Ohio environmental advocates are questioning the intent of a pending state law that would add nuclear power to the state’s legal definition of “green” energy.
House Bill 308’s sponsors say the legislation is meant to signal that Ohio is open for business when it comes to nuclear power research and development, but critics warn the language could have broader implications in the future.
“Legislators don’t just put something into the code unless it has meaning and purpose and value,” said Megan Hunter, an attorney with Earthjustice, one of several environmental groups challenging a similar 2022 state law that classified natural gas as a “green” energy source. “Why would you do this if it has no impact or meaning or effect?”
Critics fear the language could be used to greenwash power plants or divert public funding from renewable energy projects, though the bill’s sponsors deny that motive.
“It doesn’t promise any incentives or anything beyond simply placing nuclear under the category of green energy in the Ohio Revised Code,” said state Rep. Sean Brennan, a Democrat from Parma who co-sponsored the nuclear legislation with Republican state Rep. Dick Stein of Norwalk.
The General Assembly passed the nuclear legislation on Dec. 11. As of Thursday it was awaiting Gov. Mike DeWine’s signature.
Brennan said the question of why the language should be in a law instead of just a resolution didn’t come up in discussions with Stein, who initially asked him to cosponsor the bill.
Stein said the legislation is “about sending a signal to the market that Ohio wants to be a partner and won’t be an impediment,” in contrast to other states that don’t want nuclear energy. He said he hopes it will help attract jobs and federal funding, building on last year’s creation of a state nuclear development authority.
Stein would not speculate on follow-up steps lawmakers might take, saying his term in the House of Representatives ends this month.
What the law could do
Ohio does not currently have state incentives or policy preferences for “green” energy. The state’s renewable energy standard essentially ended in 2019 as a result of House Bill 6, the coal and nuclear bailout law at the heart of the state’s ongoing corruption scandal. Opponents testifying against the current legislation, though, said they worry the definition will be used to water down future clean energy policies.
“HB 308 will enable the manipulation of public funds into private, corporate hands,” said Pat Marida, a coordinator for the Ohio Nuclear-Free Network, in her December 13 testimony. Also, she said, “there is nothing ‘green’ about nuclear power,” referring to radioactive waste, which continues to be stored at power plant sites.
Future state programs might offer funding or other advantages for projects that meet the state’s definition of “green” energy, for example. And even if the definition doesn’t open doors to new government funding, it could provide cover to private companies that want to count gas and nuclear energy toward their climate or clean energy targets, another advocate warned.
“Insidiously, it does potentially become important,” said Nathan Alley, conservation manager for the Sierra Club of Ohio. Many companies have adopted clean energy goals, he noted. “This might telegraph to them that they could invest in nuclear energy and achieve the same climate and/or energy goals as if they invest in solar or wind.”
Ohio lawmakers aren’t the only ones who want to define natural gas and nuclear power as “green energy.” Model legislation finalized by the American Legislative Exchange Council this fall does the same thing. ALEC is a Koch-linked group that has long opposed renewable energy and actions to address climate change.
ALEC’s model bill would have its definition “apply to all programs in the state that fund any ‘green energy’ or ‘clean energy’ initiatives.” Another model ALEC bill would define nuclear energy as “clean energy” and put it on a par with renewable energy.
A coalition of environmental groups is currently challenging House Bill 507, Ohio’s 2022 law that labeled natural gas as “green energy,” arguing in court that the way in which it was passed violated the state constitution. The groups say last-minute amendments violated provisions that require bills to deal with a single subject – the initial two-page bill dealt with chickens – and call for at least three hearings in each house of the General Assembly where lawmakers can hear testimony from supporters and opponents.
That lawsuit has been briefed and is currently awaiting a decision from Judge Kimberly Cocroft at the Franklin County Court of Common Pleas. HB 308 should not affect that case, said Hunter and Alley.
As with HB 507, though, lawmakers added last-minute amendments to HB 308. One of those would extend lease terms for drilling under state park and wildlife areas from three years to five years. That was unacceptable to Brennan, who voted against the Senate amendments when it came back to the Ohio House.
Still, he supports what he views as the main purpose of the legislation: attracting more nuclear power to Ohio. In his view, solar and wind won’t be enough to meet growing energy demands while shifting away from fossil fuels in order to address climate change. “I believe nuclear is going to be hugely important for our energy independence, and hopefully Ohio will become an exporter of electricity in the future.”
Hunter wasn’t surprised that lawmakers made last-minute amendments to the bill. For her, it shows the importance of the ongoing litigation over HB 507.
“Those constitutional protections are there for a reason,” she said. “And seeing the General Assembly have blatant disregard for them again and again harms Ohioans. It deprives them of these constitutional rights.”
Since 2021, when North Carolina adopted a law requiring Duke Energy to zero out its carbon pollution, advocates have spent every other year poring over the company’s plans for supplying this state of 11 million with clean electricity.
As of late last month, the first phase of the new ritual is now complete: citizens turned out by the hundreds to public hearings around the state and submitted written comments; and dozens of organizations, businesses, and large customers filed testimony to the state’s Utilities Commission, charged with approving or amending Duke’s plan by year’s end.
