Legalectric

One of the hearings for the Delaware Integrated Resource Plan was Wednesday – they were Tuesday, Wednesday, and Thursday, and I figured I’d get to two out of three, but then Thursday the Mesaba decision came down at 5:18 p Eastern Time, necessitating an evening of email and phone calls, and then I got carried away with celebrating and forgot to post this, and so now that it’s down to a dull roar, oh well, better late than never, here it is!!

Integrated Resource Plan Docket Site

RFP Docket Site

Public Notice – How to Submit Comments

Written comments from the public will be accepted on or before Wednesday, May 2, 2007. Written comments should be submitted to the Commission at 861 Silver Lake Boulevard, Cannon Building, Suite100, Dover, Delaware 19904.

It just sorta rolled along, first to speak about the IRP was James Black of the Clean Air Council; then Lisa Pertzoff of Delaware League of Women Voters; then John Flaherty, lobbyist for Common Cause but speaking as an individual; Richard Fleming of Delaware Nature Society; Willard Kempton of the College of Marine and Earth Studies, University of Delaware, representing himself; Karen Igou, Green Party of Delaware (perhaps speaking as an individual); Elaine Titus who had an off-topic question about relationship between Delmarva and Atlantic City Electric; Andrew Waltz, an individual; Moi; Tom “NO-YES” who works for Sam Waltz but speaking as an individual; Caleb James, an individual.

Overall, the public is clamoring for wind generation. Like the Northfield phone survey a while back, a recent study demonstrated that over 80% of the people surveyed want wind, and they want it now. What concerned me about the IRP is that there’s general confusion or lack of understanding of what Integrated Resource Planning is. Most of the Commenters were saying “approve the Bluewater Wind proposal” but that’s the Request for Proposals (RFP) docket, not the Integrated Resource Planning (IRP) docket. That’s not going to happen in the IRP. What’s needed is Comments on IRP issues like how exactly will DP&L fulfil the SOS (SOL) load? What is the generation mix? Given the statute, how much weight on the different criteria listed in HB6 (that’s all below).

Here’s the Bluewater Wind proposal everyone is so hot to trot about!

I had a chat with Peter Mandelstam about Bluewater’s role in the IRP, because what would really jar Delaware’s thinking into where it NEEDS to be is to propose a wind/gas combo. With that, the awful coal plant owned by NRG could be shut down! What’s it going to take? A little uumph and cooperation from Connectiv?

Here’s the report in the News-Journal:

Public weighs in on state’s energy plan

But a recurrent problem, rearing its ugly head on Wednesday night, is that public participation is being quashed, and those who have intervened are being forbidden to speak at the public hearings!  How ludicrous!  Here’s what the News-Journal wouldn’t report:

At the beginning of the hearing, there was some discussion about the PSC’s Hearing Examiner O’Brien’s decision that Intervenors could not comment at the public hearing opportunities, and apparently Firestone had put in his two cents worth at the unreasonableness of that decision.  Later in at the hearing, when asked by Intervenor Alan Muller to cite the authority for banning intervenors from making comments at the Public Hearing on the Integrated Resource Plan, Hearing Examiner Ruth(less) Price said, gavelling as she angrily spoke:

“I’m not citing anything. You’ve heard me, and that’s it. Intervenors will have an extensive opportunity in an evidentiary hearing to be heard…”

Funny thing was, she didn’t cite any authority for quashing public participation!  And Alan didn’t even have his gag on…

After the hearing ended, PSC Chair Arnetta McRae, who was in the audience at the time, flagged me town and wanted to know if I was up on Delaware law, if I had the background information (assuming I did not know, that I had no clue), about whichI was knowledgable enough to point out that they were opearating without rules!!! Oh well, as with Minnesota, who needs rules for utility regulation?!?!?

