GPACE » Kansas

Unequal Risks and Benefits for Citizens in Six States on Keystone XL Pipeline Route

GPACE — Mon, 09 Jan 2012 21:47:51 +0000

By Lisa Song for InsideClimate News

TransCanada getting 10-year tax holiday in Kansas but could pay $63 million a year into Montana’s coffers.

If the Keystone XL oil pipeline were approved today, residents in the six states along its route would not receive equal treatment from TransCanada, the company that wants to build the project.

The differences are particularly striking when it comes to tax revenue and environmental protection. States with stronger regulations have won protections for their citizens, while other states sometimes focused more on meeting TransCanada’s needs.

In Kansas, for example, lawmakers gave TransCanada a 10-year tax exemption, which means the state won’t receive any property tax revenue from the pipeline. Meanwhile, each of the other five states—Montana, South Dakota, Nebraska, Oklahoma and Texas—would earn between $14 million and $63 million a year, according to U.S. State Department estimates [3].

Click here for a chart [4] that compares how the six states are dealing with the Keystone XL pipeline.

When it comes to route changes and protection for landowners, residents of Texas, Oklahoma and Kansas have fared the worst, because their states haven’t created any regulations to safeguard their interests.

“All the power is in the hands of the pipeline companies,” said Chris Wilson, an independent environmental consultant from Texas who opposes the Keystone XL. Landowners along the route “are really screwed…there’s no one in the government they can call for help.”

The Obama administration put the Keystone XL on hold [5] in November, saying it needed another year to reassess the environmental risks the project could pose. Republican lawmakers, meanwhile, are trying to force [6] the president to make his decision by February 21. The pipeline would move oil from the tar sands of Alberta to the U.S. Gulf Coast.

Because the Keystone XL would cross state boundaries, both federal and state agencies are involved in its regulation. The U.S. Pipeline and Hazardous Materials Safety Administration (PHMSA [7]) handles safety issues, such as pipeline thickness and operating pressure. Individual states are responsible for pipeline siting, the process that determines a pipeline’s exact route within state borders.

But only the state of Montana has chosen to exercise that power, leaving citizens who object to the pipeline’s path in other states no option but to shell out money for a court battle, or appeal to local officials who often lack the resources and experience to challenge a major corporation.

In Montana, however, the state’s Department of Environmental Quality [8] used a decades-old siting act to minimize environmental damage along the route. TransCanada has rerouted more than 100 miles of the Keystone XL in response to agency and landowner concerns. If the pipeline is approved, the company also must post a bond so funds are available to repair construction-related damage.

DEQ staffer Greg Hallsten, who worked on Keystone XL siting, said that although TransCanada sometimes objected to the agency’s reroutes, its complaints were overruled.

“We have [siting] authority in the state,” he said. “Our authority’s never been challenged along those lines.”

TransCanada spokesman Terry Cunha said the vast differences in pipeline regulation reflect the political landscape of each state. “We appreciate that each state has their own guidelines,” he said. “It’s not up to us to modify or create legislation. We’re working with the state governments to meet [their] guidelines and get this project approved.”

Other states could follow Montana’s lead by pressuring their legislators to create pipeline regulation, said Pat Parenteau, a Vermont Law School professor who studies land use and environmental policy. “If there’s a popular enough demand,” it can be done, he said.

That’s what happened in Nebraska, where residents worked for years [9] to persuade their lawmakers to reroute the Keystone XL out of the ecologically sensitive Sandhills. Farmers and ranchers picketed the governor’s mansion, traveled to Washington, D.C. and repeatedly called for a special session to draft siting regulations for interstate pipelines. As the momentum grew, TransCanada offered Nebraska a $100 million dollar spill bond [10] for the Sandhills region—a protection it didn’t offer any of the other states.

Nebraska Gov. Dave Heineman finally called a special session in November, where bills were passed [11] to move the pipeline out of the Sandhills and to give the Public Service Commission authority to site future oil pipelines (excluding Keystone XL). TransCanada is now working with state environmental officials to establish a new route for its pipeline.

What Nebraskans have done is very significant, said Mary Boyle, a spokeswoman for the nonpartisan watchdog group Common Cause [12]. Legislators won’t act unless they feel outside pressure from constituents, she said, so getting those bills passed is “no small accomplishment…Nebraska citizens clearly proved this can be done.”

Few Protections from Eminent Domain

Despite the new regulations in Nebraska, landowners there, like landowners in all the Keystone states, have felt helpless when TransCanada used eminent domain to take their land.

All six states have given the company the power of eminent domain. While the eminent domain laws vary from state to state, they generally allow projects built for a “public” good—including railroads, transmission lines and highways—to use private land after paying landowners a fair price that’s determined by the courts. But the laws aren’t specific about what “public” means, and pipeline opponents say Keystone XL shouldn’t be allowed to use eminent domain because it’s not serving the United States public.

Harlan Hentges, an attorney who represented an Oklahoma family that challenged the taking of their land, says TransCanada is a foreign company transporting foreign goods (crude oil) across the U.S. for export. “To me it’s an outrage from beginning to end,” he said.

Montana is the only state that offers its residents some protection from eminent domain.

Its siting act requires that pipelines be built on public land whenever it’s economically feasible. As a result, 77 percent of the pipeline’s route through Montana falls on private land, while that number rises to more than 92 percent in the other five states. In Texas, all of the Keystone is routed through private land.

Montana also doesn’t allow companies to take landowners to court until the DEQ gives a project a final stamp of approval, known as a Certificate of Compliance. In early December, the DEQ’s Hallsten told InsideClimate News that the agency didn’t plan to issue the certificate to TransCanada unless the federal government approved the pipeline. But Gov. Brian Schweitzer overruled the agency [13] on Dec. 15 when he announced that TransCanada had met the siting act’s requirements and that the DEQ would issue the certificate within a few weeks.

Sue Kelso, the Oklahoma landowner who hired Hentges to challenge TransCanada’s use of eminent domain on her family farm, said she feels abandoned by her state officials.

The Oklahoma Corporation Commission—the agency in charge of pipeline regulation—has little control over interstate pipelines. Commission spokesman Matt Skinner said the agency’s role is limited to remediation after oil spills.

Kelso’s troubles began when a TransCanada land agent offered her $3,000 for a permanent easement on her property. Kelso said the agent claimed the pipeline would carry regular crude oil, but she soon found that Keystone XL would transport the tar sands oil known as diluted bitumen, or dilbit. Unlike conventional crude, the exact chemical composition of dilbit remains a trade secret. There’s little research [14] on dilbit and no peer-reviewed studies on how it affects pipeline corrosion.

Kelso’s concerns escalated after an Enbridge pipeline spilled dilbit into Michigan’s Kalamazoo River in July 2010. The Environmental Protection Agency doesn’t expect the cleanup of that spill to be completed until the end of 2012.

“I live in fear that this pipeline will go through and ruin all the water,” Kelso said.

When Kelso refused to sign TransCanada’s contract, she said the land agent threatened to use eminent domain. “She told me [to] either take what they offered or they’d condemn our property and take it anyway.” That’s when Kelso hired Hentges.

In August, TransCanada voluntarily rerouted the pipeline around Kelso’s property. Hentges believes the company wanted to avoid going to court, where the case might set a precedent and open the floodgates to eminent domain challenges in other Keystone XL states.

In Texas, property rights activist Debra Medina is lobbying legislators to clarify the state’s eminent domain law. State law grants [15] the operators of common carrier pipelines—defined as “to or for the public for hire”—the power of eminent domain, but it’s unclear if the word “public” refers to Texans or the public at large, Medina said. She asked the Railroad Commission and the Texas attorney general’s office for clarification but never received an answer.

Everyone knows that Texans value property ownership, she said. “And yet, in our law, we’ve given eminent domain authority to private businesses and nobody’s making sure the businesses who exercise that power meet the necessary criteria.”

