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Wind farm in Idaho. Jerry and Pat Donaho / CC BY-NC-ND 2.0

By Philip Warburg

Advances in technology, improved economics and broad political support are making wind power a formidable twenty-first century energy resource. Top-ranking Denmark draws 41 percent of its electricity from wind; Ireland follows with 28 percent; the European Union as a whole gets 14 percent of its power from wind.

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Japan's newly-appointed Environment and Nuclear Disaster Minister Shinjiro Koizumi enters the prime minister's official residence in Tokyo on Sept. 11. TOSHIFUMI KITAMURA / AFP / Getty Images

By Jessica Corbett

Japan's new environmental minister, Shinjiro Koizumi, called Wednesday for permanently shutting down the nation's nuclear reactors to prevent a repeat of the 2011 Fukushima disaster, comments that came just a day after Koizumi's predecessor recommended dumping more than one million tons of radioactive wastewater from the power plant into the Pacific Ocean.

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EcoWatch Daily Newsletter

In 2011, a powerful earthquake and subsequent tsunami struck the Fukushima prefecture in Japan, leading to a nuclear disaster whose impacts are still being felt globally. Now, a massive 7.4 earthquake hit Fukushima around 6 a.m. local time, and tsunami warnings and advisories are in effect.

It was first reported as a 7.3 earthquake but was later revised to 7.4 by the Japan Meteorological Agency. The epicenter of the quake was 67 km northeast of Iwaki, a city on the southern coast of the Fukushima prefecture.

Residents along Japan's Northeastern coast have been told to evacuate immediately and seek higher ground. According to the Japan Meteorological Agency, tsunami waves are expected to hit repeatedly and make landfall imminently.

NHK News Japan

Their warning stated: "Damage due to tsunami waves is expected. Evacuate immediately from coastal regions and riverside areas to a safer place such as high ground or an evacuation building. Tsunami waves are expected to hit repeatedly. Do not leave safe ground until the warning is lifted." NHK News Japan warned those living on the coast to "hurry up and run away."

Though immediate concern was given to local residents and their safety, attention has quickly turned to TEPCO's nuclear power plant in Fukushima, the site of the 2011 catastrophic meltdown. Five years ago, three of the plant's six reactors melted down leading to the largest release of radiation into the ocean in world history. The damaged reactors were never sealed and continue to leak an astounding 300 tons of radioactive wastewater every day. As Japan braces for yet another tsunami, concern is growing regarding the potentially devastating effects that another tsunami could have on the cooling system's of the plant's three remaining, intact reactors.

According to reports, these fears are not unfounded. In the aftermath of the earthquake, TEPCO confirmed that the cooling system in one of the three intact reactors stopped working, but was successfully restarted 90 minutes after its abrupt shutdown. Though no "abnormalities" were reported, TEPCO has remained silent as to what caused the shutdown and if the cooling system suffered any damage that could lead to another unexpected shutdown. TEPCO said that the cooling system failure posed no "immediate danger" even though they admitted that there has been a "gradual" rise in reactor temperatures.

With the tsunami expected to arrive within hours, people around the world will be watching to see if the nuclear reactors will hold or if history will repeat itself in the worst way possible. However, TEPCO's credibility regarding its Fukushima plant is dubious as they lied about the true extent of the 2011 crisis with complicity from the Japanese government. Hopefully, this time they are telling the truth.

Reposted with permission from our media associate True Activist.


Noam Chomsky speaks in Buenos Aires, Argentina, on March 12, 2015.

By C.J. Polychroniou

On Nov. 8, Donald Trump managed to pull the biggest upset in U.S. politics by tapping successfully into the anger of white voters and appealing to the lowest inclinations of people in a manner that would have probably impressed Nazi propagandist Joseph Goebbels himself.

But what exactly does Trump's victory mean and what can one expect from this megalomaniac when he takes over the reins of power on Jan. 20, 2017? What is Trump's political ideology, if any and is "Trumpism" a movement? Will U.S. foreign policy be any different under a Trump administration? Some years ago, public intellectual Noam Chomsky warned that the political climate in the U.S. was ripe for the rise of an authoritarian figure. Now, he shares his thoughts on the aftermath of this election, the moribund state of the U.S. political system and why Trump is a real threat to the world and the planet in general.

Q. Noam, the unthinkable has happened: In contrast to all forecasts, Donald Trump scored a decisive victory over Hillary Clinton, and the man that Michael Moore described as a "wretched, ignorant, dangerous part-time clown and full-time sociopath" will be the next president of the U.S. In your view, what were the deciding factors that led American voters to produce the biggest upset in the history of U.S. politics?

A. Noam Chomsky

Before turning to this question, I think it is important to spend a few moments pondering just what happened on Nov. 8, a date that might turn out to be one of the most important in human history, depending on how we react.

No exaggeration.

The most important news of Nov. 8 was barely noted, a fact of some significance in itself.

On Nov. 8, the World Meteorological Organization (WMO) delivered a report at the international conference on climate change in Morocco (COP22) which was called in order to carry forward the Paris agreement of COP21. The WMO reported that the past five years were the hottest on record. It reported rising sea levels, soon to increase as a result of the unexpectedly rapid melting of polar ice, most ominously the huge Antarctic glaciers. Already, Arctic sea ice over the past five years is 28 percent below the average of the previous 29 years, not only raising sea levels, but also reducing the cooling effect of polar ice reflection of solar rays, thereby accelerating the grim effects of global warming. The WMO reported further that temperatures are approaching dangerously close to the goal established by COP21, along with other dire reports and forecasts.

Another event took place on Nov. 8, which also may turn out to be of unusual historical significance for reasons that, once again, were barely noted.

On Nov. 8, the most powerful country in world history, which will set its stamp on what comes next, had an election. The outcome placed total control of the government—executive, Congress, the Supreme Court—in the hands of the Republican Party, which has become the most dangerous organization in world history.

Apart from the last phrase, all of this is uncontroversial. The last phrase may seem outlandish, even outrageous. But is it? The facts suggest otherwise. The party is dedicated to racing as rapidly as possible to destruction of organized human life. There is no historical precedent for such a stand.

Is this an exaggeration? Consider what we have just been witnessing.

During the Republican primaries, every candidate denied that what is happening is happening—with the exception of the sensible moderates, like Jeb Bush, who said it's all uncertain, but we don't have to do anything because we're producing more natural gas, thanks to fracking. Or John Kasich, who agreed that global warming is taking place, but added that "we are going to burn [coal] in Ohio and we are not going to apologize for it."

The winning candidate, now the president-elect, calls for rapid increase in use of fossil fuels, including coal; dismantling of regulations; rejection of help to developing countries that are seeking to move to sustainable energy; and in general, racing to the cliff as fast as possible.

Trump has already taken steps to dismantle the U.S. Environmental Protection Agency (EPA) by placing in charge of the EPA transition a notorious (and proud) climate change denier, Myron Ebell. Trump's top adviser on energy, billionaire oil executive Harold Hamm, announced his expectations, which were predictable: dismantling regulations, tax cuts for the industry (and the wealthy and corporate sector generally), more fossil fuel production, lifting Obama's temporary block on the Dakota Access Pipeline.

The market reacted quickly. Shares in energy corporations boomed, including the world's largest coal miner, Peabody Energy, which had filed for bankruptcy, but after Trump's victory, registered a 50 percent gain.

The effects of Republican denialism had already been felt. There had been hopes that the COP21 Paris agreement would lead to a verifiable treaty, but any such thoughts were abandoned because the Republican Congress would not accept any binding commitments, so what emerged was a voluntary agreement, evidently much weaker.

The British government astonished the nuclear industry late last night by refusing to go ahead with plans to build the world's largest nuclear plant until it has reviewed every aspect of the project.

The decision was announced hours after a bruising meeting of the board of the giant French energy company EDF, at which directors decided by 10 votes to seven to go ahead with the building of two 1,600 megawatt reactors at Hinkley Point in Somerset, southwest England.

A computer-generated image of what the Hinkley Point C nuclear power plant would look like. EDF Energy / PA

One director, Gerard Magnin, had already resigned in protest before the meeting, saying the project was "very risky." All six union members, who are worker directors, said they were going to vote against because they believed that any new investment should be directed at making ageing French reactors safer.

So certain were EDF that a signing ceremony with the British government would take place today to provide the company with 35 years of subsidies for their electricity that they had hired marquees, invited the world's press and laid in stocks of champagne to toast the agreement.

Myriad Voices

But EDF Chief Executive Vincent de Rivaz, who had pushed for the deal, cancelled a trip to Britain on hearing the government announcement.

Britain's new prime minister, Theresa May, who had never publicly endorsed the project like her predecessor David Cameron, has clearly heeded the myriad voices outside the nuclear industry that say this is a bad deal for British consumers.

Her new business and energy secretary, Greg Clark, in a brief statement, said the decision was deferred until "early autumn" while the "government reviews all the component parts of the agreement" to build what is the most expensive power plant the world has ever seen.

Hinkley Point C, as the new station would have been called, is estimated by the company to cost £18 billion, take nine years to build and provide 7 percent of the UK's electricity via two 1,600 megawatt reactors.

This is a new type of reactor, of which four are being built—one at Olkiluoto in Finland, one at Flamanville in France and two in China. All are years behind schedule and costs in France and Finland have trebled. None are expected to produce power until 2018, although what is happening in China is not clear.

Because of these delays, the French were not actually going to start pouring concrete for construction until 2019 and there were already severe doubts that the timetable proposed by the French for Hinkley Point could be met.

Some have even suggested that the delays elsewhere have shown that the design is flawed and that the reactors may never work efficiently. This may concern the British government, but the sticking point is more likely to be the staggeringly high cost that consumers will have to pay for electricity produced by the plants.

Up in the air: the controversial Hinkley Point project has been the focus of many past protests.Campaign for Nuclear Disarmament via Flickr

In 2012, the previous government agreed to pay £92.50 for each megawatt hour of electricity produced—a price that would rise with inflation.

With wholesale prices going down, that is already three times the current price of electricity and it is calculated that it would cost every bill payer in Britain £10 a year for 35 years just to keep the station open—and it could be more.

If Theresa May is anything like her predecessor, Margaret Thatcher, who did not think nuclear power was value for money, the project will be in jeopardy.

EDF already runs 15 ageing nuclear reactors in Britain and was looking to build the two at Hinkley and another two in Essex to replace the old ones as they close down. The Chinese, Japanese and Americans were being encouraged to build reactors in other parts of England and Wales. All these look less likely now.