But it’s convoluted, the public does not understand IRP v. RFP. Deregulation was believed to have eliminated IRP, though I think that’s wishful thinking on the part of DPSC, the party line and not quite reality. HB6, which was an attempt by the Delaware legislature to mitigate the extreme cost increases of deregulation — remember how this was supposed to LOWER rates? Right, well, here’s an example of what it means to cower before that corporate lie! Politicians are feeling the heat from furious consumers, and so instituted HB6 to look at long term power contracts to stabilize rates. This only affects the Standard Offer Service customers (I think of them not as “SOS” but as the “SOL” ratepayers) who are the ones, the vast majority of ratepayers, who did not opt out of DP&L. But talk of the huge rate increases has died down, and in its place has come a massive movement for wind generation. This by far out paces al other concerns — Delaware residents want wind generation! And wind generation can best be accomplished through a thorough resource planning process. IRP is what sets the policy, IRP is what drives electric generation choices.

As to Integrated Resource Planning specifically, here’s what HB6 says:

(c)(1) DP&L is required to conduct Integrated Resource Planning. On December 1, 2006, and on the anniversary date of the first filing date of every other year thereafter (i.e., 2008, 2010 et seq.), DP&L shall file with the Commission, the Controller General, the Director of the Office of Management and Budget and the Energy Office an Integrated Resource Plan (“IRP”). In its IRP, DP&L shall systematically evaluate all available supply options during a ten (10)-year planning period in order to acquire sufficient, efficient and reliable resources over time to meet its customers’ needs at a minimal cost. The IRP shall set forth DP&L’s supply and demand forecast for the next ten (10)-year period, and shall set forth the resource mix with which DP&L proposes to meet its supply obligations for that ten-year period (i.e., Demand-Side Management Programs, long-term purchased power contracts, short-term purchased power contracts, self generation, procurement through wholesale market by RFP, spot market purchases, etc.).

1. As part of its IRP process, DP&L shall not rely exclusively on any particular resource or purchase procurement process. In its IRP, DP&L shall explore in detail all reasonable short- and long-term procurement or Demand-Side Management strategies, even if a particular strategy is ultimately not recommended by the Company. At least 30 percent of the resource mix of DP&L shall be purchases made through the regional wholesale market via a bid procurement or auction process held by DP&L. Such process shall be overseen by the Commission subject to the procurement process approved in PSC Docket #04-391 as may be modified by future Commission action.

2. In developing the IRP, DP&L may consider the economic and environmental value of:
(i) resources that utilize new or innovative baseload technologies (such as coal gasification);
(ii) resources that provide short- or long-term environmental benefits to the citizens of this State (such as renewable resources like wind and solar power);
(iii) facilities that have existing fuel and transmission infrastructure;
(iv) facilities that utilize existing brownfield or industrial sites;
(v) resources that promote fuel diversity;
(vi) resources or facilities that support or improve reliability; or
(vii) resources that encourage price stability.
The IRP must investigate all potential opportunities for a more diverse supply at the lowest reasonable cost.

3. The Commission shall have the authority to promulgate any rules and regulations it deems necessary to accomplish the development of IRPs by DP&L. Commencing in 2009, DP&L shall submit a report to the Commission, the Governor and the General Assembly detailing their progress in implementing their IRPs.

26 Del.C. § 1007(c)(1).

There’s a lot of room there for thorough inquiry and development of a truly Integrated Resource Plan. So open the process up and get to work!!!! Hear that, Delaware?

FYI, Salem I shut down yesterday due to low water levels. Reassuring, huh, makes me glad to be back here with a full frontal of Prairie Island.

What to do… time off and still the blog calleth!

Catching up from last week — It was a hot spring day in Delaware, the mosquitos out in full force, temp in the 70’s, hard to believe for late March, and a good day for roaming around. There’s this blacksmith shop on the main drag in Delaware City, 123 Clinton St., where years ago the NIRS “nuclear waste cask” was stored.  It’s obviously run by somebody conscious, eh, and it’s worth a look see. The shop is owned by blacksmith Kerry Rhoades:

Here’s his site: Forged Creations where you can see that this is fine art in heavy metal. He’s got a entry way filled with anvils, some 300 years old, and he’s at the ready to give an enthusiastic tour. The were working on a door with iron supports and hinges, and I think a frame. Here’s a huge press that makes an impression:

The place is filled with amazing projects, ranging from functional tools to decorative fru-fru for the yard, to big, big knives…

 
Global warming — it’s enough to gag a scientist!

