The U.S. Supreme Court opened its term Monday with an Idaho case that could significantly restrict the federal government’s power to enforce clean water laws and prove crucial in determining wetland protections.
The oral arguments came just months after the court’s 6-3 conservative majority limited executive authority to address climate change in a case involving federal regulation of greenhouse gases.
The clean water case, brought by an Idaho couple seeking to build a house on a plot of land they bought near Priest Lake in the state’s panhandle, provides an opportunity for the court to rein in what types of waters are subject to a provision of the Clean Water Act known as “Waters of the United States.”
The property of Michael and Chantell Sackett is across a road from wetlands that eventually drain into Priest Lake. The Environmental Protection Agency has required the couple to obtain federal permits before they build, but the couple has argued that because their property doesn’t contain any water itself, it shouldn’t be subject to Clean Water Act requirements.
Justice Brett Kavanaugh noted that the case was about much more than one couple’s building permits.
“Let’s put aside the facts of this case because this case is going to be important for wetlands throughout the country,” he told the Sacketts’ attorney, Damien Schiff of the conservative Pacific Legal Foundation.
The law doesn’t define what is considered a water of the United States subject to federal regulation, and land that is situated near and drains into a covered waterway can also be subject to regulation, which is what the EPA has argued in the Sacketts’ case.
The case is about how broad that definition can be. Monday’s arguments indicated the status quo may be too broad for the court’s conservative majority to accept.
Justice Neil Gorsuch pushed U.S. Justice Department attorney Brian Fletcher to define the distance from a waterway that land would be subject to regulation. Fletcher could not offer a distinct answer, prompting Gorsuch to wonder how property owners or potential property owners could be expected to determine what their responsibilities are under the law.
“If the federal government doesn’t know, how is the person subject to criminal time in federal prison supposed to know?” he said.
Taking part in her first oral argument as a member of the court, Justice Ketanji Brown Jackson asked what the process was for determining if a particular property was covered.
Fletcher said that property owners can receive, at no cost, an analysis from federal agencies about whether they need to seek permits.
Further, property rights are not restricted by federal permitting requirements.
“The fact that they’re covered by the act does not mean that development is prohibited, it just means that development has to be permitted,” he said.
Meaning of ‘adjacent’
Another piece of the Sacketts’ argument was that their land was not in fact adjacent to a covered water because a road separated their property from the water.
Several justices, both liberal and conservative, appeared skeptical of that argument.
Jackson responded to Schiff’s argument that Congress differentiated between land abutting covered waters and land nearby by noting that the Clean Water Act’s purpose was to preserve water quality.
“Why would Congress draw the coverage line between abutting wetlands and neighboring wetlands when the objective of the statute is to ensure the chemical, physical and biological integrity of the nation’s water?” she said. “Are you saying that neighboring wetlands can’t impact the quality of navigable waters?”
The EPA and the Army Corps of Engineers have long accepted that nearby land can affect waters that are covered by the Clean Water Act. That’s still true if there’s a human-made construction like a berm or a road, Fletcher said.
“For 45 years, the EPA and the Army Corps has recognized that the presence of such a barrier does not categorically strip a wetland of the act’s protections,” he said.
Even some of the court’s conservative justices seemed skeptical of the Sacketts’ argument that their land was not adjacent to covered water.
Chief Justice John Roberts made an analogy with train stations and tracks. A station does not physically touch the tracks but is considered to be adjacent to them.
Executive agencies, under presidents of both parties, have long held that neighboring — not only abutting — lands were covered, Kavanaugh told Schiff.
“Why did seven straight administrations not agree with you?” he asked.
But even if a majority of justices are unpersuaded by the Sacketts’ adjacency argument, the conservatives might not miss an opportunity to narrow the regulatory authority of the Clean Water Act.
“The composition of this court is likely to go in a narrower way,” Melissa Reynolds, an attorney with Holland & Hart’s water law office, said in a Monday interview. “It’s not expanding jurisdiction and hindering private property owners moving forward — it’s kind of the opposite direction.”
In June, in one of the final decisions of its previous term, the court held that the EPA could not use the Clean Air Act to regulate greenhouse gas emissions on an industry-wide scale, dealing a blow to federal efforts to address climate change.
Under the past three presidential administrations, the working definitions of waters of the United States have shifted.
But in general, the federal government has been working under a “significant nexus” standard, holding that anything with a meaningful intersection with covered waters is subject to Clean Water Act regulation.
The court’s conservatives indicated they may like to narrow that standard.
