Dominion Will Only Build Wind Farm If Risk is on its Consumers

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Now comes applicant Dominion Energy Virginia, petitioning the Virginia State Corporation Commission to reverse its recent decision to impose actual financial risk on the company and its stockholders. If a hurricane blows down its planned offshore wind farm in a few years, the related costs should be imposed 100% on its captive ratepayers, Dominion demands.

Imagine that, expecting a monopoly with a guaranteed right to earn in excess of 10% profit on a $10 billion project to face actual risk. What is the world coming to?

The claim this project was a safe and reliable investment was Dominion’s opening bet and smelled like a bluff to most of us.  The General Assembly bought it.  But the SCC called the bluff, and now Dominion is threatening to fold. What does that tell us about its hand?

The regular news media has covered this latest development in the Coastal Virginia Offshore Wind saga, so I’ll focus a bit deeper. When the SCC imposed a performance standard with some teeth, I wrote that a motion to reconsider that part of the approval was possible. Here is the petition. The motion has now been granted and parties to the case have until September 13 to dispute Dominion’s assertions, and the company gets a final reply on September 22.

If unhappy with the final SCC ruling, an appeal by the utility to the Virginia Supreme Court is likely.  In its petition Dominion helpfully reminded the Commission of other times the Supreme Court has overruled SCC efforts to protect consumers, one just a couple of weeks ago.

Here is the one thing all must remember, something stressed only in columns on this topic for Bacon’s Rebellion and the Thomas Jefferson Institute. Huge swaths of the case record are secret.  Sometimes it is a few redacted paragraphs, sometimes entire documents. Much of the information withheld from the public relates to the various risks that could increase the costs of the project or cause it to fail miserably.

The SCC judges and their staff have read all those secret documents. Attorney General Jason Miyares’ team in the Office of Consumer Counsel have read all those secret documents. The lawyers for the various environmental groups, otherwise highly supportive of offshore wind, have read all those secret documents.  There have also been secret interrogatories exchanged.

Having read them, they endorsed a significant performance standard with financial penalties. In its final order, the SCC noted the multiple risks, although it did not specifically cite any of the secret reports or testimony. What is in those secret documents? Can we see them now? Did they motivate the decision to adopt the performance standard?

Recent unrelated developments have many Americans on edge again over government secrecy. Secrecy is usually bad policy. In this case, it is Dominion itself which can open it all up. It requested the secrecy.

If the case moves up to the Supreme Court, the appeal will be based on the allegations in this petition, and the various hidden facts and expert opinions in those secret documents probably will not even be considered. The meanings of various statutes and the extent of the SCC’s authority will be the only debate, not the reasons for its decision to impose a performance standard.

One fact that is on the record is that no other utility on the East Coast is proposing to build and own such a project directly, imposing all the risk on its customers. The other projects in the pipeline are all being built by third parties who then sign a long-term contract to sell the power or the renewable energy credits. If the projects don’t produce power, the risk shifts at least in part to those developers. Dominion refused that option out of greed.

A quick refresher: No generator runs at 100% capacity 100% of the time. Projects dependent upon sun and wind have relatively low capacity factors, and in this case, Dominion bragged it would produce a 42% capacity factor with these 176 offshore turbines. That is substantially higher than has been achieved in Europe, with an average of just under 35% capacity output from offshore turbines.

The lower the energy output, the higher the cost to consumers per unit of energy. Zero output from a $10 billion project ($21 billion with profit and financing costs) would prove quite expensive.

In the discussion of the original opinion, I noted that some variation below the 42% figure probably would not have financial consequences for the company. And in this new brief, Dominion again argues the project is financially beneficial with as low as 38% capacity factor. (That would still, however, increase the cost per unit of energy.) That confirms my observation.

No, a steady output that simply fails to average out to 42% over each three-year period is not what scares the utility. The risk it refuses to take on, to impose on its shareholders, is the risk of major failure, including a catastrophic failure. That risk, which was evident before the first piece of legislation mandating this was ever introduced in Richmond, should have kept Virginia totally off this road in the first place.

Dominion admits the risk is huge.  That is how to interpret this appeal, an admission of risk and an effort to foist it on customers.  Ending this mistake now is a viable option.

A version of this commentary originally appeared August 24, 2022 in the online Bacon’s Rebellion, and has been updated with additional material. 

