But it does help us to assign nicknames. So that when someone refers to "Nosepicker" in a sidebar, no further description is needed. We all saw you do it. Numerous times.
FirstEnergy tries to block filmmakers at hearing.
Yes, we're laughing at you.
Because the rest of us are grossed out by such barbaric behavior.
But it does help us to assign nicknames. So that when someone refers to "Nosepicker" in a sidebar, no further description is needed. We all saw you do it. Numerous times.
FirstEnergy tries to block filmmakers at hearing.
Yes, we're laughing at you.
Governor Earl Ray Tomblin Uses Public Service Commission Appointments as Political Favors: Consumers Suffer
The only surprising thing about Saturday's Gazette-Mail story about Governor Tomblin's political game-playing with PSC appointments is that it happened at all. Bravo to the Gazette and reporter Andrew Brown for this informative article, "Governor doesn’t have a timeline for filling Public Service Commission seat"!
"Doesn't have timeline" or just doesn't have time? I got the "doesn't have time" excuse from the horse's mouth back in 2011 when he was running for Governor and I asked him why he was waiting to fill a PSC seat. "Too busy campaigning." Right. Along with the lies, I also noticed his smile was completely fake... it didn't reach his eyes. He needs to take some lessons on fake smiling from pro fake-smiler Joe Manchin. But, I digress.
Tomblin has been "too busy" to either re-appoint Commissioner Jon McKinney, or appoint a replacement for him since 2011. That's FOUR YEARS that McKinney served at the daily whim of Tomblin. Now McKinney has finally left the utility stable, and Tomblin is content to leave his seat open.
PSC Commissioners that are appointed are supposed to be insulated from political influence by becoming independent once appointed. The appointer (Governor) supposedly loses power over the Commissioner once he/she is appointed. However, by allowing appointments to expire, and the expired Commissioner to continue to serve, a Governor may control the day-to-day decisions of the Commissioner as long as this lasts (4 long years!). If the expired Commissioner makes one misstep, he can be gone the next day if the Governor suddenly decides to appoint someone else. This is a filthy practice that should be illegal. But it's also how Governor-schmoozing corporate utility companies continue to stomp on West Virginia ratepayers.
It's not like Tomblin "doesn't have time" to make any appointments to the PSC. He managed to promptly re-appoint utility lawyer Michael Albert in 2013, when his second term expired. He also managed to appoint Brooks McCabe to the empty seat of former Commissioner Ryan Palmer, when he left in 2014. McCabe is a former legislator who has absolutely no background or education in utilities regulation or consumer protection.
So, who shall fill McKinney's seat, now that it's finally vacated? That's what the Gazette-Mail investigated:
Gov. Earl Ray Tomblin has no plan to appoint a third member to the West Virginia Public Service Commission, even though several people have expressed interest in the position or recommended others they believe would fit the post.
Hmm... sounds like a bunch more utility puppets, political favors, and inexperienced stooges. Don't we have anyone in West Virginia with a background in consumer issues?
Here's two people you DO NOT want to see appointed:
An undated note left for the governor shows that Sammy Gray, the state affairs director and a registered lobbyist for First Energy, called to recommend two people for the commission spot. According to the note, Gray called to let Tomblin know that he supported Mike Castle, the Department of Environmental Protection’s director under Gov. Cecil Underwood, and Sam Cann, a former Democratic state senator from Harrison County, for the seat.
And what experience do these two have with consumer protection? None. However,
When contacted about his recommendations, Gray sent the request for an interview on to communication officials at First Energy.
Of course. The utilities that own the governor own his appointments to the PSC, however the utility recommendations protect the utilities, not consumers.
Who else has been recommended?
In an email from April, Michael Basile, a managing member at Spilman Thomas & Battle, a Charleston law firm that represents clients like the West Virginia Energy Users Group in front of the PSC, asked the governor to consider attorney Susan Basile, his wife.
Right... because being a fan of "GERT" translates to utility experience and a background in consumer protection. Not.
Amy Swann, director of the West Virginia Rural Water Association, suggested the governor should consider one of her longtime colleagues and former PSC employee, Dina Foster.
When Bill Wooten, a former Democratic state senator from Raleigh County, contacted the Governor’s Office earlier this year, he was hopeful he would be appointed.
And then there's
John Manchester, the mayor of Lewisburg, also submitted his credentials for consideration.
Allan Tweddle, a resident of Kanawha City and a semi-retired engineer, put his name in after having several people ask him to apply.
Which one is your favorite? Or would you just like someone who's not part of the utility industry, a captured regulator, or a political favor? Here's an idea:
“We urge you to appoint a new commissioner as quickly as possible so that this investigation can be resolved,” Cathy Kunkel, a member of the Advocates for a Safe Water System’s steering committee, wrote in a letter to the governor in April. “Furthermore, we hope that anyone you appoint to the Public Service Commission will have experience in utility regulation and be independent of West Virginia’s major utility interests.”
