The MVP is unnecessary and an insult to the environment and climate change

Letter to Editor from Jim Kotcon, Sierra Club of West Virginia, Morgantown Dominion Post, October 9, 2022

Hoppy Kercheval’s column (“Manchin’s Miscalculation,” Sept. 30) repeats claims from Sens. Manchin and Capito, who relied on industry propaganda calling for “permitting reform” and weakening the National Environmental Policy Act (NEPA).

NEPA has, for over 50 years, required federal agencies to objectively analyze environmental impacts of proposed projects and to involve the public who will be affected by those agency decisions. This approach is both good science and good public policy. Rational decisions are best made with all the facts, and since agencies cannot be expected to know everything about the impacts of their proposals, getting input from those with expertise and interest just makes sense.

Unfortunately, this approach requires that agencies actually listen to people and consider their concerns. Agencies get into trouble when they try to rubber-stamp a decision already made, rather than objectively considering all the issues and reasonable alternatives.

The proposed Mountain Valley Pipeline (MVP) is a classic example of this flawed approach. Courts tend to defer to agency expertise except when the agency is so arbitrary and capricious as to violate federal law. MVP keeps losing in court, not because environmentalists are obstructionists, but because it really is a bad idea — one that violates federal laws meant to protect all of us. The federal agencies that have pushed this have generated NEPA analyses that are so obviously flawed that courts have repeatedly asked that they be redone.

The claim that MVP is needed for domestic security and to supply Europe ignores climate change and the urgent need to wean ourselves from fossil fuels. Investing billions in a project that will not be completed in time to help Ukraine, but that will be obsolete before it pays for itself, while imposing excessive environmental costs on our land and water, is exactly the kind of bad decision that NEPA is intended to prevent.

In a democracy, legitimate permitting reform would not need to rely on a bill that would arbitrarily mandate a single project and prohibit any appeal by citizens.

>>> Jim Kotcon, W.Va. Chapter of the Sierra Club, Morgantown

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See Also: Summary of the National Environmental Policy Act, 42 U.S.C. §4321 et seq. (1969)

The National Environmental Policy Act (NEPA) was one of the first laws ever written that establishes the broad national framework for protecting our environment. NEPA’s basic policy is to assure that all branches of government give proper consideration to the environment prior to undertaking any major federal action that significantly affects the environment.

NEPA requirements are invoked when airports, buildings, military complexes, highways, parkland purchases, and other federal activities are proposed. Environmental Assessments (EAs) and Environmental Impact Statements (EISs), which are assessments of the likelihood of impacts from alternative courses of action, are required from all Federal agencies and are the most visible NEPA requirements.

Subcommittee on Civil Rights & Civil Liberties

CONTACT: Aryele Bradford, (202) 226-5181, December 7, 2020

Washington D.C. (Dec. 7, 2020)—On Wednesday, Dec. 9, 2020, at 10:00 a.m., Rep. Jamie Raskin, the Chairman of the Subcommittee on Civil Rights and Civil Liberties, will hold a hearing to examine the Federal Energy Regulatory Commission’s (FERC) failure to protect the rights of landowners whose properties are affected by natural gas projects, and to follow up on the investigation and video report the Subcommittee released earlier this year.

FERC is the primary federal permitting agency for the construction and operation of all major interstate natural gas pipelines. Landowners face obstacles from FERC at every stage of the natural gas pipeline process: FERC rubberstamps natural gas projects without fair consideration to landowners, favors pipeline companies, and provides insufficient options for landowners to seek recourse against pipeline companies.

On February 19, 2020, the Subcommittee launched an investigation into the use of eminent domain in the construction of natural gas pipelines. FERC routinely grants pipeline companies “certificates of public convenience and necessity,” allowing them to take possession of private land under the right of eminent domain.

On April, 28, 2020, the Subcommittee released preliminary findings of the investigation revealing that the natural gas pipeline approval process used by FERC unjustly trampled on the rights of private landowners.

