Court cuts off gas contracts

August 17, 2016:- If you are interested in electricity prices, today’s decision from the Supreme Judicial Court (SJC) affects you. The case saw the Conservation Law Foundation and the power company Engie Gas (formerly GDF Suez) on the same side. Neither wanted to see electricity companies able to buy pipeline capacity, as this article in the Springfield Republican explains.

The question before the SJC: May the Department of Public Utilities  (DPU) approve contracts that electricity-distribution companies want to enter into with natural-gas power generators?

The answer: No. That is the abridged version of today’s 37-page decision.

The impact? Find out by looking at your electricity bills over the months and years ahead.

Note to grammarians and students of legislative drafting: You too may be interested in this decision because it discusses redenda singula singulis, AKA the rule of the last antecedent.

IMG_7031
Peter Vickery, Esq.

New Gas Pipeline Decision

archimedes
Leverage requires a place to stand

Three environmental groups lost their case against the Federal Energy Regulatory Commission (FERC) because they lacked standing. As Archimedes noted, you can move the world with a long enough lever and a fulcrum, but only so long as you have a place to stand. Without standing, not only will you fail to move the world, but — as the three groups learned too late — you will also fail to move the United States Court of Appeals for the D.C. Circuit.

The story began when Spectra Energy applied to FERC for a certificate of public convenience and necessity (a permit) to build a natural gas pipeline to New York City via Jersey City. The Atlantic Chapter of the Sierra Club, Food & Water Watch, and NO Gas Pipeline intervened in the FERC proceedings and opposed the issuance of a certificate for several reasons, notably the increased likelihood that the gas in the pipeline would cause the homes of their Jersey City members to suffer from increased levels of radon. FERC did not fnd the objections persuasive and on May 2012 issued the certificate. The three organizations and the City of Jersey petitioned the Court of Appeals to review the decision.

On July 1, 2014, the court dismissed the petition for want of jurisdiction. It had other reasons for dismissing Jersey City’s petition, but for the environmental coalition the fatal issue was standing: the court held that each group had failed to show “injury in fact,” meaning “the invasion of a legally protected interest which is (a) concrete and particularized… and (b) actual or imminent, not conjectural or hypothetical.” In trying to demonstrate standing, the groups alleged that the pipeline would raise the risk of radon and terrorism, both of which could injure their Jersey City membership.

These risks were too speculative, the court decided. The supposedly heightened radon risk depended on energy companies choosing to (1) extract high-radon gas and (2) transport it without taking steps to reduce the radon levels. There was no evidence that Spectra would make these choices.

As for the terrorism threat, the court observed that the commission of an act of terrorism depends on the “intervening acts of third parties,” i.e. terrorists.  Perhaps the court had in mind the perverse incentive that would result from forbidding construction of a pipeline because of the chance that terrorists might try to blow it up. If acts of violent sabotage could serve as the basis for denying permits, some pipeline opponents might find themselves unable to resist the temptation to engage in them. And, besides, there is precious little that al Qaeda et al will not target or weaponize in the realm of infrastructure (or anything else, for that matter).

Here, however, I am speculating. But if I were trying to persuade a judge to deep six a project, I would keep this public policy issue in mind and refrain from relying on the target-for-terrorism argument. The main point for readers with an interest in the Northeast Expansion Project is that for standing purposes, organizations and the individuals that they consist of must demonstrate facts that establish “actual and imminent” injury. Harms that are too contingent and attenuated will not suffice. That remains true even if the organizations intervened at the FERC stage.

The take-away: In and of itself intervening in FERC proceedings is no guarantee that the intervenor will have standing to challenge FERC’s decision in court.

Gas in Mass.? Not so fast.

In October I gave a talk on the law surrounding hydraulic fracturing (fracking) and shared the stage with Professor Steven Petsch, a geologist who teaches at the University of Massachusetts, Amherst. oct 9 mtg 1 You can watch both presentations by clicking here. Mine starts around the 46-minute mark, by the way.

My presentation focused on the current regulatory ban on Class II wells and the question of whether it could withstand a courtroom challenge. Professor Petsch described the geology of the Pioneer Valley and made absolutely clear that nobody has discovered natural gas in the area. He also explained why: The history of the rock formations in Western and Central Massachusetts make it extremely unlikely that they contain recoverable natural gas.

About a year ago the Massachusetts State Geologist posted a helpful overview online, which you can read here. Like Professor Petsch, the State Geologist makes abundantly clear that nobody has discovered natural gas in Massachusetts.

Nevertheless an organization called Environment Massachusetts keeps claiming that gas deposits have been found here. The people who work for Environment Massachusetts may be right about a lot of things, but on this they are just wrong. So please remember, if a canvasser from Environment Massachusetts asks you for a contribution because (as their website alleges) “geologists recently discovered shale gas in Western Massachusetts,” you may decline with a perfectly clear conscience.

Rain, Reggi, and a Reminder

I enjoyed today’s annual conference on Environmental, Land Use & Energy Law in Boston and came away suitably edified. Without getting into the weeds of recent and upcoming zoning decisions (other than to say watch out for disputes about medical marijuana dispensaries) I would like to share my three key learnings.

1. Rainfall: Kenneth Moraff from the EPA put the agency’s new national stormwater rule in its climate context. He pointed out that since the 1940s it has been the six New England states that have seen the most dramatic increase in the frequency of extreme rainfall. This report from Environment Massachusetts provides all the statistics, but the figure I won’t forget in a hurry is 85%: that’s the percentage increase for intense snowstorms and rainstorms in New England since 1948.

2. Reggi: The Regional Greenhouse Gas Initiative (RGGI, pron. Reggi) was the nation’s first cap-and-trade scheme. Through RGGI the participating northeastern states and Canadian provinces stage auctions where polluters buy permits to emit green-house gases. The money helps fund energy efficiency programs, which has proved a boon to many Massachusetts communities. But DEP Commissioner Kenneth Kimell mentioned a shortcoming: The original allowances are too high. Because power plant emissions of CO2 have dropped since the natural gas boom, the allowances now exceed what the companies need, and the price for CO2 allowances is as low as it can go. I’ve voiced my criticisms of RGGI before, so shall refrain from echoing myself here.

3. Reminder: Sue Reid, director of the Conservation Law Foundation, reminded us about an important provision in the Global Warming Solutions Act of 2008. Under Chapter 30, Section 61, all state agencies have to take climate change impacts into account when making decisions about permits and licenses. This is  an important requirement that has yet to work its way fully into all nooks and corners of state government, but I think it has extraordinary potential.

Kudos to the staff and volunteers at Massachusetts Continuing Legal Education for organizing yet another informative event.