U.S. Government Projections for Mississippi Power, Southern Company

In 2010, the U.S. Energy Information Administration projected that coal would drop to 44% of America’s electrical generation by 2035. Actual generation dropped to that level in 2011.

This week, the agency again adjusted its long-term figures for coal in the U.S., projecting that generation will fall to 39% by 2035. But groups on the front lines of fighting coal plants say those figures are still far too conservative.

Due to a combination of cheap natural gas, higher coal prices, increasingly cost-competitive renewable energy, and an aggressive community of activists working to prevent the build of new coal plants, the coal sector is facing an unprecedented decline in generation. At least, that’s what leaders of Sierra Club’s Beyond Coal campaign are saying.

“The pipeline has essentially dried up,” said Bruce Nilles, the senior director of the Beyond Coal campaign, to Climate Progress. “Our view is that the rush is almost over.”

Here are some of the top indicators for coal’s future that Sierra Club pointed to after this week’s release of the EIA’s figures:

  • At least 33,000 megawatts worth of existing coal-fired power plants are expected to retire in the coming decades, not including any retirements due to the recently-finalized mercury and air toxics standard from the Environmental Protection Agency. For reference, an average-sized coal-burning power plant is approximately 500 megawatts.
  • The biggest difference from last year’s EIA projection is that more coal retirements will be driven by rising coal prices, state renewable energy standards and EPA clean air standards. All these signs point to reduced market share for coal and expanded market share for clean energy.
  • No new coal plants are predicted to be constructed in the time period, beyond those few that are already under construction.
  • The share of electricity production from clean energy sources (including hydropower and biomass) should increase from 10 to 16 percent during the time period.
  • Overall electricity demand growth is expected to remain below one percent annually.

Certainly, the outlook for coal isn’t good. But there’s a common misconception that coal is completely dead.

A look at the pipeline for projects in the top chart shows that there are still a fair amount of projects underway. EIA projects the portfolio of plants in various stages of development will actually increase coal generation after 2015.

But the EIA reference case assumes no change to existing policy — meaning it doesn’t factor in a price on carbon or any upcoming Environmental Protection Agency standards for power plant emissions. The combination of those two policies could dramatically change the prospects for coal.

“I’d say that coal is on the ropes,” says Nilles. “Many of the plants you see in development are rural electric cooperatives and municipal projects — no merchant projects because of sticker shock. Our view is that the rush is basically over.”

There’s one other factor being ignored by current conservative analysis: the dramatic changes in cost of renewable energy versus the increase in cost for constructing coal plants. For example, In Mississippi, the $2.4 billion, 500-MW Kemper County coal plant is expected to raise rates by more than 45% — increasing the average monthly bill by roughly $60.

Compare that to the stunning drop in the price and installed cost of solar technologies. According to some estimates, the changing economics for coal plants — assuming a new one actually gets built — makes the resource less competitive than solar photovoltaics in many areas of the country over the next few years.  HERE

Southern Company Hides Electric Meter Dangers – Fires the whistle Blower and Hopes not to get Burned

Instead of investigating dangerous reported problems Southern Company COVERS IT UP!

“Smart meters should not be installed on any home, any

where, without a thorough safety investigation.

Manufactured agreed fail rate for the New digital smart meters 0.5%  Actual fail rate 9%!

Meters that Endanger: Shocking Details from a Whistleblower
by A O’Hair ( info [at] stopsmartmeters.org )
Friday Jan 20th, 2012 1:54 PM

Are smart meters just too complex? Are they veritable blackboxes(well, beige) of assorted electronic components, jury-rigged and thrown together in an off-shore factory, and then slapped onto houses without proper safety testing? Sure, we all have electronic devices in the home, but through this particular device passes all the electrical current for the house. That’s a set-up asking for trouble.

From the beginning, smart meters have had problems leading to fires and other electrical dangers. News stories have run all over the U.S. and around the world about installations leading to devastating damage. (Here’s a local SF Bay Area fire we’d like to see more fully investigated.)

A lawsuit made available to us recently detailed just how such faulty equipment could end up attached to the electrical wiring on millions of homes. In Alabama in 2009, a Sensus engineering employee named Don Baker was fired for repeatedly alerting his management to the presence of a multitude of dangerous defects in the smart meter they were manufacturing (model iConA). As he states in the complaint he filed, this whistleblower reported serious flaws in design and functioning that could lead to electrical danger, overheating, and/or fire. In fact, the failure rate of the meters was twenty times higher than it was supposed to be, and the engineer contends that at least two house fires were the result. Sensus meters are used by utilities across the U.S. and in Canada, such as PECO, Alliant Energy, Alabama Power, and NVE.

In May 2010, Mr. Baker filed a complaint [PDF]. The type of suit is called “qui tam”, where an individual alleges harm to his government. This complaint alleges that the manufacturer and the utility companies received federal monies but provided a defective product. The U.S. Attorney’s office in Alabama declined to pursue the case, because the utility said they had not received federal money for the metering project; but the allegations about the dangerous defects in the smart meters made in the complaint have not been refuted or even addressed.

In the complaint Baker relates in detail what makes the meters dangerous, and the allegations are damning—and alarming. A few highlights:

[Meters] may fail dangerously when subjected to a sudden surge of electricity …. Meters found to contain ‘flux’ or loose solder residue …. Calibration equipment not properly designed …. Electric resistor component defective …. Internal temperatures up to 200° Fahrenheit …. Hot socket alarm …. Drastic overheating to the point of catastrophic failure, melting, and burning….

Cutting corners in business and manufacturing is hardly something new; the difference here is just what is at stake: this product is installed in every house in a utility service area, and the electrical current for the house runs through it. Even a half-percent failure rate can result in serious amounts of property damage, or even death, given the total number of “customers”—though this word implies a voluntary acceptance of the product, when in fact installation of smart meters has been very largely involuntary. Truly optional consumer goods actually get more testing than smart meters.

The sort of defects and failures enumerated in this suit might well have been caught with an independent safety-certification process such as Underwriters’ Laboratories (UL). But these Sensus iConA smart meters, and every other type of smart meter, have never been subjected to such testing.

The suit states: “Mr. Baker has direct personal knowledge that Sensus and Southern Company [the utility] have installed approximately one million iConA meters in Alabama homes with knowledge that the meters are seriously defective and pose a substantial fire hazard and that at least two Alabama homes have burned as a result…. [They] were well aware that the iConA was defective and the entire project flawed.” [Emphasis ours.]

