<![CDATA[ StopPATH WV - StopPATH WV Blog]]>

<![CDATA[ StopPATH WV - StopPATH WV Blog]]>Fri, 26 Apr 2024 17:31:15 -0700Weebly<![CDATA[FERC To Announce New Transmission Rules May 13]]>Sun, 21 Apr 2024 19:01:01 GMThttp://stoppathwv.com/stoppath-wv-blog/ferc-to-announce-new-transmission-rules-may-13

The Federal Energy Regulatory Commission (FERC) has announced an open meeting where it will present its new rules for transmission planning AND its new rules for transmission permitting in a National Interest Electric Transmission Corridor (NIETC).

Both of these rulemakings have taken years to get to this point. As you may know, rulemakings are public participation proceedings where the agency proposes a new rule, accepts comments from the public, and then issues a final rule. The transmission planning rulemaking began in 2019 -- 5 years ago! Five years to get a new rule in place isn't uncommon... things move at a glacial pace at FERC. In addition, FERC's commissioners have come and gone over that time period, making FERC flip-flop on several different new rule proposals. The transmission permitting rulemaking hasn't been in the works for as long, but it is going to have a profound impact on landowners so unlucky as to be targeted for new transmission projects.

First, the transmission planning rulemaking. This is all the media has been talking about. Fans of doubling or tripling transmission lines to ostensibly connect remote wind and solar generators are chomping at the bit, convinced that it will finally make intermittent renewables viable. That proposed rule contains, among other provisions, a plan to prospectively build new transmission to remote "zones" where some unnamed authority believes new wind and solar can be built. This would shift the cost of transmission to connect renewables from the owner of the generator to ratepayers across the regions connected. As it has been for years, the owner of a new generator must pay the costs of connecting its new generator. These companies want to shift this cost burden to ratepayers. If a generator has to pay for its own connection, it makes economic choices about where to site new generation in order to build at the most economic sites. If we're paying, generators can build stuff anywhere, even if it doesn't make economic sense, and stick electric consumers with the bill.

Another thing the transmission planning rule is going to do is create some hypothetical list of "benefits" from new transmission in order to spread the cost allocation as wide as possible. Even if you don't "need" transmission for reliability or economic reasons, if the transmission owner makes up some hypothetical "benefits" for you, then you're going to be charged for it. The idea is to spread the trillions of dollars needed for new transmission as wide as possible in the hope that if everyone pays a little that nobody will notice how their money is being wasted building transmission that they don't need.

Finally, the transmission rule will require planning authorities, like PJM or MISO, to plan transmission on a rolling 20-year timeline. What are you going to need 20 years from now? You have no idea, and neither does the planner. By planning so far into the future, the idea is to drive generation choices through transmission planning, and not to plan the transmission system based on need. It will also attempt to roll state and federal "public policies" into transmission planning so that we all pay a share of other state energy policy choices. Is Maryland shutting down all its gas-fired generation? You're going to pay for new transmission to replace it, even though you don't live in Maryland and had no say in the creation of their energy policies.

The transmission planning rule will be prospective only and will not affect any transmission already included in regional plans. After this rule is issued, planners will have to submit what are known as compliance filings, which detail how the planner will adjust its rules to carry out the new transmission planning process FERC orders. In addition, I fully expect that this rule will be litigated for several more years, which is going to hold the whole thing up.

Now onto the Transmission Permitting rule, which is something that is going to impact anyone currently battling unwanted transmission, and anyone doing so in the future. As you probably know, the U.S. Department of Energy is poised to release its preliminary list of potential NIETCs at any time. That's a whole battle unto itself that I'm not going to cover here, but if a corridor is designated in your area, it means that one or more proposed transmission projects may be built in that corridor. A transmission project sited in a NIETC is subject to "backstop" permitting by FERC. If a state has no authority to permit transmission, or denies a permit to a project in a NIETC, then it can be bumped to FERC for permitting. FERC will require the transmission company to file an application and then will hold a full-blown permitting process very similar to the state process. If FERC permits the project, then FERC has authority to say where it goes and to grant the utility building it federal eminent domain authority to take property for it.

In FERC's rulemaking on transmission permitting, it proposed that a utility could begin the FERC process as soon as an application is filed at the state level. This would mean that there will be TWO simultaneous permitting processes going on at the same time. Two permitting cases, two interventions, two sets of lawyers, double your time and double your money. The drawback here is that the FERC process may not even be necessary if the state approves the project in its own permitting process. If a state approves, FERC doesn't have jurisdiction to get involved. FERC said that it needed to speed up this process by running its own permitting process at the same time as the state process. It's foolish and a waste of our time and money. Let's see what FERC does with this as it was widely panned by those who commented on this rulemaking.

Another horrible idea in FERC's proposal is an "Applicant Code of Conduct" to meet the statutory requirement for "...good faith efforts to engage with landowners and other stakeholders early in the applicable permitting process." FERC proposes a voluntary, generalized, unenforceable "Code" that does little to protect landowners. The "Code" is merely an idea of how a company should behave, not how it will behave. FERC does not plan to enforce it, or intervene when landowners report violations. The landowner should report violations to the company! Don't laugh... they're serious! FERC's proposed "Code" advises that the company should "avoid" coercive tactics, but it doesn't prohibit them. That does NOTHING to meet the statutory requirement. It's a big joke!

The new transmission permitting rule will become operational once it is issued. Many readers will be subject to this government-sponsored landowner abuse immediately. This is one you should not ignore!

Over the years, I have worked with a large group of transmission opponents from across the country to file extensive comments on both of these rulemakings on behalf of impacted landowners. In particular, you should read our comments about the transmission permitting rule to familiarize yourself with what's about to happen to landowners.

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Please plan to (virtually) attend FERC's May 13 Open Meeting where they will release these two new rules and make comment and explanation. The meeting is "listen only". There is no opportunity to make comment or interact with the Commissioners. This is an informational presentation, not a participatory event. FERC's meeting begins at 11:00 a.m. and is expected to last about an hour. You can watch it live on YouTube using a link that will appear on FERC's website the week before. Later on that day (or the next day, remember FERC works at a snail's pace) the text of the rules will be released and then discussed over and over by lawyers and the media. If you're impacted by a new transmission proposal, you can't miss this presentation!

