Ninth Circuit verdict for rooftop solar is huge for fish & fish-eating animals too

(Beth Clifton collage)

Marine life––from fish to birds & otters––may be among the biggest beneficiaries of ruling on solar energy pricing

SAN FRANCISCO––A January 31,  2022 Ninth Circuit Court of Appeals appellate panel decision that never mentioned either animals,  fish,  or even marine life in general nonetheless could potentially save the lives of more marine life,  fish especially,  and fish-eating birds and mammals,  than almost any other case before U.S. courts in recent memory.

At issue in “Ellis v. Salt River Project” was solar energy pricing.

Understanding how this affects animals––by the billions per year––requires understanding that most energy generating,  whether by nuclear reactors,  hydroelectric dams,  or burning fossil fuels,  inevitably kills small fish,  especially fry,  and over time has killed some whole rivers.

(U.S. Fish & Wildlife Service photo)

Manatees are not the whole story

Proponents of nuclear power generating often point toward the Florida manatees congregating around the hot water discharge pipes from nuclear plants,  as if providing occasional refuge for the endangered manatees offset the harm to animals done when the plants pump sea water into their cooling towers.

Fish sucked into the cooling towers are scalded to death at the rate of thousands per day before the manatees are warmed by the thin seafood soup pouring out the other end of the system.

Hydroelectric dams harm fish in two other ways:  by blocking mature migratory fish such as salmon and steelhead from accessing spawning streams,  and by sucking young fish through their turbines when they try to swim down to the sea.

(Beth Clifton photo)

Power plants use more water than irrigation

Fossil fuel-fired electrical generating in the U.S.,  however,  uses more river water than any other industry,  about 10% more than all crop irrigation combined.

Explains the U.S. Department of Energy Technology Laboratory web page on Water Usage in Coal to Energy Applications,  “The main demand for water within a thermoelectric power plant is for condensing steam.  Thermoelectric power generation typically converts the energy in a fuel source (fossil, nuclear, or biomass) to steam and then uses the steam to drive a turbine-generator.”

While the steam is usually condensed back into water and re-used,  the Department of Energy web page continues,  “due to the evaporation of water to the atmosphere and the need to remove blowdown from the system, water consumption is relatively high.”

(Beth Clifton collage)

Rooftop solar generating saves animals by the billions

As at nuclear power stations,  any fish caught by the pumps are boiled alive.  Screens mostly keep larger fish and other aquatic animals out of the generating systems,  though they may die in their efforts to escape the suction from the pumps,  but the total cost of thermoelectric generating to fish life is beyond calculation.

Nuclear reactors,  hydroelectric dams,  and fossil-fuel-burning generating plants are where U.S. electricity suppliers have most of their investment and reap most of their profits.

But passive solar generating from rooftop collectors is the fastest-growing method of producing energy worldwide,  including in the U.S.,  and comes with practically no cost to fish,  birds,  mammals,  or reptiles of any sort.

(Beth Clifton collage)

Solar scares the energy industry

Increasingly effective competition from rooftop solar panels scares the white lightning out of the U.S. energy industry,  especially now that some electricity suppliers are being held liable for the contribution of poorly maintained power lines to devastating wildfires.

Major U.S. electricity suppliers are responding by seeking rate changes that would heavily penalize customers for using rooftop solar panels.

Historically,  rooftop solar panel owners have fed surplus electricity back into the electric company-owned lines during the daytime,  while using company-supplied electricity when the sun is not shining.  Rooftop solar panel owners usually generate far more electricity than they use during spring,  summer,  and fall,  but typically use more company-supplied electricity in winter.

Adding solar panels to this 20-year-old manufactured home in the foggy Pacific Northwest cut utility-supplied electricity purchases by more than 80%.

What the dam,  fossil fuel,  & nukers say

Electric companies at one time paid rooftop solar panel owners for the surplus electricity they generate.  More often these days,  electric companies issue credits against the cost of the electricity the rooftop solar panel owners buy at night and in winter.  Credits accumulated during spring,  summer,  and fall typically expire if not used by the end of winter––which guarantees the electric companies a net profit,  if not as big a profit as they would make if they supplied all the electricity the rooftop solar panel owners use.