“I imagine that most of the water flow and rainfall and snowfall in quite a large geographic area drains into the lake eventually,” Gorsuch said. “How does any reasonable person know — within maybe 100 square miles in a watershed that drains into a body of water that is a water of the United States — whether their land is adjacent?”
The Biden administration is working on a new rule to further define waters of the United States. That rule is being reviewed by the Office of Management and Budget, Fletcher said. That step is usually one of the last before a rule becomes final.
Fletcher said a final rule is likely before the end of the year, which would likely be before a decision from the court.
by Jacob Fischler, Virginia Mercury
Commission to Combat Antisemitism releases report on antisemitism in Virginia
RICHMOND, VA – The Commission to Combat Antisemitism released its report on antisemitism in Virginia on December 5, 2022. The Commission, established by Governor Youngkin’s Executive Order 8 on his first day in office, reaffirms Virginia’s commitment to stand against hatred and intolerance and develop an actionable plan to combat antisemitism in the Commonwealth.
The Commission was established following a disturbing increase in antisemitic incidents nationally and Virginia. In 2021, antisemitic incidents in the U.S. reached an all-time high, with 2,717 separate incidents reported. In 2022 thus far, Virginia alone has seen nearly 350 reports of antisemitic acts.
“Hatred, intolerance, and antisemitism have no place in Virginia, and I appreciate the committee’s hard work to highlight and grapple with these matters,” said Governor Glenn Youngkin. “We have challenges in Virginia, and we must work together to address them. For Virginia to be the best place to live, work, and raise a family, the Commonwealth must welcome people of all faiths, ethnicities, and backgrounds with open arms.”
The Commission is tasked with analyzing trends in antisemitism nationally and Virginia, examining the root causes of antisemitism, and proposing solutions to hold hate crime perpetrators accountable, support victims, and stop antisemitism before it starts. To this end, the Commission formed the following four subcommittees to discuss specific issues related to antisemitism and propose policy recommendations to combat antisemitism in Virginia and improve the resilience to antisemitism in state and local government:
• Definition and Scope of Antisemitism
• Educational Responses to Antisemitism
• Law Enforcement and Security Responses to Antisemitism
• Trade, Laws, and Legislation to Combat Antisemitism
The Commission’s recommendations include efforts to bolster K-12 education on the Holocaust and Judaism, increase hate crime reporting and data collection, and prevent state agencies from contracting with companies that have taken antisemitic positions.
“During Governor Youngkin’s first year in office, I have respected his desire to oppose divisiveness in varied forms and instead find moments to bring people together to make Virginia a better place,” said Commission Chairman Jeffrey Rosen. “This is one of those moments, and I hope that the work of our 15-member Commission speaks through this report. The recommendations of the Commission to Combat Antisemitism represent a timely and comprehensive way for Virginia to fight this form of hatred and bigotry head-on.”
“Rising antisemitism in America and Virginia must not be tolerated. To this end, the Commission’s work will provide valuable tools to combat hate and achieve the vision of freedom from persecution set out by our Founding Fathers,” said Commission Vice-Chairman Arthur Sandler. “It has been an honor to serve the Commonwealth on the Commission, and I look forward to working with Governor Youngkin to combat antisemitism and hate in all forms.”
Lawsuit challenging Virginia’s skill game ban will continue into 2023
EMPORIA — A judge on Monday declined to dismiss a lawsuit claiming Virginia’s ban on slots-like skill machines violates free speech and indicated a state senator’s involvement in the case means it won’t go to trial until after the 2023 General Assembly session is over.
At a hearing Monday morning in Greensville County Circuit Court, Judge Louis Lerner also rejected a claim the General Assembly violated the Virginia Constitution by quietly adding legislation to the most recent state budget that sought to reinforce the purported illegality of the machines that have proliferated in Virginia convenience stores, truck stops and sports bars.
Lerner said he had serious concerns about the argument but ultimately concluded it wasn’t the court’s role to try to force the General Assembly to legislate in the open.
“Government at any level should not be doing business in the dark,” Lerner said from the bench. “But once again, I’m not going to peek into that closet.”
But after siding with the state on that issue, Lerner said he continues to see merit in the skill-game industry’s arguments that the ban violates free speech by seeking to classify a particular type of video game as illegal gambling.
“Naming it as gambling or wagering does not matter,” Lerner said, echoing the industry’s argument as he extended an injunction preventing the state from enforcing the ban as the lawsuit proceeds. He made clear he had the General Assembly’s schedule in mind, noting that an April or May timeframe for concluding the matter seemed most realistic given the involvement of Sen. Bill Stanley, R-Franklin, in the case.
