After more than three years, Duke’s proposed Central Corridor Pipeline Extension Project is nearing a decision point.
Following many community meetings, public hearings in Blue Ash, thousands of letters, and three days of Adjudicatory Hearings in Columbus, both Duke and its opponents have filed post hearing legal briefs that serve as a summation of the Hearings, putting evidence and testimony in context.
With even a cursory look through the briefs, you’ll notice a stark difference between the arguments for the pipeline and the arguments against it.
Overview - Post Hearing Legal Briefs
In the Brief prepared by NOPE attorney James Yskamp, every assertion against the pipeline is backed by case law, evidence, and expert testimony.
NOPE's attorney presents a compelling, fact based case
Point by point, NOPE’s counsel dismantles Duke’s assertion that this pipeline is necessary, while questioning the level of due diligence that Duke and the Ohio Power Siting Board performed in evaluating this project.
By comparison, Duke’s arguments read more like a regurgitation of its original application, asserting the need for this pipeline without bothering to address any of the specific counterarguments made by NOPE, the Hamilton County Board of Commissioners, the many other intervenors representing several local cities and towns, and thousands of residents.
It’s almost as if, despite unprecedented local opposition, Duke is expecting to receive a rubber stamp..
We cannot allow OPSB decision makers to be a rubber stamping agency for the Duke Energy.
That attitude may be understandable, given the Ohio Power Siting Board staff’s inability or unwillingness to treat Duke’s application with even the slightest degree of skepticism.
At every turn, the Siting Board Staff appears to accept Duke’s statements at face value. While its own legal brief acknowledges widespread opposition to the project, it fails to consider any of the substantive points raised by that opposition.
Stunningly, the Board’s staff presents itself as rising “above the fray” of local groups, which “advance a parochial viewpoint opposing this pipeline". (This is an especially odd perspective, since Duke claims the pipeline is solely for local "parochial" use and benefit ).Regardless, it never seems to occur to the Siting Board staff these so-called “local interests” are Ohio residents, and those residents are the ones whose interests the Board is supposed to protect through rigorous independent analysis.
"First, they ignore you...
then, they ridicule you,
then, they fight you,
...and then, you win."
- Mahatma Gandhi
Here are the facts as NOPE understands them:
#1 - A new pipeline is not needed to replace aging infrastructure.
By Duke’s own admission, the company can and will continue to replace its existing infrastructure with or without the Central Corridor Pipeline. Much of its current system is being replaced already.
#2 - Demand for an entirely new high-pressure pipeline does not exist.
As the Ohio Power Siting Board staff admitted in cross-examination, data from the Ohio Development Services shows that the Hamilton County population is expected to decrease over the next 20 years. Meanwhile, Duke’s own Gas System Master Plan for this area describes limited customer growth and flat demand “due primarily to energy efficiency programs, better home insulation, and more efficient natural gas appliances.”
#3 - Duke’s propane air plants can provide safe and reliable supplemental gas well into the future.
Adam Long, who is in charge of Duke‘s propane plant operations, acknowledged in cross-examination that Duke’s propane peaking facilities are safe, up to date, and will continue to provide supplemental gas and pressure if a new pipeline is not approved. No qualified experts submitted evidence that the propane plant and caverns need to be retired, and Duke has not shown a single instance where the use of these plants has resulted in a service outage. Duke hasn’t even factored the cost of decommissioning propane plants into the pipeline’s $130 million price tag, which customers must pay if the pipeline is approved, and in fact Duke plans to keep using these plants for “several years” even if it gets a new pipeline.
#4 - The proposed pipeline is the wrong solution to address system “balance.”
NOPE’s expert witness, Dr. Jean-Michel Guldmann, asserted that the Central Corridor Pipeline would have little impact on balancing the supply of gas from northern and southern sources. Duke’s Gary Hebbeler acknowledged in his own statements that this pipeline would not meaningfully change Duke’s system balance or reduce outages if Duke’s current system experienced a major failure. If Duke’s goal is to improve balance, better alternatives exist that the Company did not even consider or investigate.
#5 - Duke relied on flawed methodology to prove the need for a new pipeline.