The problem for nuclear power is that new stations cost billions to build and take a decade before they get any income back. This has brought EDF huge debts and borrowings, which has put the company in financial difficulty—hence the internal controversy about the Hinkley decision.

Claire Jacobson, head of climate, energy and environment policy at EEF, the British manufacturers' lobby group that supports the nuclear industry, said the government's decision was "yet another blow to a decision that has been hindered by many delays and uncertainties."

Emissions Targets

Tom Greatrex, chief executive of the Nuclear Industries Association, warned that failure to go ahead with the project would risk the lights going out and missing the country's carbon emissions reduction targets. He said ministers "need to act quickly to endorse the decision [to go ahead]."

However, critics of the controversial project were delighted. John Sauven, the executive director of Greenpeace, said: "Theresa May now has the chance to stop this radioactive white elephant in its tracks."

"She should look at the evidence and see that this deal would be a monumental disaster for the taxpayers and the bill payers. Countless experts have warned that for British families this power station will be terrible value for money, Sauven added."

Until last night, the UK was the most positive country in Europe about nuclear power and planned to build a total of 10 nuclear power plants, Hinkley Point being the first of them. This was despite the fact that nuclear costs continue to escalate while its main competitors—renewables of all kinds—fall in price.

The Hinkley Point project is now more expensive than offshore wind power, which is the most expensive renewable and is far more costly than solar and onshore wind. Biogas and small-scale hydro projects in Britain, all so far underdeveloped, are also cheaper than nuclear.

Safety Fears

The price of all renewables is going down as they develop, while the price rises for nuclear power, with safety fears and threats from terrorism pushing costs up.

It is also argued, even by the UK's national electricity grid, that the day of the large power plant is over, to be replaced by small local generators providing electricity near to homes and factories—something that renewables are ideally suited for.

Even France, which has 58 reactors and is building a Hinkley prototype at Flamanville in Normandy, has no plans to build any more. All its new energy projects are renewables and it has plentiful supplies of untapped wind and solar power, which are cheaper.

China, which is currently building more nuclear plants that any other country, is also hoping to build new plants in Britain, and China General Nuclear Power had agreed to fund one-third of the Hinkley Point project to get an entry to the UK market.

They were due to be at the celebrations in Somerset today, but in a statement said: "We respect the new government's need to familiarize itself with a project as important to the UK's future energy policy as Hinkley Point C and we stand ready to help the government in this respect." They then flew home.

By Paul Brown

The nuclear industry is celebrating breaking records that have stood for a quarter of a century—but a new update on its successes still fails to disperse the clouds over its future.

The nuclear industry provides 10 percent of the world's electricity, but its target is to supply 25 percent by 2050—requiring a massive new build program.

Ten new nuclear reactors came on line last year worldwide and more new reactors are being built than at any time since 1990. According to the report by the World Nuclear Association (WNA), there were 66 power reactors under construction across the world last year and another 158 planned. Of those being built, 24 were in mainland China.

In what it promises will be an annual update of the industry's "progress," the WNA presents a rosy picture of the future of the industry, which it hopes will produce ever-increasing amounts of the world's power.

Currently, the industry provides 10 percent of the world's electricity, but its target is to supply 25 percent by 2050—requiring a massive new build program. The plan is to open 10 new reactors a year until 2020, another 25 a year to 2030 and more than 30 a year until 2050.

Vast Increase

The industry regards this as vital to ensure that the governments of the world keep to their plan of keeping the planet from passing the internationally-agreed limit of a 2 C rise in temperatures above pre-industrial levels. It says only a vast increase in new nuclear power, combined with renewables, can achieve this.

"The World Nuclear Association's vision for the future global electricity system consists of a diverse mix of low-carbon technologies—where renewables, nuclear and a greatly reduced level of fossil fuels (preferably with carbon capture and storage) work together in harmony to ensure a reliable, affordable and clean energy supply," the report says.

Despite its optimism, the WNA admits that the situation globally for the industry is "challenging," particularly in Europe and the U.S., where low electricity prices are making nuclear power uneconomic.

The brightest prospect is China, where nuclear power is shielded from market forces. Eight new reactors were connected to the grid in 2015, with many more scheduled for construction as part of China's bid to phase out coal and improve air quality.

The largest nuclear power exporter is Russia and President Putin is offering countries generous terms, including providing the fuel for the reactors and then taking the waste back to Russia.

This plan, which ties countries into close partnerships with Russia, could be seen to pose political dangers for the countries concerned, giving Russia direct control over their energy supplies.

Many countries have chosen to ignore this potential problem. As a result, Russia's national nuclear industry is currently committed to building new reactors in China, Hungary, India and Turkey and is engaged with potential buyers in Jordan, Kazakhstan, Nigeria, South Africa and Vietnam, among others.

South Korea and India are also quoted in the WNA report as boosting nuclear power with new commitments in 2015.

In Europe and North America, however, nuclear operators are struggling. In Europe, this is mainly because of political opposition in Germany and the fact that the French nuclear industry's flagship new design, currently under construction, is badly delayed by cost overruns and time delays.

Hard to Compete

The recent UK vote to leave the European Union, which took place after the WNA report was compiled, will make this situation worse. The British plan to build 10 new reactors, including four of French design, now seems much less likely to be realized.

In North America, the success of the shale gas industry has meant that nuclear power finds it hard to compete on price.

Aside from new build, there is great emphasis in the report on the continued operation of nuclear power stations well beyond their original design life. It says that, in many cases, there is no reason why, with regular refurbishment, many nuclear reactors could not continue in service permanently. In many cases, it says, it would be cheaper to refurbish an existing station than to build a new one.

The exception is the advanced gas cooled reactors operated in the UK. These have life-limiting factors that mean they will close well before the 60-year lifespan that reactors of other designs could easily manage, the report says.

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Michael Leonardi

The Davis Besse nuclear generating station in Oak Harbor, OH, on the western shore of Lake Erie is back in the cross hairs after last weeks announcement that the crippled San Onofre nuclear power plant in southern California will remain permanently shut down and be decommissioned. The decision by Southern California Edison came 17 months after major problems with its replacement generators caused a crack in piping and a release of radioactive steam into the environment. A broad based coalition of citizen’s groups, governmental officials and environmental organizations waged an epic battle to keep this threat to the Pacific Ocean and the southwestern U.S. permanently shut down.

Davis-Besse Nuclear Power Station in Oak Harbor, OH, on the western shore of Lake Erie.

The San Onofre victory has bolstered a coalition of citizen’s groups working to shutter the Davis Besse nuclear plant while the plant’s owner and operator, First Energy, is planning to replace the plant’s steam generators in 2014. Davis Besse has come closer to a catastrophic accident on the shores of the Great Lakes more times than any other reactor in the country. More recently it has been discovered that the shield building that houses the reactor containment structure is riddled with extensive cracking.

The main impetus cited for the closure of San Onofre was the Atomic Safety Licensing Board’s decision to hold full public hearings on the license amendment granted for replacement of the generators at plant. The decision to hold these hearings came after national environmental organization Friends of the Earth intervened to call for this important skipped step in public transparency.

"The steam generator disaster at San Onofre, and public attempt to avoid similar bungling at Davis Besse, stem directly from the NRC’s [Nuclear Regulatory Commission] 24 year campaign to deregulate the industry," said Terry Lodge, attorney for the coalition of intervenors calling for a public hearing on the replacement of steam generators at Davis Besse.

"At San Onofre and Davis Besse the NRC relied on the utility’s self-reporting as to whether there is anything significant about this very major feat of building and installing technologically different pieces of equipment. There has been a fiasco in three out of the last three steam generator replacements. ‘Cross my heart and hope to die' regulation is totally unacceptable when it comes to nuclear energy," Lodge concluded.

Arnie Gundersen, chief engineer at Fairewinds Associates, Inc. served as the expert witness for Friends of the Earth in their San Onofre intervention. He is also the expert witness on behalf of Beyond Nuclear, Citizen’s Environment Alliance of Southwestern Ontario, Don’t Waste Michigan and the Sierra Club intervening on Davis Besse. In the case of Davis Besse, Gunderson has declared that the “data reviewed shows that First Energy should have applied for a license amendment with the requisite public review six years ago when replacement steam generators were originally designed, ordered and purchased.”

Gundersen’s Davis Besse testimony reported, “The last three steam generator replacement projects orchestrated by licensees sought to avoid the NRC’s license amendment process. By avoiding the license amendment processes for Crystal River 3 in Florida and San Onofre 2 and 3 in California, the owners, Progress Energy (Crystal River) and Edison (San Onofre) caused all three units to experience total mechanical failures.”

A cascading failure of steam generator tubes can lead to a loss of coolant accident and reactor meltdown.

The failure of the steam generator replacements came about because they were largely experimental—newly designed systems did not mesh well with older equipment. Gundersen has detailed nine significant differences between the replacement and original steam generators at Davis Besse concluding that “each and every one of these changes is significant individually, and when taken together prove that the replacement contains many experimental parameters.

The coalition contends that First Energy’s shortcut on safety by its circumvention of an NRC license amendment proceeding, risks repeating the same sort of dangerous mistakes made at San Onofre. It was January 2012 when a steam generator tube rupture at San Onofre released radioactivity and led to the discovery of widespread, unexpected tube degradation in replacement steam generators just over a year old. Thankfully, San Onofre will not operate again.

“Once again, First Energy’s indifference to anything but maximum profit dictates the dance,” said Lodge. “What if this new, experimental design doesn’t work out, just as steam generator replacements in the last three reactors have proven to be failures? For First Energy it’s profits first safety last."

The NRC continues to operate like a used car salesman on behalf of the remaining 100 aging and decrepit lemons that threaten millions of Americans living near dangerous nuclear plants in the U.S. Instead of regulating this industry, NRC officials continue to try and paint a rosy picture of this dangerous technology. Just this week in Oak Harbor the NRC held an open house on Davis Besse’s annual performance review.

NRC representatives spoke glowingly of First Energy’s plans to operate 20 years past its life expectancy after its license expires in 2017. When asked by concerned citizens about the risks posed by replacing the steam generators, an NRC representative just tried to brush the question aside by saying “don’t worry, these are the Cadillacs of steam generators.” This begs the question, did the NRC settle for Kia’s at San Onofre and Crystal River?

“The Japanese parliament has concluded that the root cause of the Fukushima Daiichi nuclear catastrophe was not the earthquake and tsunami, but rather the government-regulator-industry collusion that allowed the atomic reactors to be so vulnerable to a natural disaster,” said Kevin Kamps of Beyond Nuclear. “Davis Besse has been the poster child for just such collusion from the very beginning, through the 2002 hole in the reactor head fiasco, and right up to the present.”