On June 11, 2020, following the Subcommittee’s investigation, FERC announced it would no longer authorize construction activities for natural gas pipelines until the agency acts on the merits of challenges from private landowners and other stakeholders.

On November 20, 2020, the Subcommittee expanded its investigation by requesting information about procedures used to resolve conflicts between landowners and energy companies.

WHAT: Civil Rights and Civil Liberties Subcommittee Hearing:

WHEN: Dec. 9, 2020, at 10:00 a.m. EST

WHO:
1. David L. Morenoff, Acting General Counsel, Federal Energy Regulatory Commission

2. Terry Turpin, Director, Office of Energy Projects, Federal Energy Regulatory Commission

..... “NO Eminent Domain for Private Gain” ..... No MVP on Me or Thee

U.S. Senate Confirms Two New FERC Commissioners, ABRA Update 297, December 4, 2020

The U.S. Senate on November 30 confirmed the two nominees for outstanding vacancies on the Federal Energy Regulatory Commission (FERC). The two new commissioners are:

• Mark Christie, Republican, who has been a longtime member and most recently Chairman of the Virginia State Corporation Commission
• Allision Clements, Democrat, now with the Energy Foundation and formerly with the Natural Resources Defense Council.

FERC will now have a full-complement of five commissioners, 3 Republicans and 2 Democrats. The FERC Chairman, James Danley, a Republican, was named by President Trump to that position on November 5, replacing Neil Chatterjee. The Chairman of FERC serves at the pleasure of the President, so Danley will presumably be replaced as Chair by President-elect Biden after January 20 by a Democrat, expected to be Commissioner Richard Glick. The present term of Commissioner Chatterjee expires in June 2021, affording Mr. Biden the opportunity to replace him with a third Democrat.

Among issues that the new FERC Commissioners will be addressing will be consideration of the forthcoming restoration plan of the Atlantic Coast Pipeline route, which is due to be filed with FERC by December 26.

Cancer causing chemicals are a major problem

From an Article by Joce Sterman, Alex Brauer and Andrea Nejman, WTOV, September 17, 2020

WILLOWBROOK, Ill. (SBG) —A Spotlight on America investigation discovered an invisible gas may pose a cancer risk to dozens of towns across America. But now, ethylene oxide, a known carcinogen, is taking center stage in a national conversation, with lawsuits filed across the country and Congress calling for accountability.

Willowbrook Mayor Frank Trilla said it was like a nightmare when he found out the people he represents may be at risk of cancer from a toxin in the air. He found out in a letter that landed on his desk in 2018. It was an evaluation of the air by the American Toxic Substances and Disease Registry, that looked at ethylene oxide, or EtO, which was emitted by a medical sterilization facility called Sterigenics. According to the letter, “If measured and modeled data represent typical EtO ambient concentrations in ambient air, an elevated cancer risk exists for residents and off-site workers in the Willowbrook community surrounding the Sterigenics facility. These elevated risks present a public health hazard to these populations.” For the leader of a town of 8,500 people, the information was a shock, but it had to be shared.

“My alternative was throw it in the garbage and pretend it didn’t happen or go public. I had to go public. You can’t not tell the people,” said Willowbrook Mayor Frank Trilla.”

Trilla’s decision set off a heated hometown battle over EtO, that would ultimately end in Sterigenics leaving town. Willowbrook may have been the first to launch the fight, but they’re far from the only place impacted. Ethylene oxide is commonly used at chemical plants and sterilization facilities throughout the U.S., with some estimates claiming emissions could impact up to 288,000 people in 36 states.

An arm of the World Health Organization and Environmental Protection Agency have labeled EtO a carcinogen. According to the EPA, long-term exposure to ethylene oxide increases the risk of cancers of the white blood cells, including Non-Hodgkin lymphoma, myeloma, and lymphocytic leukemia. The EPA says studies also show that long-term exposure to ethylene oxide increases the risk of breast cancer in females. In 2016, the EPA found that ethylene oxide was 30 times more toxic than originally believed and that people who spend their lifetimes near ethylene oxide facilities are at the greatest risk.