In today’s SFChronicle:

U.S. accused of silencing experts on polar bears, climate change

Scientists told not to speak officially at conferences

Jane Kay, Chronicle Environment Writer

Friday, March 9, 2007

The federal agency responsible for protecting Arctic polar bears has barred two Alaska scientists from speaking about polar bears, climate change or sea ice at international meetings in the next few weeks, a move that environmentalists say is censorship.

The rule was issued last month by the U.S. Fish and Wildlife Service but was made public this week. The federal government has proposed listing the polar bear as a threatened species, and the wildlife agency is receiving public comment on the proposal.

“It’s a gag order,” said Deborah Williams, a former high-level Interior Department official in Anchorage, Alaska, who received documents on Wednesday from Alaska scientists who chose to remain unnamed. The documents make the subjects of polar bears, climate change and sea ice off limits to all scientists who haven’t been cleared to speak on the topics.

Two of the memos are copies of those prepared for Craig Perham and Janet E. Hohn, who are traveling to Russia and Norway this month and in April. The scientists “will not be speaking on or responding to these issues” of climate change, polar bears and sea ice, the memos say. Before any trip, such a memo must be sent to the administrator of the Fish and Wildlife Service in Washington.

According to the memos, agency scientists must obtain a memorandum designating which official, if any, is allowed to respond to questions, particularly about polar bears, and include “a statement of assurance that these individuals understand the Administration’s position on these issues.”

Tina Kreisher, communications director of the Interior Department, which oversees the wildlife agency, said in an interview Thursday that the government isn’t trying to silence scientists from talking about their findings — but they don’t want them to make policy statements.

At a news conference, Fish and Wildlife Director H. Dale Hall denied that the memos were a form of censorship. He described the content of the documents as part of a policy to establish an agenda and the appropriate spokesperson for international meetings.

Considering the high-profile nature of climate change and the issues that might come up, it was prudent to know ahead of time what everyone was going to discuss, he said.

“We are not gagging scientists,” said Hall. They can speak with other scientists at international gatherings in conversations or at dinner but may not speak for the United States government in a formal setting, he said. The agency would frown on their going to news conferences in a host country, he added.

When asked for the administration’s position with which the Alaska scientists would have to be familiar, Hall said, “The Earth is warming, and we have to understand how to deal with that and to slow down greenhouse gases and manage the changes that will occur,” he said.

The agency has taken steps to evaluate whether the polar bear should be listed and has significant questions about scientific studies, including those dealing with when sea ice will melt and the effects on the bear, he said.

Environmentalists who petitioned for the new protections for polar bears hope that a listing would force mandatory limits to greenhouse gases. At present, the administration prefers voluntary programs to cut emissions and has taken the position that carbon dioxide, the predominate greenhouse gas, can’t be regulated as a pollutant under the Clean Air Act.

Kieran Suckling, policy director of the Center for Biological Diversity, one of the groups that submitted the petition to list the polar bear, said muzzling of scientists at international meetings isn’t appropriate.

“That type of memo might be appropriate for the State Department and purely political issues,” he said. “What we’re dealing with here is science. How many polar bears are there? Why are they going extinct? What is the cause of the ice melting? It’s completely inappropriate to ban scientists from talking about science.”

Williams, an attorney who received the documents about rules for scientists’ speech, was special assistant to the secretary of the Interior under the Clinton administration for six years. She now heads an environmental consulting firm, Alaska Conservation Solutions.

