Exhibit 29

Case: 10-1092 Document: 1274850 Filed: 11/01/2010 Page: 1
DECLARATION OF FRANK KNAPP, JR.,

PRESIDENT AND CEO OF THE SOUTH CAROLINA SMALL BUSINESS CHAMBER

OF COMMERCE

1. I, Frank Knapp, Jr., co-founder, president and CEO of The South Carolina Small

Business Chamber of Commerce, make this Declaration in support of the response filed by the

Environmental Defense Fund, the Natural Resources Defense Council, and other environmental

intervenors in opposition to motions filed by various parties to stay various actions of the U.S.

Environmental Protection Agency (EPA) relating to the control of greenhouse gas (GHG)

emissions under the Clean Air Act. The purpose of this Declaration is to express The South

Carolina Small Business Chamber of Commerce's support for EPA's decisions to move forward

with controls on emissions of GHGs under the Act and to oppose motions to stay EPA actions in

order to further delay implementation of the Act as to GHG emissions. The EPA decisions at

issue here include (1) determinations that the emissions of GHGs from mobile sources cause or

contribute to air pollution that endangers human health and the environment, (2) regulations

limiting GHG emissions from motor vehicles; (3) an interpretative rule addressing when

pollutants become "subject to regulation" for purposes of the Act's Prevention of Significant

Deterioration and Title V permitting programs, and (4) a Tailoring Rule limiting application of

the permitting requirements to the largest sources of GHG emissions during the initial phases of

the program. If all of the motions were granted, the effect would be to delay application of the

Act to mobile and stationary sources during this litigation.

2. I am the co-founder of The South Carolina Small Business Chamber of Commerce, and I

serve as its president and CEO providing management and governmental relations for the

organization. I am also the founder and President of The Knapp Agency, an advertising and

public relations firm. Prior to that, I was the Associate Director of Public Information for South

Carolina Educational Television and a partner in a political consulting group. I have authored

numerous opinion editorials advocating the small business benefits of effective energy

conservation policy and have appeared in a national television advertisement endorsing GHG

regulation as a way to jump start our economy. I serve on a number of committees including the

American Sustainable Business Council steering committee, the DHEC Commissioner's

Advisory Council for the Elimination of Health Disparities, the USC Small Business

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Development Center Advisory Board, and the SCE&G Demand Side Management Advisory

Group.

The South Carolina Small Business Chamber of Commerce

3. The South Carolina Small Business Chamber ofCornrnerce (SCSBCC) is a 5000+

member non-profit advocacy organization in the Palmetto State. As a strong proponent for small

business economic development, the SCSBCC has championed regulation of GHG since 2007 in

order to protect our small business tourism and outdoor recreation economy from the negative

effects of climate change and to promote the development of new green industries that will

consist largely of small businesses.

A Stay of EPA's GHG Regulations Could Hamper the Growth of the Clean Energy Sector

of the Economy in South Carolina and Could Harm the Existing Small Business Economy

in South Carolina

4. SCSBCC opposes a stay ofEPA's GHG regulations because it would delay and

disrupt efforts to achieve controls of GHG emissions under the Clean Air Act. The clean energy

economy is a sector that small business owners in South Carolina view as essential to their

ability to compete, and as one area that - in a time when globalization and consolidation have

limited small businesses' opportunities in many areas - represents extremely promising

opportunities for small business growth and innovation. EPA's GHG regulations can also be an

important step toward long-term investment decisions that will help the transition to low-carbon,

cleaner technologies and stimulate business for small businesses as well as clean energy jobs.

5. Based on the science underlying climate change, SCSBCC believes GHG policies

must be designed in order to protect the small business tourism and outdoor recreation economy

in South Carolina - one of the state's largest industries - from the negative effects of climate

change. In light of Congressional inaction on climate legislation, SCSBCC believes that EPA

regulation of GHG emissions under the Clean Air Act can be an important first step in reversing

the current trend of increasing GHG emissions.

6. If the EPA actions at issue in this case are stayed by the Court, some investors

could delay investments in small businesses that would be important sources of innovation in

areas such as GHG emissions control and energy efficiency and could reduce opportunities for

small businesses in these areas.

2

Case: 10-1092 Document: 1274850 Filed: 11/01/2010 Page: 3
7. I declare under penalty of perjury under the laws of the United States of America

that the foregoing is true and correct. Executed in Columbia, South Carolina on October 25,

2010.

3

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Exhibit 30

Case: 10-1092 Document: 1274850 Filed: 11/01/2010 Page: 5
IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

DECLARATION OF KATHLEEN M. KRUST 

Under penalty of perjury, Kathleen M. Krust states as follows: 

1. I am a paralegal with the Sierra Club’s Environmental Law Program located 

at 85 Second Street, San Francisco, CA 94105. I have held this position for 

over six years and have been employed with Sierra Club for over nine years. 

2. Sierra Club’s Beyond Coal Campaign monitors the permitting and operation 

of coal-fired facilities nationwide to ensure the vigorous enforcement of 

environmental law governing such facilities. 

3. As part of the Beyond Coal Campaign, Sierra Club has an ongoing effort to 

compile information on new and proposed coal-fired power plants, coal-togas plants, and coal-to-liquid plants (“coal plants”) in the U.S. This 

information is made publicly available through Sierra Club’s coal tracker, an 

online database providing up-to-date, detailed information about proposed 

coal plants across the country. I am listed as the Sierra Club’s contact 

person for the coal tracker and am regularly contacted by the general public, 

other organizations and governmental officials about the information 

contained in the coal tracker. 

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4. As a paralegal with Sierra Club, my duties include overall management of 

the coal tracker and supervision of a small team of law program staff who 

are responsible for maintaining the timeliness, accuracy, and reliability of 

the coal tracker. I am also directly responsible for maintaining the 

timeliness, accuracy, and reliability of a number of individual coal plants 

listed on the coal tracker. 

5. As part of my duties, I collect information on proposed coal plants from a 

number of sources, including draft and final permits, permit applications, 

environmental impact statements, filings with state regulatory agencies and 

proceedings before state public utility and service commissions. I also 

collect information from media sources, company and developer press 

releases and financial filings, as well as contacts with local and state nonprofit organizations and local, state and federal agency employees. 

6. For the purposes of this declaration, I reviewed our coal tracker for the 

following information on proposed coal plants across the nation: coal plant 

name, developer name, location, size, estimated short tons of carbon dioxide 

per year of operation, and likelihood that the proposed coal plant will receive 

a draft and/or final prevention of significant deterioration permit (“PSD 

permit”) between January 1, 2011 and December 31, 2011. The information 

is collected in the Tables 1, 2 and 3 below. Sierra Club offers no 

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3

independent assessment of the viability of the coal plants listed in Tables 1, 

2 and 3 and instead relies on developer assertions that the coal plants are 

proceeding as planned. 

7. According to my review, the coal plants shown in Table 1 below are coal 

plants expected to receive a draft or final PSD permit between January 1, 

2011 and December 31, 2011. Table 1 also contains two refineries, the 

Hyperion Energy Center and the Sweeney Refinery Gasification Project, of 

which the Sierra Club is aware of through work on these projects, including 

reviewing relevant permit materials. 

Table 1 

State Developer(s) Location or Plant 

Name 

MW CO2 

Annually 

(short tons) 

AK Golden Valley Electric 

Association, Homer Electric 

Association & Alaska 

Industrial Development 

Export Authority 

Healy Clean Coal 

Plant 

50 350,000 

IL Tenaska & Christian County 

Generation 

Taylorville Energy 

Center 

770 1,709,000 

KY Estill County Energy Estill County 110 1,045,133 

MN New Ulm Public Utilities 

Commission 

New Ulm 15 105,000 

ND Great Northern Project 

Development & South Heart 

Coal 

Stark County 175 1,225,000 

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PA Wellington Development Greene County 580 2,941,778 

SD Hyperion Hyperion Energy 

Center 

200 18,960,000 

TX ConocoPhillips Sweeny Refinery 

Gasification 

Project 

683 4,781,000 

 Totals 2,583 31,116,911 

8. According to my review, the coal plants shown in Table 2 below are coal 

plants expected to receive a final PSD permit before January 1, 2011, but which 

could potentially receive a final PSD permit between January 1, 2011 and 

December 31, 2011. 

Table 2 

State Developer(s) Location or Plant 

Name 

MW CO2 

Annually 

(short tons) 

GA LS Power Development & 

Longleaf Associates 

Early County 

Longleaf plant 

1200 8,850,000 

KS Sunflower Electric Power 

Corp. & Tri-State Generation 

and Transmission Association

Holcomb/H2 895 6,670,000 

TX Tenaska Trailblazer Energy 

Center 

600 4,200,000 

 Totals 2,695 19,720,0o0 

9. According to my review, the coal plants shown in Table 3 below are coal 

plants expected to receive a draft PSD permit after December 31, 2011, but which 

Case: 10-1092 Document: 1274850 Filed: 11/01/2010 Page: 9
5

could potentially receive a draft PSD permit between January 1, 2011 and 

December 31, 2011. 

Table 3 

State Developer(s) Location or Plant 

Name 

MW CO2 

Annually 

(short tons) 

CA Hydrogen Energy 

International LLC (joint 

venture of BP Alternative 

Energy & Rio Tinto) 

Hydrogen Energy 

California Project 

390 2,730,000 

GA Power4Georgians Plant Ben Hill 

Fitzgerald 

850 6,578,534 

IL U.S. Department of Energy & 

Ameren Energy Resources 

Company & Babcock & 

Wilcox Company & Air 

Liquide 

FutureGen 2.0 

(Meredosia refit) 

200 1,444,000 

IN Leucadia/Indiana 

Gasification, LLC 

Indiana 

Gasification 

134 4,500,000 

KY Black Stallion Energy Center Breathitt County 660 4,620,000 

MN Excelsior Energy Mesaba Energy 

Project 

603 2,147,506 

MS Rentech Development Corp. Belwood Coal-toLiquids plant 

n/a unknown 

MT Australian-American Energy 

Company & Crow 

Reservation 

Many Stars CTL 

Plant 

n/a unknown 

TX Summit Power Group Ector County 400 2,800,000 

TX Chase Power & Las Brisas 

Energy Center, LLC 

Las Brisas Energy 

Center 

1320 9,240,000 

Case: 10-1092 Document: 1274850 Filed: 11/01/2010 Page: 10
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VA Old Dominion Electric 

Cooperative 

 

Cypress Creek 

Power Station 

1500 14,600,000 

 Totals 6,057 48,660,040 

Dated this 27th of October 2010 in San Francisco, CA. 

 ___ ________ 

Kathleen M. Krust 

Case: 10-1092 Document: 1274850 Filed: 11/01/2010 Page: 11
Exhibit 31

Case: 10-1092 Document: 1274850 Filed: 11/01/2010 Page: 12
E2

ENVIRONMENTAL ENTREPRENEURS·

The Independent Busi)1ess Voice for the Environment www.e2.org

DECLARATION OF NICOLE LEDERER, CO-FOUNDER ENVIRONMENTAL ENTREPRENEURS

1. I make this Declaration in support of the response filed by the Environmental Defense Fund, the

Natural Resources Defense Council, and other environmental intervenors in opposition to

motions filed by various parties to stay actions of the U.S. Environmental Protection Agency

(EPA) relating to the regulation of greenhouse gas (GHG) emissions from stationary sources

under the Clean Air Act. The purpose of this Declaration is to express my view that EPA's

regulations establish an important mechanism for beginning to reduce greenhouse gas emissions

starting with the largest sources. EPA's Tailoring Rule identifies which sources would be subject

to permitting requirements for greenhouse gases and which would not, and thus provides

regulatory relief for many sources. A stay of EPA's actions concerning GHG emissions for

stationary sources would only exacerbate and prolong uncertainty concerning the impact of

greenhouse gas regulations on businesses, investors and entrepreneurs.

Qualifications and Background

2. I am a Co-Founder of Environmental Entrepreneurs (E2), a national community of individual

business leaders working in support of policies that both protect the environment and grow the'

economy. We support policies that foster innovation, economic development and green job

creation. Since 2002, I have led many E2 delegations to Washington to meet with House and

Senate members, as well as representatives from the Executive Branch. I am a frequent speaker

on green job creation and other business benefits related to environmental policy.

Business group E2 at a glance

3. E2 represents a national community of 850 business leaders who promote strong

environmental policy to grow the economy. We are entrepreneurs, investors and professionals

doing business in 41 states who collectively manage over $90 billion of venture capital and

private equity. Our members have started well over 1,100 businesses, which in turn have created

over 500,000 jobs.

EPA's Greenhouse Gas Regulations Create an Important Mechanism and Provide Clarity for

Businesses and Investors

4. EPA's GHG regulations establish a mechanism for the implementation of greenhouse gas

emissions permitting starting with the largest sources. Because of the Tailoring Rule, we better

understand the sources covered by the rules (I.e., under the Tailoring Rule, sources that must

undergo permitting based on their emissions of other pollutants, and also would increase

greenhouse gas emissions by 75,000 tons per year of CO,e or more, will have to apply the best

available control technology to reduce their greenhouse gas emissions beginning January 2,

2011. A larger category of new and modified sources of greenhouse gas emissions - new

sources with the potential to emit 100,000 tons per year of CO,e, and source modifications that

will result in a net emissions increase of 75,000 tons per year of CO,e - will be subject to

permitting beginning July 1, 2011. See, e.g., 75 Fed. Reg. 31523).

A Stay of EPA's GHG Regulations Could Hamper the Growth of the Clean Energy Sector of the

Economy

5. Environmental Entrepreneurs opposes a stay of EPA's greenhouse gas regulations. If the EPA

actions at issue in this case are stayed by the Court, it is likely that many investors will delay or

abandon investments in new and existing businesses that would be important sources of

innovation in areas such as greenhouse gas emissions control and energy efficiency. A stay

NORTHERN CALIFORNIA, PACIFIC NORTHWEST

& ROCKY MOUNTAINS

III Sutter Street, FI20

San Francisco, CA 94-104

TEL 415875-6100 FAX 415875-6161

NEW YORK & NEW ENGLAND

40 West 20th Street

New York, NY 10011

TEL 212 727-2700 FAX 212 727-1773

SOUTHERN CALIFORNIA

1314 Second Street

Santa Monica, CA 90401

TEL 310 434-2300 FAX 310 434-2399

Case: 10-1092 Document: 1274850 Filed: 11/01/2010 Page: 13
would also dampen innovation and investment in the green technology area more generaily and

wouid be a source of uncertainty for ail businesses and investors.

6. The growing clean energy sector represents our greatest opportunity to restore a robust economy

and create new jobs. Investors and entrepreneurs in this sector are seeking to commercialize the

innovations and technologies that wiil secure America's competitive position in the global

economy. EPA's greenhouse gas regulations will provide the necessary market signal to

stimulate long-term investment decisions that wiil help the transition to low-carbon, cleaner

technologies and stimulate new businesses and clean energy jobs.

7. We believe that the U.S. should focus on curbing poilution, creating jobs, and promoting U.S.

leadership in 21" century clean technologies. We support enabling American business leaders

like ourselves to continue leading the way to a clean energy future. As such, we oppose this stay

of regulations and oppose any attempt to weaken or deiay enforcement of the Clean Air Act and"

the regulation of greenhouse gases under the Act.

8. I declare under penalty of perjury under the laws of the United States of America that the

foregoing is true and correct. Executed in Washington, DC on October 22, 2010.