In 2016, EPA said ethylene oxide was 30 times more carcinogenic than previously believed.

According to the EPA’s own Inspector General, 25 communities across the U.S. have been labeled “high priority” by the agency because of elevated cancer risks. But as a Spotlight on America investigation discovered, 16 of those communities still haven’t been warned about the risk by the EPA.

Federal and state lawmakers have been calling for action to address concerns surrounding EtO. Last year, 16 attorneys general wrote the EPA, urging “stricter standards for ethylene oxide emissions.” The attorneys general also called for the EPA to work with the Food and Drug Administration to find alternate methods of sterilization to reduce the use of ethylene oxide.

We are concerned that the current EPA standard for EtO fails to adequately protect workers and communities,” wrote 16 attorneys general in a letter to the agency.

Spotlight on America repeatedly offered on-camera interview opportunities to the EPA. It declined. We also sent the agency a detailed list of specific questions which it failed to answer. Instead, the EPA sent a statement saying:

“As EPA pursues its mission to protect human health and the environment, addressing emissions of ethylene oxide remains a major priority for the Agency. EPA is making steady progress under its two-pronged strategy for addressing ethylene oxide emissions. Under the first prong, EPA is reviewing its air toxics regulations for facilities that emit ethylene oxide. On May 29, 2020, the Agency finalized the review of one of these rules: the National Emissions Standards for Hazardous Air Pollutants (NESHAP) for Miscellaneous Organic Chemical Manufacturing. This rule, often referred to as the “MON,” will significantly reduce risk from exposure to ethylene oxide and other air toxics at affected facilities. Separately, the Agency is reviewing its NESHAP for ethylene oxide commercial sterilizers and expects to issue a proposal later this year for public review and comment. Under the strategy’s second prong, EPA is providing support to our state and territorial air agency partners as they look more closely at emissions in areas that the National Air Toxics Assessment (NATA) identified as potentially at increased risk of cancer from continuous, 70-year exposure to ethylene oxide in the outdoor air. Already, this work has led to steps that will reduce emissions at facilities in a number of areas in states such as Colorado, Georgia, Illinois and Missouri – faster than EPA’s rulemaking process can provide. EPA will continue to provide our partner agencies support in both follow-up technical work and in their efforts to share information with the public.”

Lawmakers, including those at the local and federal level, have been critical of the EPA’s response to ethylene oxide emissions. In an interview with Spotlight on America, Congressman Bill Foster, D-Ill., who serves on a bipartisan congressional task force on ethylene oxide, criticized the agency for sending an inexperienced representative to answer questions and handle response during a town hall meeting in Willowbrook, back in 2018. Foster and Willowbrook Mayor Frank Trilla sat front and center at that meeting, which was attended by hundreds of residents.

On Capitol Hill this summer, Senator Tammy Duckworth, D-Ill., and Congresswoman Lisa Blunt Rochester, D-Del., introduced legislation requiring the EPA to improve monitoring for toxic pollutants like EtO, through deploying new air quality sensors and expanding the air monitoring network currently in place. But some have raised concerns that air quality monitors at EtO facilities may not even work. In May, a coalition of nearly 60 Congressional lawmakers wrote to the EPA to request information about how air pollution data is collected. The letter asked whether the EPA planned to implement fenceline monitoring near sources of ethylene oxide, and asked whether the agency was taking action to protect communities where an air monitor detected air pollution. Spotlight on America discovered, that request for information was never answered.

Part of the problem, according to experts like Genna Reed, lead science and policy analyst at the Union of Concerned Scientists, is that in the absence of stronger action from the EPA, the industry often polices itself when it comes to reporting potential hazards determined through air monitoring. “Where these monitors are, how often they’re running, all of the burden of making sure that data is accurate and gets to the agency is put on industry,” Reed told us. “So, you have to hold industry accountable.”

