06.28.09
Posted in Federal, Ocean, Renewable Energy, Wind at 10:18 pm by Mike Pisauro
Last week, MMS announced they would be issuing leases to the three proposed wind farm developers so that they could begin the process of installing their meteorological towers. Bluewater Wind NJ Energy, Fishermen’s Energy of New Jersey, and Deepwater Wind will all be placing met towers off the coast of NJ. These towers are a necessary first step to the eventual development of shore wind. Once the met towers are in place, they will be recording data for at least 12 months or mid to late 2010.
Back in October 2008 the State issued its Energy Master Plan. The Plan sets a goal of having 1000 megawatts of offshore wind by 2012. I have always thought that time table was very aggressive and was unlikely to occur. Assuming the developers do not begin the NEPA process at the same time as they collect the data from the met towers, that process will begin late 2010 or early 2011. The NEPA process of obtaining information, analyzing the information, etc will take a significant period of time. For example, the Cape Wind project, which began around 2001, took almost three years from the very beginning of the NEPA process to the issuance of the draft EIS. It then took another four+ for MMS to issue its final EIS on the project.
Now, a lot has changed from the time Cape Wind started their project. The Energy Policy Act of 2005 was passed. The State of New Jersey has convened a Blue Ribbon Panel on Wind; evaluated the issues and set forth its recommendations. MMS has interim rules for renewable energy developed on the OCS. The nation as a whole has hopefully progressed towards acceptance of wind generation. (I question how far we have progressed on this score). Also, the State is in the process of doing performing their own biological studies off the coast of NJ. All of these things may help move the process along so that the planning of these projects is not a decade long process. The NJ developers will have a framework to follow that Cape Wind did not.
Hopefully, the fact that there is a legal framework in place will shorten the legal wrangling over the project. I do believe that there will be many lawsuits challenging these projects. Local, county and some legislators have expressed concern over off shore wind development. Local property owners will certainly band together to challenge these projects. There may also be an environmental group or two who may challenge the projects in Court.
In short I believe after the NEPA process has been engaged and the lawsuits resolved one or more of the proposed wind projects will go forward. What I am fairly certain of is that no project will be in the water and generating electricity by the end of 2012. The State will have to adjust their energy master plan to account for the revised time table.
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06.22.09
Posted in Clean Water, Federal, Fisheries, Ocean, Politics, legislation at 10:07 pm by Mike Pisauro
June, as national ocean month, has been a fairly busy one. Two weeks ago the Governors of NY, NJ, DE, MD, and VA met in NY to create the Mid-Atlantic Regional Council on the Oceans. Governor Corzine has just appointed members to the NJ Coastal and Ocean Protection Council. President Obama also has created an inter-agency task force. These are all laudable steps on addressing the dire condition of the Oceans. They are long overdue steps.
In 2003 and 2004 the Pews Ocean Commission and the U.S. Commission on Ocean Policy issued their reports on the health of our oceans. Without going into great detail the cliff notes of these reports were that our oceans are in serious jeopardy and actions had to be taken to reverse course. It has been 5 to 6 years since those reports were issued and at least in NJ the course has not been reversed. There might be debate on whether the continued degradation of our oceans has been slowed, but it clearly has not been reversed. There is still a dead zone stretching along 100 miles of NJ’s coast. Fishing stocks are still declining. Pollution is still running off compromised watersheds further deteriorating the health of our ocean. At the same time there is a push to increase exploration for fossil fuels and to install new renewable energy off our coast.
In order to help NJ address the Pews and U.S. Ocean recommendations, the New Jersey Coastal Ocean Coalition issued a report called: Ocean Protection in New Jersey: A Blueprint for Success. After several years of lobbying, the COC successfully got passed and signed into law the Coastal Ocean Protection Council law. That law took effect on January 13, 2008. In part the law created a council to help the State look at the issues affecting the coast and how best to address the issues. It took over 18 months from the time Governor signed this legislation into law to when he made appointments to the council. It has been 18 months without the council working towards strategies on improving NJ’s regulation of the ocean and coastal environments. It has been six years since the Pews report called for coordinated approaches toward regulating this resource without any meaningful movement to correcting the problem.