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Renewables Subsidy Chaos Coming

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A funny thing happened on the way to the Senate. It is all about the so-called Inflation Reduction Act (IRA), which really should be named the Inflation Act. Only Democrats can believe that raising taxes reduces inflation.

The Democrats writing the IRA decided that since tax credit subsidies do a good job of promoting renewables and electric vehicles, they should do more. They should promote things like union wages, mining and manufacturing, which have nothing to do with climate.

Think of it as social engineering squared. In the vernacular this is called “mission creep”. A program designed to do one thing tries to do something very different, often unsuccessfully.

In the process the tax credit rules have become very complex. The funny thing is that these complexities may actually stifle the growth of renewables and EVs.

Let’s just look at renewables and wages. The IRA takes a two step approach. First it cuts the tax credit subsidy by 80%, which is certainly not going to promote growth. In fact it could eliminate growth entirely since most developers of big wind and solar projects are only doing it because of the subsidies.

Step two then restores the tax credits under certain specific circumstances. Chief among these is that the construction of the project must be carried out entirely by contractors and subcontractors that pay all their laborers and mechanics what are called “prevailing wages”.

This sort of prevailing wage requirement is common for certain federal projects so the concept is well established. It typically means union wages, which can be significantly higher than non union contractors pay. Biden has repeatedly bragged about creating union jobs and this is what he is talking about, even though the word “union” is not used. The required amount of such wages is determined by the Secretary of Labor on a local basis.

Wages have nothing to do with climate and this is a wide ranging new requirement for the industry. Implementing it will be difficult and may create some serious problems. This is especially true because subcontractors are included, making the scope quite large.

To begin with the project owner will have to determine that every contractor pays the correct wages. In addition every contractor will have to make this determination for every one of its subcontractors, passing this assurance on to the owner.

An elaborate certification process will likely be necessary since large amounts of money are at stake. A single subcontractor not paying enough wages could get all the tax credits cancelled. In addition there are hefty financial penalties.

A bigger problem may be that some, or even many, potential contractors or subcontractors will not want to increase their wages just to work on a renewables project. Finding those that will could seriously delay a project, or even render it unworkable.

Here is a theoretical example. Wind tower foundations take a great deal of concrete. This might mean contracting with a firm to set up and operate what is called a batch plant, which makes concrete on site. Given that wind arrays are typically built in remote areas the number of available blanch plant contractors could be quite small. They might not want to up the wages they pay just for this project.

Then too, the subcontractors in this case include the cement maker, gravel vendor, and maybe a water seller that supply the batch plant, possibly also one or more trucking firms to deliver the stuff. Each of these firms would have to determine and pay the prevailing wages, which some might not care to do.

With solar there is a lot of site work, including timbering, earth moving, road building, assembly, erection, etc. and this could get truly hairy. With offshore wind there may well be foreign contractors or subcontractors, since that is where the technology comes from. How the wage rules apply to foreign companies could be a problem. If suppliers are considered contractors and subcontractors it gets really hairy. Stuff from China for example.

This is the problem with prescriptive social engineering that is essentially voluntary. People can decide not to do it.

On top of this there is another problem that is potentially much bigger. The law says that if there is a low wages noncompliance the cancellation of the credits and the penalties are both on the taxpayer. But many of these tax credits are sold to people with big incomes and firms with big profits.

In this case it is the buyers using the credits that get hammered, not the wind and solar companies that sold them the credits. Every buyer is at risk that it will later be found out that some subcontractor failed to pay the official prevailing wage. They could lose their entire investment plus be subject to serious penalties and interest. That is a lot of risk.

This new risk has got to have a seriously chilling effect on the market for renewables tax credits, which could greatly reduce the growth.

Moreover under the same IRA the IRS is being heavily funded to greatly increase its audits of big ticket taxpayers, which the renewables tax credit purchasers undoubtedly are. This makes the risk even greater. How this risk can be reduced remains to be seen.

In this case the audits should include the wages paid by the contractors and subcontractors, since the validity of the tax credits depends on these wages. This might be another reason why firms might not want to work on renewables construction projects, especially small businesses that cannot afford audits.

In short, turning the renewables tax credit program into an instrument to raise wages and support unions might wind up seriously hurting the industry. The new complexities and risks are daunting at best. Chaos is likely in the short run. Stay tuned.