A review of these comments shows clear dissatisfaction with Duke’s plan, which critics say is too reliant on gas and unproven technologies and too dismissive of resources like solar and battery storage.
But there are also a few powerful institutions pulling in the opposite direction. And their voices could grow louder in the coming months, as the state enters the next phase of in-person, expert witness hearings.
The law requires Duke to cut its carbon pollution by 70% by 2030 and at least 95% by midcentury, in line with scientists’ recommendations for avoiding catastrophic global warming. The statute directs regulators on the Utilities Commission to develop a plan to make that happen and to update the blueprint every two years.
Even as the popular, bipartisan measure moved through the legislative process, some critics worried it gave too much deference to Duke and did not make clear that regulators — not the utility — would chart the state’s path to a decarbonized electricity sector.
Still, after Duke in 2022 issued its first Carbon Plan proposal — a document covering hundreds of pages and including four different pathways for achieving net zero — a host of outside stakeholders put forward their own plans for the commission to mull, hoping the panel would pick and choose from them or even craft its own blueprint.
But in the end, after months upon months of expert hearings, public input, and thousands of pages of written testimony, the commission adopted Duke’s plan with few edits.
Rather than devise their own painstaking models to compete with Duke and its army of lawyers, engineers, and other experts, this time most organizations are starting with the company’s portfolios and critiquing key elements.
‘Most reasonable, least cost, least risk plan’
As in the lead up to the first Carbon Plan, this year Duke has proposed multiple routes to zero carbon by midcentury, with one clear preference. Offered in January after predicting a steep rise in electricity demand, that pathway is to add over 22 gigawatts of renewable energy and battery storage in the next decade, including from ocean-based wind turbines.
In the same time frame, the company wants to shutter most of its coal plants and add nearly 9 gigawatts of new gas plants, nearly three times the immediate build-out it proffered two years ago and one of the largest such proposals in the country. It also envisions two small nuclear plants of 300 megawatts each, about a seventh the size of the state’s largest nuclear plant outside Charlotte.
The company seeks to exploit exceptions in the state’s law to achieve a 70% cut in carbon emissions by 2035 instead of 2030. And while its plans to zero out its pollution are vague, they rest partially on building more nuclear reactors by 2050 and fueling any remaining gas plants with hydrogen – a technology still under development.
Still, Duke’s focus is on the immediate term. In its January filing, it sought support for “pursuing near-term actions that align with [its preferred pathway] as the most reasonable, least cost, least risk plan to reliably transition the system and prudently plan for the needs of…customers at this time.”
‘Imperative that the 2030 target be met’
Numerous commenters questioned that assertion, including the company’s premise that ratcheting down emissions more slowly than the law prescribes presents a “lower execution risk.”
Perhaps most notably, the Clean Energy Buyers Association, a group of 400 major corporations from a range of sectors with their own sustainability targets, argued forcefully against delaying the 2030 target.
“The ability of [our] members that are Duke customers to meet their clean energy commitments depends in large part on how clean Duke’s resource mix is,” the association’s Kyle Davis said in written testimony. He went on to say regulators should “only” approve a near-term plan that would allow Duke to cut its pollution 70% by decade’s end.
Similarly, a group of local government Duke customers with climate goals, including major cities Raleigh and Greensboro and small college towns Boone and Davidson, noted that Duke’s energy mix would dictate whether they could meet their aims.
“Due to the urgency of the climate crisis and the implications to the health and well-being of the constituents we serve,” the cities and counties wrote, “it is imperative that the 2030 target be met in the timelines specified in [the law.]”
Testifying for the office of the Attorney General Josh Stein, expert witness Edward Burgess noted that the commission has not yet abandoned the 2030 deadline and that, according to the law, the 70% cut could only slip past 2032 under “very specific conditions” that have not been met.
Regulators haven’t authorized a nuclear or wind project that has been delayed beyond Duke’s control, he asserted, and a delay wasn’t necessary to maintain the “adequacy and reliability of the existing grid.”
Recognizing Duke’s latest increased demand projections, Burgess urged commissioners to “set a clear directive for Duke to achieve the Interim Target by no later than 2032.” Otherwise, said the witness for the attorney general, the public interest would be harmed by the “increase [in] the cumulative tons of CO2 emitted, which would remain in the atmosphere for hundreds to thousands of years.”
‘Arbitrary limits on battery and solar’
The process by which Duke maps its generation plans over the next decade is complex and time intensive. But it’s aided by a computer modeling program that weighs various factors including costs to produce an optimal generation mix.
This method produces more solar and battery storage each year than Duke thinks is possible or appropriate to connect to the grid, so the company imposes manual limits on the computer program. Critics call that step unnecessary and damaging to the project of curbing carbon emissions in a least-cost manner.
“Solar [photovoltaic] is the cheapest source of carbon-free electrons on the grid now and for the foreseeable future,” testified expert witness John Michael Hagerty on behalf of the Carolinas Clean Energy Business Association. “All things being equal, the more generation… that Duke can get from solar PV instead of other resources, the cheaper it will be for Duke to comply with carbon reduction targets.”
