In his state energy plan, Republican Gov. Glenn Youngkin is pushing for revisions to the Virginia Clean Economy Act, a 2020 Democratic-driven law that ordered the state’s electric utilities to decarbonize by midcentury, but he faces opposition from clean energy advocates who say the step would move Virginia backward.
The four-year plan, unveiled in front of state and federal representatives Monday at Lynchburg-based transformer manufacturer Delta Star Inc., sets the executive office’s roadmap for Virginia energy policy.
“A clean energy future does not have to come at the cost” of customers, Youngkin told the crowd before unveiling what he called an “all-of-the-above approach” to Virginia’s energy needs.
The 35-page plan pushes for periodic reviews of the VCEA; greater protections for ratepayers and the restoration of power to the State Corporation Commission, which regulates the state’s electric utilities; and increased use of nuclear energy.
Among its critics are Senate Democrats, including state Sen. Jennifer McClellan, D-Richmond, a patron of the VCEA.
“Gov. Youngkin cannot pick and choose which laws he implements,” McClellan said in a statement. “He should abandon this flawed attack on affordable clean energy and get to work implementing the laws that Virginia passed.”
Another look at Clean Economy Act
Youngkin’s plan calls for a reevaluation of the VCEA next year and every five years, stating the current grid can’t reliably serve customers if it relies solely on “intermittent” renewable sources like solar and wind.
The administration says the state will need to import energy from outside the commonwealth because of the VCEA mandates.
According to PJM Interconnection, the regional electric grid Virginia is a member of, the state was a net importer of electricity Tuesday afternoon.
McClellan said the VCEA’s requirements offer the right “balance” for Virginia’s transition to renewables.
With communities throughout Virginia being hit by flooding due to sea level rise and rainfall shifts linked to climate change, ” she said, “this is not the time to reverse a clean energy transition,” she said.
“Gov. Youngkin’s plan would create roadblocks and mandatory five-year-reviews that would undermine the predictability of Virginia’s energy system and make our commonwealth lose out on new jobs,” McClellan stated.
Kim Jemaine, director of Virginia Advanced Energy Economy, a business group that advocates for clean energy, said businesses want to know the direction Virginia is headed in terms of clean energy use. Developers of renewable energy projects prefer to have certainty about state policy as they prepare to undergo lengthy application and siting processes.
Other companies like Amazon and Lego, which recently announced it would open a site in Chesterfield, are also increasingly looking to source their energy from renewables.
Youngkin’s plan also pushes for the transfer of more authority to the State Corporation Commission as it oversees the utilities’ compliance with the 2018 Grid Transformation and Security Act and the Virginia Clean Economy Act.
In his plan, Youngkin suggests the General Assembly should pass legislation to allow the SCC to defer the utilities’ renewable portfolio standard (RPS) requirements. These requirements, which are outlined in the VCEA, set timelines for how much of a utility’s energy must be sourced from renewables.
He also recommends removing the use of “public interest” mandates, a legal instrument that favors SCC approval of projects. Instead, he said the SCC should have the flexibility to analyze the costs of both substitute technologies and renewable energy sources, and use “least-cost” resource planning.
Both the Grid Transformation and Security Act and the Virginia Clean Economy Act “have resulted in projects bypassing the SCC’s methodology,” the energy plan states. “At the same time, the SCC is mandated to approve them and associated cost recovery because of statutory requirements.”
Youngkin particularly criticizes Virginia energy law that allows electric utilities to impose rate adjustment clauses, or riders, on customer bills for particular projects.
According to Youngkin’s plan, legislation in 2007 authorized the use of RACs, which have led to residential bill increases of over $30 per month. The State Corporation Commission in a recent report also calculated that RACs have added roughly $36 to Appalachian Power customers’ monthly bills and $30 to Dominion customers’ monthly bills since 2007. That’s on top of average electricity prices for Virginians increasing by 47%, compared to 39% nationally, between 2005 and 2020, Youngkin’s report details.
The energy plan calls for the creation of a work group to determine how to improve the RAC structure for ratepayers and increase bill transparency.
While reforming customer rates is laudable, said Walton Shepherd, Virginia policy director for the Natural Resources Defense Council, it requires a massive overhaul of the system that legislators may not be willing to engage in.
Will Cleveland, a senior attorney at the Southern Environmental Law Center who has extensively advocated for ratepayer reforms at the General Assembly, said his organization “would happily work with the governor to rectify the fundamental rate making problems” but argued the report unfairly demonizes clean energy as the cause of bill increases.
“We cannot retreat from our clean energy transition,” Cleveland said. “Proven, falling-cost resources like solar, wind, and battery storage simply do not threaten reliability or affordability, as this energy plan claims.”
Although efforts to reform Virginia’s rate structure failed in 2021 in the Democrat-controlled Senate, McClellan stated that she would be open to cooperating on ratepayer protection legislation in the upcoming 2023 session. She also noted a 2022 study from Virginia Advanced Energy Economy that concluded customers will save on their bills as a result of the VCEA by 2030.
“The facts are clear: The Virginia Clean Economy Act will increase the use of more affordable clean energy and lead to a decrease in the cost of energy bills for the average Virginia family by $30,” McClellan stated.
New nuclear push
As part of a push for alternative energy sources, Youngkin’s energy plan seeks to increase the use of nuclear energy in Virginia.
Youngkin’s plan was made in consultation with the Virginia Nuclear Energy Consortium, a body created by a 2013 law to make Virginia “a national and global leader in nuclear energy.”
Virginia currently has four operating nuclear reactors at two power plants: the North Anna plant in Louisa County and the Surry plant in Surry County, both operated by Dominion Energy.
At the moment, nuclear constitutes about a third of the state’s energy generation. Youngkin’s plan calls for increased use of the source, along with hydrogen and other alternative energies, because of the concerns linked to the “intermittent” nature of solar and wind.
“We have to be all in on nuclear energy,” said Youngkin Monday before pledging to launch a commercial small nuclear reactor in Southwest Virginia in the next decade.
But Jemaine said small nuclear reactor technology is not established enough to be relied on as an energy source.
“We can’t wait for some future silver bullet,” Jemaine said.
Infrastructure for solar and wind already exists and is expected to receive a boost from the recently passed Inflation Reduction Act, Jemaine noted. She added that the Siemens Gamesa turbine blade construction facility coming to Hampton Roads could be eligible for the federal legislation’s tax incentives.
When asked about how realistic the administration’s plans for nuclear expansion are, both Dominion Energy and Appalachian Power Company sent back statements saying they were still reviewing the plan but were looking forward to working with the governor on it.
At the end of his plan, Youngkin reiterated several talking points from the past few months challenging legislation passed by Virginia in the 2021 session to adopt vehicle emissions regulations set forth by California, adding that the state is facing grid reliability concerns.
Jemaine, Shepherd, and McClellan noted that car manufacturers are headed toward producing electric vehicles, in line with California’s recent move to ban the sale of new gas-powered vehicles by 2035.
“We need to get ahead of it,” McClellan stated, adding Virginia’s choice was either to follow regulations set by the federal government, with no say, or California, with some say. She also said she would oppose any legislation to reverse the 2021 law, which has been introduced by state Sen. Stephen Newman, R-Lynchburg.
by Charlie Paullin, 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.