<![CDATA[ StopPATH WV - StopPATH WV Blog]]>Tue, 12 Dec 2017 16:26:20 -0800Weebly<![CDATA[Tone Deaf Transource "Listened" But it Failed to Hear]]>Tue, 12 Dec 2017 12:39:18 GMThttp://stoppathwv.com/stoppath-wv-blog/tone-deaf-transource-listened-but-it-failed-to-hearHow sad it is when a company's op ed about how much it cares about your community comes with a "fill-in-the-blank" for the name of your community?

Transource claims to have "listened" to your community, and wants you to know:
We heard about the valuable role agriculture plays in this region and our engineers worked to ensure typical farming practices in **INSERT COUNTY NAME HERE** County, from crops to orchards, could continue to exist within the right-of-way.
See York County version here.
See Franklin County version here.
Same op ed, only the county names were changed.  It's like getting a "personalized" piece of junk mail in your newspaper.
What does an electrical engineer in Columbus, Ohio, know about "typical farming practices" in Pennsylvania?  Transource "heard" what it wanted to hear  -- that its project could be built without impacting farmland.  But that's not what the community was telling Transource.  In fact, as a wise person pointed out, if Transource really heard what the community was saying, there would be a few electrical engineers tiptoeing around quite gingerly because they'd have a monopole shoved where the sun doesn't shine.

The communities in York and Franklin counties said "no" to Transource.  No, you cannot build that line across our land.  No, you cannot build the project without impacting farmland.

Todd Burns is living in some kind of fantasy world, where the communities accept the transmission project and are so happy that Transource "listened" to their opinions and "started a dialogue."  Of course, nothing much changed.  Todd just wants you to think you had some influence on the process.  Transource wants to build its project.  It will be very profitable.

The actual "folks" in the community want a "dialogue" about whether to build this project or not.  And if it's built, they want to shape how and where it's done.  Perhaps the project should be built on existing rights of way owned by other companies, or perhaps it should be buried.  The only choices Transource gave the community was to suggest that an aerial line on new right of way could be shifted onto a neighbor's property.  That's no choice at all.  That's not a "dialogue," it's a monologue.  When "folks" objected to the project, Transource tossed out some "responsible construction practices that respect the environment and your property, and the operation and maintenance of the transmission line," and some "practices to fairly compensate landowners when we acquire easements for the new line, including compensation for potential impacts or crop loss during construction and restoration."  But the "folks" were not satisfied, and they're still not satisfied.

So, what kind of performance art* was that op ed?  The affected "folks" didn't feel that their concerns were addressed.  If they did, there wouldn't be any opposition.  And yet I found myself in an auditorium filled with staunch opponents of the project last night.  And they're not giving up.  And they're not giving in.

So, yes, let's get on with this, Transource.  Let's get on to the REAL listening to "folks" that happens in the regulatory, political and public relations arena.  Let's examine the fragile claims of "need," and let's admit that this project provides no benefit to the "folks" Transource wants to burden with its impacts.

The real listening has only just begun.

*Oh for the love of Christmas cookies, Todd must think the "folks" can't read, so he needs to act it out for them on video.  I'm not sure whether to laugh or throw up.

<![CDATA[The Dumb Argument Transmission Developers Need to Stop Using Immediately]]>Fri, 24 Nov 2017 15:44:53 GMThttp://stoppathwv.com/stoppath-wv-blog/the-dumb-argument-transmission-developers-need-to-stop-using-immediatelyTransmission developers say a whole bunch of dumb things while trying to convince a public that new transmission is necessary.  These developers will literally say anything, as long as someone tells them it advances their cause.

This really dumb argument has come from the spout of many different transmission developers over the past couple of years, and every time I hear it anew, it just sounds stupider.  What kind of an idiot thought this up and then convinced transmission developers it was a sound argument that would convince the public to rally behind new transmission?  Because I've seen it too many times for it to be an original argument gone viral.  It's not even a good argument. 

The electric utility supply of the United States is based on a sharing of facilities and energy sources for both purposes of supply and reliability. There are two transmission corridors whose final sections exist for the benefit of Sudbury, Maynard, and Concord. One begins in Medway and passes through Sherborn, Natick, Framingham, and Wayland. The second, which begins in Waltham, passes through Weston. In effect, the citizens of Medway, Sherborn, Wayland, Weston, Waltham, Framingham, and Natick have had to sacrifice some of their environment for the benefit of Sudbury.

A large group in Sudbury, Protect Sudbury, opposes this line, either overhead or underground, if built along an existing MBTA right-of-way. The group also opposes any overhead line through any route in Sudbury. If only the citizens of Wayland and Weston could have successfully opposed the construction of transmission towers in their towns that supply Sudbury! No tower, no power!
This ad hominem basically goes something like this:  Because your home relies on power from existing transmission lines crossing someone's property somewhere, you owe it to society to have a transmission line on your own property for benefit of someone else.

When do two wrongs make a right?  This argument convinces no one.  Not the transmission opponents who are supposed to somehow feel wrong and guilty about their opposition, and not the general public who already has power and a transmission line in their backyard.  Everyone thinks this is a stupid argument, except maybe transmission developers and Gerald L. Wilson.  I wonder if Mr. Wilson has a transmission line serving others in his backyard?  I wonder if a new one serving others is proposed?  Or is Mr. Wilson just spouting stupid transmission talking points to add some purpose to his happy, golden retirement years?  

As if transmission itself isn't last century's technology, this argument is maybe supposed to take you way back to the electrification of America in the early part of the 20th century.  In order to bring the wonders of electricity to every American, it was necessary to run lines across private property.  Electric utilities were given eminent domain authority because electrifying the country was for the public good.

We've come a long way since then.  Everyone who wants electricity in this country has electricity.  No modern electric transmission line is for the purpose of bringing electricity to people who have none.  Sometimes it's about reliability (but you just can't trust them because they have a tendency to claim a project is needed to keep the lights on when it's more about padding the corporate coffers).  But more often than not new transmission these days is for other reasons that are more want than need.

