterfronts of Bridgeport and Norwalk.  However, as we also noted in our statement, the renewable energy law which enables the purchase contains potential pitfalls alongside its promise of new wind and solar development, especially as regarding imports of large hydropower from Canada.  Butif implemented correctly, the renewable energy purchase will ensure that hydropower imports will complement rather than inhibit homegrown wind and solar development.

Connecticut Clean Energy

The Mars Hill Windfarm in Maine.

CLF is proud to have played a role in moving the renewable energy purchase forward and reducing the risk that imported hydropower will be used inappropriately. We look forward to working to ensure that this balance is maintained with imported hydropower playing an important supporting role behind wind and solar power while displacing fossil fuel fired power generation.

President Obama Steers U.S. Climate Policy Towards the Lighthouse of New England Leadership

Jun 25, 2013 by  | Bio |  Leave a Comment

President Obama has always talked a good game on climate. But simply stating that “for the sake of our children and our future we must do more to combat climate change” is not a substitute for action. Today, the President proposed a package to step up the actions of the federal government to confront and attack this fundamental threat to our communities, economy, families and environment.

CLF applauds the President’s actions to reduce the greenhouse gas emissions that are changing our climate – emissions that damage the public health as well as our environment; harming our kids and our climate. However, we feel obliged to point out that these are simply overdue steps in the implementation of the Clean Air Act. In the landmark case of Massachusetts v. EPA the Supreme Court clearly laid out the duty of the federal government to address the pollutants causing global warming under that law.  This is not about unilateral action by the Administration:  it is about the executive branch doing its essential job of implementing the law enacted by Congress and interpreted by the Courts.

While the emissions reductions efforts the President is proposing are modest, they are very much a step in the right direction — as long as they aren’t undermined by any approval to move dirty and dangerous tar sands oil through our country.

Addressing, Not Just Feeling, the Impacts of Climate Change

The President’s plans for taking on the practical business of adapting to and managing life in a changing climate is another common sense step in the right direction. Given the real and devastating impacts of blistering summer heat, rising seas, extreme rain and snow storms on our communities and economy, this work is essential.  The focus of the Administration on climate adaptation efforts by U.S. Department of Agriculture is heartening.  It is hard to think of something more fundamental to our families and communities than food; drought and other climate change impacts are wreaking havoc on our food system, and so far, this issue has not received sufficient attention.

Building on a Record of State Leadership

By moving forward with emissions reduction measures, the federal government sets off (at last!) on a path blazed by the states that have been leaders in the effort to reduce dangerous emissions from the burning of coal, oil and gasoline.

New England, along with a few other states and regions, has been a beacon for the nation on climate and energy policy. Over the last decade New England, according to data compiled by the U.S. Department of Energy, has reduced its emissions of carbon dioxide from the burning of fossil fuels, the chief cause of global warming, by over 10%: reducing regional emissions by over 20 million tons a year.  Our emissions reductions have been accompanied by a rise in new economic investment in clean energy and technology. In Massachusetts alone, an economic survey showed the Clean Energy economy growing by 11.2% between July 2011 and July 2012 with a business census revealing 71,523 people employed at 4,995 clean energy businesses across the state.

CLF and its allies in the region are continuing to set a high bar for both the states and the feds, pushing for a Coal Free New England where our electricity comes from increasingly clean sources and is used more and more efficiently, as well as reducing emissions from our transportation system by shifting to cleaner cars, increasing transit use and building smarter and healthier communities. We must continue to pursue emissions reductions that meet the mandates of science and science-calibrated laws like the Massachusetts and Connecticut Global Warming Solutions Acts.

CLF is all about environmental solutions – and therefore we cheer the decision to further expand the aggressive development of renewable energy on federal land and federally owned, managed and financed facilities.  From intelligently and carefully sited wind farms to solar panels on housing projects to delivering on the promise of offshore wind, the time has come to go fossil free.