"While the utilities are experts at running their business, it doesn’t always mean that they are right,” said Jacqueline Roberts, director of the consumer advocate division.
And they're definitely not right for West Virginia's utility consumers, because utility guys will always view any conflict from the perspective of the utility.
We've got enough utility influence from Chairman Albert already. And we've got our political favor in Commissioner McCabe. Now it's time to appoint one for the consumers.
Tell "GERT" to get off his dead ass and get busy. Maybe your suggestion can be featured in a future Gazette-Mail article?
On the eve of FirstEnergy's big stage show before the Public Utilities Commission of Ohio, here's a recent look at how this company hands out ratepayer-funded party favors to its supporters.
This ESP has been controversial. The reason is because FirstEnergy, as part of its plan, has asked the PUCO to pass a fee through to its ratepayers to support its subsidiary’s struggling coal and nuclear generation. The subsidy would be supported by all of FirstEnergy’s Ohio distribution customers, regardless of whether they acquire their generation from FirstEnergy’s subsidiary. The subsidy would be assessed through a rider that is based upon a power purchase agreement (PPA), pursuant to which the ratepayers would guarantee for 15 years a price for the electricity generated, regardless of market conditions.
What I want to focus on now is the tactic FirstEnergy has used to assimilate support for its ESP. In my January blog, I noted that FirstEnergy had assembled what Edward “Ned” Hill, the then-dean of Cleveland State University’s Maxine Goodman Levin College of Urban Affairs, called a “redistributive coalition.”
The audience: Mostly ignorant!
But what really caught my attention in Hill’s testimony was his discussion of another concept that FirstEnergy cynically exploits: “rational ignorance.” Rational ignorance is the term used to describe reasonable disengagement by a public unable to digest complex technical arguments set forth by more knowledgeable industry experts.
Utilities AEP and Duke also sought PPAs. Yet neither sought to assemble redistributive coalitions for PPAs to try to fool or confuse the public. But then again, they were unsuccessful in their applications.
Break a leg, fellas (or any other parts necessary to enable quarterly dividends)!
There's nothing as certain as death, taxes and yearly FirstEnergy rate increases. On August 14, the company filed a request to increase its WV ENEC rates by $165M. If you're a hypothetical customer, using a hypothetical amount of electricity each month, you'll pay an extra hypothetical amount of nine bucks or so a month. Of course, you can't pay your debt to FirstEnergy in hypothetical dollars. This rate increase is very real, despite all the hypothetical blather.
So, what kind of kool-aid is FirstEnergy and its PSC minions serving up to help the medicine go down this time? The PSC's windbag says:
“It’s an annual true-up, and it is to cover the cost of fuel and purchased power,” PSC spokeswoman Susan Small said. “There’s not profit for the company. It’s not going to staff salaries. It’s not operations and maintenance fees. It doesn’t go to rent and pension plans or anything like that.”
Say what? Of course there is profit for the company built into the transmission costs being recovered, since FirstEnergy owns the transmission capacity being billed in this filing. Transmission rates also contain staff salaries, operations & maintenance, rent and pension plans.
And about those O&M costs? The $44.5M correction for under-recovery of the "Temporary Transaction Surcharge" ("TTS") that is being recovered in this rate increase consists of $26.1M of unexpected Operations and Maintenance expense for the Harrison Power Station. It also includes $5.7M of profit for the company. I guess Susan Small doesn't know what's she's talking about... again. Maybe she should read a case filing or two before activating the ol' pie hole?
The TTS was "designed to recover the net increase in non-fuel operation and maintenance expenses, depreciation and amortization expenses and taxes other than income taxes, and a return on incremental net plant, fuel inventory and materials/supplies resulting from the completion of the transaction [sale of Harrison]. The TTS also reflected reduction in non-fuel O&M expenses associated with the deactivation of Albright, Rivesville, and Willow Island power stations on September 1, 2012," according to the testimony filed by FirstEnergy at the PSC. Sounds like it IS operations and maintenance, Susan...
The TTS was a temporary rate increase approved by the PSC to allow the company to recover the base rate cost of the Harrison power station from ratepayers for the period October 2013 and February 2015, when the new base rates that included Harrison went into effect. At the time, the company calculated that it would need $199.8M to cover the cost of Harrison for 17 months. It designed its TTS to produce $160M of this revenue. However, the case settlement (negotiated between parties without PSC ruling) only allowed for collection of a $113M TTS. According to the company's most recent calculations, there is a $44M shortfall, which it is requesting to recover over the next year. The biggest part of this shortfall is $26M of "higher than anticipated expense related to maintenance outages at Harrison." In addition, there was an additional $9M O&M expense related to employee pensions and benefits at Harrison.
Hmm... what should you expect when your electric distribution company buys an antique coal plant? Once the ratepayers own it, the company spends generously performing all the maintenance it has put off while it was the owner responsible for the bills.
