October 2012 Issue
in a Tin
Why We Don’t Have
"Wetherby Cranberry Company Hosts Public Harvest Day"
“Down the rabbit hole…”
Federal Court Finds EPA Rule Illegal
In two cases decided a week apart, federal appellate courts this summer ruled the Environmental Protection Agency (EPA) acted outside the law by assuming control of pollution abatement programs the Clean Air Act designates as the responsibility of individual states.
On August 13, the New Orleans-based 5th Circuit Court of Appeals said the EPA acted without authority in 2010 when it invalidated a Texas program the agency had allowed to stand for 16 years. Then on August 21, a three-judge panel of the Court of Appeals for the District of Columbia Circuit ruled that the EPA’s Cross-State Air Pollution Rule (CSAPR) “violates federal law” and “must be vacated.”
Actions taken without statutory authority have become a recurring EPA theme. Six times since February, federal judges—including one Obama appointee and one Clinton appointee—have written opinions finding the agency wrote regulatory provisions or contravened the actions of states or other agencies without lawful authority to do so.
Trouble for Texas
The Clean Air Act directs states to design and administer “state implementation plans” to meet standards set by federal law and regulations. The EPA has authority to step in if a state fails to adopt a plan or adopts one that would fall short of meeting federal standards.
In the first of the two August decisions, the 5th Circuit said the EPA was “sixteen years tardy” in its July 2010 disapproval of Texas’ “flexible permits,” a 1994 creation of then-Governor Ann Richards that caps emissions but lets emitters decide how to comply. The court found, “Although the EPA acknowledges the distinct role of the states, which is congressionally called for in the design and enforcement of state implementation plans, the EPA based its disapproval on demands for language and program features of the EPA’s choosing, without basis in the Clean Air Act or its implementing regulations.”
The Clean Air Act requires EPA approval or disapproval of state implementation plans within 18 months after they’re proposed, and the court noted that the agency did not disapprove the program in 1994 or when it was amended in 1998, 2000, 2001, 2002, or 2003.
The court found that as a result of the EPA’s unlawful disapproval, “every facility with a flexible permit could face fines or other enforcement action irrespective of emissions levels.” But the point is largely moot for those most directly affected: Two days after the decision, the Houston Chronicle reported that 92 of the original 140 flexible-permit holders had already given them up for other permits and 42 had applied to do so. That cut the number of potential beneficiaries of the 5th Circuit’s ruling down to six.
Sentence First, Trial Afterward
The D.C. Circuit’s ruling eight days later followed consolidation of 45 lawsuits filed after the EPA finalized the CSAPR in August of last year. The court stayed the rule’s implementation last December 30, two days before it was to take effect.
Judicial review of the CSAPR was sought by “an array of power companies, coal companies, labor unions, trade associations, states, and local governments,” in the words of the court’s decision. Among the many plaintiffs were Wisconsin and 14 other states, Dairyland Power and other generation and transmission cooperatives, and the National Rural Electric Cooperative Association.
The CSAPR proposed to reduce emissions from power plants in 28 states, mainly east of the Mississippi, that allegedly hamper downwind states in complying with air quality standards set by the EPA under the Clean Air Act (CAA).
But the court found the linkage between an emitter’s actions and the proposed regulation too tenuous, writing, “The statute [CAA] is not a blank check for EPA to address interstate pollution on a regional basis without regard to an individual upwind state’s actual contribution to downwind air quality.”
“EPA has no authority to force an upwind state to share the burden of reducing other upwind states’ emissions,” the court said.
Also cited in vacating the rule was “a second, entirely independent problem,” that of the EPA brushing past the states’ statutory responsibility to create compliance plans. The court found that the EPA imposed its own plans simultaneously with finalizing the rule, denying states the mandated opportunity to develop their own.
“EPA’s approach punishes the states for failing to meet a standard that EPA had not yet announced and the states did not yet know,” the court said, later adding, “EPA pursues its reading of the statutory text down the rabbit hole to a wonderland where EPA defines the target after the states’ chance to comply with the target has already passed” (emphasis in original).
Jury Still Out
Neither of these decisions is likely to be the final word. The EPA was undecided about seeking a rehearing before all 17 judges of the 5th Circuit, and the D.C. Circuit remanded the CSAPR to the agency for further consideration.
In the meantime, the 2005 Clean Air Interstate Rule—which a different panel of the D.C. Circuit struck down four years ago—is to be enforced.
An eventual interstate rule similar to the EPA’s proposal can’t be ruled out, provided the agency finds a way to write one within its lawful authority, but that will be no trivial challenge. The court said it found the EPA’s arguments in defense of its actions “extraordinarily unpersuasive.”—Dave Hoopman, director of regulatory affairs, Electric Division, Cooperative Network
Treasure in a Tin
Safety Message Resounds in Unearthed 1950s Film
Editor’s note: The following piece was published in the August 13, 2012, edition of Electric Co-op Today, the newsletter of the National Rural Electric Cooperative Association.
