Folks:
Below is a draft summary I put together on Governor Granholm's Executive Directive, along with some links. The full State of State is also of interest because it lays out the full energy agenda (http://www.michigan.gov/documents/gov/SOS2009_265915_7.pdf on pages 5 through 7)
Some of the key documents that were produced by our amazing legal team (Faith Bugel and Meleah Geertsma of Environmental Law and Policy Center, Shannon Fisk of NRDC, Bruce Nilles, James Gignac and David Bender for Sierra Club, and more recently Noah Hall of Great Lakes Environmental Law Center) are posted on the GLELC blog site: http://www.glelc.org/glelc/clean-energy.html . These folks did a phenomenal job of looking at the opportunities for creatively tackling the fight in Michigan. This started in the summer of 2007 with two separate petitions submitted to the Michigan DEQ requesting the Director to regulate CO2 in keeping with the Supreme Court's direction (one petition was a request for rulemaking submitted by a small group near the Wolverine Power Cooperative proposed plant in Rogers City, the other was a request for declaratory ruling submitted by our group of initial collaborative organizations). While both of these failed, the practice of working together started that fall, and we kept reenforcing it.
Another site of interest was mentioned by Jan O'Connell -- Lee Sprague, who came on board with Sierra Club almost a year ago, worked with a volunteer web designer who has been willing to have a site put up that is shared by our collaborative group (Clean Energy Now is the name -- www.cleanenergynowmi.org ) which Lee worked to get up and running probably 6 to 8 months ago -- it has its flaws, but it has been a useful place to send folks for updates on all the plants. Since not every member group of our collaborative is working on every plant, it is useful to have a single site for all of them
If anyone is interested in seeing our original plan, I'm happy to share it with you. We put it together in an interative process with the dozen groups originally involved in the Clean Energy Now collaborative, and this was the basis for what was provided to the Energy Foundation when they requested grant proposals for the Michigan coal fight. The plan was accompanied by several appendices, which included details about strategies to be implemented in each community, the state-wide strategy, the beginnings of a communication plan, and information about each organization that was a partner and what they were doing or proposing to do. By laying it out this way, the Energy Foundation was able to select the groups that they work with and deal with them directly, rather than try to shoehorn all the groups into a single grant proposal with a single fiduciary agent, and since was still the early stages it helped us all learn to work together without competing for funds.
I also do have a six page summary of the work over the course of the past eight months, since the plan was completed, that gives an idea of what we actually did. Again, let me know if you would like to see it.
Thanks for all the kind words, and we are very eager to share what worked here, in particular because we know we are going to continue to need all of YOUR good advice well into the future!
Anne Woiwode, State Director
Sierra Club Michigan Chapter
(517) 484-2372
From: Anne Woiwode
[mailto:Anne.Woiwode@sierraclub.org]
Sent: Sunday, February 08, 2009
1:14 PM
To: 'nocoalmi@mienv.org';
'energy@mienv.org'
Subject: DRAFT Discussion of the
Governor's Executive Directive and State of the State
Folks:
As the dust is starting to settle and the PR from the coal and utility companies is beginning to heat up, I think it will be useful for all of us to get clear on Executive Directive 2009-2, Consideration of Feasible and Prudent Alternatives in the Processing of Air Permit Applications from Coal-Fired Power Plants, http://www.michigan.gov/gov/0,1607,7-168-36898-208125--,00.html . As we encounter resistance to this action, it is important to try to be as accurate and complete as possible because we are already seeing the Doctors of Spin both political and corporate get out there to question the legality and the fairness of the Governor's actions. After discussions with our terrific group of attorneys from ELPC, NRDC, GLELC and Sierra Club, I am taking a stab at a Q&A below to try to answer some of the questions I am guessing are out there. I will NOT pretend that this is all correct or at all complete, but lets use our forums here to raise and try to answer questions so we are all prepared to defend which is probably one of the boldest, if not the boldest, move by Governor Granholm in her 6 + year tenure as our state's CEO.
PLEASE TREAT THIS AS AN INTERNAL DISCUSSION DRAFT AND DO NOT FORWARD IT AS IS!!
Q &A:
What proposed coal plants does the ED apply to?
All the ones currently before the DEQ and any that might seek permits in the future. Northern Michigan University's permit was issued last year and is in appeals to the EPA Environmental Appeals Board, so is not covered. However, Wolverine, Holland, Consumers and MidMichigan are all covered, and if Lansing, M & M or Tondu were to apply they would also be covered.
Under what authority is the Governor taking this action?
The ED cites both the federal Clean Air Act and the state's Natural Resources and Environmental Protection Act as giving the Governor authority to act (see ED for specific cites). In fact, these provisions were suggested to the administration in memos sent to both the DEQ and the Governor last year drafted by NRDC, ELPC and Sierra Club's attorneys (http://www.glelc.org/files/mi-co2-granholm-letter.pdf ) and also included in the comments submitted on the specific air pollution permits. The letter to Governor Granholm, while focused on CO2 regulation, provides a very good explanation of the authority the she and her administration have to take action to require consideration of alternatives to the proposed actions.