The Moral Duty to Act – Retreat or Surrender Are Not Options

There is no going back – the plans for emissions regulation, adaptation planning and renewable energy development unveiled today are  long-overdue steps that require aggressive action to bring to fruition. The duty to act might be invested by law in the Administration but the moral duty to protect future generations rests with all of us and we must hear the call and push our elected representatives, from the President on down, to take action.

Oil and Water Don’t Mix

May 14, 2013 by  | Bio |  1 Comment »

Cape Cod National Seashore

With warming seas and ocean acidification putting unprecedented pressure on our already heavily fished, shipped, and polluted coastal areas, adding the extreme pressures of seismic testing and offshore oil drilling, which we keep hearing are supposed to be safe and foolproof, but never really are, seems like a foolhardy move.

There are plenty of other options for developing offshore energy that will not put us at such high risk of horrible toxic spills and deadly-to-wildlife noise. We don’t want dead or deformed fish, whales, and dolphins in our ocean, and tar balls on beaches where our kids build sand castles. We have some of America’s most beautiful coastal areas and amazing ocean life here in New England, and we need to keep them that way.

What can you do to help? Be part of a global campaign by joining one of your local Hands Across the Sand events this Saturday, May 18th, 12 PM local time, to say “No” to dirty fossil fuels and “Yes” to clean, renewable energy. Hands Across the Sand started in Florida in 2010, and has rapidly grown into a major global campaign. The idea is simple – join your fellow ocean champions on the beach, lock hands, and unite in opposition to dirty energy.

Have someone take a picture and post it to the Hands Across the Sands Flickr page (and, if you’re in New England, please share your photos with us, too!), and send it to your elected officials for even greater impact. Visit the Hands Across the Sand page to find a local even or organize your own.

Fishermen, beach-goers, surfers, and conservation groups agree – oil drilling has no place in New England’s ocean. So take a stand and put your Hands Across the Sand!

This was originally posted on New England Ocean Odyssey on May 14th, 2013.

Fighting Bad Bills in Rhode Island

May 13, 2013 by  | Bio |  Leave a Comment

My colleagues in CLF’s Rhode Island office have been doing some important work that deserves attention this legislative session. Two of their efforts stand out: opposing the governor’s attempt to create special legislation to import power from Hydro-Quebec, and opposing the Rhode Island House leadership’s attempt to create a state Commerce Department that would take over permitting functions from the Department of Environmental Management and Coastal Resources Management Council.

Rhode Island State House

Rhode Island State House, courtesy of Mr. Ducke @ Flickr

You’ve likely read more here (or here, or here) about Hydro-Quebec. The company, which (unsurprisingly, given the name) produces power from large-scale hydroelectric dams located throughout the Canadian province of Quebec, has been making a strong push to sell this power to states throughout New England. Hydroelectric power might not be so bad on its own, but Hydro-Quebec has some serious issues. Not least of these is that the most prominent proposal for transmitting additional power from Quebec to New England is a proposed transmission project through New Hampshire – the Northern Pass – that is being developed by New Hampshire’s dirtiest utility and is, in its current form, a deeply flawed proposal that may not provide meaningful environmental benefits. And, also distressingly, Hydro-Quebec has sought special legislation in each of the states it has been courting.

Here in Rhode Island, the governor has been pushing one such piece of special legislation; CLF Staff Attorney Jerry Elmer has been pushing back. The governor’s bill would require National Grid (Rhode Island’s only major electric utility) to solicit proposals and then enter into a long-term contract for a large-scale, 150-megawatt hydroelectric project. This requirement would not only displace but likely eliminate local, small-scale renewable projects that the current long-term contracting statute was designed to benefit. At the same time, it would likely drive up energy costs, sending Rhode Island dollars to Canada. And, again, importing more power from Quebec through this mechanism seems calculated to advance the poorly conceived Northern Pass project in New Hampshire. As Jerry told the House Committee on Environment and Natural Resources, it is rare that environmental organizations, energy utilities, existing renewable and conventional power plant owners, and ratepayer advocates unite so seamlessly and forcefully as they have in opposition to the large hydropower bill. And the representatives from these diverse interests all recognized Jerry’s leadership, frequently introducing their own testimony with the phrase, “As Mr. Elmer said …” – certainly a sign of effective advocacy.