Visit EcoWatch’s ENERGY and NUCLEAR pages for more related news on this topic.

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Click here to tell Congress to Expedite Renewable Energy.

Harvey Wasserman

From his California beach house at San Clemente, Richard Nixon once watched three reactors rise at nearby San Onofre. As of today all three are permanently shut. It’s a monumental victory for grassroots activism. It marks an epic transition in how we get our energy.

In the thick of the 1970s Arab oil embargo, Nixon said there’d be 1000 such reactors in the U.S. by the year 2000. As of today, there are 100. Four have shut here this year. Citizen activism has put the “nuclear renaissance” into full retreat.

Just two of 54 reactors now operate in Japan, where Fukushima has joined Chernobyl and Three Mile Island in permanently scarring us all. Germany is shutting its entire fleet and switching to renewables. France, once the poster child for the global reactor industry, is following suit. South Korea has just shut three due to fraudulent safety procedures. Massive demonstrations rage against reactors being built in India. Only the Koreans, Chinese and Russians remain at all serious about pushing ahead with this tragic technology.

Cheap gas has undercut the short-term market for expensive electricity generated by obsolete coal and nuke burners. But the vision of Solartopia—a totally green-powered Earth—is now our tangible long-term reality. With falling prices and soaring efficiency, every moving electron our species consumes will be generated by a solar panel, wind turbine, bio-fueled or geothermal generator, wave machine and their green siblings.

As of early this year, Southern California Edison's path to a re-start at San Onofre seemed as clear as any to be expected by a traditional atomic tyrannosaur. But with help from Sen. Boxer (D-CA) and Senator-to-be Markey (D-MA), a powerful citizen uprising stopped it dead.

So did the terrifying incompetence and greed that has defined the nuclear industry from the days of Nixon and before. San Onofre Unit One shut in the 1990s due largely to steam generator problems. In the early 2000s, Units Two & Three needed new steam generators of their own. In the usual grasp for more profits, Edison chose untested, unlicensed new designs. But they failed. And the whole world was watching. In the wake of Fukushima, two more leaky tsunami-zone reactors surrounded by earthquake faults were massively unwelcome.

So a well-organized non-violent core of local, state and national activists and organizations rose up to stop the madness. At Vermont Yankee, Indian Point, Seabrook, Davis-Besse and dozens of other reactors around the U.S. and world, parallel opposition is escalating.

Make no mistake—this double victory at San Onofre is a falling domino. Had the public not fought back, those reactors would have been “fixed” at public expense. Today, they are dead. Worldwide, there are some 400 to go. Each of them—including the 100 remaining in the U.S.—could do apocalyptic damage. We still have our work cut out for us.

But a huge double-step has been taken up the road to Solartopia. There will be no Fukushimas at San Onofre. A green-powered Earth is that much closer. And we have yet another proof that citizen action makes all the difference in our world.

Visit EcoWatch’s ENERGY and NUCLEAR pages for more related news on this topic.

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Click here to tell Congress to Expedite Renewable Energy.

Friends of the Earth

Despite the opposition of its chair, the Nuclear Regulatory Commission (NRC) approved the first new construction of a new design of nuclear reactor on Feb. 9 since the Three Mile Island nuclear disaster in 1979. Friends of the Earth stated on Feb. 14 that the decision to give the green light to building two nuclear reactors at Vogtle, Georgia raises fundamental safety and economic concerns.

The NRC ruling, the first such approval in the U.S. in more than 30 years, will saddle Georgians with higher electricity rates and leave American taxpayers on the hook for billions of dollars—all for a dangerous energy source with a long history of construction delays, cost overruns and safety lapses.

“The license may be granted, but these reactors are far from a done deal. As in the past, expect delays and cost overruns, and rest assured that we will challenge the validity of this license in court,” said Damon Moglen, director of Friends of the Earth’s climate and energy project.

In a shocking dissent by NRC Chairman Gregory B. Jazcko against the four other commissioners who approved the decision, Jazcko said that the approved designs did not take the lessons of Fukushima into account. “I cannot support issuing this license as if Fukushima never happened,” Jazcko told his colleagues.

The approval grants a joint construction and operating license to Southern Energy for two new reactors at its existing plant south of Augusta, Ga. It is the first-ever such combined nuclear construction and operation license. The last construction license issued was in 1978 for a reactor at the Shearon Harris site in North Carolina. That reactor took nine years to complete, and three other units planned for the site were cancelled.

Southern Energy claims that the two Vogtle units will be completed within five years at a cost of $14 billion, but the history of such projects indicates that rosy projections of nuclear construction timelines and costs should not be taken at face value. For example, two French-designed nuclear reactors under construction in western Europe are already years behind schedule and billions of dollars over budget. At the Vogtle site, extensive pre-construction has already led to 12 sizeable construction “change order” requests, while long-running site-specific design and fabrication problems have confounded Westinghouse and its lead contractor for more than two years. At the same time, clean renewable energy has been booming in the U.S., growing 38 percent between 2007 and 2010 according to data from the U.S. Energy Information Administration.

Major safety issues with the design of the planned Vogtle reactors remain unresolved, with the NRC failing to address key vulnerabilities. The safety of the reactor design has been challenged over many years. An engineering study commissioned by Friends of the Earth and other groups opposed to the project identified seven key safety areas, including failure risks for the reactor containment, cooling functions and spent fuel pool integrity. The Fukushima-Daiichi accident highlights the dangers of these oversights as it continues 11 months after it began, with leaks of highly radioactive water and rising temperatures in the molten fuel occurring in recent days.

“This is a valentine sent by the Obama administration to the nuclear industry, but it translates into a nightmare for the public, which gets handed increased nuclear hazards and inflated costs for a dangerous, outdated energy source,” said Moglen.

The Vogtle project is entirely dependent on an $8.3 billion pre-emptive bailout promise from the federal government, which comes from the same loan guarantee program as Solyndra’s much ballyhooed $535 million. Vogtle’s loan guarantee is well over 10 times as large as that of the solar company.

“Contrast the enormous risks in economic and public health terms from nuclear projects with the reality of renewable energy and energy efficiency, which are already cost-competitive with nuclear and continue to fall in price. Furthermore, renewable energy promotes rather than endangers public health by cutting global warming pollution, not dirtying the air and, of course, not producing dangerous radioactive waste,” said Moglen.

For more information, click here.

Union of Concerned Scientists

The Blue Ribbon Commission on America’s Nuclear Future, created by the Obama administration after it abandoned plans to establish a nuclear waste repository in Nevada, is expected to release its final report Jan. 26 on what to do with commercial “high level” nuclear waste—used, or “spent,” fuel—from nuclear reactors.

One of the many contentious issues the commission addressed is reprocessing, a series of chemical operations that separates plutonium and uranium from other nuclear waste in spent fuel to be used again in nuclear reactors. The separated plutonium also could be used to make nuclear weapons.

The Union of Concerned Scientists (UCS) has long opposed reprocessing spent fuel. Not only would reprocessing fail to reduce the volume of nuclear waste requiring permanent disposal, it would increase the risk of nuclear terrorism and proliferation, divert resources from a permanent disposal program, and cost significantly more than disposing of spent fuel directly.

UCS has called on the blue ribbon commission to retain language from its July interim report concluding that “no currently available or reasonably foreseeable” technologies for reprocessing spent fuel have the potential to “fundamentally alter the waste management challenge this nation confronts over at least the next several decades, if not longer.” But the science group also has asked the commission to drop the draft report’s recommendation to continue taxpayer-funded research and development on reprocessing and plutonium-based reactor fuels.

“Instead of throwing more good money after bad by continuing to fund failed reprocessing projects, the government should encourage research and development to improve the current fuel cycle’s efficiency, rebuff industry requests to weaken plutonium storage and transport security standards, and begin a technically sound, politically fair process to site a permanent geologic repository,” said Edwin Lyman, a UCS senior scientist. “The tens of billions of dollars that electric utility ratepayers pay into the Nuclear Waste Fund should be spent only on the fund’s intended purpose—developing a geologic repository for direct disposal of spent fuel.”

The commission also is expected to recommend that the government establish a number of centralized interim high-level radioactive waste sites until a permanent underground geologic repository is built, a major objective of the National Association of Regulatory Utility Commissioners and two industry trade groups, the Nuclear Energy Institute and the Nuclear Waste Strategy Coalition. UCS maintains that until a permanent geologic repository is built, spent nuclear fuel rods should remain on site at operating nuclear plants in hardened dry casks.

“It is not apparent that siting a consolidated interim storage facility would be any easier politically to achieve than siting a [permanent] geologic repository,” Lyman said in written comments to blue ribbon commission, “and efforts to site an interim storage facility could distract from the far more important goal of finding a repository site.”

“Spent fuel can be managed safely at reactor sites for decades as long as the Nuclear Regulatory Commission (NRC) requires plant owners to minimize safety and security risks,” said Lyman. “They can do that by moving spent fuel from vulnerable, overcrowded wet pools to safer dry storage casks, and enhancing security measures to protect the dry casks from terrorist attacks.”

In its recommendations to the NRC in light of the Fukushima accident last March, UCS called on the agency to require plant owners to transfer used rods from spent fuel pools to dry casks as soon as the rods are cool enough to move. The NRC is currently conducting a study of this proposal. UCS also has called for the NRC to release more information to the public about classified studies that it has conducted since the 9/11 attacks on the dangers posed by densely packed spent fuel pools.

 For more information, click here.

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The Union of Concerned Scientists is the leading U.S. science-based nonprofit organization working for a healthy environment and a safer world. Founded in 1969, UCS is headquartered in Cambridge, Massachusetts, and also has offices in Berkeley, Chicago and Washington, D.C.

Vermont Law School

1. With Republicans Bashing the U.S. Environmental Protection Agency (EPA), 2012 Could Be a Turning Point for Environmental Regulation

Summary—House Republicans and Republican presidential candidates have launched unprecedented attacks on the EPA, saying environmental regulations are hurting the economy.

Among the other things causing former President Richard Nixon to turn over in his grave may be Republican attacks on the EPA, which the former president and Congress established in a bipartisan response to public demand for cleaner water, air and land.

Since Republicans regained control of the House of Representatives in the 2010 midterm elections, they have introduced an unprecedented number of measures designed to weaken longstanding environmental protections and block the EPA from putting forth new regulations.