There were also some mysterious increases in the book value of Harrison, decreases in the book value of the purchased Pleasants power station, and a $10M increase in the illegal "acquisition adjustment" FirstEnergy scored from the PSC. The "acquisition adjustment" was the difference between what Harrison was actually worth and its book value, which produced $256M (now $266M) of pure profit "funny money" for FirstEnergy. Federal accounting regulations do not allow the recovery of "acquisition adjustments" from ratepayers, but the WV PSC ignored that in its haste to bless the Harrison purchase transaction. The acquisition adjustment and any adjustments related to it are pure nonsense.
Adding insult to injury, forecasted sales of power from Harrison were much higher than actual... because power market prices were low and Harrison's coal-fired power was more expensive than other resources during the period, reducing Harrison revenue that might have offset some of the costs of owning the power station.
Upon further contemplation, it looks like most of the testimony of FirstEnergy witness Kevin Wise is nonsense. What else could explain the general advertising expenses totaling nearly $5K booked to the TTS in October 2014, January and February of 2015? Did you ever see any advertising about Harrison on your TV or in your newspaper? Hear any radio commercials? Of course you didn't. This is probably just a misallocation of general FirstEnergy corporate expenses. *sigh* I hope someone goes over this nonsense with a fine tooth comb. There's probably plenty of "mistakes" in here that don't belong but coincidentally increase the rates you pay and the profits of FirstEnergy. Thank goodness for West Virginia's Consumer Advocate, who gets the blinding and thankless task of separating the legitimate from the nonsense in FirstEnergy's filing.
In addition to the $44.4 TTS adjustment, the company wants to recover around $96M of inaccurately estimated fuel, purchased power and transmission costs for the past 2 years, along with $23.6M of new rate increases for 2016, the amount it would be short if it keeps collecting at the current rate through June of 2016. Total rate increase $165M.
How did the company estimate its rate so badly that ratepayers are so far into the hole, requiring a 12.5% rate increase? This increase is for ENEC rates, which are supposed to be filed yearly to cover variable costs incurred by the company. ENEC rates are based on an estimate of the yearly costs. At the end of the year, a true-up occurs, where the company compares its actual costs to the estimate it collected, and either issues a refund, or asks to recover the shortfall. In contrast, base rates cover the company's fixed costs and are determined through occasional base rate cases, where a fixed rate is established. The company must operate within that rate until the next base rate case is filed. The last rate increase was a base rate increase where the company added Harrison to its rate base. But that wasn't the end of the Harrison costs, because as this most recent filing shows, Harrison was also racking up additional costs that the PSC said it could recover in this delayed ENEC filing. This filing got delayed because of the Harrison purchase, so now ratepayers are on the hook for 2 years of ENEC true-up, in addition to the Harrison TTS true-up.
Hey, remember when FirstEnergy told everyone that purchasing Harrison would offset itself because Harrison would sell its excess power capacity into the PJM electric market and credit the proceeds to ratepayers? Well, guess what? There were no proceeds! Prices and sales were much lower than FirstEnergy anticipated, making the ratepayers subsidize the Harrison plant, instead of profit from it. There was no offset, just more expense. Gee, that's exactly what all the other parties told the PSC during the Harrison proceeding. "I told you so" x multiple rate increases. The purchase of Harrison was nothing but a ratepayer-funded subsidy for FirstEnergy and the coal industry. The plant wasn't economic without these subsidies and should have been closed, instead, FirstEnergy "sold" it to West Virginia ratepayers and collected a huge windfall. We'll be paying for this mistake made by the WV PSC for a long, long, long time.
This article introduces something I haven't had to contemplate for a long time (and what a nice time that was!), the senseless babble of FirstEnergy spokespuppet Toad Meyers. As regular readers will recall, Toad uses "Magic Math" to explain the benefit of rate increases.
FirstEnergy spokesman Todd Meyers said the $165 million increase proposed in the Aug. 14 filing is largely the result of lower-than-expected wholesale electric prices over the past year.
Oh, shut up, Toad! Cathy Kunkel told you what was going to come around the next corner when your company proposed buying Harrison in the first place.
Cathy Kunkel, a fellow with the Institute for Energy Economics and Financial Analysis who testified against the Harrison Power transaction, said the PSC’s 2013 decision has a direct correlation to the scope of the proposed ENEC increase.
So, what should you do about this proposed rate increase? Simply whining to the PSC that you can't afford it does no good. The PSC has already approved the Harrison transaction and the company has already spent this money. The best you can do is to support the efforts of your Consumer Advocate, who will be busily chopping down the total rate increase and fishing out all the financial funny stuff.
“We are very concerned about the level of rate relief the company’s requesting,” Jackie Roberts, executive director of the PSC’s Consumer Advocate Division, said. “We are in the process of evaluating the filing to understand what drives their cost request.
Unless, of course, you want to take on the task of auditing FirstEnergy's filings yourself to come up with a more reasonable rate. Good luck with that! Just a cursory review of the thousands of pages filed will make you deeply appreciate what your Consumer Advocate does with little money, and even less respect from the company and the PSC Commissioners. Maybe you should direct your efforts toward funding and strengthening your advocate?