“We understand that the plaintiff’s attorney has obligations at the General Assembly that are entitled to deference by statute,” Lerner said, referencing a state law that empowers General Assembly members who are practicing attorneys to delay court matters while the legislature is in session.
The result of Monday’s hearing is that thousands of skill machines estimated to be operating in Virginia can continue in a largely unregulated and untaxed state for the near future.
The General Assembly and former Gov. Ralph Northam attempted to ban the machines in the 2021 legislative session. But the legal challenge brought by Stanley and lawyers for a major skill-game company, Queen of Virginia, has successfully delayed enforcement of that ban for nearly a year. The plaintiff in the suit is Hermie Sadler, a former NASCAR driver who owns a truck stop in Emporia that has benefited from skill-game machine revenue.
“We anticipate the final court decision will uphold the legality of skill games in the commonwealth,” Michael Barley, a spokesman for Queen of Virginia parent company Pace-O-Matic, said in a news release after the ruling. “However, without further regulation and additional taxation, taxpayers are missing out on nearly $100 million in tax revenue that could have gone toward critical projects along with curbing illegal games that are proliferating in Virginia communities.”
The difficult-to-define machines have been a perennial sticking point for policymakers as Virginia has expanded legal gambling over the last few years.
Critics say the skill-game industry brazenly exploited legal loopholes to create a major gambling enterprise without seeking clear permission from the legislature as the casino, sports betting, and horse racing industries did. Skill-game defenders say the machines give smaller businesspeople an opportunity to benefit from looser rules on gambling. The industry insists the machines shouldn’t be classified as gambling at all because they’re primarily based on skill, not a chance.
“We’re pleased with the court’s ruling,” said Jason Hicks of the Womble Bond Dickinson law firm, which is representing Sadler in the case and also works for the Queen of Virginia.
The state argues the skill involved in the games is minimal and only serves to give some semblance of legal cover to what it contends are gambling machines the state has every right to outlaw. The machines aren’t being targeted for any First Amendment messages they convey, according to Virginia’s lawyers, but because the wagering activity that comes with them sets them apart from other types of arcade games.
Attorneys for the state did not comment after the hearing but told Lerner they’re interested in lodging formal objections to how the case has been handled, an indication they’re planning to appeal if Lerner strikes down the ban permanently next year.
The Virginia skill-game industry has enlisted national free speech expert Rodney Smolla, the president of Vermont Law School, to bolster its argument that machines designed to mimic slots have the same First Amendment protections as other video games. Many of the machines feature the same spinning reels and nine-square layout as slot machines but require players to take some action to complete a winning pattern. For some games, that just involves touching the screen as opposed to the more passive experience of playing slots, where winning patterns complete themselves.
In a brief filed with the court, Smolla compared the situation to the televised trivia game “Jeopardy!” The state can ban its residents from wagering money on the outcome of a Jeopardy contest, Smolla wrote, but it can’t pass a law prohibiting people from playing the game, which also involves money, skill, and, to some extent, wagering.
“At the end of the day, the Commonwealth’s case rests on nothing more than an ‘Alice in Wonderland’ approach to the meaning of words, in which ‘illegal gambling’ comes to mean whatever the Commonwealth chooses to define it to mean,” wrote Smolla, who was in the courtroom for Monday’s hearing. “As Humpty Dumpty said to Alice: ‘When I use a word, it means just what I want it to mean — neither more nor less.’ But First Amendment law is neither so glib as Humpty Dumpty nor so credulous as Alice.”
Pace-O-Matic has contributed more than $850,000 to both Republicans and Democrats in Virginia since 2018, according to the Virginia Public Access Project.
by Graham Moomaw, Virginia Mercury
Who helped draft Virginia’s new history standards and more headlines
• Former Reagan education secretary William Bennett and several conservative-leaning groups were involved in drafting the new history and social science standards proposed by Gov. Glenn Youngkin’s administration, according to a newly released list.—Richmond Times-Dispatch
• The Virginia Tourism Corporation, which stoked controversy by awarding a tourism ad contract to Youngkin’s political ad firm, has authorized more than 125 no-bid contracts since 2017. More than a dozen went to a company owned by a Democratic donor who has contributed to former Govs. Terry McAuliffe and Ralph Northam.—VPM
• The former director of a Virginia children’s hospital is now facing felony sex crime charges after former patients accused him of abuse.—Associated Press
• Authorities raided a Fredericksburg-area restaurant suspected of continuing to sell alcohol despite having its license suspended after a long feud with the state over COVID-19 rules. The owner, a Republican running for the Virginia Senate, posted a video on his campaign page that showed him chastising officers conducting the search.—Free Lance-Star
• Youngkin is proposing $350 million to help the state prepare project-ready economic development sites. “We are done playing small ball. We’re going to play to win.”—WRIC
by Staff Report, Virginia Mercury
Will Virginia make a bipartisan move to get rid of its antiquated same-sex marriage ban?
