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Alito

Justice Samuel Alito

Alito’s Leaked Opinion
Justice Samuel Alito’s leaked majority opinion in Dobbs v Jackson Women’s Health Organization, _ U.S. _ (2022) discloses that the U.S. Supreme Court is primed to overrule both Roe v Wade, 410 U.S. 113 (1973), and Planned Parenthood of Southeastern Pa v Casey, 505 U.S. 833 (1992), the two leading cases holding that the right to an abortion is protected under the United States Constitution.

Yesterday’s Chicago Tribune reported that when the U.S. Supreme Court officially hands down its opinion, twenty-six (26) states, including Texas and Florida, are either certain or likely to enact laws that either severely restrict the right to abortion or ban it outright. (“If Roe is overturned, ruling could have secondary effect on Illinois’ economy,” Chicago Tribune, June 13, 2022). The Tribune article suggests that corporations may seek to relocate their headquarters to states like Illinois, in which the right to obtain an abortion will be protected. The article concedes that it may take years for such changes, and their related economic effects, to come about.

Assuming that there’s sufficient political will, the economic effects on renewable energy from overturning Roe could occur much sooner.

That there exists any tangency at all between energy law and reproductive rights may sound unusual, but the response to Alito’s ruling should take advantage of the principles Alito himself announces in his leaked opinion. In particular, Alito stresses that our nation’s historical understanding of ordered liberty should enable the people’s elected representatives to decide how abortion should be regulated (Dobbs, pgs. 6, 31). Elected representatives in other states are likewise at liberty to respond to Dobbs by deciding how to regulate certain aspects of renewable energy.

How Renewable Energy Works
Because one electron is indistinguishable from another on the grid, electricity generated by renewable resources (wind, solar, etc.) is indistinguishable from electricity generated by a nuke or a coal-fired plant. To address this, renewable energy certificates (RECs) were developed as tradable certificates that recognize the green energy attributes of renewable electricity generation sources. One REC represents one megawatt-hour of renewable generation. RECs are tradable because they may be bought and sold separately from the actual electricity generated by the renewable system. The sale of RECs provides additional revenue for renewable generators and obviates the (nearly impossible) task of trying to schedule specific generation for specific load. The issuance and claiming of RECs is tracked, usually by the relevant transmission system operator.

A Renewable Energy Response to Dobbs
A state’s renewable portfolio standard (RPS) generally requires that electric public utilities procure a specified portion of their electricity supply requirements from renewable generation resources such as wind or solar power. These requirements may be met through a utility’s own renewable generation assets or through the purchase of RECs. A state has a lot of leeway to structure its RPS as it sees fit. A state RPS may have tiers of preferred RECs, or it may prefer RECs purchased from generation resources located within the state or in adjacent states. The RPS market is often referred to as the “mandatory market” because public utilities are required by law to purchase certain volumes of renewable energy.

The gist of the renewable energy response to Dobbs lies in two separate measures. First, in states like Illinois, where the right to abortion will be protected, RPSs would be amended to prevent RECs generated in states that restrict or prohibit abortion from being used to satisfy the RPS.

The second measure pertains to the “voluntary” market, that is, the market for the purchase of RECs by persons who are not legally required to purchase renewable energy but who nevertheless wish to support the development of renewable energy. Voluntary market purchasers may procure all or a portion of their electricity supply requirements from renewable generation. These REC purchasers “green” the electricity they actually use by buying a quantity of RECs. Buyers in the renewable energy market have the freedom to choose which RECs they buy, including choosing the state of origin of the RECs. The second response to Dobbs involves making clear to voluntary market buyers where a REC was generated, and the REC buyer can then choose whether it wishes to purchase a REC generated in one of the 26 states that are set to restrict or eliminate abortion rights. Welcome to your free market at work.

The Dormant Commerce Clause
The Dormant (or Negative) Commerce Clause is a doctrine that federal courts have inferred from the Commerce Clause of the U.S. Constitution. In a nutshell, the doctrine prohibits protectionist legislation by states.

The Sparkspread previously posted an entry on Judge Posner’s 2013 opinion in Illinois Commerce Commission v. FERC (“7th Circuit Casts Shadow Over State Renewable Portfolio Standards,” The Sparkspread, August 14, 2013), a cost allocation rate case in which Posner, when discussing RECs and RPSs, stated that the Dormant Commerce Clause would prohibit one state from discriminating against another’s renewable energy. Posner’s reasoning was wrong because he did not understand how REC markets operate and did not take into account the difference between the mandatory and voluntary REC markets.