Meanwhile, Rhode Island House leadership has been touting an “Economic Development Package” of bills designed to enhance the business climate in Rhode Island. Unfortunately, one of these bills would move DEM’s permitting functions and all CRMC programs and functions to a newly created “Executive Office of Commerce.”  The purpose of these moves would be to ensure that environmental permitting delays do not hold up business development.

At a hearing before the House Finance Committee, CLF Vice President Tricia Jedele pointed out the many reasons this proposed bill makes no sense whether viewed through the prism of policy or law. (You can view her testimony here, beginning midway through minute 162.) The bill ignores the reasons for permitting delays under the current regime: some delays are the result of the severe staff cutbacks DEM has suffered in the last several years; others are perfectly justified as a way to protect Rhode Island’s greatest asset – its natural resources – against exploitation. Moving permitting functions to a new Executive Office of Commerce would not restore DEM staff or better prevent exploitation.  Moreover, the bill suggests a tension between business and environment, even though a robust business climate and a clean, healthy environment can peacefully coexist under an adequate permitting regime. Perhaps most importantly, though, the bill could throw Rhode Island’s environmental permitting programs into total disarray. Many permitting programs are founded on authority delegated to the state by EPA under a host of federal environmental laws. These programs are subject to EPA oversight, and tinkering with them could easily result in EPA’s withdrawing approval and taking over permitting functions itself. Needless to say, this is not the goal of the commerce bill. Instead, Tricia told the Finance Committee, a simple solution would be to leave DEM and CRMC’s functions alone, to staff them adequately, and to add staffers to the new Department of Commerce who can help guide businesses through the permitting process. This argument was well-received, and CLF now has the opportunity to work with the House to reform the bill.

Again, my colleagues have been too busy doing this work to call attention to it, but I think it’s important to take a moment to recognize just how valuable they are to Rhode Island and its environment.

Worth Remembering: Northern Pass Would Mean Big Changes in the White Mountains

May 8, 2013 by  | Bio |  Leave a Comment

(photo credit: flickr/crschmidt)

(photo credit: flickr/crschmidt)

With the Northern Pass “new route” drama entering its third year (Northeast Utilities executives once again failed to announce any progress on last week’s investor conference call), it’s important to remember that all we’ve been talking about is the northernmost forty miles of what is a 180-mile project that stretches from the Canadian border to southeastern New Hampshire.

The “new route” will not change one of the proposed Northern Pass project’s most troubling segments: approximately 10 miles through the White Mountain National Forest, within the towns of Easton, Lincoln, and Woodstock. It goes without saying that the Forest is one of New Hampshire’s most treasured public assets: a vast and magnificent wilderness that is among the most accessible and visited natural wonders in the nation and the cornerstone of the state’s tourist and recreation economy. The Forest is an awe-inspiring place, and its ongoing stewardship is one of those things that make me profoundly proud of this country.

Project affiliate Public Service Company of New Hampshire (PSNH) has a “special use permit” from the United States Forest Service for an existing transmission line, built in 1948, which is largely comprised of H-frame wooden poles standing about 50 feet tall. Northern Pass developer Northern Pass Transmission LLC (NPT) is now seeking a special use permit to remove the existing line and build two new sets of towers (one carrying the new Northern Pass transmission line and the other carrying the existing line) with a “typical” height of 85 feet.