Nicole Lederer

Environmental Entrepreneurs page 2

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Exhibit 32

Case: 10-1092 Document: 1274850 Filed: 11/01/2010 Page: 15
1

IN THE U.S. COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA 

CIRCUIT 

DECLARATION OF MICHAEL C. MacCRACKEN 

I, MICHAEL C. MacCRACKEN, declare as follows: 

Background and Experience

1. I received my Bachelor of Science in Engineering with high honors in 

Aerospace and Mechanical Sciences from Princeton University in 1964 and was 

recognized by election to the Phi Beta Kappa honor society. I then received my 

Master of Science and Ph.D. degrees in Applied Science from the University of 

California Davis in 1966 and 1968, respectively. My graduate studies were 

recognized by election to the Phi Kappa Phi honorary society. 

2. From 1968 to 2002, I was employed as a physicist at the University of 

California’s Lawrence Livermore National Laboratory (LLNL), where I led a 

number of scientific projects, including using numerical models to simulate the 

response of the climate to a range of natural and human-induced perturbations, 

including the likely impacts of an increase in the concentrations of greenhouse 

gases such as carbon dioxide. From 1978 to 1993, I also served in various advisory 

capacities for the climate change research programs managed by the Department of 

Energy, and participated actively in numerous other professional activities relating 

to climate change and its impacts. In addition, I served as Deputy Division Leader 

of the Atmospheric and Geophysical Sciences Division from its formation in 1974 to 

1987 and as Division Leader from 1987 to 1993. 

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3. From 1993 to 2002, I was on assignment from my permanent position 

with LLNL to serve as the senior scientist on global change at the interagency 

Office of the U. S. Global Change Research Program in Washington, DC. In this 

capacity, I served as the first Executive Director of the Office of the U.S. Global 

Change Research Program (“USGCRP”) from 1993-1997. I was responsible for 

assisting in the coordination of the global change1 research programs of ten federal 

agencies, including the Environmental Protection Agency, the Department of 

Energy, the National Science Foundation, the National Oceanographic and 

Atmospheric Administration, NASA, and others. In addition, in my role as senior 

scientist, I was responsible for keeping up with scientific advances in the field for 

the USGCRP and assisting the Office of Science and Technology Policy (OSTP) of 

the Executive Office of the President in summarizing the scientific advances for 

government leaders. 

4. Following my tenure as Executive Director of the Office of the 

USGCRP, I was appointed Executive Director of the National Assessment 

Coordination Office, and served from 1997 through 2001 in this role. I led a small 

staff charged with facilitating the U.S. National Assessment of the Potential 

Consequences of Climate Variability and Change (U.S. National Assessment), 

which was carried out under the auspices of the USGCRP. This responsibility 

included helping to design and support the overall assessment activity, ensuring the 

 

1

 The term “global change” encompasses research relating to climate variability and change, depletion of 

stratospheric ozone and atmospheric chemistry, changes in land cover such as deforestation and desertification, and 

associated impacts such as changes in water, resources ecosystems and land cover, etc. 

Case: 10-1092 Document: 1274850 Filed: 11/01/2010 Page: 17
3

high quality of the scientific aspects of the assessment effort, and otherwise 

facilitating the assessment effort effectively. 

5. The U. S. National Assessment was carried out at the direction of the 

Director of the Office of Science and Technology Policy in his role as Executive 

Secretary to the National Science and Technology Council, which is chaired by the 

President and the members of which are the cabinet secretaries. The National 

Assessment brought together the efforts of 20 university-based regional teams, 5 

joint university-government scientific teams focused on particular sectors of the 

economy and natural resources, and a federal advisory committee composed of 12 

leading scientists and experts. In addition to participating in and reviewing many of 

the regional and sectoral activities and reports, I served as an additional lead 

author and generally contributed to the preparation of the national level reports 

entitled Climate Change Impacts on the United States: The Potential Consequences 

of Climate Variability and Change, which were published in 2000 and 2001.2 In my 

role as Executive Director of the National Assessment Coordination Office, I also 

prepared Chapter 6 of the U.S. government’s Climate Action Report 2002.3 This 

report was the U.S. government’s quadrennial national communication under the 

United Nations Framework Convention on Climate Change (UNFCCC); Chapter 6, 

on impacts and adaptation, incorporated the findings of the National Assessment. 

 

2

 U.S. Global Change Research Program, Climate Change Impacts on the United States: The Potential 

Consequences of Climate Variability and Change: Overview Report (2000) and Foundation Report (2001). 

Available from Cambridge University Press. 

3

 U.S. Dept. of State, U.S. Climate Action Report 2002 (U.S. Government Printing Office 2002). 

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6. I have served in various capacities in the preparation of the First, 

Second, Third, and Fourth Assessments of the Intergovernmental Panel on Climate 

Change (IPCC), which is the international organization responsible for preparing 

authoritative assessments of the science of climate change, impacts, adaptation, and 

mitigation in support of the UNFCCC. For the IPCC’s First Assessment Report, 

which was completed in 1990, I was a contributor to two chapters in the Working 

Group I report: Chapter 5 on “Equilibrium Climate Change—and its Implications 

for the Future” and Chapter 8 on “Detection of the Greenhouse Effect in the 

Observations.” For the Second Assessment, which was completed in 1995, I was a 

contributor to Chapter 8 of Working Group I, “Detection of Climate Change and 

Attribution of Causes,” and a lead author of Chapter 25 of Working Group II, 

“Mitigation: Cross-Sectoral and Other Issues.” For the Third Assessment that was 

completed in 2001, I was a contributing author to Chapter 12 of Working Group I, 

“Detection of Climate Change and Attribution of Causes.” For the Fourth 

Assessment, which was completed in 2007, I served as review editor for Chapter 14 

of the Working Group II report, which summarized past, ongoing, and expected 

future impacts of climate change on North America. For all of the assessments, I 

was also a reviewer of various chapters, and as part of my responsibility with the 

Office of the U.S. Global Change Research Program, I served as scientific 

coordinator for the official reviews of the U.S. government for both the Working 

Group I and II contributions for the Second and Third IPCC Assessment Reports. I 

also served as scientific advisor to the U.S. delegation at the plenary meetings of 

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Working Group I for the Second and Third Assessments, contributing to the 

preparation of the Summary for Policymakers of each assessment. 

7. Since retiring from the Lawrence Livermore National Laboratory in 

September 2002 upon completing my assignment with the Office of the USGCRP, I 

have continued to actively assess the science of climate change and its consequent 

impacts. I am currently serving as Chief Scientist for Climate Change Programs 

with the Climate Institute in Washington D.C., which is the oldest nongovernmental organization focused on understanding and helping to address the 

climate change issue. I also served on the 13-member Assessment Integration Team 

of the 8-nation Arctic Climate Impacts Assessment (ACIA), which completed its 

assessment4

 in 2004 describing how climate change and enhanced ultraviolet 

radiation are now affecting and are likely in the future to affect the Arctic region, 

and how these changes are likely to affect and impact the rest of the world. In 

addition, from 2004 to 2007 I was a member of the Scientific Expert Group (SEG) on 

Climate Change and Sustainable Development, organized by Sigma Xi, The 

Scientific Research Society and the UN Foundation to prepare a report5 for the UN 

Commission on Sustainable Development indicating the types of actions needed to 

simultaneously address the issues of climate change and sustainability. 

 

4

 Arctic Climate Impact Assessment (ACIA), Impacts of a Warming Arctic: Arctic Climate Impact Assessment 

(Synthesis Report), Cambridge University Press, 2004; and Impacts of a Warming Arctic: Arctic Climate Impact 

Assessment (Technical Report), Cambridge University Press, 2005. 

5 Scientific Expert Group on Climate Change (SEG), 2007: Confronting Climate Change: Avoiding the 

Unmanageable and Managing the Unavoidable, Rosina M. Bierbaum, John P. Holdren, Michael C. MacCracken, 

Richard H. Moss, and Peter H. Raven (eds.), Report prepared for the United Nations Commission on Sustainable 

Development by Sigma Xi, Research Triangle Park, NC, and the United Nations Foundation, Washington, DC, 144 

pp. 

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8. In 2003 I was elected to a four-year term as President of the 

International Association of Meteorology and Atmospheric Sciences, which is an 

international scientific organization whose sponsoring members are the national 

academies of science of the leading nations of the world; as a result of my position, I 

also serve on the executive committee of the Scientific Committee on Oceanic 

Research, which oversees the scientific aspects of international ocean research 

programs. 

9. As a result of efforts undertaken in my various positions and 

responsibilities, I am the co-author/co-editor of ten books/major reports, roughly 50 

peer-reviewed journal articles and book chapters, and hundreds of other reports and 

notes. 

Summary of Opinions

10. The following findings and supporting information are offered as my 

expert scientific opinion, based on my education, qualifications, experience, and 

knowledge of the relevant scientific literature and national and international 

assessment processes. These findings, in my expert opinion, also reflect the strong 

consensus of opinion among qualified scientific experts involved in climate change 

research in the U.S. and around the world. 

11. I have reviewed (a) EPA’s Endangerment and Cause or Contribute 

Finding for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 Fed. 

Reg. 66,496 (Dec. 15, 2009), (b) EPA’s Denial of the Petitions to Reconsider this 

finding, 75 Fed. Reg. 49,556 (Aug. 13, 2010), (c) associated materials supporting 

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7

these findings, including much of EPA’s response to comments and response to 

petitions documents and the technical support document for the Endangerment 

Finding, and (d) the motions of the Coalition for Responsible Regulation and the 

State of Texas requesting that these and other greenhouse gas rules be stayed. 

12. Based upon my review, this declaration focuses on three points: 

A. The Sound Procedural Basis of EPA’s Endangerment Process: EPA 

correctly relied upon the most authoritative assessments as the sources 

for scientific information in developing, describing, and defending its 

Endangerment Finding;

B. The Sound Scientific Content of EPA’s Endangerment Finding:

The Endangerment Finding is based on scientific information and findings 

that are credible and current, and that have been widely accepted in the 

scientific community through many assessment cycles; research reported 

since completion of the most recent assessments on which EPA relied has 

further strengthened the basis of EPA’s findings;

C. The Harm and Costs of Delaying EPA’s Endangerment Finding:

Delaying the ability of EPA to move forward with its Endangerment 

Finding would increase the damage from climate change impacts that are 

already occurring, increase the risk and imminence of projected impacts, 

and make controlling climate change more difficult.

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The Sound Procedural Basis of EPA’s Endangerment Process

13. The Endangerment Finding is grounded on an extensive, and sound, 

scientific record. EPA gathered evidence from a wide range of sources, including a 

series of highly credible scientific assessment reports produced by the 

Intergovernmental Panel on Climate Change (IPCC), the USGCRP, and the 

National Research Council (NRC). The careful consideration EPA gave to the 

evidence it gathered is consistent with high scientific standards. See 74 Fed. Reg. 

at 66,510-12 (describing EPA’s process). 

14. EPA used data from the IPCC as it weighed its Endangerment 

Finding. The IPCC is a highly credible scientific body. EPA correctly concluded 

that its review and analysis processes are transparent, unbiased, and 

comprehensive. See 74 Fed. Reg. at 66,5111. 

15. EPA’s description of the IPCC as an international body preparing 

comprehensive assessments of climate change, see 75 Fed. Reg. at 49,580, is correct. 

The US joined with other nations to organize the IPCC in 1989 in order to consider, 

assemble, summarize, and assess the breadth and depth of climate change research 

being conducted around the world. The IPCC has now issued four comprehensive 

scientific assessments, the latest of which was issued in 2007. Each of these 

assessments, as EPA explains in the Endangerment Finding’s Technical Support 

Document (“TSD”) at 4-5, has gone through an extensive, multi-stage, international 

review process that has led to each of the IPCC assessments being accepted 

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9

unanimously by the international community of nations participating (this last 

assessment involving 194 nations). 

16. EPA was an active participant in the IPCC assessment process. See 74 

Fed. Reg. 66,511. IPCC’s draft assessments are extensively reviewed and revised 

and refined through a multi-stage process in which, for the expert stage, a number 

of EPA’s expert scientists review the draft chapters for technical accuracy, and in 

the final two stages, EPA as an agency participates actively in the US government 

review and ultimate approval of the assessment. Although the IPCC’s review 

process is highly robust, a few regrettable, but minor, errors have appeared in the 

thousands of pages of its very lengthy Fourth Assessment Report (IPCC, 2007). 

These errors were reviewed and acknowledged, and they do not negate or alter 

IPCC’s conclusions. 

17. EPA has clearly examined this issue, see 75 Fed. Reg. at 49,576-78 and 

EPA’s Response to Petition documents, and, in agreement with all authoritative 

bodies that have examined this question, correctly found that ”[t]he small number 

of errors and alleged errors in the IPCC AR4 report are not materially relevant for 

EPA’s Endangerment Finding.” 75 Fed. Reg. at 49.576. For example, the error in 

the timing of the loss of snow cover in the Himalayas is not relevant to impacts in 

the US, and in any case was a misstatement in the chapter that was not elevated to 

the IPCC Technical Summary or Summary for Policymakers that present the 

internationally agreed to consequences of climate change. See 75 Fed. Reg. at 

49,577 (noting that the error had been corrected, that EPA did not rely upon it, and 

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10

that widespread glacial melting in the Himalaya is continuing and threatens water 

availability “where more than one-sixth of the world population currently lives”).. 

18. With respect to the overall credibility of the IPCC assessment, several 

independent reviews, including EPA’s have correctly concluded that the IPCC is 

impartial and unbiased. I discuss these reviews in more detail in ¶ 34, below. The 

recent review of the InterAcademy Council, Climate Change Assessments, Review of 

the Processes and Procedures of the IPCC (“IAC Report”), similarly concluded that 

“[t]he IPCC assessment process has been successful overall and served society well.” 

IAC Report at 52. The IAC Report recommended a number of procedural changes 

to further strengthen their process. Responding to IAC’s request for criticisms and 

constructive ideas for improving the IPCC process, I offered suggestions for 

strengthening the officially documented process that a number of us who had been 

involved had actually followed during IPCC’s Fourth Assessment to ensure its 

credibility; one of the major ones, regarding how comments should be prioritized by 

the review editors, was highlighted in the IAC report. Being focused on procedures 

and processes, the IAC report did not call the IPCC’s core scientific conclusions, or 

their basis, into question. Indeed, the IAC recognized that the IPCC has provided 

the most credible and authoritative assessments available. The IPCC’s success in 

conducting a process that has achieved unanimous international approval of its four 

assessment reports on the potentially very contentious issue of climate change, its 

impacts, and options for addressing the issue was recognized with a Nobel Peace 

Prize in 2007. 

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11

19. The USGCRP and NRC reports EPA relied upon are also scientifically 

rigorous. Within the US, independent scientific assessments covering variously 

narrow to broad aspects of the issue have also been undertaken by the NRC, and by 

the USGCRP. The USGCRP coordinates the cooperative, interagency efforts of the 

US government’s research agencies, including EPA, and by individual agencies, 

including EPA. As EPA correctly states, these scientific organizations have “their 

own, separate report development procedures.” 75 Fed. Reg. at 49,579. 

20. The USGCRP and NRC assessments are not simply based on IPCC 

reports. Indeed, as described in EPA’s reconsideration decision, 75 Fed. Reg. at 

66,651, while the IPCC assessments do provide a global-scale perspective of climate 

change, their climate model summarizations are based on modeling results input to 

IPCC by, among others, US climate modeling groups, and their impact results are 

based primarily on assessments carried out as part of USGCRP activities in which 

EPA has been a very active participant, and indeed has been the lead agency for 

studies on human health and welfare, ecosystems and resources, and sea level. See

75 Fed. Reg. 66,511 n.12. As EPA makes clear, it “has been a very active part of the 

U. S. government climate change research enterprise, and has taken an active part 

in the review, writing, and approval of these assessments.” 75 Fed. Reg. at 66,511. 