Rep. Henry Waxman, (D-CA), an environmental advocate, has called this “the most anti-environmental Congress in history.” The perceived assault has prompted the House Committee on Energy and Commerce, chaired by Waxman, to develop an online database tracking the number and scope of anti-environment bills proposed on the House floor. According to the searchable database, as of September 2011 there have been 170 anti-environment votes under the Republican majority in the 112th Congress. The database breaks down this number by category, finding the vast majority of anti-environment votes targeting the EPA (91 votes). Some of these seek to block actions that prevent pollution (71 votes), and others to dismantle the Clean Air Act specifically (61 votes). Fewer measures have been directed at weakening regulations of the Department of Energy and Department of the Interior, blocking action on climate change and defunding clean energy initiatives.

Included among the more broad-based attacks on the regulatory power of the EPA is the Transparency in Regulatory Analysis of Impacts on the Nation (TRAIN) Act. Passed by the House in September, the TRAIN Act “would create a special committee to oversee the EPA’s rules and regulations, and require the agency to consider economic impacts on polluters when it sets standards concerning how much air pollution is too much.” This would mark a dramatic shift from the current approach under the Clean Air Act, in which the EPA weighs only scientific and health considerations.

Similarly, the Regulatory Accountability Act, also introduced in September, would require a hearing for each new regulation in which the primary goal would be to find lower cost alternatives to the agency’s proposals, ostensibly forcing cost to become the most important consideration in the rulemaking process. Finally, the Regulation from the Executive in Need of Scrutiny (REINS) Act, taken up by the House in November, would require congressional approval of all executive branch regulations if they are deemed major rules.

Under this proposal, major rules are those that will “have an annual effect of $100 million or more on industry, lead to major cost increases, or have adverse effects on employment.” The practical effect of requiring a congressional vote for each major regulation would be to derail the government’s capacity to adopt any significant regulations. There have also been a variety of proposals targeting more narrow categories of environmental protection, including bills that would postpone EPA regulations on cement factories, boilers and incinerators.

In addition to the database created by the House committee, the Senate Committee on Environment and Public Works, chaired by Sen. Barbara Boxer (D-CA), responded by issuing a report that lays out the bipartisan beginnings of the EPA and the economic and health benefits associated with policies pursued under the Clean Air Act and Clean Water Act. Using Commerce Department data to highlight the revenue and jobs created through environmental protection, Sen. Boxer sought to “explode the myth that a clean environment is antithetical to a strong economy” with this report.

The Senate has a Democratic majority and requires 60 votes to achieve cloture, overcome a filibuster, and for practical purposes get any legislation to the president’s desk. This has proven a barrier to many of the bills put forth by House Republicans. There seems to be no end in sight for the assault on the EPA as the 2012 election cycle moves into full swing. Each of the Republican presidential candidates has put forth plans to minimize the EPA’s reach, recanted support for more progressive policies, or associated environmental regulation with “killing jobs” in the weakened economy.

Newt Gingrich and Herman Cain favor abolishment of the EPA in favor of an alternative agency that would be more sympathetic to industry interests, while Michele Bachmann and Rick Perry have latched onto the idea that the EPA is responsible for destroying jobs across the country. Ron Paul broadly advocates resolving environmental issues at the state rather than federal level, while Mitt Romney and Jon Huntsman, although acknowledging the existence of climate change, oppose measures designed to limit greenhouse gas emissions at the root of the problem.

Republicans currently control only the House, but environmental advocates fear a Democratic Party that might be too willing to compromise and anti-environment measures being attached to “must pass” bills in an election year. It remains to be seen whether shifts in the political landscape in the coming year will serve to stamp out or further ignite the anti-environment sentiment embraced by House Republicans in 2011.

Whatever happens in the short term, bashing the EPA is bad for public health and the economy in the long run. Richard Nixon and Congress knew it a long time ago and the same holds true today.

2. EPA and White House Clash Over Ozone Standards

Summary—President Barack Obama’s rejection of a controversial new air pollution rule pleased industry but angered environmental and public health advocates heading into the presidential election season.

The industry buzzwords “regulatory costs” and “economic burdens” have special appeal in the current economic climate. But serious problems from ozone exposure also impose significant costs and burdens on society.

Tension between President Obama and the EPA over the Clean Air Act reached a crisis Sept. 2, 2011, when the president rejected EPA Administrator Lisa Jackson’s proposal to lower the eight-hour National Ambient Air Quality Standards for ozone from 75 parts per billion to 70 parts per billion. While praising the EPA’s actions under Jackson, Obama emphasized the “importance of reducing regulatory burdens and regulatory uncertainty” in a time of economic recovery. Although hailed by industry, the president’s statement received heavy criticism from environmental and public health groups.

Ozone forms when sunlight interacts with other pollutants in the air, namely volatile organic compounds and nitrogen oxides. Increased levels of ozone near the ground can trigger respiratory ailments and worsen asthma, bronchitis and emphysema. Children and the elderly are particularly at risk. According to the EPA, ozone exposure increases the risk of premature death.

Under the Clean Air Act, the EPA has established air quality standards for six criteria pollutants—ozone, lead, carbon monoxide, nitrogen dioxide, sulfur dioxide and particulate matter. These standards are intended to protect the public health and welfare. In contrast to other statutes aimed at curbing pollution, the Clean Air Act does not give authority to the EPA to directly regulate sources of criteria pollutants. Instead, the EPA sets nationwide standards and requires the states to meet these standards through state implementation plans, which directly regulate individual sources such as factories.

Every five years, the EPA’s Clean Air Scientific Advisory Committee has the obligation of reviewing the scientific literature and recommending to the EPA administrator revisions of the air pollution standards. Over time, standards have been lowered, in part due to a better understanding of how ozone harms human health. The most recent revision to the ozone standard came during the George W. Bush administration. Although the EPA’s scientific advisers recommended a level of 60-70 parts per billion, the EPA proposed a less stringent standard of 75 parts per billion in 2008. This decision led to litigation by groups arguing it was either too stringent or not stringent enough.

After President Obama appointed Jackson as EPA administrator, the litigation was stayed after she pledged to review the standards by 2010—three years before the end of the required five-year review period. In January 2010, the EPA agreed the 2008 standard was not stringent enough and published a proposed rule that would have lowered the 75 parts per billion standard to meet the 60-70 parts per billion range recommended by the committee. A complete draft of the final rule was prepared in June 2011 and submitted to the White House.

Cass Sunstein, administrator of the Office of Information and Regulatory Affairs, part of the Office of Management and Budget, asserted the new rule would not “promote predictability and reduce uncertainty.” Further, he said any new considerations “must be based on the best available science” and that the EPA should wait for a new report from the committee rather than implement a new rule based on a reinterpretation of old data.

The action of the White House has drawn criticism on several fronts. Some see it as a concession to conservative opponents of the EPA in advance of the upcoming election. Others note the conflict of economic interests and environmental protection. Indeed, if the EPA were to set the standards based on the economic concerns expressed by the President, this may constitute a violation of the Clean Air Act. In the 2001 decision Whitman v. American Trucking Associations, Inc., the U.S. Supreme Court expressly held that the EPA may not consider costs in setting air quality standards. By contrast, the states may consider costs in determining how to meet the standards. By not going forward with the final rule based on the White House’s concern for the effect on the economy, Administrator Jackson may be in violation of her duty to set standards without regard to costs. On Oct. 11, 2011, the American Lung Association and other organizations filed a lawsuit challenging the EPA’s action. It is anticipated that the challenge will include this argument.

As a practical matter, a case can be made for waiting until 2013 for a more thorough review of the ozone standard. Implementing new air quality standards is complex. States may be hesitant to implement new standards because they have to be reviewed again by 2013. With another review deadline just two years away, some have expressed concern over committing valuable resources to meeting new standards. The prudent course might be to use the entire five-year period for the review.

Going forward, the EPA intends to continue implementing the current standard of 75 parts per billion. Implementation involves determining which areas of the country are meeting the standard. This is necessary for determining what steps must be taken to bring all areas into attainment. The EPA now expects area designations to be done by mid-2012. A proposed rule is due in October 2013 with the final rule due by July 2014. Both deadlines are safely after the presidential election.

Prudence and politics aside, this is not just a policy debate or an election talking point. Delays in adopting tougher ozone standards put Americans at continued risk for heart and lung disease. While CEOs look to the next quarter and politicians plan for the next election year, a delay in implementing tougher ozone standards could trigger health problems that last a lifetime.

3. Powder River Basin’s Mother Lode of Coal at the Epicenter of Energy Development

Summary—The federal leasing of the Powder River Basin’s massive coal deposits opens the door to big profits, plentiful electricity and environmental degradation in a place both remote and central to the world’s energy future.

The Powder River Basin, a majestic landscape that also harbors America’s largest coal reserves, is nestled in remote eastern Montana and Wyoming. The basin’s pine-studded ridges, sandstone buttes and rivers are home to ranches, farms and wildlife that evoke the Old West.

But that panorama, and any hope of stabilizing our atmosphere’s carbon balance, may change dramatically because of the U.S. Department of the Interior's decision on March 23, 2011, to allow mining of the basin’s shallow seams of subbituminous coal on federal lands. Coal companies, railroads and politicians all have their sights on the fossil fuel, which is low in sulfur and tantalizingly easy to extract. So, too, does China.

The basin’s reserves are voluminous, containing more energy than the oil in the Middle East, begging the question—Should the U.S. become the “Saudi Arabia of clean coal?” Much depends on the answer to that question—the environmental integrity of the West, energy security and perhaps most important, whether we have any serious hope of avoiding climatic tipping points.

Spanning Montana and Wyoming, the Powder River Basin is already the largest coal producer in the U.S., supplying more than 40 percent of the nation’s coal and 14 percent of America’s carbon dioxide emissions. Demand is high for the low sulfur coal because it offers utilities easier compliance with the Clean Air Act.

While some tout this massive coal resource for U.S. energy independence, China eyes the Powder River Basin as an “energy colony,” seeking to import basin coal at a staggering rate. According to the U.S. Geological Survey, the Powder River Basin boasts 50 billion tons of recoverable coal. Sierra Club writer Peter Frick-Wright says, “It would take the United States almost a century to burn all that coal—but China could eat through it in 25 years or less.” Peabody Coal CEO Gregory Boyce spoke directly on the issue—“The real goal here is to see if we can’t get large volumes of basin coal . . . to the Pacific Rim. We know we can sell it in China and Korea.” Arch Coal, the nation’s second largest coal producer, has already purchased West Coast export terminals and, according to CEO Steven Leer, plans to “service growing coal demand in Asia, the world’s largest and fastest-growing coal market.”