1.  To make power cheaper somewhere else.
2.  To make power cleaner somewhere else.
3.  To increase annual returns at investor owned utilities.

Eminent domain should never be used for these three reasons.  They're not for the "public good" and only pit one group of citizens against the other to battle over which group's "good" can trounce the other's.  Why does someone have to sacrifice for the "public good" of others?  The 5th Amendment has been used way beyond its initial intent.  How about this?  No one loses, no one has to sacrifice for someone else.

I'm pretty sure if you asked some suburban neighborhood if they would support the destruction of hundreds of family farms so that they may save 2 cents on their monthly electric bill, nobody would go for it.  It's all in how you shape the question.

Telling the suburban neighbors that family farmers are selfish NIMBYs who refuse to do their part to sacrifice for the benefit of others and keep the neighborhood's lights on may garner a different response.

That's what this stupid transmission argument is.  Name calling.  One of the seven common propaganda devices.  It is intended to neutralize debate between groups by demonizing one of them as unacceptable and therefore ending the debate without actually engaging in it.

And it's not even a very good or convincing argument and is easily separated from the reality of today's transmission proposals.  We all have electricity.  Transmission lines to serve us were constructed years ago.  Property with existing transmission lines is less valuable because people associate a negative stigma with transmission lines.  New transmission lines are not necessary to provide electricity to new customers who are suffering without electricity.  Not everyone needs to have a transmission line on their property in order to make sacrifice widespread and "even."  Let's examine the merits of the particular transmission proposal instead of relying on the emotional push of propaganda.  Could the new transmission line be avoided by rebuilding existing transmission lines?  Could the new transmission line be avoided by building new generation closer to load?  Should people make sacrifices for their own energy needs?  Can the new transmission line be altered to be less invasive on land whose owners do not benefit from it?

The first time I heard the "someone sacrificed for you" argument I thought it was dumb.  The second time I heard it, I thought the company using it was completely disconnected from public opinion to think that was a good argument.  The third time I heard it, I started to believe that it had an origin bigger than one company's stupid idea.  Is someone telling transmission developers that this is today's good argument?  It's not.

Stop with the stupid propaganda tricks.  They only work on stupid people.  This argument is ineffective.
<![CDATA[Mississippi Economic Development Org. Makes Announcement About Approval of Southern Cross Transmission]]>Thu, 23 Nov 2017 16:15:52 GMThttp://stoppathwv.com/stoppath-wv-blog/mississippi-economic-development-org-makes-announcement-about-approval-of-southern-cross-transmissionEconomic development organizations... every community has one.  And every community's economic development org. spends its time tooting its own horn and tossing its own citizens under the bus for benefit of out-of-state businesses that may want to relocate to the community.

Economic development blowhards regularly blather on at public gatherings about all the wonderful economic things that are happening in the community.  So, what's up with the CEO of the Golden Triangle Development LINK's announcement at a recent Chamber of Commerce luncheon:
Higgins also said three different alternative energy companies were looking at locating in the Golden Triangle. He also said the Southern Cross Transmission project, a 400-mile wind energy line across the state that will end with a $300 million converter station in the Caledonia area, only needs four more land owners to approve using their property. 
And here I thought the Mississippi Public Service Commission had the only authority to approve the project in Mississippi?  And the MPSC docket shows no recent activity, aside from appointment of some kind of settlement facilitator.  It sort of looks like the project might be in settlement talks at the PSC.  In every other jurisdiction, (but who knows about the Mississippi PSC) settlement discussions are confidential.  Information shared during settlement discussions is confidential.  If the only thing standing between Southern Cross and a settlement that would allow approval by the Mississippi PSC is the "approval" of four landowners, who told Joe Bob?  Has Joe Bob been participating in PSC settlement talks, and if so, why is he sharing this information?  This is pretty poor form to have an economic development guy making public announcements about the progress of a PSC matter that may be confidential.

Except, hey there, Joe Bob, Southern Cross is definitely NOT ready to begin construction in Texas, and it has nothing to do with landowner approval.  It has to do with the Public Utility Commission of Texas placing conditions on its approval of the crucial connection between Texas wind and the Southern Cross transmission project.  It seems Texas has an interest in protecting the assets its ratepayers have paid for.  Texas invested heavily in a network of transmission lines to bring wind-generated power from the western part of the state to the eastern population centers.  Southern Cross wants to hook into that network and and use it to suck power out of Texas for free.  PUCT thinks Southern Cross should be responsible for any costs its export of Texas energy places on Texas ratepayers.  Southern Cross, of course, doesn't want to pay.

Joe Bob, where did you get your information?

Landowners and permits aside, where are the customers, Southern Cross and Pattern Energy?  I see that your project is intended to export Texas energy to customers in the southeast, except you fail to reveal who these customers are.  Without customers, a merchant transmission facility fails.  A merchant project has no captive customer revenue stream.  It must depend on voluntary customers to create a revenue stream.  Only then may a merchant project receive financing.  Only after being fully financed may a merchant project begin construction. 

Southern Cross doesn't even seem to believe in itself, judging from the way its website is way out of date.  Maybe the company needs one of Joe Bob's pep talks?
<![CDATA[Pennsylvania and Maryland Vow to Stop Transource]]>Sat, 18 Nov 2017 16:41:02 GMThttp://stoppathwv.com/stoppath-wv-blog/pennsylvania-and-maryland-vow-to-stop-transourceThis video will touch your heart.
For more information and to support these folks, please visit Stop Transource in Pennsylvania and Maryland's website.
<![CDATA[Fake News Flash: GBE Whined to Supreme Court and Nothing Happened]]>Sat, 18 Nov 2017 15:35:47 GMThttp://stoppathwv.com/stoppath-wv-blog/fake-news-flash-gbe-whined-to-supreme-court-and-nothing-happenedWTAD, a news radio station out of Quincy, Illinois, reported early this week that the Missouri Supreme Court had agreed to hear the appeal of Grain Belt Express, skipping the Appeals Court, and set arguments for next February.