When a Democratic proposal to undo Virginia’s legally moot ban on same-sex marriage failed this year in a Republican-led subcommittee, some conservatives said they could potentially get behind a more stripped-down version of an idea Democrats pitched as correcting a moral wrong from 2006.
Instead of replacing the constitutional ban with pro-equality language declaring marriage a fundamental right — as Democrats have tried to do — the Republican critics said they’d be more supportive of simply erasing the ban without going further into affirmatively pro-LGBTQ territory.
A GOP-sponsored version of that proposal will be on the table for the 2023 General Assembly because Del. Tim Anderson, R-Virginia Beach, filed a so-called “clean repeal” plan late last month that only strikes the ban from the state constitution without adding anything else. Because it’s a constitutional amendment, the proposal has to pass the General Assembly two years in a row, then win final approval from voters in a 2024 election referendum.
“The conservative principle here is less government, more freedom,” Anderson said in an interview last week. “When you’re talking about gay marriage, there’s pretty much nothing more conservative than supporting the fact that two people should be treated equally.”
Sen. Adam Ebbin, D-Alexandria, and Del. Mark Sickles, D-Fairfax, both gay men who have worked on LGBTQ equality legislation for years, have said they’re planning to file the same proposal as Anderson. That indicates it could succeed on a bipartisan basis unless House GOP leadership overrules Anderson and blocks it. That’s not an uncommon maneuver in committees, where just a few strategically placed lawmakers can block legislation that has broad support and would likely pass if put to a full vote.
Anderson said he was curious about why his party did just that when it rejected the Democratic proposal in February, a move that drew emotional criticism from gay lawmakers who said they were deeply offended by conservatives’ claims it could lead to legalized polygamy or incestuous marriage, both of which are already illegal under state law. It’s more difficult to raise those arguments against an amendment that, on its own, does nothing but get rid of a marriage restriction already deemed invalid and unconstitutional.
The stronger, Democratic-sponsored amendment cleared the state Senate last year with four Republican votes, leaving little doubt about the pro-marriage equality stance of a chamber where Democrats had a 21-19 majority last year. That majority could grow to 22 seats for the upcoming session, depending on the outcome of a Jan. 10 special election in Virginia Beach.
Anderson said the version he’s filed is the only one that can get through the House of Delegates, where Republicans are expected to have a 52-48 majority again.
“My bill is going to get through. And there’s going to be a time when Democrats are going to have to vote, should we take the same-sex marriage prohibition out of the constitution, yes or no,” Anderson said. “And if they say no, they’re going to have some explaining to do to the LGBTQ community. I think that they want it their way, but they’re not going to get it their way.”
A spokesman for House Speaker Todd Gilbert, R-Shenandoah, did not respond when asked if Gilbert supports Anderson’s proposal.
Some Democrats agree that the simplified approach is correct given the realities of the divided government in Richmond, but they’re pursuing other ways to protect marriage equality in Virginia.
“We tried to get affirming language last year, and that didn’t work,” said Ebbin. “So it would still be a step forward to remove the prohibition from the constitution.”
Ebbin said he’ll also file accompanying legislation to put anti-discrimination language in the state code to ensure Virginia will keep issuing marriage licenses to same-sex couples even if the U.S. Supreme Court were to overturn the 2015 Obergefell v. Hodges ruling requiring all states to recognize same-sex marriage. Ebbin said he’d still like to see the constitutional amendment pass, even if the associated bill fails.
House Minority Leader Don Scott, D-Portsmouth, said he was inclined to vote against a proposal he saw as a “half-measure.” But he said he’d ultimately defer to LGBTQ lawmakers and advocates on the question. He also praised Anderson, who came to the legislature in January with a reputation as a hard-right figure, for being “one of the few Republicans that will speak with me and talk with me and have conversations.”
“He was Saul until he got blinded by the light, which was the last election,” said Scott in a reference to a biblical figure who underwent a sudden conversion after a dramatic event. “He’s seen that some of those positions that they have taken are too extreme not only for the country but definitely for Virginia.”
Virginians approved the same-sex marriage ban 16 years ago by a vote of 57.1% to 42.9%. Given the widespread acceptance of marriage equality today, advocates believe a repeal measure would pass overwhelmingly if the General Assembly puts the issue on the ballot again.