Because... I've saved the best part for last. FirstEnergy has proposed doing away with these annual ENEC filings in favor of quarterly filings that raise your rates 4 times per year. Can you imagine having to go through these thousands of documents 4 times a year, instead of just once? Your Consumer Advocate won't be able to keep up, unless its funding is increased three-fold in order to hire more staff to do nothing but pore through FirstEnergy's quarterly ENEC filings. And if the PSC allows FirstEnergy to switch to quarterly filings, then all the other utility kids are going to want the same treatment, until your advocate gives up in desperation. As well, the news media would soon tire of reporting on small quarterly increases, and there would be no bad publicity for FirstEnergy or the PSC. Get in line and eat what you're served, little ratepayer...
Ever heard the idiom "qui cum canibus concumbunt cum pulicibus surgent." Probably not, but you must be familiar with its English translation, "when you lie down with dogs, you get up with fleas." Clean Line has recently exposed its dirty underbelly by publicly scratching its fleas.
Clean Line is now a proud "member" of the Consumers Energy Alliance (#25 under "Energy Providers and Suppliers").
What is the Consumers Energy Alliance? According to SourceWatch:
The Consumer Energy Alliance (CEA) is a nonprofit organization and a front group for the energy industry that opposes political efforts to regulate carbon standards while advancing deep water and land-based drilling for oil and methane gas. The CEA supports lifting moratoria on offshore and land-based oil and natural gas drilling, encourages the creation and expansion of petroleum refineries and easing the permitting process for drilling. The group also says it supports energy conservation. CEO portrays itself as seeking to ensure a "proper balance" between traditional non-renewable and extractive energy sources and alternative energy sources. The group also supports construction of the Keystone XL Pipeline.
So, the CEA is a well-known front group for the fossil fuel industry? But, wait a tick, I thought Clean Line was all about "clean" energy and shutting down the fossil fuel industry? Money makes strange bedfellows.
What is a front group?
A front group is an organization that purports to represent one agenda while in reality it serves some other party or interest whose sponsorship is hidden or rarely mentioned. The front group is perhaps the most easily recognized use of the third party technique. For example, Rick Berman's Center for Consumer Freedom (CCF) claims that its mission is to defend the rights of consumers to choose to eat, drink and smoke as they please. In reality, CCF is a front group for the tobacco, restaurant and alcoholic beverage industries, which provide all or most of its funding.
Front groups are formed and managed by well-paid public relations/lobbying firms. They are paid for by the industry. The CEA is managed by HBW Resources. The group has been "conducting a grassroots operation" in "target states" that would "generate significant opposition to discriminatory low carbon fuels standards" that were created to address climate change.
The term "grassroots" means ordinary people with no financial interest in the proposal at hand. CEA is not a grassroots organization. It is funded and directed by the corporations that pay HBW to run it.
But now the CEA has a new "initiative" to support Clean Line Energy Partners. The "initiative" supports Clean Line's Plains & Eastern Clean Line.
“Unfortunately, virtually all energy projects face at least some level of opposition. But, in most cases, the opposition comes from the vocal few who stand in the way of the silent majority who see these necessary projects providing tremendous job and economic development opportunities on many levels. The EDJ Alliance will help taxpayers, energy consumers, landowners and businesses to voice their opinion to elected officials so that they embrace the opportunities associated with energy development.”
Vocal few? Silent majority? You mean landowners and consumers who object to the Plains & Eastern project vs. Clean Line Energy Partners? CLEP is hardly silent (paid mouthpieces like HBW stand in evidence) and it's certainly not any kind of "majority" in Arkansas. In addition, CEA does not represent any actual "consumers" or other "grassroots" interests. It simply pretends to speak for them.
Support landowners in Arkansas and Oklahoma! Support energy infrastructure! Support the Plains & Eastern Clean Line!
When a couple of the landowners CEA claims to represent questioned the group's claims, HBW promptly removed the claims from its facebook page.
How stupid does HBW think the American people are? Do they ever type a sentence that doesn't end with one (or two!!) exclamation points? This is ridiculous, ineffective drivel. C'mon!!!!!!!!
What "lobbying efforts at the White House level" have inhibited "passage" of an energy infrastructure project? Do you mean the DOE's consideration of Plains & Eastern's Section 1222 application to "participate" in the project in order to override state authority to site and permit transmission? That decision won't be made until next year. And it's supposed to be made by DOE secretary Ernest Moniz, not the "white house." Does HBW and Clean Line know something about some dirty dealings that the rest of us aren't privy to?
So, who are the faces of CEA's "initiative?"
Ryan Scott, Outreach Director
Here's Ryan Scott trading papers with Clean Line public relations "manager" Amy Kurt at the second Mendota Illinois Commerce Commission public forum in the fall of 2013:
And here's Ryan Scott interacting with the ICC judge at the forum:
Here's what Ryan Scott had to say about the Rock Island Clean Line at the forum:
MR. SCOTT: My name is Ryan Scott;
That's funny. Ryan didn't mention that Clean Line Energy Partners is a member of the CEA.