Contrary to Posner’s position, a state’s limitations on the kinds of RECs that are acceptable for satisfaction of its own RPS do not present a dormant commerce clause issue because none of those limitations prevent a REC seller from selling its RECs in that state. In the voluntary market, any REC seller from any state can sell RECs generated anywhere in every other state. An RPS limitation on RECs from abortion-restricting states, on the other hand, pertains to the mandatory, not the voluntary market. Every state is free to determine as a policy matter what types of RECs may be used to satisfy its own RPS. A state’s elimination from its mandatory market of RECs generated in abortion-restricting states is no different than that state’s preference for, say, solar over wind RECs, or for RECs generated only in adjacent states. An RPS has nothing to say about the voluntary market, which it does not in any degree control.

I am not aware of any previous effort to address REC markets from this angle. Legislation would, of course, take time and effort to enact, but if, pursuant to Dobbs, elected representatives in 26 states see fit to restrict or eliminate a constitutional right that has been in place for nearly half a century, the elected representatives in the other 24 are equally free to express their policy preferences in their own RPSs. Alito would surely approve, no?

Energy markets tend to be exquisitely sensitive. The mere announcement of such a legislative initiative by a state would likely send through renewable energy markets a shock wave warranting measurement on the Richter scale. Expectations on REC sales would be affected, and, even more importantly, so would plans for new generation.

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On July 19, 1989, United Airlines Flight 232, a DC-10, crash-landed on a runway at the Sioux City, Iowa airport.

According to the subsequent report by the National Transportation Safety Board, the accident was triggered by a titanium fan disc that was part of the plane’s No. 2 engine. That titanium disc, which of course spins at a very high speed, had a microscopic manufacturing defect that had, over time, created a hairline crack. That crack eventually caused the disc to break apart in mid-flight, and pieces of the disc spun out like shrapnel and cut through all three of the plane’s hydraulic systems, destroying them. On small planes, parts such as rudders, stabilizers and ailerons on the wings may be controlled by cables and mechanical connections directly to the pilot’s steering yoke, foot pedals, or other cockpit controls. But on a commercial jet like a DC-10, those surfaces are so large, and the forces exerted on them so great, that hydraulics are necessary to move them. When pieces of the fan disc cut through all the hydraulic lines, the pilots could no longer control the airplane by means of ailerons, rudder and stabilizers. Still, in a truly remarkable feat, the pilots, using only the engine throttles, managed to steer the crippled plane onto a runway at Sioux City airport. Of the 296 persons aboard, including the crew, 185 survived.

The Flight 232 disaster is an example of how the failure of one complex system (turbines) can interfere with or even completely disable one or more other complex systems (hydraulics) with catastrophic effect.

On February 9, 2022, the Inspector General of the Nuclear Regulatory Commission released a report (NRC Inspector General’s Special Inquiry Into Counterfeit Fraudulent and Suspect Items in Operating Nuclear Power Plants, or the “Report”) stating that:

• The NRC lowered its oversight standards for ensuring that counterfeit, fraudulent and suspect parts were not used in U.S. nuclear power plants;
• Fake parts are present in most, if not all, U.S. nuclear power plants;
• Persons within the industry informed the NRC about the use of these fake parts; and
• The NRC failed to appropriately address this problem.

The Report states that the IG is “aware that the NRC staff does not have a direct role in identifying counterfeit parts and preventing their use in a nuclear power plant.” (Report, pg. I). Well, if not the NRC, then who does that job?

But wait, it gets better (i.e., worse). Counterfeit parts are tracked only on a voluntary basis, if at all, and the NRC doesn’t require nuke plants to report use of counterfeit parts “…unless a situation rises to the level of being a significant condition adverse to quality, or a reportable issue” under applicable regulations. (Report, id.) Stated differently, don’t bother the NRC until something bad happens.

The Report also states that “[counterfeit parts are safety and security concerns that could have serious consequences in critical power plant equipment required to perform a safety function.” (Report, at ii).

Gee, do you really think so? That sentence could have been lifted out of the Chernobyl or Three Mile Island autopsies.

The NRC has an “Allegation Manual” and a process for reports about counterfeit parts through its Allegation Review Board.

