Legalectric

Last night at the Urban League, the MPCA held a meeting, a “listening session” about the proposed Clean Power Plan as a prelude to its rulemaking.

TONIGHT IS ANOTHER MEETING:

MPCA Clean Power Plan Listening Session

Wednesday, March 9, 2016

5:30 p.m. – ?  At least 8 p.m.

Cornerstone Plaza Hotel

401 6th Street S.W.

Rochester, MN

The MPCA has been holding ‘listening sessions,” a/k/a meetings, and has info on its site:

Clean Power Plan: Rulemaking in Minnesota

• Clean Power Plan (carbon pollution)
• Clean Power Plan in depth

Here’s the federal plan, now on hold at order of the court:

Clean Power Plan (U.S. EPA)

I very much do like that they’re going forward, despite the federal stay, because it is going to take some time to ramp up efforts.

Here’s the handout I brought to that meeting.  I ran out, only about 1/4 of the room covered, so that means there were at least 80 people there.

Handout-MPCA Public Meeting_Clean Power Plan

On the other hand, there are a lot of things I take issue with.

One thing that’s discouraging to me is that this is called the “Clean Power Plan” but they have not made any attempt to separate out and prohibit burning of garbage and biomass, both very dirty by any definition.  Incineration must be removed from the definition of “renewable.”

Another issue is that they’re NOT going to put together a rulemaking Advisory Committee, as provided by statute.  I asked about this last night and they verified it.

Minn. Stat. §14.101, Subd. 2.  Advisory committees.

Each agency may also appoint committees to comment, before publication of a notice of intent to adopt or a notice of hearing, on the subject matter of a possible rulemaking under active consideration within the agency.

Instead, what they’re doing is gathering the same ol’ same ol’ folks in an informal process, and they’re not going over a proposed rule prior to its being sent to the MPCA head (remember, there is no Citizens Board thanks to certain MN legislators) for release, and when it’s released, it’s too late for substantive changes.  The MPCA was part of the crew, with DNR and EQB, that so badly mangled that silica sand rulemaking (ummmm, whatever became of that, anyway?).  This does not bode well.

So now, on to tonight’s meeting, gotta do some prep.

And yes, that’s Frank “Coal Ash” Kolasch presenting.  What a moniker!

Tonight’s gathering starts at 5:30 p.m. or so with an open house (coffee & cookies), and the presentation and “listening” starts at 6:30 p.m.

MPCA Clean Power Plan Listening Session

Wednesday, March 9, 2016

5:30 p.m. – ?  At least 8 p.m.

Cornerstone Plaza Hotel

401 6th Street S.W.

Rochester, MN

Be there or be square!

Thanks to a “little birdie” for the heads up!

The day after indictment of Chesapeake’s Aubrey McClendon, he crashes into bridge abutment on left side of road at “high rate of speed” and dies in a firey crash.

Energy pioneer McClendon dies in Oklahoma car crash a day after indictment

Ex-Chesapeake CEO Aubrey McClendon dead after car accident

McClendon remembered as energy ‘visionary’ despite controversy

Aubrey McClendon, Thunder Co-Owner, Dies at Age 56

Here’s the report that exposed his dealings to the world:

Special Report: Chesapeake and rival plotted to suppress land prices

He’s also made massive political donations, including to “friend of fracking” Hillary Clinton in 2008, and also $250k to the Swiftboaters.  From Sourcewatch:

McClendon has donated to both Republican and Democratic political candidates, though most of his donations and his major donations have been to Republicans or Republican-associated groups, including the Republican National Committee, National Republican Congressional Committee and Oklahoma Leadership Council; ^[12] and 527 groups, most notably the Swift Boat Veterans for Truth, to which he contributed $250,000 in 2004. ^[13]

But that’s not all — Chesapeake bought off Sierra Club during Carl Pope’s reign:

Answering for taking a driller’s cash

From Slate, about McClendon’s death and legacy:

Notice of the Power Plant Siting and Transmission Line Routing Program Annual Hearing

Issued: November 6, 2015

In the Matter of the 2015 Power Plant Siting Act Annual Hearing

Public Utilities Commission (PUC) Docket Number: E999/M-15-785

Office of Administrative Hearings (OAH) Docket Number: 60-2500-32901

Date: Tuesday, December 1, 2015

Time: 9:30 a.m.