No Comfort for One of Landowners’ Greatest Fears

Neither the federal government nor any of the Keystone states have offered landowners much protection from one of their greatest fears: an oil spill that affects their property.

Federal regulations require pipeline companies to file oil spill response plans, but TransCanada hasn’t completed its plan for the Keystone XL. TransCanada spokesman Terry Cunha said the plan will be finalized once the entire project, including the new route through Nebraska, is confirmed.

Even after the plan is released, it will be difficult for landowners along the route to examine the document, said Carl Weimer, executive director of the Pipeline Safety Trust [16], a nonprofit that promotes fuel transportation safety. The spill plans are created by pipeline companies and given directly to PHMSA for review, so there’s no opportunity for public input. A PHMSA spokesman said the secrecy is necessary because the plans contain potentially sensitive information about public safety and homeland security.

Montana rancher Darrell Garoutte thinks the public has a right to review those documents. “After the BP [Gulf spill] fiasco, I’m concerned that any plan without public scrutiny will be lacking in most areas.”

Weimer said that some states, including Washington and Alaska, have taken steps to make emergency response information more transparent. But none of the Keystone XL states are included in that group, he said.

Sandy Barnick, whose farm near Glendive, Montana would be crossed by Keystone XL, said the remoteness of her rural county, which she describes as “in the middle of nowhere,” has heightened her fear of pipeline accidents and spills.

TransCanada told InsideClimate News that the company is ready to respond to emergencies. “[We've] procured and stored equipment, hired personnel and contractors along the length of the pipeline specifically to ensure we are capable of responding quickly,” said spokesman Shawn Howard.

But Zona Vig worries that the company will have trouble responding to an emergency on her South Dakota family ranch, which is 100 miles from the nearest hospital. The region is criss-crossed by dirt roads that become impassable during rains, Vig said. “What happens if you have a leak? How are you going to get people out here, [especially] in a blizzard when the wind is blowing and the snow’s coming down?”

Vig and her neighbors are accustomed to taking care of themselves. Her husband pilots a small plane that’s sometimes used for medical emergencies, and her son is part of the county’s volunteer fire department. But there are no other oil pipelines in Meade County, and Vig said they’re not prepared to deal with a spill.

Barnick, the Montana farmer, says state officials should be doing more to address landowner concerns. She blames their inaction on the fact that most of the pipeline’s route runs through counties with small populations and little political clout. “I feel [like] we’re dispensable.”

Pipeline Tax Revenue Varies By State

Some landowners say the promise of tax revenue has made state and local officials blind to citizen concerns. According to the State Department’s Final Environmental Impact Statement [17], the pipeline would generate property taxes ranging from $14 million per year for Oklahoma to $63 million per year for Montana. But experts say actual tax revenues may vary significantly from those estimates.

The State Department calculations for Montana were done without an accurate understanding of the state’s tax laws, said Ed Caplis, director of Tax Policy and Research at the Montana Department of Revenue. While the State Department projects tax revenues of $63 million a year, Caplis’ department’s assessment, based on data provided by TransCanada, puts the number at $80 million.

South Dakota taxes pipelines based on the income they generate, so “it’s rather difficult assessing a future project,” said Mike Houdyshell, director of the Property and Special Tax Division at the South Dakota Department of Revenue. Pipelines don’t make any income until they’re operational, and that income is dependent on market forces during the time of operation.

Houdyshell’s department wasn’t involved in the State Department property tax estimates. Their only assessment for Keystone XL is an estimate of the property tax for Harding County (one of nine counties in the pipeline’s path), which comes out to about one million dollars [18]. That’s substantially less than the State Department estimate of $3.3 million dollars for Harding County.

An existing TransCanada pipeline, simply called Keystone, has generated far less in property taxes [19] for South Dakota than TransCanada originally projected.

“We don’t know how [TransCanada] arrived at those numbers,” Houdyshell said. “Obviously they were overstated to some extent—we don’t really know why.”

The state of Kansas stands to gain the least financially from the Keystone XL. Its situation is unique because the first Keystone pipeline already runs through Kansas, and part of that pipeline would act as a bridge between two sections of the new pipeline. However, the Keystone XL would increase the amount of dilbit flowing through Kansas, so TransCanada would need to build additional pump stations in the state to handle the new capacity (up to 830,000 barrels of oil per day).

When TransCanada began planning the Keystone pipeline in 2005, Marion County commissioner Dan Holub was one of the few Kansas officials who opposed it. “I’m scared to death of what they’re running through there,” he said, referring to the unknown dangers of dilbit.

Holub tried to persuade state officials to help address landowners concerns. But instead, the Kansas legislature passed a series of bills [20] to incentivize energy processing, including one that granted large pipelines a property tax exemption for up to 10 years. The new pump stations for Keystone XL would likely receive the same tax exemption.

Holub says TransCanada didn’t need the tax cut, which cost his county some much-needed funds. According to the Kansas Department of Revenue, the Keystone pipeline would have brought $2.9 million in property taxes to Marion County in 2011.

But State Sen. Jay Emler, who voted for the tax cut, said the bill guaranteed a steady source of crude oil for the state’s refineries and was meant to encourage TransCanada to build the pipeline through Kansas. “One of their lobbyists came to my office in 2005 and said, ‘if we don’t get this tax exemption, we won’t bring the pipeline through Kansas.’”

Emler said a recent letter from a TransCanada lobbyist says the tax exemption was just one of several factors in deciding where to build the pipeline, so the company might have brought Keystone through Kansas anyway. “Hindsight is always 20/20,” Emler said. If the legislature had known in 2005 that TransCanada didn’t need the exemption, “why would we have given it to them?”

The Kansas Department of Revenue has challenged [21] the tax exemption and the matter is now before the Kansas Court of Tax Appeals. If TransCanada loses its exemption, a court spokesperson said, the company would have to pay all its back taxes.

TransCanada also got a tax break in South Dakota when the first Keystone pipeline was routed through the state. South Dakota legislators passed a bill in the 1990s to grant large energy projects (including ethanol plants and wind blade factories) a refund on a 4 percent contractor excise tax. The law wasn’t intended for oil pipelines, said Scott Heidepriem, a former state senator who now runs a law firm in Sioux Falls, but it was so loosely worded that TransCanada qualified.

Heidepriem said the first Keystone pipeline is eligible for more than $30 million dollars from the tax refund, though records from the South Dakota Department of Revenue show that the company had claimed just $2.7 million [22] as of September 2011. Heidepriem argues that TransCanada didn’t need the tax break because the pipeline would have come through the state anyway. It doesn’t make sense to give them all this money while the legislature cuts the state’s education budget, he said.

In 2008, Heidepriem represented a group of landowners along the first Keystone pipeline who fought TransCanada’s use of eminent domain. The landowners eventually settled, but details of the settlement remain confidential.

The South Dakota legislature tightened the language on the tax refund law after the first Keystone pipeline was built. The Keystone XL would be eligible for no more than $10 million dollars, and the program will expire at the end of 2012.

But South Dakota’s lawmakers haven’t taken action on something landowners along the route have been lobbying for: A bond to make sure their property would be cleaned up in the event of a spill. Between 2008 and 2010, the legislature failed on three separate occasions to approve a spill bond that would have imposed a several-cents-per-barrel tax on Keystone XL oil. If the money wasn’t used, it would have been returned to TransCanada.

Vig helped lobby for the bond as a member of a grassroots group called Dakota Rural Action [23]. She described the experience like “walking into a brick wall.” TransCanada fought it tooth and nail, she said, “and our legislators listened to them and voted against it.”