According to the NRC’s own Management Directive (MD) 8.8, Management of Allegations, “anyone should feel free to communicate any safety concern to the U.S. Nuclear Regulatory Commission.” (Report, pg. 9). This manual contains procedures for handling such allegations.

Oh, well, that ought to do it, right?

Wrong. The Report goes on to state that although allegations about counterfeit parts in nuke stations had been made for the past ten (yes, 10) years, “…the NRC did not investigate or pursue any substantive actions regarding [the allegations about counterfeit parts],” and classified [these] concerns about counterfeit parts as “non-allegations.” (Report, id., pg. I , emphasis added).

Holy Terminology, Batman! What is a non-allegation? That’s a tough question, so let’s begin with an easier one. What is an “allegation”?

MD 8.8 defines an “allegation” as:

a declaration, statement, or assertion of impropriety or inadequacy associated with NRC-regulated activities, the validity of which has not been established. (Emphasis added.)

Report, pg. 9

That sounds more or less reasonable. But that’s not really how it works at the good ol’ NRC. What the alleger may have thought was an allegation doesn’t actually become an allegation until whatever was alleged goes through a multi-level initial consultation process by NRC staff to determine that whatever was alleged is the real McCoy, an allegation allegation.

If you think that’s confusing, try this tour de force of sanctimonious bureaucratic phraseology, drawn from the NRC’s Allegation Manual:

If, after this initial consultation, it is unclear whether information provided by the concerned individual constitutes an allegation, it is appropriate to discuss the information at an ARB [Allegation Review Board] to obtain a decision. If the ARB cannot reach a conclusion as to whether the concern in question should be processed as an allegation, the [agency allegation advisor] should be consulted. Some regions/offices assign an allegation number to such issues and then recode the item in the AMS [Allegation Management System] database as a non-allegation if the ARB determines that the issue is not an allegation. Some regions/offices document the issue on allegation process forms but withhold assigning an allegation number until the ARB has reached a conclusion. Either approach is acceptable.”

(Report, pgs. 9-10; emphasis added).

So even though an “allegation” is still an “allegation” if its validity has not been established, the NRC’s own procedures describe how it sweeps uninvestigated allegations under the rug.

The Report goes on to describe one case in which an alleger notified NRC staff about counterfeit part concerns at a specific nuke plant (Seabrook Station in New Hampshire) by letters, emails, phone calls, and even discussions at public meetings, all over the course of ten (10) years.

The NRC determined that the alleger’s allegations were not really “allegations.” It classified the allegations as “non-allegations” and did nothing.

So, if you think that the NRC is supposed to be protecting the public by ensuring the safe operation of nuclear plants, you might be surprised to find that it has borrowed its policy toward fake and counterfeit equipment in U.S. nuclear plants from Alfred E. Neuman of Mad Magazine fame: “What, me worry?”

NRC Chairman Alfred E. Neuman

A nuclear generating station has millions of parts that make up different complex systems that enable it to function as designed. An accident caused by a counterfeit part in one system at that station might be confined to that system, and it could be something from which a fast recovery is possible. For example, if the pieces of the disintegrating fan disc on United Airlines Flight 232 had been contained within the cowl of Engine No. 2, its own system, the hydraulics would not have been cut and the airplane might well have landed safely and without any loss of life.

But an accident due to a counterfeit part in one system at a nuke station could affect one or more other systems, a cascading effect that results in a grave disaster. Given that an accident at a nuke station could render a populated area in the U.S. uninhabitable by humans for more than 10,000 years, one might be forgiven for thinking that the NRC should take counterfeit part allegations more seriously.

For starters, the NRC might want to re-read the story about United Airlines Flight 232.

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Constellation NewEnergy’s Third Party Investigator

The At Issue program on WBBM Newsradio (on Audacy) interviews Richard Dent, NFL Hall of Famer and MVP of Superbowl XX, concerning his legal battle with Constellation NewEnergy.

Also on the interview is Dr. Charles Steele, President and CEO of the Southern Christian Leadership Conference, the organization once led by Dr. Martin Luther King.

Constellation NewEnergy Terminates Dent’s Contracts and the Legal Battle

In 2018, Constellation NewEnergy terminated its energy contracts with Dent when two unnamed persons accused him of sex harassment and improper conduct. Constellation refused to disclose the names of the persons who had made these defamatory statements.