Baker submitted the information he had to the Office of the U.S. Attorney and the FBI in Feb 2010. He contends that the defendants named in the suit, Sensus, Southern Company, and Alabama Power, “perpetuated a fraudulent conspiracy” to obtain $165 million from federal stimulus funding.

These meters were never tested—for either for safety or performance—instead they went straight to out for installation. Then Sensus altered the components and design—again without safety testing. Only one percent of the Sensus meters were tested—for accuracy only—but never on a house while connected to the grid.

“It quickly became apparent that the meters were fundamentally unsound.” Baker states in the filing. “[The contract] carried an acceptable failure rate of 0.5%,” but in the first year, the meters were “failing at a rate of 9.0% per year.” Baker made reports to Sensus management about quality and safety issues, but he was ignored and eventually fired.

What was technically wrong with the smart meters that Sensus was producing? The suit alleges four categories of defects and failures: 1) Electrical Fast Transient Failures; 2) Flux Contamination and Inaccuracy Issues; 3) Faulty Components; and 4) “Hot Meters.” These technical issues are explained below.

The suit goes on to make three charges against the defendants: 1) False Claims; 2) Conspiracy; and 3) Suppression, Fraud, and Deceit. These legal issues are explained in more detail below.

Corporate recklessness—and lack of regulation to curb it—has remained a core issue in the smart meter debacle. From the Silver Springs Network antenna which increases the power of the radio over FCC limits (see page 14 of this CPUC doc), to arcing problems due to unprofessional installation, to multiple FCC violations, to the lack of any independent safety testingit is clear that if there had been effective government regulation, it could have changed the face of this “deployment” dramatically.

If you don’t like the idea of more government regulation, then how about consumer choice? If individual customers could choose between utilities, even choose their own meter—again, the landscape would also look very, very different.

But instead we are saddled with corporate utility monopolies, aided by government collusion, which adds up to a poisonous combination—whatever your political beliefs might be. It is an arrangement designed to enrich corporations, with impunity.

Why isn’t the public up in arms about these risks of smart-meter fires and explosions? There have no comprehensive investigations by major media. Early in 2011, a major news station in the SF Bay Area was doing work on this. They interviewed us several times as part of an investigation into smart-meter fires. What happened? The story never aired, and calls to the investigative reporters were not returned.

Without coverage in the mainstream media, people will be left to find out about this issue through social networks or independent media–or worse, suffer their own fire or property damage from the meter.

This is yet another reason why the proposed opt-out here in CA is—even with analogs—incomplete and inadequate. Given the growing evidence of fire risk and safety, this is not a device we should be forced to pay to avoid. Smart meters should not be installed on any home, any where, without a thorough safety investigation.

_____________________________________________________

Technical details from the lawsuit about Sensus meter defects:

1) Electrical Fast Transient Failures: The manufacturer and the utility were both aware, the suit alleges, that the smart meters (iConA) were unsafe and could fail dangerous when subjected to a power surge. [This was certainly evident for another make of smart meter, the one installed in Palo Alto last October.] One critical test was skipped for the Sensus meters, the Electrcial Fast Transient Test (EFT). When this test was performed on a sample of the iConA Sensus meters, they all failed. This was after over 80,000 meters were already installed.

2) Flux Contamination and Inaccuracy Issues. The complaint states that production of the iConA meters was sloppy. Sensus performed two investigations and found 130,000 meters contained loose solder residue called “flux.” They also found that equipment used by the manufacturer to calibrate was not properly designed, calling into question the accuracy of the meters. This was after 400,000 meters were installed—non of which were recalled for testing. Baker himself has investigated over-reporting meters, and found individual meters giving readings seven times the actual electrical usage.

3) Faulty Components. Baker alleges Sensus and the utilities had reason to suspect that some components that were going into the iConA meter were faulty, with very high failure rates. Well into the delivery process, it was found that an electrical resistor was defective on at least 85,000 meters. Over 170,000 meters were also found to contain another faulty component made by Epson.

4) “Hot Meters.” These Sensus meters, the complaint alleges, posed a risk of injury or death. Sensus knew that 19,000 installed meters were reporting a “hot socket alarm”—that is, the internal temperature was getting over 200°F. Sensus received reports of overheating to the point of melting and burning. The plaintiff Baker documented himself meters reduced to lumps of blackened plastic, while the company insisted a meter couldn’t melt at less than 500°F.

Ultimately it was bringing to the attention of his supervisors a burned meter that resulted in a house fire that ended Don Bakers career at Sensus. Instead of conducting an investigation, they fired him.

======

Legal details alleged in the complaint:

1) False Claims. The defendant in the suit, the plaintiff alleges, presented false or fraudulent claims to the U.S. government that their smart grid project was eligible for ARRA funds when it was not. The equipment was defective and unfit.

2) Conspiracy. The defendants acted with the intent to defraud the U.S. by submitting false records to obtain the funds.

3) Suppression, Fraud, and Deceit. The defendants misrepresented or suppressed the fact that the smart meter that formed the basis of their smart grid architecture was dangerously defective.

=======

Alabama house fires possibly resulting from defective smart meters:

Family Blames House Fire On Georgia Power Meter. http://www2.wjbf.com/news/2011/jul/06/appling-family-blames-house-fire-georgia-power-met-ar-2074493/ “Sparks started flying from the TV and power box.”

Atlanta house fire, due to power meter; double blow to Haitian family. http://www.wsbtv.com/videos/news/fire-deals-double-blow-to-haiti-family-in-atlanta/vCRzm/ “Faulty power meter sparked devastating house fire–twice.”

Alabama woman says smart meter is fire hazard. http://www.wset.com/Global/story.asp?S=13487932; The letter the city government wrote to Sensus [PDF].

Related Press: 2010 Article from Cleburne News (AL), which has since been scrubbed from their website: http://stopsmartmeters.org/wp-content/uploads/2012/01/CleburneNews-smart-meters-Feb2010.pdf

2010 Article from Montgomery Advertiser (AL) which has been since scrubbed from their website: http://stopsmartmeters.org/wp-content/uploads/2012/01/Montgomery-AL-smart-meters-Feb2010.pdf “The meter was … replaced five days before their double-wide burned to the ground…”

2009 Article from Georgia new site, since removed: http://stopsmartmeters.org/wp-content/uploads/2012/01/Electrical-fires-Georgia-Feb2009.pdf “…Steady stream of complaints about the meters since the devices went into general use ….The firemen
told him they are keeping records and turning in their findings to the electric company.”