You don't need to sign up in advance... simply click the link to view when the meeting starts. You can find that link and minimal information about this special meeting at FERC's website.

]]><![CDATA[Washington Post Says The Quiet Part Outloud]]>Sat, 20 Apr 2024 20:15:03 GMThttp://stoppathwv.com/stoppath-wv-blog/washington-post-says-the-quiet-part-outloud

Our power appetite is bigger than our power supply. The "renewable transition" isn't working. We are losing large baseload power generators and not replacing them and we're adding too much load. Our electric system is not sustainable. It's a simple math equation.

Back in January I was contacted by a reporter from the Washington Post who had been writing about the proliferation of data centers in Northern Virginia and wanted to investigate how Virginia's out-of-control building was impacting people in surrounding states. Virginia's data center problem is no longer just Virginia's problem. It has now spread to the entire 14 state PJM Interconnection region.

Here's his story that began back in January.

For us, the story began last summer when we found out about PJM's transmission plan for multiple new high-voltage transmission lines to import more power to data center alley. We followed it through PJM's planning process and though we protested and asked for other solutions, PJM approved three new 500kV transmission lines and a whole bunch of smaller segments and substations. During PJM's TEAC meetings, I remarked several times that the new transmission was feeding from existing legacy coal plants in West Virginia and was actually increasing emissions and in no way helping the "renewable transition." Every time I mentioned it, PJM was quick to claim that the new electric supply would come from "all resources, including renewables." PJM seemed rather sensitive about the reality of its plan and vehemently denied it. Deny this article, PJM. It's all there in living color.

Virginia has renewable energy laws that prohibit the building of new fossil fuel generation (gas, coal). But yet Virginia is building an incredible amount of new data centers that use outrageous amounts of power that is simply not available on the current system. Virginia's renewable energy plan is a virtue signaling lie. Instead of building the electric generation it needs, Virginia intends to IMPORT electricity from surrounding states, even coal-fired power from West Virginia. ESPECIALLY coal-fired power from West Virginia. How is Virginia's "renewable energy" law cleaning up the environment? It's not. It's making the situation worse.

After Tony started working on this story for the Washington Post, FirstEnergy made an announcement that bolstered what I had been saying... PJM's transmission plan is increasing the production of coal-fired electricity in West Virginia. FirstEnergy announced it was abandoning its goal to decrease its carbon emissions by 2030 by throttling back its Ft. Martin and Harrison coal-fired power plants near Morgantown. FirstEnergy said it was necessary to abandon that goal because those resources were necessary to provide reliability in PJM. In other words, FirstEnergy will throttle up its electricity production at those plants in order to provide supply to PJM's new transmission line that begins at the nearby 502 Junction substation and ends at No. Va.'s data center alley in Loudoun County. Ft. Martin and Harrison directly connect to 502 Junction via dedicated 500kV transmission lines. Also connecting directly to 502 Junction is the Longview coal-fired power plant in Morgantown and AEP's Mitchell coal-fired power plant in West Virginia's northern panhandle. It's more than 5,000 MW of hot and dirty coal-fired electricity and if the line is constructed it's heading right for Northern Virginia, along with some smog and air pollution. Data Centers are filthy! And PJM is a filthy liar.

Along the way to No. Va., PJM's new coal-by-wire extension cord will expand existing transmission rights-of-way closer to homes, schools, parks and businesses. Expanding existing easements makes it impossible for the utility to avoid sensitive things like they could if they were siting a new corridor. Anyone living along the existing corridor, like the Gee family, is going to be steamrolled right over.

The "using existing rights-of-way" propaganda is another huge PJM lie I brought up over and over during TEAC meetings. It's a new easement all the way because it cannot be constructed within the existing corridor.

And guess what? Along with new pollution and new land acquisition using eminent domain, West Virginians will PAY for this destruction/construction in higher electric bills, along with every other ratepayer in the PJM region.

And we get NOTHING for our trouble. Virginia gets new tax revenue building things they can't power while crowing about how "clean" Virginia is, and the rest of us get the impacts and the bill. We're NOT your sacrifice zone.

Washington Post reporter Tony Olivo did a fantastic job investigating and reporting on this story. He spent a day with us here in Jefferson County and drove from one end of the county to the other meeting people, and Washington Post photographer Sal got lots of photos and drone footage along the way. Then these two guys drove all the way out to 502 Junction and Morgantown to do the same there. They spent an enormous amount of time on this story and it shows.

One of my favorite images in the story is the new solar "farm" near Charles Town taken from the drone. It shows how the company building it scraped off all the vegetation and top soil and left nothing but bare earth and erosion that is killing the Shenandoah River. Clean energy ain't so clean, is it?

And let's talk about that "clean energy", shall we? Wind and solar cannot create the amount of electricity needed for new data centers, even if they cover Virginia with turbines and panels from end to end. The data centers need a plentiful and reliable supply they can only get from fossil fuels. A few solar panels on the roof of the data center won't do a thing to cure this problem. It may only keep the lights on in the restroom... during the day. Renewables cannot power our energy intensive society. We're not replacing the generation we're shutting down in the name of carbon reduction, and there's no chance that we can ever catch up at this point. Data centers are too big a drain and Virginia can't stop building them.

If you have any doubts, check out the Generation Fuel Mix pie chart on PJM's website at any time. Renewables provide only a tiny slice of PJM's power supply and it will never change as long as we keep increasing power load with new data centers.

Bravo to Washington Post for exposing Virginia's dirty data center reality!

And let's get to work, Jefferson County. We've got a power line to stop!

]]><![CDATA[As the Dollar turns: Episode 2]]>Wed, 10 Apr 2024 17:32:18 GMThttp://stoppathwv.com/stoppath-wv-blog/as-the-dollar-turns-episode-2In our last episode of the FERC cost allocation soap opera, we saw a record number of intervenors for this kind of case, and were left breathlessly waiting for FERC to act.

FERC acted on April 8.