In 2019, we filed a Rule 224 presuit discovery petition in the Cook County Circuit Court to compel Constellation to disclose the names of Dent’s accusers. (Dent et al. v. Constellation NewEnergy et al., 2019 L 002910). Constellation filed a motion to dismiss the petition for failure to state a claim under Illinois Civil Procedure Code Section 2-615. When a defendant in a civil suit files a 2-615 motion, black letter Illinois law requires the court to accept as true, for purposes of that motion, all of the well-pled facts alleged in the complaint or petition.

In Dent’s case, though, the Circuit Court judge ignored the facts pled in Dent’s 224 petition and accepted as true facts that Constellation improperly added in its 2-615 motion. For example, Constellation NewEnergy refused to disclose to Dent the name of its third-party investigator, and that is exactly what Dent’s Rule 224 petition alleges. However, in a flagrant departure from the duties of a court in a 2-615 motion, the Circuit Court held that Constellation NewEnergy had disclosed the identity of the investigator.

During oral argument before the Circuit Court in July 2019, the trial judge agreed with me that Dent’s 224 petition was not a “fishing expedition.” (Dent et al v Constellation NewEnergy et al, 2019 L 002910, Transcript of Proceedings, July 19, 2019, at pg. 4, line 4 to pg. 4, line 20). Despite this, the Circuit Court denied Dent’s 224 petition on the basis of a case that prohibited the use of that rule for “fishing expeditions.” (Low Cost Movers v. Craigslist, Inc., 2015 IL App (1st) 143955). Low Cost Movers was neither relevant nor applicable to Dent’s petition, and neither Dent nor Constellation had cited it in briefing on the 2-615 motion.

Constellation NewEnergy told Dent, and the 224 Petition alleged, that it was going to terminate all of Dent’s contracts because of the allegations that had been made against him. Yet the Circuit Court held that the cause in fact and proximate cause of Constellation’s termination of Dent’s contracts was…(wait for it…wait for it…)…Constellation’s termination of Dent’s contracts. Yes, you read that right. (Dent et al v Constellation NewEnergy et al, 2019 L 002910, Memorandum Opinion and Order, July 31, 2019, pgs. 2-3). In the Cook County Circuit Court’s hands, cause and effect became fungible commodities. If I knew a first semester law student who committed so puerile a logical fallacy I would recommend (gently, of course) serious consideration of an alternative career.

We appealed this ruling to the First District Court of Appeals. In November 2020 the Illinois Appellate Court, without requiring oral argument, reversed the Circuit Court on grounds of abuse of discretion and held that Rule 224 was indeed the appropriate procedure for Dent’s case. (Dent et al. v. Constellation NewEnergy, Inc. et al., 2020 IL App (1st) 191652, 175 NE3d 742).

Constellation then filed a petition for leave to appeal with the Illinois Supreme Court, which that court granted in March 2021. The case was argued before the Illinois Supreme Court on September 22, 2021. You may replay the oral argument here:

Constellation NewEnergy’s Private Eye

In public statements Constellation NewEnergy claims that the allegations against Dent were “confirmed by an independent third party investigator.” That is their chief defense. But Constellation’s own allegations tell a different story.

At about 5:45 p.m. on July 10, 2018, Dent arrived at the JW Marriott Hotel at 151 W. Adams Street in Chicago, where Constellation NewEnergy had arranged for its golfing guests to collect passes and other items for their golf outing the following day. Constellation claims that an unnamed man, Person B, observed Dent at the JW Marriott, and Person B alleged that Dent was “drunk and disorderly” at that place and time.

After collecting his items for the golf outing, Dent drove from the JW Marriott to the Shedd Aquarium, at 1200 South Lake Shore Drive. As the crow flies, the JW Marriott is about 1.6 miles from the Shedd Aquarium. Dent arrived at the Shedd Aquarium at or about 6:30 p.m. on July 10, 2018.

Constellation NewEnergy’s pre-golf cocktail reception, where they alleged that Dent physically groped an unnamed woman (Person A), was held on the Shedd Aquarium’s patio. That patio is an open space overlooking Lake Michigan.

More than 100 people were at Constellation NewEnergy’s party at the Shedd Aquarium patio.

Dent had invited Sam Cunningham, the Mayor of Waukegan, to the Constellation NewEnergy cocktail party. Constellation knew that Dent had invited the Mayor of Waukegan to their cocktail party as his guest. Dent and Mayor Cunningham were generally in each other’s company throughout this event.

In Chicago on July 10, 2018 the sun set at 8:28:31 p.m. Dent left the Constellation party at about 8:00 p.m., about a half hour before sunset.

