What is the cost of a judicial system that citizens cannot afford to use? This week in CIB:
Administrative Watch: Prohibitive Bonding
If the law prices simple access to the courts beyond the means of the overwhelming majority of the public, can the agency whose decisions are shielded from review still be considered accountable to the public?
We might be excused for concluding that the only honest answer to that question is “no”. Unfortunately, the question posed is not hypothetical. It’s being fought out now in the North Carolina courts, in the effort by two citizen groups to force a full review of the merits of an important decision by the NC Utilities Commission (NCUC).
Here’s the summary: In an expedited process, the NCUC last March issued a permit to Duke Energy to build a new gas-fired power plant in Buncombe County, to replace an older coal-fired plant scheduled to be demolished. Two citizen groups (NC WARN and Climate Times) sought to appeal the decision for a full, in-depth review. In order to do so under existing North Carolina law, they are being required to file a bond to cover the costs of delaying the plant if they do not prevail in their court challenge.
The NCUC set the required bond at $10 million. The citizen groups challenged that amount, and the NC Court of Appeals directed the NCUC to reconsider. On reconsideration, the NCUC upped the required appeal bond to $98 million.
In other words, citizens, post a bond guaranteeing the payment of up to $98 million if you lose, or forget about your day in court. The citizen groups plan to appeal the case back to the state Court of Appeals.
CIB offers no comment on the merits of the citizen groups’ challenge to the NCUC’s decision to issue the power plant permit (known as a “certificate of public convenience and necessity”). We have not studied that question in sufficient depth to form an evidence-based opinion. However, we think that it’s a reasonable question whether the NCUC—supposedly the guardians of the public trust on public utility matters in our state—has done so either.
Certainly, the special legislation called the “Mountain Energy Act” passed in 2015 at the behest of State Senator Tom Apodaca did not facilitate such a full evidentiary review. In language worded so narrowly that it clearly applied only to this project, the Mountain Energy Act effectively prohibited the NCUC from developing a full evidentiary record for its decision. The decision had to be made within 45 days of the petition for the permit being filed. (That’s for a major new power plant with a multi-hundred-million-dollar price tag.)
A phrase popular in contemporary politics comes to mind here: “rigged system”. The decision to replace an aging coal plant with a new gas-fired plant in Buncombe County may or may not be the best call on its public interest merits. Under the process underway now, though, it seems that the public cannot have confidence that all the facts have been considered by the public agency charged with reaching that judgment. And the question raised by this combination of legal circumstances goes beyond the merits of this single case.
If there’s no full public review of such major environmental decisions by a public state agency, and objecting citizens cannot even be heard in court to have that question reviewed, then the system has indeed been rigged against the public’s interest, our environment, and public health.
Executive Watch: McCrory Signs ‘Duke Energy Protection Act’
Duke Energy’s investment in its career employee Pat McCrory continues to pay off handsomely for the giant power company. Governor McCrory last week signed legislation severely curtailing Duke’s potential liability for coal ash pit cleanups at half of its 14 sites around North Carolina.
McCrory signed HB 630, misleadingly titled by its sponsors the “Drinking Water Protection/Coal Ash Cleanup Act”, but more fittingly coming to be known as the ‘Duke Energy Protection Act’. In truth, the legislation neither protects drinking water nor forwards the cleanup of coal ash pits in our state. Instead, it gives Duke years to complete providing clean drinking water to families whose wells near coal ash pits have been poisoned, and lets Duke cap and leave in leaking place the pits at fully half of its sites.
“There are families across North Carolina who cannot drink their own well water because it’s contaminated with the cancer-causing chemicals found in Duke Energy’s coal ash,” said Dan Crawford, director of governmental relations for NCLCV. “Duke Energy had revenues of over $23 billion in 2015, yet Governor McCrory just signed a law that lets his former employer off the hook with a cheaper alternative and a longer timeline. If the water in the Governor’s Mansion were poisoned, I’ll bet Gov. McCrory wouldn’t get by on bottled water for three years, so why does he expect North Carolina citizens to do just that?”
For more complete details on the defects of HB 630, see NCLCV’s news release here.
Campaign Watch: Contrast on Climate Change
In any presidential campaign, the day to day noise of current news events, side track concerns of little real-life import, and the latest polls can blur the picture of the basic choices at stake.
With that in mind, this is an opportune moment to share a short comparison on the basic policy differences on energy and climate change between the major party nominees. One neutral media source sums them up this way:
Renewable energy: Donald Trump doesn’t appear to care much one way or the other on truly clean sources like solar and wind. Hillary Clinton is a strong backer of solar and wind, and has laid out ambitious expansion goals for these sources.
Environmental regulation: Trump would enthusiastically “attack environmental regulation and the Environmental Protection Agency on all fronts” and has “promised to rescind by executive order many of the Obama Administration’s environmental goals” including the Clean Power Plan. Clinton intends to use the EPA as “the vanguard regulatory agency to reduce pollution of all kinds, especially air and water pollution in disadvantaged areas” (also known as “environmental racism”).
Fracking and drilling: Trump is an “enthusiastic” supporter of fracking and revoking restrictions on drilling. Clinton’s record on fracking is mixed, but she proposes new regulations on the practice that could “dramatically curtail its use” in much of the country.
Climate change: Trump has promised to “cancel the Paris Climate Agreement” in a “clear rejection of both accepted climate science and attempts to reach global consensus over the past decade concerning greenhouse gas emissions.” Clinton would pursue the Paris agreement, the EPA Clean Power Plan, and additional clean energy initiatives as part of her climate action commitment. “There probably isn’t a clearer policy difference between the two camps than on climate change, especially given the possible long-term consequences.”
As scientists say, it’s important to “separate the signal from the noise”—and on the differences for climate change policy between Hillary Clinton and Donald Trump, the signal is clear.
Climate Change Update: Fault Lines or Growing Pains?
As the movement to alert the public to the extreme hazards posed by climate change has powerfully succeeded in that initial goal, the diverse members of that movement have taken up vigorous internal debate over the best approaches to bring the crisis itself to heel.
That debate manifested itself in the recent Democratic presidential primary, among other places, during which proponents of a carbon tax fought fiercely for the perspective that their favored tool was the only viable option for effective action. This debate is sure to continue, especially if Democratic candidates win the presidency and make major gains in Congress this fall. (Of course, if Trump wins the White House and the current leadership of Congress maintains control, any national action on climate change will be cancelled.)
Do these fierce policy debates within the citizen climate change movement indicate dangerous fault lines that could threaten its survival (or at least its effectiveness)? Are they instead the inevitable growing pains of a movement beginning to grasp control of the levers of political power? Or are they both?
A thoughtful New York Times analysis last week examined the divisions and analyzed their significance.
Education & Resources: Clean Energy Incentive Program
The U.S. Environmental Protection Agency (EPA) is laying out additional details for public comment on a key element of the Clean Power Plan: the optional Clean Energy Incentive Program (CEIP). EPA explains that CEIP was designed to help states meet their Clean Power Plan goals “by encouraging early investments in zero-emitting renewable energy generation, and by removing barriers to investment in energy efficiency.” Further information on the CEIP is found here.
To help explain its proposal and facilitate public comment, EPA is holding a webinar tomorrow, Tuesday July 19, at 1pm. ET. There is no charge and preregistration is not required. Join the call via this link.
Conservationists: Stanback Intern Jesse Way
NCLCV welcomes our Stanback Interns each summer to join our team of citizen advocates for a clean, green, and healthy North Carolina. This week meet 2016 Stanback Intern Jesse Way
That’s our report for this week.
