Southern Environmental Law Center, part 1

Jan Paynter: Cale Jaffe is the Director of the Virginia Office of the Southern Environmental Law Center or SELC, a nonprofit organization which utilizes the weight of the law to safeguard air, water and the unique ecosystems throughout the southeast. Cale received a BA from Yale University in American Studies and a JD and MA in Legal History from the University of Virginia. Cale Jaffe has been an attorney with SELC since 2004. From 2006 to 2013 Cale served as a lecturer at the University of Virginia Law School where he taught a seminar on Environmental Law and Federalism. Among his numerous academic and bar publications are “The Toxic Legacy of Coal Ash on Southeastern Rivers”, William and Mary Environmental Law and Policy Review which is forthcoming in 2016, and “Air in the Balance: Rewriting the Clean Air Act’s New Source Review Program”, Virginia Lawyer, 2005. In 2007 he was a member of the SELC legal team that achieved a unanimous victory before the U.S. Supreme Court in environmental defense versus Duke Energy. In 2014, Cale was appointed by Virginia Governor Terry McAuliffe to serve on the Governor’s Climate Change and Resiliency Update Commission. Welcome again, Mr. Jaffe.

Cale Jaffe: It’s great of you to invite me onto the program.

Jan Paynter: Well, I’m very excited about this today so there’s a lot of wonderful material for people to know about so we’ll get started. Before we begin our conversation about the mission of the SELC and the wide-ranging environmental issues which it works to address, Cale, tell us a little bit about your commitment to environmental law and why you entered into this field.

Cale Jaffe: The issues of environmental advocacy and having that connection to special places like we’ve got right here in Charlottesville has always been with me since childhood. I’ll tell you how I got into work at the Southern Environmental Law Center in particular. I was a law student here at UVA and knew that I wanted to get involved in environmental advocacy, knew that’s where my career was hopefully going to head and found out…first learned that SELC was headquartered right here and this is an organization that I knew of that had, although it was regionally focused really had a national reputation and just lucky that it was right here in the same town where I was going to law school. So I pretty early on got in the habit of heading on over to the law school or I mean rather heading on over to SELC and introducing myself to some of the folks there and if I saw a big SELC court win in the newspaper, sending off a little postcard to say, ‘Saw the story and let me know if anything opens up.’ And sure enough, after a few years of pestering them a job opened up.

Jan Paynter: All right. Let’s turn to the Southern Environmental Law Center, what its mission is, who works with your organization and the unique approach that you have to effect environmental change legislation.

Cale Jaffe: Sure. So SELC is…was founded in 1986. We’re now celebrating our 30th anniversary and founded right here in Charlottesville. But the focus of the organization is regional so we have offices in six states throughout the southeast. We are in Virginia, in Tennessee, North Carolina, South Carolina, Georgia and Alabama and the mission of the organization is straightforward. We leverage the power of the law to protect the air you breathe, the water you drink and the special places that you love throughout the southeast. That’s…and that’s…that mission has driven the work of the organization in courtrooms, in state legislatures, before environmental agencies. We are looking for the results oriented approach to achieve that mission.

Jan Paynter: That was one of the things that I was so impressed with your organization about is the sort of broad and inclusive…the range that you have looking at local, state and national issues. It was quite synthetic and wonderful I thought. What local, state and national groups are you in partnership with right now?

Cale Jaffe: The partnership piece has been a huge part of the SELC approach from day one. It’s very much about partnering with other organizations on the ground. So on our coal ash advocacy where we’ve been working to clean up some of the dirtiest, most significant threats to water quality on major southeastern rivers, we’ve been partnering with river keepers in those communities. So we’re working with groups like the Potomac Riverkeeper or the James River Association. In the uranium fight we’re working with the Dan River Basin Association and the Roanoke River Basin Association. So the people who live in those communities are essential partners for any work that we do.

Jan Paynter: Cale, I’d like to focus now on coal ash and why it poses a particular challenge to our drinking water in Virginia. Before the program you and I talked about looking deeply into concerns about water after Flint. What happens when coal ash slurries discharge into the rivers?