Well, that was news.  Because nobody else had heard about it, and nobody seemed to have the ruling from the Supreme Court.

Except it never happened.  WTAD mistook an Appeals Court scheduling of the case to have been made by the Supreme Court.  Whoopsie!

Just to add stupider to stupid, Midwest Energy News then did a non-news follow-up to report that nothing had happened.  Except MWEN needed to demonstrate that it has no idea what's going on or what the case is about.

Bravo, fake news, bravo!

WTAD published a correction to its fake news story:
WTAD wishes to issue a correction to this story. We had earlier reported that the case was being heard by the Missouri Supreme Court. That's not correct. It's being heard by the Eastern Missouri District Appeals Court. Clean Line has asked the Missouri Supreme Court to hear the case, but they have not yet ruled in the case. We regret the error.
The state regulators said they couldn’t approve of the Grain Belt Express because they felt bound by a ruling made by the western district of the state court of appeals. That court ruled that a different transmission project could not proceed because it had failed to get approval from the counties along the route. The state’s regulators said they had to comply with that ruling.
That's just not true!  The issue is one of timing.  The MO PSC could not approve the project because the Appeals Court had ruled that a transmission project must receive the assent of County Commissions before it could legally issue a permit.  A transmission project must receive the assent of the County Commissions either way.  Even if the Appeals Court or the Supreme Court finds in favor of GBE this go around, GBE will still have to receive the assent of County Commissions before it may proceed to build its project.  That law is not being appealed.  It cannot be appealed through the courts.  Only the legislature can change Missouri law.  The courts may only interpret law, not make law.  You'd think even a biased news source like MWEN would understand something so basic about the three branches of government and their limitations.  Didn't we all learn this in elementary school?

Of course, MWEN's reporter seems to have been mislead by GBE's Mark Lawlor and his evasive canned talking points.
Lawlor has characterized the earlier rejection as a gross misinterpretation of state law, effectively giving county commissions the power to make final decisions on large infrastructure projects. And that, he claims, “would have a chilling effect on investment on infrastructure in Missouri. When other utilities and investors look at where they want to spend money, they will look at Missouri and see a Do Not Enter sign.
“The case is really simple: it’s who has ultimate jurisdiction over utilities? Is it the counties or the public service commission? For over 100 years, it’s been pretty clear: it’s the purview of the public service commission. But for the last few months, it’s been turned on its head.”

It's the counties, Mark.  It always has been.  For over 100 years.  MO Rev Stat § 229.100 says...
No person or persons, association, companies or corporations shall erect poles for the suspension of electric light, or power wires, or lay and maintain pipes, conductors, mains and conduits for any purpose whatever, through, on, under or across the public roads or highways of any county of this state, without first having obtained the assent of the county commission of such county therefor...
What is at issue before the Appeals Court is whether a transmission company must receive these assents before the PSC can issue a permit, or must they simply receive the assents before they begin construction?  In either case, GBE must receive county assents before it can build its project.  So, go get your county assents, GBE.  Go ahead!  Why won't you even ask the counties for assent?  Why are you wasting all this time and money on legal appeals when all you need to do is get county assents?  Other transmission projects have managed to get needed county assents, for more than 100 years.  What's wrong with you, GBE?

I guess they must have money to burn.  You know, "OPM"?

And in other news this week... nothing happened in Missouri.  GBE is still not permitted.  The Missouri Supreme Court has still not accepted GBE's "urgent" request to transfer its appeal directly to the Supreme Court.  The Appeals Court has routinely scheduled arguments.  And let's add one more fact that MWEN missed... the Missouri Supreme Court already considered this issue once, when Ameren appealed the Western District Court of Appeals opinion to the Supreme Court earlier this year.  The Supreme Court declined to even hear the case, much less overturn the Appeals Court ruling.

Maybe Mark needs a new hobby to while away the hours between now and next February?  What do you think Mark should do to make constructive use of his time?
<![CDATA[Federal Court Ponders Legality of DOE Use of Section 1222]]>Fri, 17 Nov 2017 15:18:28 GMThttp://stoppathwv.com/stoppath-wv-blog/federal-court-ponders-legality-of-doe-use-of-section-1222This week, a federal judge in Arkansas heard arguments on a complaint and request from landowners in the state that it halt the DOE's use of Section 1222 of the Energy Policy Act of 2005 to permit, site, and use federal eminent domain for the Clean Line Plains & Eastern transmission project.

Unfortunately, Talk Business & Politics was the only media outlet to attend the oral arguments and report.  I know law is hard for reporters, and especially hard when the issue is as confused as DOE's illegal mangling of a federal statute.  But this article is a bit out of focus and makes a lot of incorrect assumptions (sort of like DOE itself) and also provides some "facts" that just can't be true.

The complaint filed by Golden Bridge and Downwind contained many points that I don't see mentioned in this article.  Perhaps they were never discussed?  But I find that hard to believe.  It's more likely that the reporter didn't understand their importance and thus eliminated them from his story.  Maybe the reporter should have read the complaint before attending the hearing?  It's a great read!  Important points I gleaned from my own read of the complaint:
  1. DOE's determination to independently approve the construction and operation of a private, merchant transmission line exceeds Section 1222 authority.
  2. Arkansas's siting law for electric energy transmission facilities is not preempted or precluded by Section 1222 or the Federal Defendants' participation in the Project.
  3. DOE's determination to exercise the federal power of eminent domain exceeds the authority and limits of Section 1222.
  4. The Federal Defendants' determination is arbitrary, capricious, an abuse of discretion and otherwise not in accordance with law.
  5. Federal Defendants' deprived the Plaintiffs' members of their fundamental right to due process.
Instead, the Talk Business & Politics report focused only on arguments that presumed Section 1222 granted some authority to DOE to condemn property and "greenlight" the project.  I'm not sure what "greenlight" is supposed to mean.  I'll assume that's reporter-speak for permitting and siting, which is another authority 1222 does not grant to the DOE.