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As expected FERC approved PJM's cost allocation filing because projects necessary for reliability are allocated across the region, as PJM proposed. An attack on the existing cost allocation formula for reliability projects is outside the scope of the proceeding because the formula was approved by FERC long ago. The only thing FERC was considering here was whether PJM's cost allocations were in line with its approved formula.

Maryland's Office of People's Council tried to make the argument that PJM selected the wrong formula and that the projects were actually public policy projects that should be allocated 100% to the state whose public policy is causing the need for the projects. FERC rebuffed that argument.

It's all over, save for the requests for rehearing or appeals. This may happen, but that's a drama for another episode.

But all is not lost, avid followers. Commissioner Mark Christie filed a delightful concurrence and opined

...that the time has come for this Commission to take the lead in its convening role to initiate a proceeding, such as a Notice of Inquiry, a series of technical conferences, or by initiating an FPA section 206 proceeding outside this docket, posing such important questions, among others, as: What is the proper definition of a public policy transmission project? Does the definition of public policy transmission project need to be changed for purposes of regional cost allocation? How should public policy transmission projects be cost-allocated in a multi-state RTO? In my view the states themselves need to be at the forefront of deciding these questions, as it is their own state policies that are largely making these questions unavoidable, as these two recent PJM RTEP cases graphically illustrate.

However, the other two commissioners apparently weren't feeling it, with Commissioner Clements filing her own concurrence stating that she believes FERC should assign costs based on the allocation of reliability and economic (and perhaps other demonstrable) benefits. In her world, it doesn't matter who causes the reliability issue or why... just that if one is created, everyone pays for it.

Commissioner Christie's concurrence is logical and thoughtful.

As a factual matter, there is no question that the Commonwealth of Virginia has – as a matter of public policy – for years given generous tax subsidies directly to one very specific type of industry: data centers. Virginia’s entire I-95 corridor between Northern Virginia and Richmond may accurately be called “Data Center Alley.” Did these tax subsidies cause Data Center Alley? Under the economic principle of “if you want more of something, subsidize it,” it is logical to assume that Virginia’s tax subsidies did incent the construction of more data centers than would otherwise have located in this corridor, although the exact marginal impact remains unknowable. But the Maryland People’s Counsel and Intervenor Newman make a logical argument to consider the necessary construction of reliability lines in PJM due to load growth from the explosion of data center development in Virginia, as driven – at least at the margin – by Virginia’s own public policy of subsidizing data centers.

But it's not just Virginia causing transmission projects that get allocated to other states, Maryland also gets called out for its "clean energy" policies and the costs for new transmission to take the place of closing coal-fired generators.

These comments logically raise the question whether a law such as Maryland’s mandate to close fossil-fueled generation units located in Maryland has a more direct, intentional and causal impact on the need for new reliability transmission lines than state tax subsidies to high-load customers such as data centers. At a minimum, both Maryland and Virginia state commenters make arguments that are worthy of serious consideration.

I agree with what Commissioner Christie didn't say... both Virginia and Maryland are hypocrites when it comes to cost allocation. Neither one wants to accept the costs of transmission made necessary only by their state policies. Instead, when it benefits them, they want to share the costs with other states whose residents had no part in creating the policies that cause new transmission, like approving more data centers than you can power, or shutting down all your baseload generation and relying on transmission imports from other states to keep your lights on.

Here's the cliffhanger for this episode... Will Commissioner Christie be successful in opening some sort of inquiry or investigation into cost allocation policies when reliability issues are caused by certain state policies? He seems pretty determined to solve this issue. Commissioner Christie's concern for ratepayers above all else is much appreciated, especially considering the political swamp he wades through every day to regulate in the public interest. Regulation is an art, a skill, that comes with a huge learning curve. We need more experienced state regulators like Commissioner Christie at FERC, and less political appointments. FERC's work is too impactful to rest in the hands of political animals.

]]><![CDATA[What's an NIETC and what can I do?]]>Sun, 07 Apr 2024 14:33:06 GMThttp://stoppathwv.com/stoppath-wv-blog/whats-an-nietc-and-what-can-i-do

The U.S. Department of Energy (DOE) is due to release its preliminary list of National Interest Electric Transmission Corridors (NIETC) that it is considering any day now. In order to understand what an NIETC is and how you can participate in the process of designation, let's take a look back at the history of NIETCs.

In the Energy Policy Act of 2005, Congress passed legislation to give the DOE authority to study electric transmission congestion and designate NIETCs that would give the Federal Energy Regulatory Commission (FERC) jurisdiction to site and permit an electric transmission line in the event that a state either did not have the authority to approve a transmission line or failed to act on an application for a transmission line for one year. This became known as "Backstop Permitting." States traditionally have authority and jurisdiction to regulate the siting and permitting of new transmission lines within their borders. This hasn't changed, but now there was a backstop measure to prevent a state from holding up a needed transmission project.

The legislation tasked FERC with developing rules for its backstop permitting process and FERC did so. FERC interpreted the statute to mean if a state denied an application for a transmission project then it bumped permitting to FERC. But that's not what the statute said! Piedmont Environmental Council and several states appealed FERC's rulemaking in the Fourth Circuit Court of Appeals. The Court found that state denial did not activate backstop permitting in PEC v. FERC. This allowed states to deny a permit to build transmission and end the matter.

Meanwhile, DOE had performed its congestion study and designated two huge corridors, one in the southwest, and one along the east coast stretching from New York to Virginia. The designation of those corridors was also appealed in the Ninth Circuit and the Court vacated the corridors due to DOE's failure to consult with states and its failure to perform an environmental assessment on the huge corridors it had designated. That decision is California Wilderness Coalition v. DOE.

These two court decisions made DOE's NIETC program effectively worthless and the entire thing was put on a shelf and forgotten about. But, in 2021, Congress passed the Infrastructure Investment and Jobs Act that contained a section that is meant to cure the problems with NIETCs, reviving the program. In addition to broadening the reasons for designating a corridor, the new statute allows FERC to site and permit a transmission project in an NIETC that is denied by a state. The law tells states -- either approve it or FERC will do it for you. It does not take the place of state permitting, the states still have authority to site and permit, as long as they don't say "no." Transmission projects cannot go directly to FERC without first applying at the state and going through the state permitting process.

