On March 20, 2019, the Missouri Public Service Commission granted a certificate of convenience and necessity for the construction of the Grain Belt Express Clean Line, a transmission line that will carry electricity from wind farms in southwestern Kansas to Missouri and points farther east.
The decision marks a victorious culmination to a process that began five years ago when Clean Line Energy Partners of Houston, Texas, first applied to the PSC for permission. The PSC twice refused to approve it, and the case has been through the Missouri Court of Appeals and Supreme Court. A coalition of Missouri landowners doggedly fought the line and will probably appeal again, but after the Missouri Supreme Court decided that the PSC could grant permission, and the Commission unanimously did so, it is unlikely they’ll succeed.
From the beginning in 2014 through now, Great Rivers Environmental Law Center has supported the line on behalf of the Sierra Club Missouri Chapter and the Natural Resources Defense Council, who support wind energy in a state still heavily dominated by coal. Low-priced Kansas wind power is highly sought after by Missouri’s municipal utilities.
The line still needs approval in Illinois. Meanwhile, Clean Line has sold the project’s assets to Chicago-based Invenergy, a larger company with a long track record of successfully building and managing energy infrastructure.
This year on April Fool’s Day, join Beyond Nuclear and partner organizations for a conversation on why nuclear fuel is for fools, and learn how you can get involved in building a clean energy future.
When: Monday, April 1st, 2019 7:00 pm – 9:00 pm
Where: Schlafly Taproom (2100 Locust St., St. Louis, MO 63103)
RSVP (free): Click here
Kevin Kamps, Beyond Nuclear’s Radioactive Waste Specialist, will give an educational presentation about the proposed plan to ship high-level radioactive waste through Missouri.
Under the current Yucca Mountain, Nevada burial dump scheme, 3,574 rail-sized casks on trains and/or heavy-haul trucks, would travel through Missouri, bound for Nevada, if the Yucca Mountain high-level radioactive waste dump were to open.
The vast majority of the waste shipments through Missouri would be from other states’ atomic reactors to the east, passing through Missouri, bound for Nevada.
The 3,574 casks bound for Nevada would make Missouri among the category of states harder hit than others, in terms of shipment numbers, especially such as compared to most states east of the Mississippi River.
(75% of commercial atomic reactors, and thus high-level radioactive wastes, are east of the Mississippi. However, shipments of such eastern high-level radioactive wastes would pass through states, like Missouri, bound for western dumps like Yucca Mountain, Nevada.)
Missouri also has the dubious distinction of being downstream from potential barge shipments of high-level radioactive waste, from Cooper Nuclear Power Station (located in Nebraska, on the Missouri state line), up the Missouri River, into the Port of Omaha, Nebraska.
Pending congressional legislation, such as the Nuclear Waste Policy Amendments Act (H.R. 3053 in the past congressional session), would expedite the opening of the Yucca dump, and also significantly increase the quantity of waste that could be buried in Nevada (correspondingly increasing the numbers of shipments to cross Missouri from reactors to the east).
Click the links within the post for more information. There are lessons to be learned from Pennsylvania, home to the Three Mile Island Unit 2 meltdown 40 years ago, on March 28, 1979 — directly applicable to Missouri.
So-called “centralized interim storage facilities” (CISF) in New Mexico, and/or Texas, could well mean even larger shipment numbers through Missouri, and in the much nearer term. Whereas the Yucca Mountain, Nevada dump is currently limited to 70,000 metric tons of high-level radioactive waste burial, New Mexico’s CISF has applied for 173,600 metric tons of irradiated nuclear fuel storage capacity; Texas’s CISF has applied for another 40,000 metric tons. Altogether, the CISFs targeted at the Southwest represent three times the amount of highly radioactive waste currently targeted at Yucca Mountain, Nevada, with the potential for a corresponding increase in high-level radioactive waste shipment numbers crossing Missouri. The CISFs have proposed opening and commencing shipments by the early 2020s.
Health, safety, security, and environmental risks include severe accidents, or even terrorist attacks, releasing catastrophic amounts of hazardous radioactivity, impacting an entire region. (See a Public Citizen fact sheet entitled “Everyone Knows That Accidents Happen: Nuclear Waste Transport Casks”.)