That’s where attorney Shawn Collins comes in. He represents 85 people in Willowbrook, mostly cancer patients, who blame their sickness on EtO emissions from the Sterigenics facility in town. Similar lawsuits have also been filed in several other states related to other ethylene oxide facilities. “The focus needs to be where it belongs,” Collins told us. “If you’re making the profit, it’s your job to make sure you’re not hurting your neighbors.” Collins told us the science surrounding ethylene oxide’s link to cancer is indisputable, and he’s prepared to prove it in court. With regard to companies emitting EtO in residential communities, he said, “They’re playing Russian roulette with their health and their lives.”

Carol Tufo has endured extensive chemotherapy & radiation treatment

“It just seems common sense that you can’t spew poison in the air,” said Carol Tufo. “Especially in a residential community.”

Today, the Sterigenics facilities in Willowbrook are shut down, after public outcry, but the lawsuits are the start of another chapter. Since Sterigenics shut down, Illinois passed a unique state law barring sterilizing facilities from operating unless they can contain 100% of EtO emissions.

Spotlight on America contacted Sterigenics over the course of the last three months, offering the opportunity to do an on-camera interview on numerous occasions. The company declined, but has created a website detailing its response to developments related to Willowbrook. The company provided this statement to Spotlight on America:

“Sterigenics plays a vital role in providing critical medical care to millions of people. Hospitals and patients in the United States and around the world depend on Sterigenics’ ethylene oxide sterilization process as the safe, effective, and FDA-compliant way to sterilize surgical kits, devices used in cardiac procedures, syringes and IV tubing, protective barriers to prevent infection, and many other vital medical products and devices. We remain committed to safely meeting their needs.”

“Sterigenics empathizes with anyone battling cancer, but we are confident that our Willowbrook operations are not responsible for causing the illnesses the lawsuits allege. The science does not support the plaintiffs’ claims in these cases. As we have stated previously, we intend to vigorously defend against the plaintiffs’ unfounded and meritless claims.”

Mayor Frank Trilla can still see the former Sterigenics building from his window at Village Hall. His souvenir from the battle to have the facilities shut down is a box full of documents about EtO and Sterigenics. Still, he told us, he looks forward to someone taking over the space for a new purpose. “I’m not going to rest until there’s new tenants in the buildings,” he said. “It’s not over until it’s over.”

Major Job Losses in Renewable Energy if Current Tax Plan Passes

Source: Renewable Energy

From an Article by Steve Clemmer, Union of Concerned Scientists, December 14, 2017

In March 2017, I testified before the House Energy and Commerce Committee on how federal tax credits for renewable energy have been a key driver for the recent growth in the U.S. wind and solar industries, creating new jobs, income and tax revenues for local communities. They have also helped drive down the cost of wind and solar power by more than two-thirds since 2009, making renewable energy more affordable for consumers.

Originally enacted as part of the Energy Policy Act of 1992, Congress has extended the Production Tax Credit (PTC) seven times and has allowed it to expire on six occasions. This “on-again/off-again” status resulted in a boom-bust cycle of development in the wind industry. In the years following expiration, installations dropped between 76 and 93 percent, with corresponding job losses. Congress has also extended the Investment Tax Credit (ITC) for solar several times.

Finally, after many years of this policy uncertainty, Congress passed a five-year extension and phase-down of the PTC and the ITC for wind and solar in December 2015. The legislation also removed the longstanding U.S. oil export ban, as part of a compromise deal with the oil industry.

Unfortunately, the Senate and House tax bills would renege on this deal and change the rules midstream, resulting in major job losses across the U.S. renewable energy industry. They would also jeopardize tens of billions in investments in renewable energy projects and manufacturing facilities in rural communities across America—many of which are in districts and states held by Republicans and that voted for President Trump.

Senate Tax Bill Undermines Renewable Energy Financing

The renewable energy industry initially praised an earlier version of the Senate tax bill, which honored the 2015 deal and did not make any direct changes to the PTC and ITC. However, the Senate made two last-minute changes to the bill to fill revenue gaps and build support from key Republicans that were concerned about the deficit that would have a significant impact on renewable energy projects.