21. The scientific community participates in all of these assessments to 

provide synthesized, evaluated, and thoroughly peer-reviewed information to 

governments for use in their policy processes. As such, the scientific community is 

strongly supportive of EPA’s assessment process, in which, for a number of sound 

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12

reasons, see 75 Fed. Reg. at 66,510-12, “the Administrator is relying heavily on the 

major assessments of the USGCRP, IPCC, and NRC as the primary scientific and 

technical basis of her endangerment decision,” id. at 66,510, determining that these 

assessments “represent the best reference materials for determining the general 

state of knowledge....” The EPA’s assessment of the authoritativeness and 

credibility of these materials is strongly supported by the national and international 

scientific communities. 

22. The IPCC, GCRP and NRC reports, in my view, provide the 

Administrator with a sound basis for her “to exercise judgment by weighing risks, 

assessing potential harms and making reasonable projections of future trends and 

possibilities,” 74 Fed. Reg. at 66,505, in order to “protect public health and welfare.” 

The IPCC and other assessments have all developed approaches to accurately and 

transparently communicate the relative likelihood of their various findings, and 

their confidence in these conclusions. These methods are intended to allow those 

using the assessments to readily understand how assessment results relate to risk 

thresholds in their own particular policy and legal frameworks, thus providing just 

the type of policy-relevant, but not policy prescriptive, information required by the 

EPA Administrator to make correct and proper use of the scientific information, as 

has been done. 

23. EPA’s TSD, while drawing upon the scientifically authoritative and 

thoroughly reviewed major assessments discussed above, was unique and 

independent through, for example, its detailed coverage and analysis of issues of 

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13

special interest for the Endangerment Finding. Its synthesis of data from many 

sources reflects independent scientific judgments. EPA’s TSD also contains original 

analysis that covers issues that are not covered in nearly as integrated a manner in 

the major assessments; for example, the EPA TSD synthesized results from around 

the world to estimate how climate changes elsewhere would be likely to affect the 

US, finding that “human-induced climate change has the potential to aggravate 

natural resource, trade, and humanitarian issues in other world regions, which in 

turn may contribute to the endangerment of public welfare in the United States...” 

See, e.g., 74 Fed. Reg. at 66,535-36. 

The Sound Scientific Content of EPA’s Endangerment Finding

24. Based on my knowledge and experience the analysis of climate change 

science presented by EPA in the Endangerment Finding, TSD, and in its 

Reconsideration decision, and their response documents, is credible and current 

with respect to all of the key findings that underpin the Endangerment Finding. I 

have reviewed the portions of the motions in this case contending EPA made serious 

scientific errors, but the points they raise are minor at best and do not call EPA’s 

conclusions into doubt. Scientific research on the relationship of climate change 

and human activities has built up a strong structure of knowledge from solid, 

intensely peer-reviewed findings. While some details are being refined by ongoing 

studies, the foundation stones upon which the EPA Administrator based her 

Endangerment Finding, see e.g., 74 Fed. Reg. 66,497-98, 75 Fed. Reg. at 49,563-68, 

have been well established for decades. 

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14

25. As EPA’s reconsideration denial clearly explains, the set of six gases 

that are the basis for the Endangerment Finding all contribute to climate change by 

increasing the trapping of infrared (heat) radiation, thus exerting a warming 

influence. While it may prove appropriate to distinguish them when developing 

policy for controlling their emissions, these gases act collectively in the atmosphere, 

as is explained clearly in the TSD, at 23-26, the Endangerment Finding, 74 Fed. 

Reg. at 66,517-20, and in EPA’s reconsideration denial, 75 Fed. Reg. at 49,564-68. 

This warming is causing major disruption to Earth’s climate system. 

26. The scientific community has for decades been carefully examining the 

potential role of changes in solar radiation and other natural influences in changing 

the climate, and the climate models used to evaluate the effects of human activities 

do also take these natural influences into account. The detection-attribution studies 

described in the Technical Support Document, at 47-54, are designed to distinguish 

these influences by creating a temporal and geographic “fingerprint” of how the 

climate system would respond to each influence or “forcing” – from the sun, clouds, 

and so on. These studies then compare the unique aspects of the fingerprints for 

each forcing with observed data to establish the relative responsibility of each 

potential cause of the change in climate. For increased solar radiation to be the 

primary cause of the warming, for example, both the lower and upper atmosphere 

would be expected to be warming because solar radiation warms the entire 

atmosphere, but that pattern is not occurring. EPA’s Response to Comments (RTC) 

explains this point cogently. RTC Vol. 3, 21-22. 

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15

27. On the contrary, observations make very clear that, while the surface 

and troposphere are warming, the stratosphere is cooling, which is just what would 

be expected from increasing concentrations of CO2 and other greenhouse gases, as 

those gases cause the stratosphere to lose energy through increased emission of 

heat radiation to space and toward the surface, even as they trap heat closer to the 

surface to cause warming. EPA again explains this point clearly, correctly writing 

that this result is “predicted by models and consistent with a [greenhouse gas] 

forcing.” See id. at 21. 

28. Moreover, observations indicate that the amount of solar radiation was 

actually decreasing during the latter 20th century when the surface temperature 

started growing more rapidly, as EPA notes. See id. This is additional evidence that 

changes in solar radiation are not a primary cause of the warming, especially since 

1970. Similar analyses have ruled out other possible natural causes of the warming, 

leaving CO2 and other greenhouse gases as the primary cause, in agreement with 

analytical and climate modeling studies. 

29. Global warming is continuing, with 2010 likely to be among the three 

warmest years since the start of instrumental records in the mid-19th century and 

with the most recent decade being warmer than the previous one and the warmest 

in the instrumental record, as addressed by EPA in its Response to Petitions (RTP), 

Volume 1, section 1.2.2. The ‘urban myth’ that the climate is no longer warming was 

created by choosing an inappropriate time interval for creating a trend line. In 

essence, this error is similar to supposing an outstanding student is heading for 

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16

failing grades when she makes a B+ on a single test, even though she received an 

A+ on her last exam, and aced every other test she had taken. Small fluctuations do 

not undermine the overwhelming trend. . 

30. Thus, I find the statement that “elevated concentrations of greenhouse 

gases in the atmosphere may reasonably be anticipated to endanger the public 

health and to endanger the public welfare of current and future generations,” 74 

Fed. Reg. at 66,516, to be very soundly supported and consistent with the findings 

of the national and international scientific communities. 

31. Similarly, based on my experience, including having been on the expert 

review panel for the USGCRP’s assessment of climate change impacts on the United 

States that forms the basis for many of EPA’s findings, I find EPA’s summary of 

climate change’s many impacts to be generally comprehensive and credible. Indeed, 

my only reservation is that, if anything, an even greater sense of urgency might 

have been indicated based on the amplified changes in polar regions that are 

affecting Alaska and other US interests in the Arctic.6 

32. In addition, even a cursory review of the findings in the succession of 

four IPCC assessments since 1990, as EPA discusses in its TSD, see TSD at 47, 

clearly indicates that “IPCC statements on the linkage between [greenhouse gases] 

and temperature have strengthened since the organization’s early assessments” as 

increasing global warming and ever-growing scientific scrutiny of global 

environmental changes make clear that the situation is becoming more and more 

 

6 See Arctic Climate Impact Assessment (ACIA), 2004: Impacts of a Warming Arctic: Arctic 

Climate Impact Assessment, Cambridge University Press, 140 pp.; National Oceanic and 

Atmospheric Agency (NOAA), 2010, Arctic Report Card: Update for 2010, 101 pp. 

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serious. There is every indication that this trend will continue with further 

assessments. For example, as explained further below, emerging scientific results 

are indicating that the seriousness of ocean acidification, the accelerated loss of ice 

from the Greenland and Antarctic ice sheets, and projections of sea level rise are all 

likely to create even greater climatic and ecological disruption than indicated in 

IPCC’s Fourth Assessment Report and in EPA’s Endangerment Finding. Thus, 

EPA’s findings, though entirely scientifically sound, reflect a conservative, and 

cautious, interpretation of the data, analyses, and model simulations. 

33. The release of internal emails to and from scientists at the University 

of East Anglia UK relating to the construction of the past temperature record from 

observations and proxy records (the so-called “Climategate” situation) does not in 

any way weaken the basis for the Endangerment Finding. In an analysis with 

which I am in full accord, EPA documented and explained, 75 Fed. Reg. at 49,578-

79 and RTP Vol. 2, that there is no basis for the assertion that “the scientific 

underpinnings of the Endangerment Finding are flawed” and every reason for 

concluding that “the Administrator appropriately interpreted the science to make 

the Endangerment Finding.” 75 Fed. Reg. at 49,570. 

34. Every other body to have examined these emails has also concluded 

that they do not indicate any flaws or bias in the IPCC’s scientific findings. These 

reviews, include an international science review panel set up by the University of 

East Anglia and chaired by Lord Oxburgh, a commission chaired by Sir Muir 

Russell, a review by Pennsylvania State University, and a report by the Science and 

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18

Technology Committee of the British House of Commons. Although the reports 

recommended improving the openness of the University of East Anglia’s databases 

and various other procedural improvements, they uniformly concluded that there 

was absolutely no wrong-doing and that the scientific conclusions of the researchers 

were sound. Indeed, Lord Oxburgh’s report characterized East Anglia’s work as a 

“public service of great value.” 

35. There is also no doubt that the oceans are rising in response to climate 

change-induced thermal expansion and loss of ice from mountain glaciers and the 

Greenland and West Antarctic ice sheets, as EPA correctly concludes. See 74 Fed. 

Reg. at 66,518. The geologic record clearly shows that oceans rise when ice sheets 

retreat and the ice sheets are now receding at an accelerating rate. Residual 

uncertainties do remain in determining how rapidly the oceans rose during past 

periods of warming. This uncertainty, however, is one-sided, in that sea level is 

rising more rapidly than existing models calculate, not less. As EPA explains in its 

Response to Comments, “if anything, future sea level rise is likely to be near or 

above the high end of the IPCC projections.” RTC Vol. 4 at 60-61. 

36. The InterAcademy Council’s review considered how the IPCC 

discussed its sea level rise results. It noted that IPCC Working Group I, which 

described the physical basis of climate change, generally drew its conclusions based 

on the results of careful statistical analyses that required a very high probability 

before it adopted a given prediction (roughly equivalent to the legal standard of 

beyond reasonable doubt). However, in conveying the likely risk and impacts to 

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those living in coastal regions, which is the responsibility of IPCC Working Group 

II, the IPCC came to its conclusions based on relative risk and the most likely 

outcome (roughly equivalent to the legal standard of preponderance of the 

evidence), as is typically used by the public and policy-makers. The InterAcademy 

Council recommended that the IPCC should convey the level of understanding and 

uncertainties more clearly in communicating probability. The IAC did not, 

however, suggest that the IPCC’s results were in error. 

37. In EPA’s analysis for the Endangerment Finding, it followed the 

scientifically cautious approach of IPCC Working Group 1, calculating the potential 

rise based on contributing factors that are entirely well-understood. As a result, 

EPA gave only limited consideration to the less well-understood influence of 

increasing movement of the Greenland and Antarctic ice sheets towards the sea 

(movement that more recent evidence appears to indicate is underway). EPA’s 

conservative approach means that its sea level rise conclusions are very likely to be 

underestimates, and therefore quite cautiously stated. 

The Harm and Costs of Delaying EPA’s Endangerment Finding

38. Preventing EPA’s Endangerment Finding, and the greenhouse gas 

controls it enables, from going into effect would further exacerbate the increasingly 

serious climatic disruption that is already adversely impacting citizens of the 

United States and the world. 

39. As EPA explains, emissions of the six greenhouse gases cause 

increases in their atmospheric concentrations that will, in most cases, persist for 

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20

the centuries due to the slow pace of long-term removal processes -- and even the 

perturbation for methane will last decades. See TSD at 16-19. Thus, each 

increment of emissions has a cumulative effect on the atmospheric composition, 

creating a warming influence on the climate that will persist for centuries and 

more. This is a very different situation than for traditional short-lived air 

pollutants, which persist for only days to a few weeks in the atmosphere and so are 

rapidly removed once emissions stop. Thus, the additional reduction of vehicle 

emissions and stationary source emissions that EPA is seeking will exert a benefit 

over many centuries. 

40. Global warming is already causing serious harms, including very 

serious disruptions in the Arctic and an accelerating rate of loss of the Greenland 

and Antarctic ice sheets. Thus, any additional increment of emissions will worsen 

impacts that policymakers could appropriately already determine are unacceptable. 

Thus, any delay in moving forward with the Endangerment Finding and 

greenhouse gas controls would cause continuing and increasing harm. 

41. Further, to the extent that many leaders have suggested we must 

keep global temperature increases less than 2oC above preindustrial conditions to 

avoid extremely dangerous levels of climate change, or 1.2oC above present 

temperatures, each additional day of emissions makes it more difficult to meet this 

goal. Indeed, we are already committed to substantial further temperature 

increases by our past and current emissions. Continuing higher than minimum 

feasible emissions will reduce the amount allowable for future generations and 

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21

other nations. The result of this will be that the economic and political cost of 

staying below this bright line will increase greatly over time because emissions 

cutbacks will need to be done more rapidly, further burdening future generations 

that will also be experiencing more serious impacts than we are at present. 

42. As EPA properly finds, a holistic assessment of the risks associated 

with climate change demonstrates that its harms are widespread and pressing. See

74 Fed. Reg. at 66,534-36. Given the geographic extent and diversity of the United 

States extending from Alaska to Puerto Rico, and Maine to the Trust Territories of 

the Pacific, the many different types of very disruptive impacts, and the long time 

scales of the greenhouse gas impacts, EPA could readily determine that the public is 

already adversely exposed to the impacts of climate change. 

43. In such situations involving other air pollutants, EPA has protected 

the most vulnerable populations. Were this to be applied to the climate change 

situation, the very serious and amplified climate changes being experienced in 

Alaska, which is already starting to necessitate the relocation of indigenous 

villages, would seem to make clear that climate change harms are already above 

any reasonable acceptable threshold and delay would clearly be a cause of harm. 

The National Oceanic and Atmospheric Association (NOAA), for instance, has 

documented a dramatic melting back and thinning of Arctic sea ice, record heat, 

and major snowpack melting around the region. These changes seriously threaten 

the livelihoods and life styles of people across the region. 

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22

44. Delay would also allow the ongoing intensification of climate extremes, 

as EPA discusses. See TSD at 73-75, 75 Fed. Reg. at 66,525. The environment and 

society developed and evolved in the context of past climatic conditions, and we are 

used to both that climate’s average behavior and its level of variations and extremes 

(e.g., much infrastructure is designed to withstand the historic one-in-a-hundred 

year storm). Observations and model simulations indicate that global warming has 

been leading to more frequent occurrence of heat waves and extreme rainfall and to 

greater evaporation, faster loss of soil moisture, and earlier onset of drought. As an 

example, severe storms that, under historic conditions, would have occurred on 

average only once in a hundred years, are projected by the end of the century to 

occur as often as every few decades. Such frequent devastating storms would likely 

be psychologically and economically overwhelming for those experiencing such 

conditions. In general, because weather variations tend to occur in a bell-shaped 

probability distribution, even a small shift in this distribution can cause a 

proportionately larger change in the intensity and likelihood of occurrence of 

extreme events, as EPA recognizes. See TSD at 75-78. Given this observationally 

supported finding, any delay in implementing emissions reductions will thus 

increase the risk and danger of more and more severe impacts. 