DOE has been busy trying to revive its NIETC program ever since. In May of 2023, DOE issued a Notice of Intent and Request for Information proposing a new procedure for designating transmission corridors. DOE proposed that it accept applications from transmission builders to designate a NIETC that corresponded with transmission they wanted to build. That's not what the statute says... it says

Not less frequently than once every 3 years, the Secretary, after considering alternatives and recommendations from interested parties (including an opportunity for comment from affected States and Indian Tribes), shall issue a report, based on the study under paragraph (1) or other information relating to electric transmission capacity constraints and congestion, which may designate as a national interest electric transmission corridor any geographic area ...

It says DOE must study and designate corridors, not farm it out for suggestions from for-profit transmission builders to come up projects that provide profits. The DOE is supposed to be studying and designating corridors that accomplish the criteria in the study and benefit consumers. There can be a huge difference between a project proposed simply for profit and one that is actually needed by consumers. Designating corridors is supposed to be a government tool to incentivize the building of the right kind of beneficial projects. If DOE thinks (all by itself) that a project is needed, then it designates a corridor that will attract transmission builders to propose a new project in the corridor. Instead, DOE is, as I mentioned in my comments to the DOE, allowing the inmates to run the asylum. And I wasn't the only one, DOE received more than 100 comments on its proposal for designating NIETCs. Many commenters also thought allowing transmission builders to apply for NIETCs was a bad idea. Some thought DOE should perform a legal rulemaking to set parameters for its new program.

Meanwhile, DOE had been working on a National Transmission Needs Study required by the statute as the first step to designating NIETCs. That study was published in October 2023. The study found transmission congestion everywhere, meaning that NIETCs were needed everywhere. Many comments were also submitted panning that study. Mine are posted here.

In December 2023, DOE released a "Guidance" document on NIETCs, in lieu of the requested Rulemaking. The Guidance says that it changed DOE's approach to allowing transmission builders to apply for NIETC corridors. Instead, DOE opened a 60-day window for any person to submit a request for a corridor. Supposedly this cured the DOE's problem with allowing transmission builders to control the process. But it really doesn't. Who else would submit a request for a corridor but a transmission builder? It's a legal sleight of hand that is due a day of reckoning.

Many blog readers got involved in NIETC at this point and attended DOE's webinar explaining its process in early January. DOE was not really forthcoming about all the process that came before that webinar, but hopefully this blog will help you to understand that this didn't just drop out of the sky, but had been in process for more than a year.

DOE's 60-day window for submission of "information and recommendations" for corridors ended on February 2. Many thought this was the one and only comment period for NIETCs, but it was actually designed for transmission builders to submit requests for DOE to study corridors to correspond with the projects they want to build. After DOE's window closed, it began to take a preliminary look at the corridor recommendations it has received and promised to release a list of corridors it was considering within 60 days (which would be April 2). DOE hasn't released anything yet, we are still waiting.

However, NextEra notified Piedmont Environmental Council that it had applied for a corridor in Western Loudoun for its MARL project. I'm pretty sure that is not the extent of NextEra's corridor proposal... the corridor will cover the entire MARL transmission line, from 502 Junction substation in Pennsylvania to Data Center Alley. It makes no sense to request a corridor for only part of a transmission project. However, we will have to wait and see what DOE's list looks like before we proceed with our own response.

Our own response? Oh yes, anyone can make comment on DOE's list for 45-days after it is released due to the way DOE expanded who may submit "recommendations." I urge you to read DOE's Guidance, that separates the designation process into four phases. Phase 1 began in December, when anyone (like NextEra) could submit recommendations for corridors. Phase 2 begins when DOE releases its list of preliminary corridors to be studied. In the 45-day Phase 2 window, any person may submit information and recommendations. DOE is asking for specific information about each preliminary corridor. It seems to be intended for transmission builders who submitted recommendations for corridors in Phase 1 to supplement their applications, err... "recommendations." It does not seem to be intended for people concerned about the designation of an NIETC to submit their own information and recommendations, but we're going to crash this party and give DOE an earful about corridors that concern us. More information about how to participate will be forthcoming after I see DOE's list. After the 45-day Phase 2 process, DOE will decide which corridors will proceed to Phase 3. Phase 3 opens the federal environmental study process required by NEPA. DOE will also evaluate historical resources and endangered species. During Phase 3, DOE will create a draft designation report and open it to public comment. Phase 3 requires "robust" public engagement and notification. This is where DOE wants you to join its NIETC party and make comment, and comes very late in the process, after DOE has already made up its mind in the draft designation report. When all the studies and comment periods are complete, DOE will move onto Phase 4. Phase 4 publishes a completed environmental study and DOE's Record of Decision and final Designation Report. That's the end of the process.

However, a designation may be appealed, first through a Request for Rehearing at DOE, and afterwards through a formal appeal in the D.C. Circuit Court of Appeals (or other circuit where the transmission builder is headquartered).

Is it worth engaging in the NIETC process? Absolutely! Unfortunately it is just one more thing to deal with and will play out during the state permitting process for MARL. If you do nothing on NIETC, you risk all your hard work opposing MARL at your state utility commission being for naught. If your work in the state process causes the state to deny a permit, NIETC can bump it to FERC and start the permitting process all over again.

And speaking of FERC, it also needs to update its process for permitting transmission projects in a designated NIETC. Back in 2005, FERC engaged in a rulemaking for a permitting process. That rulemaking has to be updated for the new process. FERC opened a rulemaking proceeding for siting and permitting transmission in a NIETC back in 2022. The comment window closed way back in May of 2023. However, FERC has not yet issued an order or taken any further action. FERC cannot accept any applications for NIETC projects until it completes its rulemaking. A group of nationwide transmission opponents submitted timely comments on FERC's rulemaking. You can read their initial comments here, and their reply comments here. This group was the only one to speak up for impacted landowners at FERC. You can read other comments on the docket and monitor its progress by going to FERC's eLibrary and searching for Docket No. RM22-7.

As you can tell from the length of this blog post, NIETCs have been quietly in the works for a long time and there are a lot of moving parts. I know it's a lot to understand all at once, that's why I will be publishing some guidelines for landowners who want to kick NIETCs to the curb just as soon as DOE releases its Phase 2 list.