Article from Atlanta news site, since scrubbed from website: http://stopsmartmeters.org/wp-content/uploads/2012/01/Atlanta-fire-smart-meter-Jan2010.pdf “A power surge … After firefighters put out the blaze, they said it reignited again hours later.”

Southern Company hopes you get burned not them.

Trial Over Removal of Spent Nuclear Fuel SYSTEM FUELS, INC., SYSTEM ENERGY RESOURCES, AND SOUTH MISSISSIPPI ELECTRIC POWER ASSOCIATION, V. UNITED STATES

SYSTEM FUELS INC. v. U.S.

SYSTEM FUELS, INC., SYSTEM ENERGY RESOURCES, AND SOUTH MISSISSIPPI ELECTRIC POWER ASSOCIATION, Plaintiffs-Appellants, v. UNITED STATES, Defendant-Cross Appellant.

Nos. 2010-5116, 2010-5117

United States Court of Appeals, Federal Circuit.

Decided: January 19, 2012.

ALEX D. TOMASZCZUK, Pillsbury Winthrop Shaw Pittman, LLP, of McLean, Virginia, argued for plaintiffs-appellants. With him on the brief were JAY E. SILBERG, of Washington, DC; and EVAN D. WESSER, of McLean, Virginia. Of counsel on the brief was L. JAGER SMITH, JR., Wise Carter Child & Caraway, P.A., of Jackson, Mississippi.
ALAN J. LO RE, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-cross appellant. With him on the brief were TONY WEST, Assistant Attorney General, JEANNE E. DAVIDSON, Director, HAROLD D. LESTER, JR., Assistant Director, SHARON A. SNYDER, Trial Attorney, MARIAN E. SULLIVAN and ANDREW P. AVERBACH, Senior Trial Counsel; and SCOTT R. DAMELIN, Trial Attorney. Of counsel on the brief was JANE K. TAYLOR, Attorney, Office of General Counsel, United States Department of Energy, of Washington, DC.
Before RADER, NEWMAN and DYK, Circuit Judges.
Opinion for the court filed by Chief Judge RADER. Opinion concurring-in-part, dissenting-in-part filed by Circuit Judge NEWMAN.

 

 RADER, Chief Judge.

On summary judgment, the United States Court of Federal Claims determined that the United States breached its contract with Plaintiffs-Appellants System Fuels, Inc., System Energy Resources, and South Mississippi Electric Power Association (collectively “Plaintiffs”) for the removal of spent nuclear fuel. Sys. Fuels, Inc. v. United States, 66 Fed. Cl. 722, 732-33 (2005) (“SFI I“). The trial court also granted summary judgment in favor of the Government regarding the implied covenant of good faith and fair dealing. Id. at 735. The trial court set damages for the breach at $10,014,114 as well as the cost of borrowed funds for financing the construction of the dry fuel storage project. Sys. Fuels, Inc. v. United States, 78 Fed. Cl. 769, 809 (2007) (“SFI II“). On reconsideration, the trial court reduced damages to $9,735,634 and denied the cost of borrowed funds. Sys. Fuels, Inc. v. United States, 92 Fed. Cl. 101, 114 (2010) (“SFI III“). This court affirms the trial court’s denial of borrowing costs and reverses the denial of overhead costs. On damages, this court affirms the trial court’s award.

I.

In 1983, Congress enacted the Nuclear Waste Policy Act of 1982 (“NWPA”), Pub. L. No. 97-425, 96 Stat. 2201 (codified at 42 U.S.C. §§ 10101-10270 (2006)), to provide for the Government’s collection and disposal of spent nuclear fuel (“SNF“) and high-level radioactive waste (“HLW“). The NWPA authorized the Department of Energy (“DOE”) to contract with the owners of SNF and HLW for disposal. 42 U.S.C. § 10222(a)(1). In return for the payment of fees into the Nuclear Waste Fund, the Standard Contract provided that the DOE would begin to dispose of the SNF and HLW “not later than January 31, 1998.” 42 U.S.C. § 10222(a)(5)(B); 10 C.F.R. § 961.11 (2011). The Standard Contract provides that “[t]he Purchaser shall arrange for, and provide, all preparation, packaging, required inspections, and loading activities necessary for the transportation of SNF and/or HLW to the DOE facility.” 10 C.F.R. § 961.11 (Article IV.A.2). Because collection and disposal of SNF and HLW did not begin on January 31, 1998, this court held in Northern States Power Co. v. United States, 224 F.3d 1361, 1367 (Fed. Cir. 2000), and Maine Yankee Atomic Power Co. v. United States, 225 F.3d 1336, 1343 (Fed. Cir. 2000), that the DOE had breached the Standard Contract with the nuclear energy industry. This case examines another chapter in the lengthy search for remedies for breach of the Standard Contract.

On June 30, 1983, System Fuels, Inc. entered into the DOE’s Standard Contract on behalf of itself, System Energy Resources, and South Mississippi Power Association. SFI I, 66 Fed. Cl. at 725. System Energy Resources and South Mississippi Power Association own Grand Gulf Nuclear Station (“Grand Gulf”). System Fuels, Inc. served as the purchaser under the Standard Contract. Id. The Nuclear Regulatory Commission issued a license to System Fuels, Inc. and South Mississippi Power Association to operate Unit 1 of Grand Gulf, whose SNF is stored in a “wet pool.” Id. In 2002, Plaintiffs began preparations to construct an Independent Spent Fuel Storage Installation (“ISFSI”) capable of holding additional dry storage containers of SNF until DOE complied with its removal obligations. Plaintiffs anticipated that the “wet pool” would reach capacity in 2007. Id.; SFI II, 78 Fed. Cl. at 783. The record shows that System Energy Resources and South Mississippi Power Association have paid almost $148 million into the Nuclear Waste Fund in accordance with the terms of the applicable fee schedule of the Standard Contract. The Government has not begun performing its duties and responsibilities under the Standard Contract. SFI I, 66 Fed. Cl. at 725, 730. As of March 4, 2005, Plaintiffs alleged that they had spent approximately $4.75 million to construct the ISFSI. Id. at 732-33. After this court rendered its decision in Indiana Michigan Power Co. v. United States, 422 F.3d 1369 (Fed. Cir. 2005), Plaintiffs amended the complaint to allege that they had incurred $12,178,000 in costs to plan and construct the ISFSI at Grand Gulf to mitigate breach damages. SFI II, 78 Fed. Cl. at 771.