Currently electric companies around the U.S. contend that electricity supplied to solar panel owners at night and in winter costs them more to generate than the value of the surplus electricity that they receive from the solar panel owners during daytime,  spring,  summer,  and fall,  when total electrical demand is less.

The electric companies argue,  further,  that issuing credits to rooftop solar panel owners at the average going rate for electricity amounts to subsidizing the rooftop solar panel owners at the expense of other customers,  especially low-income customers who cannot afford to buy houses,  let alone to install solar panels on the roofs.

(Beth Clifton collage)

Court rules that energy monopolies can’t soak solar panel owners

The court case “Ellis v. Salt River Project” is among the first tests of these arguments to reach the federal appellate level.

Explained Michelle Lewis for the online solar industry periodical Electrek,  “Salt River Project used to offer a net metering system that gave rooftop solar owners credit for excess power they generated. But in 2014,  the utility adopted a new pricing plan that said ‘solar customers who still need to be hooked up to the utility for times when solar is not available can be charged up to 65% more than under prior plans.’”

Summarized Judge Eric Miller for the Ninth Circuit Court of Appeals,  “In February 2015,  the [Salt River Project] board of directors approved the new pricing scheme.  At the same time,  it adopted a rate increase for its non-solar customers of only about 3.9%.  After adopting the new pricing scheme,  Salt River Project undertook a $1.7 million advertising campaign to promote its increased rates for solar customers.  Not surprisingly,  applications for solar-energy systems in [Salt River Project] territory decreased by between 50 and 96%.”

Pelicans. (Beth Clifton photo)

“Ruling is a game-changer”

Continued Miller,  a political conservative who formerly clerked for U.S. Supreme Court Justice Clarence Thomas,  “Coercive activity that prevents its victims from making free choices between market alternatives” causes antitrust injury.

In such a case,  Miller wrote,  “The plaintiff need only show that diminished consumer choices and increased prices are the result of a less competitive market due to either artificial restraints or predatory and exclusionary conduct.”

Said Center for Biological Diversity energy justice program director Jean Su,  “This is a game changer in the struggle to defend rooftop solar against utilities’ all-out war on clean,  affordable, climate-resilient energy.  For the first time,  a federal court has said utilities can be liable under antitrust laws if they attack rooftop solar.”

Editorially agreed Electrek,  “This ruling is a game changer,  and not just for Arizona. Americans generally do not have a choice in which utility they use for electricity,  and what Salt River Project did to its rooftop solar customers was completely unfair.”

(Beth Clifton collage)

Indiana Court of Appeals ruled in same direction

Added Emma Penrod for the online periodical Utility Dive,  “The Arizona decision follows a ruling in another rooftop solar case in Indiana,  where the Indiana Court of Appeals ruled that Southern Indiana Gas and Electric Company,  a subsidiary of CenterPoint Energy,  violated state law when it transitioned from net metering to instantaneous netting.

“The utility’s new method of calculating customers’ bills,  according to the court, did not comply with state law.  In Indiana, regulated utilities are required to charge customers based on the difference in the amount of power consumed and the amount of energy provided to the grid.”

What both the Ninth Circuit Court of Appeals appellate panel ruling and the Indiana Court of Appeals ruling mean for animals is that solar rooftop panel owners may continue to replace electricity generated at huge cost to fish,  other marine life,  and fish predators with harmless solar-generated electricity,  without fear of crippling financial penalties.

(Beth Clifton collage)

California Public Utilities Commission

The Ninth Circuit Court of Appeals appellate panel ruling came ten days after the California Public Utilities Commission indefinitely postponed voting on a proposal which,  if approved,  would have subjected the 1.3 million rooftop solar panel owners in California to a pricing scheme similar to the one used by the Salt River Project.

The California Public Utilities Commission proposal,  explained San Diego Union Tribune reporter Rob Nikolewski,  included cutting the compensation that solar panel owners receive for sending electricity back to the grid from the going retail rate to the ‘actual avoided cost,’  “which is much lower,”  Nikolewski noted.