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Links:
[1] http://insideclimatenews.org/author/lisa-song
[2] http://insideclimatenews.org/sites/default/files/IMG_5816.JPG
[3] http://insideclimatenews.org/sites/default/files/assets/2012-01/FEIS_Sec_3.10_Socioeconomics.pdf
[4] http://insideclimatenews.org/sites/default/files/assets/2012-01/KeystoneXLPrimeronHowSixStatesHandledPipelineINSIDECLIMATENEWS.pdf
[5] http://insideclimatenews.org/news/20111111/keystone-xl-pipeline-opponents-celebrate-victory-obama-activism-nebraska-sandhills-state-department
[6] http://insideclimatenews.org/news/20111222/congress-john-boehner-payroll-tax-keystone-xl-pipeline-obama-jobs
[7] http://www.phmsa.dot.gov/
[8] http://deq.mt.gov/mfs/keystonexl/keystonexlindex.mcpx
[9] http://insideclimatenews.org/news/20111117/nebraska-sandhills-water-keystone-xl-pipeline-ogallala-aquifer-transcanada
[10] http://insideclimatenews.org/news/20111028/transcanada-oil-spill-bond-nebraska-session-Heineman-keystone-xl-pipeline
[11] http://insideclimatenews.org/news/20111121/nebraska-legislature-keystone-xl-pipeline-bills-sandhills-transcanada-speaker-flood
[12] http://www.commoncause.org/site/pp.asp?c=dkLNK1MQIwG&b=4741359
[13] http://www.greatfallstribune.com/article/20111215/NEWS01/111215006/Schweitzer-OKs-state-permit-Keystone-pipeline-project
[14] http://insideclimatenews.org/news/20111101/keystone-xl-oil-sands-pipeline-diluted-bitumen-dilbit-secret-chemicals-corrosion-spill-enbridge
[15] http://www.statutes.legis.state.tx.us/Docs/NR/htm/NR.111.htm
[16] http://www.pstrust.org/
[17] http://www.keystonepipeline-xl.state.gov/clientsite/keystonexl.nsf?Open
[18] http://insideclimatenews.org/sites/default/files/assets/2012-01/Michael%20Kenyon%20KXL%20taxes.pdf
[19] http://www.keloland.com/NewsDetail6162.cfm?Id=0,124873
[20] http://insideclimatenews.org/sites/default/files/assets/2012-01/Kansas%20KI%20tax%20exempt%20info.pdf
[21] http://insideclimatenews.org/sites/default/files/assets/2012-01/Kansas%20Keystone%20App%20for%20Exemption%20and%20PVD%20Response.pdf
[22] http://insideclimatenews.org/sites/default/files/assets/2012-01/excise%20tax%20cut%20refunds.pdf
[23] http://dakotarural.org/
[24] http://insideclimatenews.org/news/20111212/rep-lee-terry-keystone-xl-oil-sands-pipeline-outrage-nebraska-payroll-tax-cut-republicans
[25] http://insideclimatenews.org/news/20110302/landowners-lawsuit-oil-sands-keystone-pipeline-transcanada-part3-common-carrier
[26] http://insideclimatenews.org/sites/default/files/KeystoneXLPrimeronHowSixStatesHandledPipelineINSIDECLIMATENEWS_0.pdf
[27] http://insideclimatenews.org/reuters-topics/green-energy
[28] http://insideclimatenews.org/topic/keystone-pipeline
[29] http://insideclimatenews.org/topic/keystone-xl
[30] http://insideclimatenews.org/topic/phmsa
[31] http://insideclimatenews.org/topic/regulations
[32] http://insideclimatenews.org/topic/state-department
[33] http://insideclimatenews.org/topics/tar-sandsoil-sands
[34] http://insideclimatenews.org/topic/transcanada
[35] http://insideclimatenews.org/topics/activism

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Industry Wields Sway Over Air Pollution Rules, Enforcement

GPACE — Thu, 22 Dec 2011 18:55:39 +0000

By Ronnie Greene, Chris Hamby and Jim Morris for the Center for Public Integrity

As communities battle toxic air, business shapes EPA and state regulation

When the top environmental regulator in Kansas rejected its bid to build two new power units in 2007, citing health concerns, Sunflower Electric Power Corp. refused to take no for an answer. When the governor vetoed bills that would have paved the way for construction in 2008 and 2009, Sunfloweragain refused to relent.

The company’s persistence paid off. In 2009, the new governor approved construction of a new coal plant in the tiny city of Holcomb, so long as Kansas legislators backed renewable energy policies at the same time. The state regulator who initially denied Sunflower’s permit? He was let go.

Sunflower said it won the permit on merit, and that political influence was not a factor.

Yet the company’s success is a telling snapshot of how, when industry flexes its muscles over Clean Air Act issues, it often wins. From Kansas to Louisiana to Texas, Wisconsin and Ohio, community groups have fought new plants, expansions and chronic emissions – only to see industry score victories with regulators and politicians.

“We’re not protecting public health today,” said Jim Tarr, an air pollution consultant in California who worked as an engineer for the Texas Air Control Board in the 1970s. “One of the primary reasons we’re not is that the environmental agencies have been co-opted by the people doing the polluting.”

Industry’s influence plays out at every step of the process: From the campaign contributions it spreads to sway policy to its role shaping clean air rules to its resistance to enforcement actions brought by regulators.

Its reach is deeper than most realize.

Two just-published reports – one from academic researchers, the other from the Environmental Protection Agency’s own inspector general – detail industry’s role in shaping Clean Air Act regulations meant to protect communities from dirty air.

The academics’ study – Rulemaking in the Shade: An Empirical Study of EPA’s Air Toxic Emission Standards – examined the level of input by industry and public interest groups at key stages as the EPA wrote rules for more than 100 major industries. Those stages: Before a proposed rule was published; once notice was given and the public weighed in; and during the final rule-writing process.

The results surprised even the study’s authors:

At the early, pre-proposal stage, industry had an average of 84 informal communications with the EPA per rule compared to less than 1 for public interest groups;
During the public comment period, industry provided more than 8 of every 10 comments;
Changes to the final rule favored industry 4-1 over those benefiting public interest groups.

“We expected imbalance in engagement, but did not imagine it would be that badly skewed,” said co-author Wendy Wagner, a professor at the University of Texas School of Law.

For every two industry comments, she said, one change was made weakening the final rule.

Industry said its motivation is no secret.

“It’s survival,” said Robert Bessette, president of the Council of Industrial Boiler Owners, a trade group representing manufacturers that use boilers to power their operations. “Industry, when pushed up against the wall, reacts.”

The council is pushing back against a proposed EPA rule to curb toxic emissions from boilers – an effort that includes prodding Congress to pass legislation and meeting with the EPA and the Office of Management and Budget, Bessette said.

Political contributions help ease industry’s access. Thirteen states house three-fourths of the nation’s most worrisome air polluters – facilities listed on an EPA “watch list” of alleged violators that haven’t faced timely enforcement. Those companies, their corporate parents and executives have made nearly $60 million in overall state campaign contributions since 2006, the Center for Public Integrity found.

Facilities in the six congressional districts with the greatest number of watch list sites contributed $120,350 to their federal representatives since 2006.

Uneven state enforcement

In some states, industry influence is clear.

The EPA IG’s recent report, EPA Must Improve Oversight of State Enforcement, documents breakdowns in Clean Air Act enforcement that can translate into fewer health protections for communities in the shadow of power plants, refineries and chemical manufacturers.

“When neither states nor EPA takes enforcement actions when needed, these health benefits are not realized and premature deaths and illnesses are not prevented to the extent that they could be,” the IG concluded. “As a result, EPA cannot assure that Americans in all states are equally protected from the health effects of pollution or that enforcement of regulated entities is consistent nationwide.”

The IG said a culture of protecting industry was clear in some states with the weakest records of enforcing the Clean Air Act, such as Louisiana.

“State, EPA regional, and external interview responses attributed Louisiana’s poor performance to several factors, including a lack of resources, natural disasters, and a culture in which the state agency is expected to protect industry,” the IG found.