That push was seen as largely symbolic until the Supreme Court’s seismic abortion ruling this year, in which Justice Clarence Thomas suggested the Obergefell decision needs the same type of reassessment that led to the overturning of the Roe v. Wade decision that previously made abortion access a constitutional right.
As Virginia Democrats pushed to get rid of the state’s same-sex marriage ban earlier this year, the Virginia Catholic Conference raised the possibility the ban could be reactivated in the future due to changes at the federal level.
That now appears less likely as Congress prepares to pass legislation strengthening federal protections for same-sex marriage with the support of some Republicans who have indicated they’re no longer interested in fighting against marriage equality. If the federal legislation passes as expected, Virginia would have to recognize same-sex marriage licenses from other states, regardless of whether the state does or doesn’t issue such licenses.
It’s unclear if Ebbin’s bill to ensure the state continues to issue those licenses will win Republican support. Even if that measure fails, getting rid of the constitutional ban would effectively move Virginia’s stance on same-sex marriage from hostile to neutral if the Supreme Court were to strike down Obergefell.
By strengthening same-sex marriage at the federal level, Anderson said, the pending Respect for Marriage Act reduces the need for Virginia to act immediately to create new state-level protections. Anderson said he takes no issue with marriage equality from a government perspective, but he doesn’t believe religious institutions should also be compelled to accept it.
“The problem is that the religious right thinks that the Republican Party is supposed to be talking about morality,” Anderson said. “We’ve been somewhat hijacked in that context if a Republican comes up and says, ‘Hey, you should be against gay marriage because it’s against God’s law.’ That’s not the role of the Republican Party or the role of government. That’s the role of the church.”
Sickles, the House Democrat who sponsored the marriage equality amendment Republicans blocked this year, said he expects Democrats to support the clean repeal plan because it would mean ridding the state of “ugly” constitutional language. He said he doesn’t particularly care if Republicans like Anderson can claim some of “the glory.”
“I welcome it,” Sickles said. “I hope there’s bipartisan support. And I hope that he can figure out a way to get it out of our Privileges and Elections Committee. It’s a hopeful sign.”
by Graham Moomaw, Virginia Mercury
As utilities spend billions on transmission, support builds for independent monitoring
An aging electric grid, fossil fuel power plant retirements and a massive renewable electricity buildout are all contributing to a boom in transmission and distribution wire projects by electric utilities across the country.
In 2020, investor-owned electric utilities spent $25 billion on transmission, up from $23.7 billion in 2019, figures that the Edison Electric Institute, which represents investor-owned electric companies, expected to only grow going forward.
Ohio-based American Electric Power, which is one of the nation’s largest electric companies and operates the largest transmission system in the country (serving 5.5 million customers in 11 states) said last year that it plans to spend $23.3 billion between 2022 and 2026 on transmission and distribution.
But much of that spending is happening on local projects in states with widely differing regulatory regimes. And there’s been growing concern at the state and federal levels that too much of it is occurring without enough transparency and oversight to ensure transmission owners are appropriately planning for new technology, considering more cost-effective regional approaches or alternate solutions and not ripping off their ratepayers.
“There’s going to be a significant amount of transmission built,” Federal Energy Regulatory Commission Chairman Richard Glick said at a Nov. 15 meeting of a joint federal and state task force on electric transmission. “We need to make sure consumers get the best bang for their buck.”
The meeting came more than a month after a FERC technical conference during which electric utility regulators and consumer counsel from a wide variety of states said, to varying degrees, that they often lacked the authority, information and expertise to properly vet and oversee the rising number of transmission projects happening in their states.
That’s led to growing support for the idea of an independent monitor to examine the need, costs and planning behind the wave of new projects to protect customers and ensure utilities — for whom transmission spending and the return on equity it comes with is a major profit stream — are looking beyond their own narrow financial interests.
“It is inexplicable, other than perhaps explained by utility influence, that massive expenditures for these utility local transmission projects are being charged to consumers without the government regulatory oversight that has been developed over a century for consumer protection,” Mike Haugh, director of the analytical department at the Office of the Ohio Consumers’ Counsel, wrote in comments to FERC in support of independent transmission monitors.
Such monitors, he said, “would allow for another level of protection for consumers that are paying for the transmission system.”
Not everyone, of course, is on board.
Electric companies and transmission owners see it as an unnecessary layer of bureaucracy, and even some utility regulators say it’s a job best left to states.
‘Screams out for more oversight’
At the task force meeting Nov. 15, Andrew French, a commissioner at the Kansas Corporation Commission, which regulates electric utilities, said transmission costs in his state have gone from $4 a month on the average customer’s bill 10 or 15 years ago to $20 today.