A version of this commentary originally appeared on the Committee for a Constructive Tomorrow website. Dr. David Wojick is a civil engineer and cognitive scientist and a Visiting Fellow with the Thomas Jefferson Institute for Public Policy. He may be reached at info@thomasjeffersoninst.org.

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Most of $3.2 Billion State Surplus Already Spent

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Does last week’s glowing report on Virginia’s state tax collections presage additional tax relief for struggling families? The first question is, was the news really glowing?

Less than 18 months ago, in April 2021, the Virginia General Assembly and then Governor Ralph Northam (D) agreed upon a set of revenue assumptions and spending plans and adopted a budget for the coming two fiscal years. As of June 30 of this year, ending the first of those two years, tax revenues turned out to be $6.2 billion higher than that projection.

How much of that $6.2 billion is coming back to Virginia taxpayers? Less than 20 percent of it, about $1 billion, in rebates due in a few weeks. In reality, that $1 billion was pulled from the surplus from the prior fiscal year. The additional, unexpected $6.2 billion for Fiscal Year 2022 has been spent, will be spent, or is being parked in the state’s reserve funds to sustain future spending.

The massive explosion in state revenue has mainly resulted in additional state spending. Yes, the 2022 General Assembly agreed to several future tax reductions, reducing future revenues, but it did so assuming that the new, higher level of state spending would still be protected. If Virginians really want to pay less in taxes, slowing down the spending growth is the first goal.

Every August the legislators come to Richmond to hear the Governor, now Republican Glenn Youngkin, announce the financial results from the fiscal year just ended and outline plans for the coming months. The underlying data follows a set format, but each administration can change focus or emphasis and it can be interesting to see how things are packaged.

A key point to remember: This discussion focuses on the general fund, fed by state taxes. With one exception there is no mention of the non-general Fund side of the budget, which has exploded even faster due to grants and transfers from the various federal COVID packages and could be producing surpluses as well.

The April 2021 budget mentioned above was then adjusted by the 2022 General Assembly, which could see the revenue wave starting. Even that adjustment, approved just three months ago, proved to substantially underestimate tax revenues and transfers by $2 billion.

Governor Youngkin also revealed, and not all governors mention this, that another $1.2 billion allocated to the various agencies of government had not been spent by June 30. He added it to the unexpected revenue. From his prepared remarks on August 19:

But I am incredibly proud to share – and hope Virginians will be proud to hear – that our state government spent roughly $1.2 billion less than was appropriated by the General Assembly. And the combination of the roughly $2 billion in unplanned revenue and the $1.2 billion dollars of unspent appropriations resulted in a $3.2 billion dollar cash surplus at year end.

He then went on to explain, for those listening closely, that most of the surplus was already appropriated before he ever got to that podium. (You can read his prepared remarks here.)

The $1.2 billion the agencies didn’t spend is already reappropriated, “carried over” for the new fiscal year (one reason many governors don’t count that when they announce a “surplus”). Another $900 million is earmarked for the constitutional reserves. Almost $600 million will go to items the General Assembly approved contingent upon a surplus being achieved.

If that $600 million was spent in advance, should it even have been included in any claimed “surplus” or “unplanned revenue?”

A real surplus – what in the business world might be called free cash flow – is almost impossible. This is a situation legislators and governors from both parties have created. Legislation and constitutional provisions automatically earmark unexpected revenue. That is all the more reason Governor Youngkin’s decision to set aside $400 million for future tax relief is noteworthy. That might actually count as a real surplus, but the other $2.8 million is already gone.

Whether there is any additional tax relief next year will depend first on how the economy is faring six months from now, and there are signs in Secretary of Finance Stephen Cumming’s presentation (the slides are here) that inflation and the Federal Reserve’s efforts to crush it are dampening Virginia’s prospects.

Last year, when Governor Northam announced that general fund surplus, he also noted a large amount of extra revenue collected by the separate Commonwealth Transportation Fund. Not so this year. The state tax sources that fund the non-general fund transportation activities missed their most recent revenue projections by $32 million. Neither Governor Youngkin nor Secretary Cummings mentioned that shortfall, which is mainly due to lower fuel consumption, a possible recession signal.