45. Delay would also increase the risk of triggering nonlinear and possibly 

globally abrupt changes in climate, as EPA explains. See id. The Greenland ice 

sheet, for instance, has persisted through the last 10,000 years of the present 

interglacial, yet it is now starting to rapidly lose mass, accelerating the rate of 

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23

global sea level rise. Apparently a threshold temperature has, or is near to being, 

passed that could well lead to significant loss of sea ice and sea level rise of several 

meters over several centuries. Permafrost is starting to thaw over significant areas 

of the land areas around the Arctic, with the potential for release of significant 

amounts of methane and/or CO2. Such releases would trigger further warming and 

then further thawing—thus exciting one of the natural amplifying feedback 

mechanisms that has until recently lain dormant. While there are significant 

uncertainties concerning our proximity to thresholds for these and other processes, 

that each transition has apparently started to occur with a global warming of just 

0.8oC is very worrisome and is another reason that every delay in taking action to 

limit emissions will increase the risk of very severe outcomes. 

Dated: October 27, 2010 

 Michael C. MacCracken 

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Exhibit 33

Case: 10-1092 Document: 1274850 Filed: 11/01/2010 Page: 39
DECLARATION OF THAD MILLER

EXECUTIVE VICE PRESIDENT, CHIEF LEGAL OFFICER AND SECRE1"ARY OIT

CALPINE CORPORATION

1. I, Thad Miller, the Executive Vice President, Chief Legal Officer and Secretary of

Calpine Corporation, make this Declaration in support ofthe respo'nse filed by the

Environmental Defense Fund, the Natural Resources Defense Council, and other environmental

intervenors in opposition to motions filed by various parties to stay various actions ofthe u.S.

Environmental Protection Agency (EPA) relating to the permitting of greenhouse gas (GHG)

emissions from stationary sources under the Clean Air Act. The purpose ofthis Declaration is to

express my view that, while there will be costs associated with any program for regulating GHGs

from stationary sources, the regulations can be designed to manage those costs. A stay of EPA's

actions concerning GHG emissions for stationary sources would exacerbate and prolong

uncertainty in the electric sector, not reduce it. This is true ofthe requested stay of EPA's

Tailoring Rule, whi~h identifies which sources would be subject to the PSD permitting

requirements for GHGs and which would not, and thus provides regulatory relief for many

sources, including at Calpine Corporation (Calpine), while also establishing the process to

develop the ground rules that will govern the PSD program's application to the large GHG

sources that will be covered by PSD.

2. Calpine is a member ofthe Clean Energy Group's Clean Air Policy Initiative. Michael J.

Bradley submitted a declaration on behalf of a subset of members ofthe Clean Energy Group's

Clean Air Policy Initiative, including Calpine, and the statements included in this declaration are

in addition to those submitted by Michael J. Bradley.

Qualifications and Background

3. I joined Calpine in August 2008 as Executive Vice President, Chief Legal Otlicer and

Secretary. I have almost 30 years oflegal experience, and the last 20 years ofwl1ich l1ave been

in the energy industry. Prior to joining Calpine, I served as Executive Vice President and Chief

Legal Officer ofTexas Genco Inc. until 2006. From 2002 to 2004, I was a consultant to Texas

Pacific Group, a private equity firm. From 1998 to 2002, I served as Executive Vice President

and Chief Legal Officer of Orion Power, an independent power producer. From 1994 to 1998, I

was Vice President of Goldman Sachs & Co., where I focused on wholesale electric and other

1

Case: 10-1092 Document: 1274850 Filed: 11/01/2010 Page: 40
energy commodity trading. Before joining Goldman Sachs & Co., I was a partner in a New York

law firm. I earned my Bachelor of Science degree from the United States Merchant Marine

Academy and my Juris Doctor from St. John's School of Law. In addition, I was an officer in

the United States Coast Guard.

Calpine Corporation

4. Calpine is a U.S. company that owns and operates power generation facilities al1d sells

electricity to wholesale and industrial customers in the United States and Canada. Founded in

1984, Calpine operates 93 power plants that are capable of delivering nearly 29,000 megawatts

of clean, reliable electricity to customers and communities. Over the last decade, Calpine

completed one ofthe largest development and construction programs in recent United States

history, investing billions of dollars to construct highly efficient, low-emitting power facilities.

Today, the company operates one ofthe cleanest, most efficient fleets of power generation in the

United States.

The Implications of the Application of the PSD Program to Calpine's Sources of

Greenhouse Gases

5. Under the Tailoring Rule, sources that must undergo PSD permitting anyway, based on

their emissions of other pollutants, and would increase emissions by 75,000 tons per year of

C02e or more, will become subject to PSD for their GHG emissions beginning January 2, 2011.

A larger category of new and modified sources of GHG emissions - new sources with the

potential to emit 100,000 tpy, and source modifications that will result in a net emissions

increase of75,000 tons per year ofC02e - will be subjec~ to PSD permitting beginning July 1,

2011. See, e.g., 75 Fed. Reg. 31523.

6. While the inclusion of GHGs will add new elements to the permitting process for new

and modified facilities, Calpine is committed to working with EPA and states to ensure that

consideration of GHGs can proceed without disruption ofthe permitting process. For example,

Calpine's Vice President, Environmental Health & Safety, Don Neal, participated on the Climate

Change Workgroup for the Clean Air Act Advisory Committee. Through the Clean Energy

Group, Calpine has worked to discuss with EPA how the Tailoring Rule could be implemented

most effectively for the electric sector.

7. Calpine Corporation owns facilitates that we anticipate are likely to trigger the Tailoril1g

Rule thresholds and are, therefore, likely to be subject to PSD starting in January 2,2011 and/or

2

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July 1,2011. We also own other facilities that would be excluded from permitting requiren1ents

as a result ofthe Tailoring Rule. Calpine anticipates that subjecting new facilities to major NSR

under the Tailoring Rule will require applicants to demonstrate that their productio11 process is

efficient. Calpine continues to explore opportunities to expand its generation portfolio via new

development projects or expansions of existing projects. The prospect of GHG regulation under

the Clean Air Act has had no impact on these activities as we anticipate that efficient combustion

will be considered BACT for GHGs in the power sector given the absence of a demonstrated

control technology. In the case of GHG regulation, the reduction of emissions due to increased

efficiency is consistent with the desire in business to consume as few raw materials as possible to

manufacture a product.

8. Calpine supported EPA raising the thresholds for the Tailoring Rule from the proposed

25,000 tons per year to 75,000 and 100,000 tons per year because of concerns that standard

efficiency upgrades would consistently trigger PSD permitting thresholds for GI-IGs. For

example, Calpine is currently undertaking efficiency upgrades at a number ofturbines

throughout our fleet. As a result ofthe upgrades, which include improved compressor seals,

blades, and turbine section sealing, the turbines will have an increased exhaust flow rate. By

increasing the exhaust flow rate, the turbines will be able to process fuel more efficiently, which

increases total capacity. While the increases in criteria pollutants would be minor for PSD

purposes, the C02e emissions would likely increase by more than 25,000 tpy per unit. However,

by raising the threshold to 75,000 tons per year of C02e, efficiency upgrades such as these are

not expected to trigger PSD permitting starting in July 2011.

9. Prior to the date that EPA finalized its regulation requiring stationary source GI-IG

emissions to become subject to PSD permitting requirements, Calpine Corporation received a

final federal PSD permit from the Bay Area Air Quality Management District (BAAQMD), the

federally-delegated permitting authority, for the Russell City Energy Center (RCEC).l RCEC is

a 600 MW combined cycle natural gas turbine (CCGT) facility, which will be located in the City

ofHayward in Alameda County, California. During the application process for the federal PSD

permit under the Clean Air Act, RCEC agreed to undertake a voluntary Best Available Control

1 While ten citizens and/or interest groups have appealed RCEC's PSD permit to the Environmental Appeals Board

(EAB), and that appeal remains pending, the appeal was largely filed on grounds unrelated to the plant's BAC1~

analysis. (EAB Appeal Numbers Appeal Numbers PSD 10-01; PSD 10-02; PSD 10-03; PSD 10-04; PSD 10-05;

PSD 10-06; PSD 10-07)

3

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Technology (BACT) review for GHG emissions in addition to the federally-mandated criteria

pollutants. BAAQMD's GHG BACT analysis focused on the following GHG - carbon dioxide

(C02), methane (CH4), and nitrous oxide (N20) from the combustion of natural gas in the

turbines and the heat recovery steam generators (duct burners), fugitive sulfur hexafluoride (SF6)

from circuit breakers, and the potential emissions of CO2, CH4, and N20 from the fire pump

diesel engine. Calpine anticipates that the RCEC's BACT limit would comply with future (JHG

permitting requirements under the Tailoring Rule. The Russell City facility will be desig11ed to

operate in a way that produces 50 percent fewer GHG emissions than even the most advanced

coal-fired plants and 25 percent fewer GHG emissions than the standard set by the California

Public Utilities Commission.

A Stay ofthe Tailoring Rule Would Create New Uncertainty for the Electric Sector

10. EPA's decisions in the PSD Interpretive Memorandum and in the Tailoring Rule will

help Calpine understand what is required prior to Congressional action on climate legislation,

and will make clear which of our sources are required to comply with PSD for GI-IG emissions

and which will not, as well as when the obligations for covered sources take effect. Ifthe Court

stays the EPA actions that parties have sought to stay in this case, including the 'Tailoring Rule,

Calpine could experience undue delays in permit processing as state agencies, unsure about the

prospect for GHG regulation under the Act, await resolution ofthe court proceeding. More

importantly, regulatory uncertainty creates risks that could negatively affect the financing of new

generation projects that would reduce the overall GHG footprint ofthe electricity sector.

11. I declare under penalty of perjury under the laws ofthe United States of America that the

foregoing is true and correct. Executed in Houston, Texas on (!!)dCJ!Jer 2-7, 2.0 (0

Thad Miller

4

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Exhibit 34

Case: 10-1092 Document: 1274850 Filed: 11/01/2010 Page: 44
1 

DECLARATION OF DAVID SCHOENGOLD 

I, David Schoengold, hereby declare and state as follows: 

1. I am a senior consultant and co-founder of MSB Energy Associates, 

Inc. (MSB), a consulting firm located at 7505 Hubbard Avenue, Suite 200, 

Middleton, Wisconsin 53562. I provide planning and analytical services to public 

utility commissions, and others with an interest in public utility policy. I have 

been involved in the planning and regulation of the electric power generating 

sector for over thirty-five years, both at MSB since 1988, and at the Wisconsin 

Public Service Commission, where I worked for sixteen years. I have substantial 

experience in analyzing and forecasting the need for large-scale power plants and 

electricity systems, including nine years as the Director of the Systems Analysis 

Bureau of the Wisconsin Public Service Commission, where I was responsible for 

electricity forecasting, generation and transmission planning, demand-side 

analysis, system modeling, fuel cost analysis, natural gas planning and emissions 

reduction strategies. I also have extensive experience in energy-related 

environmental analysis, power systems economics and market analysis, and the 

regulations and institutions that govern the production and sale of electricity, 

including federal environmental regulations. My expertise includes a familiarity 

Case: 10-1092 Document: 1274850 Filed: 11/01/2010 Page: 45
2 

with the types and amounts of the greenhouse gases, including carbon dioxide 

(CO2), emitted when fossil fuels are combusted to generate electricity at various 

kinds of power plant configurations. 

2. My experience includes reviewing, analyzing, and preparing 

comments on many utility-related U.S. Environmental Protection Agency (EPA) 

rules and decisions. I am aware that U.S. EPA has issued a regulatory finding that 

anthropogenic emissions of six greenhouse gases (CO2, methane, nitrous oxide, 

hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride) collectively 

endanger public health and welfare. I am also aware that U.S. EPA has, in a 

separate rulemaking, determined to regulate GHG emissions from automobiles, 

and has issued such regulations. Additionally, I am aware of EPA’s efforts to 

regulate the largest stationary sources of GHGs. Specifically, I have reviewed 

background material on EPA’s rule phasing in the application of Clean Air Act 

permitting and control requirements first to the largest sources of CO2 and other 

greenhouse gases, known to me as the Tailoring Rule. 

3. I received a Bachelor of Science in Physics from Rutgers University 

and did graduate work in Physics at the University of Chicago. A copy of my 

(resume/curriculum vitae) is attached hereto as Attachment A. 

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3 

4. I submit this declaration in support of the efforts of various 

environmental organizations and states to oppose a stay of the Tailoring Rule, 

pending the outcome of this litigation. As set out in more detail below, if the rules 

are stayed, new large power plants and other large stationary sources permitted 

during the period of the stay will not require any controls on their CO2 emissions, 

which will amount to many millions of tons per year. Furthermore, because of the 

long-lived nature of CO2 emissions, a significant amount of each uncontrolled, or

incremental, ton of CO2 emitted during the period of the stay will persist for at

least 100 years in the earth’s atmosphere, with some fraction persisting longer. 

5. Because of my experience and background, I am aware that fossil-fuel 

fired power plants are among the largest industrial sources of CO2 emissions. 

According to the EPA’s most recent Inventory of U.S. Greenhouse Gas Emissions 

and Sinks: 1990-2008, these plants were responsible for over 62% of the CO2

emissions from stationary sources in 2008. 

6. Based on my review of the materials on the Tailoring Rule, I am 

aware that beginning on January 2, 2011, a new stationary source that emits at least 

75,000 tons per year of CO2 and other greenhouse gases (measured as CO2

equivalent, or CO2e), and that also would trigger permit requirements for any nongreenhouse gas pollutant, will need to undergo a control technology review and 

Case: 10-1092 Document: 1274850 Filed: 11/01/2010 Page: 47
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hold a permit containing a greenhouse gas emissions limit based on the Best 

Available Control Technology for that facility, before construction can begin. I am 

also aware that beginning on July 1, 2011, all new stationary sources that emit at 

least 100,000 tons per year of greenhouse gases (measured as CO2e) will be subject 

to these review and permit requirements, regardless whether they would otherwise 

trigger the need to hold a Clean Air Act permit prior to construction. In addition, 

existing sources that emit or have the potential to emit at least 100,000 tons per 

year of greenhouse gases (CO2e) and propose to make a modification that would 

increase greenhouse gas emissions by at least 75,000 tons per year (CO2e) will also 

be subject to these preconstruction review and permitting requirements. 

7. Because of my experience and background, I am aware of how much 

CO2 is released when various fossil fuels are combusted to generate electricity, by 

new generating units of various configurations, and without GHG controls. For 

example: 

a. A new, typical supercritical coal-fired generating unit of 500-1000 

megaWatts (MW) with uncontrolled CO2 emissions has the potential1 to release 

4.13 to 8.26 million short tons per year of CO2. 

 

1

 By “potential,” I am referring to the emissions that would result from a facility running at 100 

percent capacity. 

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b. A new, more efficient, ultrasupercritical coal-fired generating unit of 

the same size with uncontrolled CO2 emissions has the potential to release 3.9 to 

7.8 million tons per year of CO2. 

c. A new natural gas-fired combined cycle generating unit of the same 

size with uncontrolled CO2 emissions has the potential to release about 40% as 

much CO2, or 1.65 to 3.3 million tons per year of CO2 . 

8. Because of my background in physics, I understand that CO2 and 

other greenhouse gases, once emitted to the earth’s atmosphere, create a 

“greenhouse effect” -- greenhouse gases act to trap heat within the earth’s 

atmosphere so that it is not quickly released. The trapped heat is re-radiated down 

towards the earth’s surface, as well as in other directions. The result is higher earth 

surface temperatures than would be the case if the greenhouse gases were not 

present in such large amounts in the atmosphere. Furthermore, as stated above, I 

understand that once emitted to the atmosphere by any means, manmade or 

otherwise, a significant portion of each ton of emitted CO2 persists for 100 years. 