TBP printed a quote from the argument of the landowners' attorney, Jordan Wimpy.
“(This) otherwise is not a federal project. It is a Clean Line project,” Wimpy argued. “Clean Line owns all the assets, all the benefits, and the federal government is simply participating in the project. It may sound bad, but the plaintiffs believe Clean Line is just buying the DOE’s power of eminent domain. That’s what it looks like on the ground.”
I think he may have been referring to the payment of 2% of Clean Line's quarterly profits from the project to the DOE.  It sure does look like a buy off.  Section 1222 never contemplated nor allowed the DOE to profit from its authority under the statute.  But yet the "negotiation" between Clean Line and DOE settled on this payment in exchange for DOE's attempt to use 1222 to permit, site, and condemn land for the project, even though Section 1222 does not grant this authority to the DOE in the first place.

TBP also reported that the four hour hearing was at times a comedy.  I'm not sure what's so funny here.  I guess you had to be there to appreciate it.
In one humorous exchange with DuBois, Marshall asked the DOJ attorney if Clean Line was a “quasi-agent” for the federal government.
“Yes. A quasi-agent with a checkbook. That’s the best kind,” DuBois said, adding that Congress intended for Section 1222 to allow the federal government to improve the nation’s energy grid by attracting private investment.
Marshall also asked DuBois if the DOE’s request for proposal to participate in the three-state energy project was the Obama administration’s way of circumventing the will of the state of Arkansas after the plan was reviewed and rejected by the Arkansas Public Service Commission (PSC).
“Was that a workaround based on what happened before at the PSC?” Marshall asked the DOE counsel.
DuBois replied that Clean Line participation in the project was in response to the DOE RFP, adding that states such as Arkansas have no authority over federal energy infrastructure projects unless it is “specifically given” by Congress.
“The statute does not give states veto power over national grid infrastructure projects,” DuBois told Judge Marshall. “The federal government has successfully shifted care of the national grid to private partners by encouraging private investment. That is what the statute is designed to do — using OPM – ‘other people’s  money.’”

So many things wrong with the DOE's statements here.  Let's take them one-by-one.

Clean Line is a "quasi-agent" of the government?  Where's the authority for that in Section 1222?  Checkbook or not, that's quite revealing about how DOE perceives its role in all this.  DOE is simply a follower, passively allowing a private company to assume DOE's perceived authority to condemn real property.

There's also an unrecognized time gap here.  DOE issued its RFP and Clean Line bid its project before the Arkansas PSC even ruled on the project in the first place.  DOE's RFP was not the result of a denial by the APSC, it was already well underway before the PSC ruled.

States do have "authority" over federal energy infrastructure projects when specifically granted by Congress, such as in Sec. 1222, where state laws pertaining to the siting of energy projects were preserved.  It's not about "veto power" on whether to build the project at all, but about where it is sited.  That authority was specifically reserved for the state.  However, DOE ignored the statute and anointed itself with the non-existent authority to site a transmission line in Arkansas.

And that brings us to DOE's statement that the federal government has shifted care of the national grid to private partners.  What?  That's just not true.  The "care" and operation of the electric grid (note it's not a "national" grid, it's a connection of disparate regional grids) is subject to certain standards promulgated and enforced by NERC and FERC.  As well, planning and operation of the grid is handled by numerous federally supervised regional transmission organizations and balancing authorities.  It's not some private industry free-for-all.  Perish the thought!  We'd all be sitting in the dark!  Private partners may put up the captial to build and maintain the grid, but electric ratepayers pay them back every penny, plus interest.  And that crack about using "OPM?"  Those "OP" pony up their money because Congress decided they would be paid very well for the use of their money and tasked FERC with coming up with the regulations to enable it.  Federal energy policy does not allow private interests to plan their own grid using "OPM."  Instead, federally supervised, profit-neutral entities plan a grid funded by "OPM."  Clean Line is the polar opposite of this, it's a grid made from "OPI" (Other People's Ideas), funded by "OPM," and then adopted by and enabled by the federal government without the participation of the entities who have the responsibility to plan & operate the grid.

What DOE and Clean Line are doing here is attempting to use "OPP", Other People's Property, to enable their own profits.  I really don't think that's cute or worthy of attempts to be humorous using acronyms.  At its most basic level, the Plains & Eastern Project is a speculative venture because it has no customers.  It's a simple, wishful "build it and they will come" gamble.  If they build it and no one comes, Clean Line and the DOE are simply out some profits.  However, if they build it and no one comes, landowners would still be harmed by land condemnations.  Just the threat of this project is harming landowners right now, many of whom cannot sell or develop their properties while the threat of this project looms over their land.

In contrast to DOE's surety of its authority, the attorney for the U.S. DOJ seemed unable to commit to condemnation.
But Wilson, part of the DOJ’s Washington, D.C.-based Environmental Defense Section, went back-and-forth with Judge Marshall for several minutes arguing that until property was actually condemned by Clean Line, she couldn’t say for certain what steps the DOJ would take to enforce the DOE’s right of acquisition for the three-state project.
Perhaps she was confused about how DOJ would apply and enforce necessary due process protections for landowners subject to condemnation, when the DOE did not allow due process for affected landowners during its consideration of the project?  Or maybe she suspects that DOE's interpretation of its authority under Section 1222 is overblown and illegal and she doesn't want to be left defending it in condemnation suits?

I'm not sure whether to blame this glaring error on the reporter or on Clean Line, but let's pay attention to dates here, shall we?
The Arkansas landowners have asked Judge Marshall for a summary judgment to halt the project. If the court rules in the DOE’s favor, Clean Line officials have said they plan to begin construction on the project in the second half of 2017 and complete it sometime in 2020.
Today is November 17, 2017.  There's approximately 6 weeks left in "the second half of 2017."  Even if the Judge issues a ruling by the end of the year, there's no way Clean Line can begin construction until it has financing, which means money to build the project.  In order to get financed, Clean Line would need to demonstrate that it has a revenue stream sufficient to repay the loan.  Clean Line has no customers to produce a revenue stream.  No customers, no financing, no construction.