Who does Ryan Scott work for? It's not CEA or its "initiative," it's HBW Resources. HBW doesn't do anything for free, so I believe that Ryan was paid to appear at the ICC forum and make that statement.
Didn't Clean Line have the opportunity to present its case to the ICC as the applicant? Why, then, did Clean Line feel it necessary to have paid speakers posing as third party "consumer" interests supporting its project at the forum? Did Clean Line think it was fooling the ICC into believing that consumers supported RICL?
And now Ryan, HBW, and its new "initiative" think they're fooling a whole new bunch of folks at the "white house" and in the Mayberry towns of Arkansas and Oklahoma?
I wonder what Clean Line's big green supporters think about its getting into bed with fossil fuel interests in the CEA? At what point are these environmental fools going to conclude that Clean Line isn't about "green" energy, but a different kind of $green$?
And, as far as Clean Line's attempted deception about the "benefits" of the Plains & Eastern Clean Line? Report to your battle stations, Mayberry! We're going to have some fun! You've got to get up pretty early in the morning to fool a farmer. Also an idiom you've probably heard. Not translated into Latin.
I saw lots of your tax dollars at work over the past couple weeks. They're everywhere.
Long, boring road trips allow lots of time for pondering. Lots of wind farms allow for lots of comparison.
Why were some turning while others were not? It sure seemed like the closer to the road they were, the more they turned. Like stage dressing for eager Sierra Club motorists, puttering along in their polluting conveyances. Or perhaps the ones encroaching on highways were newer and earning the $0.023/kWh production tax credit, while the ones farther away had been abandoned or were simply priced out of the market at the time? Why was a wind farm on the right hand side of the road turning away, while one on the left hand side sat idle? I did see more turning than not, which probably means there's adequate wind transmission capacity for what's been built.
This report says that wind is curtailed for 3 main reasons:
1. Transmission constraints. Not enough transmission for peak periods. Since the capacity factor for wind averages 35%, is it economic to build additional transmission for the odd times when wind is producing at a higher rate? Probably not.
2. System balancing. High wind penetrations make it hard to keep the system in balance because they require curtailment of base load generators during periods of low load. That's not economic either. "Some utilities or grid operators have curtailed generation from wind plants when minimum generation levels on fossil-fuel plants are reached, because stopping and restarting fossil units within a few hours can be significantly more expensive than paying for a few hours of wind curtailment."
3. Other reasons: voltage issues, interconnection issues, frequency and stability issues. Too much intermittent wind can make the grid unstable. Wind generators also "self-curtail" to protect bats and enable de-icing. Probably not a problem, since it was well over 100 degrees when clusters of wind turbines sat idle.
The expired production tax credit pays wind farm owners $.023/kWH generated. How much is that on an annual basis? Not information easily found. Why not? This article says that the PTC has cost American taxpayers $30B over the past 35 years. Of course, the Koch monster gets blamed for spreading "misinformation," but nobody offers a corrected figure.
Warren Buffet has bragged that the production tax credit is the only reason to build wind farms, "they don't make sense without the credit."
The PTC allows wind generators to bid into energy markets at low, or even negative, prices. This makes it harder for unsubsidized base load generators to stay afloat. As a result, these generators beg for ratepayer subsidies and foist the cost of their failing generators off onto ratepayers.
Who thinks that we can replace all fossil fueled electric generation with intermittent renewables like wind?
Not PJM, whose recent capacity auction provides additional money to generators who can produce when called upon (you know, those baseload fossil fueled generators). This is going to cost consumers an additional $3.4B in yearly capacity charges.
And there we are. New intermittent wind capacity is being built at an alarming rate because it is profitable. New wind transmission capacity is being overbuilt at an alarming rate because it is profitable. All this intermittent generation is causing increased costs for consumers.
But the industry is raking it in. Thoughts to ponder...
Apparently FERC's Office of Enforcement had nothing better to do yesterday than to enjoy a summer drive down to Richmond for an enjoyable afternoon of venue shopping.
I guess they found exactly what they were looking for, because they dropped off a petition requesting a jury trial at the U.S. District Court for the Eastern District of Virginia, Richmond Division, in the matter of:
PETITION FOR AN ORDER AFFIRMING THE FEDERAL ENERGY REGULATORY COMMISSION'S MAY 29, 2015 ORDER ASSESSING CIVIL PENALTIES AGAINST POWHATAN ENERGY FUND, LLC, HEEP FUND, INC.,
HOULIAN "ALAN" CHEN, AND CU FUND, INC.
Although the Commission issued an Order assessing civil penalties on May 29, the accused had 60 days to cough up the roughly $34.5M in penalties and disgorgement. They didn't pay. FERC wasted no time filing its petition after the 60 days were up.
"It has taken Powhatan almost five years to get to court for a very simple spread trading strategy that has been blessed by 12 independent experts at our website, ferclitigation.com," said Powhatan's Richard Gates.
