SUPER|OR COURT

OF THE

STATE OF DELAWARE

RlCHARD F. STOKES
JunGE

June 26, 2018

Richard L. Abbott, Esquire
724 Yorklyn Road, Suite 240
Hockessin, DE 19707

Ralph K. Durstein, III, Esquire
Department of Justice

820 N. French Street
Wilmington, DE 19801

Valerie S. Edge, Esquire
Department of Justice

201 West Water Street, 3'd Floor
Dover, DE 19904-6750

SUSSEX COUNTY COURTHOUSE
1 THE ClRCLE, SUlTE 2
GEORGETOWN, DELAWARE 19947
TE|_EPHONE (302) 856-5264

RE: Stevenson, et al. v. Delaware Dept. of Nat. Resources & Environmen;"al Comrol, et al.,

C.A. No. Sl3C-12-025 RFS

Dear Counsel:

Enclosed please find a copy of my decision after trial issued ill the above-captioned

matt€r.

cc: Prothonotary’s Office

ig Y§_`;';:“

ard F. .‘-ituk :S`

Very truly yours,

‘.'

(~ j \\~\_
l

IN THE SUPERIOR COURT OF THE STATE OF E'»ELA\'VARE

DAVID T. STEVENSON, : C.A. No. Sl3C-12--025 RFS
R. CHRISTIAN HUDSON, AND
JOHN A. MOORE,

Plaintiffs,
v.

DELAWARE DEPARTMENT C)F
NATURAL RESOURCES AND
ENVIRONMENTAL CONTROL,

AN AGENCY OF THE STATE AND
SHAWN M. GARVIN, IN HIS
CAPACITY AS SECRETARY OF THE
DEPARTMENT OF NATURAL
RESOURCES AND
ENVIRONMENTAL CONTROL,

Defendants.
DECISION AFTER TRIAL

DATE SUBMITTED: March 14, 2018

DATE DECIDED: June 26, 2018

Richard L. Abbott, Esquire, 724 Yorklyn Road, Suite 240, Hockessin, DE 19707, Attorney for
Plaintiffs.

Ralph K. Durstein, III, Esquire, Department of Justice, 820 N. French Stree‘»;, Wilnl:".ngton, DE

19801, and Valerie S. Edge, Esquire, Department of Justice, 201 Wes;t Wat‘:::r Stre<::|, 3'd Floor,
Dover, DE 19904-6750, Attorneys for Defendants.

STOKES, J.

Pending before the Court is the attack of plaintiffs David T. St:evenson, R. Christian
Hudson, and John A. Moore (“plaintiffs”) on the amendment of regulations originally enacted
pursuant to Delaware’s Regional Greenhouse Gas Initiative and CO2 Emission Trading Program
Act (“Delaware’s RGGI Act” or “Delaware’s RGGI”). Plaintiffs’ standing to pursue this matter
has been a substantial issue since the complaint Was filed, and the bui den is on them to establish
financial harm as a result of the amended regulations Plaintiffs, however, have not established
the probability of any financial harm to them. Furthermore, they have not addressed a most
important factor: Whether success in this litigation most likely Would result in a decrease in their
electricity prices, assuming they could establish an increase occurred because of thel amended
regulations Instead of seeking to correct an actual harm, plaintiffs are ofticiously meddling vvith
Delaware’s RGGI Act. Because plaintiffs have not established they have standing to pursue this

action, the case is dismissed.'

Background Information on the Amended Regulations2

Delaware’s RGGI Act resulted from the State’s participation in the Region.';il Greenhouse

 

ll incorporate by reference the following decisions previously rendered in this case:
Stevenson v. Delaware Dept. of Natural Resources and Environrnental Cr,)nlrol, 2014 WL
4937023 (Del. Super. Scpt. 22, 2014); Stevenson v. Delaware Dept. afNatzi'ra/ Resources and
Environmental Control, 2016 WL 1613281 (Del. Super. Apr. 5, 2016), real"g. den., 2016 WL
2620501 (Del. Super. Apr. 21, 2016); Stevenson v. Delaware Dept. ofNala/=”al Res¢:»urces and
Envl`ronmental Control, 2016 WL 4473145 (Del. Super. Aug. 19, 201 6), vaca/ed, 2016 WL
6768903 (Del. Super. Nov. 7, 2016).