Location: Minnesota Public Utilities Commission, Large Hearing Room, 121 7th Place East, Suite 350, Saint Paul, MN 55101

Bad weather? Find out if a meeting is canceled. Call (toll-free) 1-855-731-6208 or 651-201-2213 or visit mn.gov/puc

Hearing Description

The annual hearing is required by Minnesota Statute § 216E.07, which provides that:

Thecommission shall hold an annual public hearing at a time and place prescribed by rule in order to afford interested persons an opportunity to be heard regarding any matters relating to the siting of large electric generating power plants and routing of high-voltage transmission lines. At the meeting, the commission shall advise the public of the permits issued by the commission in the past year….

Note – No decisions about specific projects are made at the annual hearing.

Public Hearing Information

• Public hearings start on time.
• Arrive a few minutes early so you have time to sign in, pick up materials, and find a seat.
• Administrative Law Judge James LaFave will preside over the hearing.
• Public Utilities Commission and Department of Commerce staff members are available to answer questions about the Power Plant Siting Act processes and the projects.
• You may add verbal comments, written comments, or both into the record.
• Learn more about participating at a public hearing at http://mn.gov/puc/resources/meetings-and-hearings.jsp
• Judge LaFave will use information gathered at the public hearing and during the comment period to write a summary report for the Commission

Submit Comments

Topics for Public Comment:

• Any matters related to the site permit process for large electric generating power plants and routing of high-voltage transmission lines.

Comment Period: November 6, 2015 through January 5, 2016 at 4:30pm.

• Comments must be received by 4:30pm on the close date
• Comments received after comment period closes may not be considered

Online Visit mn.gov/puc, select Speak Up!, find this docket (15-785), and add your comments to the discussion.

If you wish to include an exhibit, map or other attachment, please send your comments via eFiling (see below) or U.S. Mail.

Please include the Commission’s docket number in all communications.

Filing Requirements: Utilities and state agencies are required to file documents using the Commission’s electronic filing system (eFiling). All parties, participants and interested persons are encouraged to use eFiling: mn.gov/puc, select eFiling, and follow the prompts.

Important Comments will be made available to the public via the Public Utilities Commission’s website, except in limited circumstances consistent with the Minnesota Government Data Practices Act. The Commission does not edit or delete personal identifying information from submissions.

Hearing Agenda

I. Introductions
II.Overview of Programs
A. Public Utilities Commission – Facilities Permitting and Public Advisor
B. Department of Commerce – Energy Facilities Permitting Unit
C. Role of Other Agencies
III. Projects Reviewed
A. Projects Permitted in 2015
B. Pending and Anticipated Projects
C. Electric Facilities Subject to Power Plant Siting Act
1. Generating Plants
2. Transmission Lines
IV. Public Questions and Testimony
V. Adjourn

How to Learn More

Subscribe to the Docket: Subscribe to receive email notifications when new documents are filed. Note – subscribing may result in a large number of emails.

1. mn.gov/puc
2. Select Subscribe to a Docket
3. Type your email address
4. For Type of Subscription, select Docket Number
5. For Docket Number, select 15 in the first box, type 785 in the second box
6. Select Add to List
7. Select Save

Full Case Record: See all documents filed in this docket via the Commission’s website – mn.gov/puc, select Search eDockets, enter the year (15) and the docket number (785), select Search.

Project Mailing Lists: Sign up to receive notices and opportunities to participate in other dockets relating to specific projects in which you are interested (meetings, comment periods, etc.). Contact docketing.puc@state.mn.us or 651-201-2234 with the docket number, your name, mailing address and email address.