Stay tuned!

]]><![CDATA[Illinois Groups Ask for Rehearing on GBE FERC Case]]>Wed, 03 Apr 2024 15:16:53 GMThttp://stoppathwv.com/stoppath-wv-blog/illinois-groups-ask-for-rehearing-on-gbe-ferc-case

As you may recall, FERC issued a very confused and contradictory order granting Grain Belt Express continued negotiated rate authority de novo. This would be like selling a used car as a new car that has been continuously driven for the past 10 years. As Illinois attorney Paul Neilan explains in his inimitable fashion:

1. The Meaning of “De Novo.”
De novo is Latin for "anew." De novo, Black's Law Dictionary (11th ed. 2019). In this Docket the Commission is evaluating GBX’s entire project anew, on both facts and law. “A trial de novo is a trial on the entire case – that is, on both questions of fact and law – conducted as if there had been no trial in the first instance.” Trial de novo, Black's Law Dictionary (11th ed. 2019). When a court decides a case de novo, that court owes no deference to any finding of fact or conclusions of law in the prior decision. See Zervos v. Verizon New York, Inc., 252 F.3d 163, 168 (2d Cir. 2001) ("[O]ur review is independent and plenary; as the Latin term [de novo] suggests, we look at the matter anew, as though it had come to the courts for the first time."); see also SEC v. Callahan, 103 F. Supp. 3d 296, 301-302, 2015 U.S. Dist. LEXIS 57996, 13-14 (E.D.N.Y. May 2, 2015).
2. The Meaning of “Continuing.”
The term “continuing” means "uninterrupted; persisting" or "not requiring renewal; enduring." Black's Law Dictionary (11th ed. 2019). The term "continuing" means a state or condition that persists from some prior time into the future. See In re Neosho Concrete Prods. Co., 2021 Bankr. LEXIS 1198, 11-12, 70 Bankr. Ct. Dec. 61, 2021 WL 1821444 (Bankr. W.D. Mo. May 6, 2021).

So when the Commission said in its order that it was granting Grain Belt’s request for continued authority to sell transmission rights at negotiated rates, on a matter that it reviewed de novo, FERC contradicted itself.

Read the whole Request for Rehearing of the Illinois groups here. I guarantee you won't be as confused as FERC. It's pretty simple and straightforward and beautifully written.

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FERC staff who wrote that order (Jignasa Gadani; Valerie Teeter; Maria Farinella; Natalie Tingle-Stewart; Michael McLaughlin?) absolutely tied themselves in knots trying to give GBE the best of both worlds. We knew something was amiss when GBE filed this letter on the outstanding docket earlier this year:

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GBE said... hey FERC, we need you to hurry up and give us what we want... and BTW, here's a CC of this letter to all the staff people we have been schmoozing. Right. The staff got it done on GBE's timetable, but they did a really crappy job that cannot withstand any legal scrutiny. Shame on the Commissioners for allowing their names to be placed on that less than stellar piece of work. Now it's time for FERC to actually give this docket the scrutiny it should have received in the first place or else the are going to be standing up before the D.C. Circuit looking like idiots trying to defend the indefensible.

It's been more than 30 days since FERC gave GBE what it wanted because GBE was in such a big hurry to advertise its project for sale to customers. GBE hasn't advertised anything yet. Guess there wasn't much of a hurry after all.

And why does GBE need to "amend" its prior grant of negotiated rate authority that expired when Clean Line sold the project to Invenergy without FERC approval? Because the contract with the Missouri municipalities for less than 5% of the project's capacity was negotiated under Clean Line but never submitted to FERC for approval. FERC cannot "continue" that unapproved contract to be approved at some later date if it actually did review GBE's negotiated rate authority de novo and issue new authority. FERC needs to boot that contract to the curb because it was not filed by the deadline in FERC's original grant of negotiated rate authority that Clean Line agreed to. Sorry, the instructions were clear and they were intentionally not followed. That contract is toast.

FERC also has a huge problem with the contradiction it created saying that GBE didn't need approval to transfer the project from Clean Line to Invenergy, but that Invenergy's sale of undivided interests in the project would somehow require approval. Either a sale of project assets requires approval under Sec. 203 of the Federal Power Act, or it doesn't. Can't have it both ways. FERC needs to think carefully before it does something that can impact its authority under Sec. 203 going forward.

FERC didn't think this thing through, and it needs to correct its errors. Thank goodness the Illinois groups are there to clean up the mess. If it doesn't make sense, it can't withstand the legal scrutiny of the DC Circuit. Been there, done that.

]]><![CDATA[DOE Pretends to Plan New Transmission]]>Sat, 16 Mar 2024 16:35:57 GMThttp://stoppathwv.com/stoppath-wv-blog/doe-pretends-to-plan-new-transmissionOur Big Green government is wasting our tax dollars on an effort to "plan" new transmission, although is has absolutely no authority to do so. The latest waste of money is entitled "Interregional Renewable Energy Zones" and is a partisan effort to create these "zones" in rural America and "suggest" new HVDC transmission to connect the "zones" to "load centers." Boiled down, it's an ineffective "plan" to turn rural areas into industrial scale power plants covered with wind turbines and solar panels and then ship all that green juice to the elite bastions of urban arrogance. Why? It's simple... they don't want any ugly, invasive power infrastructure sited in their own backyard, but they still want to pretend they are "clean and green" by turning us all into their personal energy serfs.

Nice try, but rural areas aren't that stupid. DOE has absolutely no authority whatsoever to plan renewable energy "zones" or new transmission lines. It seemed they thought they did last year, until they were challenged and came up empty handed. No authority. Not happening.

But they're not giving up. They continue to waste our money on idiotic "reports" that do absolutely nothing. This time, they claim that their work is "helpful" to states who may want to use this nonsense to plan for their own energy needs. Sorry... the states don't need your help anymore that the transmission planning authorities do. Nobody needs help from a bunch of babies that are too stupid and partisan to accept reality.