“We are seeing a flood of capital investment in that area and that screams out for more oversight,” he said.
Jennifer Easler, the Iowa state consumer advocate, which is responsible for reviewing and investigating regulated services provided by gas and electric utilities, said during the October FERC conference that regulators need more information in advance to perform a holistic assessment of local transmission projects that aren’t being properly vetted at the federal or regional transmission operator levels.
“By the time it arrives at the state regulator, when a utility wants to replace a new line because of age and condition, the regulator is hard pressed to say no to that,” she said.
But some state regulators do have processes in place to properly vet transmission projects and utility building plans, which are called integrated resource plans.
“In Nevada we have one vertical (investor-owned utility) that’s regulated, and it handles just about all the transmission in the state, which means that any time new transmission is being proposed, in an interstate context at least, there’s a lot of robust review and analysis of that transmission,” said Cameron Dyer, assistant general counsel for the Public Utilities Commission of Nevada at the October FERC conference.
And not all utility regulators see the need for an independent monitor.
Tricia Pridemore, chairman of the Georgia Public Service Commission, touted Georgia’s pro-business rankings, economic development wins, below-average electric rates, growth in solar energy, lack of outages or brown-outs and a collaborative process between regulators and utilities that “has been perfected over decades” at the Nov. 15 FERC task force meeting. (According to the federal Energy Information Administration, however, Georgia is hardly an electric rate utopia, ranking 15th most expensive state in average residential retail electric price.)
She admonished other state utility regulators to secure the budget and staffing to properly oversee projects rather than rely on a federally imposed monitor.
“It lessens your authority to do the hard things that simply must be done,“ she said.
During the FERC proceedings, several large transmission owners have also dismissed the concept of an independent monitor as an unnecessary layer of bureaucracy that could gum up the works at a crucial juncture for the electric grid.
“We are currently living at a time when the need for transmission infrastructure investment has likely never been greater since the dawn of the industry. However, there remain a few who continue to throw sticks in the spokes with a desire to divert the focus from progress to regress,” wrote Charles Marshall, vice president of transmission planning for ITC Holdings, which describes itself as the largest independent electricity transmission company in the United States. ITC owns and operates high-voltage transmission in Michigan, Iowa, Minnesota, Illinois, Missouri, Kansas and Oklahoma.
“This has led to a push for additional layers of bureaucracy that could introduce new uncertainty and jeopardize needed investments in reliability and resilience,” Marshall wrote.
Jeff Burleson, a senior vice president of environmental and system planning at Atlanta-based Southern Company, which operates electric companies in Georgia, Alabama and Mississippi, said the company posts transmission plans twice a year on the Southeastern Regional Transmission Planning website and gets “a significant amount of oversight at our state regulatory agencies.”
“I also don’t feel that there is value for us from thinking about some sort of independent monitor because we already have so much scrutiny that comes through all of our processes,” he said.
But Easler, the Iowa consumer advocate, said in her comments filed with FERC that growing transmission costs are hitting many Iowa ratepayers hard and there’s often little state regulators can do.
“I would disagree with the notion that this is creating additional bureaucracy. It’s addressing a major oversight gap that exists,” Easler said at the October conference.
The scope of the problem
The Federal Power Act, which dates to 1920, grants FERC oversight over electric transmission in interstate commerce and charges it with ensuring that costs billed to customers are “just and reasonable.”
“Yet, over the past few decades, the commission has used its expansive ratemaking authority to institute several shortcuts that reduce its direct oversight,” said Ari Peskoe, director of the Electricity Law Initiative at Harvard University Law School, in comments filed with FERC. “The commission’s policies do not protect consumers.”
Peskoe singled out FERC “formula rates,” which, instead of relying on a contested rate case to establish the utility’s cost of service for transmission, allow the company to file information with FERC in various categories — including rate of return, operations and maintenance, depreciation, taxes and other factors — that is used to calculate the rate they’re able to charge customers for local projects.
“Formula rates are a vehicle for avoiding burdens of proof and limiting protests. The commission’s default presumption that all transmission expenditures are prudent allows utility costs to flow through to consumers’ bills without scrutiny,” Peskoe wrote, adding that FERC policies for transmission asset replacement and end-of-life projects amount to “a blank check that may be worth hundreds of billions of dollars over the next few decades.”
While there’s some opportunity to challenge utilities’ formula rates, “it’s not practical to do so on the piecemeal basis that these other projects are progressing,” Easler said.