The fate of much of this coal lies in the hands of the federal government. The Bureau of Land Management (BLM) administers 14 million acres of public surface lands and mineral estates on private lands in the Powder River Basin. In 1976, Congress passed the Federal Coal Leasing Amendment Act requiring the BLM to ensure the maximum economic recovery of federal coal resources.

In March, Secretary of the Interior Ken Salazar announced the BLM would hold four competitive coal lease sales on federal lands in the Powder River Basin in Wyoming. Environmental groups said the Interior Department ignored the impact of coal mining on climate change, air and water quality, and wildlife habitat. Estimated revenue from these and future sales, of which BLM plans to hold dozens over the next three years, ranges from $13.4 billion to $21.3 billion. Wyoming’s leases total as much as 2.3 billion tons of coal, while Montana leased more than 500 million tons of coal on state lands at Otter Creek. Otter Creek coal would be hauled by the controversial—and still unconstructed—Tongue River Railroad, slicing through the heart of family ranches throughout the West.

This rush for basin coal on federal lands is worrisome to many, and courts often provide the only recourse for those seeking to challenge BLM’s new leases. Ranchers and environmentalists have fought against federal leasing since the 1976 U.S. Supreme Court case Kleppe v. Sierra Club. The Court found no coordinated government plan to develop the Northern Great Plains but required comprehensive studies when such plans crystallized. The Northern Plains Resource Council, a local coalition of ranchers and conservationists, has mounted legal challenges to both the Otter Creek and the Tongue River Railroad projects. Communities in Washington state are challenging the export terminals as small towns along the rail route fear a massive increase in rail traffic. One study predicts giant coal unit trains rumbling across Montana and the Pacific Northwest every 20 to 30 minutes.

While federal leasing provides governmental revenue, it opens the door to significant environmental degradation and portends another “boom and bust” cycle. Environmental reviews are often inadequate; for decades, courts have stricken federal energy leasing decisions. Further staining the federal leasing program is the fact that the government still does not classify the Powder River Basin as a “coal producing region” even though it produces far more coal than any other region. According to Frick-Wright, “if [classified], new mines would receive more environmental scrutiny and competitive bidding between mining companies would be required.”

Ultimately, the Powder River Basin’s fate lies beyond the courts, where challenges will likely stall and may not thwart the growing global demand for coal. Decisions made by the Obama administration and state officials about whether to approve coal leases in the basin will affect the future of this remote and stunning environment. The implications on climate change—a topic no government official has seriously broached—are mind-boggling. Equally startling is the prospect of tearing up a precious American landscape to stoke China’s economic juggernaut. As with Keystone XL and new Clean Air Act regulations, the Obama administration has the opportunity to show true leadership at this pivotal crossroads.

4. Activists Claim Victory, Temporarily, on Disputed Keystone XL Pipeline

Summary—The State Department has postponed a decision on the Keystone XL pipeline, a controversial proposal to carry tar sands oil across the U.S. heartland. While opponents of the project view this as a major victory, the fate of the pipeline remains unclear.

Just south of the Arctic tundra, the boreal forest encircles the globe in an evergreen belt that is largely free of roads and other human development. Home to countless plant and animal species and indigenous peoples, Canada’s boreal forest is a natural and cultural treasure, but it also has one of the largest oil reserves in the world, second only to the deserts of Saudi Arabia.

These opposing concerns—preservation versus utilization of natural resources—underlie the controversy over the proposed Keystone XL oil pipeline. Oil companies have begun developing these tar sands fields, but Canada lacks oil refineries to refine a high capacity of this oil. To increase production, Canadian pipeline company TransCanada has proposed building a pipeline to bring raw oil more than 1,700 miles from Alberta to the U.S. Gulf Coast. Environmentalists see the pipeline, called Keystone XL, as a major threat to environmental and human health.

First, oil from tar sands is particularly dirty because it is difficult to extract. Tar sands are a combination of clay, sand and a heavy oil called bitumen. The bitumen can be extracted by surface mining or by in situ production. Using the surface mining technique, companies first clear-cut the forest and dig open-pit mines, resulting in wholesale habitat destruction. The tar sands are then trucked away to processing facilities where they are super-heated to separate the bitumen from the clay and the sand. Using the in situ method, companies insert pipes into the ground and fill the pipes with super-heated steam. This heats the tar sands, liquefying the bitumen and allowing it to be pumped to the surface. Both processes require large amounts of water and energy and leave behind toxic byproducts. Additionally, since heat is used in both methods to separate the bitumen, the process results in 5 to 30 percent more greenhouse gases emitted than by extracting conventional oil.

Extraction has already left large scars on Canadian ecosystems. Both processes have created miles of toxic tailings ponds, some large enough to see from outer space. Any increase in production, fueled by the pipeline, would exacerbate these problems.

If the pipeline is approved, it would threaten important ecosystems in the U.S. as well. It would bisect the country, crossing Montana, South Dakota, Nebraska, Oklahoma and Texas. Although a spill anywhere along the route would be devastating, it could be catastrophic in the environmentally sensitive Sand Hills region. The region includes the Ogallala Aquifer, a critical source of drinking and irrigation water for the Great Plains.

Perhaps most important, though, the pipeline would commit the U.S. even more to fossil fuels at a time when the nation needs to invest in clean energy. It would be a major step backwards in the fight against climate change, linking this huge and unconventional source of oil (and thus carbon dioxide emissions) to America’s seemingly unquenchable thirst for gasoline. When asked how heavily tapping tar sands oil would affect the climate, James Hansen, one of the nation’s top climate researchers, said it would essentially mean “game over for the climate.”

Since the proposed pipeline crosses an international border, the U.S. State Department has been charged with making the decision as to whether to grant a permit to TransCanada. In August 2011, the department released its final environmental impact statement on the pipeline; bewilderingly, the department found that the proposed pipeline would have “no significant impact” on land and water resources along its route. Activists see bias in this decision, charging that TransCanada has a cozy relationship with the State Department. But in October, Secretary of State Hillary Clinton said the administration was “inclined” to give TransCanada a permit to construct the pipeline.

However, after several large protests and increased political pressure from several Great Plains states, the Obama administration announced Nov. 10 that it would delay a decision on the pipeline until after the 2012 election. The State Department said it needed until early 2013 to study the project’s environmental impacts and alternate routes to avoid the Sand Hills region. In particular, the department will more thoroughly review the potential impacts to climate change and the Ogallala Aquifer. Meanwhile, the State Department’s Inspector General is investigating allegations of a conflict of interest and improper political influence in the project’s environmental impact statement.

The Obama administration’s decision was a major victory for environmentalists, but the fight isn’t over. Many believe the pipeline has been fatally wounded, a view strengthened by signs that Obama’s decision will further fuel opposition in Canada and that the financial arrangements supporting the pipeline could unravel. With continued pressure and action, environmentalists can now hope for an eventual defeat of the Keystone XL pipeline.

5. EPA, Transportation Department Step Up Sector-by-Sector Regulation of Greenhouse Gas Emissions

Summary—2012 will be a key time for U.S. climate change policy as the Obama administration appears ready to tackle one industry sector at a time. Toughened fuel economy standards for vehicles are critical to reducing oil consumption, greenhouse gases and consumer expenses, but much more work remains to be done across a range of industries.

Congress’ momentum to address the climate crisis has died, shifting the debate over U.S. climate policy to the regulatory arena. President Obama has had a poor track record on environmental decisions in 2011, most notably his egregious retreat from stricter national standards on ozone, but 2012 presents a new chance for the White House to support the EPA’s efforts to develop tougher rules for major polluting industries.

In its landmark decision in Massachusetts v. EPA in 2007, the U.S. Supreme Court concluded that greenhouse gases fall within the Clean Air Act’s broad definition of a “pollutant.” That opened the door for regulatory action by the EPA. In December 2009, the agency took its first major step through that door by issuing a long-awaited finding that six greenhouse gases—including carbon dioxide, methane, nitrous oxide and fluorinated gases—endanger public health and welfare. Although the endangerment finding was based on 20 years of research by hundreds of eminent scientists, industries are trying to overturn the finding through litigation and legislation. Despite these challenges, the EPA has begun to move forward on a sector-by-sector basis.

To date, the EPA has focused primarily on the transportation sector, which accounts for roughly 25 percent of U.S. greenhouse gas emissions. The agency’s first action to establish controls on greenhouse gas emissions was its standards for passenger cars, light trucks and SUVs in May 2010 as part of a joint rulemaking with the U.S. Department of Transportation. This rulemaking garnered broad support from automakers because it included many flexibility provisions, and because the EPA persuaded a group of states led by California to postpone their plans to implement more stringent standards. The EPA/Transportation Department rule requires vehicles produced in model years 2012-16 to achieve a fuel efficiency of 35.5 miles per gallon. Over the life of the vehicles, this translates into a reduction of 960 million metric tons of greenhouse gas emissions, a savings of 1.8 billion barrels of oil, and $143 billion in benefits from fuel savings alone.

In August 2011, the EPA and U.S. Department of Transportation finalized a second rule that will control greenhouse gas emissions from semi-trucks, large pickup trucks, vans, and buses produced in model years 2014-18. Over the life of these vehicles, the standards are expected to reduce carbon dioxide emissions by 270 million metric tons, save 530 million barrels of oil, and provide a net fuel savings of $42 billion for vehicle owners. A second phase of regulations for these medium and heavy-duty vehicles is planned for model years beyond 2018, and we may see some progress on this rulemaking during 2012.

In November 2011, the EPA and U.S. Department of Transportation proposed a third round of regulations extending and strengthening the rules for passenger cars, light trucks and SUVs. These standards would apply to vehicles produced in model years 2017-25 and require the industry to achieve a fleet-wide average fuel economy of 54.5 miles per gallon. The EPA has estimated that over the life of the vehicles, this rule would provide consumers with a net savings of $3,000 to $4,400 per vehicle, save approximately four billion barrels of oil, reduce greenhouse gas emissions by two billion metric tons, and generate $311 billion to $421 billion in net benefits for society. The EPA’s finalization of this rule will be important to watch in 2012.

The agency is also under pressure from citizen groups to expand the scope of its transportation-related greenhouse gas rules to include marine vessels, aircraft, and other nonroad engines, such as locomotives, construction equipment, farm machinery, mining equipment, and off-road vehicles. Keep an eye out for new EPA proposals relating to these types of equipment in the future.