So, a significant amount of the CO2 emitted in 2010 will still be in the atmosphere, 

and causing greenhouse effects, in 2110. 

9. Based on my review of the background material on EPA’s rules 

governing permitting for the largest stationary sources, and my understanding of 

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6 

how much CO2 is produced by electricity generating plants of various 

configurations and sizes, I can say that a typical new generating unit of 500-1000 

MW in size, and proposed to burn either natural gas or coal to generate electricity, 

would generate enough CO2 emissions to require a preconstruction permit 

containing best available CO2 controls, under EPA’s Tailoring Rule. If that rule 

were stayed, such a generating unit could begin construction without any CO2

controls. 

10. Even if post combustion controls, or fuel switching to natural gas, are 

not considered as greenhouse gas control options for a new coal-fired generating 

unit, more efficient power generation could reduce CO2 emissions from such a 

generating unit by 5% or more. Such a minimal improvement would reduce CO2

emissions at a typical 500-1000 MW unit by 230,000 to 460,000 tons per year. 

Over the expected, potential 60 year life of a new generating unit, this would total 

13.8 to 27.6 million tons of CO2. 

I declare under penalty of perjury that the foregoing is true and correct. 

 

 ______________________________ 

 David Schoengold 

Executed on October 29, 2010. 

Case: 10-1092 Document: 1274850 Filed: 11/01/2010 Page: 50
 

EXHIBIT A. 

DAVID SCHOENGOLD

Senior Consultant 

MSB Energy Associates 

EXPERIENCE

MSB Energy Associates, 1988 to present. 

Wisconsin Public Service Commission, 1974 to 1990. 

University of Wisconsin, Institute for Environmental Studies, 1973 to 1974. 

United States Peace Corps, Philippines, 1970 to 1972. 

Argonne National Laboratories, Applied Mathematics Division, 1968 to 1970. 

EDUCATION

BA in Physics, Rutgers University, 1966. 

Graduate Study in Physics and Computer Science, University of Chicago, 1966-68. 

UTILITY PLANNING AND REGULATORY EXPERIENCE

David Schoengold co-founded MSB Energy Associates in 1988 to provide planning and 

analytical services to public utility commissions, state energy offices, public interest 

groups, and others with an interest in public utility policy. Since co-founding MSB Energy 

Associates Mr. Schoengold has served clients in Arizona, Arkansas, California, Colorado, 

Connecticut, the District of Columbia, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, 

Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, 

New Hampshire, New York, Ohio, Pennsylvania, Rhode Island, South Carolina, Texas, 

Vermont, West Virginia, and Wisconsin. 

Since 1998 he has been working with the Clean Air Task Force to promote clean air policy 

in the U.S. He has provided on-going technical support to the Clean Air Task Force in the 

form of analysis of power plant emissions, cost of emission control technologies, and 

analysis of the impact, cost, and benefit of federal and state legislation. 

Other areas of interest have been utility restructuring, tax subsidy issues, long-range 

planning, and rate design. He has analyzed the impact of utility restructuring proposals in 

California, Illinois, Iowa, Michigan, New York, Ohio, and Pennsylvania. 

He has provided technical expertise to planning collaboratives, reviewed utility integrated 

resource plans and supply-side plans, developed independent integrated resource plans, 

analyzed sales promotion practices, reviewed and developed avoided costs, analyzed the 

impact of resource alternatives on emissions of pollutants, reviewed utility transmission 

planning studies, and developed alternative transmission plans including distributed 

resources as an option. He has presented testimony in Arkansas, Connecticut, District of 

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2 

Columbia, Georgia, Florida, Illinois, Iowa, Massachusetts, Michigan, Minnesota, New York, 

Ohio, Pennsylvania, Texas, Vermont, West Virginia, and Wisconsin. In addition he has 

presented workshops and seminars on various aspects of utility planning for numerous 

groups. 

Mr. Schoengold has testified in cases involving rates, resource planning, facility 

certification, administrative rules, externalities, independent power projects, public policy, 

and civil damages. He has testified on the need for, alternatives to, and system planning 

implications of utility plans and proposals, rate design, buy-back rates for cogenerators, 

energy forecasts, fuel costs, planning budgets, and power plant prudence. 

Mr. Schoengold has been involved in utility planning and regulation since 1974 when he 

joined the Wisconsin Public Service Commission staff. He spent sixteen years at the 

Wisconsin Commission, including nine years as the Director of the Systems Analysis 

Bureau which was responsible for electricity forecasting, generation and transmission 

planning, demand-side analysis, system modeling, fuel costs, renewable and alternative 

energy resources, natural gas planning, and emission reduction strategies. At the 

Wisconsin Commission Mr. Schoengold played a major role in the development of the 

Wisconsin advance planning process, integrated resource planning, statewide integrated 

transmission planning and access, and the inclusion of externalities in resource planning. 

He directed one of the first studies of conservation and renewable resources as least-cost 

alternatives to traditional utility generation. He performed the analytical work which 

resulted in Wisconsin abandoning its plans for a heavily nuclear dependent future, 

enabling the state to avoid the nuclear financial problems common to many states. 

TESTIMONY 

• Iowa Utility Board (2009) 

 Docket No. NOI-2009-0002 

 American Clean Energy and Security Act of 2009 

 Testimony addressed the impact of ACES-2009 on Iowa utilities and customers 

• Michigan Public Service Commission (2004) 

 Docket U-13917 

 Consumers Energy Power Supply Cost Recovery Plan 

 Testimony addressed contractual and pricing issues for Qualifying Facilities 

• Maryland House of Delegates Economic Affairs Committee (2004) 

 A Proposed Bill to Require Emission Reductions from Maryland Power Plants 

 Testimony addressed the costs of the proposal 

• Wisconsin Public Service Commission (2002) 

 Docket 05-CE-117 

 Application to Construct the Port Washington Generating Station 

 Testimony addressed the appropriate level of emission controls 

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• Minnesota Public Utility Commission (2002) 

 Docket E002/CN-01-1958 

 Application for Transmission Facilities in Southwest Minnesota 

 Testimony addressed the need for and alternatives to the proposed lines. 

• Wisconsin Public Service Commission (2002) 

 Docket 05-EI-129 

 Recovery of Costs Related to the American Transmission Company 

 Testimony addressed start up and continuing costs of transmission, appropriate 

tasks for utilities versus the ATC, and prudence of costs. 

• Wisconsin Public Service Commission (2002) 

 Docket 05-EI-131 

 Ratemaking Mechanisms concerning Long Term Purchased Power Contracts 

 Testimony addressed the appropriateness of allowing for incentive payments to 

utilities which enter into long-term contracts for purchased power. 

• Wisconsin Public Service Commission (2002) 

 Docket 6680-UR-111 

 Wisconsin Power and Light Rate Case 

 Testimony addressed Kewaunee Nuclear Power Plant depreciation and overcollection during a rate freeze 

• Florida Energy 2020 Commission (2001) 

 Testimony addressed the cost and benefit of emission reduction requirements 

• United States Environmental Protection Agency (2001) 

 Testimony addressed the cost and benefit of enforcing the New Source Review 

standards for coal-fired power plants 

• Wisconsin Public Service Commission (2000) 

 Docket 05-CE-113 

 Arrowhead-Weston Transmission Line 

 Testimony addressed the need for the proposed line and air pollution implications 

of the line 

• Wisconsin Public Service Commission (2000) 

 Docket 6690-UR-12 

 Wisconsin Public Service Corporation Rate Case 

 Testimony addressed Kewaunee depreciation issues 

• Connecticut House of Representatives Environment Committee (2000) 

 Impacts of Emission Reduction Rules 

 Testimony addressed the cost of meeting proposed new emission rules 

• Texas Public Utility Commission (2000) 

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 Impacts of Emission Reduction Rules 

 Testimony addressed the impact of proposed emission reduction rules on the 

ongoing economics of Texas power plants 

• Wisconsin Public Service Commission (1999) 

 Docket 05-CE-108 

 Cost Recovery for Environmental Control Expenses 

 Testimony addressed the time period and allocation considerations relative to 

collection of the costs for meeting the NOx SIP Call

• Arkansas Public Service Commission (1998) 

 Docket 98-141-U 

 Entergy Arkansas Transmission Line Proposal 

 The need for a proposed 161 kV transmission line and the appropriateness of the 

selected route for that line 

• Vermont Public Service Board (1997-8) 

 Docket 5983 

 Green Mountain Power Rate Case 

 The prudence of Green Mountain Power's decision to purchase power from HydroQuebec under a long-term contract 

• Pennsylvania Public Utility Commission (1997) 

 Docket A-110150F0015 

 Application of DQE and Allegheny Power System to Merge their Systems 

• Pennsylvania Public Utility Commission (1997) 

 Docket R-00974008/R00974009 

 Application of Metropolitan Edison Company and Pennsylvania Electric Company 

for Approval of their Restructuring Plans 

• Pennsylvania Public Utility Commission (1997) 

 Docket R-00974104/R00973981 

 Applications of Duquesne Light Company and West Penn Power for Approval of 

their Restructuring Plans 

• Pennsylvania Public Utility Commission (1997) 

 Docket R-00973953 

 Application of PECO Energy for Approval of Restructuring Plan 

• Pennsylvania Public Utility Commission (1997) 

 Docket R-00973954 

 Application of Pennsylvania Power and Light for Approval of Restructuring Plan 

• Pennsylvania Public Utility Commission (1997) 

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 Dockets P-00971168 through 1173, 1175, and 1183 

 Petitions for Approval of Retail Access Pilot Programs 

• New York State Public Service Commission (1997) 

 Dockets 96-E-0909, 96-E-0897, 96-E-0891, 96-E-0900, 96-E-0898 

 Regulatory principles for distribution utilities under restructuring for five major New 

York utilities 

• Michigan Public Service Commission (1997) 

 Docket U-11290 

 The impact of different restructuring approaches on electricity utility customers; 

Comments on staff restructuring report 

• Iowa Utilities Board (1996) 

 Docket NOI-95-1 

 The impacts of different restructuring approaches on residential and low income 

customers 

• Public Service Commission of Wisconsin (1996) 

 Docket 6630-UR-109 

 Appropriate rates for industrial interruptible customers 

• Public Service Commission of Wisconsin (1996) 

 Docket 6690-UR-110 

 Appropriate buyback rates for power from a small hydroelectric facility 

• Minnesota Legislature (1996) 

 Testimony before the Senate Taxation Committee 

 Cost and environmental impacts of a proposed cogeneration facility 

• Public Service Commission of Wisconsin (1996) 

 Dockets 6630-CE-197/209 (Point Beach Projects) 

 Cost-benefit analysis of nuclear plant steam generator repairs 

• Minnesota Legislature (1995) 

 Testimony before the House Energy Committee 

 Cost and environmental impacts of a proposed cogeneration facility 

• Public Service Commission of Wisconsin (1995) 

 Docket 05-EP-7 (Advance Plans for Electric Utilities) 

 Cost-benefit analysis of nuclear plant repairs 

• Public Service Commission of Wisconsin (1994) 

 Docket 6690-UR-109 

 Appropriate buyback rates for power from a small hydroelectric facility 

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• Illinois Commerce Commission (1994) 

 Docket 92-0121 

 Need for and alternatives to a proposed 138 kV transmission line 

• Illinois Commerce Commission (1993, 1994) 

 Docket 92-0221 

 Need for and alternatives to a proposed 138 kV transmission line 

• Public Service Commission of Wisconsin (1992, 1993) 

 Docket 05-EP-6 (Advance Plans for Electric Utilities) 

 Cogeneration policies, buy-back rates, and avoided cost methods 

• Minnesota Legislature (1992) 

 Testimony before the Joint Energy Committee 

 Savings from joint or shared planning among Minnesota utilities 

• Georgia Public Service Commission (1992) 

 Dockets 4031-U and 4034-U 

 Review of the integrated resource plans of Georgia Power and Savannah Electric 

Power and development of alternative long-range expansion plans 

• Georgia Public Service Commission (1991) 

 Docket 4047-U 

 Rules for the preparation and filing of integrated resource plans 

• Civil Court, Iron County, Michigan (1991) 

 AGA Connor Forest Products vs Indeck Energy 

 Civil damages related to a canceled cogeneration plant 

• Minnesota Public Utility Commission (1991) 

 Docket E-002/CN-91-19 

 Economics analysis of dry-cask storage for spent nuclear fuel at the Prairie Island 

Nuclear Power Plant and alternative power sources 

• District of Columbia Public Service Commission (1991) 

 Case 905 

 Cost allocation for a large customer of Potomac Electric Power Company 

• Public Service Commission of Wisconsin (1990) 

 Docket 9990-EP-100 

 Load management practices of Wisconsin utilities 

• Illinois Commerce Commission (1990) 

 Docket 90-0041 

 Review of the least-cost plans and planning policies of Central Illinois Light 

Company 

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• Illinois Commerce Commission (1990) 

 Docket 88-0139 

 Proper use of economic dispatch on the Commonwealth Edison system in the face 

of complex coal contracts. Testimony, while prepared, was not given due to a 

settlement in the case. 

• West Virginia Public Service Commission (1990) 

 Docket 89-239-G-PW, et al 

 Analysis of the conditions under which sales promotion activities should be allowed 

for gas and electric utilities 

• Public Utilities Commission of Ohio (1990) 

 Dockets 90-659-EL-FOR and 90-660-EL-FOR 

 Analysis of forecasts and long range plans for Ohio Power and Columbus 

Southern, including alternative long-range expansion plans for the companies. 

Testimony, while prepared, was not given due to a settlement of the case. 

Mr. Schoengold also testified in numerous cases as a senior staff witness at the Wisconsin 

Public Service Commission. 

• Advance Plans 1 through 5 (Dockets 05-EP-1 through 05-EP-5 -- on numerous 

occasions between 1977 and 1990) 

 A wide variety of planning issues including forecasts, nuclear vs coal power, 

alternative energy, load management, transmission planning, demand-side 

management resources, cost allocation, cogeneration, avoided costs, demand-side 

vs supply-side resources, principles and methods of integrated resource planning, 

and principles and impacts of sales promotion 

• Rate Cases (numerous occasions between 1975 and 1990) 

 Wisconsin Electric Power 

 Wisconsin Power and Light 

 Madison Gas and Electric 

 Wisconsin Public Service 

 Northern States Power 

 Proctor and Gamble Cogeneration Buyback rates 

 Fuel costs, cost allocations, sales promotion, demand-side management, time-ofuse pricing, avoided costs, and incentive regulation 

• Construction Cases 

 Germantown Combustion Turbines (1976-1977) 

 Pleasant Prairie Power Plant (1978) 

 Tyrone Nuclear Power Plant (1978) 

 Weston 3 (1979) 

 Edgewater 5 (1980) 

 Prairie Island -- Eau Claire Transmission Line (1981-1982) 

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 Point Beach Nuclear Plant Steam Generator Replacement (1982) 

 Need for power, appropriateness of the utility proposals, and the comparative 

economics of alternatives 

• Generic Investigations 

 Time-of-Use Rates (1978) 

 Load Management (1980) 

 Avoided Cost Methodology (1980) 

 Electric Sales Promotion (1983) 

 Interruptible Rates (1988) 

 Costs and benefits of various proposals, system planning impacts of load 

management, and the impacts of resource alternatives 

SELECTED REPORTS AND MANUSCRIPTS

“Clean Air Task Force Power Plant Technical Information,” Report on Operating 

Characteristics and Emissions of U.S. Power Plants, 1999. 