2For the readers’ convenience, l repeat a significant amount ol`the background
information included in a previous decision, Stevenson v. Delaware Depl. afNalu)'al Resources
and Environmental Control, 2016 WL 1613281 (Del. Super. Apr. 5, 1101 6), rearg. zien., 2016
WL 2620501 (Del. Super. Apr. 21, 2016)

Gas Initiative (“RGGI”). Before December, 2005, environmental representatives ol" some states
in the Mid-Atlantic (including Delaware) and in the Northeastern regions met to discuss the
effective regulation of greenhouse gas emissions from coal and other fossil fuel power plants.
The RGGI Program was developed A brief summary of the RGGI Program appears in the
DNREC’s Secretary’s Order No.: 2013-A-0054:

The RGGI Program is the nation’s first mandatory, market-based program to
reduce emissions of carbon dioxide (COz), the principal huma n-caused
greenhouse gas. The States participating in RGGI have established a regional
cap on CO2 emissions from the power sector, and are requiring power plants to
possess a tradable CO2 allowance for each ton of CO2 they err;it.

This competitive carbon dioxide emissions trading program reduces CO2
emissions from large coal and other fossil fuel fired electric generating units (units
producing more than 25 Megawatts of electricity) in Delaware and the eight other
States by establishing a regional cap on the amount of CO2 that power plants
can emit through the issuance of a limited number of tradable C()2 allowances
These large polluting power plants are required by each Participating State"s
regulations to have and surrender one RGGI allowance for every ton of carbon
dioxide they emit into the atmosphere The Participating States make allowances
available to generators through a[n] auction process. The ploceeds from those
auctions are returned to ratepayers in each state through energy efficiency
investments and other clean energy programs.3

RGGI’s goal to reduce greenhouse emissions caused by fossil fuels is accomplished
several ways. The allowances’ added costs to the more intensive carb )n--fuel generators cause the
less carbon-intensive energy generators and the non-carbon energy generators to be competitive
and thus, to be awarded the clearing prices on the wholesale market. ';` he goal also is
accomplished by an investment of the proceeds from the purchased allowances into energy-

efficiency programs, thereby reducing the demand for electricity.

 

3Secretary’s Order No.: 2013-A-0054, which is located at Tab 4 of Ii’laintifl’s" Trial
Exhibit l.

The states participating in the RGGI Program entered into a hleinor.sindum of
Understanding (“MOU”) in December, 2005. The overall goal of the RG~G§§ Program is set forth

in the MOU as follows:
The Signatory States commit to propose for legislative and/1 )r regulatory
approval a CO2 Budget Trading Program (the “Program”) aim ed at stabilizing and
then reducing CO2 emissions within the Signatory States, and implementing a
regional CO2 emissions budget and allowance trading program that will regulate

CO2 emissions from fossil fuel-fired electricity generating units having a rated
capacity equal to or greater than 25 megawatts.4

The MOU established the regional base annual CO2 emissions budget at 121,253,550
short tons.5 lt further established Delaware’s initial base annual CO2 emissions budget at
7,559,787 short tons.6 The MOU also states that “[f]or the years 2009 through 201¢1, each state’s
base annual CO2 emissions budget shall remain unchanged.”7 The M()U fui ther provides:

Seheduled Redw:tions. Beginning with the annual allocations for the year 2015,

each state’s base annual CO2 emissions budget will decline by 2.5% per year so

that each state’s base annual emissions budget for 2018 will be 100/c below its

initial base annual CO2 emissions budget.8

The States agreed, through the MOU, to develop a Model Rule which would provide a

framework for writing legislation to implement the RGGI Program.9 'l`he l\/l OU stipulated that a

comprehensive review of the Program would occur in 2012 and determined that various aspects

 

4MOU at 2, which is located at Tab 5 of Plaintiffs’ Trial Exhibit l.
5Id.

6Id. at 2-3.

7Id. at 3.

8Id.

9Id. at 6-7.

of the Program could be changed.'0 Finally, the MOU stated: “This MOU may be amended in

asll

writing upon the collective agreement of the authorized representatives of the Signatory States.
In 2008, the Delaware Legislature enacted Delaware’s RGGI Act. Both the Senate and the
House of Representatives voted overwhelmingly in favor of the Act. The synopsis of the bill

states as follows:

This bill grants legal authority for Delaware to participate in the Regional
Greenhouse Gas lnitiative (RGGI) CO2 cap and trade program The bill grants
DNREC the authority to implement the program including promulg.';iting
regulations and implementing or participating in an allowance auction as
necessary to fulfill the goals of the program.12 This bill further requires that all
proceeds from the sale of RGGI CO2 allowances be used for public benefit
purposes and directs revenues to the Delaware Sustainable Energy Utility (SEU)
for the promotion of energy efficiency and renewable energy technologies, to
programs designed to help low income ratepayers, to a Greenhouse Gas Reduction
Program and to DNREC for administration of the program.13