So, what was relevant at the end?
After the four hours of oral arguments were completed, Judge Marshall said he had planned to rule from the bench, but decided he needed more time to consider complexities of the case.
“This onion has many layers, and the federal layer onion may be the most important,” he said, adding that he would file an order as soon as possible.

Sounds like DOE, DOJ, and Clean Line didn't succeed in making their arguments clear to the judge.  Maybe they only confused him further?  Because DOE's argument that it has authority to permit, site, and condemn land for Clean Line's project is nowhere to be found in Section 1222.  The law is supposed to be clear.  The law is supposed to make sense.  When it doesn't, something is wrong.  I'm glad this judge is willing to peel back the layers until he gets to one that makes sense and will allow him to make a clear, concise and just ruling.

Let's hope the judge starts at the center of the onion and peels outward.  It would make the law and an administration's efforts to frustrate it crystal clear.  Let's go back... wayyyy back, to the Energy Policy Act of 2005, which created the law in question.

The Energy Policy Act of 2005 contained several sections under Subtitle B, Transmission Infrastructure Modernization, Sections 1221 through 1224.  Section 1221 dealt with the siting of interstate transmission facilities.  Ah ha!  Siting!  Something DOE thinks it has authority to do that is not found in Sec. 1222!  Section 1221 also provided authority to the Federal Energy Regulatory Commission to permit the construction of electric transmission projects.  Ah ha!  Permitting!  Another thing not found in Sec. 1222!  The Commission was authorized to permit transmission, but only after notice and an opportunity for hearing.  Ah ha!  An opportunity for hearing, another thing not found in Sec. 1222!  Section 1221 also granted FERC the authority to use eminent domain to condemn right-of-way for a transmission project sited and permitted under the statute.  Ah ha!  Eminent domain authority, another thing missing from Sec. 1222.  I think we're on to something here....

Section 1221 defined the scenarios whereby the Commission could site and permit new transmission after notice and hearing.  One such scenario is:
‘‘(B) the applicant for a permit is a transmitting utility under this Act but does not qualify to apply for a permit or siting approval for the proposed project in a State because the applicant does not serve end-use customers in the State;
Well, gosh, that's EXACTLY what the Arkansas PSC said about Clean Line!  So, Clean Line's project should have sought federal siting, permitting, and hearing of its proposal under Section 1221 of the Energy Policy Act. 

Except by the time Clean Line found out it had a problem in Arkansas, Section 1221 had already been neutralized in federal court.  The Ninth Circuit vacated DOE's designation of "congestion corridors" because they weren't concocted in accordance with the statute (See California Wilderness Coalition v. US Dept. of Energy, 631 F. 3d 1072 (9th Cir. 2011).  And the Fourth Circuit preserved a state's authority to deny a project (See Piedmont Environmental Council v. FERC, 558 F.3d 304 (4th Cir. 2009).  These decisions made Section 1221 much harder to use to usurp state authority.

Enter Energy Secretary Steven Chu and his transmission "guru," Lauren Azar.  Azar suggested using the Federal Power Marketing Authorities and Section 1222 to advance transmission for renewables.  And was the impetus for a very controversial memo issued by Chu.
Given the short amount of time to make big changes at DOE -- Azar was, after all, picked by Chu, who himself resigned last February -- she said she mapped a timeline for tapping into existing transmission siting authorities and helping critical projects get started.
"I'm much more about where the rubber meets the road than high-level policy debates," Azar said.

She rejected the notion the controversial memo was all her doing or representative of a top-down approach.

As laid out in the memo, she also championed Texas-based Clean Line Energy's application to partner with DOE through its never-before-used authority under Section 1222 of the Energy Policy Act, which would allow a PMA with federal authority to site the line and overcome state opposition.
So Lauren Azar made a mistake.  A hideous mistake.  She conflated the siting, permitting and condemnation authority contained in Sec. 1221 with the otherwise innocuous Sec. 1222 of the Energy Policy act that merely allowed third-party financing of Power Marketing Authority transmission projects.  Azar presumed that third-party financing of a PMA project granted 1221's authority to the DOE.  It does not.

Section 1222 allows the DOE (and its PMAs) to participate in transmission projects financed by third parties.  It does not give DOE siting, permitting or eminent domain authority for third-party financed projects.  Also in the 2005 Energy Policy Act was increased borrowing ability for the PMAs that came from Congressional concern that the PMAs did not have adequate funding.  Instead of giving PMA's a taxpayer financed free-for-all, the Energy Policy Act unlocked additional ways for the PMAs to finance transmission, either through increased borrowing or through third-party finance.  Section 1222 was enacted for this purpose only.  To finance PMA projects. 

Instead, under Azar's misguidance, the DOE issued an RFP to solicit new projects to be "participated in" by the PMAs that were designed and financed by third parties.  And how convenient!  Clean Line's projects fit right into the illegal RFP and were the only projects that applied.  Section 1222 was not intended as a way to ram through projects that were designed by, and paid profits to, third parties unrelated to the PMAs.  It was intended to allow third party financing of projects designed by the PMAs and operated for the benefit of PMA ratepayers.

The RFP the DOE issued for Sec. 1222 projects was illegal and did not comport with the statute.  But instead of someone stepping up to stop this legal disaster, the DOE encouraged it because it fit the administration's agenda to promote renewable energy.  The RFP itself added the extra-statutory factor that proposed projects must be for renewable energy.  Clean Line certainly never looked its gift horse in the mouth but plowed gleefully forward, spending millions in pursuit of an outcome that was not legally possible.  Is it going to take as many years to unwind this hideous miscarriage of justice as it took to create it?

It all comes back to the core of the onion.  DOE's Section 1222 program is in so much trouble right now because it is not in accordance with the law.  Going back to the clear language of the law, DOE has failed.