"Alternatives to the Continued Operation of Commonwealth Edison's Dresden, LaSalle, 

and Zion Nuclear Power Plants," Report to the Energy Foundation and the Environmental 

Law and Policy Center, 1998. 

"Electric Industry Restructuring in Ohio: Residential and Low Income Customer Impacts," 

1997. 

"Electric Industry Restructuring in Iowa: Residential and Low Income Customer Impacts," 

1996. 

"Integrating Clean Air Policy to Improve Air Quality and Reduce Pollution Control Costs for 

the Electric Power Industry," Report to the Boston Edison DSM Settlement Board, 1996 

(co-author). 

"Regulation of Distribution Monopolies," Report from the California Regulatory Research 

Project of the Center for Energy Efficiency and Renewable Technologies, August 1996 

(co-author). 

"Major Tax Subsidies to Investor-Owned Electric Utilities and the Cost to the U.S. 

Treasury -- 1994," Report to the American Public Power Association, 1996. 

"Explaining Public Power's Low Rates: A Critical Review of the EEI-Sponsored Report: 

'Subsidies and Unfair Competitive Advantages Available to Publicly Owned and 

Cooperative Utilities'," Report to the American Public Power Association, 1996. 

"Application of the Distributed Utility Concept to the Boston Edison Company: Creating 

Additional Value for the Customer," 1995. 

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9 

"Major Tax Subsidies to Investor-Owned Electric Utilities and the Cost to the U.S. 

Treasury," Report to the American Public Power Association, 1995. 

"The Impact of Nuclear Retirements on Commonwealth Edison and the Eastern Wisconsin 

Utilities," Report to the Environmental Law and Policy Center of the Midwest, 1995. 

"Allocating the Cost of Generating Capacity -- a Discussion Paper of Interclass Subsidies," 

1994. 

"Energy Efficiency and Renewable Energy -- Opportunities from Title IV of the Clean Air 

Act," United States Environmental Protection Agency, 1994. 

"Planning for Environmental Constraints on the PJM System," 1993. 

"Avoided Costs for Electric Utilities -- a Theoretical and Practical Handbook," 1993. 

"Spare the Stick and Spoil the Carrot: Why DSM Incentives for Shareholders Aren't 

Necessary," invited chapter in, Regulatory Incentives for Demand-Side Management, 

Steven Nadel, Michael Reid, and David Walcott, editors, American Council for an Energy 

Efficient Economy, 1992 (with Steven Kihm and Paul Newman). 

"Final Report on the New Orleans Integrated Resource Planning Project," 1992. 

"Assessment of Tradeable Sulfur Dioxide Allowances Generated by Selected Energy 

Conservation Initiatives," 1991. 

"Tertiary Sector Energy Use Model for the Tunisian Energy Planning Project," Resource 

Management Associates, 1985. 

"Alternative Electric Power Supply Study -- Update 1985," Wisconsin Public Service 

Commission, 1985. 

"Alternative Electric Power Supply Study for the Year 2000," Wisconsin Public Service 

Commission, 1982. 

PRESENTATIONS

“Valuing Demand Side Management in a Restructured World,” ACEEE National 

Conference on Energy Efficiency and Reliability, October 2001. 

"Stranded Costs in Ohio," presentation to the Electricity Roundtable, 1997. 

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"Distributed Generation on the Boston Edison System," presentation to the Boston Edison 

Settlement Board Distributed Utility Workshop, 1995. 

"Major Tax Subsidies to Investor-Owned Electric Utilities," presentation to the American 

Public Power Association, 1995. 

"Planning in the Face of Environmental Constraints," presentation to the Public Utilities 

Institute of the University of Wisconsin, 1994. 

"Avoided Cost Methods," presentation to the Pennsylvania Public Utility Commission, 

1993. 

"Avoided Cost Methods," presentation to the Public Utilities Institute of the University of 

Wisconsin, 1993. 

 

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Exhibit 35

Case: 10-1092 Document: 1274850 Filed: 11/01/2010 Page: 61
1

Declaration of Michael P. Walsh 

1. I am a mechanical engineer, BSME from Manhattan College, June 1966, and I have spent 

my entire career, approximately 42 years, working on motor vehicle pollution control and 

energy issues. I spent the first part of my career in government service, initially with the 

City of New York (from 1970 to 1974) and then with the U.S. Environmental Protection 

Agency (from 1974 to 1981). I served in various capacities with each agency and 

eventually, as Director of EPA’s motor vehicle pollution control efforts. 

2. Since leaving government, I have been an independent consultant advising governments 

and industries around the world. For example, for several years, I served as the Chairman 

of the World Bank Advisory Panel to the Mexico City Transport / Air Quality 

Management Program. Subsequently, I served in a similar capacity with the Chinese 

National Environmental Protection Agency. During the 1980’s, I was an advisor to the 

U.S. Senate Environment and Public Works Committee during development of the 1990 

Clean Air Act Amendments. For many years, I also served as the co-chair for the U.S. 

EPA’s Mobile Source Technical Advisory Subcommittee, and I am actively involved in 

projects in Brazil, Hong Kong, Mexico City, India, and China. I served as a member of 

the National Research Council “committee on the Future of Personal Transport Vehicles 

in China.” I have also served as the principal technical consultant to the Asian 

Development Bank regarding a regional technical assistance project, “Reducing Motor 

Vehicle Emissions in Asia” and served as a peer review expert to the European 

Commission during its deliberations regarding near zero sulfur fuels. In 2005, I received 

the MacArthur Foundation’s “genius” award, and this year, I was awarded the China 

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2

Friendship Award in recognition of my contributions to controlling mobile source 

emissions in China. 

3. Since the mid 1980’s, much of my consulting work has been outside of the United States. 

I have carried out projects for government bodies in the European Union, Japan, South 

Korea, Taiwan, China, Hong Kong, Philippines, Thailand, Indonesia (for US AID), 

Vietnam, Malaysia, Singapore, Sri Lanka, India, Kuwait, Iran, Romania, Russia, 

Hungary, Poland, Mexico, Brazil, Canada, and Chile. My consulting has included 

projects for numerous international organizations such as the United Nations 

Environment Program, the World Bank, the Asian Development Bank, the World Health 

Organization and the Organization for Economic Cooperation and Development. 

4. EPA and NHTSA promulgated the joint final rule, Light-Duty Vehicle Greenhouse Gas 

Emission Standards and Corporate Average Fuel Economy Standards (Light-Duty 

Vehicle Rule) in an attempt to coordinate fuel-economy standards under the CAFE 

program with greenhouses gas emission standards under section 202(a) of the Clean Air 

Act (CAA). EPA’s authority to regulate greenhouse gases under section 202(a) is broad 

and designed to fulfill statutory purposes of protecting human health and the 

environment. As a result, EPA’s GHG emissions standards achieve greater GHG 

emission reductions than NHTSA’s CAFE program. Indeed, any claim that the EPA 

program is redundant of, or coextensive with, the NHTSA program, is plainly incorrect. 

In fact, roughly 1/3rd of the Light-Duty Vehicle Rule’s GHG reductions will be lost if 

EPA’s vehicle standards are vacated. See 75 Fed. Reg. 25324, 25345, 25347 (May 7, 

2010).

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5. NHTSA’s CAFE standards are based solely on technologies that improve fuel economy, 

and as a result, NHTSA cannot consider other potential vehicle improvements or 

adjustments that reduce greenhouse gases such as mitigation of greenhouse gas pollution 

associated with air conditioning systems. Recognizing that air conditioners place “a 

significant additional load on the engine, thus reducing fuel economy and increasing 

CO2 tailpipe emissions,” NHTSA sought to offer air condition credits, but “a 1975 

statutory provision made it unfruitful even to explore the possibility of 

administratively proving such credits for cars.” 75 Fed. Reg. at 25339. As such,

CAFE standards do not address at all the 5-8 percent of GHG emissions that are not CO2, 

including nitrous oxide (N2O), and methane (CH4) as well as emissions of CO2 and 

hydrofluorocarbons (HFCs) related to operation of the air conditioning system. EPA, in 

contrast, possesses the authority to consider air conditioning improvements when setting 

its GHG emissions standards, thus allowing the Agency to mitigate CO2 associated with 

the air conditioning load as well as fluorinated gases associated with leaks and venting of 

the A/C system. GWPRefrigerant is the global warming potential (GWP) for direct 

radiative forcing of the refrigerant used in the AC system. In the rule, EPA noted that the 

GWP of HFC–134a is 1430, the GWP of HFC–152a is 124, the GWP of HFO–1234yf is 

4, and the GWP of CO2 as a refrigerant is 1. Thus, there is a tremendous potential for 

reducing the climate impacts of vehicle AC systems solely by shifting to a refrigerant 

with a lower GWP. In fact, General Motors has already announced its intention to HFO123yf as a response to the rule. See http://media.gm.com/content/media 

/us/en/news/news_detail.brand_gm.html/content/Pages/news/us/en/2010/July/0723

_refrigerant. EPA’s consideration of air conditioning improvements is but one example 

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of EPA’s broad statutory authority to consider GHG pollution reductions across the full 

vehicle. 

6. The other major way in which EPA standards produce emission reductions beyond those 

achievable by NHTSA alone stems from the more rigorous, less exemption-ridden 

compliance approach applied under the CAA. While EPCA allows manufacturers to pay 

fines as an alternative to compliance with applicable CAFE standards, EPA’s program 

does not permit manufacturers to intentionally pay fines in lieu of meeting GHG 

emissions standards. In past iterations of NHTSA standards, manufacturers have 

repeatedly opted to pay these fines instead of complying, thus resulting in vehicle fleets 

that burn substantially more fuel than provided for by the NHTSA standards. EPA also 

possesses the authority to enjoin the sale of vehicles that do not conform to CAA 

standards, while EPCA contains no such similar authority. EPA’s rigorous approach is 

consistent with the CAA’s statutory purposes to protect the public’s health and welfare. 

42 U.S.C. § 7521(a)(1). 

7. A stay of EPA’s GHG emission standards – even assuming NHTSA’s rule remains in 

place – would result in significantly greater GHG emissions. Assuming only a one-year 

stay of EPA’s emission standards, MY 2012 vehicle emissions would increase, not only 

during the one year when they are new, but over the entire life of the vehicle. In this 

case, EPA and NHTSA’s analysis estimates that light-duty vehicle GHG emissions would 

increase by 35.8 million metric tons of CO2 equivalent (mmtCO2e) over the lifetime of 

vehicles sold just in model year 2012. See 75 Fed. Reg. at 25344, 25347. This increase 

represents roughly 40 percent of the total GHG emissions reductions attributable to the 

Case: 10-1092 Document: 1274850 Filed: 11/01/2010 Page: 65
5

Light-Duty Vehicle Rule in MY 2012. Id. Increased emissions would, in turn, reduce the 

lifetime discounted benefits associated with the Light-Duty Vehicle Rule. For MY 2012 

alone, EPA estimates that EPA emission standards would account for $17.4 billion in 

benefits, compared to only $11.2 billion attributable to NHTSA’s CAFE standards.1 75 

Fed. Reg. at 25345, 25347. These significant harms would only be magnified if a stay 

impacted MY 2013 vehicles as well. In this case, emissions would increase by an 

additional 41 mmtCO2e and Americans would lose an additional $6.4 billion in benefits.

75 Fed. Reg. at 25344-47.

8. Even if the duration of the stay were limited to one year, staying EPA’s GHG emission 

standards would likewise have implications for the effectiveness of EPA’s GHG 

emissions reduction program in 2013 and beyond. Projected emission reductions in the 

later years of the Light-Duty Vehicle Rule are dependent upon the steps manufacturers 

take to comply with the rule in 2012. Without these advances, manufacturers will have 

greater difficulty complying with the MY 2013-2016 standards, reducing the likelihood 

that manufacturers will be capable of achieving the significant GHG emissions reductions 

in the later portions of the rule. 

9. Finally, the adoption of emission standards in the United States for a wide variety of 

motor vehicle emissions from 1968 to the present resulted in substantial investment by 

the automobile industry and its suppliers. As a result of this investment, both vehicle 

manufacturers and their suppliers developed a variety of pollution control technologies. 

These technologies, in turn, have resulted in dramatic reductions in emissions from 

 1 These estimates assume a 7% discount rate. 

Case: 10-1092 Document: 1274850 Filed: 11/01/2010 Page: 66
6

vehicles produced and sold in the United States. Once developed and demonstrated in 

the United States, these technologies have subsequently spread around the world. Some 

of these technologies involved improvements and refinements to existing combustion 

engines, while others were add-on post-combustion technologies. In some cases, 

fundamentally new technologies were developed and commercialized. One example is 

the development of electronic controls that optimize air/fuel and spark management 

systems; these innovations improved combustion and increased power and range while at 

the same time cutting conventional emissions, reducing fuel consumption, and reducing 

carbon dioxide emissions. Another example is the catalytic converter technology 

developed during the 1970s to comply with U.S. Vehicle emissions standards. Similar 

technology is now used on all new cars produced and sold in Japan, the European Union, 

South Korea, China, Taiwan, Thailand, Indian, Australia, Brazil, and Mexico. This 

spread of U.S. emissions control technology has substantially reduced emissions in other 

countries below what they would have otherwise been.

10. Similarly, EPA’s GHG emission standards are likely to result in significant new 

investments in pollution control technologies and significant research initiatives. Staying 

the rule would reduce these important investments, delay technology development, and 

limit the ability of the United States to serve as a leading exporter of GHG emission 

control technologies worldwide. EPA and NHTSA’s analysis suggest that vehicle 

manufacturers would invest $3.7 billion in technology development to meet NHTSA’s 

fuel-economy requirements in 2012. 75 Fed. Reg. at 25345. The same analysis finds that 

manufacturers will spend $4.9 billion in technology outlays to comply with EPA’s GHG 

Case: 10-1092 Document: 1274850 Filed: 11/01/2010 Page: 67
Case: 10-1092 Document: 1274850 Filed: 11/01/2010 Page: 68
Exhibit 36

Case: 10-1092 Document: 1274850 Filed: 11/01/2010 Page: 69
Great ~,,()rthern Power Develor.-•.tent L.P.

173 Cottonwood Road

Townsend. tvIT 59644

(406) 266·4360 • Fax (4061 266·4577

-------- .._•._--_..__._-- .._.

January 23. 2008

------_._-_._...._. ----------

\-15. mona A. Jeffcoat-Sacco

Execuliv~ Secretary

:-';orth Dakota Public Sel"\"ice Commission

600 East Boulevard. Dept.408

Bismarck. NO 5850:'·0480

Rc: Letter of Jntenl - South HeJlrt Project

Dear \15. Jelfcoat-Sacco:

On behalf of South Heart Coal LLC (SHC). Great Northern Power Development LP (G~PD) is

pl~d to notify the North Dakota Public Service Commission (PSC) of its intem to construct

and operate a coal-lo-S)nthetic natural gas production facility (facility~ in southwest 'orth

Dakota near the communit) of South Heart in Stark County. That planned facilit: is a

component of the South Heart Projc:ct (SHP). which would also include an adjacc=nt suriace

lignite mine that would provide raw material to the planned facility,

SHe is a wholly O\\;1led subsidiary of G~'PD. a private!) held natural resource development

company affiliated \\ith Oreal Northern Properties - the nation's largest private 4:oaJ reserve

holder. GNPD. headquartered in Houston. TX. m.aintains offices in Bismarck. :--;D and in

To\\nsend and Miles City. MT.