Every 18 months, the reactor at Grand Gulf shuts down to facilitate removal of fuel assemblies, which are then placed in two onsite storage facilities for 20 to 25 days during routine maintenance. Id. at 779. In an effort to explore their options for dry fuel storage, Plaintiffs sought guidance from an engineering services firm in the commercial nuclear industry. This firm recommended the “best short-term option for increasing spent fuel storage capacity at Grand Gulf was to recover cells currently inaccessible in the existing [onsite storage facilities].” Id. at 780. Plaintiffs also contracted with a dry cask storage system company and explored long-term options. Plaintiffs undertook construction of dry fuel storage because the core of the Grand Gulf reactor would reach capacity in 2007, and, by their estimates, the Government would not remove waste until 2022. Id. at 781. As a business practice, Plaintiffs maintain a full core reserve—a practice beyond current federal requirements. Id. at 782. Plaintiffs determined that they could maintain this business practice through 2005 and, with cell recovery efforts, accommodate the SNF and HLW discharges through 2007. Id. at 782-83.

In constructing the ISFSI, Plaintiffs created six categories of capital work operations: spent fuel studies, ISFSI design and construction, cask fabrication facility, dry fuel equipment storage building, ISFSI electrical and security systems, and auxiliary building door modification. Plaintiffs recorded and tracked costs associated with the dry fuel storage facility. Id. at 783. Plaintiffs sought damages for the capital work operations, totaling $10,591,000, and cost of capital to finance these operations, totaling $1,587,000. Id. at 783, 785.

The trial court held an eight-day trial on damages. Id. at 773 n.2. The trial court did not specify an acceptance rate of spent fuel but determined that Plaintiffs should be awarded over $10,014,114 in mitigation damages for their capital work operations. Id. at 794, 809. The award did not include the cost of borrowed funds because, even though the trial court determined that Plaintiffs were entitled to recover this amount, it needed clarification and sought additional expert testimony before making a final decision concerning mitigation damages. Id. at 809-10.

The trial court revisited its causation analysis after this court rendered the following decisions: Yankee Atomic Electric Co. v. United States, 536 F.3d 1268 (Fed. Cir. 2008); Pacific Gas & Electric Co. v. United States, 536 F.3d 1282 (Fed. Cir. 2008); Sacramento Municipal Utility District v. United States, 293 Fed. Appx. 766 (Fed. Cir. 2008). SFI III, 92 Fed. Cl. at 102. The trial court held evidentiary hearings concerning causation and addressed the claim for the costs of borrowed funds. Id. at 103-05. The trial court reduced the amount of damages previously awarded to Plaintiffs for their “cell recovery efforts” and determined that England v. Contel Advanced Systems, Inc., 384 F.3d 1372, 1379 (Fed. Cir. 2004), barred the grant of an award for the cost of borrowed funds. 92 Fed. Cl. at 108, 111-12.

Plaintiffs appeal the trial court’s refusal to award the cost of borrowed funds and overhead costs as mitigation damages. The Government appeals on the ground that the trial court’s causation analysis did not include a comparison of breach and non-breach worlds under the Standard Contract. This court has jurisdiction under 28 U.S.C. § 1295(a)(3).

II.

This court reviews the factual findings of the United States Court of Federal Claims for clear error, Ind. Mich., 422 F.3d at 1373, including “the general types of damages awarded . . ., their appropriateness . . ., and rates used to calculate them . . .,” Home Sav. of Am. v. United States, 399 F.3d 1341, 1347 (Fed. Cir. 2005). “A finding may be held clearly erroneous when . . . the appellate court is left with a definite and firm conviction that a mistake has been committed.” 422 F.3d at 1373 (quoting In re Mark Indus., 751 F.2d 1219, 1222-23 (Fed. Cir. 1984)). This court reviews the trial court’s legal conclusions without deference. Yankee Atomic, 536 F.3d at 1272. This court provides the trial court with wide discretion in determining an appropriate quantum of damages. Hi-Shear Tech. Corp. v. United States, 356 F.3d 1372, 1382 (Fed. Cir. 2004).

III.

Plaintiffs sought $1,587,000 as damages for the cost of borrowed funds to construct their dry fuel storage facility. SFI II, 78 Fed. Cl. at 785. The trial court stated that its authority to award interest on a claim of damages is governed by the Judiciary and Judicial Procedure Rules of Decision Act, which states that “interest on a claim against the United States shall be allowed in a judgment of the United States Court of Federal Claims only under a contract or Act of Congress expressly providing for payment thereof.” SFI III, 92 Fed. Cl. at 110 (quoting 28 U.S.C. § 2516(a)) (internal citations omitted).

As this court stated in England, “[t]he no-interest rule is an aspect of the basic rule of sovereign immunity.” 384 F.3d at 1379 (citing Library of Cong. v. Shaw, 478 U.S. 310, 315 (1986); Smith v. Principi, 281 F.3d 1384 (Fed. Cir. 2002)). This no-interest rule denies claims for interest and “interest costs incurred on money borrowed as a result of the government’s breach or delay in payment.” 384 F.3d at 1379 (citing J.D. Hedin Constr. Co. v. United States, 456 F.2d 1315, 1330 (Ct. Cl. 1972); Komatsu Mfg. Co. v. United States, 131 F.Supp. 949, 950 (Ct. Cl. 1955); Ramsey v. United States, 101 F.Supp. 353, 356-57 (Ct. Cl. 1951); Myerle v. United States, 33 Ct. Cl. 1, 25 (1897)).

Although expressing concerns about the policy and uniform application of England, the trial court ultimately applied the rule of that case and denied interest. In Energy Northwest v. United States, issued after the trial court’s judgment in the present case, this court addressed those concerns and reaffirmed England, distinguishing it from cases where the Government has been held liable for interest. 641 F.3d 1300, 1310-12 (Fed. Cir. 2011). England therefore controls this case. Because the trial court properly applied England, this court affirms the trial court’s denial of the cost of borrowed funds.

IV.

Plaintiffs incurred additional overhead costs when managing the six capital work operations. Plaintiffs maintained a separate accounting for overhead costs, consistent with the Generally Accepted Accounting Principles and Federal Energy Regulatory Commission (“FERC”) regulations. The separate accounting, referred to as the “capital suspense loader,” includes the cost of administrative and engineering personnel supporting capital construction projects. J.A. 348-49, 351. These overhead costs consist of two pools: (1) administrative and general costs for personnel at corporate headquarters and (2) nuclear-specific costs for personnel at the Nuclear South headquarters and Grand Gulf site. J.A. 349. The trial court acknowledged that “DOE was aware that Plaintiffs were required to account to FERC for all costs incurred.” SFI II, 78 Fed. Cl. at 791. Originally, the trial court withheld these costs for lack of proof with “reasonable certainty.” Id. at 800. Plaintiffs then provided additional analysis showing that costs associated with the “capital suspense loader” were $497,619. The trial court then offset the overall damages awarded to Plaintiffs by this amount. SFI III, 92 Fed. Cl. at 104-05, 108.