Proposed Northern Pass tower design (existing towers in background)

Proposed Northern Pass tower design (existing towers in background)

You can read NPT’s permit application here (PDF) and download its attachments here. The project’s construction would impact important wildlife habitat and ecologically sensitive high-altitude wetlands, and the new more prominent towers would cross the Appalachian Trail and impact a number of the Forest’s other signature hiking areas and viewsheds. It’s also worth noting that the project’s failure to provide meaningful greenhouse gas emission reductions falls particularly hard on the Forest, where climate change is already shifting seasons, reducing snowpack levels, and disrupting mountain ecosystems in significant ways.

It will be up to the United States Forest Service – and specifically the supervisor of the White Mountain National Forest  – to decide whether to approve NPT’s permit application. In particular, the Forest Service must determine whether granting the proposed use is “in the public interest” and consistent with the current management plan for the Forest, which includes special protections for the Forest’s most important natural and scenic resources. This decision will follow the United States Department of Energy’s environmental review of the Northern Pass project as a whole, which CLF has been fighting to improve since the project was first announced in 2010.

Earlier this year, a diverse coalition of conservation organizations, including CLF, along with a grassroots group, several Forest communities, and the regional land use planning commission wrote to the Forest Service, urging the agency to take all available steps at its disposal to ensure comprehensive and rigorous scrutiny of the Northern Pass project and a full analysis of all reasonable alternatives, especially those alternatives that avoid or minimize impacts within the Forest.

Our letter (PDF) highlighted the Forest Service’s stewardship obligations and the special and stringent standards for granting a special use permit. We explained that the Northern Pass project, as proposed, is very different from an ordinary utility transmission line constructed to extend service or improve system reliability; the project is much more like a private commercial development, with no specific policy or law encouraging or requiring its development. We suggested that it was critical for the Forest Service to take these features into account as it weighs whether the project would be consistent with the “public interest” and the Forest’s management plan. Finally, we recommended that the Forest Service avoid relying on data collected by the first contractor hired to conduct the federal environmental review of the project, which was withdrawn by NPT after a public uproar, and that the Forest Service exercise its prerogative to order Forest-specific studies and to scrutinize and question all data and analysis presented by the current contractor team, the objectivity of which is in serious doubt.

Oddly, the federal environmental review of Northern Pass seems to be moving forward even as the project is stalled and the northernmost route has not been disclosed. As field work, studies, and analysis proceed, the Forest Service is hearing from many voices registering strong opposition to Northern Pass’s special use permit application, through efforts like ProtectWMNF.org and this recent citizen-generated petition. If you are concerned about the impacts of the Northern Pass project on the White Mountains, you can add your voice through those resources or by filing a comment with the United States Department of Energy.

A Message to the Energy Industry: The Demise of Northern Pass 1.0

Apr 26, 2013 by  | Bio |  2 Comment »

Earlier this week, I brought a message from New Hampshire to a gathering of major players in the Northeast’s energy industry in lower Manhattan, the Platt’s Northeast Energy Markets Conference.

wall street

(photo credit: flickr/Mathew Knott)

Remember Northern Pass, that novel Northeast Utilities transmission project that would import 1,200 megawatts of large-scale hydropower from Hydro-Québec?

The project, as it was conceived and pitched to the region and the industry, Northern Pass version 1.0 if you will, is dead.

I ran through the key financial elements of the original proposal, what I called the Northern Pass gambit:

  • $1.1 billion to build a new transmission line, funded wholly by Hydro-Québec.
  • A generous “return on equity,” or guaranteed profit on project costs, of 12.56% for project developer Northeast Utilities, paid by Hydro-Québec.
  • Easy and inexpensive siting approvals for the line, which would be located solely in New Hampshire, mostly in corridors controlled by Northeast Utilities subsidiary Public Service of New Hampshire, the state’s largest and most powerful electric utility.
  • Ample profits that would cover all Northern Pass costs and much more for Hydro-Québec, which would sell its hydropower in New England’s lucrative wholesale electric market, where energy prices were, in 2008 and 2009 when Northern Pass was conceived, orders of magnitude higher than Hydro-Quebec’s costs of generating power.
  • Unlike New England-based renewable projects, no public or ratepayer subsidies.