In contrast to its rapid progress with motor vehicles, the EPA has appeared more reluctant to control greenhouse gas emissions from industrial sources. The Clean Air Act authorizes the EPA to establish new source performance standards for industrial facilities on a sector-by-sector basis. Since the EPA has already made an endangerment finding for greenhouse gas pollution, it may control these emissions from an industrial category after finding that it “contributes significantly” to such pollution. The EPA appears poised to issue performance standards regulations very soon for a few key categories.

In August 2011, EPA published proposed revisions to the performance standards rules for multiple components of the oil and gas industry. Most notably, this rule includes the first federal air pollution standards for the hydraulic fracturing (“fracking”) method of extraction, which is becoming more widely used. While the proposed rule targets conventional pollutants (precursors to ozone) and toxic pollutants (such as the carcinogen benzene), the EPA is touting the rule’s collateral benefits in controlling the potent greenhouse gas methane. The agency is under a consent decree deadline to issue a final rule by Feb. 28, 2012.

Additionally, in response to litigation brought by citizen groups and states, the EPA has entered into two settlement agreements under which it has committed to issue performance standards controlling greenhouse gas emissions from power plants and petroleum refineries. The proposed rule for power plants was due by July 26, 2011, and the final rule is due by May 26, 2012. The EPA missed its deadline for the proposed rule, but observers expect it to be issued soon. The proposed rule for petroleum refineries was due by Dec. 11, 2011, and the final rule is due by Nov. 10, 2012.

Another court order has compelled the EPA to review its outdated performance standard for nitric acid plants, which emit large quantities of the powerful greenhouse gas nitrous oxide. Strong data from citizen groups indicates that multiple technologies for controlling nitrous oxide are available and effective at a reasonable cost, but the EPA has declined to include a new standard for nitrous oxide in its proposed revision to the nitric acid plant rule issued on October 14, 2011. The final rule is due by March 30, 2012.

The EPA is also under pressure from citizen groups to begin regulating greenhouse gas emissions from cement plants, landfills, coal mines and factory farms. As the 2012 election approaches, however, other voices are calling for a reduction in government spending and a relaxation of regulatory controls. The EPA has been the target of numerous legislative efforts to cut its funding and limit its regulatory authority, particularly with respect to greenhouse gas regulations. The future looks uncertain, but with so much at stake and with so many critical decisions ahead, 2012 will certainly affect the outlook of U.S. climate change policy.

6. Federal Appeals Court Settles Roadless Rule… For Now

Summary—A federal appeals court ruling limits new road building in wild areas, but the debate won’t be resolved until Congress acts.

While the debate over the fate of millions of “roadless” acres of National Forests is unresolved, the U.S. Court of Appeals for the 10th Circuit recently solidified interim protections for those lands in the Rocky Mountains, giving Congress yet another opportunity to protect these pristine areas for posterity.

These blocks of public lands are a luminescent landscape of peaks, forests, lakes and streams where few roads, logging, or commercial activities exist. They are ripe for inclusion in our nation’s Wilderness preservation system. The appeals court’s decision settled a split between the Ninth and 10th Circuits that had Western states following conflicting mandates, but it doesn’t settle the debate about preservation and human uses of public lands. The unanimous ruling by a three-judge panel of the appeals court may be taken to the full 10th Circuit Court, but chances are slim the case would be heard by the U.S. Supreme Court.

These lands have long been in limbo, litigated and politicized but never designated or rejected by Congress as Wilderness under the Wilderness Act of 1964. The stakes in the outcome of this debate are huge—these lands span more than 58 million acres from Arkansas to Alaska. It is a century-long struggle between those who want to use public lands for commodity extraction and those who want to preserve them. The competing visions of Gifford Pinchot and Aldo Leopold still stalk the debate. Western politicians still use the issue as a whipping boy, stirring anti-environmentalist fervor over job losses “caused” by preservation, although in reality protecting federal lands often benefits local economies.

Legal skirmishing over roadless lands began in the 1970s when the U.S. Forest Service, bent on increasing logging on federal lands and encouraged by the pro-logging Reagan administration, sought to release these lands from future wilderness protection. Those efforts were thwarted by the agency’s failure to comply with environmental laws. The Clinton administration, seeking to end the litigation and bring finality to the debate, enacted a rule banning most new roads and commercial logging in the final days of his administration. The Roadless Area Conservation Rule protected all remaining roadless areas from development that threatens the wilderness qualities of those National Forest lands. But the Bush administration created a process for state governments, many sympathetic to loggers, miners and off-road vehicle users, to petition the federal government to decide the fate of these lands. Bush’s rule also lifted Clinton’s ban on timber harvest and road building, leaving conservationists to either slog through the petition process or litigate to stop new projects.

In 2001, Republican-leaning Western states, off-road vehicle interest groups, and some Native American tribes filed multiple lawsuits challenging the roadless rule. In Koontenai Tribe of Idaho v. Veneman, the Ninth Circuit upheld the roadless rule. That kicked off a decade of lawsuits and schizophrenic state and federal court rulings that had some Western states following the Clinton roadless rule after Bush’s State Petitions Rule was declared illegal in the Ninth Circuit, other Western states adhering to Bush’s State Petitions rule, and the Forest Service toiling in limbo.

Now that the 10th Circuit’s Wyoming v. U.S. Department of Agriculture (USDA) decision avoids a circuit split by upholding the Clinton Rule, the Forest Service has uniform authority to protect roadless lands. The agency has mostly ended its decades-long logging binge and seeks to manage public lands for ecosystem and recreation values. But the fate of these lands remains in legal limbo, underscoring the larger societal debate over preservation versus utilization. President Obama, charting a centrist course, has not resolved the debate. His administration has encouraged states to use the now-defunct Bush State Petitions Rule but also issued an administrative directive akin to the Clinton roadless rule. Some politicians are trying to solve the roadless issue in their home states, but they do so at great political risk. The 10th Circuit’s decision is an important milestone in the roadless rule debate, but until Congress acts, the fate of these public lands remains unresolved.

7. Fukushima Fallout Affects Global Energy Security, Cost, Safety, Grid Reliability

Summary—The world’s response to the Fukushima disaster puts the future of a low-carbon energy future in doubt, but nuclear power remains on the table despite safety and cost concerns.

The nuclear industry’s potentially bright future dimmed considerably on March 11, 2011, when a natural disaster disabled the Fukushima Daiichi Nuclear Power Station in Japan and highlighted nuclear power’s role as the world’s most polarizing energy source.

The initial shock of a magnitude 9.0 earthquake knocked out all offsite electric power sources to the Fukushima plant, forcing it to run on emergency diesel generators. Forty-one minutes later, a tsunami struck the crippled plant, overwhelming emergency generators and destroying the water intake pipe used to cool the reactor. The loss of coolant resulted in serious damage to four reactor cores, explosions and a massive release of radioactive material.

The Fukushima disaster received the highest possible rating of seven on the International Nuclear and Radiological Event Scale. Japanese officials estimated it may be more than 20 years before residents can safely return to the area. Studies confirm substantial releases of long-lived radioactive materials such as cesium-137, a known carcinogen, into the atmosphere and Pacific Ocean. The long-term ecological and social impacts remain unclear.

Political responses to Fukushima are changing the future of nuclear power globally. German Chancellor Angela Merkel, once a proponent of nuclear power, announced a phase-out of that nation’s 17 nuclear plants by 2022. No other nation has gone so far.

President Obama requested safety reviews for existing nuclear facilities but made clear that nuclear power remains in play. Most European Union countries are also focusing on safety reviews and researching new technology. Chinese officials promise rigorous safety standards but still intend to add 40 gigawatts of nuclear power by 2020, enough to power 40 Vermonts.

Fukushima demonstrates that “stable shut-down mode” is impossible if a plant loses grid power for more than a few hours. Without power, the circulation of cooling water at high pressure through distribution pipes is impossible. It doesn’t take an earthquake to knock out grid power. More common outages can have the same catastrophic effects, including billions of dollars in damage to the site itself, let alone radiation damage far beyond.

Still, nuclear power plants are designed to provide continuously reliable electricity and generate no direct greenhouse gas emissions. The only other sources that can provide constant, or base-load, power are hydropower, natural gas and coal. Renewables like solar and wind are a must in a carbon-constrained future but for now are intermittent sources that require backup power. Therefore, a low-carbon, base-load source is an essential element in any future clean energy portfolio.

Energy analysts project that Germany’s nuclear phase-out will add up to 40 million metric tons of carbon dioxide emissions annually because utilities will be forced to rely on fossil fuel sources during the transition to renewables. If other countries remove nuclear power from the picture, the multiplier effect makes addressing climate change even more difficult. Nuclear power provides nearly 70 percent of electricity in France, 30 percent in Japan (pre-tsunami) and about 20 percent in Germany and the U.S., where it is the largest source of low-carbon electricity. A rapid nuclear phase-out will have major energy security and grid reliability repercussions, including likely increased dependence on foreign fossil fuels. Japan is scrambling to increase liquid natural gas imports to meet demand, and Russia stands to benefit immensely as the primary source of natural gas to Europe.

Neither the Deepwater Horizon oil spill in April 2010 nor the Fukushima disaster a year later have led to a serious reconsideration of regulatory risks and national energy priorities in the U.S. Still, flatly rejecting nuclear power leaves the world less able to cope with climate change. Instead, we need an effective policy that balances nuclear power’s environmental and health costs against the costs of climate change.

According to the International Energy Agency, without further action to reduce carbon emissions in the next five years, the world will be locked into irreversible climate change. We must start aggressively improving efficiency and deploying clean energy now. The debate will continue on how “clean” and cost-effective nuclear power is. New nuclear power plants could provide short-term reductions in carbon emissions by displacing coal plants and provide the back-up necessary for an increase in renewable energy. But investment in new nuclear plants is shortsighted without immediate and substantial investment in less visible and urgently needed measures to improve end-user efficiency, regardless of energy source.

Love it or hate it, it’s too soon to take nuclear power off the table. But weigh all the costs, thoroughly promote energy efficiency, and put the necessary regulatory safety structures in place before embracing nuclear power as the silver bullet against climate change.

8. U.S. Supreme Court Rejects Bid to Regulate Greenhouse Gases Under Federal Common Law

Summary—The U.S. Supreme Court’s ruling that states cannot use federal common law to restrict greenhouse gas emissions leaves open the questions of whether they can sue under state law and whether climate change victims can seek damages through the courts. The issues are likely to be litigated soon.

Big decisions on greenhouse gases are made in big cities such as Washington, D.C., where the U.S. Supreme Court handed down its long-awaited decision in American Electric Power v. Connecticut (AEP) on June 20, 2011. But the impacts of climate change are playing out in tiny, remote places such as Alaskan village of Kivalina, where sea levels are rising ominously.