Also see a graphic, showing the penetrating power of harmful gamma and neutron radiation, “allowed” or “permitted” to be emitted from shipping containers, at a certain dose rate, at a certain distance (10 milli-Rem per hour, or about 1 to 2 chest X-rays per hour, at a distance of six feet; 200 mR/hr, or about 20 to 40 chest X-rays per hour, at the shipping container’s exterior surface). Thus, even so-called routine, incident-free shipments would be like “mobile X-ray machines that can’t be turned off,” delivering a harmful dose of gamma and neutron ionizing radiation, at close range, as they pass by. Externally contaminated shipping containers would make such doses even worse. (See 49 documented cases of “surface contamination” in the U.S., just from 1974 to 1992.)
Come learn more about the risks, and how they can be prevented.
PHOTO OP: An inflatable, full-scale replica of a highly radioactive waste Legal Weight Truck-sized shipping cask will be deployed outside the event.
In addition to plenty of Q&A/discussion time, the 90-minute program will include:
A presentation by Kevin Kamps, Radioactive Waste Specialist, Beyond Nuclear, addressing the safety and security risks of transporting highly radioactive irradiated nuclear fuel on the roads and rails, as proposed in legislation currently pending before the U.S. Congress. He will also discuss the risks of irradiated nuclear fuel indoor wet storage pool fires for the entire region, and the interim alternative of Hardened On-Site Storage (HOSS), as well as the need to stop generating high-level radioactive waste (unfortunately, the Callaway atomic reactor in Missouri has been rubber-stamped for an extension by the U.S. Nuclear Regulatory Commission for 60 years of operations, until the year 2044).
An animation, prepared by Scott Portzline, Security Consultant, Three Mile Island Alert (TMIA), about radioactive waste transport risks, will be shown. So too will a 90-second aerial drone-captured video, featuring transport routes in Pennsylvania. A short informational video, “Nuclear Transports – Eye-Witness to Rule-breaking,” also prepared by Portzline, will be shown. Lessons learned from Pennsylvania will be applied to Missouri (the 40th annual commemoration of the 1979 reactor core meltdown at Three Mile Island Unit 2 near Harrisburg is on March 28th).
Short presentations from staff at Great Rivers Environmental Law Center and the Missouri Coalition for the Environment with information on how to get involved locally these statewide environmental organizations.
Event is co-hosted by:
Great Rivers Environmental Law Center
Missouri Coalition for the Environment
County Commission Makes Decision Akin to Calling an Apple an Orange; Says Franklin County can call Anything Whatever It Wants
For the third time, citizens in Franklin County are forced to take their County to court to get the courts to overturn a rezoning granted to a developer to build a concrete batch plant on land near residences and the world-renowned Missouri Botanical Garden’s Shaw Nature Reserve. On March 12, 2019, the County Commission voted 3 – 0 to approve the recommendation of the Planning and Zoning Commission allowing this plant to be built near residences.
Landvatter Enterprises, LLC, proposes to build a ready-mix concrete plant on tree-covered hills just 600 feet from the Nature Reserve in Franklin County. There are dozens of houses and apartments in the area between the Nature Reserve and the proposed plant. The homeowners believe the proposed plant will cause them to breathe in dust, suffer from noise and increased traffic, and believe that the wildlife, fish, birds, flora and fauna in the Nature Reserve will also suffer from the plant.
Great Rivers has been representing the citizens since 2014, when the developer first filed an application for a conditional use permit to build the concrete plant. The Planning and Zoning Commission (P & Z) and Board of Zoning Adjustment (BOZA) granted the permit. Citizens challenged that permit in court because a member of BOZA spoke at the P & Z hearing, and that member was the real estate agent for the buyer and seller of the land proposed to be rezoned, and stood to make a profit. The trial court refused to throw out the lawsuit, so in March of 2015, the developer withdrew the application, and shortly after filed a new application seeking a rezoning, and not a conditional use permit, for the same plant. The land is zoned “Community Development;” the County now says that by rezoning it to “Commercial,” any type of industry can build a plant as a regular use in a commercial district.
At the hearing for this new application in 2015, the developer was allowed to make a case for rezoning, but the local residents who came to speak against it were not given an opportunity to have their voices heard. We took the County to court, and in 2018 the Court of Appeals ruled that the P &Z deprived citizens of due process by failing to allow them to speak at a public hearing before the commissioners voted.