FERC listed six, count 'em, six lawyers as counsel for the plaintiff. It listed only two lawyers for the defense, one for Powhatan Energy Fund and one for Alan Chen, HEEP Fund and CU Fund. Does it really take six FERC lawyers to equal one defense lawyer? Who is paying for this? How much has FERC spent on this investigation over the past 5 years, and how much will it spend down in Richmond? At what point will the cost of this litigation be more than the recovery?
"While the costs of fighting off the bogus allegations have been huge and will just grow for us, we're glad we are able to stand our ground and not be forced into settlement the way others firms have. Plus, it will be nice to be in the neutral venue of a courtroom instead of this Orwellian organization that has trapped us the last 5 years," added Gates.
Richmond? FERC says it selected Richmond because:
Venue is also governed by FPA section 317, 16 U.S.C. § 825p, which provides that “[a]ny suit or action to enforce any liability or duty created by . . . this Act, or any rule, regulation, or order thereunder may be brought in [the district wherein any act or transaction constituting the violation occurred] or in the district wherein the defendant is an inhabitant.”
And the trades occurred in PJM. And Powhatan's "principal place of business" is in Henrico, Virginia. Of course FERC probably knows that the Gates brothers actually live in Pennsylvania and Chen in Texas.
Oh, there it is!
Respondents’ unlawful scheme resulted in
So, FERC wants this case heard before jurors who might believe they were personally cheated out of more than a million bucks? I do hope they fully explain their use of "to the benefit of Dominion and its ratepayers" to show how much would have ended up in Dominion's pocket and how much would have ended up in Dominion's ratepayer pockets if not for the defendant's actions. Maybe FERC can also explain how much of the $34.5M in penalties and disgorgement will end up in Dominion's pocket and how Dominion will flow that recovery into the rates that will make the ratepayers on the jury whole (or not). And do tell where the rest of the money will go, FERC...
I will admit that I haven't read everything in this case, but FERC has yet to convince me that any actual ratepayers were damaged here. If Dominion had collected the MLSA payments instead of Powhatan and Chen, would they have directly reduced rates, or simply gone into Dominion's corporate coffers? Since FERC has yet to adequately explain, I'm leaning toward the latter option. Who is FERC really protecting here? Ratepayers or its pet incumbent utilities?
Gates seems to agree, "By filing the lawsuit, FERC has shown the world it continues not to support open and competitive power markets. Instead, FERC favors incumbent utilities that function without incentives to do better. Indeed, earlier this year the WSJ* described how utilities get profits by just spending more. While we believe in the societal benefits of competition, and know the law allows for it in these markets, it makes sense utilities may not want any."
Is FERC confused about who it serves? Is this case supposed to hinge on a jury's failure to understand it and instead be swept away by platitudes and grandstanding from FERC's sextet of lawyers? FERC used the word "Enron" something more than 30 times in its District Court Petition. Maybe the defense can use the word "McCarthyism" an equal number of times just to keep things fair? I suppose the jury's view of these two competing terms is going to depend on its average age.
And the quality of the public relations battle deployed.
*If you don't subscribe to WSJ and can't read this article via the link, type the phrase "Utilities’ Profit Recipe: Spend More" into Google and click through on that link. No, we're not advising that you engage in newspaper subscription link manipulation, through a scheme to engage in fraudulent Headline Googling (HG) transactions in internet search engine markets to garner excessive amounts of certain free reads of stories behind a paywall. I also recommend that you not engage in any views that constitute a wash viewing scheme in violation of the WSJ’s prohibition of that practice.
I have a declaration to make. Clean Line Energy Partners doesn't represent my interests. I'm pretty sure they don't represent the interests of any other eastern state ratepayers or the eastern states themselves, either. It's all just a bunch of "royal we" smoke and mirrors where Clean Line attempts to speak for others who aren't present and don't necessarily agree with them. "Me and my imaginary friends..." has no place in a court of law.
That's pretty much the basis for Clean Line Energy's application for rehearing of the Missouri Public Service Commission's denial of the company's application for a permit for its Grain Belt Express project.
The Kansas City Star continues its excellent coverage of the Grain Belt Express debacle with its story about the request for rehearing.
“The project is too important to Missouri’s energy future not to pursue,” Clean Line Energy officials said, adding that the state’s ruling also deprived the rest of country of low-cost, clean energy."
Where's the proof of that? Who elected Clean Line to speak for "Missouri's energy future?" Who elected Clean Line to speak for "the rest of the country?" Nobody, that's who!
The Missouri PSC does have a role in determining "Missouri's energy future," however, and the "rest of the country" has not been actively participating in the case.
Clean Line's request for rehearing is a long-winded whine about the Commission not accepting its "evidence" at face value. Clean Line also whines that, because it is not required to participate in regional transmission planning, the Commission's consideration of federally-sanctioned transmission planning is somehow discriminatory. Clean Line wants the PSC to ignore regional transmission planning when considering the "need" for a transmission project dreamed up for the sole purpose of enriching private investors. This collateral attack on regional transmission planning organizations simply cannot be supported.
