Public Interest Groups Join to Explore Lawsuit over Dominion Windfarm

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A coalition of public interest groups – The Heartland Institute, the Committee For A Constructive Tomorrow (CFACT), and the American Coalition for Ocean Protection (ACOP) – announced in late September that they have hired counsel to explore a lawsuit protecting the right whale from Dominion Energy Virginia’s efforts to place an offshore wind (OSW) project directly in their habitat off the coast of Virginia. Virginia’s Thomas Jefferson Institute for Public Policy is participating in the American Coalition for Ocean Protection (ACOP).  ”While the Jefferson Institute’s concerns are more focused on the unreasonable ratepayer cost and ratepayer risk the project imposes on Dominion’s 2.5 million Virginia customer accounts,” noted Institute president Chris Braunlich,  “we share the concern that environmental laws be applied uniformly and transparently, and not be ignored for politically-driven proposals.” “Too much of the Dominion application is shrouded in secrecy,” Braunlich continued, “including the effect on wildlife in the area of the proposed windfarm.  All the facts should be put on the table before a project of this magnitude is approved.”

Approval of the project at the state level by the State Corporation Commission, or the Virginia Supreme Court if aspects of the SCC decision are appealed, is not the final green light for construction of the $10 billion project.

The coalition has retained as counsel the law firm of Gatzke, Dillon and Ballance (GDB) of Carlsbad, California to represent them in evaluating the upcoming draft Environmental Impact Statement (EIS), which the Bureau of Ocean Energy Management (BOEM) is producing for the Dominion’s Coastal Virginia Offshore Energy Project.

GDB has extensive experience representing plaintiffs pursuing litigation to defend whales and a strong track record of success in challenging proposed U.S. offshore wind projects.

“Unless BOEM requires extensive, effective, unprecedented protection measures for the North Atlantic right whale immediately, this species is almost certainly headed toward extinction,” said David Stevenson, president of ACOP. “With only a little more than 300 individual right whales alive today, this endangered species is in dire need of protection, and the Virginia Wind Project lies directly in their annual migration path. The project will require extensive daily maintenance by multiple service ships, and the potential for whale fatalities due to ship strikes is indisputable.”

Initially, GDB will provide the coalition with advice and counsel to determine if BOEM has undertaken the legally required “hard look” at the OSW Project in order to provide necessary protection for Virginia’s environment and for the state’s electricity consumers, as required by the National Environmental Policy Act (NEPA). In addition, the firm will advise the coalition as to whether or not the EIS draft meets the requirements of the Endangered Species Act (ESA), the Clean Water Act, the Outer Continental Shelf Lands Act, and other relevant federal and state statutes that govern the construction and maintenance of the project.

“We are very pleased to have retained the services of a law firm with such extensive expertise in the requirements of federal laws such as NEPA and ESA,” said CFACT President Craig Rucker. “We are not only very concerned about the future of the right whale, which extensively uses the ocean waters affected by the wind-power project, but also concerned as to how BOEM will address the fact that this project, despite its alleged benefits regarding carbon dioxide and climate change, will actually cause the release of more carbon dioxide into the atmosphere than it will consume.”

BOEM anticipates that the draft EIS for the Virginia Wind Project will be released for public review and comment later this year. Dominion Energy is proposing to build 176 wind towers, which would stand more than 700 feet tall 27 miles off the coast of Virginia Beach. The company has announced that it expects to begin generating electricity from the project by the end of 2026.

“The Virginia Wind Project is a risky, costly, waste of resources and a pitiful way to generate electricity for a state which claims to be business and consumer friendly,” said Heartland Institute President James Taylor. “Before construction commences, the project should be given the same level of scrutiny for environmental protection by the courts and the federal authorities as has been provided for fossil fuel projects in Virginia, such as the Mountain Valley Pipeline.”

GDB has represented plaintiffs who have brought suits against BOEM, the Department of the Interior, the National Marine Fisheries Service, and other federal agencies with respect to the New York Bight offshore wind project off the coast of New York and New Jersey, as well as the Vineyard Wind project off the southern shore of Martha’s Vineyard, Massachusetts. These suits seek declaratory and injunctive relief and are currently pending in the Federal District Court for the District of Columbia and the Federal District Court in Massachusetts, respectively.