“The absence of customer-initiated challenges to local transmission upgrades in formula rate reviews is not an indication that all is well,” she wrote in her comments to FERC. “Rather, in the face of relentless transmission rate increase, it is an indication that this regulatory process is inadequate to protect customers from unjust and unreasonable charges resulting from inefficient siloed transmission planning processes.”
FERC Commissioner Mark Christie, a former member of the Virginia State Corporation Commission, has said the amount of transmission spending utilities are packing into their rate bases (the total value of a regulated utility’s assets upon which its electric rates and profits are calculated) nearly tripled between 2012 and 2020.
“What goes into rate base goes into consumer bills,” Christie said at the Nov. 15 task force meeting. “This is a hugely important issue. This is a ton of money.” Christie questioned task force members on whether FERC should deny formula rate treatment to utilities in states that can’t certify that they have a “credible process” for evaluating need and prudence of projects.
Transmission projects that span different utilities’ service territories in areas managed by regional transmission organizations go through a vetting process involving multiple parties, but utilities have almost total control over local projects, a major incentive to avoid regional projects in which they may have to share control and profits with another utility.
“They like the status quo, which is them building their own transmission wholly within their own territory and not having to share,” said Nick Guidi, an attorney with the Southern Environmental Law Center who works on electricity regulation issues at FERC and is pushing for market reform in the Southeast.
Guidi quibbled in particular with the characterization by Burleson, the Southern Company executive, that the company’s state regulators conduct a thorough review of transmission projects.
Even where certificate of public need procedures (a permit to build and operate a utility facility) exist in the Southeast, it’s generally only for new lines, not lines that are being rebuilt, upgraded or replaced.
“So we don’t always have this fulsome review of a comprehensive plan,” he said. “An (independent transmission monitor) would be a tremendous resource for states who don’t often have the resources to monitor the process.”
Many states limit what their public utility commissions can approve based on size of transmission line, leading to utilities often picking solutions that fall under that threshold in order to avoid scrutiny.
That means that while the project might not be the most efficient or cost effective, it’s the easiest one for the utility to get built with the least amount of oversight.
Lauren Azar, a former commissioner at the Wisconsin Public Service Commission, said Wisconsin also has no certificate requirement for smaller transmission lines.
In Ohio, only lines above 100 kilovolts require a certificate of public need.
In North Carolina, a public need certificate is only required for new construction of a transmission line that’s 161 kilovolts or larger, said James McLawhorn, director of the energy division at the North Carolina Utilities Commission’s Public Staff, which is the state’s consumer advocate.
“So we have a lot of 115, and we find out about it when, as we said this morning, when it shows up in rates,” McLawhorn said in October at the FERC conference.
The role of a monitor
In October, Kentucky Public Service Commission Chairman Kent Chandler said the monitor could serve a similar function to the independent market monitor in PJM, the nation’s largest regional transmission operator that coordinates the movement of wholesale electricity in all or parts of 13 states and the District of Columbia. The market monitor is tasked with helping maintain “competitive and nondiscriminatory” power markets.
“I can understand people saying that it might be an extra layer of bureaucracy, but for many of these projects it may be the only real set of eyes that’s looking at the need and the planning, and you can say it’s an extra layer, but it may be the only one really parsing through the numbers,” Chandler said.
There seemed to be little appetite among consumer advocates or utility regulators for giving the monitor authority to issue orders rejecting or requiring any particular projects to be built.
“Certainly they’re not going to issue an order requiring something to be built, but they can provide information to the states to whatever agency has jurisdiction to consider a transmission expansion, whether it’s in their own state, or three or four states over,” said Henry Tilghman, an energy lawyer representing the Northwest and Intermountain Power Producers Coalition, a regional organization for independent power producers and other companies. “Just some good information that gives them confidence that they have the information they need to make an informed decision for their ratepayers.”
A final FERC decision on independent monitors, however, isn’t imminent. Though the current discussion on independent transmission monitoring is occurring as the commission is weighing a proposed rule aimed at encouraging more effective long-term regional transmission planning and changing how the benefits and costs of new transmission are allocated, an order on independent monitoring would most likely come in a future rulemaking proceeding, experts said.
“It would require another NOPR (notice of proposed rulemaking),” Guidi said.
Adrienne Mouton-Henderson, director of market and policy innovation at the Clean Energy Buyers Alliance, an association for commercial, industrial, nonprofit and other organizations looking to purchase clean energy, said the same objections to transmission monitors were raised about electric market monitors.
