Legalectric

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.

We’ve been working on the rules for the Minnesota Public Utilities Commission’s chapters covering Certificate of Need and Siting/Routing of electric utility infrastructure, ranging from transmission to power plants.  WHEW!  It takes forever, and thus far it’s been over two and a half years, just for the “pre-Commission-sends-it-out-for-comments” rulemaking advisory group part.

Who cares about rules?  Well I do, as to many others who have been dealing with Certificate of Need and Routing/Siting issues over the years.  It’s important because so many things are wrong with the process, from awkward to just plain wrong/unfair, even in light of the enabling statutes for these rules (rules need to operate within some pretty restrictive statutory framing).

This is, again, still informal, and PUC is open to any and all comments, ones on point, that is, and so comment on specific language, and suggest specific language!  Here’s the latest (and I’ve filed them on the PUC site):

August 3 Draft 7849

August 3 2015 Draft 7850

To see the versions and comments thus far, go to the PUC’s SEARCH PAGE HERE, and search for PUC Docket 12-1246.

To file comments, go HERE and file.  If you’re not registered to file, go HERE and register and file!  It’s that easy, almost instantaneous!

That’s the Coal Creek plant, a photo I took on a tour.  If you’re an electric co-op member in Minnesota (elsewhere too?), they offer tours regularly, and it’s something you should do!  Check your co-op’s newsletter for info.

State Register Notice:

MPCA_StateRegister_Pages from 40_05

Just released FEDERAL Clean Power Plan:

Clean Power Plan Final Rule (PDF)(1560 pp, 3.3 MB, About PDF) – August 2015

Look at how the “adjusted” Minnesota’s baseline levels due to Sherco 3 being out for nearly 2 years:

The EPA examined units nationwide with 2012 outages to determine where an individual unit-level outage might yield a significant difference in state goal computation. When applying this test to all of the units informing the computation of the BSER, emission performance rates, and statewide goals, the EPA determined that the only unit with a 2012 outage that 1) decreased its output relative to preceding and subsequent years by 75 percent or more (signifying an outage), and 2) could potentially impact the state’s goal as it constituted more than 10 percent of the state’s generation was the Sherburne County Unit 3 in Minnesota.  The EPA therefore adjusted this state’s baseline coal steam generation upwards to reflect a more representative year for the state in which this 900 MW unit operates.

Clean Power Plan Final Rule (PDF p. 796 of 1560).

And from the state, which acknowledges imminent release of FEDERAL Clean Power Plan Final Rule , also released today, just in from the MPCA (direct quote):

The Minnesota Pollution Control Agency (MPCA) has issued a request for comments on possible rule amendments to bring Minnesota into compliance with the U.S. Environmental Protection Agency’s (EPA’s) Clean Power Plan. You can read the full request in the August 3, 2015, edition of the State Register, available at www.comm.media.state.mn.us/bookstore/mnbookstore.asp?page=register.

The amendments we are considering will help Minnesota meet standards established by the Clean Power Plan, which sets state-specific carbon dioxide emission targets and requires each state to submit a plan detailing its strategy for meeting the targets. As of State Register press time, we have not yet started drafting a plan because the EPA has not yet published the standards that Minnesota’s plan will need to meet, so the MPCA requests public input to help guide our considerations of methods for meeting the EPA’s targets, as well as any other objectives that the state’s plan might include.

Stakeholder meeting agendas, notes, and other related documents are posted on the website for this rulemaking at www.pca.state.mn.us/w9y3awr.

To access information about a particular Minnesota rulemaking, visit the Public Rulemaking Docket.

                Photo by Marie McNamara

Beginning of review by USFWS of impacts of take permits for wind projects (where death is presumed and project is given permit despite protected species kills).  SPREAD THE WORD!

Just in from USFWS:

U.S. Fish and Wildlife Service Hosts Public Information Meetings in Eight Midwest States

for Regional Wind Energy Habitat Conservation Plan

The U.S. Fish and Wildlife Service is inviting public input as it develops an environmental impact statement on the potential impacts of issuing incidental take permits for covered species under the draft Midwest Wind Energy Multi-species Habitat Conservation Plan.

Public meetings will be held from 5:00 p.m. to 7:00 p.m. local time at the following locations:

• July 13 – Minneapolis, Minnesota. Elliot Recreation Center, 1000 E. 14^th St. 55404
• July 14 – Madison, Wisconsin. Warner Park Community Recreation Center, 1625 Northport Drive, 53704
• July 15 – Ames, Iowa.  Iowa State Memorial Union, Campanile Room, 2229 Lincoln Way, 50011
• July 16 – Columbia, Missouri. Battle High School Commons, 7575 E. St. Charles Road, 65202
• July 20 – Lansing, Michigan. Letts Community Center Gymnasium, 1220 W. Kalamazoo Street 48915
• July 21 – Columbus, Ohio. Columbus Downtown High School Commons,364 South 4^th Street 43215
• July 22 – Indianapolis, Indiana. World Sports Park Ballroom, 1313 South Post Road, 46239
• July 23 – Bloomington, Illinois. Illinois Wesleyan University, Memorial Center, Young Main Lounge, 104 E. University Avenue, 61701

The first hour of each meeting will be an informal open house, followed by a brief presentation at approximately 6:00 p.m.  After the presentation, the informal open house will resume.

