Artist's conception, Hidden HIlls Solar Electric Generating System | Image courtesy California Energy Commission
The ongoing California Energy Commission (CEC) assessment of the proposed Hidden Hills Solar Electric Generating System has gone into some unusual territory: the project developer has filed a formal motion with the Commission to try to restrict what the CEC's staff may address in the agency's environmental review process. And CEC staff don't seem happy about it.
BrightSource Energy wants to build the proposed 500-megawatt concentrating solar power tower facility on land in the Pahrump Valley, just inside the California state line. The project would include two 750-foot power towers surrounded by thousands of mirrored heliostats.
The developer, BrightSource Energy, filed a "Motion in Limine" in late August asking Energy Commissioners to impose a number of restrictions on the scope of the CEC's review of the project under the California Environmental Quality Act (CEQA).
Contacted for a comment, BrightSource spokesperson Kristin Hunter told ReWire "It is our policy not to comment on motions currently pending before the Committee outside of the official process."
A Motion in Limine is a request, usually made in the context of a court case, to forbid evidence from being considered in court. In the context of the Hidden Hills project, the motion asks that environmental review include only environmental impacts within California and limit the alternatives considered in the CEC's assessment to those BrightSource considers feasible.
Probably most importantly, BrightSource wants the assessment's Project Objectives to be defined rather strictly. In the motion, BrightSource asks:
That the... statement of project objectives must include the objectives "sought by the proposed project," including development of a 500 MW net solar thermal energy project using Applicant's proprietary technology
The project objectives as described in the CEC's Preliminary Staff Assessment, issued in May, are phrased thus:
Safely and economically construct and operate a nominal 500-megawatt renewable electrical generation facility resulting in sales of competitively priced renewable energy consistent with the needs of California utility companies.
There's nothing there about using BrightSource's proprietary technology, which means that a 500 megawatt field of photovoltaic panels, or parabolic trough facility, or for that matter a jojoba field with attached 500 megawatt biodiesel-fueled generating plant would fulfill that particular project objective.
And in fact, BrightSource's suggested revision to the Project Objectives may well have been generated as a response to CEC staff's willingness to consider photovoltaic generation as an alternative technology for the site. In a response to BrightSource's motion filed last week, CEC staff say as much in pleading their case to the Commissioners:
The objective of using "Brightsource's proprietary technology" would be inconsistent with the consideration of other widely used solar thermal generation technologies, or with photovoltaic technologies, even if these technologies would reduce or avoid significant project impacts of "power tower" technology.
The staff response continues:
Applicant's contention that only its technology is feasible for the project is undercut by the existence of numerous "solar trough" projects, and by the switch of several licensed thermal projects to photovoltaic generation--a phenomenon with which the Commission is well-acquainted.
It's definitely not in BrightSource's interest to have a photovoltaic alternative considered, as PV materials costs have been plummeting over the last few years and BrightSource, unlike some other solar thermal companies, has staked its corporate future on developing and refining its power tower technology.
Overall, the staff response is blunt, as seen in this summary passage from the second paragraph:
[BrightSource's motion] would have the Committee prevent its independent agency staff from performing the robust alternatives analysis that CEQA requires. Applicant wants an analysis that would impose artificially narrow applicant objectives for the "project objectives," impose Applicant's proprietary technology and pre-filing contractual agreements as alternative analysis feasibility boundaries, and thereby relegate all potential alternatives to the analytic scrapheap.
Motions in limine seem to be rare in California Energy Commission proceedings: a cursory search of the CEC's site revealed just one other such motion, filed by PG&E in 2008 in an attempt to rule inadmissible one piece of CEC staff testimony over the utility's effort to build a gas-fired turbine on the site of the decommissioned Humboldt Bay nuclear power plant.
In the court context, there is some criticism of such motions being used as a shortcut to a summary judgment, skipping the whole trial part altogether, rather than merely ruling out inadmissible evidence. In its response to the motion, the Center for Biological Diversity -- an intervenor in the Hidden Hills certification process -- argued that that criticism might be leveled at BrightSource's motion:
Although entitled a motion "in limine", which is generally a motion regarding the admissibility of evidence, applicant's motion conflates evidentiary issues in a motion more akin to a request for summary adjudication... Because there are many disputed issues of material facts related to the issues raised by the applicant in its motion, the issues presented cannot properly be decided by the Committee at this stage of the proceedings.
The Commission will issue its decision on BrightSource's motion by Monday.