A review of Delaware’s RGGI Act shows the following:

The Memorandum of Understanding (“MOU”) signed by the Governors of
participating RGGI states requires each participating state to promulgate
regulations to establish a cap-and-trade program for CO2 with the goal of
stabilizing CO2 emissions at current levels through 2015 and reducing by 10
percent such emissions by 2019. '4

Delaware’s RGGI Act further explains that the MOU sets an initial emissions cap of

7,559,787 short tons of CO2 for Delaware. lt is specifically provided that this cap “‘may be

 

wld. at lO.
llId. at 11.

l2Again, the goals were to reduce CO2 emissions and to set up a method for achieving
those reductions.

'3144th General Assembly, S.B. #263.

l47 Del. C. § 6043(3)(8).

adjusted in the future.”‘5 Delaware’s RGGI Act authorizes the Secretary “to promulgate
regulations to implement the RGGI cap and trade program consistent with the RGGI
Memorandum of Understanding, as amended.”16 This Act also directs the Secretarj',' to participate
with the other states in the RGGI Program and any national program which might be

implemented17

Regulations No. 1147 were promulgated and implemented in Novernber, 2008.18 The

following explanation was contained therein:

Beginning in 2009 through 2015, the emissions of CO2 from any EGU [Electric
Generating Unit] with a maximum rated heat input capacity of equal to or greater
than 25 megawatts that is located in a RGGI state would be capped at current
levels (emissions from Delaware affected facilities account for approximately 7.5
million tons). After 2015, the cap would be reduced incremental ly to achieve a 10
percent reduction by 2019. Under the cap-and-trade program, one allowance is
equivalent to one ton of CO2 emissions allowed by the cap. Each subject EGU
will be required to have enough allowances to cover its reported emissions during
the three year compliance periods. The EGUs may buy or sell allowances, but
individual EGU emissions shall not exceed the amount of allowances it possesses.
The total amount of the allowances will be equal to the emissions cap for the
RGGI states.‘9

The only facilities in Delaware required to have a CO2 permit under Regulations No.

1147 are the City of Dover, NRG Dover, NRG McKee Run (a DEMEC facility), \"ansant, Indian

 

‘57 Del. C. § 6043(3)(9).
167 Del. C. § 6044( c).
"7 Del. C. §§ 6044( c) and 6047.

18Secretary’s Order No.: 2008-A-0055, which is located at Tal) 8 of Plainti:|"fs’ Trial
Exhibit 1.

19Ia'. at 2.

River (a NRG facility), Calpine Edgemoor, Calpine Hay Road, and Delaware City Refinery.20
There are approximately thirty (30) units at these facilities impacted by Delaware’s RGGI.2l The
entities holding the pemiits are Calpine, Edgemoor, Hay Road, NRG, DEMEC and the City of
Dover.22 These entities, which were required to obtain, and comply with, a permit and were
directly subject to the regulations, had standing to appeal the regulations23 No entity required to

have a permit appealed the enactment of Regulations No. 1147.

ln general, allowances may be purchased at auction, purchased on the secondary market,
gifted by direct allocation, or created through offset projects24 Pursuant to statute, the regulated
facilities initially were given allowances over a five (5) year period, i.e., they did not have to
purchase them.25 Once given, an allowance lasts forever until used.26 The regulated facilities had
a large number of allowances in their accounts27 No information exists as to when any of the
generators had to start purchasing allowances The fact that allowances did not have to be

purchased was not considered by plaintiffs’ witnesses.

 

20Transcript of December 6, 2017, Trial Proceedings at C-47 (hereinafter, "'C-_”).
21C-46; C-49.
22C-48.

237 Del. C. § 6001, et seq.; Baker v. Delaware Dept. of Natural Resoarces and
Environrnental Control, 2015 WL 5971784, * 10 (Del. Super. Oct. 7, 2015), a/Y’d, 137 A.2d 122
(Del. April 15, 2016).

24C-43-44.
25C-43-45; C-99; 7 Del. C. § 6045(d).
26C-45.

27C-l 11.

ln 2012, as provided for in the RGGl MOU, a review took place oif the RGG[ Program
and, in particular, the CO2 Budget Trading Program. There was an oversupply of allocations28
because of an unanticipated increase in the use of natural gas, which is a lower carbon-intensive
fuel.29 lt was determined that changes in the market and changes in the program required a
modification of the RGGl Program. As defendants explained, the review sh owed:

[T]he initial emissions allocations were too generous with respect to actual

emissions To achieve emissions reductions, it was necessary to reduce all of the
states’ allocations However, since it was always a concern that allowance prices
could be driven too high, other changes were made to the Model Rule to prevent

such occurrence30

lt was determined:

* The Regional Emissions Cap in 2014 will be equal to 91 million tons The
Regional Emissions Cap and each Participating State’s individual emissions
budget will decline 2.5% each year 2015 through 2020.