“We are equally troubled that Virginia ratepayers could be exposed to huge rate increases resulting from intermittent, unreliable wind generation,” added Rucker. “Should litigation become necessary to remedy deficiencies in BOEM’s final EIS, we are grateful to have experienced counsel for advice as we move forward.”

The coalition intends to comment on the draft EIS within 45 days of its issuance by BOEM, unless BOEM provides for a longer public review and comment period.

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Dominion Hides Threat to Whales

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Secrecy abounds around the monster offshore wind (OSW) project proposed by Dominion Energy. In this case it is all about the threat to the severely endangered North Atlantic Right Whales.

earlier reported on the big hidden whale study done by the US Bureau of Ocean Energy Management (BOEM), which is doing the Environment Impact Assessment for this huge project.

Digging into Dominion’s filing with BOEM I found something even worse. Dominion has done an actual threat assessment but it is 100% secret! This is outrageous.

Here is a bit of background so folks can dig for themselves. There is a lot to look at.

BOEM has a separate website on this monster OSW project, which would be one of the world’s largest. The project is titled Costal Virginia Offshore Wind or CVOW. Dominion has submitted a large set of documents in what is called the Construction and Operations Plan or simply the COP.

The COP is here.

There is a long main report plus 32 technical appendices. My endangered whales interest was immediately drawn to “Appendix R: Threatened and Endangered Species Review”.   It is here.

I expected to get a discussion of the potential threats the project poses to the severely endangered North Atlantic Right Whale and what Dominion might do to minimize the adverse impact. I should also learn what other threatened and endangered species are involved, right?

Instead, I just got a cover page bearing this notice: “Proprietary and Confidential Business Information Exempt from Public Disclosure“.

That is all there is to Appendix R. It is 100% secret. Even the number of pages is not disclosed, as it is with the other Appendices, that one can actually read.

So the huge question is”What’s the secret?” What is so secret that every word has to be kept from the public?

It cannot be the details of project construction and operation, because these are abundant in other Appendices. Nor that there are risks to others. The very next, Appendix S, is Navigation Safety Risk Assessment. There are 225 public pages there.

My guess is that it says there are real risks to the Right Whales, maybe to other species too. Of course there is nothing proprietary or business confidential about this sort of analysis. In fact it is central to public policy making.

That this assessment is kept secret is outrageous all by itself, but it also raises a much deeper issue. Will the BOEM Environmental Impact Assessment also include secret science?

BOEM is currently doing a draft EIA, scheduled to come out this December. Agencies are not allowed to disclose proprietary and confidential business information. Will BOEM ignore Appendix R, or even worse use it without disclosing it? The same is true of their secret, million-dollar study of Right Whale migration. Migration behavior is central to OSW risk assessment.

Speaking of migration behavior, I got some truly valuable data from a prominent whale watching and advocacy group. They say “As for your question regarding migrations, there is a great online resource which documents surveyed and opportunistic sightings and acoustical detections of right whales called WhaleMap https://whalemap.org/WhaleMap/. In general, a subset of the population, including pregnant females, migrates to the calving area in Southeast US around November and move back to northern waters in the spring. However, there are acoustic detections in the mid-Atlantic waters year-round and not all right whales migrate. To make things more complicated, some whales have migrated to the Southeast US, returned to the northeast waters, and then back to the southeast within the same calving season.”

So it looks like Right Whale migration is complex stuff. It is like this with some birds, blue jays for example. Maybe this is what BOEM found and does not want to release. After all, their middle name us “Ocean Energy” so they are all for this monster project.

Speaking of bias I am somewhat skeptical of Dominion’s secret assessment. It was done by a heavy duty engineering group named Tetra Tech Inc.

Unfortunately their Home Page motto is “Committed to Sustainability and Climate-Positive Actions”. Offshore wind is certainly claimed to be a “Climate-Positive Action. Saving the desperately endangered North Atlantic Right Whales from these ill-conceived actions, not so much. Clearly Tetra Tech is committed to this OSW project.

Since all the impact assessment to date seems to have been done secretly by proponents of the project, I expect the first draft EIA to be pretty poor when it comes to protecting the whales. Hopefully defenders of the whales will rise to the occasion.

Save the whales from OSW!