As explained in Indiana Michigan, “[d]amages for a breach of contract are recoverable where: (1) the damages were reasonably foreseeable by the breaching party at the time of contracting; (2) the breach is a substantial causal factor in the damages; and (3) the damages are shown with reasonable certainty.” 422 F.3d at 1373 (citing Energy Capital Corp. v. United States, 302 F.3d 1314, 1320 (Fed. Cir. 2002)). In Carolina Power & Light Co. v. United States, this court affirmed the trial court’s awarding of overhead costs to a utility whose “internal accounting system uses specific codes to allocate a portion of [the overhead expenses] to particular projects . . . .” 573 F.3d 1271, 1276-77 (Fed. Cir. 2009). This court has previously determined that “the amount of damages need not be `ascertainable with absolute exactness or mathematical precision,’ [but that] recovery for speculative damages is precluded.” Ind. Mich., 422 F.3d at 1373 (quoting San Carlos Irrigation & Drainage Dist. v. United States, 111 F.3d 1557, 1563 (Fed. Cir. 1997)). In Energy Northwest, this court found that “mitigation activities generally were supported by certain overhead services that Energy Northwest provided for the benefit of all its operations (not only its mitigation activities).” 641 F.3d at 1309. This court made such a determination based on testimony “estimating the portion of . . . overhead costs fairly allocated to support . . . the mitigation via generally accepted accounting practices . . .” Id.

Thus, Plaintiffs may recover overhead costs incurred for mitigation-related work. The record shows that Plaintiffs used an internal accounting system with particular codes for the “capital suspense loader.” Further, the record shows that the internal accounting system allocates on a monthly basis the overhead associated with the pool and charges accounts for the appropriate project. J.A. 348-50. Thus, Plaintiffs used accounting procedures “as mandated by FERC,” J.A. 349, and “consistent with Generally Accepted Accounting Principles,” J.A. 351. The trial court clearly erred in finding that these accounting records did not “demonstrate the effect of the mitigation project on the capital pools entitlement with `reasonable particularity.'”

Therefore, because the record fully supports Plaintiffs’ proof of overhead costs, this court reverses the trial court’s grant of offset of damages for the “capital suspense loader” overhead costs.

V.

In Yankee Atomic, this court determined that a SNF utility company “had the burden to provide the contractual acceptance rate and apply that rate before suggesting that the Government’s breach was a substantial factor in causing the [Plaintiffs’] claimed expenses.” 536 F.3d at 1273. This court went further to state that “[w]ithout record evidence about the [utility’s] condition with full Government performance, the Court of Federal Claims could not perform the necessary comparison between the breach and non-breach worlds and thus could not accurately assess the [Plaintiffs’] damages.” Id. Plaintiffs bear the burden to establish the alleged mitigation costs were caused by the breach. Energy Nw. v. United States, 641 F.3d 1300, 1307 (Fed. Cir. 2011). “[A] defendant must move forward by pointing out the costs it believes the plaintiff avoided because of its breach,” but “with respect to both claimed costs and avoided costs, plaintiffs bear the burden of persuasion.” S. Nuclear Operating Co. v. United States, 637 F.3d 1297, 1304 (Fed. Cir. 2011); see also Boston Edison Co. v. United States, 658 F.3d 1361, 1369 (Fed. Cir. 2011) (the Government “may be responsible for affirmatively pointing out costs that were avoided” due to the breach, but once the Government has identified the plaintiff’s avoided costs, “the plaintiff must incorporate them into a plausible model of the damages”); Energy Nw., 641 F.3d at 1308 n.5 (“Once the defendant has properly articulated an offset, the burden shifts to the plaintiff to incorporate those saved costs into its formulation of a plausible but-for world.” (internal quotation marks omitted)). While in some places the trial court, without the benefit of our most recent cases, inaccurately placed the burden of proof on the Government, we do not think that this error affected the result.

In SFI II, the trial court determined that Plaintiffs’ mitigation was foreseeable:

[T]he record contains clear and convincing evidence that on June 30, 1983, it was “foreseeable” to DOE that, if performance could not be commenced by January 31, 1998, Plaintiffs would have to make interim arrangements to store SNF and HLW and DOE could have foreseen that such interim arrangements could entail the need to plan, design, and construct dry fuel storage and the [sic] incur costs to borrow funds to finance those mitigation efforts.

78 Fed. Cl. at 791. Additionally, the trial court determined that the costs of modification of the auxiliary building were “incurred to mitigate the Government’s partial breach.” Id. at 801. The trial court analyzed the costs associated with the auxiliary building modifications, procedures and programs to use the casks and dose assessment, implementation of the transfer and haul paths for the casks, and scaffolding. Id. at 800-06. The trial court’s analysis was based on the costs included in Plaintiffs’ claims for damages, offsets asserted by the Government, and comparison of “the real world versus the costs of the modifications in the non-breach world.” Id. at 800. The trial court determined that Plaintiffs’ costs were reasonable for several of the auxiliary building modifications and implementation of the transfer and haul paths for the casks. Id. at 801-04, 805. In contrast, the trial court awarded offsets for (i) the procedures and programs to use the casks and dose assessment and (ii) a portion of the scaffolding costs. Id. at 804, 805-06.

In SFI III, the trial court weighed evidence concerning causation of the contested damages and application of the 1987 Annual Capacity Report Rate. 92 Fed. Cl. at 103-04. The trial court heard testimony concerning Grand Gulf in breach and non-breach worlds and “determine[d] that [Plaintiffs] would have performed the cell recovery project even if DOE accepted SNF at Grand Gulf in 2006” and offset Plaintiffs’ award for damages based on the “appropriate `related’ costs.” Id. at 104. The trial court stated that Plaintiffs “advised the court that three adjustments should be made to the prior costs claimed,” which related to offsetting costs associated with Plaintiffs’ claims for “payroll loader,” “capital suspense loader,” and “equipment purchased, sequence design, and dose assessment.” Id. at 104-05.