These elements looked good to investors on paper. But they have, one by one, fallen apart, and they no longer add up. I took the audience through the Northern Pass reality:

  • Years of a stalled siting process, as Northeast Utilities tries to purchase a new route for the northernmost 40 miles of the project, where PSNH has no transmission corridor, with repeated missed deadlines for announcing the new route and restarting the federal permitting process.
  • Increasing costs – an estimated additional $100 million in project costs already, even without accounting for any new route, mitigation commitments, or any underground component.
  • Growing doubt (even more pronounced than a year ago) that Hydro-Québec can recover Northern Pass development costs and its hydropower costs (which will only increase as costly new dam projects continue in northern Québec) through energy exports, given that wholesale energy prices in New England are now much lower.
  • Opposition by the vast majority of communities affected by the project, 33 at last count, local chambers of commerce, political leaders, and a diverse, well-organized grassroots movement of residents.
  • No support from any New England environmental group.
  • Mounting risk to NU’s lucrative return on equity, with the underlying deal expiring in 2014, and any renewal subject to federal regulators’ recently more skeptical view of such incentives.

And finally, I gave the eulogy for the key financial element of Northern Pass 1.0 – the one that attracted so much interest in regional energy circles, was the project’s key distinguishing feature from New England renewable energy projects, and continues to reside within the project’s discredited and misleading media campaign: the promise that the project would not require any subsidies.

In the last several months, as CLF predicted, Northeast Utilities, Hydro-Québec, and their allies have launched a major initiative to secure out-of-market subsidies of one form or the other for Canadian hydropower.  These efforts are now raging in the legislatures of Connecticut and Rhode Island and are simmering in other New England states. CLF is deeply engaged in protecting our state Renewable Portfolio Standard laws from this incursion and in turning back any long-term deals that will supply Canadian hydropower to these states at above-market prices or in a way that threatens renewable deployment in New England.

To us and to others, the false urgency associated with these proposals seems transparently calculated to advance a “Northern Pass 2.0,” just as Northern Pass 1.0 falls apart.

What would Northern Pass 2.0 look like? On the ground, whatever the “new route” New Hampshire continues to wait for, it will almost certainly look the same as Northern Pass 1.0, suffering from many of the same failings. But there will be some key differences, as the project’s underpinnings shift to accommodate a new economic reality. It will rely on public and/or ratepayer subsidies that will mean that New England will pay an above-market premium for the power or will provide an out-of-market gift of long-term energy price certainty to Hydro-Québec, in part to finance the associated transmission. In addition, many in New Hampshire’s North Country believe that the project will need to be sited on public land that is legally off-limits to circumvent the strong, ongoing efforts of the Society for the Protection of New Hampshire Forests to secure blocking conservation easements – in effect, another public subsidy for the project that will face overwhelming pushback in New Hampshire. (Clearly, Northern Pass’s dogged legislative fight to secure an ability to use eminent domain for the project, which it lost in resounding fashion in 2012, was only a preview of coming tactics.)  

As CLF has consistently said, there may be appropriate alternatives to Northern Pass that strengthen New England’s access to Canadian hydropower resources, but only if those alternatives are pursued through well-informed, fair, and transparent public processes, provide meaningful community and ratepayer benefits, displace our dirtiest energy resources, and verifiably result in carbon and other emissions reductions. It does not appear that the emerging Northern Pass 2.0 – buoyed by a set of special deals and no discernible improvements – would do anything to advance these basic common sense principles, which should guide the region’s transition to a resource mix that will power New England’s clean energy future.

With few signs that Northern Pass’s sponsors have learned lessons from their missteps so far, Northern Pass 2.0 looks to have an even tougher path in New Hampshire than the dead end road that Northern Pass 1.0 has traveled. This was a message from the Granite State that the world of energy industry insiders and analysts needed to hear.

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