Minnesota Statutes and Rules: The hearing is being conducted according to Minnesota Statute 216E.07. Minnesota Statutes are available at www.revisor.mn.gov.

Project Contacts

Public Utilities Commission Public Advisor

Tracy Smetana – consumer.puc@state.mn.us, 651-296-0406 or 1-800-657-3782

… and lungs and heart.  This map from AirNow.gov via NPR shows the wide ranging impacts:

See Smoke From Wildfires Threatens Health in the West from NPR yesterday.  Back when we had RED air quality warnings in Minnesota, a couple of months ago now, I was feeling it.  But the last week or so, I’ve been waking up totally stuffed, headache, and it takes about an hour and a half to get my schnozz cleared out.  We have no German Shepherds, and even though little one-coated Sadie does shed, and even though I nuzzled a cat day before yesterday, that’s not enough to cause this.  Could it be seasonal allergies, which are admittedly worse with age (OH MY DOG, no German Sheperds is bad enough, but just breathing?)?  I’m not convinced.  This headache and being stuffed up isn’t my typical response, which tends to be runny eyes, sandpaper nose and sniffles.  It’s got to be the fires.

Meanwhile, I know a few folks who live out there, and in addition to having to evacuate and be on alert, others with relatives heading out to fight the fires, there are more subtle affects, where it’s showing up unbidden in photography jobs, an added interference with chemo for cancer, and a hazard for COPDers.

Here’s the chart of emissions for the Midtown Burner, from Saying NO to Midtown Burner Permits prepared by Alan Muller based on the Midtown Burner proposed air permit for the roughly 38MW biomass plant that was to burn “clean” trees in a much smaller amount than these wildfires across the west:

So if these are the numbers for the small biomass burner, what are the emissions for these wildfires?  Is anyone doing testing in the plumes for what people are exposed to?  There’s the emissions as above of things like formaldehyde that come from “clean” trees, the tremendous Particulate Matter, but what about all the other things too that are burned in these fires, like plastics, tires, creosote and penta poles?  I’m not finding anything, and it seems this is something that should be done by the Washington, Oregon, California, Idaho, etc., state environmental agencies.  There should be active warnings to people to wear masks outdoors, and indoors to filter the air.  We have a HEPA filter for every room, but we’re not normal.  The impacts of breathing this air will be felt immediately by some people, but there’s a high likelihood that impacts are cumulative and/or take time to develop.  Protection now is crucial.

Commentary by Alan Muller, Green Delaware, in today’s Delaware State News:

Commentary: Time to think about Delaware’s Peterson, Coastal Zone Act

Delaware’s a mess. The water is rising. We are a major destination for bomb trains. One of the most leaky and dangerous nuke power complexes threatens and pollutes the state and is trying to expand with new reactors. The air and water are polluted. The economy is stagnant and the political system corrupt. The public schools are under attack. The court system is openly dedicated to protecting corporate crime. A tale of woe, to be sure.

Some of it is self-inflicted, like the reopening of the mega-toxic Delaware City Refinery and the resulting routing of bomb trains to Delaware.  Some, like global climate change and sea level rise, is mostly beyond the ability of Delaware to do much about. On the other hand, it could well be argued that little three-county Delaware has done way-out-of-proportion damage to the world, has been a damaging leader in the “race to the bottom.”

What is the cumulative damage to individuals and families done by out-of-control credit card “banks?” Would that have happened anyway, with or without Delaware’s shameful Financial Center Development Act?  Would so many electric ratepayers been screwed over so much without the hundreds of Enron subsidiaries incorporated in Delaware? Maybe they would have just been set up somewhere else.  Would there have been so many bogus bankruptcies and stolen pension plans?  Would the US, or the world, be in better shape without Delaware?  Alternative history can’t be much more than speculative, but there is a case to be made.