* The Participating States will address the bank of allowances held by market
participants with two interim adjustments for banked allowances The itirst
adjustment will be made over a 7-year period (2014-2020) for the first control
period private bank of allowances and a second adjustment will be made over a 6--
year period (2015-2020) for the 2012-2013 period private bank of allowanees.3'

This agreement was not implemented by any amendment to tt e l\/l~OU. lnsl;ead, changes

were made by way of an Updated Model Rule.32 The Participating States agreed to revise their

 

28“Allocations” are also referred to as “allowances” in this dec ision.

29C-34.

30Defendants’ Answering Brief in Opposition to Plaintiffs’ Motion for Summary
Judgment at 26.

31RGGI 2012 Program Review: Summary of Recommendations to Accompany Model
Rule Amendments at 2.

32This Updated Model Rule may be found at M\z.l';__»gli.t)t'g».
7

regulations or statutes based on the Updated Model Rule and to do so by lanuary 1 , 12014.33

ln accordance with this agreement, Delaware amended 7 DE Admin. Code 1147, stating:

The amendments to the Model Rule will be incorporated into the l)<:partment’s

proposed amendments to 7 DE Admin. Code 1147, to ensure ;hat lDelaware’s

RGGl regulations are current with market conditions and continue to support

reductions of CO2 in the electricity generation sector.34

ln Secretary’s Order No.: 2013-A-0054, the Secretary explained that 7 Del. C. §
6043(a)(9) specifically states that the emissions “‘cap and Delaware’s allocation may be adjusted

in the future”’, and concluded: “[T]he Department believes that the statute grants the DNREC

Secretary the authority to further reduce the emissions cap to comply with tire emissions

reduction goal.”?’5

These amended regulations went into effect on December 11, 2013.'6 T he reduction of
CO2 permits has tended to cause the prices of CO2 allowances at auction to rise.37

No regulated entity which must purchase the allowances complained or filed an appeal
from the amended regulations As noted above, these regulated entities had standing to appeal

because they were subject to the amended regulations38 This law renders meritless plaintiffs’

 

33RGGI 2012 Program Review: Summary of Recommendations to Accompa:ny Model
Rule Amendments at 3.

34Secretary’s Order No.: 2013-A-0054 at 3, which is located at Tab 4 oif Plaintiffs’ Trial
Exhibit 1.

35Id.

36Id. at 1.

37Transcript of December 4, 2017, Trial Proceedings at A-92 (hereirtafter, "'A-_”).
38Baker v. Delaware Dept. of Natural Resources and Environmental Contrr)l, supra

8

arguments that these regulated entities lack standing to sue because they wiil not stiffer financial
harm and thus, the amended regulations never could be reviewed absent plaintiffs’ suit.3°

Only plaintiffs appealed the amended regulations Plaintiffs are not subject to the
amended regulations However, they allege they have/will suffer harm in fact in that the
increased costs of the allowances will be passed on to them in their electric bills As the litigation
moved forward, plaintiffs’ electric bills actually decreased over the pertinent time period.
Consequently, plaintiffs’ argument morphed to the argument that had the amended regulations
not come into effect, they would have had to pay even less on their electric bil|s, and thus, they

are financially harmed.40

Dr. Tierney and her Testimony

ln order to render this decision, the Court relies upon the testimony of Susan F. Tierney,
Ph.D. Dr. Tierney is defendants’ expert. Plaintiffs seek to keep out all or portions of her
testimony in several ways First, they moved, during trial, to exclude :ertain testimony and
evidence because plaintiffs contend it was “new” and defendants “sandbagg;ed" them with it.

Second, plaintiffs moved, before trial, to exclude her testimony.41

 

39lt is surprising that plaintiff R. Christian Hudson would make this argument, which is
diametrically opposed to the one he made, and won, in Baker v. Delaware Dept. o_,t`Natural
Resoarces and Environmental Control, supra

40A-9-10.
4lThis motion in limine was filed on December 1, 2017.