I hope Judge Marshall's onion peeling brings clarity, not crying.
<![CDATA[Transmission Failure Has an Echo]]>Tue, 14 Nov 2017 23:52:39 GMThttp://stoppathwv.com/stoppath-wv-blog/transmission-failure-has-an-echoWhat time is it, kids?  No, it's not Howdy Doody time, but there will be a clown.  Lots of them, in fact!  It's time for the annual EUCI Best Practices in Public Participation for Transmission Projects!
This means it's time for transmission opponents to laugh, snicker and giggle over the way the utility industry thinks it's "managing" us all the way to permit denial.  That's right, boys and girls, once every winter, the transmission industry gathers in some place warm to discuss "public participation" for transmission siting!  Every year a different bunch of knuckle heads gets up and tells their own personal war stories about how they "managed" transmission opposition by "participating" with "the public."  It's supposed to be instructional, as if these losers have somehow found the key to stop opposition to badly planned and executed transmission projects.

They haven't.  Not once.

Sometimes, they even let guys get up and speak about how successful they are, even though their project has not been built.  And then the project fails.  I'm guessing they weren't very successful in "participating with the public" if opposition crashed their project.

Like about how they "leveraged lessons learned" and "American Electric Power and Allegheny Energy are applying best practices to help gain approvals for the Potomac-Appalachian Transmission Highline (PATH), a 765-kV project extending 275 miles through West Virginia, Virginia, and Maryland. Learn how the two companies are working together to apply successful strategies for grassroots outreach, community involvement, and public education while contending with project delays, entrenched opposition, and the economic downturn."  Not only was the PATH project cancelled just a month or so later, but the costs of all the activities these weasels advised their compatriots to undertake were later found not to be recoverable from ratepayers in a regulatory proceeding.  Nice work, fellas!  And, BTW, if you read the linked blog post and are wondering if my pals ever sent me a copy of their power point presentation, the answer is yes.  It came in a packet of data responses during an administrative hearing at FERC.  It really wasn't all that.  Borrrrring!

And then there was the year EUCI added a public participation website contest to the festivities.  Yes, they actually sent StopPATH's entry to their judges, and the judges did their duty.  I am missing the evaluation comments or scoring sheet though, but I do have a very vivid imagination!   And, again, if you read the linked blog post you'll be happy to know that I did present an award to BlockRICL at a transmission opposition convention shortly thereafter.  What?  Transmission opponents have their own gatherings?  Sure!  The utility guys would learn way more stuff there, but we don't invite them.  Nor let them in when we see them at the windows with their noses pressed to the glass.

And then there was the year they advertised their conference as helpful for "community group representatives."  That's a euphemism for you.  They actually thought opposition leaders were going to show up for their conference.  I guess all that pretending success among themselves was getting sorta boring, and nothing livens the place up like transmission opponents bearing torches and pitchforks. 

Except no opponents showed up.  We didn't have any ratepayer funding for the trip and we were too busy using our own money to fight transmission companies.

So what's on the agenda for this year's Best Practices in Public Participation for Transmission Siting conference?  More bluff and bluster about how "effective" these buffoons have been at "participating with the public."  There's several presentations about transmission projects in Wisconsin and how the companies practiced "media relations and messaging in the face of public opposition" to get their project approved.  I'm pretty sure it wasn't "public participation" that bagged that trophy. It was more likely "private participation" the company may have engaged in behind closed doors.

These transmission companies think they're "building trust" with the public.  Who "trusts" a transmission company that has its eye on your property for one of their profit-making schemes?  Do you really think these guys are telling you the truth?  Because part of the program includes calling you a liar.
Emotional challenges to a project can cause projects sponsors to respond with facts, but those facts are often drowned out if the parties are unwilling to compromise. In this presentation, we will have an in-depth analysis of how to respond to exaggerated or false claims and how to manage project opposition explained with real-life case study/scenarios.
Hey, fellas, we simply don't believe you.  No matter what you say.  We don't trust you.

And then there's a bunch more clueless expounding about "what are stakeholders' concerns?"  Transmission companies don't know what your concerns are, because they don't listen to (or much care) what you think.  They brush away your every concern as nothing to be concerned about.  I'm guessing NONE of the participants of this conference have ever been a transmission opponent, nor do they take anything transmission opponents say seriously.  Quit pretending you know how we think, okay?

American Electric Power (parent company of Transource) will be making a presentation about their effective communication strategy that "can neutralize opposition and gain acceptance of transmission line projects."  So, the question is, when are they going to start utilizing that amazing strategy on their own Transource project?  Transource opposition is strong and building.  It's not being "neutralized."  And when you say stuff like that, it only makes the opposition more determined to kill your project than ever.  "Base to AEP:  Communication strategy FUBAR.  Failure imminent.  Disengage.  Retreat.  Over."

And don't miss the Public Outreach Executive Forum, where Transource's own Todd Burns will join a panel instructing his peers on how to "shape organizational culture, policies and practice in a public centered organization."  It sorta sounds like he thinks you're made out of silly putty.  But I'm betting, in the end, Todd's the one who's going to be bent out of shape.  Although, maybe Todd can pick up a few pointers at this conference?  I mean, his strategy is obviously not working on the Transource project. 

It's just another gathering of the clueless in their self-congratulatory echo chamber of failure.

Rock on, transmission opponents, rock on!

<![CDATA[Eminent Domain is Costly and Painful for Landowners, So CFRA Wants You to Give In and Avoid It]]>Mon, 13 Nov 2017 00:35:05 GMThttp://stoppathwv.com/stoppath-wv-blog/eminent-domain-is-costly-and-painful-for-landowners-so-cfra-wants-you-to-give-in-and-avoid-itI was going to headline this "they're at it again" but why go general when CFRA gives you something so ridiculous to work with?