Constellation NewEnergy claims that the allegations against Dent were confirmed by a third-party investigator. This is more than curious because the alleged groping incident occurred on the patio of the Shedd Aquarium, an open space, in front of a crowd of more than 100 people, and in daylight. Yet the only person who Constellation NewEnergy claims witnessed this alleged groping is Person B – the unnamed man who was inside the JW Marriott Hotel — 1.6 miles away.

According to Constellation NewEnergy’s allegations, not one person – not one – who was at the Shedd Aquarium patio on the evening of July 10, 2018 witnessed any alleged groping by Dent.

According to Constellation NewEnergy’s allegations, Dent would have had to drive through downtown Chicago traffic, during the weekday evening rush hour, in a drunken condition, to get from the JW Marriott to the Shedd Aquarium. At these times the CPD usually keeps an eye out for drunk drivers, especially after “happy hours.” Dent was not stopped for any reason as he drove from the JW Marriott to the Shedd Aquarium.

According to Constellation NewEnergy’s allegations, Dent would still have been drunk at the Shedd Aquarium cocktail party, which immediately followed his visit to the JW Marriott. Dent was at Constellation NewEnergy’s cocktail party at the Shedd Aquarium for about an hour an a half. Yet Constellation NewEnergy does not allege, and has not presented any witness who has alleged, that Dent was drunk at the Shedd Aquarium event.

Though Constellation NewEnergy knew that the Mayor of Waukegan was Dent’s guest at the Shedd Aquarium party that evening, its supposed third-party investigator never called the Mayor of Waukegan to ask if he saw anything.

Based on Constellation NewEnergy’s own allegations, Person B, their supposed eyewitness, was not even at the Shedd Aquarium when the groping incident is alleged to have occurred. Rather, he was inside the JW Marriott Hotel at 151 West Adams Street.

The Witness to the Alleged Groping Had X-Ray Vision

As a kid I used to watch reruns of The Adventures of Superman (1952-1958) starring George Reeves as Clark Kent, the mild-mannered reporter for The Daily Planet newspaper. In that TV series, X-ray vision was one of Superman’s superpowers. Constellation NewEnergy’s independent third party investigator believes that Person B, their supposed eyewitness to the alleged groping, had X-ray vision better than Superman’s since Person B could see through 1.6 miles’ worth of concrete and steel buildings, all the way from 151 West Adams Street to 1200 South Lake Shore Drive.

Constellation’s Person B can see through tall buildings.

That’s quite a trick.

Constellation NewEnergy’s claim that it had an independent third-party investigator confirm the accusers’ allegations is inexpressibly ridiculous. Constellation refused to name its supposed investigator, perhaps to spare him or her being imprinted with a mark of indelible ridicule by having to explain how their only witness to the alleged groping saw everything through 1.6 miles’ worth of steel, concrete and downtown Chicago buildings.

Whoever Constellation’s investigator was, they make Inspector Clouseau look like Sherlock Holmes.

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Consult the Negotiator is the podcast of Marc Siegel, a leading labor and employment attorney in Chicago. Marc’s podcast series focuses on strategies and tips for negotiation and settlement of disputes. Marc was kind enough to invite me on as a guest to discuss taking on utilities and power suppliers, and approaches to settlements with those types of adversaries. It’s the May 19, 2021 episode, so if you’d like to hear yours truly, please listen to Consult the Negotiator wherever you get your podcasts. Thanks!

UPDATE 5.24.2021: Here’s the link to the podcast:

https://lnkd.in/d26mKyc

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Governor Abbott of Texas has blamed the Green New Deal for the prolonged power outages caused by the extreme cold and snow/ice conditions that have descended on his state.

Nope.

The Green New Deal is not legislation. It’s nothing more than a 2019 U.S. House of Representatives resolution. Beyond that paper resolution, it doesn’t exist.

Mad Magazine, the comic book, used to run a section called “Things We’d Like to See,” and the magazine would have some parody cartoons of then-current events. The Green New Deal is just a set of “things the U.S. House of Representatives would like to see” in energy and the environment. Granted, an H of R resolution is more serious than Mad Magazine, but the Green New Deal has about the same degree of reality. So, no, the Green New Deal did not do harm to Texas.

Even if some sort of Green New Deal had been passed, it would not have applied to the Texas electric grid. Texas is the grid’s version of an island; its electric system is all intrastate and subject only to Texas, not federal jurisdiction.