“I worked very closely with Fish and Wildlife and other Interior agencies, and a memo like this is truly inconceivable,” she said. “This is an issue of international significance, and you want your professional public servants to be able to discuss these issues. It is unconscionable to gag them.”

The Bush administration has been under fire for several years for allegedly trying to curb the speech of government scientists who produce studies that contradict the administration’s positions, particularly on global warming.

Scientists in the Fish and Wildlife Service, the U.S. Geological Survey and the National Oceanic and Atmospheric Administration have been chastised for speaking to reporters, and some have been asked to submit papers and lectures to high-level managers for review. Political appointees at NASA have turned down journalists’ requests for interviews with scientists, and the Minerals Management Service has allowed journalists to interview scientists, including on polar bear observations, only if the agency could record them.

The agencies challenged scientists over studies revealing negative effects of oil development on the Arctic National Wildlife Refuge and the drownings of polar bears possibly associated with shrinking sea ice.

The beloved furry Arctic animal has become a symbol for the dire effects of a warming world. Four dead polar bears floating in Arctic Ocean waters, which may be attributed to the long swim from the diminishing sea ice to land, were shown by former Vice President Al Gore in his documentary, “An Inconvenient Truth.” 

Check out today’s Wall Street Journal:

The Wall Street Journal

March 3, 2007

Environmentalist Groups Feud Over Terms of the TXU Buyout

By REBECCA SMITH and JIM CARLTON
March 3, 2007; Page A1

Just days after two of the nation’s leading environmental groups blessed an investor plan to buy TXU Corp. and take the controversial Texas utility in a new and “greener” direction, a battle has broken out in the environmental community over the terms of the deal.

The Natural Resources Defense Council and Environmental Defense claimed victory Monday when a holding company formed by Kohlberg Kravis Roberts & Co., Texas Pacific Group and other investors announced the biggest buyout in history, a plan to take over TXU for $32 billion plus the assumption of around $12 billion in debt. The environmental groups, two of the most powerful and best-funded in the U.S., said they had extracted a pledge from the investors to cancel a slew of coal-fired power plants, cut emissions and back federal global-warming legislation.

But now, opponents of the deal, in a blizzard of emails and Internet posts, have put the two organizations on the defensive by accusing them of settling for too little. The critics, who encompass a broad range of smaller environmental groups and individuals, say TXU should have been forced to give up all, not just some, of its future plans involving coal-fired power plants. The plants release substantial amounts of carbon dioxide, a heat-trapping gas blamed in part for climate change.

Even worse, some believe that the environmental interests were snookered. Since the buyout was announced, it has become apparent that some of the concessions involve projects that TXU was already planning to shelve for a variety of reasons. And TXU has fueled the skepticism further in recent days by outlining new loopholes in the pledge.

NRDC and Environmental Defense “should be hung for what they’ve done,” fumed Tim Hermach, executive director of the Native Forest Council, a group in Eugene, Ore., whose main mission is protecting public forests from commercial logging and other industrial practices.

The infighting shows that tremendous disagreements remain over how tough green activists should be in their dealings with business. The TXU deal comes at a time when more businesses are choosing to work with environmentalists to avoid costly and embarrassing public fights on issues ranging from global warming to rampant logging. The Rainforest Action Network, for example, in recent years has forged deals with companies such as Home Depot Inc. to quit using wood products from endangered forests in exchange for public endorsements. Some timber companies in the Northwest have also gotten larger environmental groups to agree to forest-protection plans that allow for some degree of logging, despite continuing opposition from other grass-roots activists.

But it can be difficult to determine who is empowered to speak for the environmental movement. As is the case with TXU, these dealings often lead to charges from other environmentalists that their peers have been co-opted by big business in exchange for a seat at the table. “It can be flattering to be invited into this crowd,” says Alan Muller, executive director of a group called Green Delaware, who is also among those criticizing the NRDC and Environmental Defense.