I was recently made aware of a Des Moines FM podcast on transmission line eminent domain in Iowa starring the usual cast of characters from the Center for Rural Affairs (CFRA).  And they're saying basically the same old things.  Over the past several years, CFRA has popped up from time to time with a "report" or other half-baked ideas designed to convince landowners to knuckle under and simply accept new electric transmission across their land.  Remember the Special Purpose Development Corporation idea?  That was special, no doubt about it.  Every time CFRA pops up with another idea, landowners shout it down, and CFRA goes back to the drawing board to create another great idea or "report."  Now CFRA is threatening to release another "report" on a "survey" of landowners with opinions of electric transmission projects.  I'm just guessing here, but I suspect that none of the landowners who successfully derailed the Rock Island Clean Line were contacted to participate in this "survey."

So, what's in the 26 minute interview?  CFRA wants landowners to know how PAINFUL and EXPENSIVE eminent domain for transmission can be.  Is CFRA scaring you yet?  According to CFRA, landowners should avoid eminent domain.  Well, hey, that sounds like a plan!  Except that's where landowners and CFRA part ways.  Landowners avoid eminent domain by refusing to negotiate voluntary rights of way and by participating in the regulatory process through objections to the transmission project.  They also contact their legislators and work to pass important new laws that protect the landowners from unneeded transmission projects.  CFRA's way to avoid eminent domain?  Give in.  Negotiate with developers.  Allow developers to "have use of a certain area of your land" (remember, it's not a sale, it's just use of your land, according to CFRA -- except it IS a sale, it's an encumbrance on your title that allows use and control of your land by someone else in perpetuity).  According to CFRA, landowners are supposed to make sure they're being compensated fairly, and "work with developers" to negotiate an easement on a part of their land where they "don't mind if there's an easement on it."  CFRA's ultimate goal is for you to have a voluntary transmission easement across your land that you are "happy with."  And you're supposed to do all this without the assistance of a lawyer.  CFRA says it's not normal for landowners to seek legal counsel before signing legal agreements for the sale of an easement.  Even when questioned by the host, CFRA advised that "usually" only a landowner and the transmission developer are involved.  But sometimes landowners can get "uncomfortable" when a developer is pissing on their leg and telling them it's raining.  If that happens to you, you could get a lawyer, or you can always ask CFRA for help.  Hmmm.... wait a tick... CFRA is the one who said you didn't need a lawyer in the first place.  How much help do you think they'll be?

And that's the problem.  CFRA is no help.  In fact, they're a grant-funded transmission cheerleader.  While CFRA originally came into existence on the government dole to stand up for small family farmers, it was defunded a long, long time ago.  But CFRA has continued to exist on grants from private "funds" and "foundations."  While government grants, like all grants, have some strings and deliverables, private entity grants have massive, thick ropes instead of strings.  They're not always for the good of the people.  And organizations like CFRA must perform all sorts of things in order to unlock the funding that keeps them going.

Such as this:
That's right, CFRA was granted $160,000 "to build, activate, and mobilize a rural voice supportive of clean energy transmission..."

And telling landowners to roll over and allow new transmission across their land is how they "deliver" to their funders.

Except it's not working.  Despite CFRA's best efforts to convince Iowans to accept the Rock Island Clean Line, the only "voice" that developed was the resounding roar of opposition that killed that project for good.  RICL has failed.  CFRA has failed.  The "rural voice" does not support new transmission across their land, for any reason.  It's not true that "more public engagement" and "encouraging landowners to talk to developers" is going to change any landowner's mind.  It's only making CFRA more and more irrelevant to rural America.

No landowner is ever "happy" with a transmission easement across his land.  Ever.  There's only degrees of unhappiness.  And landowners are stepping up in increasing numbers and refusing to be unhappy at all.  They're dedicated to stopping transmission projects altogether, and they're winning.

Hey, maybe we can take up a collection to fund a new grant that CFRA can apply for?  I'll call it the Transmission Opposition Grant, and it will require the recipient to build, activate, and mobilize a rural voice supportive of landowner rights.  I've put a nickel on the table.  Who's in?
<![CDATA[No Thanks, FirstEnergy!]]>Wed, 08 Nov 2017 14:29:32 GMThttp://stoppathwv.com/stoppath-wv-blog/no-thanks-firstenergyYou can keep your power plant.

That was the conclusion of the West Virginia Consumer Advocate in its reply brief in the matter of the sale of the Pleasants power station to regulated West Virginia affiliates Mon Power and Potomac Edison.

FirstEnergy has been engaged in a scheme to liquidate its failing competitive generation business.  In states where generation is competitive, FirstEnergy is all about selling its money-losing assets.  But in states where generation is regulated, FirstEnergy has been pursuing profitable "sales" of its failing assets into the regulated system, where it is guaranteed to recover all its costs to run the plant, plus a regulated profit.  Several  years ago, FirstEnergy was successful in selling one of its failing assets into the West Virginia regulatory system.  Ratepayers have paid higher rates to operate "their" power station at a loss.  ITYS.  Now FirstEnergy has another failing asset for sale and it wants to double down on increased rates for West Virginia electric consumers.  This hotly contested issue has been going on for the past year and is finally facing a decision by the West Virginia Public Service Commission.

Our Consumer Advocate, who represents the interests of West Virginia electric consumers, has done the math:
First, the rate benefit to residential ratepayers is a one year benefit of $11.52. The Companies provided no evidence of rate impacts beyond December 2018. The absence of this information is intentional.

As originally proposed by the Companies, if the acquisition of Pleasants is approved, there will be a $31,486,971 net decrease in rates for the 16-month period of September 1, 2017 through December 31, 2018, which is a 1.6% overall decrease. Residential customers would experience a decrease of about 0.9%. The decrease for a residential customer using 1,000 kilowatt-hours per month would be $0.96 per month, which would result in a decrease to $111.52 from 112.48 per month.  It is important to note that the decrease in customer rates is guaranteed only through December 2018.

And that "decrease" is an estimate subject to true up with actual costs.  Realized "benefit" may be less.  In fact, any "decrease" could disappear entirely and turn into an increase.