This study is a preliminary analysis to help state decision makers determine whether to pursue more detailed analyses of IREZ corridors that are relevant to them. This report could not fully account for all the case-specific details that would affect the configuration of a transmission project. Nevertheless, if a corridor examined in this study has a high benefit-to-cost ratio based only on energy cost savings, a follow-on study focusing on that corridor might expand the economic analysis to include local factors that we were not able to address here. A guiding premise behind the IREZ analysis is that states will ultimately take the lead in deciding whether to pursue IREZ development.

But that has approximately ZERO chance of happening. Even if one or two states used this dreck to ask their regional planning authorities to plan for zones and transmission, there are too many "fly over" states that are never going to agree to it.

What states are those? Take a look at the grandiose "plan." (larger image available at the "report" link)

The green dots are "zones" to be covered with wind turdbines and solar panels. The red dots are the places that want to pretend they are only using renewable energy. The lines are new HVDC transmission projects.

This study develops a model using renewable energy zones to address the new challenges of interregional transmission planning. An interregional renewable energy zone (IREZ) is an area comprising a very high concentration of very low-cost developable renewable energy potential. An IREZ hub is a collection point on the bulk power system to which renewable energy plants built in the IREZ can connect easily. The hub anchors an IREZ corridor that consists of a dedicated high-voltage transmission path from the IREZ hub to a major load center.

What were you smoking when you drew that?

We have identified and quantified several high-value IREZ corridors that affected states might consider for interregional transmission planning. Our analysis suggests that these corridors can be valuable tools for reducing carbon emissions in a manner that uses known technologies, has relatively small net impact on customers’ electricity bills, improves resource adequacy, and provides the grid with an additional measure of resilience against major disruptions related to climate change and other causes.

Affected states won't be "considering" that. It is quite insane and wasteful.

And let's talk about that "using known technologies" thing. The only "technology" NREL considered here was wind and solar. That's it. News flash! We absolutely, positively, undeniably cannot reliably power the United States with only wind and solar. Putting their intermittency and unreliability aside, they are just too expensive at this scale. There's nothing in this report that adds up the cost of all those renewables in the "zones" and the cost of all the new transmission. I don't think they can count that high. Here's an idea! Why don't you take all the money you were hoping to spend on this wasteful plan and use it to build clean, renewable nuclear generation at all the red dot load centers? None of this transmission would be necessary, and that's a huge savings. I'm sure it would be cheaper, but DOE didn't compare any other resource plans to this biased brain fart.

And, before I end, let's examine one of the huge errors DOE made purporting "benefits" for the states:

Benefits could include assumptions about local tax receipts and indirect economic development effects in the IREZ state, payments to landowners for the acquisition of right-of-way (ROW) along the transmission path, net savings in energy costs for customers at the receiving end of the corridor, and enhanced resilience against extreme weather events.

Sorry, but payments to landowners for land taken from them against their will is NOT a benefit. It is COMPENSATION for something taken from them. The idea of compensation is that the landowner remains whole after the taking, although you can't grow crops on piles of dirty money. It is not a windfall similar to winning the lottery. The landowner is supposed to use that money to purchase additional land, or to make up for the inability to use that land in the future. That is not a "benefit" by any stretch of the imagination.

DOE did a pretty poor job of trying to dredge up some reason why flyover states should willingly sacrifice themselves for the urban elite. It also completely overlooks that the "zones" may not want to be covered in wind turbines and solar panels and may outright refuse to sign leases or permit these projects to be built.

What a complete and utter waste of taxpayer money.

]]><![CDATA[Media Misinformation]]>Sat, 16 Mar 2024 16:19:32 GMThttp://stoppathwv.com/stoppath-wv-blog/media-misinformation

At the top of my STOOPID list this week is this article from Inside Climate News. In his push to help make transmission siting and permitting a federal responsibility, this "reporter" from NYC interviewed some twit from the partisan Brookings Institution named Samantha Gross. The Gross quote said this:

Transmission lines are among the most difficult projects to receive speedy approval, Gross said, because they tend to cross multiple states and jurisdictions, each of which have their own set of requirements the developer would need to fulfill. In fact, Gross said, she already knows of one transmission line currently under development in the Midwest that would immediately benefit from state level reforms.
The project—a lengthy transmission line called the Grain Belt Express, which would deliver electricity produced at wind and solar farms in Kansas 800 miles to Missouri and Illinois—has been delayed for more than a decade by the regulatory process and legal challenges.
“If those contiguous states had some permitting reform, you could probably get that project done,” Gross said.

Yup, that sure is gross. Miss Samantha doesn't know diddly about Grain Belt Express, apparently. Grain Belt Express is stalled right now because it doesn't have enough customers to make the project economic. Fact. Making permitting a federal affair would have absolutely no impact on Grain Belt Express. Permitting "reform" won't make anyone want to sign up for GBE.

Neither one of these people realize how STOOPID they sound to people who know the truth. But, we're not really the target audience... STOOPID feeds on STOOPID and that "article" just makes everyone dumber.

Samantha needs to stop spewing misinformation born of her own presumptions and ignorance. And the NYC reporter needs to quit printing it.

]]><![CDATA[GBE's Epic Meltdown]]>Sat, 09 Mar 2024 18:51:53 GMThttp://stoppathwv.com/stoppath-wv-blog/gbes-epic-meltdownI've seen a lot of temper tantrums in my lifetime, and this one is screaming, red in the face, epic.

Yesterday, Grain Belt Express made another filing on its long-ignored complaint at the Federal Energy Regulatory Commission, having an absolute conniption fit that MISO is working on another package of transmission projects that ignores GBE. Time waits for no man... and the transmission world waits for no bloated, limping merchant transmission project either. GBE has taken so long to get its project together that it has been eclipsed. So sad, too bad!

In the complaint GBE filed against regional grid planner MISO last year, GBE was ticked off that MISO's Tranche 1 transmission plan ignored its speculative merchant transmission project and approved a series of new projects that would deliver renewable energy into Missouri from Iowa. MISO's new lines follow a similar path across Missouri and into Illinois and are expected to be online around 2030. This raises the question... what's cheaper for Missouri utilities? Purchasing energy from Kansas and service on the $7B GBE project, or purchasing energy from Iowa and taking service on MISO's new projects that cost a lot less? This could create direct competition for GBE, who may have been banking on the fact that it had cornered the market on delivering renewable energy to Missouri. Competition works to provide options for cheaper service for Missouri's ratepayers.