When Governor Corzine, entered into the Mid-Atlantic Regional Council on the Oceans he said:
Any threat to these natural resources brings economic consequences that threaten jobs, local economies, and our economic well being. New Jersey is committed to working with our Mid-Atlantic partners to provide adequate safeguards and formulate a shared vision for the region’s future.
This is not a new sentiment, but one that the State asserted when the New Jersey’s Coastal Area Facility Review Act was passed in 1973. I hope that New Jersey and the surrounding states are seriously but addressing the multiple threats to our oceans.
We need a mechanism to coordinate policy with our neighboring states because as we all know the water along our coast does not stay within the jurisdiction of anyone state, but it moves. It is the plan that the Council will help the States examine the issues on the regional level and help the State address them in ways that are not counterproductive to each other.
Even more recently, the President created the Ocean Policy Task Force. One of the goals of the Task Force is to propose a national policy that will protect, maintain and restore the oceans, coastal and Great Lake ecosystems including the implementation of adaptive management; a way to coordinate interagency actions, and how to implement these proposals. The Task Force is also put together a recommendation for coastal and marine spatial planning. If I am reading this Memorandum right the goal for the Task Force is to take the recommendations of the U.S. Commission on Ocean Policy and to figure out how to implement it.
These are very important concepts that I hope are more than catchy phrases to government. If these are no more than words than there will not be an improvement. These words must the announcement of actual action. For NJ, they must implement the Coastal and Ocean Protection Council and allow the council to get to work. For the Mid-Atlantic Regional Council on the Oceans the States must look how many of their regulations both water and land based affect the oceans and how each State can compliment their neighbor’s work. Lastly, the Federal Task for can look at how to assist the States and Mid-Atlantic Regional Council on their missions as well as to provide a uniform framework across multiple agencies on how to cherish and protect this vital resource. We will see if actions do speak louder than words.
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05.13.09
Posted in Federal, Ocean, Renewable Energy, Wave & Tidal, Wind at 9:40 pm by Mike Pisauro
I saw a post, at RenewablesOffshore regarding the memorandum of understanding between FERC and MMS. As I noted previously these agencies have entered into a memorandum of understanding on the handling of offshore renewable energy projects. As a result of the MOU, FERC has dismissed Grays Harbor’s application for a preliminary permit for a wave project off the coast of Atlantic City. I wrote about Grays Harbor’s application here. The dismissal at least deals with the objects filed by NJ Board of Public Utilities, EPA, Interior, several of the wind energy companies, and the New Jersey Environmental Lobby. This clears the way to an organized way to move NJ’s goals of offshore renewable energy forward.
Also, this MOU opens the way for the final MMS’ rules to be adopted to regulate the offshore renewable energy projects.
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05.12.09
Posted in Clean Up, legislation at 8:38 pm by Mike Pisauro
On Thursday, May 8th the Governor signed into law the licensed site professional bill (which I have written several times about). While signing the bill the Governor also issued Executive Order 140 which is a clear indication that there are major problems with the LSP bill.
The EO provides that DEP must increase its auditing, monitoring and review of sites that have impacted groundwater, are to be used for residential, schools, childcare or playgrounds/ball fields. The EO also requires that within the first 24 months DEP must perform at least one case review of documents submitted by every LSP. Also, DEP is required to provide Technical Assistant grants (TAGS) to at least 5 environment groups per year to help deal with the LSPs.
Instead of conditionally vetoing this bill, the Governor issued this E.O. which can be undone by him at any time or by the next Governor. Also, the site remediation program’s proposed budget is significantly cut from last year. So even if there is a good faith desire to meet these requirements, if DEP does not have the resources, how can it comply with the E.O.?
Lastly, Acting Commissioner Moriello, during the budget hearings, has committed to having the temporary licensing and LSP board in place by the summer. So that the private oversight of cleanups can move full steam ahead. The question becomes when does the next Kiddie Kollege, W.R. Grace, etc. happen under this program and what will N.J. do in response?