The EPA did not respond to the Center’s questions about Rulemaking in the Shade. In its reply to the IG’s report, the agency questioned some of the research methodology – but ultimately agreed “that state enforcement performance varies widely across the country.”

“We also agree that there are steps EPA Headquarters and regional offices can and should take to strengthen our oversight and address longstanding state performance issues,” the EPA replied.

That industry weighs in with frequency and success is no surprise to environmental activists, people who live near plant fence-lines and some political leaders who have long tangled with Big Oil.

“The fight that industry wages against any kind of threat to their pollution is across the board,” said James “Jim” Cox, a retired state senator from southwest Louisiana. “It boils down to the control the industry has of the community. It’s a jobs situation. It’s a well-organized lobbying situation.”

Health fears in Mossville

One long-running battle centers on Mossville, a small African-American community founded in the 1790s across from Lake Charles, La.

Fourteen major industrial facilities surround the community, including an oil refinery, a coal plant, chemical manufacturers and one of the largest clusters of vinyl production facilities in the United States.

For 15 years, residents have been asking government and industry to relocate them from the powerful odors and toxic chemicals released by the plants, citing reports showing dangerous levels of dioxins in the air. Dioxins, researchers say, can cause cancer and reproductive damage and slow child development.

In 1998, the federal Agency for Toxic Substances and Disease Registry found that Mossville residents had an average dioxin blood level three times above that in the typical U.S. community.

The report, however, did not identify the source of the exposure. A later ATSDR report said residents in the neighboring parishes of Calcasieu and Lafayette had typical blood dioxin levels. But, residents say, that report included a larger group outside Mossville. Their health fears continue.

Wilma Subra, a chemist from Louisiana who studied the community, produced a report linking dioxin levels to local industry.

As Mossville residents pressed for answers, the government continued to issue permits fueling industry’s growth. The EPA’s enforcement website lists more than a dozen facilities in Lake Charles out of compliance with the Clean Air Act.

In 2005, the people of Mossville filed an environmental racism petition with the Inter-American Commission on Human Rights, part of the Organization of American States. When the commission accepted the complaint last year, it became the first such U.S. case to move forward.

“Filing the human rights petition is really our last resort,” said one of the community’s lawyers, Monique Harden, co-director of the public interest law firm Advocates for Environmental Human Rights.

“It’s been 15 years of evolving strategies,” Harden said. “Residents want a voluntary relocation program that they help to develop. They want medical care services. They want pollution reduction and cleanup of contaminated sites. So it’s been years of trying to get both the industry in the Mossville area and governmental agencies to meet the community on these remedies.”

Some residents have been relocated, but the petition seeks a more far-reaching move-out for those who want it. It asks that the U.S. “refrain from issuing environmental permits and other approvals that would allow any increase in pollution.”

Lake Charles-area companies deny causing any harm to residents, saying they strive to curtail emissions.

“We strongly support efforts to reduce dioxins in the environment,” Georgia Gulf Corp., which makes a raw ingredient in polyvinyl chloride, or PVC, wrote on the Business & Human Rights Resource Centre website.

“Our industry is responsible for quality products that consumers want, buy and use every day. Medical supplies, medicines and pharmaceutical products, computer keyboards, PVC pipe, automobile dashboards, toys and sporting goods and food wrap are products Louisiana plants help make, and these products in turn help Louisianans enjoy a healthy and productive lifestyle,” the company wrote.

Echoing other facilities, PPG Industries said it operates “in a manner that is protective of public health, safety and the environment.” ConocoPhillips, the world’s fifth-largest refiner, declined an interview request but cited its website, saying it is committed to working with its neighbors.

‘They love their polluters’

In some communities, activists feel like lone wolves.

In Longview, in East Texas, the Eastman Chemical Co. plant is among the top national emitters of ethylene glycol, chloromethane and chloroform – compounds that can damage the nervous system, liver, kidneys or lungs. EPA records show $420,004 in Clean Air Act penalties levied in the last five years against Eastman, which manufactures more than 40 major chemical and polymer products.

Eastman said it diligently monitors emissions and its Longview site meets air-quality standards. “Protecting air quality is an essential and complex part of Eastman’s environmental program,” the company said in a statement. “The men and women at Eastman not only strive to improve Eastman’s compliance with the Clean Air Act because it is the law, but also because we and our families live in the adjacent communities.”

Over a five-year period from August 2005 to August 2010, no residents filed complaints about the facility with the Tyler office of the Texas Commission on Environmental Quality, records show.

That is not surprising, some say, in a region proud of the economic jolt industry provides, where Eastman Road runs astride the plant and where, in 2009, the Texas Chemical Council awarded Eastman its “Excellence in Caring for Texas” award. The plant employs more than 1,500, placing it among the largest employers in a region replete with industry.

Tammy Cromer-Campbell, a professional photographer and environmental activist, is a rare breed in Longview: a critic who stands up against pollution. She said the mission has been lonely. “They love their polluters,” Cromer-Campbell said with a laugh while driving near Longview’s industrial hub.

A co-founder of a group called WECAN – Working Effectively for Clean Air Now – she rose up at meetings of the Northeast Texas Air Care, a cooperative association of local governments and industries. Cromer-Campbell found herself the outsider looking in.

“Whenever I go to those meetings, I don’t have a crowd of people behind me, supporting me. It’s all industry,” she said. “I got burnt out. We couldn’t get a lot of other people to join me.”

Picking up the slack

Some Texas officials are frustrated, too.

Two veteran lawyers with the Harris County Attorney’s Office – whose jurisdiction includes Houston and the nation’s largest petrochemical complex – seem to be in perpetual conflict with the Texas Commission on Environmental Quality.

One, Terry O’Rourke, called the agency “a lap dog for polluters” and said state regulators are too quick to overlook companies that poison the air and water. O’Rourke said his office, which represents the Harris County Pollution Control Services Department, has picked up the slack.

“We have to stop the pollution at its source,” said O’Rourke, who began prosecuting polluters as an assistant state attorney general in 1973. “You do it the same way you write speeding tickets. If you don’t enforce the law, everybody will be driving 100 miles per hour.”

His colleague, Rock Owens, said the TCEQ “treats the regulated community as if they are customers. It’s always with an eye toward the convenience and the bottom line of the major players.”

Owens cited a recent example. On five occasions from April 2008 through March 2010, according to a civil complaint drafted by the county attorney’s office, a Shell Chemical plant east of Houston “illegally released over eight tons of toxic petrochemicals into the air in Harris County, including known carcinogens such as benzene and butadiene. . .”

Shell, however, failed to report the releases to the county within 24 hours, as required. The TCEQ fined Shell $71,900 for one of the incidents in 2008. Owens’s office deemed this insufficient and went after Shell, preparing a complaint in 2010 that sought more than $6 million in penalties.

The case was settled this year, with Shell agreeing to pay $500,000 to the county. O’Rourke said he remains annoyed the TCEQ didn’t move more aggressively.

“That, to me, is fundamentally offensive,” O’Rourke said. “TCEQ slapped their wrist. We’ve got kids who play in schoolyards in the shadow of these [plants]. Most of them are black and brown, and a lot of them are poor. Just because they’re poor doesn’t mean they should have to breathe crap.”

He added: “We can have the largest petrochemical complex in the United States and still have a clean environment. They are not incompatible.”

In a written statement, Shell said that while it “disputes the claims and allegations made by Harris County, we are complying with the settlement in the interest of securing a timely and effective resolution to this matter.”

The TCEQ said in a statement that it has fined Shell more than $1.4 million over the past five years as a result of 26 enforcement orders, many involving “unauthorized emissions and failure to comply with permitted emission limits.”

The TCEQ “emphasizes compliance to protect our citizens from harm, coupled with swift, sure and firm enforcement for those who do not comply,” the statement said.