And now MISO has opened a solicitation for its Tranche 2 transmission project portfolio.

Tranche 1 is represented by the gray lines. The new Tranche 2 is represented by the new red (345kV) lines and the new green (765kV) lines. That's right... MISO has included a new 765kV project that begins in Iowa and ends in Missouri, not too far from where GBE wants to interconnect, if it ever gets its crap together and finds customers. It's even MORE competition for GBE in Missouri. Good luck with that customer thing, GBE.

Here's part of GBE's ranting tantrum filed with FERC:

MISO recently proposed a new 765 kV transmission line in Missouri close to where the GBX Project will connect. This is absurd given the advanced stage of GBX, disincentivizes the development of interregional merchant transmission, is contrary Commission policy, and is neither just nor reasonable transmission planning.

MISO continues to march on blindly, act as if GBX does not exist and propose even further transmission in Missouri close to where GBX is fortifying the grid with significant network upgrades and will inject 6.3 TWh of energy annually and be online well before the new proposed 765 kV Tranche 2 Missouri transmission project would come online. This is not only unjust and unreasonable transmission practice but absurd transmission practice. It is irrational for MISO to propose even further transmission in Missouri and ignore that GBX that has obtained all its Certificates of Public Convenience and Necessity, including in Missouri, spent hundreds of millions of dollars, is committed to spend hundreds of millions more and has a TCA with MISO.

But GBE doesn't have customers. No customers, no project! MISO can't wait another 10 years to see if GBE can actually get its project built. It is far from a sure thing, therefore MISO planning marches on.

GBE's second addition to its original complaint contains a bunch more technical mumbo-jumbo concocted by GBE's consultant that says that the MISO projects won't provide any value to MISO customers because GBE will be online. GBE is oh so concerned about MISO consumers getting the most bang for their buck and it doesn't want those consumers to pay for projects that don't have a significant cost/benefit ratio. Blah, blah, blah. GBE insists that its project will be operating soon and will make the MISO lines unnecessary.

Here's what GBE does not say...

GBE does not say that its project will be cheaper than the MISO projects and provide cheaper energy to Missouri. It's just claiming that the MISO projects won't provide benefit to Missouri if GBE is built. All GBE's fake concern for Missouri ratepayers is nauseating. GBE is only looking out for its own bottom line here, not yours. In contrast, MISO doesn't have any skin (or a risky investment) in the transmission planning game. MISO is only looking out for your bottom line, not its own. It sure looks to me like GBE is simply trying to eliminate its competition. If MISO's lines are not built, then consumers may not have any other choice than service on GBE. And that's the bottom line.

If GBE thought that its project could provide cheaper energy to Missouri than the MISO projects, it absolutely would not care if MISO planned other projects that were not such a good deal for consumers. If GBE was such a great deal, then it would welcome competition.

Instead, GBE just had an epic meltdown at FERC. Just like any toddler having a tantrum, its motivation is plain for everyone else to see. Seems like GBE hates the idea of having competition. Quick, someone call a WAHHHmbulance.

Despite (1) over three years of discussions with MISO and its transmission owners regarding the Project; (2) GBX acquiring final state siting approvals in all 4 states as well as over 96% of the HVDC route’s right of way among other indicia of Project advancement; and (3) GBX having an effective TCA with MISO in hand, on March 4, 2024, MISO released its initial Tranche 2 Draft Portfolio which again does not consider the impact of advanced-stage merchant transmission and worse still proposes a new 765 kV transmission line that is redundant to the far more advanced GBX Project and will interconnect to the same portion of MISO’s system. Thus, MISO has not only ignored GBX in its planning, but it has intentionally leveraged the lack of clarity in its Tariff to discriminate against it.

The Commission has long recognized that a lack of transparency and standardization of market rules impedes competition and enables the exercise of market power and undue discrimination, and that exact outcome has occurred here. The lack of a clear standard in the MISO Tariff for how advanced-stage merchant transmission will be considered in regional planning has opened up the opportunity to discriminate against merchant transmission projects, which are sorely needed to provide critical geographic diversity and interregional transfer capability during the energy transition. In the end, MISO’s behavior will not only lead to unjust and unreasonable rates, but it will rob the region of competition, access to geographically diverse resources and potentially important ties to adjacent RTOs. This should be unacceptable to the Commission, to State regulators and to ratepayers. The Commission should act now on this Complaint to protect ratepayers, prevent further delay and waste and to rectify this baffling outcome which is a direct barrier to the development of much needed interregional transmission. Therefore, Invenergy renews its request for the following relief

Invenergy urges the Commission to issue an order as soon as possible and no later than May 15, 2024, to ensure that just and reasonable transmission practices are implemented and ratepayers are protected at the soonest possible date.

As that great philosopher Pee Wee Herman once stated... "I know you are, but what am I?".

Does GBE actually think FERC is going to come to its rescue, shut down MISO's planning efforts, and vaporize GBE's competition by May 15?

Fat chance.

]]><![CDATA[I Told You So!]]>Thu, 07 Mar 2024 17:29:33 GMThttp://stoppathwv.com/stoppath-wv-blog/i-told-you-so

This may be the first of several blogs with the same title.

I told you so, DOE!

It seems that one of the first merchant transmission projects that DOE gifted with a capacity contract has gone belly up because it couldn't find any other customers.

FACT: Merchant transmission capacity contracts are NOT like painting Tom Sawyer's fence... just because the federal government is stupid enough to sign a capacity contract for service doesn't mean anyone else is equally stupid.

Last October, the U.S. Department of Energy announced the first three recipients to be granted transmission capacity contracts paid for by taxpayers. And I blogged about it here.

DOE is buying something that it doesn't need and won't ever use, but will put a lot of money in the pockets of private investors who otherwise would have no buyers for their overpriced service. Can I just say "I told you so" in advance? This program is wasteful, illogical, and unfair.

Taxpayer funded merchant transmission capacity contracts for projects that have no other customers DO NOT inspire other buyers to sign a contract.