Kivalina will likely be a key battlefield in 2012 in the fight to restrict major producers of heat-trapping gases after the Supreme Court’s decision in AEP that states cannot invoke federal common law to limit greenhouse gas emissions. It was the Court’s second ruling on the judiciary’s role in addressing climate change. The first case was Massachusetts v. EPA (Massachusetts), which was decided in 2007. In Massachusetts, the Court narrowly ruled that climate change was real, that states had standing to challenge the EPA’s failure to day anything about it, and that the greenhouse gases were air pollutants under the Clean Air Act. In AEP, the same coalition of states—joined by New York City and three land trusts—sued the nation’s five largest coal-fired electric power corporations seeking an injunction to cap and reduce their carbon dioxide emissions. According to the plaintiff’s complaint, the defendant power companies collectively account for about 10 percent of CO2 emissions in the U.S.

AEP was filed in 2004 in the Southern District of New York under federal and state common law, charging the defendants with contributing to the public nuisance of global warming. Recognizing the novelty of these claims, the states nevertheless saw the suit as a way to apply additional pressure on the EPA and the Bush administration to regulate sources of greenhouse gases under the Clean Air Act. By the time the case got to the Supreme Court, the legal issues had been overtaken by events outside of the courtroom.

Following the Massachusetts decision and a change of administrations, EPA Administrator Lisa Jackson published two endangerment findings under the Clean Air Act that concluded greenhouse gases pose a threat to public health and the environment. This triggered a mandatory duty to adopt regulations to control emissions from power plants, industries, motor vehicles and other sources. The EPA had also issued rules setting tailpipe emission standards for new cars and trucks and requiring “best available technology” for new sources of greenhouse gas emissions. The EPA was also proposing New Source Performance Standards for existing sources of emissions.

In light of all this, the outcome in AEP was hardly surprising. The Court voted unanimously that federal common law had been “displaced” by the Clean Air Act and the Obama administration’s efforts to regulate emissions. Writing for the Court, Justice Ginsburg said even if the EPA opted not to regulate greenhouse gases, “the federal courts would have no warrant to employ the federal common law of nuisance to upset the agency’s expert determination.” She hastened to add, however, that courts would retain their traditional power to review the EPA’s failure to perform any mandatory duties imposed by the Clean Air Act.

Now that the EPA has made the endangerment findings, the option of simply doing nothing is no longer available, although the agency does retain some discretion in how to go about the daunting task of regulating greenhouse gases from many sources. Notably, should Congress heed the call of some legislators and presidential candidates to repeal the EPA’s Clean Air Act authority, the courts could bring federal common law back into play. Also the Supreme Court expressly declined to address the question of whether the states could pursue their public nuisance claims under state common law. The Court simply remanded the case for further consideration, meaning the remaining issues are likely to be litigated soon.

That brings us to Native Village of Kivalina v. ExxonMobile Corp., a significant case for climate change victims. Kivalina is an Inupiat village with about 400 residents on the tip of a barrier reef along the northwest coast of Alaska. The village has historically been sheltered from winter storms by a barrier of sea ice, but rising temperatures have reduced and delayed the accumulation of sea ice in recent years. That’s exposed Kivalina to unprecedented erosion and flooding from otherwise diverted storm surges. The village’s governing body predicts residents will have to relocate at an estimated cost of up to $400 million. In February 2008, Kivalina filed suit against two dozen power companies in federal district court in California in an effort to recover damages for the cost of relocation. Kivalina alleges that the power companies “knew or should have known of the impacts on global warming and on particularly vulnerable communities such as [Kivalina].” Further, the complaint alleges the power companies actively conspired to deceive the public about the dangers of global warming.

The federal district court in Oakland dismissed the Kivalina case for lack of standing and on the ground that the case presented a “political question” that was committed to the other branches of government. The plaintiffs have appealed to the Ninth U.S. Circuit Court of Appeals.

Kivalina is different from AEP v. Connecticut because the village seeks monetary damages instead of a judicially mandated emissions cap and reduction. The relief sought by the plaintiffs in AEP was rejected, in part, because of the Court’s desire to maintain the separation of powers between the branches of government. In Kivalina, however, the plaintiffs claim that the Clean Air Act does not provide for any compensatory damages and therefore should not “displace” the federal common law. Alternatively, Kivalina argues that the case should proceed based on state common law. Ultimately, the Kivalinans say the oil companies should be held strictly liable for the damage in light of their failure to take any steps to lessen the harm. Industry lawyers used to dismiss climate change lawsuits as frivolous, but an ancient way of life may soon disappear in Kivalina. There’s nothing frivolous about that, and those who are causing it should pay for it.

9. Landmark Settlement Under the Endangered Species Act

Summary—A federal court approved a major settlement that likely means many more imperiled species and their habitats will be protected.

From the wolverine’s guttural growl to the delicate chirping of a tiny frog, the call of the wild got a little louder on Sept. 9, 2011.

That’s when the U.S. District Court for the District of Columbia approved historic settlement agreements between the U.S. Fish and Wildlife Service (FWS) and two conservation groups—Wild Earth Guardians and the Center for Biological Diversity. The settlement ended years of litigation over the slow pace of listing decisions under the Endangered Species Act (ESA).

Under these agreements, the FWS must establish annual work plans that gradually reduce the backlog of nearly 800 species over a six-year period, starting with the 251 species that were candidates for listing in 2010. Though the agreements do not mandate the listing of any species, the accelerated process is virtually certain to greatly increase the number of species entitled to ESA protection. That will have potentially significant consequences for development, recreation and other activities that may affect those species.

Prior to this settlement, the candidate species were stuck in limbo with no federal protection until a listing decision was made. Official ESA listings have been declining steadily, from 522 species during the Clinton administration to only 62 under the George W. Bush administration. At the beginning of 2011, the Obama administration had listed only 59 new species. Many factors have contributed to this backlog. The FWS cites citizen petitions and lawsuits; conservationists cite inadequate resources and political interference. But the overarching problem is that more species are being pushed to the brink of extinction by habitat loss, pollution, invasive species and increasingly by climate change. Many species have languished as candidates for years before this settlement. Other species, such as the Alaskan song sparrow and Texas salamander, have gone extinct while awaiting protection.

This settlement marks a turning point in the protracted battles over the listing program and gives the FWS some breathing room to catch up with its legal obligations. Perhaps most importantly, and central to this recent litigation, the ESA sets strict deadlines for evaluating threats to species and determining whether a species should be listed. The ESA also requires designation of critical habitat at the same time as listing “to the maximum extent prudent and determinable.” Although economic concerns are not considered in the context of listing, they must be incorporated for critical habitat designations.

Listing provides several explicit protections. Section seven of the ESA mandates that all federal agencies carry out programs for the conservation of listed species and consult with the FWS to ensure that activities do not jeopardize the species or adversely modify its critical habitat. In addition, section nine prohibits “any person” from “taking” any individual member of a listed species of wildlife without a permit. Taking is broadly defined to include significant habitat modification that actually kills or injures an animal by, for example, interfering substantially with breeding, feeding or sheltering.

The FWS has started implementing the settlement, and already its actions are beginning to spark controversy. A case in point—the proposal to list the dunes sagebrush lizard, a three-inch-long species that roams parts of southeast New Mexico and western Texas. This habitat includes the Permian Basin, an area that accounts for nearly 20 percent of U.S. oil production. The species relies on the shinnery oak, a low-growing shrub found along small dunes in the area, for protection. Oil and gas operations have degraded and fragmented this habitat.

Opposition to this listing comes mainly from oil and gas companies, livestock operators and Western Republican legislators who have also introduced a bill to block the listing. They cite the potential loss of jobs and delays in energy production and question the science used to justify the move. The FWS was due to make a final decision on the lizard by Dec. 15, but on Dec. 1 announced it will postpone its decision by six months. FWS officials said the agency will use the extra time to evaluate information about the lizard’s population and loss of habitat. The FWS counters dire predictions about job losses by pointing to a recent study showing that protecting the dunes sagebrush lizard would only affect about one percent of the public lands within the Permian Basin. The FWS also notes that the ESA has mechanisms to address potential conflicts between development and conservation. One option is negotiating habitat conservation plans, which allow potentially harmful activity to continue as long as steps are taken to improve conditions for the species elsewhere.

More controversial decisions can be expected as the FWS works its way through the huge backlog of candidates. The species and their habitats span the U.S., including 403 aquatic species in the Southeast that are slated for an initial determination in 2012. If only a fraction is listed, it will have significant impacts on water allocation, industrial uses and other activities. Other candidates range from the New England cottontail and Bicknell’s thrush in the Northeast to the coqui llanero (a tiny tree frog) in Puerto Rico. Also, the wolverine and Pacific walrus are to be considered in 2013-14.

At least during this initial stage, the ESA is a science-based law that requires the listing of species to be based solely on the best available biological evidence. This does not mean, however, that economics are never considered or that the law stifles development. A 1995 study by the Massachusetts Institute of Technology concluded that species listings had no bearing on state economic performance. Additionally, several studies by
the Government Accountability Office have shown that less than one percent of the hundreds of thousands of projects reviewed under the ESA had the potential to jeopardize listed species—and most of those were allowed to continue with reasonable mitigation conditions.

At the same time, the ESA is credited with saving hundreds of species from extinction, from the charismatic bald eagle and whooping crane to the more humble Salt Creek tiger beetle and Karner blue butterfly. The U.S. Supreme Court has ruled that Congress passed the ESA “to halt and reverse the trend toward species extinction whatever the cost.” Moving forward, this goal will be put to the test for the hundreds of species covered by these settlement agreements.

10. Combating Climate Change Through Enforcement—EPA v. Tennessee Valley Authority (TVA)

Summary—In a multi-billion dollar legal settlement with one of the nation’s biggest coal-fired polluters, the EPA used the Clean Air Act creatively to achieve a major step toward cleaning up the nation’s air, saving lives and reducing health care costs.

Since the Depression, the Tennessee Valley Authority has brought electricity to millions of Americans, a feat of modernization that also has spread acid rain, disease and climate change. But on April 14, 2011, the EPA reached a landmark settlement after nearly 12 years of litigation and negotiation with the TVA, one of the largest owners and operators of coal-fired power plants in the U.S. The settlement resolved Clean Air Act violations at 11 of TVA’s plants.