Is it possible to imagine a better Delaware? A place to be proud of rather than ashamed of? A Delaware, for example, where John  Kowalko is Speaker of the House rather than Pete Schwartzkopf?  A place where the University of  Delaware symbolizes intellectual freedom rather than civil liberties violations and the worship of capital at the expense of labor?

Well, yes, actually.  There  have been better leadership and better political times in Delaware, within my memory.

Russ Peterson died in 2011.  (Here’s his obit in the New York Times.) Peterson was a significant figure in environmental matters in Delaware, nationally, and sometimes globally.  But it seemed to me that most of what was being written about Russ was the same old stuff, regurgitated for the umpteenth time and not giving us much new or insightful to think about.

Now, three years have gone by, and Delaware’s rulers are pursuing another major attack on the Delaware Coastal Zone Act, the centerpiece, the masterpiece, of  Peterson’s public policy work in Delaware.   So, this seems an appropriate time to think about Russ Peterson.

Peterson was likely the most significant person ever to operate out of little Delaware.  But he didn’t walk on water and he wasn’t God.  He was both more flawed and more interesting than one might see from most writings about him. He deserves more thoughtful commentary than he’s so far received.

Peterson, first of all, not a “Delaware Native.”  He was born, raised, and educated in Wisconsin, and was a product of the relatively progressive atmosphere, at least at that time, of the Upper Midwest.  (For factual information on Russ Peterson see this Wikipedia article.)

If Peterson had grown up in the plantation culture of Delaware, and learned his chemistry at the University of Delaware, would he have made the same contributions?  Maybe, but it’s doubtful.  In general, the human intellect does not seem to blossom in Delaware.

Russ was educated as a chemist and was recruited by E.I. du Pont de Nemours and Company as a research chemist.  He rose to be director of Central Research and Development.  This would be considered, at least at the time, high in the pecking order of the technical world, or at least its industrial side.  Peterson was a smart man.

Peterson’s interests eventually shifted out of DuPont.  My favorite story of Peterson and DuPont:  At one time he was in charge of a suburban office/lab site known as Chestnut Run Plaza.  At the time, in DuPont, black people could generally have only menial, broom-pushing jobs.  Peterson set up a program to enable and encourage black workers to move up. DuPont’s response was to schedule Peterson for an interview with “the company psychiatrist.”  Mental illness was suspected.

In any case, Peterson got involved in reform efforts in Delaware, notably prison reform. Being of an analytical turn of mind, he figured out how to organize such efforts: a committee in every Representative district, and so on.   Some years of this work gave him good, if imperfect, insight into the workings of Delaware politics.

He wasn’t without his critics.  Tom Colgan, long time campaigner against housing discrimination, used to say “Russ always showed up when the fighting was over.”  Perhaps so.  But Delaware is a place with a narrow intellectual and political space, where perceptions of non-mainstream views generally relegate people to a gadfly role.  In a sense, Russ Peterson’s achievement was to keep close enough to the political mainstream to achieve, at least briefly, real power, yet he was not co-opted from the neck up.

In 1968, Peterson resigned from DuPont and ran for Governor as a Republican.  At the time, the DuPont Company was behind him.  I recall, as the teenage son of a DuPont manager, being turned out to flyer for Russ Peterson.  He won.

But, after the enactment of the Coastal Zone Act in his first term, DuPont turned on him, and told its 25,000 Delaware employees–there are way fewer now, or course–to vote for Democrat Sherman W. Tribbitt, a hardware store owner in the small town of Odessa.  Peterson was out of office after one term.

There were other factors in his defeat, including budgetary miscalculations that required the state to “claw back” spending.  Whether this was a genuine screwup or a trap set for Peterson has never been entirely clear to me.  The budget shortfall was five million dollars.

Peterson also pushed a transition from Delaware’s “commission” form of government to a “cabinet” system.  Traditionally, many governmental functions had been run by citizen commissions.  Some still are, such as utility regulation by the “Public Service Commission.”  The members of these commissions were mostly appointed by the governor but were not, afterwards, directly under his control.  On the other hand, departments of the Executive Branch were. and are, headed by officials reporting to the Governor.  This increased the power of the governor; it made for a more centralized decision-making process.  Like most change, it was resented.