But Clean Line's main argument seems to be to hide behind the Commerce Clause to claim that Missouri's denial "...interferes with the flow of interstate commerce, be it through actions that overtly discriminate against interstate commerce through differential treatment of in-state and out-of-state economic interests, or through actions that impose a burden upon interstate commerce that is excessive in relation to the putative local benefits."
Commerce Clause? Really? I hope Clean Line wasn't expecting anyone to actually be afraid of this, and is merely wasting time in Missouri while posturing for its lobbyists in Washington, D.C., who could claim that allowing state authority to site and permit transmission is preventing needed transmission from being built.
Clean Line is not THE ONLY way to ship electricity. In fact, it might not even be the most efficient or economic because it has not been vetted as part of any regional planning process. It's not like Missouri has said wind cannot be shipped across the state on existing roads, or new roads that are proven needed by regional planners. It's that Clean Line may not build a new, private, toll road to ship electricity across the state.
Clean Line seems to believe the Commerce Clause protects any private enterprise that wants to damage a state for its own interstate commerce profits. It's really not that simple.
So, here are a couple of things Clean Line says in its brief that demonstrate just how little Clean Line cares about the rights of people impacted by its projects:
1. "...because the narrow local interests that the Report and Order serves do not justify the burden that it imposes upon interstate commerce." In other words, protecting the rights of Missouri property owners and electric ratepayers are less than the "interstate commerce" goals of Clean Line.
2. "The Commission never considered the substantial uncontested evidence on the record of renewable energy demand and RES requirements of other states, and the substantial public benefits the Project delivers to other states. It also cited to the concerns of individual Missouri landowners -- but in the application of the Tartan factors impermissibly weighed those concerns only against the potential benefit to local interest, as opposed to the broader regional and national interest -- in concluding that the evidence shows that any actual benefits to the general public” did not justify approval." Perhaps the Commission gave little weight to Clean Line's conclusory "evidence" of what other states and the broader regional and national interests require. The concerns of individual Missouri landowners are real and came from the landowners themselves. The "needs" of other states or the nation at large were not presented by any of these interests, only Clean Line pretending to speak for them as the voice of the national interest. Clean Line, get over yourself! When the PSC gave Clean Line the opportunity to present evidence that these national interests needed its project, the only thing Clean Line could produce was crickets. Clean Line has no "other state" or "national interest" customers who need its "interstate commerce."
3. "The Commission’s finding that the Project would probably make Missouri-based wind projects less likely to be constructed is exactly the sort of economic protectionism that the dormant Commerce Clause prohibits. So too is the Commission’s criticism of the Company’s witness on economic benefits, who the Commission found did not address the displacement of jobs and energy production in Missouri due to the Project. Courts are highly alert to “the evils of ‘economic isolation’ and protectionism.... " So, Clean Line believes that lost economic opportunities in Missouri are "evil" or should not be considered? Or that they must necessarily be less than the "national interest?" If all local interests take a back seat to "national" ones, that's a pretty slippery slope! I mean, we might as well just surrender ourselves to some world dominating corporation and let them do whatever they want. Speaking of Evil, is the good Dr. in the house?
4. "The Commission’s denial of the Company’s CCN Application runs afoul of this element of Commerce Clause analysis because it unduly burdens the delivery of electricity generated by wind farms in Western Kansas not just to Missouri consumers, but to key markets in Illinois and Indiana. The Commerce Clause violation is as apparent in this instance as it would be if Missouri sought to restrict passage of cattle raised on Western ranches for shipment to stockyards in the East." Again, it's not as though the MO PSC said no electricity (cattle) could pass through the state... it simply denied a permit for Clean Line to burden Missouri residents by building a new toll road to ship only certain electricity (cattle) across the state. Cattle is perfectly free to use existing roads in Missouri to get to other states or anywhere it likes
5. "With the interests only of Missouri utilities and consumers in mind, the Commission made findings whose burden on interstate commerce clearly exceeds the local benefits. For example, the Commission found that Missouri had no need for the Project, and that the Project is not economically feasible, because utilities in the State could build natural gas fired plants and buy renewable energy credits. Neither is a valid reason to deny Kansas wind producers efficient access to the market or to deny utilities and their customers the ability to benefit from the Project. And the putative local interests do not outweigh this burden." So, the ONLY market for Kansas wind power is through Missouri? Clean Line provides a "benefit" to utilities and customers? Did Clean Line prove this? I don't think so! Clean Line doesn't have any customers!