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04.25.09
Posted in Clean Air, Federal, Global Warming, legislation at 9:44 am by Mike Pisauro
As I wrote recently, Indeck Corinth, L.P. has filed suit against the Governor of New York, the NY Department of Environmental Conservation and other agencies, challenging that state’s participation in the Regional Greenhouse Gas Initiative (RGGI). According to the complaint Indeck, a power generating company, alleges the state’s participation in RGGI is illegal for multiple reasons. The most interesting of these claims is that RGGI, itself, is “unconstitutional.” Indeck alleges that RGGI is an interstate compact that, under the Unites States Constitution, requires the consent and approval of Congress. Specifically under Art. 1, §10 Cl. 3 of the Constitution provides:
No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a Foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
Indeck alleges RGGI is an interstate agreement or company but which has not been approved by Congress , is, in fact, illegal. The complaint also provides that:
Congress has the power to regulate emissions and establish interstate emission limits, which it has expressly chosen not to do. RGGI’s supplemental regulations are stricter than Federal regulations promulgated by the United States Environmental Protection Agency and thus, impermissibly encroach on Federal supremacy and interfere with the Federal interest in climate policy and Federal interest in regulating a national and international pollutant.”
One would think that after 200 plus years of having a constitution, one of the earliest portions of that constitution would have a clear and easy answer to this question. As with many things in law, however, there is no easy answer. Having said that, a review of the case law and commentary would seem to suggest that RGGI can operate legally - without obtaining Congress’ approval. In the last 100 years, caselaw dealing with this issue clearly demonstrates that that there are interstate compacts that require congressional approval and there are those that do not. The question seems to hinge on whether the interstate compact could/would have the potential to increase the political power of the states over the federal government.
The leading case in this area of the law is: United States Steel Corp. v. Multistate Tax Commission, 434 U.S. 452 (1978). In Multistate Tax Commission the Court indicated that, if read literally, the Compact clause would prevent any grouping of states from entering into any kind of agreement no matter how trivial and short in duration. The Court did not believe that this was the result the constitutional framers would have desired. The Court then reaffirmed the “test” from an earlier case that limited the need for Congressional approval to “formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States.” The Court also looked to see how the compact acted against these four questions:
· did the compact give the states or the multistate agency powers it did not already have?
· did the States delegate their sovereign power to the agency?
· did the state’s have the freedom to reject or accept the model rules and?
· could the States withdraw if they wanted?
In Multistate Tax Commission, the plaintiffs were challenging the creation of a multistate agency by several states to deal with the taxation of businesses with locations in multiple member states. The Court ultimately rejected the challenge by United States Steel under the compact clause. One of the reasons the Court gave was that, by joining together, the States were not doing anything that they could not have done on their own. Therefore, the answer to the first question is “no,” The multistate compact did not give the States power they did not already have.
The situation with RGGI is very similar to Multistate Tax Commission. Each State has the power to regulate air pollution independently of one another (note that GHGs are considered air pollution and can be regulated under the Clean Air Act – but that is a topic for another post.) It is conceivable that each State could independently regulate GHG emissions and create their own auctions for allowances. Each power generator in each state would then have to buy allowances from that state. Multistate generators would have to buy allowances in each state in which they had power plants. The multistate generators would not be able to transfer a NJ allowance to NY if they need to emit additional GHGs in NY. This system would be inefficient and might even cause more leakage than what is already occurring. RGGI is only improving the efficiency of a cap and trade system - it is not increasing the state power or RGGI’s power and, therefore, should pass muster on this requirement.
As to the second question, the Memorandum of Understanding signed by the RGGI explicitly states that RGGI has no regulatory or enforcement authority and that authority is reserved to the States. Therefore, the answer to that question is clearly “no.”The States did not give up any of their sovereign authority to RGGI.
As to the third question, there is nothing in the MOU that explicitly requires a State to adopt all portions of the Model Rule. Also, if I recall correctly, the model rule provides for various options that the State could adopt.
Lastly, in regards to the fourth question, the MOU also provides that any State can withdraw from RGGI with 30 days notice.
Based on the Court’s test RGGI will likely prevail against Indeck’s challenge under the Compact Clause. There may be other constitutional challenges, for example under the Commerce Clause, which may be of concern. Also, proposed Federal law would supplant RGGI for several years. But for now RGGI will be with us.
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