The environmentalists involved in the TXU negotiations scoff at that assertion. “We’ve been around long enough that we don’t flatter very easily,” said David Hawkins, director of the NRDC’s climate center, who helped represent the 37-year-old organization in the deal.

Environmental Defense and the NRDC — both based in New York — are among the best-funded groups in the green world, with annual budgets totaling about $120 million combined. Both have policies against accepting most corporate contributions. The NRDC has a somewhat higher profile, with actors Robert Redford and Leonardo DiCaprio on its board of trustees.

TXU’s would-be buyers also defend the deal. “I think it’s inevitable there are critics to any change,” said William K. Reilly, an administrator of the Environmental Protection Agency under former Presidents Bush and Clinton who now works as a senior advisor to Texas Pacific and led its group’s talks with the environmentalists. “It’s important to recognize that two of the most authoritative and experienced environmental organizations think this is a good deal.”

(Separately, the Securities and Exchange Commission has filed court papers suggesting that it is investigating possible insider trading before the deal was announced. See related story4.)

New details of the agreement suggest it has big built-in loopholes that seem tailor-made for conflict. Under the agreement, the buyers said they’d suspend development efforts on eight of 11 planned coal-burning power plants.

But already, TXU Chief Executive C. John Wilder, who is expected to remain at the utility, is talking about the conditions that would allow TXU to “apply or reapply” for permits to build coal-fired plants in Texas. According to a transcript of a call with investors this week, Mr. Wilder said TXU wouldn’t build plants burning pulverized coal “unless our customers face reliability issues, shortages leading to higher prices, or our competitors propose plants that are expected to have a meaningful impact on market dynamics.”

Those circumstances appear likely to be met, perhaps as early as 2009, meaning TXU could revive construction efforts without breaking the deal if there’s a scarcity of power caused by a dearth of new plants, or if plants come along that challenge TXU’s strong position in the state’s deregulated electricity market. Critics say these and other exceptions make it appear unlikely that TXU’s agreement to move away from coal is as solid as it initially appeared. The state’s grid operator said it fears reserves could slip into a danger zone as early as 2009, given a spurt in demand growth this year.

The environmental concessions were part of a package engineered by the private-equity buyers as a way of clearing political opposition to the TXU deal, which was bound to be controversial under any circumstances. Under Mr. Wilder’s leadership, TXU has become greatly profitable, but also has drawn the ire of consumer and environmental groups for its rate increases and plans to build new coal-fired plants in Texas. Lately, TXU had been talking about building other such plants in other parts of the country.

The concessions announced by the environmental groups and the prospective buyers were worked out in secretive sessions last week, before the proposed deal became public. The agreement involves not just cutting back on coal plants in Texas, but also a pledge to back away from such projects in other regions. The buyers agreed to a general cutback in carbon-dioxide emissions. And the buyers agreed to a rate cut for some TXU customers in Texas.

The environmentalists involved in the deals say these were hard-won victories. For example, Jim Marston, an Environmental Defense attorney in Austin who led negotiations for the group, said that, through tough bargaining, he got commitments from the buyers that TXU wouldn’t build coal plants in Pennsylvania, Virginia and “elsewhere.” TXU’s would-be buyers say the utility also was considering building a coal plant in Maryland, while Mr. Marston says Georgia was another potential site.

But some environmental interests in Texas were immediately bitter that the deal allowed three coal plants in Texas to proceed. Robert and Josephine Cervenka, farmers near Waco, already live within a mile or two of existing TXU plants and within about five miles of six proposed plants, including two by TXU. They formed an organization to fight construction of more plants in an area Mr. Cervenka calls “the ring of fire.”

Initially overjoyed when they heard about the environmental deal with TXU, they quickly soured after learning that the proposed plants nearest them were going forward. Now, with the well-heeled national environmental groups out of the picture, they wonder how long they’ll be able to carry on the fight. “We need money bad,” said Ms. Cervenka.