Back on the general fund ledger, other tax sources which are economic bellwethers are stagnant. Recordation taxes went down in 2022 compared to 2021. One category of taxes on alcohol consumption shrank while another grew, but barely, at a rate far lower than inflation. The sales tax growth of 9 percent reflects mainly inflation, so good news for the state there is bad news for consumers looking at higher prices (which also hit government, remember.)

The categories where revenue has exploded beyond expectations include the corporate income tax (up 110 percent in three years) and those elements of the personal income tax where business income is reported and taxed for individuals. Business owners, including investors, do not have tax withheld on income but make quarterly payments. Those non-withholding collections were up 71 percent between 2019 and 2022.

Secretary Cummings reported that of the final $1.9 billion spurt of unexpected tax revenue in the most recent months, 75 percent was due to non-withholding payments. Another 15 percent was due to smaller refunds being paid on previous years’ taxes, and those refunds also tend to be larger with the non-withholding taxpayers.

Non-withholding revenue, refunds and corporate income taxes are the most sensitive to the business climate, the most likely to actually take a dive in a recession, and the most likely to be trimmed if the recent Congressional tax increases tighten business profits.

One good thing about unexpected revenue is that it is unexpected. Therefore it is not baked into the next year’s revenue assumptions, creating a new floor. Yes, the 2022 General Assembly pre-spent $600 million of it, but on one-time expenses, not base budget items. The fiscal year we are in now, which ends June 30, 2023, assumes basically the same level of General Fund revenue $24.8 billion) as was collected in Fiscal Year 2021.

The current politically divided General Assembly will only consider additional tax relief if the revenue needed for the spending side is assured, probably with a healthy adjustment for additional inflation. That will come first, and a realistic assessment of the state’s business climate indicates even that could be a challenge.

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SCC Approves Dominion Wind Project, Cites “Will of the General Assembly”

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Rejecting an agreement that its own staff reached with Dominion Energy Virginia, the State Corporation Commission has imposed at least some level of financial risk on the utility’s shareholders should its $10 billion offshore wind project fail to match the company’s promised performance.

Lest you think that means the ratepayers can relax, the long final order issued August 5 once again highlights all the things that could go wrong with the Coastal Virginia Offshore Wind (CVOW), scheduled to fully operational by 2027.  The regulators also wash their hands of any responsibility and record for posterity that the Virginia General Assembly made them approve this.

The project, which still faces federal reviews, but which is beloved of the Biden Administration, calls for 176 turbines and three substations to be constructed 27 miles off Virginia Beach.  Generated electricity will then come ashore, and 17 miles of major transmission upgrades will be built to feed it into the grid.  The nameplate value is almost 2,600 megawatts but that is misleading, as the company is only promising a 42% capacity factor – less than 1,100 megawatt of average output over time.

As previously discussed, several parties to the case urged the commission to convert that promised 42% capacity factor into a firm commitment, with possible financial penalties.  The idea was fleshed out by an expert witness retained by Attorney General Jason Miyares (R), who cited a previous Virginia case where a performance requirement was imposed on a Dominion solar deal and similar agreements in other states dealing with onshore wind.

Miyares and other parties, including environmental advocates otherwise very supportive of wind energy, refused to join a stipulation between Dominion and the SCC’s own technical staff in part because it lacked such a performance agreement.  Before abandoning the idea in the stipulation, the staff had also called for a performance agreement, but at a much lower (and easier to meet) 37% capacity factor.

The Commission’s rejection of that stipulation is the secondary headline here.  It also ignored the staff’s stipulation and imposed more stringent notice requirements – 30 days – if the utility faces construction or other problems that are going to raise the ultimate cost to consumers.

In its own media release on the decision, Dominion noted it is evaluating the performance agreement and that the order “does not outline the details surrounding that requirement.”  Everybody is being very cagey so far, but a motion for reconsideration might follow, and the utility has a right to appeal to the Supreme Court of Virginia.

Here is what the order does say about the performance standard:

“Specifically, beginning with commercial operation and extending for the life of the Project, customers shall be held harmless for any shortfall in energy production below an annual net capacity factor of 42%, as measured on a three-year rolling average.  As noted by the parties requesting such, this performance standard does not prevent the Company from collecting its reasonably and prudently incurred costs. Rather, it protects consumers from the risk of additional costs for procuring replacement energy if the average 42% net capacity factor upon which the Company bases this Project is not met.