Owens scoffed at the amount of the TCEQ penalties, saying large companies like Shell consider them “just another part of doing business in Texas. Pay a little fine, go about your way – that’s not an effective deterrent.”

Shell, which reported profits of $18.6 billion in 2010, cited $7 billion in profits in the third quarter of 2011 alone.

Working Washington

Big industry pays big lobbying fees to press its agenda in Washington.

The Washington lobby shop for San Antonio-based Valero Energy Corp., for instance, spent $496,000 in the first three quarters of this year pressing environmental issues ranging from air and water quality to fuel specifications.

The company also hired outside lobbyists to work the aisles of Congress and federal agencies, according to Senate lobbying disclosure records.

One firm, Bracewell & Giuliani, spent $140,000 lobbying for Valero on “clean air, energy legislation and other environmental issues relating to the refining industry.” Among the lobbyists is a former acting general counsel for the EPA.

Six Valero plants – five refineries and one ethanol plant – are on the EPA’s November Clean Air Act watch list.

Still, the company’s message to its shareholders has been reassuring. Even if “one or more [enforcement actions] were decided against us, we believe that there would be no material effect on our financial position or results of operations,” Valero said in its 2010 annual report.

A Valero spokesman declined to comment, saying, “Our advocacy efforts are outlined in required filings.”

‘There were abuses’

Industry often prevails over critics – and, sometimes, regulators.

In Holcomb, Kan., residents so far have been unable to stop the Sunflower power plant even after the state initially shot it down.

After Roderick Bremby, then head of the Kansas Department of Health and Environment, denied Sunflower’s initial permit application, project supporters pushed bills in the state legislature clearing the way for construction.

In 2008 and 2009, Democratic Gov. Kathleen Sebelius vetoed the bills.

Less than a month after an April 2009 veto, Sebelius left to become secretary of the U.S. Department of Health and Human Services. Lt. Gov. Mark Parkinson took over, and, by May 4, had struck a deal with Sunflower.

Before the plant could be built, it had to get a permit – a lengthy process allowing public input. The clock was ticking: If the permit wasn’t issued by January 2011, new rules would require the plant to do more to reduce greenhouse gas emissions.

In November 2010, as the January deadline loomed, Parkinson fired Bremby.

In a statement the week after the firing, Parkinson said the decision wasn’t related to the Sunflower permit. “When evaluating the permit application,” Parkinson said, “what I have told the acting Secretary is simply this: I don’t care whether you approve the permit or not, but I do care that Kansas follows the laws and regulations governing the process.”

But Bremby, who is now commissioner of the Connecticut Department of Social Services, said during a speech at a Kansas community college this February that the permit approval process “was not a benign, pristine, routine bureaucratic process. Unfortunately, there were abuses.”

On Dec. 16, 2010, the Kansas department approved Sunflower’s permit.

Earthjustice, a nonprofit environmental law firm, soon challenged the permit in court, accusing state officials of rushing the permitting process because of pressure from Sunflower and the governor’s office. The result, the firm alleged, was a flawed permit.

Among the concerns expressed in Earthjustice’s legal brief: State regulators allowed Sunflower to underestimate the amount of toxic air pollution it would release, shielding it from requirements to install better pollution controls.

Sunflower spokesperson Cindy Hertel said the permit “was thoroughly vetted” by state regulators. “As far as influencing anyone, we certainly did not,” she said.

Some in Holcomb want the new plant for the economic boost Sunflower promises will come, but others are worried. Lee Messenger, who lives a few miles from the current plant and the proposed site for the new one, fears the expansion will drain the town’s water supply and pollute the air.

“We don’t get a chance to vote on anything,” said Messenger, 81. “These politicians like to think we elected them to take care of us. But they take care of themselves first. “

Kansas regulators declined to comment on Sunflower’s permit, citing the ongoing court case. In a brief, lawyers with the state attorney general’s office wrote, “The accusations of political bias and procedural impropriety are factually unsupportable in the administrative record.”

Business-friendly regulators

Some grassroots groups worry that state environmental agencies lean too heavily toward business interests.

In Wisconsin, Scott Walker swept into the governor’s office in 2010 on a message of job creation. Soon after, he appointed Cathy Stepp, a former Republican state senator, to head the state’s Department of Natural Resources.

Stepp had been a vocal critic of the department she now leads. In June 2009, she posted on aconservative blog that some who worked at the state agency “tend to be anti-development, anti-transportation, and pro-garter snakes, Karner blue butterflies, etc. … So, since they’re unelected bureaucrats who have only their cubicle walls to bounce ideas off of, they tend to come up with some pretty outrageous stuff that those of us in the real world have to contend with.”

The department’s No. 2 official, Matt Moroney, said that before joining the department, Stepp “was representing a constituency. She was listening closely to some of her business friends and looking at how to improve DNR.”

Her current job, he said, “is a completely different role for her.” Stepp has focused on cutting waste and streamlining the agency. This October, department officials testified in favor of a bill in the state legislature that would restrict the number of times regulators could ask companies for more information on a permit application. It would also impose stricter time limits for the department to approve permits.

Environmental groups say the department’s new approach, coupled with tightening budgets, will undermine attempts to curb pollution. “They are going to these public hearings and advocating for taking their own authority away,” said Shahla Werner, director of the state’s Sierra Club chapter. “It’s surreal to watch.”

Paint-eating pollution

Middletown, Ohio, has lived under the cloud of AK Steel for nearly a century. The largest employer in the Ohio town 40 miles north of Cincinnati, AK Steel has for decades pumped out pollution that takes the paint off residents’ cars and settles in their siding, some say.

“It got into people’s gardens, and kids playing in the yard would come in with their feet black from the soot,” said longtime resident Rachael Belz.

In 2000, the Department of Justice sued AK Steel over violations of the Clean Air and Clean Water acts. The Ohio Environmental Protection Agency joined the suit, which settled out of court and required the company to clean up Dicks Creek, which runs between the facility and a neighboring school. AK Steel committed to $66 million in pollution-control upgrades.

The facility remains on the EPA’s Clean Air Act watch list, and some say problems linger. “We still have soot in our house,” said Belz, who suffers from asthma. “You can’t sit outside on your porch for more than 10 to 15 minutes without crap flying into your coffee.”

An AK Steel spokesman said the company does not know why it is on the watch list and has complied with regulations. He declined further comment.

During the civil case, residents launched a campaign to pressure the company to meet its promises. Elected officials, community organizer Belz said, made themselves scarce.

But politicians, from the city council to the governor’s office to U.S. Rep. John Boehner – a regular beneficiary of AK Steel contributions – were on hand to cheer the company’s 2010 expansion plan. Boehner did not reply to interview requests.

“We do our campaigns in part,” Belz said, “because we can’t count on our politicians.”

Paul Abowd, Rachael Marcus and Fred Schulte contributed to this report.

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Hostile Crowd Greets Westar at Rate Hearing

GPACE — Sun, 04 Dec 2011 03:39:53 +0000

By Dion Lefler for the Wichita Eagle

Westar Energy faced a hostile crowd of about 100 Wednesday night at a public hearing on the company’s request for a $90.8 million rate increase.

Wichita-area residents pressed company executives over their request for a 10.6 percent rate of return for their shareholders, and questioned whether the company is trying to raise rates to make up for lost power sales due to customer conservation — a claim Westar denies.

“We are in a depression and people are hurting very badly,” said customer Janice Bradley. “These are hard times. The number of children who are hungry is increasing and their parents are having a hard time. And Westar sees fit to try to demand more than 10 percent return for their shareholders. This is a shame. Shameful.”

The KCC sets Westar’s rates based on two main factors, its cost of providing power to its 687,000 customers, plus a rate of return granted to allow the company an opportunity to make a profit.