An independent audit found that the methods Duke has used to forecast natural gas demand are statistically invalid and have resulted in inflated forecasts.
#6 - Duke is gaming the system to escape stricter oversight.
By classifying the Central Corridor Pipeline Extension as a “distribution” line, Duke is hoping to avoid the more stringent integrity management plans that apply to natural gas transmission lines. Even so, the proposed project is similar in size and pressure to other transmission lines that Duke already operates, and it’s not being used for local distribution. Common sense tells us that a pipeline connecting one transmission line to another transmission line, without any lines feeding homes or businesses, is also a transmission line. Duke should not be allowed to escape appropriate oversight by relying on a dubious interpretation of state regulations.
As NOPE attorney James Yskamp points out in his arguments, the state’s official default position toward new pipeline projects is “‘shall not grant,’ and thus the burden of persuasion is properly on the applicant.”
In an ideal world, Duke would have to prove that this pipeline is necessary by addressing the many flaws, faulty assumptions, and glaring oversights in its arguments. And if the Company failed to do so, the State would act as a check against corporate greed and arrogance.
Hopefully, in the world of the Ohio Power Siting Board, staying “above the fray” won’t prove more important than protecting the public interest.
What happens next:
The next step will be filing of Rebuttal Briefs (due June 10th) and then all goes to the Ohio Power Siting Board, appointed by Governor DeWine. (See calendar at the end of this newsletter for more details.)
All the Adjudicatory Testimony, evidentiary documents, and Briefs are available in the Case Record (16-253-GA-BTX) of the OPSB website.
What you should do now:
1. Read some (or all!) of the post hearing legal briefs and share and discuss them with others.
These documents provide even more evidence that the Central Corridor Pipeline is not justified, that what Duke is doing is WRONG and OPSB Staff have done a great disservice to our communities through their lack of objectivity and due diligence. Here are links to the briefs for NOPE, Cinti/Hamilton County, Duke, OPSB, Blue Ash, Madeira, Reading and Sycamore Twp.
2. ContactGovernor Mike DeWine (particularly if you voted for him) andvoting and non-votingmembers of the Ohio Power Siting Board. Governor DeWine should demand that his appointees at OPSB and PUCO dedicate the appropriate amount of time and energy to become familiar with this complex project, why municipalites and citizens are vehemently opposed to the project . Voting and non-voting members must thoroughly and objectively review case documents and carefully consider evidence from all sides. Encourage them to review comments and watch some of the public hearings, so they can understand how their decision about Central Corridor Pipeline could affect real people. NOTE: Use information from the briefs, if that is helpful, and be sure to include your own perspective.
3. Please help us pay for the excellent work being done by our attorney James Yskamp.
For almost 3 years, James Yskamp's legal expertise, commitment to fighting for environmental justice against powerful companies like Duke, and empowerment of NOPE has been invaluable. His post hearing brief demonstrates the strong case he has been building for the NOPE Community.
Visit NOPE's GoFundMe page or send your check payable to NOPE c/o Glenn Rosen, 9228 Bluewing Ter, Blue Ash, OH 45236)
ADJUDICATORY TIMELINE 3/22/2019 - NOPE and other intervenors submit issue list of areas they might want to cross examinine witnesses 3/29/2019 - Duke submits factual and expert witnesses written testimony 4/2/2019 - Attorneys for NOPE and other Intervenors submit factual and expert witnesses written testimony 4/3/3019 - 4/8/2019 - Attorneys take follow up in person depositions from key witnesses 4/9/2019 - 4/11/2019 - Adjudicatory hearing in Columbus includes submission of all testimony, documents and materials to be included in the case record. Intervening attorneys cross examine selected expert witnesses from Duke and OPSB Staff, to identify and clarify legal issues related to the case. Expert witnesses for NOPE, Cincinnati and Hamiton County testified, and were cross examined by Duke. 5/13/2019 - Post Hearing Briefs filed by all attorneys focused on legal arguments and evidence 6/10/2019 - Response Briefs filed by all attorneys addressing legal arguments/evidence presented by Post Hearing Briefs Summer 2019 Briefs and record submitted and presented to OPSB Decision Makers TBD Petition for Rehearing
TBDAppeal to Ohio Supreme Court