Texas had similar cold-induced power outages ten years ago. The feds studied those events and recommended that Texas harden its generation, transmission and distribution infrastructure for cold weather. But those recommendations had no binding effect on Texas. Maybe Texas will now put those recommended improvements in the category of “things we’d like to see.”

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On August 18, 2020, I had the pleasure of speaking with Will Stephens, the host of Radio Station WXAN, regarding the recently filed civil RICO class action against Madigan, ComEd et al., filed in the U.S. District Court for the Northern District of Illinois. The link appears below:

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Manchurian_Cand

The 1962 Spy Thriller

“Why don’t you pass the time by playing a little solitaire?”

In the 1962 thriller The Manchurian Candidate, a U.S. Army platoon is captured during the Korean War and taken to China. There, the platoon is brainwashed by Chinese and Soviet spymasters into believing that their sergeant, Raymond Shaw, rescued them all from the hands of the enemy. Not only that, everyone in the platoon believes (and repeats) that Shaw “is the kindest, bravest, warmest, most wonderful human being” any of them have ever known in their lives. Shaw is awarded the Congressional Medal of Honor. The nefarious Communist plot is to turn Shaw into a sleeper agent who will rise through the U.S. intelligence and political establishments. Once he’s in place, the Chinese can trigger him by suggesting that he play a little solitaire. When Shaw turns over a red queen, the sleeper agent is activated.

Fast forward to May 1, 2020: The Trump Administration issued Executive Order 13920, Securing the United States Bulk Power System.

The Executive Order acknowledges that the U.S. bulk-power system (shorthand for the interstate electricity transmission system) is a target of foreign adversaries of the U.S. who seek to commit malicious cyber- and other attacks on our bulk-power system. Historically, blackouts in the U.S. have affected areas or regions, but none have stretched from coast to coast. Still, anybody who has been through a blackout knows that the failure of the electricity grid is catastrophic, no matter how localized the outage. Electricity is the unnoticed platform that supports modern civilization itself.

The Executive Order prohibits the unrestricted acquisition or use in the United States of any bulk-power system electric equipment designed, developed, manufactured, or supplied by persons owned by, controlled by, or subject to the jurisdiction or direction of foreign adversaries. Any such acquisition or use is a “transaction,” and such transactions are prohibited even if any related contract, license or permit was entered into or granted prior to the date of the order. (Executive Order 13920, Sec. 1(c)).

The order itself doesn’t name the foreign adversaries with whom transactions are prohibited, but the State Grid Corporation of China, the world’s largest utility, most likely tops the list.

State Grid has been on an acquisition binge for several years. As far back as 2012, State Grid became the largest shareholder in Redes Energeticas Nacionais, Portugal’s national power grid. In 2013, State Grid began acquiring interests in utilities and transmission and distribution networks in Victoria and New South Wales, Australia. In 2014, State Grid took a substantial equity stake in Italy’s CDP Reti, which operates both electricity and natural gas networks. Brazil, Laos and some countries in central Africa have also been recipients of State Grid’s interest, in particular with regard to the development of ultra-high voltage transmission facilities that can transmit power over very long distances with relatively lower line losses. (There are still line losses, however.) Many have viewed Beijing’s rapid international expansion of its electricity industry as a geopolitical companion piece to its Belt and Road Initiative.

Xi_Jinping

Presiden Xi Jinping of the People’s Republic of China

A Manchurian Capacitor (used to improve power factors) is a distinct possibility. If China were to build into the grid equipment it sells in the U.S. sleeper mechanisms that could cause a breakdown in our electrical grid, the effects would be catastrophic on a historical scale. But even short of this, a threat by China to trigger a grid failure in the U.S. would be much more plausible, and therefore much more effective, than a threat made with ICBM’s that could end China’s existence as well as ours.

Executive Order 13920 signals a fundamental change in the perception of China since the outbreak of the global Covid-19 health crisis. Nobody wants electric grid equipment that Xi Jinping can tell to go play a little solitaire.

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Thomson Reuters has published my article, “Merchant Transmission and its Discontents,” in the current issue of the International Energy Law Review, [2019] I.E.L.R. 35.

While FERC has sought to encourage merchant transmission development in a manner similar to that in which it encouraged merchant generation, the merchant transmission concept is beset with internal contradictions that radically limit its practical implementation.

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CA Wildfire

Wildfire scene north of Sacramento, CA

Looks like it will take substantially more than diligent raking of the forest floor to prevent wildfires.