The trial court also weighed evidence regarding the “cell recovery effort.” After comparing the breach and non-breach worlds, the trial court determined that Plaintiffs were “not entitled to include[ ] $184,208 for the cell recovery effort as damages.” Id. at 105-06. The trial court then applied this court’s holding in Yankee Atomic, 536 F.3d at 1268, and determined that the “reasonable foreseeability element was satisfied” and “the necessity to proceed with dry fuel storage at Grand Gulf . . . was caused by both the partial breach and DOE’s inability to guarantee the commencement of performance by 2005, when the spent fuel pool would reach capacity.” SFI III, 92 Fed. Cl. at 107. The trial court discredited Plaintiffs’ expert testimony regarding performance in a non-breach world because the expert was “not qualified to testify about nuclear power plant operations.” Id. at 108. The trial court offset Plaintiffs’ damages by $184,208 and awarded Plaintiffs $9,735,634 in nominal damages because the trial court determined that Plaintiffs did not meet their burden to prove that Plaintiffs would not have engaged in “cell recovery efforts” but for the Government’s breach. Id. at 108.

Review of the record shows that the trial court’s damages analysis in SFI II included comparison between breach and non-breach worlds, and offsets were awarded where appropriate. In SFI III, the record confirms the trial court’s application of the 1987 Annual Capacity Report Rate and also applicable additional adjustments. The record evidence further supports the trial court’s comparison between the breach and non-breach worlds for the assessment of damages. This court discerns no error in these determinations. Thus, the trial court accurately addressed causation as set forth by Yankee Atomic and applied offsets as necessary. This court affirms the trial court’s causation analysis and its revised nominal damages award.

VI.

Because the trial court properly adhered to the decision of England, this court affirms the denial of Plaintiffs’ claim for the cost of borrowed funds. This court reverses the trial court’s denial of overhead costs. This court affirms the trial court’s causation analysis and revised award of nominal damages.

AFFIRMED-IN-PART AND REVERSED-IN-PART.

COSTS

Each party shall bear its own costs.

NEWMAN, Circuit Judge, concurring in part, dissenting in part.

In this arena of varied Federal Circuit pronouncements on diverse facts, the court now carves an exception into the rule that damages due to breach of contract shall render the injured party monetarily whole. The rule, applicable to the government as to all contracting entities, is that when the non-breaching party is required to incur expenditures in order to mitigate the consequences of breach, the cost of those expenditures is compensable as damages. That cost of mitigation is not “interest on a claim,” but a component of damages. Thus the “no-interest rule” is inapplicable. I respectfully dissent from the portion of the court’s decision that denies recovery of such damages.

DISCUSSION

Analytical care is required to avoid blurring the distinction between the cost of money expended to mitigate a breach and interest awarded on a judgment for damages. The “non-interest” statute is directed to interest on an adjudicated claim:

28 U.S.C. §2516. Interest on claims and judgments

(a) Interest on a claim against the United States shall be allowed in a judgment of the United States Court of Federal Claims only under a contract or Act of Congress expressly providing for payment thereof.

This statute does not apply to the System Fuels situation. System Fuels incurred capital costs to construct an Independent Spent Fuel Storage Installation, a facility that was required to be constructed in view of the government’s partial breach of the Standard Contract for Disposal of Spent Nuclear Fuel and/or High-Level Radioactive Waste. “All capital raised by a corporation has a cost . . . .” LaSalle Talman Bank, F.S.B. v. United States, 317 F.3d 1363, 1375 (Fed. Cir. 2003). The Court of Federal Claims stated that the record establishes that System Fuels incurred $1,587,000 as cost of the capital expended to mitigate this breach.1 This cost is not “[i]nterest on a claim . . . in a judgment,” and denial of recovery of this cost contravenes the principle that “[t]he remedy for breach of contract is damages sufficient to place the injured party in as good a position as it would have been had the breaching party fully performed.” Indiana Michigan Power Co. v. United States, 422 F.3d 1369, 1373 (Fed. Cir. 2005). System Fuels’ cost of the capital required to mitigate the government’s breach is substantive damages, not interest on a claim.

This distinction has long been recognized. In Library of Congress v. Shaw, 478 U.S. 310, 314 (1986), the Court explained that “interest is an element of damages separate from damages on the substantive claim.” In Shaw the Court denied the enlargement in Title VII attorney fees due to delay in payment of the fees; the Court did not state a rule about costs of capital. Precedent well illustrates that the “no-interest rule” is not a bar to substantive damages. E.g., Peoria Tribe of Indians of Okl. v. United States, 390 U.S. 468, 471, 473 (1968) (rejecting the government’s invocation of the no-interest rule, and holding the government liable “for its failure to invest the proceeds that would have been received had the United States not violated the treaty”); Larson v. United States, 274 F.3d 643, 646 (1st Cir. 2001) (explaining that the award by the United States of investment proceeds on seized funds in United States v. Kingsley, 851 F.2d 16 (1st Cir. 1988) was not an award of prejudgment interest because “the award was in the form of damages directly caused by” the government’s breach of a plea agreement).

Recognition that damages include the cost of the money expended in mitigation is exemplified in the FIRREA cases, e.g., Bluebonnet Sav. Bank, F.S.B. v. United States, 266 F.3d 1348, 1357 (Fed. Cir. 2001) (“the increased financing costs” represented in the Economic Benefits Agreement are recoverable as damages); LaSalle Talman, 317 F.3d at 1374-75 (damages can include “the cost of capital”); Citizen Fed. Bank v. United States, 474 F.3d 1314, 1320 (Fed. Cir. 2007) (damages include the “expenses it incurred in replacing its regulatory capital after FIRREA had precluded thrifts from using regulatory goodwill or subordinated debt as regulatory capital”). The analogy is apt, for here System Fuels expended capital to provide storage facilities after the government breached its contract to store the spent fuel.

“Government liability in contract is viewed as perhaps `the widest and most unequivocal waiver of federal immunity from suit.'” United States v. Mitchell, 463 U.S. 206, 215 (1983) (quoting Developments in the Law — Remedies Against the United States and Its Officials, 70 Harv. L. Rev. 827, 876 (1957)); see United States v. Emery, Bird, Thayer Realty Co., 237 U.S. 28, 32 (1915) (the Tucker Act is a “great act of justice”).