This centralization of power continues:  a disturbing example is the shift of power over schools from elected district school boards to a state Department of Education controlled by the governor.  Many people these days feel that Governor Jack Markell is using this power to attack the fundamental features of public schools and public education, and to implement privatization of the public schools to the benefit of for-profit “education” companies.

After Tribbitt’s one term, hard right winger and special interest servant Pierre S. du Pont IV was installed as Governor for two terms.  DuPont shut down the state planning office and, in general, tried to reverse many of the Peterson reforms.  Many people see his two terms as the time during which Delaware abandoned real representative government and adopted the “Delaware Way” of governance.  The “Delaware Way” could better be called the “Dirty Deals Behind Closed Doors” approach.

So what about this Coastal Zone Act?  What makes it special and worth preserving.

It was based on an understanding that coastal areas, that is, where the water meets the land and the air, are crucial from an ecological perspective and need special protections.  The wording of it is pretty clear:

Purpose.

It is hereby determined that the coastal areas of Delaware are the most critical areas for the future of the State in terms of the quality of life in the State. It is, therefore, the declared public policy of the State to control the location, extent and type of industrial development in Delaware’s coastal areas. In so doing, the State can better protect the natural environment of its bay and coastal areas and safeguard their use primarily for recreation and tourism. Specifically, this chapter seeks to prohibit entirely the construction of new heavy industry in its coastal areas, which industry is determined to be incompatible with the protection of that natural environment in those areas. While it is the declared public policy of the State to encourage the introduction of new industry into Delaware, the protection of the environment, natural beauty and recreation potential of the State is also of great concern. In order to strike the correct balance between these 2 policies, careful planning based on a thorough understanding of Delaware’s potential and the State’s needs is required. Therefore, control of industrial development other than that of heavy industry in the coastal zone of Delaware through a permit system at the state level is called for. It is further determined that offshore bulk product transfer facilities represent a significant danger of pollution to the coastal zone and generate pressure for the construction of industrial plants in the coastal zone, which construction is declared to be against public policy. For these reasons, prohibition against bulk product transfer facilities in the coastal zone is deemed imperative.

The immediate tactical driver for the bill was an attempt to build a second oil refinery in Delaware.  Shell had bought the land, designed the refinery, and survey monuments were in the ground.  The threat was immediate.  The damage being done by the existing Delaware City Refinery, one of the dirtiest in the world, was obvious.

It’s worth noting that Peterson and the leaders of the General Assembly were Republicans.  The President of the US was Richard Nixon.  The Nixon administration wanted to increase oil imports and wanted a lot of it to come up the Delaware River and be refined alongside it. So, in effect, Peterson was not only defying Delaware’s fat-cat industrial establishment, and many labor leaders, he was defying the US federal government and his fellow Republicans.

“U. S. Secretary of Commerce Maurice Stans accused Peterson of being disloyal to his country.  Peterson famously replied, ‘Hell no, I’m being loyal to future generations of Americans.’” (Man and Nature in Delaware.  Williams, 2008)

There were, however, flaws in the Coastal Zone Act, like most legislation a product of compromise.  A key weakness is that the Act covers “industry” but not residential and commercial activities.  Over the years, as coastal industry has tended to contract and sprawl development expand, the CZA has increasingly failed to control many of the greatest threats to the Coastal Zone including runoff and sewage.  It has been obvious for many years that the scope of the Act needs to be expanded, but the vision and leadership to accomplish that has been lacking.

Another weakness is that regulations implementing the act we not adopted for many years, and when they were adopted they were inconsistent with the purposes of the act and tended to weaken it.  Thus, interpretation of the Act has mostly been left to Delaware’s courts, with unpredictable and increasingly bad results, as the quality of Delaware’s judiciary has declined.