Dwight Eisenhower was president and gasoline averaged 31 cents a gallon when this film was made. And in its day, it was a big hit with electric cooperatives and others in the power industry.
Then it was largely forgotten.
But thanks to a Wisconsin co-op, a new generation is discovering My Pop’s a Lineman—and finding that its safety message is just as important today.
The film was made in 1957, not by some Hollywood studio, but by students at a Wisconsin college, with co-op help. And you won’t find Kirk Douglas or Marlon Brando in a starring role; top billing goes to Herman C. Potthast.
Potthast worked for Wisconsin electric cooperatives as statewide job training and safety coordinator from 1943 to 1962. Potthast was so much in demand to talk about safety that he thought about making a film.
It came together with the help of students at what was then Stout State College in Menomonie, Wis., who assisted with writing and research. Potthast stars as a Dunn County Electric Cooperative lineman. His son, Bill, co-stars as a boy who foolishly tries to recover his kite from a power line.
Bill later accompanies his dad to work, as the 15-minute color film shows what can happen when chopping a tree near overhead wires, and how to stay safe if those wires fall on your car.
The Reel Thing
Fifty-five years later, few people working at co-ops remember the film. Jolene Neisius certainly didn’t.
“It’s our 75th anniversary this year, so I was digging through old boxes,” said Neisius, marketing and member services representative at what’s now Menomonie-based Dunn Energy Cooperative.
Her search for photos yielded a surprise.
“At the bottom of a box was a big round tin. We popped it open.” Inside was a film reel. “We obviously had no way to watch it, no idea what sort of shape it was in.”
So the film was brought to a company that transferred it to DVD.
Once converted to a 21st century format, Dunn Energy employees were able to re-debut the film. It starts with dramatic Cold War-era music and a narrator intoning, “Properly harnessed, power is a vital servant of mankind. But it can also cause injury or death!”
“My first thought was, ‘Oh, this is going to be cheesy,’” Neisius said. But it soon won her over.
“I just sat back and thought, ‘This is actually pretty cool.’”
Unearthed last February, the film received a warm reception the following month at Dunn Energy Co-op’s annual meeting. Some longtime co-op employees even recalled working with Wilbur Hake, Dunn’s former line superintendent, who appears in the film.
“It was just fun to watch,” Neisius said. “Everybody got a kick out of it because it is so very 1950s.”
My Pop’s a Lineman debuted at a 1957 National Rural Electric Cooperative Association regional meeting. In its heyday, it was shown as far away as Thailand and Israel. Co-ops and other utilities screened it, along with schools and even the U.S. Army.
“It’s still relevant, and if you take notice, a lot of the equipment our linemen still use today,” Neisius said, such as a bag Potthast carries his gloves in.
Neisius put the video on YouTube and will include it on Dunn Energy’s revamped website being unveiled this fall.
“I’ve been in touch with our local historical society. We have so many pictures of the area from 75 years ago,” she said. Plans are in the works to give them copies of the photos and the film.
“I think our old pictures should go somewhere other than a box in our attic.”
— Michael W. Kahn, Electric Co-op Today
by Perry Baird
Former Editor Les Nelson and his alter-ego, Alkalai Ed.
Note: Les Nelson, longtime editor of this publication, regularly wrote a folksy column under the pen name “Alkalai Ed.” In recognition of October Co-op Month, we reprint his thoughtful piece that ran 37 years ago this month.
“Seems to me like we're mixing apples and horseradishes here,” said my friend and neighbor Oliver Torstenson during the whoop-te-doo about co-op month last year.
He was looking at a list of co-ops in the area, and all kinds of them there were, with grain to store, groceries and blue jeans to sell, milk to market, gas to pump, and electricity to distribute.
“The co-op store looks more like the K-Mart than it does like the grain elevator,” he said. “The electric co-op fits better with Northern States than it does with a gas station and a bunch of milk producers.”
“What you say is true if you are putting together the yellow pages of the telephone directory,” I told him. “But suppose you wanted to be the owner of a department store, an electric utility, or a grain elevator. Run your knobby old finger down the columns of the yellow pages and see how many you could afford to own. On the other hand, on this co-op list, there's not a one you couldn’t afford to be an owner of.”
“I know what you're getting at,” he said, “but I am not overwhelmed by your idea of ownership. That's pitiful
“Small it might be, but pitiful it is not because there is nothing bigger. It is unsurpassed. There is no way anybody, no matter how much money he has, can get more than the one vote you have. That’s one thing that really sets co-ops apart. For just a small membership fee you can get a piece of something big.”
Earnings in Proportion
Oliver was getting that far away look in his eye that he always gets when I preach, but he came back for one more question.
