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Is the Palen Solar Power Project a Done Deal?

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The proposed Palen Solar Electric Generating System | Image: Palen Solar Holdings

Documents posted to a state agency's website Monday indicate that that agency may not be taking public comment on large desert solar plants as seriously as the law requires, treating one project in particular as a done deal even before the environmental assessment process is complete.

The document in question: a transcript of proceedings held by the California Energy Commission (CEC) on a proposed 500 megawatt solar power tower project on 3,800 acres of public land in Riverside County. Intervenors in the proceedings have been waiting for this transcript for some time. At a October 28 hearing, CEC representatives said the transcript would be available the first week of November.

The CEC didn't actually make the transcript available until Monday, November 18, a surprising 21 days after the hearing, two and a half weeks later than participants at the hearing in Palm Desert expected. And so the CEC has extended that legal brief filing deadline, adding one more incremental delay to a project whose proponents have repeatedly said cannot be delayed.

ReWire reported November 7 that unusual delays in publication of the transcript of an October 28 public evidentiary hearing on the Palen Solar Electric Generating System, eyed for land west of Blythe, had forced the California Energy Commission (CEC) to grant more time for the public to file briefs with the CEC. When we reported the delay on November 7, the CEC had granted an extension on the filing deadline to just before the Thanksgiving holiday.

A notice posted Monday morning on the CEC's website formally extended the deadlines for opening briefs to November 26, and rebuttal briefs (which challenge the testimony of other participants in the process) now have to be filed by December 2. That deadline extension came in response to a request by the Center for Biological Diversity (CBD), an intervenor in the project certification process before the CEC. CBD had requested the previous extension as well.

All in all, the two extensions add a total of eight days to the deadline for filing opening briefs, and seven days for the rebuttal briefs deadline: a bit more than one third the CEC's delay in making public the transcripts on which some of those briefs rely.

While it would seem to make more sense to extend the deadlines by a period of time equal to the actual delay, Palen Solar Holdings (PSH) -- the joint venture of BrightSource Energy and Abengoa that wants to build the plant -- seems to have inadvertently dictated the length of Monday's second deadline extension in an objection to the first one:

The parties have had over 18 days to prepare briefs since evidentiary hearings have concluded and one week with the official transcripts is sufficient time to cite to the record for support.

And that one week with the official transcripts seems to be what intervenors will get, though it's still a week later than PSH would likely have preferred.

Why the delay in publishing the transcript? ReWire asked the CEC around the time of the first extension and were told that the agency hadn't gotten the document back from the transcription service yet, despite the fact that the transcript for the next day of hearings was transcribed, delivered, and made public by November 4. (ReWire's post on that section of the hearings came out the next day.) On Monday, the CEC's Sandy Louey confirmed to ReWire that the agency didn't receive the transcript from the court reporter until November 16.

This may seem like a lot of attention to pay to how soon an agency gets its documents published, but it's interesting to us here at ReWire for two reasons.

The first reason is that, as we've mentioned previously, PSH is walking a scheduling tightrope. In order to build the project, which is expected to cost at least $1.5 billion and probably more like $2 billion, PSH will have to secure both loans and investments. Potential lenders and investors will be looking at Palen's financial outlook before they make their decisions whether to commit their cash to PSH.

And a lot of that financial outlook rides on PSH meeting its projected completion date in 2016. A late start might mean missing out on a Federal investment tax credit for solar, which could run about 30 percent of that $1.5-$2 billion. That tax credit is set to expire on December 31, 2016, and projects not finished by that date lose out. And a late start could also jeopardize the contract PSH has with Pacific Gas & Electric, which has agreed to start buying power from the plant on December 1, 2016.

But there's another reason ReWire has been very curious about this particular day of hearing transcripts, and that curiosity prompted us to inquire at the beginning of November as to when they'd be made available. That reason is a statement during the October 28 hearing by CEC's hearing officer Kenneth Celli, to which ReWire had been alerted by a number of intervenors and witnesses.

The comment took place as Celli, who was facilitating the meeting on CEC's behalf, was attempting to remind witnesses of the CEC's preferred scope of the hearing. The hearing was officially intended to discuss PSH's amended design to a previous version of the Palen project, which former owner Solar Millennium successfully shepherded through CEC certification before going bankrupt in 2011. As the CEC had already signed off on that version of the project and the current proceedings involved PSH's design changes, Celli wanted to remind witnesses to restrict their testimony to those changes.

Here's what Celli ended up saying, as reflected in the long-awaited transcript:

I want everybody to understand that, the Petitioner is petitioning to amend an already licensed power plant that was to go into this site that was (inaudible) [trough] style solar just like Genesis is supposed to be. And what they're trying to do is change from their already approved power plant, which is the (inaudible) [trough] power plant, to the tower style power plant, it's all towers. So what the Committee is really interested in knowing isn't so much, like we're not -- there will be a power plant there. One of them, it's either going to be troughs or it's going to be this new amended tower.

Which sounded to ReWire awfully like stating that the fix was in at the CEC. That was especially striking given that the original version of the Palen plant never won approval by the Department of the Interior, which owns the land the project would be built on. The Bureau of Land Management's parallel environmental assessment process is ongoing; the public comment period on the Palen project's Draft Supplemental Environmental Impact Statement (SEIS) just ended on November 14, and the BLM is now collating those comments to include in a Final SEIS.

In theory, state and federal agencies conducting environmental assessments take public comment seriously enough that they might change or decline to approve projects with public opposition. In practice, especially when those agencies are the CEC and the BLM considering gigantic desert solar projects, that doesn't ever seem to happen. The CEC has greenlighted any number of renewable energy projects in the desert despite compelling opposition testimony from the public and from its own staff, citing the "overriding consideration" of California's policy of developing renewable energy generating capacity no matter the cost to the environment.

Celli's comment -- "there will be a power plant there" -- merely seemed to drop the lip service to public input that the CEC has maintained up until now.

And Celli walked his statement back a bit when CBD attorney Lisa Belenky responded:

Objection. Mr. Celli, you seem to be testifying... the BLM never approved the earlier project, and so your statement that there will absolutely be a power plant there either way is not accurate[.]

To which Celli responded "Yes, that is a fine point and let me correct that." Celli then reiterated his request that witnesses restrict their comments to the differences between the two designs, repeated his earlier statement that a power plant was already licensed on site, and failed to address the lack of a Federal Record of Decision on the project.

It's not certain from the transcript whether Celli meant "fine" to mean "that is an excellent point" or "that is a bit of nuance that is technically correct but not particularly important." ReWire asked in the first week of November to chat with Celli to give him a chance to clarify his intent: we haven't heard back from the CEC on that request. And it's possible the transcript may be updated and corrected: a few hours after it was published, Celli took the unusual step of publicly soliciting corrections to the document.

If the document does accurately convey the sense of Celli's remarks, that would be disquieting. The agency charged with assessing the likely environmental impact of a project the size of Palen seems to be treating public comment -- and the comment of other agencies -- as a mere formality to get out of the way before the bulldozers roll.

The California Environmental Quality Act (CEQA), which the CEC is charged with upholding in these proceedings, is one of the most stringent environmental protection laws in the world. Its public comment provisions are a boon to democracy and -- despite an all-too-common criticism -- an economic boon to the state.

Extending the deadlines for Palen's briefs by just a week after important materials have been denied the public for almost three weeks seems to indicate just how little weight the CEC places on public comment when a solar project is at stake. Celli's comments hinting that it's all a done deal anyway add insult to injury. Californians deserve better than to have their own state agencies treat public comment as an intrusive formality that serves only to delay business as usual.

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