According to the Wall Street Journal (4/27/2019 ed.), San Francisco-based Pacific Gas & Electric will shut off power to large portions of its service territory when ground and weather conditions threaten to spark wildfires. In other words, PG&E will intentionally black out part of California’s population for periods that may range up to five days.

One need not think too long or too hard about the effects of PG&E shutting off its power. When the power is out, just about everything comes to a grinding halt. Modern human civilization stops.

According to the report, the utility is still working on how to avoid harming persons with medical needs that require continuous electric power, and how to deal with water safety (when pumps stop, boil orders start), traffic lights and other essential services.

There is no doubt that the situation in California is extreme. Scores of people have been killed in wildfires, and losses and damage from the fires are in the tens of billions of dollars. During the recent Camp fire the City of Paradise, California, was reduced to ashes with the loss of 88 lives. PG&E has been found at fault for a number of these fires.

Not everyone is greeting PG&E’s plan warmly. Businesses will suffer losses, and some say it amounts to PG&E shifting the risks of maintaining its grid to its customers. PG&E says it could take five years or more to strengthen its grid to reduce the risk of fire.

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Cyber-Security Grid

The Freedom of Information Act (5 U.S.C. 552) was originally enacted in 1966, and has been amended a few times since. The U.S. Supreme Court has said that “[t]he basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). There are, however, nine exemptions, including three related specifically to law enforcement, under which the federal government can withhold information that would otherwise be disclosed under the FOIA.

At federal agencies today, and particularly at the Federal Energy Regulatory Commission, those exemptions from disclosure have been so broadly construed that one can say with reason that FOIA has been administratively repealed. Instead of starting with a policy of full disclosure, from which certain specific categories of information are carved out, federal agencies instead start with St. Peter’s maxim: they’d rather cut off their left hand than allow it to obtain information about their right. Imagine being at the British Admiralty circa 1906 and receiving a request from Kaiser Wilhelm for a complete set of plans for the H.M.S. Dreadnought. That will give you an idea of the view contemporary federal agencies take toward FOIA requests.

Like water in a state of nature, less interesting work in a bureaucracy always flows downhill, where it is handled by persons of lower seniority and even less authority. This leads to over-classification of agency materials as top secret and exempt from FOIA. After all, if you’ve been at your agency job for four years or less and your responsibilities include responding to FOIA requests, why would you release something and risk your superior’s ire, if not your job? Better to pick out an exemption or two from the FOIA menu and send back a response of

REQUEST DENIED

Of course FOIA provides for remedies to obtain disclosure, and those often work for large media companies and the like. But for the vast majority of Americans who lack the resources to commence a FOIA enforcement action in federal district court, those remedies are worse than useless. They’re a cynical joke played on the American people.

Now we have another FERC FOIA dust-up. The North American Electric Reliability Corporation (NERC) submitted to FERC a Notice of Penalty against an electric utility for 127 cybersecurity violations between 2015 and 2018. The company agreed to pay a record-setting $10 million fine its cybersecurity violations. According to some reports the utility is Duke Energy, though that hasn’t been officially confirmed. FERC doesn’t want to publicly release the name of the electric utility.

Why shouldn’t the public be able to know whether their utility is the one that’s risking the reliability of their electricity supply and distribution system because they’re unable to get their cybersecurity act together? These violations, and the $10 million fine, are the fault of the utility’s management, not its ratepayers. Shouldn’t the ratepayers be allowed to know whether their utility is going to try to pass this cost onto them through rates?

Public Citizen, a watchdog group, has demanded that FERC disclose the utility’s name. They have stated that

“Concealing the name of the recipient of the largest fine in history sends a confusing message to the public that large penalties do not come with full accountability,” said Tyson Slocum, director of Public Citizen’s energy program and author of the filing. “Future violators may be able to similarly hide behind the veil of anonymity. Moreover, keeping the public in the dark about the cybersecurity track record of our electric utilities may create a false sense of security and reduce the likelihood of more public awareness and vigilance needed to protect cybersecurity.”

The real problem is that bureaucracies like FERC do not want the curtain pulled back on anything they do, regardless of whether any exemption applies. Any unplanned exposure of their operations risks upsetting their messaging and tarnishing the public image they want to create. Every public performance by an agency has to be staged just so, or else, in this internet media-driven age, a public relations catastrophe could occur.

 

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