Law and precedent establish government liability for the cost of mitigation, where government breach requires expenditures in mitigation. In Mobil Oil Exploration & Producing Se., Inc. v. United States, 530 U.S. 604, 607-08 (2000) the Court reinforced that “[w]hen the United States enters into contract relations, its rights and duties therein are governed generally by the law applicable to contracts between private individuals,” quoting United States v. Winstar Corp., 518 U.S. 839, 895 (1996) (plurality opinion). This court in Indiana Michigan applied “the general principle is that all losses, however described, are recoverable.” 422 F.3d at 1373 (quoting Restatement (Second) of Contracts § 347 cmt. c (1981)). The Restatement explains that “the injured party is entitled to recover for all loss actually suffered. . . . includ[ing] costs incurred in a reasonable effort, whether successful or not, to avoid loss.” §347 cmt. c.

The government’s argument that recovery of mitigation costs is precluded by its reinterpreted “no-interest rule” is as inappropriate as it is incorrect, and should be rejected by the court, not adopted and enlarged. As stated in Indian Towing Co. v. United States, 350 U.S. 61, 69 (1955), the court is not a “self-constituted guardian of the Treasury.” My colleagues err in holding that the cost of mitigation of governmental breach of contract cannot include the cost of the money expended in mitigation. I respectfully dissent.


Obama Commerce Dept. to investigate wind tower dumping

JunkScience.com

Isn’t any low-wage-made import from China/Vietnam essentially “dumping”?

View original post 26 more words

Al Gore’s Pledge Against Coal Energy

Image representing Al Gore as depicted in Crun...

Image via CrunchBase

Al Gore makes a pledge to defy any future coal plants that refuse CO2 capturing.  Coal Plants must embrace EGO GORE’s  false science or fail to exist.  Southern Company follows the pledge of Al Gore along with Mississippi Power.

Mississippi Power Rates are Decreasing $2 to Keep us Quiet

Is this the eye of the storm?  No, it is a marketing ploy.  Do not be fooled.  Mississippi Power will be utilizing an experimental device on this coal plant that captures carbon dioxide.  This experimental device is for “demonstration” and will use electricity (not able to produce any electricity) and has no benefit to the public.  Yet two of three Public Service Commissioners voted for the ratepayers to pay this unlawful fee.  It is against regulation to charge the ratepayers for something that is not for the public good.

To be lawful and in legal compliance our PSC would have to prove that there is man-made global warming from CO2 that is harmful to the ratepayers and therefore we would befit from it.  Or they would have to prove how ratepayers would financially benefit, and I doubt there is any other possible public benefit to the TRIG .

If you have an idea of a public  benefit to the experiment Transport Integrated Gasification (TRIG™) CO2 capturing device, let me know.   Who will be paying for the electricity utilized to conduct this experimental demonstration?  Mississippi Rate Payers!

JACKSON — State regulators have approved Mississippi Power Co.’s proposed decrease in the amount it recovers in its annual fuel filing.

Mississippi Power’s fuel costs are recovered from customers on a dollar-for-dollar basis. The company does not earn a profit on the fuel used to generate electricity.

Rate payers should not be paying for the electricity used in a for profit experiment by Southern Company on the backs of taxpayers in the form of tax credits.

Public Service Commission chairman Leonard Bentz says Mississippi Power customers will see an average of $2.20 reduction in their residential electric bills. Average usage is considered 1,000-kilowatt hours.

Bentz says the decrease should show up in utility bills as soon as February 2012.

Mississippi Power, a Southern Company subsidiary, serves approximately 188,000 customers in 23 southeast Mississippi counties.

SEISMIC ACTIVITY INDUCED BY THE INJECTION OF CO2 IN DEEP SALINE AQUIFERS

Ohio earthquake has brought more uncertainty to the Mississippi CO2 sequestration, the underground storage of CO2. When will the public demand answers and action.   Keep in mind that CO2 sequestration was initially developed as a result of United Nations meetings, when it was thought that CO2 was a poisonous gas that needed to be contained to prevent the end  of Earth and all its inhabitants due to global warming cooking us all.  We now know that the science behind the whack-o global warming scare was falsified  and a new group of independent scientist with credibility have demonstrated just the opposite. HERE  THERE IS NO GLOBAL WARMING CAUSED BY MAN.

ISSUES RELATED TO SEISMIC ACTIVITY INDUCED BY THE INJECTION
OF CO2 IN DEEP SALINE AQUIFERS

Abstract
Case studies, theory, regulation, and special considerations regarding the disposal of carbon
dioxide (CO2) into deep saline aquifers were investigated to assess the potential for induced
seismic activity. Formations capable of accepting large volumes of CO2 make deep well injection
of CO2 an attractive option. While seismic implications must be considered for injection
facilities, induced seismic activity may be prevented through proper siting, installation, operation,
and monitoring. Instances of induced seismic activity have been documented at hazardous waste
disposal wells, oil fields, and other sites. Induced seismic activity usually occurs along
previously faulted rocks and may be investigated by analyzing the stress conditions at depth.
Seismic events are unlikely to occur due to injection in porous rocks unless very high injection
pressures cause hydraulic fracturing. Injection wells in the United States are regulated through
the Underground Injection Control (UIC) program. UIC guidance requires an injection facility to
perform extensive characterization, testing, and monitoring. Special considerations related to the
properties of CO2 may have seismic ramifications to a deep well injection facility. Supercritical
CO2 liquid is less dense than water and may cause density-driven stress conditions at depth or
interact with formation water and rocks, causing a reduction in permeability and pressure buildup
leading to seismic activity. Structural compatibility, historical seismic activity, cases of seismic
activity triggered by deep well injection, and formation capacity were considered in evaluating
the regional seismic suitability in the United States. Regions in the central, midwestern, and
southeastern United States appear best suited for deep well injection. In Ohio, substantial deep
well injection at a waste disposal facility has not caused seismic events in a seismically active
area. Current technology provides effective tools for investigating and preventing induced
seismic activity. More research is recommended on developing site selection criteria and
operational constraints for CO2 storage sites near zones of seismic concerns.

More can be read here http://www.netl.doe.gov/publications/proceedings/01/carbon_seq/p37.pdf

Other related story HERE

Leonard Bentz says The whole (Mississippi Power Coal Plant) story is not getting told

Commentary: Big questions for Kemper County coal plant come down to who knew what and when

MBJ Staff

In May of 2010 we wrote, “For better or worse, the economic future for the next 40 years in southeastern Mississippi will be greatly impacted by the decision of Public Service Commissioner Leonard Bentz. ”

Justices with the Mississippi Supreme Court may be asking now how he came to his decision when he changed his vote from no to yes in a rehearing to approve the $2.8-billion Mississippi Power Company Kemper County coal plant.