“Everyone complained when it was first raised. … It’s going to stop the system, we’re just going to be stalled out. And that’s simply not been the case,” she said. “Band-Aiding the system right now and putting the same assets in place is not helping us get renewables there, it’s not helping corporate sustainability goals, it’s not helping us get to clean energy. Transmission lines need to be rebuilt, they need to be upgraded regionally, and we need to make sure that we do it in a cost-effective manner for all ratepayers. … And we simply aren’t doing it right now.”
by Robert Zullo, Virginia Mercury
From Jesus to Yeezy — who Virginia voters put their faith in
How exactly would Wile E. Coyote or SpongeBob SquarePants represent their 7th District constituents in Congress if they had garnered enough write-in votes to best the official candidates? And who would run it better —Jesus Christ or Yeezy?
Those were just a few of the write-in choices made by voters in the recent midterm elections.
The Virginia Department of Elections received almost 6,000 write-in votes for congressional seats and write-in votes for local seats. Election results will be certified on Dec. 5. The two districts which received the most congressional write-in votes were the 11th and 7th districts, with 852 and 647 write-in votes, respectively. The 1st District had the least write-in votes, with just under 300.
Capital News Service filed 12 government records requests to review the write-in responses in the 11th and 7th districts. Half of the localities provided the information free of charge. To fulfill the request, Greene County and Fredericksburg City required payments of $50 and $100, respectively. Capital News Service declined to pay the fees. The votes were available for viewing in person, according to representatives from Fairfax City, Fairfax, and Stafford counties. Prince William County denied the request and cited the state code.
“It’s a bit of a protest vote,” said Amanda Wintersieck, about why people chose not to vote for candidates officially on the ballot. Wintersieck is an associate professor of political science at Virginia Commonwealth University, whose research focuses on political behavior and communication.
“In most election years, the top two individuals who get write-in votes are Mickey Mouse and Santa Claus,” she said.
Minnie and Mickey Mouse were both nominated this year. However, write-in contenders skewed this election more to the dark side, including Darth Vader, Hellraiser, and Cobra Commander — G.I. Joe’s nemesis. Some Madison County voters threw their support to deceased presidential assassins John Wilkes Booth, who killed Abraham Lincoln, and Lee Harvey Oswald, who killed John F. Kennedy. Former presidents George Washington and John Adams were also voter selections.
Most voters do not write in candidates to be strategic, Wintersieck said, but rather as a way of noting: “I don’t want either of these candidates.”
She said that other people who write in names genuinely believe their selected candidate should win. Some states have the option to select “none of these candidates” to stop people from putting in fictional characters and people not running for office, Wintersieck said.
Former 7th District challenger and current state Del. Nick Freitas, R-Culpeper County, was endorsed in Spotsylvania and Culpeper counties. Eric Cantor, who formerly served seven terms in the 7th District, and Dave Brat, who bested Cantor in a primary and served for one term, each received at least one vote.
Some voters wrote in the names of candidates who represented the locality before redistricting. U.S. Rep. Rob Wittman received write-in votes from counties he used to represent before the 1st District was redrawn. This could be due to voter confusion, “brand familiarity” from having the same representative for years, or to make a statement against redistricting and the new candidates, Wintersieck said.
Write-in votes did not impact any congressional races. Write-in candidates won local elections where there were not enough candidates to fill seats. Kevin Kelley, a write-in candidate, won a seat on the Stanardsville Town Council, according to Jennifer Lewis-Fowler, director of elections for Greene County. This was the only race that required write-in votes to be tabulated in Greene County.
Isaac Kelley, age 19, became the youngest candidate to win in the town of Timberville in Rockingham County. He won an uncontested seat on the Town Council after deciding at noon on Election Day to launch his campaign, according to the Daily News-Record. According to DNR, he used a whiteboard to promote his name as a candidate and won by an 18-vote margin.
The U.S. is governed by what Wintersieck said is a gerontocracy — a political system operated by older people.
“It’s really encouraging to see young people running, and it’s really encouraging to see young people winning,” Wintersieck said. She encouraged candidates to mentor and train younger people to serve.
Perhaps some voters took “Rock the Vote” too literally. Rockers Bob Dylan, Trent Reznor, Keith Richards, and Frank Zappa were all write-in options for the 7th District.
Some voters merely identified what they wanted in a candidate and suggested a representative “that supports Black people” and “with better ideas.”
Other voters put their faith in the power of Batman, Samuel L. Jackson, Nicholas Cage, and Hulk Hogan to clean up Congress.
By Darlene Johnson
Capital News Service
Capital News Service is a program of Virginia Commonwealth University’s Robertson School of Media and Culture. Students in the program provide state government coverage for a variety of media outlets in Virginia.