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Richmond’s unfinished business: tax indexing

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Most Virginians are painfully aware ­­­­that it’s becoming much more difficult to make ends meet. Prices for fo­­­­od, housing, gasoline and other necessities have soared. Inflation hit a 40-year high of 9.1 percent in June, the largest yearly increase since January 1982. And a recent study from the University of Iowa found that a typical American had to pay $669 more for basic living expenses than they did just two years ago.

All while the Commonwealth of Virginia was pocketing $2 billion in “surplus” revenue that was not anticipated and therefore not included in the two-year $165 billion state budget the General Assembly passed earlier this year. Most of that windfall was the result of the Federal Reserve’s monetary inflation, which made the prices of consumer staples soar because there was suddenly a lot more dollars chasing the same amount of goods and services. But inflation had another unwelcome effect. It also pushed Virginia taxpayers into higher tax brackets despite the fact that their actual living standards went down, not up.

Governor Glenn Youngkin wants to set aside $400 million for tax relief in his revised budget, which he will present to the state legislature in December. But that’s less than a quarter of the total surplus. The budget signed by Youngkin also includes $450 million to pay for potential cost overruns on the commonwealth’s capital projects due to … you guessed it …. inflation.

No additional money was set aside to cover transportation overruns, although that may be coming. Referring to the higher material and fuel costs faced by road construction companies, Virginia Transportation Secretary Shep Miller said that “we don’t want anybody to get crushed here through this inflationary process.”

That same logic should apply to taxpayers being pushed into higher tax brackets due to the same inflationary process. It’s called “bracket creep,” and it has the same effect as a tax hike – without lawmakers actually having to vote for one.

The commonwealth has four graduated-rate individual income tax brackets, with the lowest marginal rate of 2 percent and the highest of 5.75 percent as of January, according to the nonprofit Tax Foundation. The top bracket is triggered at $17,000, so all but the lowest income earners pay the highest rate.

Virginia is one of 13 states that have not indexed their state income taxes for inflation. And unlike other states, the commonwealth does not adjust standard deductions or personal exemptions for inflation either.

“The absence or insufficiency of cost-of-living adjustments in many state tax codes is always an issue, as it constitutes an unlegislated tax increase every year, cutting into wage growth and reducing return on investment. During a period of higher inflation, however, the impact is particularly significant,” according to Jared Walczak, vice president of state projects at the Tax Foundation.

The easy cure for this problem is indexing, which is simply adjusting state tax rates to account for inflation. Indexing is not rocket science. Under indexing, standard deductions and tax brackets rise in conjunction with the Consumer Price Index so that taxpayers are not forced to pay more taxes in addition to inflated prices for goods and services. It’s the same idea behind the Social Security Administration’s cost-of-living adjustment (COLA) to the monthly checks it sends to retirees, blunting the impact of the hidden tax of inflation on people living on a fixed income.

Indexing is also an issue of equity. According to the nonpartisan Institute on Taxation and Economic Policy, “the long-term effect [of inflation] can be a substantial tax hike – and one that falls hardest on low- and middle-income taxpayers.”

But the Gener.al Assembly balks whenever indexing is considered even though bracket creep forces Virginias to pay higher taxes without any corresponding increase in their standard of living. This makes taxpayers poorer and the commonwealth richer.

The 2022 General Assembly did pass a number of new tax laws, which went into effect on July 1, including a reduction of the sales tax on groceries, an increase in the standard deduction for state income tax filers if certain revenue targets are met, and a one-time income tax rebate ($250 for single filers and $500 for couples filing joint returns).

But the legislature fell short of indexing state income taxes to account for the inflation that is currently ravaging the economy. This means that bracket creep will increase state income taxes automatically, without members of the General Assembly actually voting for it, which is apparently just fine with them. Politicians love having more of other people’s money to spend without the political liability of voting for a tax increase.

But it’s not fine for Virginians hit with a double whammy, watching their state income taxes rise just as the buying power of that same income declines.

Youngkin knows this. “We have been overtaxing Virginians,” the governor noted in an interview with Yahoo!Finance, calling inflation “the silent thief.” But the $4 billion in tax relief Youngkin included in the state budget that went into effect on July 1 does not address bracket creep, thus allowing the “silent thief” to continue to prey on Virginia taxpayers.