In a previous Jetter to you dated August 18. 2005. GNPD notified the PSC thaI it intended to

constnlct and operate a 500 MW lignite-tired steam-ell:(;m<: generating station on the same Sile:o

This letter updates and revises that August 18. 2005 notification to retlee. changes to the: fa.ciJit}

design. GNPD no longer plans a lignite-fired sleam-electric generating station as a component of

the SHP.

This I~tter and its attachments are: intended to fulfill SHes obligations under Chapter 69-06-03

of Title 69 of the North Dakota Administrative Code to file <it Letter of Intent at least one year

prior to tiling an application for a certificate ofsite compatibHity.

Size and Type of Fac:ili~'

The planned facility would be a nominal 100 million standard cubic feet per day (MMSCFO I

synthetic natura] gas (SNG) production facility. The final design production capacity has not yet

been dctennined as process design refinements are ongoing at this writing. However. as

currently configured. it would seven British Gas Lurgi gasifiers and associated do\lt'llstream

process units to convert lignite from 1M adjacent mine infO pipeline quality natu.ra.l gas.

4 PU-05-527 Filed: 1/23/2008 Pages: 3

Letter Updating and Revising August 18. 2005

Notification

South Heart Coal LLC

Case: 10-1092 Document: 1274850 Filed: 11/01/2010 Page: 70
j\,ls. mona A. Jeftcoat-Sac,

Januar;-' 23. 2008

Page 2 ~')f:2

'Ibe facility is intended to serve the natural gas needs of!\otth Dakota.. ~orth Dakota industries.

and the people and industries ofthe Upper Midwest.

Map of Stud~' Area

Figure I attached 10 this letter is a map of the study area sho\\ing the planned .SHP location in

~orth Dakota (inset). the planned site lor the SHP production facility and the location of the

plann~ lignite mine.

Anticipated Construction and Operation Schedule

SHe currently plans to begin construction of the fllcilit)· in December 2009 and commence

commercial operation in December 2012.

Estimated Cost of Construetion

The estimated cost for !he construction ofthe facility is $1.4 billion.

G!'l"PD looks forward to working \\ith the I)SC and its statr to obtain aU required approvals for

the SHP production facility and those for the associated lignite mine. Please do not hesitate to

contact Rich Voss. V.P. Power Development at 701-223-8783 (Q'Qss;'~gnplp,CQm) or me at 406-

266-4360 (£SOu!hwick@wpln.com) with any questions pertaining to SHe GNPD. or the SHP.

\

Sin~erely. I

'~APA~j =I~\"~\ , , \ ' \....... chard A. Soulh\\eick

Manager - Permitting & Environmental

Attachments

cc: Chuck Kerr. President GNPD

Rich Voss. VP GNPD

JetT Burgess. Lignite Energy Council

Case: 10-1092 Document: 1274850 Filed: 11/01/2010 Page: 71
Exhibit 37

Case: 10-1092 Document: 1274850 Filed: 11/01/2010 Page: 72
STATE OF NORTH DAKOTA

COUNTY OF STARK

Dakota Resource Council,

Gordon Krance, Neil and Laura

Tangen, and Frank and Lucy

Hurt,

Appellants,

vs.

Stark County Board of County

Commissioners,

Appellee.

IN DISTRICT COURT

SOUTHWEST JUDICIAL DISTRICT

By: ·.·.······

MEMORANDUM. OPINION

Case Nos. 08C-282 and 08C-668

The above cases involve identical parties and both involve

appeals from the decision of Stark County Commission approving

requests for zoning amendments. The first case (Case No. 08C-282),

concerns the request of Great Northen Power Development LP ("Great

Northern"), submitted on November 14, 2007, to amend the zoning

ordinance and change the zoning from agricultural to industrial for

the purpose of operating. a coal mine. The second case (Case No.

08C-668), concerns the request of GTLE Dakota Plant 1, LLC

("GTLE"), submitted on July 14, 2008, to amend the zoning ordinance

and also change the zoning from agricultural to industrial with a

special use permit for the processing and beneficiation of coal.

Great Northern's request was approved and finalized by a resolution

Page 1

Case: 10-1092 Document: 1274850 Filed: 11/01/2010 Page: 73
adopted by the Stark County Commission ("county commission") on

April 1, 2008. GTLE's request was approved and finalized by a

resolution adopted and finalized by the county commission on

September 2, 2008. The above listed Appellants ("Appellants"),

include a non-profit corporation concerned with landowner's rights

(Dakota Resource Council) and individual landowners who believe

they are aggrieved by the decisions made by the county commission.

Although there are some differences between the cases, the parties,

attorneys, and major issues are the same, and the appeals will be

decided collectively in this memorandum. For the reasons discussed

below, the decisions of the county commission, in both cases, are

reversed and vacated.

DISCUSSION

This Court does not minimize the power of the Stark County

Zoning Board or the Stark County Commission. This court is very

mindful of the well established deferential standard of review

applicable when considering an appeal from the decision of a local

governing body. It has repeatedly been stated that review of

decisions of local legislative bodies is very limited under the

doctrine of separation of powers. City of Fargo v. Ness, 529

N.W.2d 572, 576 (N.D. 1995); Gullickson v. Stark County Board of

County Commission, 474 N.W.2d 89·0, 892 (N.D. 1991); Lindteiqen v.

City of Bismarck, 1997 N.D., 6, 565 N.W.2d 47. A reviewing

Page 2

Case: 10-1092 Document: 1274850 Filed: 11/01/2010 Page: 74
court must determine only whether the commission acted arbitrarily,

capriciously, or unreasonably in reaching its decision and the

court does not substitute its judgment for that of the commission.

Id. The county commission's decision must be affirmed unless the

local body acted arbitrarily, capriciously, or unreasonably, or

there is not substantial evidence supporting the decision. Tibert

v. City of Minto, 2006 ND 189 8, 720 N.W.2d 921. Leaving the

manner and means of exercising municipal powers to the discretion

of municipal authorities implies a range of reasonableness within

which the municipality's exercise of discretion will not be

interfered with by the jUdiciary. Lindteiqen at 6. Accordingly,

a decision of a local governing body is arbitrary, capricious, or

unreasonable only if it is not the product of a rational mental

process. Id.

In these cases, this Court is not substituting its judgment

for that of the zoning board or county commission and certainly is

not implying that their ultimate decisions were not the product of

a rational decision making process. Rather, the difficulty was in

the record on appeal not adequately showing how the facts and law

were relied upon and considered. It is well established that a

county commission's failure to correctly interpret and apply

controlling law constitutes arbitrary, capricious, and unreasonable

conduct. Gowan v. Ward County Commission, 2009 NO 72 , 5, 764

Page 3

Case: 10-1092 Document: 1274850 Filed: 11/01/2010 Page: 75
N.W.2d 425; City of Fargo v. Ness, 551 N.W.2d 790, 792 (N.D. 1996).

The issue here is the failure o"f both boards, in both cases,

to follow the law and state the grounds upon which the zoning

amendments were approved. More particularly, neither board

prepared and included, as part of the record, written findings upon

which their decisions were based. N.D.C.C. § 11-33-01. 1 It is

true that the particular provisions of the law in question are

relatively new. They became effective as of August 1, 2007. Prior

to the enactment of the new provisions, the Court was left with the

task of trying to dis~ern from the entire record, the governing

body'S rationale for its decision. In many cases this may have

been a difficult task. The new law may have, at least in part,

been intended to help avoid this difficulty. But, whether or not

it would be difficult here, is not relevant.

I N•D•C•C• § 11-33-01 as amended on August 1, 2007 provides:

Procedural

County power to regulate property. For the purpose of promoting health,

safety, morals, public convenience, gener,al prosperity, and public welfare,

the board of county commissioners of any county may regulate and restrict

within the county, subject to section 11-33-20 and chapter 54-21.3, the

location and the use of buildings and structures and the use, condition of

use, or occupancy of lands for residence, recreation, and other purposes.

The board of county commissioners and a eounty zoning commission shall

state the grounds upon which any request for a :z:oning amendment or variance

is approved or disapproved, and written findings upon which the decision

is based must be included within the records of the board or commission.

The board of county commissioners shall establish zoning requirements for

solid waste disposal and incineration facilities before July 1, 1994. The

board of county commissioners may impose tipping or other fees on solid

waste management and incineration facilities. The board of county

commissioners may not impose any fee under this section on an energy

conversion facili~y or coal mining operation that disposes of its waste

onsite. The board of county commissioners may establish institutional

controls that address environmental concerns with the state department of

health as provided in section 23-20.3-03.1.

Page 4

Case: 10-1092 Document: 1274850 Filed: 11/01/2010 Page: 76
requirements in state zoning enabling statutes Uare regarded as

mandatory and a substantial failure to comply will render an

ordinanoe invalid." Homer Township v. Zimney, 490 N.W.2d 256, 258

(N.D. 1992), quoting C. Rhyme, "The Law of Government Operations"

§ 26.22 (1980). This court declines the invitation to disregard

the law and embark on its own expedition in an attempt to weigh the

evidence or judge the oredibility of witnesses. These tasks must

be done by the zoning board members or county commissioners. They

must collectively make appropriate written findings and state the

rationale for their decisions.

The county commission sugge~ted in its brief that it may be

judicious for the Court to stay the matter at hand. They suggest

the county commission be allowed to reform its resolution2 , and

prepare, and file the written findings required by N.D.C.C. § 11-

33-01.

2

1.

2.

3.

4.

Such a procedure was employed in Gowan y. Ward County

The county commission concedes that through inadvertence or

oversight, the Resolution approved by the county commission on

April 1, 2008, and the amendment to the Resolution filed on April

16, 2008, excluded the following provisions:

That Great Northern Power Development obtain all necessary state

approval, licenses and permits relative to the operation of the coal

mine.

That Great Northern Power Development agree in writing to replace all

water lost as a result of damage to water wells caused by their

mining operations.

That Great Northern Power Development build and maintain necessary

access roads to mine and plant, such roads to be built to the

satisfaction of the Stark County Commissioners.

That Great Northern Power Development will work in concert with law

enforcement and emergency responders to facilitate public safety.

Page 5

Case: 10-1092 Document: 1274850 Filed: 11/01/2010 Page: 77
Commission, 2009 NO 72, , 10, 764 N. W. 2d 425 and was found

acceptable. The problem in these· cases is, that unlike Gowan, an

appropriate and timely request to supplement the record was not

made.

The county commission has made several motions to supplement

the record pursuant to N.D.C.C. § 28-34-01, but has never done so

in regard to these issues in question here. Further, to allow

Appellants to prepare written findings after briefs have been filed

and so much time has elapsed, would he unfair and prejudicial to

Appellants. This Court declines to order such a procedure at this

stage of proceedings.

The requirement of written findings upon which the decision is

based, is no doubt, not intended to be an idle exercise.:5 The

preparation of written findings will help focus board members on

the issues to be considered and aid them in making the correct

analysis. The record on appeal, in both these cases, contains

several examples.

The first example is the issue that has been raised in both

cases concerning neighbor approval. The question is whether the

owners of all properties within 200 feet of the property that is

the subject of the request for a zoning change must approve before

The law neither does, nor requires, idle acts. Sections 33~11-05,

Subsection 23 N.D.C.C.

Page 6

Case: 10-1092 Document: 1274850 Filed: 11/01/2010 Page: 78
any amendment to the zoning ordinance can be granted. 4 The county

commission argues that if necessary consents were not obtained,

that such an omission does not prevent approval of a zoning

amendment. The county commission suggests that the requirement is

intended to insure that adequate notice is given and provide a

straw poll of how affected landowners view the proposal. The

county commission suggests that this Court determine that the

requirement is not intended to provide landowners within 200 feet

4 Section 9.05 of the Stark County Zoning Ordinance provides as

follows:

Sec. 9.05 Amendment to the Zoning Ordinance and Map. Any ohange

in the ord:i.nance or map requires one public hearing and action by the

Stark County planning and zoning board and the county colD1l\issioners.

The application procedures are as follows:

1. Acquire application from zoning administrator or county

auditor, complete application and re-aubmit to the zoning

administrator.

2. The zoning administ.rator shall, forward said application to the

county planning and zoning commission at their next regularly

scheduled meeting.

3. The planning and zoning commission shall review and discuss

the request with the applicant and shall set a date for the

public hearing.

4. Notice of the amendment hearing shall be made in the following

ways:

(a) Once a week for two successive weeks, notice of the time

and place of the hearing shall be published in the

official paper of the county.

(b) The zoning administrator shall notify the applicant of

the time and place of said 'hearing.

(c) The applicant shall acquire the signatures of the owners

of all propert.ies within 200 feet of the property in

question indicating their approval of the proposed

changes.

5. The planning and zoning commission shall conduct the public

hearing and shall forward a recommendation to the county comm~ssion regarding the amendment. (Emphasis added.)

Page 7

Case: 10-1092 Document: 1274850 Filed: 11/01/2010 Page: 79
with a "veto" of any intended change, and that so long as adequate

notice has been given to affected landowners, the failure of an

applicant to obtain and provide the necessary consent is not fatal.

The county commission suggests that to avoid an absurd result, the

Court should interpret and add the words "or disapproval" after

"approval" to section 9.05 (4) (c) of the zoning ordinance in order

to accurately implement the intent of the provision.

Appellants argue that there is no ambiguity and the language

means what it says. Appellants argue that if the planning and

zoning commission members or county commissioners believe that this

provision creates a problem, that their solution is to amend the

ordinance. Appellants argue that the Court should not interfere or

ignore the plain language of the ordinance under the pretext of

interpretation of its true meaning.

While the -interpretation of a statute or ordinance is a

question of law, fully reviewable on appeal, it is a well

established principle of law that Court's give deference to the

reasonable interpretation of a statute, administrative code, or

ordinance by the agency or entity responsible for enforcing it.

Consolidated Telephone v. Western Wireless Cooperative, 2001 NO 209

7, 637 N.W.2d 699. Hecker v. Stark County Social Services Board,

527 N.W.2d 226, 234 (N.D. 1994). Americana Healthcare Center v.

Dept. of Human Services, 540 N.W.2d 151, 153 (N.D. 1995). It must

Page 8

Case: 10-1092 Document: 1274850 Filed: 11/01/2010 Page: 80
be noted, however; that this principle is most applicable when the

subject matter is complex or technical or the agency or entity has

special expertise. American Healthcare Center at 153. See Medical

Arts Clinic, P.C. v. Franciscan Xnitiatives, Xnc., 531 N.W.2d 289

(N.D. 1995). No deference is called for when the language is

clear. Matter of Stone Creek Channel Improvements, 424 N.W.2d 894,

900 (N.D. 1988).

The point is that by preparing the appropriate findings, the

requirements of Section 9.05 of the zoning ordinance, will have to

be considered by the planning and zoning board and county

commission. Board members will decide whether the provision needs

to be changed or whether board members believe they can proceed so

long as all landowners within 200 feet have been notified and

expressed their opinion. The county conunission's interpretation of

its own ordinance may be entitled to some consideration and

deference by a reviewing court.

Because this Court has reversed and vacated the county

commission's decisions on other grounds, the issue of neighbor

approval need not to be decided at this time and this Court deems

it inappropriate to do so. Needless to say, however; the planning

and zoning board and county commission should evaluate what is

required under Section 9.05 (4) (c) of the zoning ordinance.

A second example concerns consideration of the Stark County

Page 9

Case: 10-1092 Document: 1274850 Filed: 11/01/2010 Page: 81
Comprehensive Plan. Appellants argue that the amendments are not

in accordance with the Comprehensive Plan. The county commission

argues that the amendments do not contravene the Comprehensive

Plan. By preparing written findings, the planning and zoning board

and the county commission will have to focus on the Comprehensive

Plan, and explain their rationale, and why the proposed changes are

appropriate.