“Dominion, nonetheless, asserts that it would be inappropriate for the Company to be put at risk if it fails to meet the capacity factor upon which it has justified and supported this Project. We disagree.”

“Additional costs for procuring replacement energy” is the operative phrase.  If a few years from now the facility is operating at 35-40% capacity, and the rest of Dominion’s system is chugging along, there likely will not be substantial “additional costs,” if any.  On the other hand, a catastrophic failure bringing a three-year period down to minimal or no output, and Dominion could be on the regional market buying quite a bit of very expensive “replacement energy.”

Before this does much good for consumers, there will be more courtroom disputes, more high-fee expert accountants and witnesses and tap dancing lawyers, and even appeals.  This never gets simpler.

The decision creates yet another stand-alone rate adjustment clause on Dominion bills, this one to be Rider OSW.  It should appear in September and start to grow in the next few years, peaking at more than $14 per 1,000 kilowatt hours of usage in 2027.  Then it tapers off but remains for decades. Many moving and unpredictable parts will determine the future charge to customers, as discussed here.

Assuming it qualifies for the massive federal tax credits, only a portion (about $7.4 billion) of the initial capital cost will be paid by customers.  However the order warns:

“To be clear, total Project costs, including financing costs, less investment tax credits, are estimated to be approximately $21.5 billion on a Virginia-jurisdictional basis, assuming such costs are reasonable and prudent. And all of these costs, not just $7.38 billion, will find their way into ratepayers’ electric bills in some manner.” (Emphasis added.)

Only two of the three seats on the Commission are filled, by former Virginia Attorney General Judith Jagdmann and former Federal Energy Regulatory Commission staffer Jehmal Hudson.  As she has done before, Judge Jagdmann added her own thoughts in a concurrence, focusing again on how the Commission’s hands were tied by the General Assembly’s actions.  Beginning on page 40 of the order she wrote:

“…the statute clearly establishes that this Project represents the will of the General Assembly. Almost four years ago, this Commission approved Dominion’s Coastal Virginia Offshore Wind demonstration project, which consists of two 6 MW wind turbine generators located approximately 24 nautical miles off the coast of Virginia Beach. approving that project, which was estimated to cost approximately $300 million (excluding financing costs), the Commission – noting the high cost per MWh and the risk being placed on ratepayers- expressly found that such approval did not foreclose rejection of future projects (such as the instant one) if the Commission found the project to be imprudent.

“Thus, it is instructive that in subsequently enacting legislation for this Project, the General Assembly expressly set forth particular circumstances under which costs for such project must be presumed to be reasonable and prudent.”

She calls on the General Assembly to revisit the project, which will take years to build and many more years to pay for, “to determine if additional steps are warranted to reduce the economic burden that will be placed on Dominion’s customers as the Project proceeds.”  Perhaps some General Fund cash could be applied, or the proceeds from the “consumer-funded” Regional Greenhouse Gas Initiative, she suggests.

The order and Jadgmann’s additional comment also focus on how the risk is being placed entirely on captive ratepayers, something else the Assembly could revisit and change, if not for this project, then for any future one.  They could insist Dominion do what other states are doing, letting non-utility firms actually build and own the turbines and sign power purchase deals with utilities.

It will matter.  Dominion’s published plans have called for a second tranche of turbines next door to this project, and the Biden Administration and Congressional Democrats are now placing most of their energy eggs and financial incentives in the offshore wind basket.

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No MVP in this Trading Deal?

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And now, from our “I’ll believe it when I see it” department, comes the expectation that passage of President Joe Biden’s new corporate tax hike and green energy incentives package will be followed by a smooth path to completion for the Mountain Valley Pipeline (MVP) for natural gas.

The topic is everywhere today because Senator Joe Manchin, D-W.Va., included it as a deal point on a summary of what he sees as agreed outcomes from his decision to support the package. But the massive bill does not (and could not) include blanket approval of the pipeline among its provisions.

Instead, there is reportedly a side agreement, and future legislation and administrative actions are expected to smooth federal permitting processes for energy projects, including the fossil fuel projects hated by the climate- catastrophe priesthood. A key element would remove the Fourth Circuit Court of Appeals from hearing the multitude of pipeline lawsuits and move them to the District of Columbia Court of Appeals.