Indexing state income taxes to account for inflation to prevent this recurring, non-legislated tax hike is common sense tax reform that the Thomas Jefferson Institute has long urged our leaders in Richmond to enact. With the cost of everything rising faster than most Virginians’ income, voters should demand that both the governor and members of the General Assembly take care of this unfinished business.

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Jefferson Institute Legal Analysis: Performance Standard for Offshore Wind Farm is Proper

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Despite Dominion Energy Virginia’s complaints that the Virginia State Corporation Commission has exceeded its authority, a legal analysis provided by the Thomas Jefferson Institute for Public Policy finds that the SCC’s proposed performance standard for an offshore wind project is proper.

The analysis was provided by Institute Senior Fellow Dr. David W. Schnare, an attorney and scientist with long regulatory and litigation experience.

The SCC has approved Dominion’s application for permission to build the $10 billion, 176-turbine Coastal Virginia Offshore Wind project but added a condition the utility is opposing. It would protect the utility’s customers from paying any additional costs that result from the project failing to meet is promised power output. The target would be an average capacity factor of 42% over three year periods.

Dominion has asked the SCC to reconsider the performance standard and potential financial penalty, and the SCC is accepting additional legal briefs from the parties to the case. Virginia Attorney General Jason Miyares (R) and several environmental organizations proposed the performance standard which the Commission adopted, which was more stringent than its own staff had proposed.

Comments from other interested parties are also being accepted into the record. The author of these comments from the Suburban Virginia Republican Coalition, Collister Johnson, is also an attorney but his document is not in a legal format.

The Virginia General Assembly passed legislation in 2020 that was intended to spur construction of the project and directed the SCC to find it “reasonable and prudent” if the cost was no higher than a specific levelized cost of energy (see here, paragraph C.1.) Only one of the three conditions set by the Assembly in that provision involved the cost of the project or of the energy it produces.

In his submission for the Thomas Jefferson Institute, Schnare writes:

…the Commission retains the authority to balance the risks and may do so through the lens of some form of a performance guarantee. When its investors, through filings of VEPCO, make the claim that the average annual turbine availability of the Project will equal or exceed 97% or the Project’s net capacity factor will exceed 37% on a three-year rolling average basis, they establish an expectation that the costs associated with meeting those performance levels are both reasonable and prudent…

Nothing in 1:11 C.1 limits the SCC from considering additional, rational, conditions when determining whether the cost recovery request is “otherwise” unreasonable and imprudent.

In its Final Order, the Commission found that “[t]he lifetime revenue requirement and levelized cost of energy estimates presented by the Company are based on a projection that CVOW, once in operation, will achieve a net 42% capacity factor.”[i] (Emphasis added.) Indeed, VEPCO does not retreat from its expectation that the Project will achieve an average annual net capacity factor of 42% over the 30-year life of the Project.”[ii] (Emphasis in the original.)

VEPCO wants the Commission to ignore the predictions it made, ignore the duty to base its “just and reasonable” determination on what can “reasonably be predicted to occur,” and instead adopt an agreement (stipulation) made by some, but not all interested parties, and by no one representing the customers.

Thus Schnare noted, as the Commission did, that the levelized cost of energy and the ongoing capacity factor of the project are basically measuring the same thing. It was the General Assembly that determined the levelized cost of energy represents the demarcation line between reasonable and unreasonable cost.

The ongoing capacity factor is only one element in calculating an ongoing levelized cost of energy, but it is the main one. Most of the other elements are the upfront construction costs and the maintenance costs over time, and any tax credits the utility reaps. The capacity factor, which will be dependent mainly upon the weather and long term reliability of the turbines, is the big variable, unknown looking out 30 years.

And Schnare certainly knows his business. An attorney and scientist with 33 years of federal and private sector experience, he was formerly the nation’s chief regulatory analyst for the Small Business Administration’s Office of Advocacy, with experience on Congressional staff, as a trial lawyer with the Department of Justice and the Office of the Virginia Attorney General, and as senior enforcement counsel at the U.S. Environmental Protection Agency.

Although Schnare did not say so, we believe if the utility would prefer to calculate and certify the entire levelized cost of energy every three years and make up the difference if the entire LCOE falls below the statutory target, the SCC could consider doing it that way instead.