Other examples of why written findings are required, include

the other issues raised by the Appellants. The written findings

may explain what evidence members find credible and why the

evidence supports the proposed changes. The findings will also

show whether the planning and zoning board has considered all of

the relevant uses the granted amendments would allow in the newly

designated area. The findings may also explain why or how any

changes are consistent with the policies and goals of the Stark

County Comprehensive Plan. The planning and zoning board and

county commission will have the opportunity, should they deem it

appropriate, to address or consider in their written findings, any

or all of the issues raised by Appellants in this appeal.

Finally, because the decisions are being reversed and vacated

by this Court, it is not necessary for the Court to allow

reformation of the amended resolution filed April 16, 2008,

authorizing the zoning change in Case No. 08C-282. Because of the

page 10

Case: 10-1092 Document: 1274850 Filed: 11/01/2010 Page: 82
dec.ision of the Court and the passage of time since the original

applications, as well as the changes in board memberships, the

entire process will have to be followed again. Great Northern and

GTLE will have to resubmit their applications should they des;i.re to

pursue the zoning changes in qu.eation.

In summary, for the reasons set forth above~ the decisions of

the cOunty commission approving requesta.for zoning amendments, in

both of the above caaes, are reversed and vacated. Appellants

shall prepare and submit appropriate papers for entry of judgment

accordingly in both cases.

Dated this 22nd day of July, 2009.

CERTIFICATE OF SERVICE

A copy of this doc'Ultlent was on July 22nd, 2009, mailed or

ha.nd- delivered to:

DerriCk· .Braa.ten

AttorneY' at Law

222 N. 4th St.

Bismarck, NO 58501-4004

Tom Henning

Stark County State's Atty

P.O. Box 130

Dickinson, ND 58602-0130

Page 11

Case: 10-1092 Document: 1274850 Filed: 11/01/2010 Page: 83
Exhibit 38

Case: 10-1092 Document: 1274850 Filed: 11/01/2010 Page: 84
10/28/2010 THO 10,13 FAX 701 227 3185 Shrk County Clerk ~o 0 2/ 0 34

17612215842 SARAH VOGEL LAW PTNR PAGE 02/02

STATE OF NORTH DAKOTA

COUNTY OF STARK

)

Dakota Resource Council, )

Neighbors United, Myron and Nancy Eberts, )

Neil and Laurn Tangen, Brittany Huggins, )

and Frank and Lucy Hurt, )

)

Appellants, )

)

)

)

Stark County Board ofCounty )

Commissioners, )

)

Appellees. )

)

IN DISTRICT COURT

SOUTHWEST JUDICIAL DISTRICT

Case No.: / tJ{!. , :2/5

NOTICE OF APPEAL

FILED

MAY - 6 2010

D1STRI(:TCOlJRT. sfAfKco

NOTICE IS HEREBY GIVEN that Dakota Resource Council, Neighbors United, Myron

and NanJ;:y Ebrns, Neil and Laura Tangen, Brittany Huggins, and Frank and Lucy Hurt hereby

appeal to the Stark County District Court from the decision of the Board of County

Commissioners, Stark County, North Dakota, made on April 6, 2010, approving the application

for a zoning amendment with special use permits submitted by South Heart Energy Development

LLC and South Heart Coal LLC for properties listed inthe application.

Dated this 6th day of May, 2010.

sARAH VOGEL LAW PARTNERS

222

B~~'94» North 41h Street

Bismarck, NIl 58501-4004

Tell'lphone: 701-221-2911

Fax: 701-221-5842

Attorneysfor Appel/ants

/ '

Case: 10-1092 Document: 1274850 Filed: 11/01/2010 Page: 85
Exhibit 39

Case: 10-1092 Document: 1274850 Filed: 11/01/2010 Page: 86
10/28/2010 THU 10: 22 FAX 701 227 3185 Stark County Clerk

Introduction:

, South Heart Energy Development LLC (SHED) and South Hcart Coal LLC (SHC) propose to

construct and operate a coal gasification facility and adjacent surface coal mine, respectively on

approximately 7,780 acres in Township 139 North Range 98 West (T139NR98W) and on. an

additional 320 acres in T138NR98W. The area proposed for development is more specifically

described in Attachment I and illustrated in Figure 1. Togcfuer the gasification plant and the

surface coal mine are referred to here as the South HeartProject (project).

In order to allow the Project development to proceed as proposed, SIrED on behalfofitself and

SHC, requests that the Stark County Commissioners approve a zoning change for the area

described in Attachment 1 and illustrated in Figure I that would create an Indu>1rial district

within those boundaries and that the Projcct bc issued pennits for the following conditional uses:

~027/034

Chemical fertilizer plant;

• Coal gasification or conversion plants;

• Coal mines;

• Electric power generating plant

• Liquid, gas bulk, explosivc, highly compressed or other hazardous material storage;

• Mineral and other substance exploration or excavation and mining in accordance with the

provisions of Sec. 6.1 0;

• Solid waste landfill;

• Manufacture ofhazardous products; and

• Manufacture of odorous products.

Projcct Overview:

The Project, in its initial3-gasificr configuration, would gasify coal and produce the following

products for sale (amounts are approximate);

• 170 MWe ofhydrogcn-based electric power;

• 2 million tons per year of CO~ for use in enhanced oil recovelY; and

• 1 million tous per year sulfuric acid for use in fertilizer production and other

manufacturing processes.

The Coal Mine (Mine):

The SHC mine plan has been designed to provide approximately 2.4 million tons ofcoal per year

to supply the SHED gasification plant (plant). At that rate, coal included within thc boundaries

ofthe current minc plan would supply the Plant for approximately 30 years. Figure 1 shows thc

proposed boundaries ofthe current mine pits. Coal would be delivered from mine to th.e plant

via haul trucks over a dedicated Mine haul road. The Mine haul road would be entirely within

Pagc I of6

Case: 10-1092 Document: 1274850 Filed: 11/01/2010 Page: 87
10/28/2010 THU 10,22 FAX 701 227 3185 Stark County Clerk ~028/034

\

.• \ f

-\

)'

! the project property boundaries and would not intersect any county roads open to public travel.

The Mine haul road will terminate at the Plant.

Coal will be mined using scrapersto remove topsoil, bulldozers to remove overburden, shovels

and front-end loaders to remove coal and to load haul trucks. The Mine does not cUITently plan

to incorporate a dragline.

AB currently designed, under nonnal operations the Mine will operate one 8-hour shift five days

per week, year-round.

During the life ofthe mine certain existing county roads will have to be temporarily closed to

public use. Others wiU be re-routed rather than closed. SHC is committed to minimizing the

need for road closurcs a1td will endeavor to assure that necessary closures are kept as short as

possible.

SHC will focus primarily on public safety and maintenance of emergency services in the

development ofthe project t1'affic plan but will also take public convenience into account. SHC

has committed to submit a life-of-project tramc plan to the Stark County Road Superintendent

and Stark County Commissionersfor approval before commencing project construction.

The Gasification Plant <Plant):

The Plant would be sited in Sections 33 and 34 (Figure I shows approximate location). TI,e

main access route to the plant will be 122nd Avenue (beginning at the Old Highway 10

intersection) to 42nd Street and then west on 42nd Street apprOll:imately % of a mile to the main

entrance gate.

The plant will be surrounded by a chain-link fence with two primary gates at thc front (south)

a1Jd back (north) ofthe plaJtt. The front gate will be the main cntrance to the plant site off of 4200

Street and will be guarded around thc clock. The back gate provides access between the Plant

and the Minc 'md will also be continuously guarded.

As currently designed, the PlaJtt would receive run-of-mine coal (as-received coal) at the baek

gate via Mine haul trucks. Haul trucks will dump coal into the primary crusher, from which it

will be conveyed either directly to dowo..<;tream process umts or to intermediate storage.

The first downstream process unit would be the beneficiation unit Using technology developed

by GTL Energy, the coal will he dried and compressed into briquettes, after which it will be

conveyed either directly to downstream process units or to intermediate storage.

From the beneficiation unit, the briquettes would be introduced to the gasifiers in the gasification

unit where the coal would be converted to an irltermediate product called raw syngas. The raw

syngas would be routed directly (no intennediate storage) to a series ofdowlJstrcaro clean-up

processes that would remove sulfur, mercury, carbon dioxide and otherimpurities.

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The clean syngas would then be routed directly to another process unit that would convert the

clean syngas into hydrogen. The hydrogen would be routed directly to a combustion turbine as

fhe! for that engine. The combustion turbine would drive a generator that would produce

electricity. Using hydrogen as fuel for the combustion turbine is intended to significantly reduce

the CO2 emissions associated with electric power generation. The use of hydrogen as fuel for the

turbine would result in significantly lower C~ emissions than that emitted from a natural gasfired turbine ofthe same size.

Gasification Plant By-Products:

The sulfur removed from the raw syngas would be routed directly to a sulfuric acid plant which

would convert the sctlfur to 93% sulfuric acid for sale. The plant wOLtld include tankage for

storage ofsulfuric acid.

The mercury removed from the raw syngas would be recovered, temporarily stored and

ultimately shipped off-site for disposal in accordance with all local, state and federal laws and

regulations.

The carbon dioxide (C02) would be routed directly to off-site customers via pipeline for use in

enhanced oil recovery operations in the Williston Basin. As designed, the process would capture

over 92% ofthe carbon contained in the coal as C02 for use in nearby oil t1elds.

The gasillcation process produces a by-product called slag that is produced from the non-carbon

components ofthe coal. The produced slag is a granular, glass-like, non-~ardolls material.

SHED expects to eventually markct the produced slag for beneficial uses which could include

use as concrete aggregate, as raw m.aterial in Portland cement manufacturing and/or as road base.

However, until a beneficia! nse has been identified, SHED would manage the slag as a solid

waste. The slag would be managed in an onsite landfill in accordance with the applicable local,

state and fedcrallaws and regulations.

Water Use:

The mine pits will encroach into the local shallow aquifer that exists above the coal seam.

Nearby wells may be impacted. That impact may range from a small Urop in static water level to

a dry wcll. SHe has implemented a well survey program and solicited well owners within a 2-

mile radius ofthe mine property boundary to volunteer for the program_ Those solicitation.., have

been in the form ofletters and telephone cpJls to private well owners. Unfortunately, for a

variety ofreasons the well swvey program has not enjoyed 100% participation. Nevertheless,

SHC continues to encourage well owners to participate via letters and has a local technician

available to survey wells upon well-owners request.

As necessary to allow mining, water would be pll.'11ped from the pits to on-site retention ponds.

The retention ponds would se1ve as pollutiolJ control measures and as storage. As pollution

control measures, the ponds prevent mine "'ater from reaching and potentially polluting local

streams. As storage, the ponds serve as a reservoir for water that the Mine will use to control

fugitive dust from pit roads, hall! roads and other mining activities.

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The project intends to obtain watcr needed for the Plant from the Southwest Water Authority via

thc Southwest Water Pipeline. No groundwater will be used to serve thc plant. In fact, except

for the water pumped from the mine pits and used for dust control in the 1nine, no groundwater

will be used by the project.

Projcct-related Linear Facilities:

Thc projcct will require the construction and operation ofseveral linear facilities including;

• CO2 pipelines to transport captured C02 from the plant to the oil fields;

• Electric transmission lines to/from transmit power from the plant to/from a nearby

substation;

• Water pipelines to transport water to the plant; and

Natural gas pipeline to transport natural gas to the plant.

Alternative routes for those linear facilities are currently being evaluated.

Conditional Use Permits:

As described earlier, the Project concludes that in addition to !he requested zoning district

changes, it will require certain conditional use permits. Those conditional uses for which the

Project seeks permits and their corresponding codification in Section 5.08-B ofthe Stark County

Ordinances are;

~030/034

4. Chemical fertilizer plant;

5. Coal gasification or conversion plants;

6. Coal mines;

8. Electric power generating plant

10. Liquid, gas bulk, explosive, highly compressed or other hazardous material storage;

11. Mineral and other substance exploration or excavation and rnining in accordance with the

provisions of Sec. 6.10;

23. Solid waste landfill;

24. Manufacture ofhazardous products; and

25. Manufacture of odorous products.

4. Chemical fertilizer plant:

The project concludes that the produclion ofsulfuric acid may fall into this C<Jnditional use

category and requests this conditional use permit solely on that basis. Thc project anticipates

that the produced sulfuric acid will be used in off-site manufacturing processes to produce

agricultural fertilizers aJld requests tbis conditional use permil in order to allow compliant

construction and operation ofthe sulfuric acid plant.

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5. Coal gasificaticl'l or conversion pla...flts:

The project would includc a plant that would convert coal to several products via gasification.

The projcct requests tillS conditional use permit in order to allow compliant construction and

operation ofthe gasification plant.

6. Coal mines:

The project will include a surface coal mine. The project requests this conditional use permit in

order to allow compliant construction and operation ofthe mine.

8. Electric power generating plant:

[J031/034

Thc project will include an electric power generating plant. The project requests this conditional

use permit in order to allow compliant construction and operation ofthe power plant.

10. Liquid, gas bulk. cxplosive, highly compresscd or other hazardous material storage;

The project will include the storage of anhydrous anunonia, sulfuric acld, methanol, highly

compressed C02 - all ofwhich are considered "liquid, gas bulk, explosive, highly compressed or

other hazardous material storage." The project requests this conditional use pernlit to allow

complaint construction and operation ofproject components that requirc thc usc ofsuch

materials.

11. Mineral and other substance explnration or excavation and mining in accordance with the

provisions of Sec. 6.1 0;

The project will inolude a coal mine. Although the coal mine may be appropriately authorized

by the Industrial district conditional use 6 - Coal Mines, the project reqLLests this conditional use

pcrmit as a precautionary mcasure.

21. Solid wastc landfill:

The project proposes to incllL(le an on-site solid waste landfiJl for thc disposal of certain

construction waste and produced slag. The project requests this conditional use permit to allow

compliant construction and operation ofthat landfill.

22. Manufacture of hazardous products:

Thc project would produce sulfuric acid, a hazardous material, for sale. The project requests this

conditional use permit in order to allow compliant construction and operation ofthe sulfuric acid

plant.

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23. Manuf"ct'.:r~ ofodorous products:

[J032/034

The project would produce sulfuric acid. The sulfuric acid is a strong irritant and some

intermediate sulfur compounds created during the manufacturing process have an odor

characteristic ofrotten eggs. Although the plant will be designed to prevent the release ofthose

compounds to the atmosphere, upset conditions could result in temporary, shorl-ttmn off-site

odors. The project requests this conditional use pemtit ill order to allow compliant COl15truction

and operation ofthe sulfuric acid plant

· P ., .vV

Project ermltting: •;L/(r-' ~""l(.1 ,.

SHED and SRC will obtain all ofthe local, state and federal approvals ~uired for the compliant

construction and operation ofthe Project. Those approvals and the corresponding permitting

authority(s) include but are not limited to:

• PSD air quality pennit-to-construct (NO Dept ofReaIth);

• Surface coal mining permit (NO Public Service Commission);

• Gasification Plant Siting Certificate (NO Public Service Commission);

• Corridor Siting Certificate for COz pipeliI:le, electric power transmission line and natural

gas pipeline (ND Public Service Commission);

• Wetlands Disturbance (Army Corps ofEngilleers);

• Water discharge permits (ND Dept. of Health); and

Water Appropriation (NO State Water Commission).

Other permits, not included in the list above, will be obtained as necessary to comply with all

local, state and federal laws and regulations.

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