As well, all risk from the sale of energy from the plant into energy markets will transfer from FirstEnergy shareholders to West Virginia electric consumers.  In addition, the risk of owning and operating the plant itself (and its filthy ash pond) will also transfer to ratepayers.  On your behalf, the Consumer Advocate says, "No thank you."
West Virginia captive ratepayers are not hedge managers or virtual traders in the PJM markets. If the Commission approves this transaction that is what they will become: buyers of significant surplus capacity that Companies are betting (on their behalf) will provide benefits for years into the future. Pleasants was rejected by FirstEnergy as too risky. The overwhelming evidence in this case contradicts all Companies’ claims that there will be any benefits to captive ratepayers. Now FirstEnergy wants Companies to manage that risk for 500,000 ratepayers. As the legal representative of ratepayers, no thank you. The Pleasants acquisition should not be approved.
If it's too risky for FirstEnergy shareholders, it's too risky for me.  This should be a non-starter.

But yet the PSC Chairman is toying with the idea of a
"conditional sale."
  I guess he must be feeling the pressure from coal companies who don't want to see one of their buyers disappear, plant workers who don't want to see their jobs disappear, and the community around Pleasants who don't want to see one of their employers and tax payers disappear.  Why is it up to West Virginia electric customers to suddenly provide these benefits to suppliers, workers and the community?  When Pleasants was profitable, FirstEnergy took all the profits, setting nothing aside to compensate these parties at the inevitable time that the plant was no longer profitable.  Perhaps it is FirstEnergy who should be saddled with the costs of its own failure.  Ordering West Virginians to pick up the burden of FirstEnergy's failure is a losing proposition.  How long should we do this?  At what point will closure of this old power station release West Virginians from this burden?  Will we be forced to pay extra to support coal companies, workers and communities  in perpetuity because no one has the foresight to plan for the inevitable?  This has to end, and responsibility for the failure should be placed on the party who caused it... FirstEnergy.

A "conditional sale" won't work out any better than FirstEnergy's last "conditional sale" of Harrison.  Despite the PSC attaching "conditions" to protect ratepayers from that disaster, we've paid millions in increased rates.  A "conditional sale" is a coward's solution to try to please everyone.  And guess where the blame is going to go if a "conditional sale" ends up costing ratepayers more money?
The CAD must begin by emphasizing that if this transaction is approved the harm that redounds to West Virginia captive ratepayers will be a legacy of this Commission.
Why does the WV PSC Chairman want to accept blame for FirstEnergy's failure?  Probably because he doesn't have to pay for it.  You do.

No thanks, FirstEnergy.
<![CDATA[JCP&L Feels the RAGE]]>Mon, 06 Nov 2017 08:00:00 GMThttp://stoppathwv.com/stoppath-wv-blog/jcpl-feels-the-rageBravo, RAGE!  The Residents Against Giant Electric (RAGE) have identified a cheaper, less invasive alternative to JCP&L's Monmouth County Reliability Project (MCRP), currently before regulators.

At a press conference last week, RAGE shared its initial brief to Administrative Law Judge Gail Cookson at the New Jersey Board of Public Utilities in the matter of the MCRP.  The brief is a summary of evidence leading to legal conclusions, and RAGE's brief was stunning.  JCP&L "expert" witnesses were systematically unmasked and dispatched to the Land of Corporate Biased Quacks.  JCP&L was demonstrated to have mislead the public about the MCRP, including hiding the true evolution of its project.  The MCRP was dreamed up and a route chosen before PJM Interconnection found a need for it and ordered it to be built.  And speaking of PJM, they didn't escape the dead-eye scrutiny of RAGE's legal team, who remarked:
The participation of Mr. Sims [PJM witness] in this proceeding as an enthusiastic cheerleader for an expensive and blighting transmission project even after being presented with a feasible non-generation solution to the P7 contingency raises very serious questions about the neutrality of PJM. As is the case with other RTOs, PJM is by law and FERC decisions supposed to be scrupulously neutral.  While this is ordinarily taken to mean that it cannot discriminate in favor of one or more member utilities or independent power producers, it also means that PJM cannot be in the business of advocating a solution that has been given an “exclusive” to one of its member utilities. The Board should express condemnation of PJM’s role in this case.
Lots of transmission opposition groups have demonstrated that utility (and RTO) solutions to purported violations are massively expensive overkill that cannot be supported with transparent and accurate calculation, but RAGE took it one step further.  They proposed a fully formed and vetted alternative solution that would not only cost $80M less than PJM's solution, but also would not require new greenfield transmission sandwiched between dense residential neighborhoods and a congested rail corridor.
During testimony, RAGE unveiled its alternative to the transmission line plan — an alternative the group says would cost 70 percent less, and present less danger to the community.

The group’s solution, backed by a power flow analysis and an engineering expert, includes the addition of two STATCOM devices — each about the size of an RV — at the Red Bank substation. It also calls for updating 11 of the existing 34.5 kV lines coming out of Red Bank.

“That’s it — all you need to do is update some existing lines that probably need replacing anyway, and add two big boxes to Red Bank, Kanapka said. “Do these two things and the P7 violation goes away, for a total estimated cost of just $30 million.”

In its most recent estimate, JCP&L said their project could cost $111 million, and that does not include the fee for usage of NJ Transit’s property.
Never underestimate your opposition, JCP&L!  RAGE is obviously composed of a bunch of overachievers who leave nothing to chance.  What was it General Yamamoto was supposed to have said [Hollywood version]? 
I fear all we have done is to awaken a sleeping giant and fill him with a terrible resolve.
The RAGE giant isn't going away.  Isn't it time for JCP&L to fall on its sword?

Not only has RAGE excelled at the regulatory game, it's also on top of its political game.  Numerous candidates for elected office have fully endorsed RAGE and voiced their opposition to the MCRP.  Good luck on election day to RAGE and its supporters!

What's next for this wildly successful transmission opposition group?  Reply briefs to the BPU judge, an opinion on the MCRP from the judge, and then the entire case record is forwarded onto the BPU Commissioners for final decision.

My money's on RAGE for the win!