Alternative Minimum Tax (AMT): One of these last-minute changes was to restore the AMT to fill a $40 billion revenue gap. The proposal in both the Senate and House tax bills to reduce the corporate tax rate to 20 percent would likely move most U.S. corporations from the regular corporate income tax rate to the AMT (which is also set at 20 percent on a broader tax base), according to tax experts.

However, not all tax credits count toward the AMT and depreciation must be calculated at a slower rate. While the ITC for solar projects can count toward the AMT, the PTC for wind projects (and geothermal, biomass, landfill gas and incremental hydro projects) can only count for the first 4 years out of the 10-year window that projects are eligible to receive the tax credits. Not only would this jeopardize investment in new projects, it would have a retroactive impact on existing projects placed in service after 2007 that are still receiving tax credits under the PTC.

Base-Erosion Anti-Abuse Tax (BEAT): The Senate also made a last-minute change to the BEAT provision that could greatly reduce tax equity financing for renewable energy projects. BEAT would impose a tax on large corporations that make cross-border payments by requiring them to add those payments to their taxable income. This amount is then multiplied by 10 percent to determine what they owe to the government (except for banks and security dealers, which the Senate raised to 11 percent). These corporations must also calculate their regular tax liability minus any tax credits they receive, including the PTC and the ITC. If their adjusted tax liability is less than the fraction of their taxable income with the cross-border payments, the company would have to pay the difference to the IRS as a tax.

The more tax credits a company has, the more a company is likely to pay, making banks and other large tax equity investors reluctant to finance renewable energy projects. And like the AMT, the BEAT provision would not only impact financing for new projects but could have a retroactive effect on most existing projects that received tax equity financing.

Bloomberg New Energy Finance (BNEF) claims that the Senate bill could threaten $12 billion in annual tax equity financing in 2017, up from $7.3 billion in 2013 (see Figure). They estimate that tax equity financing accounted for 21 percent of the $58.5 billion in total U.S. renewable energy investment in 2016.

The Senate tax bill would have a big impact on companies like JPMorgan, Bank of America, GE, US Bank and Citigroup that led tax equity financing in 2016 for both wind and solar projects, as shown in this BNEF chart.

The BEAT provision would also hurt other energy sources that currently receive tax credits such as refined coal facilities placed in service by December 2011. The coal industry is also speaking out against the AMT, which Bob Murray claims will cost his company $50-60 million in increased taxes and eliminate 65,000 jobs.

House Bill Puts 60,000 Wind Industry Jobs and $50 Billion in New Investment at Risk

While the House bill does not include the AMT or BEAT provisions, it makes several direct changes to the PTC and ITC that would undermine investments in new wind and solar projects and have a retroactive impact on existing projects. These changes include:

• Eliminating the inflation adjustment for the PTC, reducing its value by 38 percent from 2.4 c/kWh under current law to 1.5 c/kWh.

• Changing the commence construction provision, dropping safe harbor provision, and requiring projects to have “continuous construction” to be eligible, which would greatly accelerate the PTC phase-down schedule. When combined with the change to the inflation adjustment, the American Wind Energy Association estimates these two provisions could reduce the value of the PTC by more than half.

• Allowing the permanent 10 percent solar ITC to sunset in 2027.

• Extending the tax credits to “orphan” technologies like geothermal, biopower, landfill gas, and incremental hydro that were largely left out of the 2015 deal to extend the tax credits for wind and solar for 5 years. This is the only positive change in the House bill.

The House bill would cut new wind development by more than half by 2020, according to both Bloomberg and Goldman Sachs. The American Wind Energy Association estimates that the House bill would put 30,000 MW of new wind projects that are under development in the U.S. worth $50 billion of new private investment at risk, along with 60,000 jobs, as shown in this map.

American Wind Energy Association, Protecting American wind workers during tax reform

Making Renewable Energy a Priority in Conference Committee

The provisions in the House bill that renege on Congress’ 2015 compromise deal with the oil industry and drastically cut the value of the PTC are completely unacceptable and should be dropped. The AMT and BEAT provisions in the Senate bill should either be dropped (they are not included in the House bill) or renewable energy tax credits should be excluded—similar to how R&D; tax credits are currently excluded from the BEAT provision.