Cale Jaffe: So what you have is a lot of coal fired power plants, many of them 50 or sometimes 60 years old, that were built alongside major rivers throughout the southeast and the reason you build them alongside rivers is the power plants use water from the rivers in the boilers to generate electricity. So they need to be close to water sources. And obviously they’re burning millions and millions of tons of coal and when you burn all that coal, not surprisingly, you create millions and millions of tons of ash. That ash contains known toxics like arsenic, selenium and mercury. And what has happened is initially power companies looked to see what is the cheapest way for them to get rid of that ash and what they did and what was next to the power plants really nothing more sophisticated than digging a simple farm pond. You would have these lagoons next to the power plants. Many of them were unlined, entirely unlined, and they would simply sluice the coal ash from the bottom of the boilers into these lagoons. The lagoons of course are adjacent to major rivers and so you’ve got nothing but a simple earthen berm separating all of this coal ash waste from rivers and drinking water supplies. So that was the gist of the problem. And what’s amazing about it is you and I with our household garbage, we couldn’t just say, ‘I’m going to dig a hole next to my house and dump my garbage there.’ But that’s exactly what power companies have done for years with coal ash waste.

Jan Paynter: Approximately how many sites around the state have received a release of coal ash, Cale?

Cale Jaffe: Well, there are two important issues there. There’s… There are catastrophic events which of course capture the headlines and are devastating. December of 2008 in Kingston, Tennessee, there was a major failure of a coal ash lagoon, a berm that failed and dumped just millions and millions of gallons of coal ash down river and just completely devastating the communities downstream. There was another major catastrophic failure right here in Virginia on the Dan River Coal Ash plant on the North Carolina/Virginia border that dumped coal ash that spread as far as 70 miles downstream in the Dan River. So those catastrophic events get our attention but it’s not the only issue because what you also have is with these simple earthen berms, you’ve got coal ash wastewater leeching through…coal ash pollutants leeching through that earth and getting into drinking water, getting into the rivers and there are documented cases of private drinking water wells that show significant exceedances of pollutants from that coal ash.

Jan Paynter: How many years would you say Dominion and the Department of Environmental Quality, going to what you were just talking about, have been aware of the levels of toxicity resulting from the coal ash tributary and river release?

Cale Jaffe: Well, it’s amazing with Dominion and in particular in the Possum Point location, we know…which is a power plant site that’s right on a narrow peninsula between the Potomac River and Quantico Creek, about 25 miles south of Washington, DC along the Potomac River. There were monitoring data the Dominion had that showed exceedances of groundwater standards going back many, many years. I think as many as 30 years’ worth of data. What was truly amazing is at that site, the Possum Point site, you had two major coal ash ponds that Dominion had labeled Pond D as in dog and Pond E and it hadn’t occurred to anyone to really think, ‘Well, why isn’t there a Pond A, B and C?’ And in fact, as we dug into it, in going through the documents at DEQ, there had been a Pond A, B and C that had been completely forgotten about. They had been…they were overgrown, they were polluting the environment in the area. DEQ’s memo on it, the Department of Environmental Quality’s memo, referred to A, B and C as ‘previously unaccounted for’. They had just forgotten that they were there. So that was the state of the situation when we first engaged on it.

Jan Paynter: That’s incredible for a department that is supposed to be monitoring this. Another thing I was curious about, how does the Department of Environmental Quality issue permits for the release of coal into Virginia rivers?

Cale Jaffe: Well, that itself has been a very controversial piece of the story. There are…and there are two parts of this that are important to understand. On one hand you have the coal ash material itself, the leftover waste from burning coal and then in the lagoon on top of that you have the coal ash wastewater which is the water that’s mixed in there with the coal ash. What we saw this past summer on the Potomac River site was Dominion Virginia Power released into the river about 30 million gallons of that wastewater, the water that’s sitting on top of the coal ash, into Quantico Creek, into the Potomac River without any notice to the public this was going to happen and it’s not even clear what the Department of Environmental Quality knew. When we first inquired with the Department to say, ‘What’s going on here?’… And the reason we knew, by the way, working with our partner the Potomac Riverkeeper, there were photos of the site where you could see one photo from earlier in the year, a full lagoon full of water, and then in a later site no water, just the dry coal ash or the wet coal ash without the water on top of it. So we asked what happened to all that water. A concern of course we had it was dumped in the river. DEQ, their initial take was or their initial statement to us was, ‘No, it’s just they’ve just moved the water from one pond to another pond. Nothing’s been discharged in the river.’ Later we found out that was not the case. The water had been discharged into the river. And so there’s still a lot of work to follow up to figure out what actually happened there and how can we assure that something like that doesn’t happen again.