The proposal further would have imposed a “grid participation charge” of $8 per kilowatt on the solar systems of residential customers,  adding from $40 to $50 to the bills paid by typical rooftop solar panel owning households.

Incentives would be introduced to encourage rooftop solar panel owners to add batteries to their systems.

“The goal,”  wrote Nikolewski,  “is that by deploying storage,  customers will help reduce strain on the grid during the 6 p.m. to 9 p.m. hours when solar production rapidly deceases as the sun sets.”

Bonneville Dam under construction in 1938; original fish ladder gate; original fish ladder.

22.3% fish mortality at hydroelectric dams

The need to transition as much as possible to rooftop solar electricity generation was meanwhile underscored on November 29,  2021 in a study published by the peer-reviewed scientific journal Conservation Biology entitled “Evident but context-dependent mortality of fish passing hydroelectric turbines,”  authored by Johannes Radinger,  Ruben van Treeck,  and Christian Wolter of the Leibniz Institute of Freshwater Ecology and Inland Fisheries in Berlin,  Germany.

Summarized the Leibnitz Institute team,  “Hydroelectric turbines put fish at risk of severe injury during passage. Therefore, comprehensive, reliable analyses of turbine-induced fish mortality are pivotal to support an informed debate on the sustainability of hydropower.

“We compiled and examined a comprehensive global data set of turbine fish mortality assessments involving more than 275,000 individual fish of 75 species.

“Average fish mortality from hydroelectric turbines was 22.3%.”

In other words,  one fish in five in rivers blocked by hydroelectric dams will be killed when sucked through the turbines.

(Beth Clifton collage)

EPA rules for thermal & nuke plants

The harm to fish,  and thereby to whole ecosystems,  done by electrical power generating has long been recognized,  albeit that relatively little has been done on behalf of the victims.

However,  acting on behalf of at least 2.1 billion sentient beings per year who are pureed or boiled alive by nuclear and fossil-fueled generating stations,  the Environmental Protection Agency [EPA] on May 19, 2014 issued final rules for water use in power plant cooling systems.

The EPA rules apply to 1,065 cooling structures at 544 generating stations,  most of them powered by coal or nuclear reactors.

Adopted after nearly 20 years of lawsuits and lobbying,  the EPA rules are meant specifically to protect fish,  vernal shrimp,  crabs,  crayfish,  and other species of importance to wildlife food chains.

Humane issues were not a consideration.  The EPA drafted the initial proposal to regulate cooling water intakes long before publication of recent studies demonstrating the previously much disputed capacity of fish and crustaceans to feel pain.

“Indian Point” director Ivy Meerpool, “Energy Matters” blogger Roger Witherspoon, and anti-nuclear power activist Marilyn Elie at the Tribecca Film Festival.

EPA & Nuclear Regulatory Commission numbers conflict

Pointed out ANIMALS 24-7 board member Roger Witherspoon at his Energy Matters investigative news blog site, http://spoonsenergymatters.wordpress.com/,  “In the last couple of years, the EPA has watered down the damage done by power plants to the aquatic environment. They used to say the toll was two trillion fish annually. Then, two years ago, they dropped it to two billion. When I asked why, they would not say.

“The Indian Point [nuclear] plants alone,”  now decommissioned,  “kill more than two billion juvenile and adult fish annually,” Witherspoon said in 2014. “ The hatchlings––those under half an inch in diameter––get sucked in through their screens, and cooked. They kill 300 billion of these annually,” according to Nuclear Regulatory Commission data.

“In determining that the overall impact on essential fish habitat [at Indian Point] is ‘small to moderate,’” Witherspoon wrote, “the agency noted approvingly that new screens installed in front of the 40-foot-wide intake pipes in 1984 had reduced the destruction of baby fish between 1984 and 1991 by 187 billion per year,” from nearly 500 billion per year previously.

(Beth & Merritt Clifton)

Noted Witherspoon, “In most states, if you catch undersized fish you would be fined.  But the Office of Management & Budget only sees value in the end product [of energy production] and the EPA has applied this rationale when examining the thermal impact of cooling systems.”

            (See Film “Indian Point” shows how nukes hit river life and EPA urges power plants to quit cooking fish & crustaceans alive.)

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