This time around, the developer again sought a rezoning. The P & Z held a hearing in November, and many residents as well as two of Great Rivers’ staff spoke against it. In December, the P & Z voted 6-1 to grant the application. The County Commission held a hearing on the plant on January 31, 2019. Again several citizens spoke against it, as well as the Director of the Shaw Nature Reserve, Quinn Long. Dr. Long said the plant would detract from the Nature Reserve and not be in harmony with the area.
Kelly Brothers Mason, a resident whose house sits right in between the Nature Reserve and the proposed concrete plant, said, “This concrete plant should not be built here; it should be in an industrial park. The County Commissioners, who do not ever discuss the homeowners’ situation, keep greenlighting this terrible project. They don’t care that our property values will plummet and that the wildlife and birds that depend on the Nature Reserve will suffer.”
The County ignored the residents for the sixth time and voted for the rezoning on March 12.
In their appeal to the courts, the citizens will argue that the rezoning is illegal because the County is allowing industrial plants in commercially zoned districts without requiring them to obtain special permits. Franklin County has a district called “industrial,” and other concrete plants in the County have that designation, but this plant would be “special,” and would be called “commercial” and not “industrial.”
When the Citizens brought this up at the hearing on November 20, the County responded by saying it can label things how it likes. Labelling concrete batch plants as “commerce” and not “industry” is like calling apples oranges. Never mind that the Dictionary clearly distinguishes between apples and oranges, and commerce and industry: Franklin County says it can make up its own definitions!
“Courts sometimes use the ‘duck’ test, said Kathleen Henry, attorney at Great Rivers Environmental Law Center. “If a think walks like a duck, talks like a duck, and acts like a duck, a court will find it is a duck. This concrete plant walks like heavy industry, talks like heavy industry, and acts like heavy industry. The County should not get away with calling industry commerce.”
The citizens will request the trial court to reverse the rezoning granted by the County.
The Supreme Court has recently granted certiorari to answer the question of whether the Clean Water Act (“CWA”) regulates discharges of pollutants to groundwater that make their way to navigable waters.
There is no question that the CWA applies to point sources that discharge pollutants directly to navigable waters, but what happens if a point source discharges pollutants to groundwater, and the groundwater conveys the pollutants to navigable waters?
The exact question presented in the case is:
Whether the CWA requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater.
Courts faced with the issue have reached different results, and a recent circuit split among federal courts is what prompted the Supreme Court to take up the issue.
In Kentucky Waterways All. v. Kentucky Utilities Co., 905 F.3d 925 (6th Cir. 2018), and Tennessee Clean Water Network v. Tennessee Valley Auth., 905 F.3d 436 (6th Cir. 2018), the Sixth Circuit determined that these types of discharges were not covered by the CWA and dismissed the cases based on the fact that the discharge had occurred to groundwater, which is not a navigable water. In both Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (4th Cir. 2018), and Hawai’i Wildlife Fund v. Cty. of Maui, 881 F.3d 754 (9th Cir. 2018) amended by 886 F.3d 737 (9th Cir. Mar. 30, 2018), the Fourth and Ninth Circuits extended CWA jurisdiction to discharges that occurred to groundwater where those discharges were conveyed to navigable waters.
In Hawai’i Wildlife Fund, the Ninth Circuit based its holding on three facts: (1) the County discharged pollutants from a point source (i.e. wells), (2) the pollutants are fairly traceable from the point source to a navigable water such that the discharge is the functional equivalent of a discharge into the navigable water, and (3) the pollutant levels reaching navigable water are more than de minimis. Id. At 749 (emphasis added).
EPA, in its amicus brief, argued that the court should apply a “direct hydrological connection” test; however, the Ninth Circuit refused to adopt the EPA’s argument because the agency was reading the word “direct” into the statute where it did not exist. Id. at Footnote 3. EPA continues to promote the “direct hydrological connection” test in its briefs filed with the Supreme Court.
It is unclear how the Supreme Court will resolve the issue.
Given the current composition of the Court, many environmentalists are not optimistic about the outcome.