Negotiators for both Environmental Defense and the NRDC say they wanted the other plants tabled, too, but were told TXU had spent too much on the projects to suspend development efforts. Besides, Mr. Reilly, the former EPA administrator, said Texas would have difficulty meeting rising demand without the plants. “You can accomplish a fair amount by improving energy efficiency in the state, but to say you can do so without adding plants at all isn’t really feasible,” Mr. Reilly said.

What the environmentalists didn’t learn until later was that TXU’s board already was considering killing some of the projects to quiet public outcry and to respond to changing political winds in Washington. In his investor call, Mr. Wilder said the management team and board already were “reshaping our development program to focus on a smaller number of plants” when they were approached by the buyout team.

Mr. Hawkins of the NRDC’s climate center said his group was unaware of that — but he added such a move wasn’t surprising, given all the criticism TXU has faced.

A big point of contention is the givebacks involving plants TXU was targeting for other states. In fact, TXU hasn’t filed for air or water permits in any of these states, nor has it purchased or obtained options on any parcels of land. And, given the firestorm it ignited in Texas with its $10 billion construction program, many observers said they doubted TXU really intended to wade deeper into controversy anytime soon.

Sierra Club officials in Texas said they still will oppose TXU’s remaining three new coal plants and eight more proposed by others, working with consumer and property-rights groups. Sierra Club officials added they have empathy for the bind the NRDC and Environmental Defense were in. “I’ve been there before where…we’ve had to compromise,” said Ken Kramer, the Sierra Club’s Texas director, in Austin.

Write to Rebecca Smith at <mailto:rebecca.smith@wsj.co> and Jim Carlton at <mailto:jim.carlton@wsj.com>

Copyright 2007 Dow Jones & Company, Inc. All Rights Reserved

Would ya look at that!  Here I thought it was bad when I’d submitted a Petition to Intervene and then the enviros, who had NOT submitted a Petition, were invited to Intervene, and then I was denied Intervention because it would be duplicative of their Intervention… how duplicitous… well, in Delaware it’s the same theme and it’s different.

Today Intervenors in the Integrated Resource Planning docket (07-20) were told to find Barney and all join hands,  sing Kumbayah, and everybody now, in UNISON, let’s ALL INTERVENE TOGETHER!!!  ALL TOGETHER AS ONE!!!!

You hear that, Alan!!! Hop to! Get with it!  Now where’s Barney?

Really, here’s that part of the Order:

I approve, under certain conditions, Dr. Firestone’s, Mr. Muller’s and Ms. McGonegal’s petitions, so that they may represent their interests as residents of Delaware concerned with the IRP’s impact on the environment and public health.  (See the Commission’s Rules of Practice and Procedure, Rule 21(d), authorizing the Hearing Examiner to prescribe reasonable conditions on the approval of intervention petitions.) 

Because their interests in the IRP as Delaware residents concerned with the environment are substantially the same, Dr. Firestone, Mr. Muller and Ms. McGonegal may act as one party, with one voice.  As such, they will submit one filing with each deadline and will appear as one party at all proceedings.  In this way, we will not have parties whose interests are represented by other parties (as referenced in Rule 21(a)(iii)) and we can avoid duplicative submissions and responses throughout the life of this docket. 

Dr. Firestone, Mr. Muller and Ms. McGonegal should confer with each other and advise me, with the March 7th filing in this case, who their lead representative will be.  The lead representative’s name will be the name of the party.  In the event that they cannot agree, I will direct Dr. Firestone as the lead, for the reasons stated in his intervention petition, at paragraphs 26, and 34 through 46 (and because his was the only intervention petition of the three that was filed in compliance with the “original and ten (10) copies” requirement of Rule 6(c), which requirement was highlighted in e-mails dated February 19 and February 23, 2007).  If any of the three would prefer not to participate in this manner, then I can move that individual (or individuals) to the “non-party, e-mail only” portion of the service list, if they wish.  In this way, they will receive copies of all the submissions and can be heard separately as non-party members of the public.    

FULL INTERVENTION ORDER HERE