The 303-mile pipeline stretching from gas fields in West Virginia to Chatham, Virginia, where it ties into an existing natural gas trunk line, is largely complete but is still fighting for permits to cross various wetlands and federal properties. Already about four years behind schedule, the developers are asking for another four years to get the job done.

The Wall Street Journal editorial page is skeptical that any such deal will hold once Manchin has actually voted to pass the tax hike and tax credit package, which as a budget reconciliation bill is exempt from the filibuster rules. The editors wrote:

What’s needed is a wholesale reform of environmental laws that fossil-fuel opponents have weaponized. Perhaps they should be forced to pay the costs of their obstruction if project developers prevail, as two pipelines did at the Supreme Court in recent years only to be scrapped by investors amid more lawsuits. The incentives have to change.

Will Democrats agree to legislation that stops their allies’ legal barrage against fossil fuels? Unless they do, Mr. Manchin’s reforms will do as much to save fossil fuels as the League of Nations did to stop World War II.

A second bill dealing with energy regulation would be subject to filibuster, thus needing at least ten Democratic votes along with the 50 Republican votes to pass the Senate. Then there is the House, where Democrats hold a stronger majority and may not dare to inflame the environmentalist voters before the November mid-terms.

As a report in today’s Virginia Mercury makes clear, those who believe natural gas is satanic are struggling to balance their hatred for the MVP project with their lust for the huge tax incentives baked into the bill for future renewable energy projects. But some have taken a strong stance:

“We firmly oppose any approach by Congress that sacrifices frontline communities as part of a political bargain,” said Jessica Sims, Virginia field coordinator for environmental and economic development nonprofit Appalachian Voices, in a statement. The group’s North Carolina field coordinator, Ridge Graham, called any legislation requiring completion of Mountain Valley “unacceptable.” 

Mercury also reports that Virginia Democratic Senator Tim Kaine is open to new legislation on federal permitting, but it includes no information on how he would feel about the deal Manchin is seeking to immediately smooth the MVP’s current path. Even in this current world-wide energy crisis, Kaine is still questioning whether there was or is any need for the pipeline.

Dwayne Yancey at Cardinal News, its region at the heart of the controversy, seems to accept that the deal is done, that Manchin has succeeded in getting the “Biden administration and top congressional Democrats to back the pipeline.” Yancey is into the political side of the story, the trade-offs, but doesn’t see much benefit to Virginia if the MVP is completed.

His column is clearly an effort to sell the deal to MVP opponents. He starts with an early premise that President Biden is not really an opponent of the “fracking” drilling techniques to release massively more natural gas from the ground and seems to blame Biden’s wishy-washy stance as a reason he almost lost. He sees his region as being sacrificed. He writes:

It’s easier to make tough deals involving somebody else’s sacrifice. Would Schumer have been so keen for this deal if the Mountain Valley Pipeline ran through New York? Would Pelosi have gone along if it went through San Francisco? Probably not, right? It’s a lot easier for those at the national level to be more dispassionate about the deal than those who are closer to the actual pipeline. The Washington Post quoted some on the left who seemed OK with the Mountain Valley-Pipeline-for-Manchin’s vote deal. “We must pass the Inflation Reduction Act if we want to get on track to cutting carbon pollution in half by a decade,” said one California-based energy expert. “Without this legislation we don’t have a pathway to get there; with it, we have a fighting chance….”

There is no fighting chance. Carbon emissions will not, repeat not, be cut in half in our lifetimes, let alone a decade. This coming winter will demonstrate to all that reliance on wind and solar will doom a modern economy to failure unless Putin the Merciless relents and turns on the natural gas taps for Europe. More wind and solar will indeed be built in the U.S. if this bill passes, more electric vehicles sold, but despite the sugar high of the taxpayer-financed subsidies, there will still be days when the sun doesn’t shine, the wind doesn’t blow, and those of us with gas furnaces, propane grills and internal combustion vehicles sigh with relief.

As to getting the Biden Administration or Virginia’s key Democrats to back the Mountain Valley Pipeline, I’ll believe that when I see it. Manchin better get that vote on the board first.

A version of this commentary originally appeared August 3, 2022 in the online Bacon’s Rebellion.  Steve Haner is Senior Fellow with the Thomas Jefferson Institute for Public Policy.  He may be reached at Steve@thomasjeffersoninst.org.

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