However, the Ninth Circuit made a compelling case for CWA liability to attach in indirect discharge situations by citing the late Antonin Scalia’s plurality opinion in Rapanos v. United States. In that case, Justice Scalia noted that “the CWA does not forbid the ‘addition of any pollutant directly to navigable waters from any point source,’ but rather the ‘addition of any pollutant to navigable waters.’” Id. citing Rapanos v. United States, 547 U.S. 715, 743, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006) (emphasis in original). Scalia noted that “from the time of the CWA’s enactment, lower courts have held that the discharge into intermittent channels of any pollutant that naturally washes downstream likely violates [the CWA], even if the pollutants discharged from a point source do not emit ‘directly into’ covered waters, but pass ‘through conveyances’ in between.” Id. (emphasis in original). Justice Scalia favorably cited a Second Circuit decision in which “the discharge of manure from point sources onto fields (which were not necessarily point sources themselves) and eventually into navigable waters constituted point source discharges under the CWA.” Id.
The Ninth Circuit also pointed out that several cases have found CWA liability where pollutants discharged from a point source made their way long distance through the air into navigable waters, such as discharges from airplanes and helicopters.
Hopefully, based on the long history of indirect discharges being prohibited by the CWA and Scalia’s textual reading in Rapanos, the Supreme Court will not buy into the Sixth Circuit’s bright line test that because groundwater is not a navigable water, discharges to groundwater without a permit are not prohibited under the CWA even where it is clear the pollutants will reach navigable waters.
Industry is pushing arguments that adoption of the Ninth Circuit’s test will result in vast regulatory uncertainty and extreme costs to state agencies that administer water permit programs.
Conversely, if the Sixth Circuit’s test is adopted, regulated entities will have a perverse incentive to discharge their pollutants to groundwater to avoid permitting requirements. This result would clearly contravene the purpose of the CWA to provide Americans with drinkable, fishable, and swimmable waters.
Written by Bob Menees, Staff Attorney at Great Rivers Environmental Law Center
Kay has served on the Board of Directors at Great Rivers Environmental Law Center since 2003. She is a passionate supporter of the environment as well as civil rights, and has been an important leader of Great Rivers from the very start. She has always been close to the Green family, including our founder, Lewis C. Green, and our President, Kathleen Henry. Kay says, “I feel good about what Great Rivers has already accomplished.”
It would be difficult to find someone more passionate than Kay about protecting people from the dangers of nuclear power and radioactive waste. Her basement is an extensive library on nuclear issues, and she is the current President of Beyond Nuclear, a nationa nonprofit organization that works to educate the public about the hazards of nuclear power and nuclear weapons and the need to abandon both to safeguard the future.
Kay and her late husband, Leo A. Drey, were among the founders of the Missouri Coalition for the Environment in 1969 and Kay remains active in that organization as well. They also amassed more than 153,000 acres and donated most of the property to the L-A-D Foundation (another organization they had a role in founding) in 2004. This was the largest such donation for conservation in Missouri history.
We asked Kay a few questions so you can get to know her better:
If you could have any superpower, what would it be? Better writing and violin skills
What is the best (or worst) advice you’ve ever received? I’ve always been told to behave myself – but I don’t pay attention to that 🙂
What is your favorite flower? All of Missouri’s flora!
What was the best vacation you ever went on? Leo and I used to visit Minnesota. We always loved the scenic lakes, watching the beautiful birds, and enjoying the quiet there. But the Ozarks woods and streams remain our favorite.
Missouri’s waterways need a voice, and we are here to serve as that voice!
Henry Robertson, Climate and Energy Director at Great Rivers, filed an opening brief in the Missouri Supreme Court in a suit against the State of Missouri over its passage of House Bill 1713 in (HB 1713), which endangers Missouri’s water quality by upsetting the balance between the public interest and regulated interests at the Clean Water Commission. The Commission enforces the federal Clean Water Law and grants permits to Concentrated Animal Feeding Operations (CAFOs).
Great Rivers represents the Missouri Coalition for the Environment (MCE) and Carolyn Johnson, a resident of Stoddard County on this matter. They challenge the bill because the way the legislature passed it in 2016 was unconstitutional. The bill was originally about “wastewater treatment systems,” so it was misleading to add such a wide-reaching change to the bill as the composition of the Commission. However, the Court ended up dismissing the lawsuit because the plaintiffs did not have “standing” to sue; in particular, none of their tax money was spent on the Commission.
Rachel has served on Great Rivers’ Young Professionals Board since June 2017, assisting with event planning, writing guest columns for the Great Rivers blog, and drafting the Young Professionals Board’s initial by-laws. She joined the Young Professionals Board because she wanted to get more involved in environmental issues and the nonprofit sector. And she knew Great Rivers was a special place because of her time working with us in 2014 as a legal extern.
