Archive for June, 2010

Biomass energy has received a lot of attention in Ohio recently as means of reducing the state’s dependence on coal and mitigating air pollution. But biomass energy is not necessarily clean energy. While there is potential for biomass-based power generation to be a cleaner source of baseload power, many of the environmental benefits of biomass are contingent upon the fuel being obtained and processed in a sustainable manner.

Therefore, the OEC is leading the legal fight at the Public Utilities Commission of Ohio (PUCO) to ensure that biomass projects are sustainable and carbon-neutral before they qualify as renewable energy sources.

Biomass Energy Is Not Necessarily Carbon-Neutral

Biomass energy is often touted as “carbon-neutral” because the growing plants and trees absorb and sequester CO2, in theory compensating for the carbon that is emitted when the material is burned. But there is evidence that the carbon benefits of biomass could take decades accrue. From a study commissioned by the Massachusetts Department of Energy:

Forest biomass generally emits more greenhouse gases than fossil fuels per unit of energy produced…Over time, however, re-growth of the harvested forest removes this carbon from the atmosphere, reducing the carbon debt. After the point at which the debt is paid off, biomass begins yielding carbon dividends in the form of atmospheric greenhouse gas levels that are lower than would have occurred from the use of fossil fuels to produce the same amount of energy.

The full recovery of the biomass carbon debt and the magnitude of the carbon dividend benefits also depend on future forest management actions and natural disturbance events allowing that recovery to occur. (Massachusetts Biomass Sustainability and Carbon Policy Study, 2010).

From an article in Science magazine:

The potential of bioenergy to reduce greenhouse gas emissions inherently depends on the source of the biomass and its net land-use effects. Replacing fossil fuels with bioenergy does not by itself reduce carbon emissions, because CO2 released by tailpipes and smokestacks is roughly the same per unit of energy regardless of the source. Bioenergy therefore reduces greenhouse gases only if the growth and harvesting of the biomass for energy capture carbon above and beyond what would be sequestered anyway and thereby offset emissions from energy use. This additional carbon may result from land management changes that increase plant uptake or from the use of biomass that would otherwise decompose rapidly. Searchinger, et al. “Fixing a Critical Climate Accounting Error,” Science (2009).

These studies indicate that biomass energy is not necessarily carbon-neutral. To ensure reductions in greenhouse emissions, biomass must be harvested in a sustainable manner that allows crops to grow and re-sequester the carbon that is emitted during power generation.

FirstEnergy Must Provide More Detail About Its Burger Plant

The OEC has paid particular attention to FirstEnergy’s proposed Burger biomass facility in eastern Ohio. FirstEnergy plans to burn biomass material to power the 312 MW facility, which would make it one of the largest biomass energy projects in the world. FirstEnergy has also applied for renewable certification, which would allow the company to use the energy generated there to meet Ohio’s Renewable Energy Standard (RES). Ohio’s RES, codified on Revised Code 4928.64, requires that 12.5 percent of the power sold by utilities must come from “renewable” energy sources by 2025.

The OEC has challenged this application at the PUCO, arguing that the application does not contain enough information about the fuel source and, therefore, it is impossible to know whether the facility qualifies as a renewable energy resource under Ohio’s RES.

Joe Koncelik, former Director of Ohio EPA, has written that the biomass generation represents “Ohio’s best hope for reducing its overwhelming dependence on coal for electricity.” Koncelik also references OEC’s advocacy in the Burger case, arguing that “Opposition to the First Energy proposal [by environmental groups] will undoubtedly make movement toward biomass as a replacement for Ohio’s coal dependence much more difficult.”

However, the OEC’s “opposition” is not directed at the Burger project, but at FirstEnergy’s current application for renewable certification. The OEC has not filed opposition to FirstEnergy’s plan to begin burning biomass at its Burger facility. But the OEC has made the argument to the PUCO that biomass facilities should not be certified as “renewable” until the utility can demonstrate that the necessary fuel can be obtained in a renewable manner.

In short, the OEC is only asking the PUCO to require a sustainability demonstration prior to certifying biomass projects as “renewable.” This is a commonsense interpretation of Ohio’s RES. If the PUCO awards credit for a non-sustainable project—one that fails to result in emissions-reductions and cannot be maintained over the long term—then Ohio’s renewable energy standard will be undermined.

Read about OEC’s legal fight in the Columbus Dispatch, Biomass Magazine, or listen to coverage on National Public Radio.

Read Full Post »

In a 8-0 decision handed down yesterday, the U.S. Supreme Court affirmed a decision by the Florida Supreme Court and rejected a claim by landowners along Florida’s Gulf Coast. The case, Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, dealt with the legal question of whether the state of Florida had “taken” private property without just compensation. The Fifth Amendment of the U.S. Constitution provides that the government cannot take private property without “just compensation.”

A Florida law designed to mitigate beach erosion allows the state to rehabilitate beaches by adding sand. The Florida Supreme Court held that the newly created beaches become public property based on Florida law. Under Florida property law, beachfront property owners do not own land that is created as a result of an “avulsion” (a “sudden or perceptible loss of or addition to land.”) The Court affirmed the decision of the Florida Supreme Court, which held that the beach rehabilitation constituted an avulsion and that therefore the property owners did not have title to the new property that was created.

The Court’s decision was a win for Florida environmentalists, and a setback for property rights advocates, but it may not affect the Ohio Supreme Court’s decision Merrill v. State of Ohio. Merrill also involves a question of Ohio property law. Specifically, the Ohio high court will determine the question of how far property rights extend along the Lake Erie shore. Private property advocates argue that the “public trust” land (land that is owned by the state) extends only to the water’s edge, while environmentalists and the Ohio Department of Natural Resources contend that the boundary is the high water mark.

Although the U.S. Supreme Court ruled in favor of environmentalists on a similar question in Stop the Beach Renourishment, Inc. v. Florida, the Merrill case will likely be decided solely by applying Ohio property law.

The U.S. Supreme Court was split, however, on the question of whether a state court decision could constitute an unconstitutional taking of private property. The Court’s four conservative justices—Scalia, Alito, Roberts, and Thomas—agreed that “the Takings Clause bars the State from taking private property without paying for it, no matter which branch is the instrument of the taking.” Meanwhile, Justices Kennedy, Breyer, Ginsburg, and Sotomayor declined to decide whether a judicial decision upholding legislative action could, itself, constitute a taking.

Although a majority of the justices did not accept the “judicial takings” theory in Stop the Beach Renourishment, Inc. v. Florida, the Court left open the possibility that a judicial taking could occur in a future case. Therefore, it appears possible that the property rights advocates in the Merrill case—should they lose—could seek certiorari to the United States Supreme Court under the “judicial takings” theory.

Read Full Post »