Stephen D. Haner is Senior Fellow with the Thomas Jefferson Institute for Public Policy. He may be reached at steve@thomasjeffersoninst.org.

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Consequences of The Quest for Zero Carbon

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close-up of words CARBON TAX written on vintage typewriter

Virginians may be finally waking up to the consequences of the headlong rush to adopt utopian energy policies under our previous governor. The issues are getting more attention than ever before, and now people need to realize all the issues are really just one issue.

  • A California regulatory board’s decision to ban new gasoline vehicle sales by 2035 is finally being widely reported as binding on Virginia. This has angered many but was actually old news.  Under a 2021 Virginia law, our Air Pollution Control Board had already imposed the future sales restrictions, and it was some new amendments that sparked the news coverage.   Various political leaders have now promised to stop it but a bill to reverse it died in the 2022 General Assembly when Democrats rallied to save the mandate.
  • Our dominant electric utility has finally acknowledged that its planned $10 billion offshore wind facility is a gigantic financial risk and is now refusing to build it unless the State Corporation Commission (SCC) places 100 percent of the construction and performance risk on its customers.  Dominion Energy Virginia knows many things about this proposal it has not told us.
  • Governor Glenn Youngkin (R) is trying to remove Virginia from an interstate compact that mandates a carbon tax on electricity, imposed under former Governor Ralph Northam (D).  Advocates for the tax are pushing back and will fight, delay and likely sue to preserve the tax, which costs Virginians $300 million per year at current levels and will continue to rise.  Without explanation, the Governor did not keep his initial promise to promulgate an emergency regulation that could remove it quickly, so the tax lingers.
  • Governor Youngkin has opened the process for developing a revised statewide energy plan document, a political process to produce what in the past has been merely a political document.  The public comment portal has already become an ideological showcase. Northam’s 2018 plan had no engineering or economic detail.  It simply praised the legislative efforts to erase fossil fuels which had been adopted to that point and outlined the next steps his administration would take (couched as recommendations.)

Legislation also signed by Northam demands that the Youngkin plan now address far more issues in that plan than Virginia has addressed to date, issues not raised in the 2018 document.   He is required to produce a plan:

that identifies actions over a 10-year period…to achieve, no later than 2045, a net-zero carbon energy economy for all sectors, including the electricity, transportation, building, agricultural, and industrial sectors.

That instruction is not highlighted on the website about the new planning process, which merely mentions “environmental stewardship.”  Yet if the plan fails to chase net-zero to the satisfaction of those who claim carbon dioxide is an existential threat (rather than just plant food), expect additional litigation. 

That state law is the common thread running through all pending issues, and also wraps around the rising energy prices for your home and car and business. 

The Virginia General Assembly, during the short period of total Democratic control, voted narrowly to bind the state to California’s aggressive effort to remove gasoline and diesel vehicles.  It did so in line with that overarching policy imposed by the code, and that mandate is what needs to be examined, debated and considered for repeal along with the auto regulations. The Virginia General Assembly, during that same short period, voted to require Dominion to propose the offshore wind installation, a risky expense that would never be considered reasonable and prudent otherwise, as the SCC itself has implied.  Again, the justification is compliance with that net-zero policy demand, based on claims that failure to act is a path toward some onrushing climate catastrophe. 

The carbon tax under the Regional Greenhouse Gas Initiative is justified as a means of reducing carbon dioxide emissions but has the added attraction of raising dollars that politicians can then dole out with ribbon cuttings and press releases.  If Virginia were to reverse the underlying policy and decide a net zero economy is neither possible nor desirable, RGGI is clearly just another tax and spend regime. 

The debate as Virginia approaches its next round of legislative elections in November 2023, should be about that net zero statutory mandate and the evidentiary claims behind it.  The offshore wind boondoggle, the abdication of sovereignty to California, and the RGGI tax are all trunks growing off that one taproot.

If the root remains embedded, if that law remains on the books, then what has been going on in the electricity and transportation sectors will expand into mandatory building code restrictions and the elimination of natural gas, heating oil and propane as common fuels. The net-zero vision for agriculture includes the elimination of many fertilizers and limits on production of livestock.  If you doubt that, read about what is going on in Sri Lanka and The Netherlands

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