Is the Executive Directive the equivalent of a "new law"?
No. An Executive Directive is direction from the Governor to her Administrative agencies and staff on how to apply existing laws or to take specific actions already authorized in the law. With regard to ED 2009-2, the Governor is directing the DEQ to take steps to determine a) is there is a need for the power proposed to be generated by these coal fired plants, and b) to consider "feasible and prudent alternatives" to these facilities. The ED cites two specific provisions of law regarding the requirement to consider "feasible and prudent alternatives. The first is in state law under the section of NREPA know as the Michigan Environmental Protection Act (MEPA). The second is the Clean Air Act Section 165(2)(a), which the ED points out gives "discretion" to the DEQ to "consider alternatives to proposed sources of air emissions when determining whether or not to grant an air permit to that source." The Governor's action tells her agency that they are to exercise that discretion. The ED also directs the Public Service Commission to assist the DEQ in its implementation of these directives, clarifying that this cross agency coordination is to occur.
Is this a "moratorium" on new coal plants?
No, this is not a moratorium on coal plants. It is instead clear direction from the Governor to her agencies that no new permits can be issued to coal plants without completion of these steps. Attempts to characterize this as a moratorium may well be efforts by the applicants and their supporters to pretend that the Governor's actions are overstepping legal bounds, when in fact her ED is well within her discretion.
Instead, it should be understood that the ED reflects conclusions of the administration based on today's realities that may be responsive in part to comments raised in public comment on the Wolverine and Holland permits and in memoranda submitted to both the Governor and the DEQ. Neither Michigan nor any other state has faced so many proposals to build coal plants (the Governor used the words "a slew of new coal power plants" in her State of the State), combined with growing concerns about the environmental impacts, clear documentation of declining demand for electric generation, and passage of RPS and EE requirements last year that promise even more reductions in demand for new coal plants.
As DEQ's Press Secretary Robert McCann said in a Bay City Times article: "It's an addition, part of a review that's going to be done," he said. "It makes our review more comprehensive and frankly, a lot more real-world based. "There's a growing concern among the public that we have these five new applications in for power plants, but is there really a need for five new coal plants?" Prior to the governor's directive, the DEQ was only able to evaluate each permit for meeting air quality regulations, McCann said.'
Is the Governor going back on agreements struck in passing the 2008 energy legislation?
No. The utilities and others proposing new coal plants are desperate to claim that there was a violation of "agreements" made last year, suggesting that one of more of the coal plants was "promised". This is posturing for political benefit only, and if any such agreements were made they would have been contrary to requirements of the Clean Air Act and NREPA that environmental protections must be assured. Some contention is also made that since Consumers Energy is already required by the laws passed last year to do a needs assessment under the Integrated Resources Plan requirements, in order to obtain a Certificate of Need from the Public Service Commission, that this is somehow changing the rules. The PSC is still in the process of developing the requirements for the IRP and the DEQ has been directed in the ED to work with the PSC in this process, so there is no reason to think that this would be in anyway inconsistent with the law passed last year. As pointed out in the ED, the Governor is not making new law, she is simply making clear how her agencies should apply existing laws to these circumstances.
How will this process play out?
In discussions with the DEQ last week it was explained that they have not yet figured out exactly how this process will unfold. Over the course of the next few weeks we can expect the agency, working with the Public Service Commission, to put together the steps they will pursue. This is an important time for members of the public to feel free to suggest ways that agency should proceed, and to assure that they have information that may help shape the best process, and several groups following the specific coal plants will be seeking to engage the agency in discussions about their process. While we expect the public will have input into this process, the details for that are not yet spelled out.
What happens to the comments already received by DEQ on Wolverine and Holland?
Because these requirements are additive to the permitting process that has been underway on both of these plants, all of the comments and input on those permits will be part of the record going forward. However, we are also convinced that both of these proposals are already fatally flawed and would not warrant issuance of an air quality Permit to Install today, even short of the needs assessment and alternatives assessment. It is certainly appropriate for all of us to argue that DEQ should deny these permits outright. If the applicants chose to submit new applications, they would still be required to meet the requirements for needs assessments and alternatives consideration. However, there is no excuse for moving these into those stages of review when the permits should be denied outright based on public comment to date.
DRAFT DRAFT DRAFT DRAFT DRAFT DRAFT DRAFT DRAFT DRAFT DRAFT DO NOT FORWARD
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Anne M. Woiwode, State Director
Sierra Club Michigan Chapter - 109 E. Grand River Avenue, Lansing, MI 48906 - 517-484-2372 anne.woiwode@sierraclub.org http://michigan.sierraclub.org/index.shtml
Support the Sierra Club Michigan Chapter - contact Wendi Tilden at wendi.tilden@sierraclub.org
The bold steps that are needed to solve the climate crisis are exactly the same steps that ought to be taken in order to solve the economic crisis and the energy security crisis - Al Gore