McCarter & English, LLP : Climate Change Blog

Wednesday, June 16, 2010

A Cell Phone EMF Ordinance in San Francisco - Bad Precedent for the Smart Grid

In a setback for cell phone providers, San Francisco is likely to become the first city in America to require cell phone companies to provide information on how much RF (radiofrequency) radiation their devices emit. Yesterday San Francisco's board of supervisors voted 10-1 to approve this requirement and it is expected that the mayor will sign the ordinance into law. Opponents of the measure point out that all cell phones emit at levels far below federal standards. The new law is likely to create expectations in consumers that cell phones with lower emissions are safer, when there is no evidence this is the case.

What does this have to do with climate change and renewable energy? We were hoping you would ask. California is also the site of challenges to the Smart Grid¹ based on assertions of unacceptable risks arising from electromagnetic radiation emitted by the devices comprising the Smart Grid's Home Area Network. Notwithstanding the ubiquity of electromagnetic radiation emitted by cell phones and wireless networks, a small group of determined opponents, the EMF Safety Network, has asked the California Public Utilities Commission to modify its final opinions on the applications of Pacific Gas and Electric Company (PG&E) "for authority to deploy an Advanced Metering Infrastructure (AMI) project known now as the Smart Meter program," and to change the technology used in the Smart Meter program (Click here).

The Network is no shrinking violet. It successfully challenged a wireless provider that wished to provide free wireless service to downtown Sebastopol, California. Today, although you can get wireless at Starbucks in Sebastopol, do not look for it in Ives Park.

Against PG&E the Network argues that the Commission "did not adequately address health, environmental, and safety impacts related to widespread deployment of RF Smart Meter technologies, either in the scoping memo or the decision in either proceeding." According to the Network "PG&E’s Smart Meter RF emissions data is inconsistent, contradictory and at odds with other RF expert findings. An independent RF emissions study, reflecting actual operating conditions for the Smart Meter program, is critical for interested parties to evaluate evidence of health, environmental, and safety impacts, including but not limited to Federal Communications Commission (FCC) compliance."

We don't want to give too much, or even any, credit to the Network's arguments. A paper they like to cite, the BioInitiative Report, has been reviewed by the EMF working group of the European Commission. (Click here) The group's words are plain:

Ms Cindy Sage of Sage Associates (USA) is the author of the "Summary for the public" that is written in an alarmist and emotive language and whose arguments have no scientific support from well-conducted EMF research. She is also the author of five more chapters (with a total of 6 out of 17 chapters) and the co-author of the final key chapter on policy recommendations.

There is a lack of balance in the report; no mention is made in fact of reports that do not concur with authors’ statements and conclusions. The results and conclusions are very different from those of recent national and international reviews on this topic (see Annex 1 and 2).

The Network's other arguments are equally far out of the mainstream. Nevertheless, PG&E has to deal with them. And so will other utilities. We have seen similar types of attacks before. In our work dealing with concerns over radioactive isotopes in the baby teeth of children living around nuclear power plants, the same tired unsupported pseudo-scientific arguments were trotted out at public meetings in numerous jurisdictions. As soon as one public health authority or nuclear regulator rejected the position, it would surface in the state next door as if it had never been knocked down. Nevertheless, the regulators did not back down and continued to close the door to the Tooth Fairy Project (as it called itself).

Utility regulators should do the same with these attacks on the Smart Grid. The public health risk from climate change is immense. The Smart Grid is one of the technologies central to reducing carbon emissions and efficiently utilizing numerous energy resources. We adopt pseudo-science and alarmism at our peril.

¹For those unfamiliar with the Smart Grid, briefly described, the Smart Grid applies digital processing and communications technology to the electricity distribution system, all the way to the end user. Application of this technology permits, among other things, utilities to better manage demand (including that of individual households), connect small power sources such as solar cells and individual wind turbines to the grid, and respond to power grid failures. In the end this should lead to increased efficiency and reliability of the grid and will save consumers money and reduce carbon dioxide emissions.

Posted By J. Wylie Donald At 8:43 PM • Comments (0)

Friday, June 11, 2010

TransCanada renewable lawsuit scores a win in MA

It’s only been about three months since TransCanada Power Marketing Ltd. sued the Massachusetts Department of Public Utilities (DPU), its commissioners, and several other Commonwealth agencies, claiming that Section 83 of the Green Communities Act discriminates against out-of-state renewable energy projects in violation of the U.S. Constitution, but the case has already scored a win for TransCanada.