But, despite these issues, the Delaware Coastal Zone Act was groundbreaking, whether one regards it as primarily a “land use” law or an “environmental” law.  It came about because a visionary governor was supported by a generation of reform-minded legislators and a relatively-active “environmental community.”  Where are the visionary governors and the generation of reform-minded legislators when we need them now??  Gov. Jack Markell is certainly not cast in that mold.

Peterson went on to serve as President of the National Audubon Society, Chaired the federal Council on Environmental Quality, and worked with various commissions, environmental organizations and projects.  He never again held elective office or a high position in the business or scientific worlds.

Peterson stayed, at least episodically, involved in environmental politics in Delaware, until his death in 2011 at the age of about 95.  He was, for example, a supporter of the Bluewater Wind project, which eventually collapsed but potentially could have been the first large offshore wind project in North America.  He usually popped up when the Coastal Zone Act was being attacked.

But in the end Russ Peterson was diminished by two things:

Advancing age.  Anyone remaining active into his mid-90s is likely to be remembered for things he or she did when no longer at the peak of their powers, and

His love-hate relationship with the chemical industry.  Perhaps Peterson never got over being pushed out of his job as Governor by DuPont.  It seemed to me that he carried deep and legitimate grievances, and of course he knew intellectually that the policies pursued by big corporate interests were destroying the planet.  On the other hand, Peterson had money, identified socially with the powers-that-be, and seemed to crave forgiveness and acceptance from the leaders of DuPont, etc.  Thus, he could and did alternate between sucking up and lashing out.  He wasn’t always reliable or predictable.  He could and did make serious mistakes and publish stupid things, such as an endorsement of a bad waste incineration company.

Russ’ key mistake was to be politically seduced by “Toxic Tom” Carper.  Carper was elected Governor in 1992, with the naive support of some Delaware enviros.  At that time, a long Coastal Zone Act negotiation between enviro types and Chamber of Commerce types had been in progress under Gov. Mike Castle and was coming to conclusion.  Carper came in with a pure “Chamber of Commerce” agenda and one of his first actions was to call in the enviros and tell them to yield to the Chamber on Coastal Zone issues.  Initially, they resisted.  So Carper went after Peterson, knowing that if Russ yielded, inevitably the mainstream enviros would go along.  Peterson fell for it.  I remember him yelling at me that Tom Carper and Chris Tolou, then Secretary of DNREC, were “great environmentalists.”  He hired a bogus “neutral facilitator” shop called the “Consensus Building Institute” to give the enviros cover for their sellout.  In the sad end, the enviros–many controlled by DuPont–wimped out and rolled over.  They signed an agreement essentially abandoning the clear language of the Coastal Zone Act in favor of “environmental indicators,” “offsets,” and other excuses for abandoning the plain meaning of the Act.  It’s been mostly downhill since.

There have been some high moments.  John Hughes, as Secretary of DNREC, denied a permit for a Liquified Natural Gas (LNG) terminal in Logan Township, NJ.  This he could do because at that point Delaware owns the Delaware River all the way across.  The case went to the US Supreme Court and Delaware prevailed.  At the time, the oil and gas people were saying that more gas imports were essential.  Now, of course, they are saying that gas exports are essential…..

So what’s the relevance of this to 2015?  Delaware faces more severe threats now than when Peterson was governor.  The land is sinking, the sea is rising, and much of Delaware is subject to flooding.  How is the state reacting to this? So far, with nothing but words.  Decades of pandering to business interests, without foresight or planning, have left Delaware’s economy in bad shape and our quality of life degraded.  Compare Peterson’s visionary Coastal Zone Act, which kept a Shell refinery out of Delaware, with Jack Markell’s dirty backdoor deal to reopen the Delaware City Refinery, and bring bomb trains into the state.  Delaware is the big loser.

How do we (re)open Delaware’s political system to visionary leaders?  Or at least people of intelligence and good will?  Who will step up, or be pushed forward, to run for Governor?

Alan Muller is Executive Director of Green Delaware.