In 1999, the EPA had issued the TVA an administrative compliance order alleging that the authority’s modifications of a number of coal-fired generators violated new source review permitting requirements and new source performance standards. The standards required the TVA to install and operate state-of-the-art pollution control technology. In addition to bringing the authority into compliance with the Clean Air Act, the recent settlement will reduce the TVA’s reliance on coal-fired generation by shutting down 18 generators over the next six years and requiring an investment of $3 billion to $5 billion in clean and renewable energy technology.

The Clean Air Act distinguishes between old and new sources of air pollutants. Old sources are required to meet national ambient air quality standards, but not new source performance standards. The new standards require new or modified stationary sources to install state-of-the-art pollution control technology. The distinction between new and existing stationary sources has been criticized as a loophole for older power plants because the EPA does not regulate them as stringently even though they’re responsible for much of the nation’s air pollution. Nearly all of the coal-fired generators the TVA agreed to retire do not have state-of-the-art pollution controls because they date to the 1950s. However, old sources that undergo major modifications are designated as “new sources” and are subject to new source review and new source performance standards, which require them to upgrade to the best available control technology at a minimum, and perhaps even the lowest achievable emissions rate if the source is in a non-attainment area.

In the history of the Clean Air Act, there was little to no enforcement of new source review and new source performance standards against old sources that underwent major modifications. Under the Clinton administration, the Department of Justice (DOJ) and EPA began robust enforcement. In November 1999, the DOJ and EPA filed civil suits against seven electric utilities operating coal-fired power plants for violations of new source review permitting requirements and new source performance standards. The suits resulted in a number of settlements between the EPA and utilities prior to the TVA’s recent settlement.

The significance of the EPA’s settlement with the TVA will be a substantial decrease in harmful emissions and a resulting increase in environmental and human health benefits. The TVA’s commitment to shutter 18 coal-fired generators represents the largest retirement commitment of any company to date. The closures will represent nearly one percent of the nation’s coal-fired power capacity. In addition to the closures, the settlement requires the authority to address 92 percent of its coal-fired systems, or 41 coal-fired plants, between 2011 and 2018 by retrofitting them with state-of-the-art pollution controls or switching to renewable biomass.

The TVA’s commitment to closing and retrofitting its facilities is designed to reduce its emissions of nitrogen oxides by 69 percent and sulfur dioxide by 67 percent. Together, these pollutants cause a host of environmental problems, including smog, water quality deterioration and acid rain. In addition, they are linked to heart and lung diseases that can lead to increased hospital admissions and premature death. By reducing the TVA’s emissions, the EPA estimates $11 billion to $27 billion per year in added health benefits.

The settlement also requires the TVA to spend $350 million on other projects that are expected to reduce greenhouse gases and other pollutants. The money will go toward energy efficiency projects, clean and renewable energy projects, and a clean diesel and electric vehicle project, as well as fund improvement, protection and rehabilitation of National Park Service and National Forest Service lands injured by the TVA’s emissions. Consequently, the settlement goes beyond reducing pollutants the authority emitted in violation of the Clean Air Act and may achieve more than what the EPA expected from a favorable trial verdict.

The mitigation projects are designed to reduce carbon dioxide emissions by 30 million tons. The EPA currently does not regulate carbon dioxide emissions from stationary sources, either as a criteria pollutant or as a hazardous air pollutant. But in the settlement with the TVA, the EPA is creatively using this Clean Air Act settlement process as a way to achieve carbon dioxide reductions. This suggests that in future cases, the EPA will look to obtain carbon dioxide reductions as one of the key settlement terms and conditions. Thus, the agency may achieve through enforcement what the U.S. has failed to do by legislation—achieve meaningful carbon dioxide reductions from major polluters as a step toward combating climate change.

Special Mention—Federal Energy Regulatory Commission's (FERC) Order 1000 Seeks to Overhaul Electricity Transmission Planning and Cost Allocation

Summary—FERC’s ambitious energy policy would accommodate new transmission lines serving renewable energy projects.

Although a comprehensive federal clean energy policy stalled when Congress failed to pass a clean energy bill in 2009, energy policy in America is not at a standstill. The FERC's latest order—Order 1000—is an ambitious new policy that aims to accomplish two sizable goals simultaneously. First, it encourages a more coordinated build-out of the new electric transmission lines the country needs to maintain electric reliability. Second, it aims to allow large-scale renewable energy projects to connect to the grid. Perhaps partly because of its ambitious goals, FERC’s latest order has drawn both criticism and praise.

Essentially, Order 1000 requires public transmission utilities to—(1) engage in regional and interregional transmission planning, while accounting for public policy considerations and (2) develop cost allocation methods to allocate the costs of new transmission projects among beneficiaries of the transmission line.

Since the mid-1990s, FERC has presided over an industry in transition. FERC’s groundbreaking Order 888 required open access to the transmission system. Order 890 required open and transparent transmission planning. Both orders focused on creating a level playing field to make transmission accessible to all market participants at fair prices. As a result, the industry moved from one of large, vertically integrated electric companies that generated, transmitted and distributed power to one that also includes a plethora of specialized generators, transmission companies, distribution and power marketing companies. This has meant increased competition and to some degree lower electric prices—particularly for large electric consumers—as well as increased selection of generation types. But this transition hasn’t overcome a Balkanized grid in regard to transmission planning and development.

Order 1000 thus moves toward expanding transmission planning from regional to interregional planning on the premise that wider planning is better planning. This is the difference between planning for New England or for New England and the mid-Atlantic region. The order also requires the cost of these interregional projects to be more broadly spread between electric consumers in both regions.

Moreover, to guide new transmission that supports the nascent renewable generation industry—large-scale wind being among the most prominent of these—Order 1000 requires transmission owners to acknowledge the public policy requirements of states. Renewable portfolio standards, which about 30 states have enacted to encourage renewable energy, are among the most salient of these requirements.

Not surprisingly, a big source of praise for Order 1000 comes from those who provide transmission capacity. Those in the renewable energy industry also voiced praise. The Energy Future Coalition, a group of companies that includes the American Wind Energy Association, Iberdrola Renewables, and the Solar Energy Industries Association, expressed in a Request for Rehearing before FERC that Order 1000 “represents a very substantial improvement over the status quo.” But some critics contend that FERC has overstepped its authority under federal law, including the Large Public Power Council, which represents 25 of the nation’s largest locally owned and controlled not-for-profit power systems.

Others question if the approach will hurt the viability of local renewable energy projects. For example, by subsidizing the transmission cost of distant renewable generators, otherwise more economic local renewable generators may seem more expensive even though that may not be the case if the costs of transmission were incorporated.

Another critic is the Coalition for Fair Transmission Policy, a group of seven geographically diverse utility companies. In a Request for Rehearing before FERC, the group said Order 1000 was overly broad in determining the benefits and beneficiaries for transmission projects, and thus spread the costs of new transmission far too widely among electric consumers who might not truly benefit. It also argued that the order replaces the traditional bottom-up transmission planning process, which allows transmission to develop as new generation develops, with a top-down approach that predetermines which types of generation will benefit and thus may end up risking the money of would-be electric consumers and preempting state prerogatives.

Order 1000 may lay the groundwork for large-scale development of renewable energy by facilitating a build out of electric transmission lines connecting renewable energy resources and load centers. But litigation may also reshape the order to make it more responsive to concerns that FERC has overreached its regulatory powers, created inequitable cost-sharing for new transmission lines, or made it harder for local renewable energy projects to be effectively planned.

Other Issues to Watch

Is Coal Ash Hazardous Waste?

It’s past time for coal ash to be treated for what it is—dangerous to our health and planet. Instead, nearly three years after the worst coal ash spill in U.S. history, Congress is considering stripping the EPA of its ability to decide if coal ash should be regulated as a hazardous waste. 2012 could be a pivotal time on this issue.

On Dec. 22, 2008, a coal ash impoundment wall collapsed at the Tennessee Valley Authority’s Kingston power plant. The disaster sent 5.4 million cubic yards of toxin-laden sludge into the Emory River and onto surrounding land in eastern Tennessee. The disaster included more than 300 acres of damage, high levels of heavy metals, and estimated cleanup costs of more than $1 billion. In response, the EPA proposed regulating coal ash as a hazardous waste under the Resource Conservation and Recovery Act. The act would give the EPA the authority to control hazardous waste from the cradle-to-grave. But after the Office of Management and Budget reviewed the proposal, the EPA added two weaker options that would regulate coal ash as a nonhazardous “solid waste.” In addition, the Republican-controlled House of Representatives passed the Coal Residuals Reuse and Management Act in 2011 to try to strip the EPA of its authority to regulate coal ash as hazardous waste.

Since then, the EPA has released additional data that identified far more surface impoundment dams with a “significant hazard” rating than previously known. In addition, We Energies’ Oak Creek Power Plant sustained a bluff collapse that spilled an estimated 2,500 cubic yards of coal ash into Lake Michigan. Despite these developments, the White House may not have the political will for a hazardous waste designation during an election year and economic downturn. Alternatively, the EPA’s pending effluent limitation guidelines for power plants under the Clean Water Act may address some but not all of the same concerns as a hazardous waste designation. The EPA is required to propose effluent limitation guidelines for power plants by July 2012. Strict standards could push power plants to eliminate unlined surface impoundments, but final action on the rule is not required until January 2014. By then, the EPA may answer to a presidential administration that strongly disfavors environmental regulation.

What to Watch on Fracking

Anyone who has seen the documentary film Gasland or YouTube videos of tap water on fire probably has a good idea of the environmental and health risks associated with hydraulic fracturing. “Fracking” involves injecting chemicals, water and sand into the earth to fracture shale and open fissures through which natural gas will freely flow.

As noted in the film and in numerous nonprofit group materials (e.g., Riverkeeper, Sierra Club, Natural Resources Defense Council, National Wildlife Federation, EarthWorks), fracking impacts include well explosions, severely contaminated drinking and surface waters, air pollution and potentially earthquakes. But the fracking industry is exempt from key provisions of federal environmental laws. In the face of this regulatory vacuum, the public is moving on multiple fronts. A few things to watch for in 2012 (or sooner):

  • Updated Department of Interior regulations for fracking on public lands, including required disclosure of fracking chemicals
  • The release of initial research results in the EPA’s Hydraulic Fracturing Study relating to ground and drinking water
  • Stakeholder opportunities in the EPA’s development of Natural Gas Wastewater Standards
  • State attempts at mitigation or moratorium
  • A final EPA rule on New Source Performance Standards for air emissions from the oil and natural gas sector
  • Recommendations from the Department of Energy’s Shale Gas Commission for “improving the safety and environmental performance” of fracking
  • An EPA Permitting Guidance on Underground Injection Control for facilities that use diesel fuels in their injection fluids

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