The Service also will host an online public meeting on Tuesday, July 28, 2015, at 1 p.m. CT.  To participate, you can call a toll-free number and join a web conference:

·         Log on to http://www.mymeetings.com/nc/join.php?i=741848583&p=&t=c  to view a Service presentation about the Midwest Wind Energy Multi-Species Habitat Conservation Plan and scoping for the Environmental Impact Statement.

·         To listen to the presentation and ask questions, call toll-free 1-888-324-7813. Enter passcode 9116767# to join the call.

For more information on this meeting, go to http://www.midwestwindenergyhcpeis.org

The draft plan is being prepared by the Service and their planning partners, including state wildlife agencies for seven of the eight states within the plan area, the American Wind Energy Association, a consortium of wind energy companies and The Conservation Fund.  States within the plan area include Illinois, Indiana, Iowa, Michigan, Minnesota, Missouri, Ohio and Wisconsin.

The plan addresses incidental take of eight species that may be injured or killed at wind turbine facilities. The covered species include Indiana bat, northern long-eared bat, Kirtland’s warbler, Great Lakes and northern Great Plains populations of the piping plover, and least tern, all listed under the Endangered Species Act. Also covered are the bald eagle, protected by the Bald and Golden Eagle Protection Act, and the little brown bat, a species of concern.

Habitat conservation plans are agreements between a private landowner or a non-federal company or group and the Service, allowing permit applicants to undertake otherwise lawful activities on their property that may result in the incidental death, injury or harassment of covered species; the applicant agrees to conservation measures designed to minimize and mitigate the impact of those actions.

Individuals unable to attend the meetings may submit comments and materials through August 11, 2015, by any of the following methods:

U.S. Mail:

Regional Director, Attn: Rick Amidon

U.S. Fish and Wildlife Service, Ecological Services

5600 American Blvd. West, Suite 990

Bloomington, MN 55437-1458 

Electronically:

Visit the Federal eRulemaking Portal:  www.regulations.gov. In the search box enter (Docket Number FWS-R3-ES-2015-0033).

More information about the draft EIS for the proposed Midwest Wind Multi-species Habitat Conservation Plan can be found at http://midwestwindenergyhcpeis.org.  Information about endangered species in the Midwest can be found at www.fws.gov/midwest/endangered.

Additional opportunities for public comment during development of the environmental impact statement will be provided when the draft statement is released for public comment, which is anticipated for early spring of 2016.

If you have any questions, please contact Rick Amidon (Phone: 612-713-5164 – Email: rick_amidon@fws.gov).

—
Kim Mitchell

Ecological Services

U.S. Fish and Wildlife Service

5600 American Blvd. East, Suite 990

Bloomington, MN 55437

612-713-5337

Kim_Mitchell@fws.gov

www.fws.gov/midwest/endangered

Here it is, Michigan v. EPA:

Michigan v. EPA   U.S. Supreme Court File No. 14-46

Given this decision, it’s going to be hard for any agency to argue that it shouldn’t do a solid cost benefit analysis, and one that includes verification and analysis of benefits!  That’s a good thing given the outrageous benefits claims I’ve seen in transmission proceedings.  Check this part of the Order early on (I’m just going over it now):

In accordance with Executive Order, the Agency issued a “Regulatory Impact Analysis” alongside its regulation.This analysis estimated that the regulation would force power plants to bear costs of $9.6 billion per year. Id., at 9306. The Agency could not fully quantify the benefits of reducing power plants’ emissions of hazardous air pollutants; to the extent it could, it estimated that these benefits were worth $4 to $6 million per year. Ibid. The costs to power plants were thus between 1,600 and 2,400 times as great as the quantifiable benefits from reduced emissions of hazardous air pollutants. The Agency continued that its regulations would have ancillary benefits—including cutting power plants’ emissions of particulate matter and sulfur dioxide, substances that are not covered by the hazardous-air-pollutants program. Although the Agency’s appropriate-and-necessary finding did not rest on these ancillary effects, id., at 9320, the regulatory impact analysis took them into account, increasing the Agency’s estimate of the quantifiable benefits of its regulation to $37 to $90 billion per year, id., at 9306. EPA concedes that the regulatory impact analysis “played no role” in its appropriate-and-necessary finding. Brief for Federal Respondents 14.

Michigan v. EPA, p. 4.  The regulatory impact analysis included the information, it was in the record, but EPA says that it “played no role” in that decision.  So can’t they just reissue it, state they took that into account and used it as a basis for its decision and everyone can go home?  AAAARGH!

And here’s a highlight where I actually agree (!) with a sentence in Thomas’ Concurrence:

Statutory ambiguity thus becomes an implicit delegation of rule-making authority, and that authority is used not to find the best meaning of the text, but to formulate legally binding rules to fill in gaps based on policy judgments made by the agency rather than Congress.

Dissents, p. 3 (pdf p. 20 of 47).