Jan Paynter: Well, that’s another question I had was what improvements could be made to the State Water Control Board so that you can address the issue of lax permits being issued also.

Cale Jaffe: The hard part is that the Department of Environmental Quality has historically been underfunded in Virginia. So it’s… I’m… I think that’s an important piece of the story that we don’t…the more that we cut budgets, the more that we rely on industry self-reporting as opposed to having officials who can go out into the field to check, the more we rely on modeling of what we think might be happening as opposed to actual monitoring to determine what is physically going on in the environment. I had a conversation a while back with Bob Burnley who is the Director of Department of Environmental Quality under Mark Warner when he was governor. And Mr. Burnley told me that when he was DEQ Director, for four years, two of the four years he was DEQ Director, he had to go to the General Assembly to ask for funding just to be able to make payroll, just to be able to keep the lights on at DEQ and pay his existing employees. That’s obviously skating by pretty thin and it shows that we’re putting a lot of pressure on our state bureaucrats to make due with very low funding.

Jan Paynter: You mentioned Duke Energy, a pollution of the Dan River in North Carolina and Virginia with 25 million gallons of coal slurry released. What kinds of lessons do you think we can draw from this and in your work how has your involvement with the case advanced your understanding of this issue?

Cale Jaffe: Sure. Well, I think one thing we’ve learned in North Carolina is there…is the danger of when an agency and the regulated industry, in this case Duke Energy, get so close to each other that it’s hard to have that independent oversight that’s required. The Department of Environmental Quality, whether in North Carolina or Virginia, is in many case supposed to be the cop on the beat there to protect our rivers, our drinking water supplies, our air from polluting industries that might threaten those important resources. And when the polluter and the cop on the beat get too close, you begin to lose some objectivity. In North Carolina, the governor of the state had been an employee of Duke Energy for 28 years before he became governor so there was already a cozy relationship. I think the other thing that we’re learning though is that there’s a lot of push back from the industry to say, ‘Oh, to move this coal ash would be too burdensome, too expensive, too impractical,’ and yet when push comes to shove it’s actually very doable and economically can be a positive for a community. In South Carolina we worked with one utility where the executive from the company lauded it as a triple win—a win for the environment because they were cleaning up coal ash, a win for their rate payers ‘cause they were removing this liability of having this potential significant threat on the river and a win for the local community because it was a job creating effort where coal ash was being dredged out of these lagoons and then taken for recycling in…to use as concrete. So those kinds of triple wins where there’s an economic benefit and an environmental benefit are proving that a lot of the usual push back just isn’t…doesn’t have legs to it.

Jan Paynter: Yeah, looking at what North and South Carolina, as you were mentioning, are doing to address this issue is instructive because so much of it is very positive. How can citizens find out about coal ash waste sites in their area, Cale?

Cale Jaffe: Well, that’s a great question. We’ve got a website at our website which is southernenvironment.org. You can also find a link there to…I believe the website is southeastcoalash. Certainly if you Google Southeast Coal Ash you can find it and there are maps there to help you find rivers in your communities and whether there are coal ash lagoons on those rivers.

Jan Paynter: In the southeast according to your own site’s information, one of the world’s largest contributors to climate change is the coal ash problem and emissions from power companies. But there is of course a dilemma for southern states and we talked a little bit about this before the program and that dilemma is the cost of upgrading outdated coal plants. Is retrofitting feasible in your view, is it more practical to transition to solar and wind technologies? What do you think about that?