“Treat everybody alike, eh? You mean to say if I do business with a co-op, no matter how much of it I do I get no more say in how the co-op is run than the guy who does hardly any business at all?”
“No more say, just more money.”
At that, I knew his ears would perk up, and he put a silent question mark on me.
“Patronage refunds,” I told him, “or capital credits, or whatever they are called in the co-op you happen to be a member of. Money collected above and beyond the actual cost of doing business. Earnings are the property of the members in proportion to their patronage. That’s another thing that sets co-ops apart from other businesses and puts them together in a group, no matter what kind of service they provide.”
Oliver got his hands on a telephone directory while I talked, opened up the yellow pages, and let on to be studying them up one column and down the other.
When I paused he looked up and said, “If the co-op way of doing business is so all-fired great, how come it is that most of the listings here are not for co-ops?”
He had me there, and the best I was able to come up with was a sort of a fuzzy answer about co-ops existing only to meet needs, and most of the needs people go to the yellow pages for are being met by some other way.
It was not until much later, by myself in the dark listening to the radio, that I was reminded of a better reason, and a related one.
There was a news story on the air about a conference of nations in which there was not one single honest-to-goodness democracy.
Then I remembered that the U.S. is the world’s oldest democracy. We are young as nations go but old in terms of keeping a difficult form of government alive. Democracy is a rare bird. Requires a lot of attention. Takes high ideals and a lot of work.
Cooperatives are democracy in the market place. We shouldn’t wonder why there aren’t more of them, but rather we should be thankful that we have as many as we do. I guess that’s what co-op month is for.
The season is fast approaching when
tables everywhere will be laden
with fall-harvest foods, including cranberries
in every possible form. If you’re
curious about how those cranberries
make their way into meals, head to
Wetherby Cranberry Company in Warrens
October 6 for Public Harvest Day.
This free annual event attracts
more than 1,500 people for a unique
opportunity to observe a cranberry
harvest in progress and learn what goes
into producing Wisconsin’s numberone
fruit crop. Hosted by the Wetherby
Cranberry Company, owned by Nodji
Van Wychen and her husband, Jim, an
Oakdale Electric Cooperative director,
the event features tours of the entire
Wetherby cranberry operation. Tours
are led by members of the Van Wychen
family, each of whom is involved with
the business and can explain what’s
happening and answer any questions.
Highlighting the tour each year is
a shuttle-bus ride to the marsh, where
guests get an up-close look at both
old and new harvesting techniques.
Visitors can even get in the middle of
things by donning a pair of hip boots
and wading into a bed of cranberries.
Bring your camera to take advantage
of this special opportunity; the sea of
bright red berries makes a great setting
for a festive holiday portrait. In fact,
many family pictures taken amidst
the berries make their way back to the
Wetherby Cranberry Company each
year in the form of Christmas cards.
Updating the family picture is not
the only reason to keep coming back to
this event, however. The Van Wychens
try to plan something different each
year, so repeat visitors always have
something new to see and experience.
This year,Wetherby plans to pay tribute
to the election year and promote the
importance of voting by shaping the
corral booms that contain the floating
berries into the state of Wisconsin.
Because Wisconsin is a swing
state, the floating image will be divided
political party. On one side the cranberries
will be contained within the
Wisconsin-shaped corral boom, forming
a red state floating in a sea of blue
water. The other side will be in reverse,
with the cranberries floating outside
the boom, creating a red background
surrounding a blue state. Just for fun,
a ballot box will be set up for visitors
to take part in a straw poll.
Shuttle buses will take visitors
to the marsh from 9 to 11 a.m. After
stopping at the marsh, they can tour the
Wetherby warehouse to see both newer
computerized sorting and packing
equipment and an old-time cranberry
mill that dates back to the 1920s. At
the warehouse, guests will also have
a chance to purchase fresh cranberries
or some VanWychen Cranberry Wine.
Hosting Public Harvest Day is
just one way The Wetherby Cranberry
Company reaches out to the public.
Wetherby also hosts the free Cranberry
Blossom Day on the last Saturday of
June. In addition, the Van Wychens
give tours to school classes and motor
coach groups. For its public education
efforts, the Wetherby Cranberry
Company won the 2012 Wisconsin
Agricultural Tourism Association’s
Member of the Year Award.
If you’re curious about cranberries,
the Wetherby Cranberry Company
is the perfect place to learn more. And
Public Harvest Day provides the perfect
Public Harvest Day will be held October 6,
rain or shine. The event is free and open to the
public; reservations are not necessary. Shuttle
buses will leave for free marsh tours between
9 and 11 a.m. Wetherby Cranberry Company
is located 4.5 miles east of Warrens on County
Hwy. EW. For more information, call (608)
378-4878 or visit www.discovercranberries.com or www.freshcranberries.com.
©2012 Wisconsin Energy Cooperative News