I've been telling DOE this since the dawn of this stupid idea.

But they didn't listen, being all concentrated on political nonsense and lacking common sense such as they are.

And this week, I was right. The Twin States Clean Energy Link was cancelled. It was cancelled because it couldn't find any other customers besides the U.S. DOE. That's right, even when the DOE put up our tax dollars to support a merchant transmission project nobody needed, it still didn't inspire any other customers to sign up. This experiment in propping up unneeded merchant transmission projects with taxpayer dollars is a miserable failure.

Undaunted, the DOE recently issued a second solicitation for more loser merchant transmission project contracts.

Sometimes you just can't fix stupid, especially when their pockets are full of Other People's Money.

Speculative merchant transmission projects are not viable. Quit wasting our money, DOE!

Did I mention I TOLD YOU SO?

]]><![CDATA[FERC Tosses GBE's Negotiated Rate Authority and Issues New One]]>Sun, 03 Mar 2024 17:42:27 GMThttp://stoppathwv.com/stoppath-wv-blog/ferc-tosses-gbes-negotiated-rate-authority-and-issues-new-one

The Federal Energy Regulatory Commission has finally gotten around to solving one of GBE's little problems... for now.

Last year, GBE asked FERC to "amend" the negotiated rate authority issued to the project in 2014. However, FERC conducted a review de novo, as it would have a reviewed a new application. GBE's original authority is history, but FERC also granted new authority based on GBE's application. FERC also said that GBE did not need to file for negotiated rate authority before selling capacity (d'oh GBE). Under Commission policy, a merchant transmission developer can either opt to file in advance to show it has met the Commission's four factor analysis, or it could just submit everything after the fact and hope it got things right.

While FERC said that GBE met the first and forth factor, it is reserving judgment of the second and third factor until after GBE makes a later filing. But there were some leaps of logic in there that makes me wonder what FERC is up to.

First leap...

Grain Belt notes that this area is within the geographic footprint of Southwest Power Pool, Inc. (SPP), but the generation will not be interconnected to the SPP transmission system.

So, GBE is NOT connecting to SPP and will simply connect directly to the generators? GBE will not have a connection to the SPP transmission system.

But then FERC turns around and says these things:

The GBE system consists of (in part): AC overhead transmission lines to connect the converter stations to portions of the SPP, MISO, and AECI managed electrical systems in Kansas and Missouri.

And that...

Grain Belt contends that Phase 1 will increase resilience for the SPP, MISO, and AECI Balancing Authority Areas (BAAs) by allowing the potential of one BAA to import a large amount of power from another BAA to bolster system reliability and improve the ability of each BAA to recover after a power failure.

That's right... GBE does connect to SPP. Someone at FERC overdosed on contradiction cookies while writing that order.

But it doesn't stop there, and the rest of them are not so inconsequential.

In the 2014 Order, the Commission directed Grain Belt “to make a filing disclosing the results of the capacity allocation process within 30 days after the close of the open solicitation process.” Grain Belt did not submit a compliance filing during the required timeframe and, as such, has not satisfied the conditions of its initial grant of negotiated rate authority. Grain Belt indicates that it will seek approval of the Initial TSAs in a future compliance filing. Given the Project changes described in the instant filing and the passage of time, the Commission will conduct a de novo review of the Initial Open Solicitation and the Initial TSAs at such time as Grain Belt submits a filing providing sufficient detail to evaluate whether the capacity allocation process satisfied the Commission’s requirements.

FERC acknowledges that GBE did not follow its order, but says that doesn't matter. Why even bother with the 30 day deadline if utilities don't have to follow it, but can take 8 years or more to make a required filing under a different order? FERC has turned itself into a paper tiger. Anyone can violate any FERC order it likes in the future and suffer no repercussions. Hear that, market manipulators? FERC says you can break its rules whenever you like and there will be no penalties. Ridiculous!

And here's the worst leap of logic in the whole thing...

GBE says it was not required to get FERC's approval for the sale of the project (and its Negotiated Rate Authority). The Illinois protestors say that approval was required and made extensive arguments to support their contention. And what did FERC do? It chucked that whole argument because it ruled that GBE's prior negotiated rate authority does not exist because they reviewed and granted new authority de novo. That makes the entire argument moot and FERC does not need to make a decision on whether it should have approved the sale.

Given that we are reviewing Grain Belt’s filing de novo, we find moot protestors’ argument that Grain Belt may not rely on the Commission’s prior grant of negotiated rate authority in the 2014 Order because Grain Belt failed to obtain section 203 approval. Our findings here are based on Grain Belt’s current ownership structure and project design, and thus do not turn on whether prior section 203 authorization was required for either Invenergy’s acquisition of Grain Belt, or the transfer of Grain Belt’s negotiated rate authority.

And then FERC says:

Grain Belt’s request for continued authority to sell transmission rights at negotiated rates is hereby granted in part, as discussed in the body of this order.

But the Commission tossed its 2014 order finding that GBE met all four factors and its new order only finds that GBE complies with two. GBE lost serious ground here. FERC was not snowed that it should simply rubber stamp a renewal of the 2014 order. GBE is going to have to go back to square one and prove factors two and three all over again... if it can.

And here's another easter egg for FERC... GBE said approval for a sale is only required if the sale was made AFTER the project was energized. Therefore, GBE won't actually have to get approval of any sales it makes before the project is in service, which includes all the sales it intends to make now during its sale of capacity and undivided interests in the project. Again... FERC says do whatever the heck you want, GBE, we'll settle up later. The only hazard there is one for GBE... perhaps a different group of Commissioners and staff is going to be scrutinizing your compliance filing after you finish selling your project, and maybe they don't have such a permissive style of regulating based on one administration's push for "clean energy". GBE is cocked and ready to make as many fatal mistakes as necessary... well, if anyone is even interested in buying transmission capacity from Kansas to Missouri. Will they be interested in a $7B project from unspecified generators to a connection point in Missouri that may be ready in 2030 when MISO is building a competing project that costs a lot less and is scheduled to be online in 2028?

Have at it, GBE, but watch your back, FERC's not done with you yet.

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