Cale Jaffe: Well, it’s… I think it’s important to distinguish between the…sort of the full life cycle of coal pollution which you’ve got with an issue like coal ash and then the more specific questions of smokestack technologies. How can you control pollution that’s coming out of the top of the smokestack? EPA in its landmark Clean Power Plan, which was the nation’s first ever rule to address global warming pollution from existing power plants, documented or estimated that we could get some savings, a small amount of savings, through just increased efficiencies at existing coal powered power plants. That was going to be part of the solution was just making the plants more efficient. But the big opportunity and the reason why the Clean Power Plan is so exciting, especially for a state like Virginia, is the opportunity to leverage that rule as a clean energy job creation initiative. Let me back up and explain if I can how the rule works. So in a very traditional clean air act rule, what you might see is EPA, the Environmental Protection Agency, will come out and say, ‘Okay, here’s this…the pollution standard that we’ve set for this identified pollutant. This is the maximum rate of pollution that you’re allowed to make out of the top of your smokestack and you’ve got to bolt on controls onto that smokestack to address those concerns.’ What EPA said here is, because there was a lot of push back to that kind of approach, said, ‘All right, we’ll be as flexible as we can and we will say you can do those specific improvements at the plant to improve your emissions profile. But we’ll also give you the freedom to do what are called beyond the fence line improvements,’ sort of outside of the fence line of the power plant. So you can offset pollution through investments in energy efficiency, investments in solar energy, investments in offshore wind and that will…EPA will say, ‘We’ll let you count those clean energy developments to offset your pollution from your existing coal powered power plants.’ So in that sense it’s a very flexible, frankly fairly lenient approach to addressing climate change. It’s an important first step but of course it’s just the first step.

Jan Paynter: One of the things you and I talked about before the program was I mentioned former Congressman Barney Franks’ comments about coal company’s workers transitioning and how problematic that is. If a guy is 51 years old, he’s not going to easily transition to working in a different area so some of those folks are going to need financial support, some of them may already be sick with lung problems. So it’s a very complex problem and one can see why workers are…from coal companies are scared and resistant to this even though it’s obvious that we need to move away from such a dirty form of energy.

Cale Jaffe: The problem of diversifying the economy of the coal fields is critically important and I think it’s one that we all have to be sensitive and attendant to. The fact is that in recent years natural gas prices have been very low and have stayed low and the result of that has been a very aggressive transition away from coal plants to natural gas. I say this not to endorse gas necessarily but just to sort of comment that that’s what’s actually happening. You look at Dominion Virginia Power, in the last couple years they built a new gas plant in Bear Garden, Virginia, a new gas plant in Warren County, a new gas plant in Brunswick County and they’re proposing yet another new gas plant right now in Greensville County, Virginia. So that’s four major new gas plants just in the last couple years. That events is, at least in Dominion’s thinking, that they think gas is going to stay cheap for some time to come. The impact…what that means for southwest Virginia of course means that coal is in decline and you’re seeing that with bankruptcy of coal companies throughout the…really throughout the country. There are key ways that we can think of how to diversify the economy of southwest Virginia and really diversify the economy of Virginia as a whole. One is investing in energy efficiency. People often think of energy efficiency as, ‘Oh, maybe it’s turning down the thermostat and putting on a sweater,’ and that’s really not what it is about at all. What energy efficiency is is providing the same sort of comfort and quality of life that you’re used to, same cold beer in the fridge, same temperature in your home but doing it more efficiently, using less energy to get there. And so you do that through more efficient windows, through high efficiency AC units and heat pumps, through better insulation. And what’s great about all those things—the insulation, the heat pumps, the better lighting, all of that—what’s great about all that is it requires people to physically go to home by home, building by building and make those improvements. It has…I like to say—this is maybe too wonky. I love to say that energy efficiency has a great jobs per kilowatt ratio. There’s no way you can outsource the job of putting insulation in your home. Someone’s got to be hired to drive a truck to your home and make that installation. So there are a lot of great job creation opportunities in the energy efficiency industry.

Jan Paynter: Yeah, it’s a wonderful incentive to get legislators to be open to it once you bring up the issue of jobs which is so important. Well, this concludes part one of our program. Thank you so much for being here.

Cale Jaffe: Thanks so much for the opportunity.

Jan Paynter: Thank you at home for joining our conversation. If you would like more information concerning the topic under discussion today, we invite you to take a look at our website at politicsmatters.org. We will be posting a number of books, articles and relevant links on many of the issues under discussion today there for you. You can also find a complete archive of prior Politics Matters programs which you may watch in their entirety anytime. We will be posting extended versions of interviews online on our site as well and continue to be adding more content. You can also watch our programs on WVPT.net as they have an extensive archive. As always, we’re very interested in hearing from you with ideas, questions and concerns for future programs. We encourage you to email us at jan@politicsmatters.org. We are on PBS WVPT on the second and last Sunday of every month at 11:30 am. Thank you again and until next we meet, I’m Jan Paynter and this is Politics Matters.