Michael Goggin, an expert witness for the North Carolina Sustainable Energy Association and clean energy groups represented by the Southern Environmental Law Center, analyzed other grid operators around the country and estimated that Duke could connect around 4 gigawatts of solar and storage annually, compared to the upper limit of 2.8 gigawatts suggested by the utility.
“Duke’s arbitrary limits on solar and battery interconnection should be greatly increased if not eliminated,” Goggin wrote. “These limits do not reflect reality, and there are many potential solutions to the interconnection challenges Duke claims in its attempt to justify these limits.”
Pleading for more offshore wind
While numerous commenters were happy to see Duke move much more ambitiously toward offshore wind than it did two years ago, they noted the utility’s projected 2.4 gigawatts — enough to power about a million homes — fell significantly short of the near-term potential in ocean wind areas off the state’s coast.
“The Carolina Long Bay projects have the potential to reach more than 2 gigawatts, and the Kitty Hawk Projects have the potential to reach nearly 3.5 gigawatts,” two employees of wind company Avangrid testified. “Therefore, there is additional offshore wind resource beyond the Preferred Portfolio request available to North Carolina.”
The state’s Department of Commerce has taken a keen interest in offshore wind because of its vast potential for economic development. Jennifer Mundt, an assistant secretary at the Department, implored regulators and Duke to “set a path forward… that directs the deployment of at least 6.0 gigawatts of offshore wind by the mid-2030s.”
Such development is achievable with the Carolina Long Bay and Kitty Hawk areas, she said, and “will unlock billions in capital expenditures and tens of thousands of good-paying jobs for North Carolinians, and boost Duke towards its mandate to achieve carbon neutrality by mid-century – a true win-win-win scenario.”
A pair of experts testifying for the North Carolina Sustainable Energy Association noted that Duke would benefit from being a “second mover” on offshore wind in the United States: it could learn from the many other projects underway on the Eastern seaboard without putting ratepayers at risk.
In contrast, John O’Brien and Philip Moor warned that for small modular nuclear reactors, “it is unclear when the Companies will be a second mover… the only approved project design…has been cancelled, and the closest designs… are under development by TerraPower and the Tennessee Valley Authority.”
Skepticism of new gas and ‘advanced’ nuclear
Indeed, while most clean energy advocates believe large, existing, emissions-free nuclear power plants can play a vital role in curbing carbon pollution, several say Duke’s near-term pursuit of as-yet unproven small modular reactors over more readily available alternatives is a mistake.
“Given the long lead-times, nuclear experts have found that [small modular reactors] will do nothing to address climate change, as the technology is too little, too late,” Grant Smith, senior energy policy advisor with Environmental Working Group, testified on behalf of his group, Durham nonprofit NC WARN, and others.
Numerous stakeholders criticized Duke’s plan to build 10 new gas plants in the next decade, half of which would be large baseload plants forced by new federal rules to run 40% of the time or less. Not only would Duke customers be on the hook for these underutilized plants, critics argued, they’d also be subject to erratic fuel prices.
“In North Carolina, this volatility was at the heart of hundreds of millions of dollars of recent fuel cost increases approved by the commission,” expert witness Evan Hansen testified on behalf of Appalachian Voices. “The Companies’ proposed aggressive build-out of natural gas-fired power plants will only increase their exposure, and their ratepayers’ exposure, to the future volatility of natural gas prices.”
The company’s strategy of converting gas plants to run on hydrogen molecules separated from other compounds as late as 2049 also strains credulity for some.
“Duke’s general plan to build new natural gas-firing facilities and then transition those facilities to 100% hydrogen-firing faces significant technical uncertainty, infrastructure hurdles and costs,” testified William McAleb for the Environmental Defense Fund. The plants, he said, “are not necessary to maintain grid reliability, may never be co-fired with hydrogen, and will likely raise rates.”
The Clean Energy Buyers Association also suggested that Duke’s plan to supply its members with gas-fired electricity could backfire, causing the state to lose economic development projects and the utility to lose new customers.
“Some of the new load that Duke is forecasting may not materialize if Duke increases the carbon intensity of its resource mix as it has proposed to do in this docket, since some of the customers bringing new load… have clean energy targets,” the association’s Davis wrote.
If that happens, he said, “and Duke overbuilds with fossil fuel capacity, it would result in higher costs for existing customers and make it more difficult for existing customers to meet their sustainability targets.”
Amid all this criticism, support for Duke’s approach stood out, especially where the timeline is concerned.
Testifying for the Carolina Industrial Group for Fair Industrial Rates, a powerful consortium of manufacturers and other large Duke customers, Brian Collins asserted, “there is increased cost and risk in reliably meeting the interim 70% target by 2030. As a result, I recommend that the Commission not require Duke to meet the 70% emission reductions target by 2030.”
Public Staff, the state-sanctioned ratepayer advocate, believes that compliance with the interim pollution cut is possible by 2034 but not before. And the state’s 26 electric cooperatives, which buy electricity wholesale from Duke, expressed some concern about the speed of transmission upgrades necessary to add renewable energy to the grid fast enough.
A technical conference is scheduled for next week in Raleigh, and what is likely to be weeks of expert-witness hearings begin July 22.
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