6. "Indeed, any burden to local landowners would be small compared to the hundreds of millions of dollars of savings to Missouri and other states. The evidence shows that Grain Belt Express has agreed to compensate landowners for the fee value of their land, plus an annual payment, plus any economic damages to crops. Even if, as a last resort, Grain Belt Express acquired an easement through a condemnation proceeding, Missouri courts would require that Grain Belt Express pay fair value." Landowner burdens are "small"? That sort of depends on if it's your land, doesn't it? Who is Clean Line to determine the burden on landowners? If the burden was ameliorated by Clean Line's compensation, why are the overwhelming majority of landowners opposing the project? One could conclude it's because Clean Line's compensation doesn't even come close to making landowners whole. Clean Line also failed to prove the "hundreds of millions of dollars of savings to Missouri and other states." The PSC did not find those claims credible. How would Clean Line ever attempt to prove this claim, when it cannot set a price for electricity generated by others? It can't even set a capacity price for its transmission line at this point! There's simply nothing that shows evidence of "savings."
7. “The menace of inconsistent state regulation invites analysis under the Commerce Clause of the Constitution, because that clause represented the framers’ reaction to overreaching by the individual states that might jeopardize the growth of the nation— and in particular, the national infrastructure of communications and trade—as a whole.” So, because all states don't have the exact same regulations governing siting and permitting of interstate transmission that somehow violates the Commerce Clause? Or is this just a peek into the rationalizations of Clean Line's Washington DC lobbyists? If every state was required to have identical laws, you might as well make transmission siting and permitting a federal process, right? I don't think that's the intent of the Commerce Clause.
8. "The Commission’s actions here are equally likely to paralyze the development of interstate electric transmission to deliver low-cost renewable wind power from high capacity states to states lack renewable energy resources. The Commission’s stated local interests, confined to protecting Missouri utilities and consumers, do not outweigh (and in no way justify) its demonstrated effort to isolate itself from a growing national concern over the lack of such transmission infrastructure by erecting a barrier against the movement of interstate commerce. Indeed, given the shipper-pays nature of the Project and the evidence regarding the cost impacts of the Project, there can be no detriment to Missouri consumers because they will bear no costs unless a utility determines that the benefits of purchasing energy delivered by the Project outweigh those costs. Similarly, no Missouri utility is compelled to buy power delivered by the Project if it isn’t lower than the cost of other resources." Paralyze the development of interstate electric transmission? Hardly! Plenty of interstate electric transmission is proposed, approved and built through the regional planning process Clean Line chose not to participate in. Clean Line's proposals simply aren't viable, and the fault for that is entirely Clean Line's. What states lack renewable energy resources? I don't think there are any states that have no renewable energy resources. It is not up to Clean Line to determine what kind of renewable energy resources states build and use. That must violate some clause or another somewhere... And where's the "growing national concern over the lack of such transmission infrastructure?" I don't think Clean Line has provided any evidence of that. It's all just a bunch of vocabulary diarrhea. Blah, blah, blah, we're speaking for everyone else here and we are what they want. I don't think the MO PSC was fooled by that, just like the people weren't!
9. "There can be no harm to Missouri from having another option to supply power. Any perceived detriment to landowners is mitigated by the law that provides them fair and reasonable consideration. If there is a detriment to landowners, it is drastically outweighed by the hundreds of millions of dollars of benefits provided by the Project, the thousands of jobs that it creates, and the immeasurable ways in which it would advance the national interest in clean, inexpensive, renewable wind energy." Wow, there they go again, throwing Missourians under the bus for benefit of the "national interest" that Clean Line pretends to speak for. Who says the "national interest" outweighs the interests of Missouri landowners? Clean Line? Not.their.job. Where's the proof of the thousands of jobs and the "immeasurable ways"? Perhaps we could actually measure the ways in which Missouri would be harmed by this project? Actually, I think that's what the PSC did here! Nobody believes Clean Line is their altruistic economic electricity savior. Nobody. Save the drama for your mama (when you ask her to sign your petition supporting your project).
10. "It is clear that the Commission’s decision in this case was not even-handed, and that its exclusive and inaccurate focus on Missouri utilities, consumers, and landowners arbitrarily resulted in an application of the Tartan factors to the Company’s CCN Application that discriminates against the Project merely because of its interstate nature." Actually, it was very even-handed. The Commission listened to both sides of the argument and was not swayed by Clean Line's propaganda and attempts to purchase support for its project. Nobody discriminated against Clean Line merely because of its interstate nature... it's simply a bad idea pushed by a bunch of disrespectful rich people for dubious economic reasons.
Block GBE-MO's Jennifer Gatrel hit the nail on the head when she characterized the company's request for rehearing as disrespectful:
“We continue to be disappointed by the lack of respect shown by Clean Line to landowners and citizens of Missouri,” opposition leader and farmer Jennifer Gatrel said Thursday. “They have been told no in every way possible and yet they persist in attempting to override the will of the people and the decision by our commissioners.”
About the Author
Keryn Newman blogs here at StopPATH WV about energy issues, transmission policy, misguided regulation, our greedy energy companies and their corporate spin.
In 2008, AEP & Allegheny Energy's PATH joint venture used their transmission line routing etch-a-sketch to draw a 765kV line across the street from her house. Oooops! And the rest is history.