Bentz and Lynn Posey have been for the project all along while Northern District Commissioner Brandon Presley has steadfastly been against Kemper, calling it, among other things, “Corporate Socialism. ”

However, Bentz has had questions before, particularly concerning rate impacts, which Mississippi Power has never fully disclosed.

“The whole story is not getting told,” Bentz told the Mississippi Business Journal prior to the second vote of the PSC. “It is frustrating. I want to build this plant, but I want everybody to know exactly what is going to happen when we build this plant. I have to look Gulf Coast residents in the eye and tell them I did everything I could to get the information on the table. ”

Yet, the entire story has not been told, and Bentz voted for the plant after publicly questioning its validity a year and half ago.

This case is before the Supreme Court because of the Sierra Club, which is trying to stop the construction of the plant already underway near Liberty. Sierra argues that the PSC broke the law by failing to lay out a clear reason for easing financial terms in its second vote.

“I did not see and still do not find anywhere where the commission explained to the court why this was now not too risky,” said Associate Justice Randy “Bubba” Pierce. “I want to know what happened between April 29 and May 26. What additional facts were submitted to the record?”

That’s a great question for Bentz, who is on the record saying, “The whole story is not getting told. ”

There are two more questions that should be asked.

Is the plant needed?

Will it work?

First, the plant is not needed, because Mississippi Power can supply energy to South Mississippi with natural gas, which the MBJ has reported will be less expensive over a 30 year period than the energy supplied at Kemper.

Second, in an editorial board meeting with Mississippi Power executives and its construction experts, they were not completely secure in the ability of the Kemper technology to work.

We asked if they could guarantee the technology would work when they flipped the switch for the first time at Kemper.

The answer, after a long pause, was no.

With that information, how could the PSC vote for, what amounts to, a $2.88 billion tax on the people of South Mississippi for energy that can gotten elsewhere — and for less money?

We suspect Mississippi’s Supreme Court will ask those question when all is said and done, and maybe, just maybe Bentz or someone will tell the rest of the story.

(here)

DID BARBOUR LOBBY FOR KEMPER COUNTY COAL PLANT?

It is not my original idea that Haley Barbour Lobbied and profited from the build of Mississippi Power and Southern Company’s experimental lignite coal plant in Kemper County.  I believe we can count on Phil Bryant to do a good job.

HERE

 

By BEN SMITH Politico

The news that Haley Barbour will return to his lobbying practice at BGR, the firm he founded and that made him a wealthy man, comes as anything but a surprise. Barbour, in fact, never really left. He has, as has been reported, continued to be paid from the firm — through a blind trust — as governor of Mississippi.

But that’s not Barbour’s only connection to the firm. He’s also continued to operate out of its Washington, D.C. office on at least some of his frequent trips to Washington, D.C.

A Democratic operative who filmed the video above when Barbour was contemplating a presidential campaign sends it over. In the video, shot last October, Barbour and his entourage enter BGR’s office.

“Doing a little lobbying, Governor?” the cameraman asks.

“Borrowing a cheap phone,” he replies.

That’s what BGR is known for: Cheapest phones in DC.

Mississippi Supreme Court Questions Kemper Coal Plant

Supremes Question Kemper

Residents near a planned 582-megawatt coal plant protested the project that threatens to raise their electric rates by 45 percent.

by R.L. Nave
Dec. 21, 2011

In all the pages of court records regarding a dispute between environmentalists and an electric utility company–pages that one Mississippi Supreme Court justice characterized as the most voluminous he has seen in his eight years on the court–one important piece of information eluded the justices.

What changed between April and May for the Mississippi Public Service Commission to reverse itself and allow Mississippi Power Co. jack up the cap on a 582-megawatt Kemper County coal plant by $480 million dollars?

“So far I don’t find anything in the commission’s order itself–and haven’t yet found in the record–what it is that would help me understand that the commission is justified in making this factual conclusion that the risks are now balanced,” presiding Justice Jess H. Dickinson said last week.

Brandon Presley, the PSC’s northern district commissioner, has an idea. Presley voted against fellow commissioners Lynn Posey and Leonard Bentz, of the central and southern district respectively, on the cap increase.

“The only thing I saw change was letters came in from Barack Obama’s energy secretary and Haley Barbour,” Presley said.

Last summer, Energy Secretary Steven Chu and Gov. Barbour wrote letters asking Presley to reconsider his opposition to Mississippi Power raising the price tag of the plant, which is now under construction. Presley balked at the idea, calling the project a bad deal for consumers.

“If President Obama or Governor Barbour like this plant so much, let them come up with a way to pay for it,” he told the Jackson Free Press last week.

Presley, along with consumer and environmental advocacy groups, has fought to oppose the plant, albeit for slightly different reasons at times.

“I have no problem whatsoever with clean coal technology,” Presley said. “I have a problem with asking the people of Mississippi to be guinea pigs.”

The Sierra Club opposes the 582-megawatt plant because it is slated to use experimental internal gasification combined technology to burn low-grade lignite coal. As the basis for its lawsuit against Mississippi Power and the PSC, the suit before the Mississippi Supreme Court, the Sierra Club also argued that the commission failed in its obligation to publicly explain its rationale for the reversal.

On April 29, 2010, Commissioners Posey and Bentz issued a decision limiting the ratepayer cost of the plant to $2.4 billion. Mississippi Power stockholders of Company would have to pick up any costs above $2.4 billion, they said at the time.

The Atlanta-based utility complained that it should be able to pass any additional costs down to the ratepayers, and warned that it could not afford to build the plant if not allowed to pass on all the costs, including those above $2.4 billion.

Less than one month later, the commission revised its decision May 26, allowing the company to charge ratepayers up to $2.88 billion for the plant. Mississippi Power did not publicly release the amount of the rate increase customers would shoulder as a result.

After being pressed by justices at the hearing, Sierra Club attorney Robert Wiygul said he obtained confidential information showing that ratepayers’ energy bills could rise as much as 45 percent.

Since the hearing, the justices are reviewing the remainder of the court documents and could bring the parties back to clarify some points before the three-judge panel or the full nine-member court. From there, they can remand the issue back to the PSC for review or strike provisions of the deal.

PSC Commissioners Posey and Bentz did not return calls by press time.

“I’m not counting any chickens before they hatch,” said Louie Miller, state director of the Mississippi Sierra Club. “I’m going to remain cautiously optimistic.”

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