Westar has asked the Kansas Corporation Commission to allow it to increase its rates primarily to offset increased expenses for employee pensions, to expand tree trimming and to offset the effects of a cold summer and reduced power usage during the test year used to determine the company’s cost of doing business.

Many of the approximately 30 people who testified to the commission said they are hurting economically and that Westar should share the pain through a smaller guaranteed return.

“We’re getting screwed, let their shareholders take it too,” said customer Russ Pataky, to applause from the crowd.

After the meeting, Westar CEO Mark Ruelle defended the company’s request for a higher percentage for shareholders.

He said it is necessary for the company to raise its rate of return on equity from the current 10.4 to 10.6 percent to continue to attract investment capital for power plant refits and other improvements.

He also said that while Westar’s guaranteed a return, it’s not guaranteed a profit level. The company’s actual profit level is now about 7 1/2 percent and it’s unlikely to actually reach the 10s anytime soon.

Numerous customers, including veteran utility advocate Margaret Miller, 92, accused the company of penalizing conservation by raising rates to offset reductions in sales.

Shelley Durham, a customer from Hesston, said her most recent bill showed she had cut her energy usage substantially but still paid more on the bill.

“I used 15 percent less kilowatt hours November of this year than last year, and my bill is 41 percent higher,” she said. “In a time period where salaries have remained stagnant over the past few years, it seems irresponsible for Westar to again be requesting a hike in rates.”

Ruelle said that customers were misinterpreting that part of Westar’s request. Rather than a penalty for conservation, it was an adjustment to make sure Westar is paid its costs based on an average year, not an unusually cold or hot one.

During a question and answer session leading up to the formal testimony, customers mocked a Westar PowerPoint slide showing the pace of its increases in the last 10 years.

The company’s vice president of strategy, Greg Greenwood, displayed the slide to show that prices for other products had risen faster than the cost of electricity.

But what customers noted was that the company’s rates were steady and at times even decreasing in most of the last decade before jumping nearly 30 percent since 2007.

The main reason for the increase is that Westar is now allowed to seek increase between rate cases for items such as environmental and transmission costs.

One question that was asked but went unanswered during the hearing was how many of Westar’s employees earn in excess of $100,000 a year.

Judging from applause, consensus seemed to be that Westar was overpaying its executives.

Before raising rates, “why don’t we start by making upper management, of all salaried positions, but especially upper management, taking a six to 12 percent cut in their pay,” said Charlie King.

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As the Water Table Drops, Great Plains Farmers Must Cut Use by 75%

GPACE — Wed, 23 Nov 2011 22:16:25 +0000

By Tiffany Stecker for E&E News/ClimateWire (trial or subscription required)

Sitting near the Cimarron River, Steve Rome, 58, admits he’s only seen the river freely flowing three times in his lifetime.

“This is a place where we haven’t perfected the rain dance,” said Rome, a corn grower in Hugoton, Kan., in the drylands of the Great Plains. Running from Colorado’s Eastern edge to Tulsa, Okla., the Cimarron gets most of its water from the High Plains Aquifer — also known as the Ogallala Aquifer, a vast underground reservoir that accumulated its water supply during the last ice age.

Many of the rivers of the Great Plains depend on this aquifer to provide water to farmers, ranchers, communities and wildlife.

But a recent study by researchers from Oregon State University and Colorado State University found that river basins in this region are being strained from use, putting fish, trees and other life on the line.

Refuge pools, small pockets of water where fish thrive, are becoming scarcer and wider apart, said Jeffrey Falke, the lead author of the study and a postdoctoral researcher in Oregon State’s Department of Fisheries and Wildlife. In the next 35 years, only 57 percent of refuge pools where the fish reside will still exist.

To avoid this scenario, water users will need to use only a quarter of the water they use now, according to the study. Computer models simulating climate changes that predict more frequent droughts and changing rainfall patterns bring more uncertainty to the continuation of current water practices.

Dwindling water flows have been damaging to native species like brassy minnows or orangethroat darters. Of 37 species of fish in the Platte, Arkansas and Republican river basins, 20 are extinct, endangered or threatened. But it also threatens local vegetation — cottonwood trees, native grasses and forage for livestock that depend on shallow access to groundwater to survive.

A new era for water rights disputes

Half of the region’s agriculture is dominated by water-intensive corn, and also includes wheat and alfalfa crops. After World War II, new irrigation technology was implanted in the region, increasing the ease of pumping out water from regional aquifers and lowering the groundwater level, said Falke.

“Historically, that’s the case for across the Republican and Smoky Hill basins,” said Falke, referring to two local river basins from which farmers irrigate. “There was a pretty steady decline after the 1960s.”

The Cimarron River, which runs by Hugoton, Kan., is a little different, added Falke, because it originates in the Sangre de Cristo Mountains and is replenished by snowmelt. But the slow flow is the same.

“It’s more of a function of rain, runoff in this particular area,” he said. “Less to do with irrigation and damming.”

As for the 75 percent water-use reduction, it is possible, but not without repercussions on grain yield, irrigation-related jobs and the structure of the local economy.

“Anything’s possible, but it depends what you want to do to the economy of the area,” said Rome. “We can reduce the use of water, but it does mean that our economy will be totally different.”

Reprinted from Climate Wire with permission from Environment & Energy Publishing, LLC. www.eenews.net 202/628-6500

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GPACE Executive Moving to Sierra Club Position

GPACE — Fri, 18 Nov 2011 13:33:30 +0000

In December, the executive director of the Great Plains Alliance for Clean Energy will join the Sierra Club’s Beyond Coal Campaign in a regional position that will enhance efforts toward clean energy generation, environmental protection, and related job creation in Kansas and two neighboring states.

Scott Allegrucci, a founding board member and executive director of the Great Plains Alliance for Clean Energy (GPACE), will become the Beyond Coal Senior Campaign Representative covering Missouri, Nebraska as well as Kansas, bringing regional coordination and focus to the push for clean energy choices.

“While Scott’s role in Kansas will necessarily change, we’re very excited that his new assignment with Sierra Club can bring regional leverage to our state efforts,” said Kim Hanson, GPACE Board Chair. “Regional advocacy makes sense since coal plant pollution and electrical power distribution don’t stop at state lines. Kansas will benefit from Scott’s move because our state is very rich in cleaner and renewable energy sources.”

The Beyond Coal Campaign is the Sierra Club’s national effort to clean the air, end the coal era, and accelerate the transition to cleaner, cost-effective energy sources. Started as a three-person campaign in 2002, the Beyond Coal campaign has quickly grown into a powerhouse effort that is changing the way America produces energy.

“The GPACE mission to support a clean, secure, prosperous energy economy benefiting Kansas and all future Kansans can be advanced by a collaborative regional effort,” Allegrucci said. “With regional strategy and organization, we’ll be better able to advocate for Kansas actions that can enable clean energy, create new jobs and jump-start the American economy.”

Allegrucci said the achievements of GPACE prove that Kansans are ready to capitalize on the state’s native energy resources to create more higher-paying jobs; a resilient economy; and a healthy environment for our children and grandchildren.

“The stage is set because Kansas has a surplus of cleaner and renewable electricity fuel sources,” Allegrucci said. “The region will benefit if the kind of progress and cooperation GPACE and Sierra Club have realized in Kansas can be coordinated with similar efforts in Missouri and Nebraska.”

Allegrucci led GPACE in the successful 2008 and 2009 Kansas legislative fights that stopped Tri-State Generation & Transmission Association’s proposal to add two, huge coal-burning plants at Sunflower Electric’s Holcomb Station.

He also led GPACE’s efforts against the Tri-State and Sunflower 2010 proposal to add one plant at Holcomb. A permit was granted, but the matter was tainted by reports of political pressure and collusion between Kansas regulators and Sunflower Electric representatives. Sierra Club and Earthjustice have mounted legal challenges to the proposed expansion and to the permit granted by the Kansas Department of Health and Environment.