Outside of Great Rivers, Rachel is an attorney who represents nonprofits and businesses in a wide variety of litigation, compliance, tax controversies, and governance matters. Her first years of practice were spent representing victims injured by dangerous chemicals and pharmaceutical drugs with a leading plaintiffs’ firm downtown. Rachel also volunteers as a pro bono attorney with Volunteer Lawyers and Accountants for the Arts and Legal Services of Eastern of Missouri, where she helps nonprofits obtain and keep tax-exempt status.
When she’s not at work or volunteering? You’ll most likely find Rachel at BARx CrossFit, where Rachel has been a member since 2012. “I consider it my form of a book club.”
Rachel received a technical writing degree from Missouri State University and a law degree from Saint Louis University School of Law. One of her favorite memories from law school is competing in the National Environmental Law Moot Court Competition. She says her time spent interning with Great Rivers helped prepare her for tackling nuanced legal issues.
We asked Rachel a few questions so you can get to know her better:
What book is currently on your nightstand? Atomic Habits by James Clear
What book are you most likely to binge read? Harry Potter
What fictional place would you most like to go? Hogwarts!
What is the best park you have ever visited? Zion National Park
What is your favorite local trail? Glassberg Family Conservation Area in Jefferson County
What always cheers you up when you think about it? Puppies
We invite you to nominate an environmental champion for a Lewis C. Green Environmental Service Award! Individuals and organizations are eligible. Selected recipients will be recognized by Great Rivers Environmental Law Center at the Lewis C. Green Awards Party on Sunday, September 22, 2019 at the Whittemore House.
Nominees should have a demonstrated long-term commitment to preservation of the environment.
All nominations are due by April 1, 2019.
CLICK HERE to submit a nomination today!
A list of past recipients of the Lewis C. Green Environmental Service Award is available here.
On February 12, 2019, Great Rivers Environmental Law Center submitted comments to the U.S. Army Corps of Engineers (Army Corps) on a proposal for implementing Congress’ Water Resources Development Acts of 2018 and 2016. The Water Resources Development Acts authorize a wide variety of water resource projects and policies administered by the Army Corps.
In its comments Great Rivers urged the Army Corps to ensure that federal investments in the nation’s water resources protect and restore the environment, as well as increase the resiliency of people and wildlife to climate change. The increasing storms, floods, and droughts now being brought about by climate change make it more important than ever that the Army Corps use modern and environmentally sound approaches when planning water resources projects.
The comments strongly support the use of natural infrastructure solutions to reduce flood and storm damages, and call for an increased commitment from the Army Corps to using these solutions. Particular recommendations urge the Army Corps to state explicitly that temporary interests in land are not appropriate for restoration, or for natural infrastructure projects, as these temporary interests would negatively impact long-term ecological sustainability. Additionally, Great Rivers encourages the removal of infrastructure projects that no longer serve a federal interest, in order to open up opportunities for ecosystem restoration that will benefit people and wildlife. Further, Great Rivers suggests the Corps be open to considering modifications to a project, up to and including removal of the project entirely, if the change would improve the overall quality of the environment.
Great Rivers’ comments address Army Corps water resources projects across the United States. These projects include restoration, flood control, shoreline protection, and fish and wildlife management.
Finally, to ensure full transparency, Great Rivers proposed that the public be given at least 60 days to review and comment on the scope and impact of water resource development projects. Great Rivers also made suggestions for how the Army Corps could ensure its compliance with requirements imposed under related environmental laws.
A summary of the comments follows, and the full document is available for viewing here.
Summary of comments on “Implementation Guidance for Water Resources Development Acts”
Guest column by Dan McFarlane
As we approach Valentine’s Day, those of us with a significant other or spouse are usually thinking of some sort of gesture or combination of things that will show their love and appreciation for their special someone. But all of us can show some love for the environment, and specifically renewable energy sources, and not just on Valentine’s Day. So in honor of Cupid’s day in the limelight, here are a few reasons why I love that good clean energy.
Have a happy Valentine’s Day and remember that we’re all deserving of love no matter our circumstances!
Written by Dan McFarlane, a member of Great Rivers’ Young Professionals Board