This week, the DPU issued an emergency rule eliminating the in-state requirement from the regulation that mandates electric utilities buy their renewable energy from projects installed in Massachusetts or off-shore wind in the Cape Cod area. The emergency rule came just 9 days after TransCanada filed a notice of dismissal “with prejudice” to drop its lawsuit against the three named individual commissioners of the DPU.

Renewable energy industry insiders were buzzing with talk about this case at the 17^th Annual New England Energy Conference in Providence, RI, Monday and Tuesday. Rumors had it that Commonwealth lawyers and officials were anxious to settle with TransCanada to make this case go away. And so the emergency rule issued on June 9^thtakes a major step in that direction. In fact, the Boston Herald observed this week that the Legislature apparently suspected this provision was unconstitutional when the Green Communities Act was enacted two years ago because the act allowed the DPU to specifically strike down the provision in the event of legal action to challenge it.

Without a court decision on the merits of the TransCanada case, however, the question remains how far a state can go in promoting in-state installations of renewable energy projects without running afoul of the Dormant Commerce Clause of the U.S. Constitution. Can a state survive a constitutional attack if it mandates in-state renewable installations in exchange for in-state qualifying renewable energy certificates?

While it’s possible the federal court in Massachusetts might get a chance to decide this issue as part of TransCanada’s pending motion for a preliminary injunction, I expect that the rest of the case will get settled quickly as well and the court will not get a chance to issue a decision on the merits. We will likely have to wait another day for the courts to answer the constitutional questions presented by renewable carve-out provisions.

Posted By Stephen J. Humes At 12:33 PM • Comments (0)

Thursday, June 03, 2010

MIRANT Sues in Challenge to Montgomery County Carbon Tax

"First in the nation" touts one website. Another speaks of the "kickstart ... to a low-carbon future." Montgomery County, Maryland has leaped over the gridlock in Washington and passed a tax of $5 per ton from any stationary source emitting more than a million tons of carbon dioxide per year. One web site quotes the bill's sponsor: "This is a chance for us to lay claim to a revenue stream and clean up after a polluter at a time when we are under financial constraints." (click here) There is no dissembling here. Two points come through loud and clear: 1) carbon dioxide is being lumped in with PM10, NOx and SOx, mercury and all the other things that might go up a stack; and 2) a new revenue stream has been found and tapped.

We try to avoid political statements on the blog so we will mostly avoid commenting on the second point. But the first bears discussion.

Carbon dioxide goes up a stack in company with another ubiquitous and effective greenhouse gas: water vapor. Both are present in the atmosphere in billions of tons. They are natural and essential parts of the ecosystem. Every animal exhales them, and every plant takes them in. Indeed, life as we know it would not exist without either. With respect to human activities, both are unavoidable products of combustion. Which is the most prevalent? The National Oceanic and Atmospheric Administration reports that water vapor is the "most abundant greenhouse gas in the atmosphere." So are we really talking about pollution, or is this an inaccurate shorthand that gets people emotionally involved, but obscures larger issues?

Mirant Corporation has identified some of those larger issues and through its subsidiary brought suit Tuesday to block the implementation of Montgomery County's new law. Click here for Complaint. Mirant asserts numerous state and federal constitutional grounds such as due process and equal protection, and that the law constitutes a bill of attainder and an excessive fine.

One argument is especially of interest from the standpoint of climate change initiatives. In Count VI Mirant invokes Maryland's implementing legislation and regulations for the Regional Greenhouse Gas Initiative (RGGI) and argues that those laws pre-empt any county measure addressing carbon dioxide emissions. Maryland has a fairly substantial jurisprudence on preemption of local law so this will not be decided in a vacuum. Whether preempted or not, from our seat we believe it will be difficult for a state to achieve an effective greenhouse gas policy if a county government can influence the activities of the utilities within county boundaries and tap those utilities as new revenue streams. Mirant points out in its complaint that "leakage" (the sale of electricity into Maryland by utilities outside the RGGI states and thus not subject to carbon dioxide proscriptions) will occur if it is forced to bear higher costs in Montgomery County than its non-regulated competitors. Further, because other jurisdictions have less stringent air pollution regulations, the effect of the Montgomery tax will be to increase the amount of pollution (i.e., PM10, NOx and SOx, mercury, etc.) emitted into the atmosphere.

One of the accolades heaped on RGGI (and its counterparts the Western Climate Initiative and the Midwest Greenhouse Gas Reduction Accord) is that it constitutes a laboratory in which to test various climate change policies. Mirant's suit tees up the question of whether a laboratory within a laboratory is a good idea.

Posted By J. Wylie Donald At 8:22 AM • Comments (0)