“Coal-burning power plants are the single largest source of global warming, mercury pollution and asthma attacks in children and adults,” Allegrucci said. “It’s a public health and economic issue that must be addressed on a regional and national basis as well as within individual states.”

Hanson said Allegrucci’s move is logical because GPACE and the Sierra Club have fought side by side on a number of activities in Kansas during this period.

“Sierra Club’s growing national capacity and Scott’s experience building effective partnerships on the ground mean GPACE’s mission and objectives will continue to be well served,” Hanson said.

Among the major supporters of the Beyond Coal campaign is Michael R. Bloomberg, Mayor of New York City, and Bloomberg Philanthropies, which has committed $50 million to the campaign.

“I can’t imagine a more effective way for Sierra Club to use some of the Bloomberg money in Kansas than to engage Scott Allegrucci on a regional basis,” said GPACE Board Member Dan Nagengast.

Under the guidance of its Board of Directors, GPACE remains engaged with national, regional, and state partners regarding efforts to fund and coordinate clean energy and clean air advocacy not only in Kansas, but also in the Great Plains region, particularly the Southwest Power Pool and EPA Region 7. Strategic planning is under way, Allegrucci said.

Hanson added: “We expect to know in early 2012 the full impact that regional efforts, led by Scott, will have in Kansas. At that point we’ll determine what level of resources and staffing GPACE requires in order to continue to be effective in our state.”

Allegrucci begins his work with the Beyond Coal Campaign November 28^th. His work as a Senior Campaign Representative will cover the states of Kansas, Nebraska, and Missouri.

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Fair Fight?

GPACE — Wed, 09 Nov 2011 14:22:27 +0000

Editorial for the Lawrence Journal World

You might call it stretching the truth or misrepresenting the facts, but many would simply call it a lie.

The regional administrator for the federal Environmental Protection Agency was a bit more polite, saying last week that the Kansas Department of Health and Environment had “incorrectly informed the court” in written arguments last month to the Kansas Supreme Court.

The court filing was made in connection with the ongoing dispute between the EPA and KDHE over a permit that would allow construction of a coal-fired power plant in southwest Kansas. KDHE attorneys asserted that the “EPA has no substantial objection to the issuance of the construction permit.”

It’s not clear exactly what they meant by “substantial,” but the EPA certainly has objections as verified by Karl Brooks, EPA Region 7 administrator, who cited three letters from the agency telling KDHE the permit issued to Sunflower Electric Corp. was not strong enough and needed to include federal standards for nitrogen oxides and sulfur dioxide emissions.

After the dispute was reported last week, a KDHE spokeswoman said that the officials in that office would have no comment.

Whether people are opposed to or supportive of Sunflower’s coal-fired plant, the regulatory trail this project has traveled over the last four or five years raises questions and concerns.

The permit originally was denied while Rod Bremby was serving as KDHE secretary under Gov. Kathleen Sebelius. After Sebelius left office to lead the U.S. Department of Health and Human Services, new Gov. Mark Parkinson bartered a deal to allow the plant’s construction. As he neared the end of his term, however, the permit had not been issued. Bremby abruptly was removed from his post, and, shortly thereafter, in December 2010, the permit was issued by the acting KDHE secretary.

Several months later, a Kansas City newspaper traced a trail of emails that detailed some disturbingly cozy dealings between KDHE and Sunflower, which got to pick out and answer questions that were supposed to help shape requirements of the permit. KDHE then passed Sunflower’s responses off as its own.

KDHE has a new secretary now, Robert Moser, but the Sunflower permit process still is raising questions. Last June, Moser granted an unusual permit extension to Sunflower in an apparent attempt to allow the plant to skirt new, stricter federal pollution standards. Now, it appears KDHE attorneys were trying to mislead the Kansas Supreme Court by ignoring EPA objections to the permit.

This is a contentious fight, but it doesn’t help KDHE or Kansas to be caught misrepresenting the facts of the case.

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Is KDHE a Regulator or a Manipulator?

GPACE — Thu, 03 Nov 2011 13:36:05 +0000

By Phillip Brownlee for The Wichita Eagle

Earlier this year, the public learned about the cozy relationship between the Kansas Department of Health and Environment and Sunflower Electric Power Corp. KHDE even had Sunflower respond to questions from the public about its proposed coal-fired power plant near Holcomb and then passed off some of the answers as KDHE’s own.

Now the Environmental Protection Agency is objecting to KDHE attorneys’ statement to the Kansas Supreme Court that “EPA has no substantial objection to the issuance of the construction permit.” In fact, EPA sent three letters to KDHE informing it that Sunflower’s permit was not strict enough.

So not only did KDHE ignore EPA’s directives, it tried to mislead the Supreme Court. These are people in charge of protecting our health and environment?

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More Dirt on Sunflower Electric’s Coal-fired Power Plant

GPACE — Thu, 03 Nov 2011 12:12:38 +0000

Editorial by The Kansas City Star

A depressing number of people and organizations have polluted the process used to decide whether the Sunflower coal-fired power plant will be expanded in western Kansas.

State legislators, Govs. Mark Parkinson and Sam Brownback, and the Kansas Department of Health and Environment have not acted in the public’s best interest during this tortured five-year saga. As a result, a weak permit was rushed through to allow the expansion.

Now the legitimacy of that permit is before the Kansas Supreme Court, where the case has taken another disturbing twist.

In a letter to the state health department, the federal Environmental Protection Agency has essentially accused the state of lying to the Supreme Court.

The state told the court the EPA didn’t object to the permit. But an EPA response letter says that, in fact, the feds have made it clear they don’t think the permit is strict enough.

It’s troubling that the EPA many months ago did not act more forcefully to make sure Kansas approved the strongest possible restrictions on pollution from the new plant.

Instead, the EPA unwisely let the state rush through a weak permit modeled on demands of the operator, Sunflower Electric Power Corp.

The Supreme Court needs to sort out this mess. So far, state and federal governments have failed to take appropriate steps to protect thousands of Kansans from a larger plant’s future harmful emissions.

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EPA Says KDHE Not Honest About Permit Objections

GPACE — Thu, 03 Nov 2011 02:29:10 +0000

By Associated Press (via Canadian Business)

An Environmental Protection Agency official has accused lawyers representing a Kansas agency of lying to the state Supreme Court about support for a permit that would allow a $2.8 billion coal-fired power plant to be built in southwest Kansas.

In a letter this week to the Kansas Department of Health and Environment, EPA Region 7 administrator Karl Brooks took issue with KDHE claims in written arguments to the Supreme Court last month that the EPA didn’t have a problem with the permit for construction of the Sunflower plant near Holcomb.

“EPA has no substantial objection to the issuance of the construction permit,” attorneys for KDHE wrote.

Brooks’ letter said, “Kansas incorrectly informed the court” that EPA did not object.

The Sierra Club and Earthjustice have filed a lawsuit seeking to block construction of the power plant, which has been the subject of a six-year battle between supporters who say the plant is needed and environmentalists who believe the coal-fired plant will create harmful greenhouse gases.

Lawyers for the two groups argued in a filing with the court that the state permit issued by KDHE to Sunflower Electric Power Corp. did not comply with the Clean Air Act.

The brief claims the permit does not include enforceable limits on nitrogen oxides and sulfur dioxide pollution, failed to follow requirements to consider use of best available control technology and denied the public a fair opportunity to participate in the agency’s evaluation.

The state says the pollution levels it allowed in a permit for the plant are safe for humans, but the Sierra Club said in its lawsuit that those levels aren’t safe.

The Kansas City Star reported Wednesday (http://bit.ly/sfmvfv ) that the EPA says it has voiced its opposition to the permit in letters and discussions over the past two years.

Brooks’ letter said KDHE failed to tell the Supreme Court that it had received three letters from the EPA saying the permit was not strict enough.