House and Senate conferees were named last week. They will meet over the next two weeks to resolve key differences, with the goal of delivering a final bill to President Trump by the end of the year.

It is an ominous sign that Sen. Grassley (R-IA), a senior member of the Senate Finance Committee, was left off the conference committee. As the father of the PTC, who represents a state that ranks second in installed wind capacity, he has been outspoken about honoring the 2015 deal and working to fix the problems in the Senate and House tax bills. “The wind energy production tax credit is already being phased out under a compromise brokered in 2015. It shouldn’t be re-opened,” Grassley said.

Pro-renewables Senators like Grassley and Susan Collins (R-ME) will have a tough vote to make on the Senate floor if these damaging provisions are not addressed in conference. Maine, for example, has more than 900 MW of existing wind capacity and nearly 300 MW of new solar and wind under development that is potentially at risk.

But there are conferees who represent states with large renewable energy industries, and they are in unique position to make the changes necessary to keep that clean energy momentum going.

• Conferees like Sen. Thune and Rep. Noem from South Dakota, where a wind turbine blade manufacturer from Aberdeen just announced they will be closing and laying off more than 400 people, citing the federal tax bills as one of reasons for this decision. “It’s apparent that the new tax bill will cause some economic disruption and this is one of them,” according to Aberdeen Mayor Mike Levsen. “It’s what happens when government policies turn against industries. It discourages investment.” South Dakota also has 960 MW of wind projects currently under development, representing $1.6 billion in new investment, that is at risk.

• Sen. Murkowski (R-AK) has also said that fixing the BEAT and AMT provisions in the Senate bill will be “clear priorities” for lawmakers in conference

• Sen. Portman (R-OH) is from a state with a strong renewable energy supply chain, including 5,831 solar jobs at 189 companies and more than 2,000 jobs and 61 manufacturing facilities in the wind industry. Ohio also has 560 MW of new wind projects under development and $900 million in new investment that is at risk.

• Other conferees from leading renewable energy states such as Texas, California, Illinois, Washington and Oregon would also experience significant job losses.

The U.S. renewable energy industry has a proven track record of creating new jobs and making new investments in states and rural areas across America. Federal tax reform should encourage rather than discourage U.S. investment in this rapidly growing global industry.

Make sure your members of congress know clean energy is important to you. Tell them to fix the AMT and BEAT provisions, and to leave the renewable energy tax credits alone.

Steve Clemmer is the director of energy research and an expert on the economic and environmental benefits of implementing renewable energy technologies and policies.

Legislation co-sponsored by Rep. Shelley Moore Capito (WV) and Rep. David McKinley (WV) would delay any EPA action on a cross-state pollution rule and another measure to reduce toxic air emissions from coal-fired power plants. The measure also would create an interagency panel that would study how EPA proposals would impact competitiveness, energy prices and employment. But, the Economic Policy Institute says, “Fears that these rules together will deter economic progress are unjustified.”  Further, “The dollar value of the benefits of the major rules finalized or proposed by the EPA so far during the Obama administration exceeds the rules’ costs by an exceptionally wide margin.” Also,  “Health benefits in terms of lives saved and illnesses avoided will be enormous.”

EPA has done cost-benefit studies on new environmental rules, and the Economic Policy Institute used those studies to examine the broader impacts of new air pollution measures being considered by the agency. The institute concluded: The combined annual benefits from three major proposed rules examined here exceed their costs by $62 billion to $188 billion a year. The benefit-to-cost ratio ranges from 6-to-1 to 15-to-1. When fully in effect in 2014, the combined costs of the major rules finalized by the EPA would amount to significantly less than 0.1 percent of the economy.

“The regulations finalized and proposed by the EPA are likely to be of tremendous value to the nation, producing a wide range of significant health benefits,” the report said. “Further, the finding that the estimated costs of these regulations amount to only about one-thousandth of the size of the economy, as well as the extended period over which they will take effect, indicate that they would not be a major impediment to economic or job growth in the near-term or in the future.”