Both KDHE and Sunflower Electric declined to comment on the issue. The EPA said Brooks’ letter speaks for itself.

The Sierra Club said it plans to make a big deal out of the inaccurate Kansas statement when it files its own arguments with the court.

“EPA has consistently told the state that the permit needed more stringent limits on certain pollutants,” Stephanie Cole, spokeswoman for the Sierra Club, told The Star in an interview. “KDHE not only ignored EPA’s request to amend the permit to include the more stringent limits, but now KDHE is actually attempting to mischaracterize EPA’s position to the court.”

The project has been the center of political and legal disputes since 2006. Supporters of the project say the plant will bring crucial jobs and economic development to western Kansas. Opponents contend the plant will pollute, draw down water reserves and provide electricity that isn’t needed in Kansas. Colorado residents will receive much of the electricity.

___

Information from: The Kansas City Star, http://www.kcstar.com

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Kansas Energy and the Bremby Decision: Four Years Later

GPACE — Mon, 24 Oct 2011 14:00:37 +0000

By Scott Allegrucci for GPACE

Last week (Tuesday, October 18th, to be exact) marked the fourth year since then-Secretary of the Kansas Department of Health and Environment Rod Bremby issued the historic denial of air quality permits for the proposed 1400 MW Holcomb Station coal-fired expansion sought by Sunflower Electric Power Corporation (of Kansas), Tri-State Generation and Transmission Association (based in Colorado), and Golden Spread Electric Cooperative (of Texas).

That Was Then

Bremby cited the (then) recent U.S. Supreme Court decision in Massachusetts v. EPA classifying carbon dioxide as a pollutant under the Clean Air Act, and the United Nations IPCC reports on global climate change and its impacts upon human health and the environment among his reasons for the denial. His decision also cited Kansas statutory authority clearly delegated to the KDHE Secretary for such decisions. His decision was the first instance in the United States of a public official blocking coal plant construction based in part upon concern for health and environmental impacts from climate change caused by coal-fired power plant emissions.

Pro-coal forces in Kansas and elsewhere immediately launched an assault on then-Governor Sebelius, with paid advertisements in national media linking the decision to support for foreign dictators and hyperbolic claims that Bremby acted “illegally” and “against the will of Kansans.” The ads were blasted by observers everywhere as false information and fear-mongering, and subsequent multiple, bi-partisan polls in Kansas showed clear and overwhelming public opposition to the proposed coal plant project with its emphasis upon unneeded electricity generation, imported resources, pollution of Kansas, and value and economic impact for other states.

The Sebelius administration spent significant political capital defeating multiple versions of pro-coal and anti-regulatory wish-list legislation in 2008 and 2009. As late as April of 2009, then-Lt. Governor Parkinson repeatedly and publicly called out the lies and misinformation project supporters were using to justify their efforts.

In the wake of the 2008 national elections, the pro-pollution and climate change denial machine (generously funded and guided by Kansas’ own Koch brothers) increased efforts to undermine established scientific consensus regarding climate change and human-caused drivers of global warming. Using climate change denial and the economic recession as a kind of Trojan horse, the pro-pollution, anti-health crowd has undertaken a concerted effort to not simply stop regulation or valuation of greenhouse gases, but to undo 40 years of federal public health and environmental protections – protections that have coincided with unprecedented overall economic growth and prosperity in the United States.

Sunflower Electric and its allies dodged continuous questions about the project (from financial mismanagement, to “clean coal” falsehoods, to demand realities, to water consumption) and threw everything and the kitchen sink at the decision and support for it, including personally naming Bremby, Sebelius, and Parkinson in a frivolous federal lawsuit. Yet, the project remained stalled for legal, regulatory, financial, and other reasons. Golden Spread moved on, and developed wind and natural gas assets to meet its relatively small need for future generation capacity.

Public and administrative support for Bremby’s decision stood firm until Sebelius departed for a Presidential cabinet appointment. Immediately upon being sworn in as governor, Parkinson announced his own secret deal with Sunflower Electric that gave pro-pollution advocates everything they had ever wanted (and that he had previously called “dishonest” and “unnecessary”), including a 900 MW coal plant at the Holcomb Station and a complete stripping of state responsibility for air quality. Of note, Bremby never signed the settlement agreement and KDHE was never involved in the development of the deal. Parkinson then embarked upon a process of collusion and political pressure that saw the project permitted before the end of 2010 despite unprecedented public opposition – ultimately firing Bremby in order to clear that path.

This Is Now

In mid-2011, former KDHE Secretary Bremby accepted an offer by the governor of Connecticut to apply his considerable talents and commitment to public service on behalf of that state’s citizens.

Former Governor Parkinson is now a highly paid lobbyist in Washington, DC, and former Sunflower Electric Power Corporation CEO Earl Watkins has retired.

The Bloomberg Foundation (of New York City’s Republican Mayor Michael Bloomberg) recently donated $50 million to Sierra Club’s Beyond Coal Campaign.

And a Republican sweep of statewide elected offices and Congressional seats leaves Kansas with the most conservative (and pro-polluter) public leadership in the state’s modern history.

Meanwhile, the pesky reality that, due to massive unpaid taxpayer loans, Sunflower Electric is essentially a federal government entitlement project did not escape the attention of a federal District Judge, who ruled that Sunflower Electric and the Rural Utilities Service of USDA had violated federal law in pushing the Holcomb Station coal-fired expansion forward at taxpayer risk and without legally-required review. Remediation in that case is pending, as is a Kansas Supreme Court review of a legal challenge to the KDHE permit and process for the project.

According to the permit granted by KDHE, the proposed plant is not state of the art or clean, as claimed, but will in fact be one of the dirtiest plants in the nation.

Electricity demand is down and, even accounting for the recession, projections are for much lower demand than utilities had been claiming.

None of the primary project partners can demonstrate a need for coal-fired generation from the project – it appears to be essentially a merchant plant designed to benefit Tri-State since it will be phased for the Western Grid and will be owned entirely by Tri-State.

The much-touted jobs and economic benefit from the project are years away at best, since there is no need for the plant’s capacity and Tri-State has publicly stated construction will not begin prior to 2016, at the earliest. Still, Kansas elected officials continue to help Tri-State delay the project while blaming “environmental extremists” for the delays.

The fundamental science that informs the worldwide observations of global warming caused by anthropogenic climate change continue to be confirmed, including by a recent study funded in part by the Charles Koch Charitable Foundation.

Kansas’ relative ranking in achievable wind energy capacity has increased. Recent tall tower data for Kansas from the National Renewable Energy Laboratory shows even more wind density than previously measured, with wind generation capacity factors in southwestern Kansas reaching over 50% in some instances. Wind farm and transmission development in Kansas continue apace, regardless of the proposed Holcomb Expansion coal-fired project.

Lower prices and increased supply have made natural gas cost-competitive with long-term coal contracts, and its cleaner emissions portfolio beats coal’s performance (and cost) under increasing public health and environmental protections. Natural gas is also a much better partner for renewable energy integration than coal.

In spite of deceptive and misleading partisan political tactics, modern and necessary public health and environmental protections (most developed under previous Republican administrations, many focused on power plant emissions) continue to be implemented and supported by a significant bi-partisan majority of Americans.

The regulatory uncertainty caused by partisan political opposition to carbon regulation or valuation, in the context of virtual certainty by key actors in capital finance markets and energy policy circles that greenhouse gases must and will be regulated in the future, has created significant overhanging risk, halting most investment in new coal plants and making the economics of coal plant retrofits questionable.

Efforts continue to obscure the facts, derail the rule of law, and deny the public interest in order to benefit the coal plant project and its special interest allies. All in all, though, it seems that Mr. Bremby’s decision four years ago remains as visionary and important an act of public service now as it was in October of 2007.

Scott Allegrucci is the Executive Director of the Great Plains Alliance for Clean Energy

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