9

Objection to “New Analysis”

Plaintiffs pursue, in their post-trial briefing, their arguments initially made at trial that the
Court cannot consider what they label “New Analysis” by Dr. Tiemey. The only new information
was the analysis of Stevenson’s electric bill. There is a good deal of iinger--pointing over this
issue which this Court refuses to address Obj ection to this is much to do about nothing because
Stevenson himself admitted it is difficult to prove a direct link between PJM wholesale market
prices and consumer utility bills42 The Court will exclude the analysis on Stevenson’s electric
bill only because it is too insignificant of an issue on which to spend time. The other information
contained within the “New Analysis” reflects Dr. Tiemey’s previously-provided information
That information merely was turned into a demonstrative format. That is not “new"’ and the Court

continues to rule, as it did at trial, that this demonstrative evidence may remain in evidence

Motion in limine

Dr. Tiemey’s resume' is forty (40) pages long.43 She is an expert on energy economics,
regulation and policy, particularly in the electric and gas industries She currently is a Senior
Advisor at Analysis Group lnc., where she provides policy, economic and strategy consulting in
the energy industry. The company for which she works is an economic, financial, and business
strategy consulting firm. She is the lead consultant on many of their projects She has had a thirty

(30) year career “as a regulator, policymaker, university professor, co nsul tant, and expert

 

42Transcript of December 5, 2017, Proceedings at B-183 (hereinaii:er, “B-___"’).

43Her resume' appears at Exhibit SFT-l to the June 15, 2015, Afiida vit o Susan F.
Tiemey, Ph.D., which is Defendants’ Trial Exhibit 5.

10

witness.”44 She speaks frequently at industry conferences She serves on Boards and Advisory
Committees for numerous energy institutes and foundations She has published an extremely

large number of reports and articles in her field of expertise

As she explains, she has been directly involved in issues relevant to this matter as
follows:

economic analysis of issues affecting electric utilities, wholesale power markets
and consumers’ utility rates; utility regulation; price formation in electric power
systems, including impacts of changes in fuel prices, technology changes,
environmental requirements and other facts; the structure of the electric industry
and implications for the reliable and economically efficient provision of
electricity; the design of environmental polices to control emissions of air
pollutants from the power sector and the implications of different policy designs
for costs to power producers and to consumers; and the macrcecono mic costs
associated with wholesale and retail rate and price analysis.45

She has co-authored two reports which focused on the economic impacts of RGGI. The
first, dated November 15, 2011, is titled, “The Economic lmpacts of the Regional Greenhouse
Gas lnitiative on Ten Northeast and Mid-Atlantic States: Review of the Use of`RCiGrl Auction
Proceeds from the First Three-Year Compliance Period”.46 The second teport, dated July 14,
2015 , is titled, “The Economic lmpacts of the Regional Greenhouse Gas initiative on Nine

Northeast and Mid-Atlantic States: Review of RGGl’s Second Three-`Year Compliance Period

 

44June 15, 2015, Affidavit of Susan F. Tiemey, Ph.D., which is Defendants’ Trial Exhibit
5, at p. 2, 112.

45June 15, 2015, Affidavit of Susan F. Tierney, Ph.D., which is 1:)efendants’ Trial Exhibit
5, at p. 2, 112.

46Attachment SFT-2 to June 15, 2015, Affidavit of Susan F. Tierney, Ph.D., which is
Defendants’ Trial Exhibit 5.

11

(2012-2014).”47 These studies include a review of RGGl’s economic effects in Delaware.

ln deciding a motion for summary judgment, this Court previously ruled Dt, Tierney to be
an expert on the pertinent areas in question.48 Nothing at the hearing in this matter or in the post-
trial briefing has changed that opinion. She has been involved directly in issues relevant to the
matter at hand. She is uniquely qualified as an expert to speak to the issues relevant to this case,
those issues being “the impacts of the State of Delaware’s participation in the Regional
Greenhouse Gas lnitiative (“RGGI”) and the impacts of such participation on the rates of
electricity customers in Delaware and on the Delaware economy.”49

Plaintiffs recognize Dr. Tiemey is an expert. However, they seek to exclude her testimony
on a number of grounds

l first address plaintiffs’ argument based upon an incorrect premise Plaintiffs argue Dr.
Tiemey has not taken into account their contention that Delaware has not spent any of the
additional CO2 allowance auction revenues generated from the amended Delaware RGGI
regulations50 Thus, they argue, her opinion that any increases in wholesale prices are offset by

decreased use in electricity resulting from the allowance monies spent on energy-saving

programs is invalid. This argument is based upon the incorrect premise that Delaware has not

 

47Attachment to June 7, 2016, Affidavit of Susan F. Tiemey, l’h,.D., which is Defendants’
Trial Exhibit 4.

48Sl‘evenson v. Delaware Dept. of Natural Resources and Envz`ranrne:ntal C.onlrol, 2016
WL 1613281 (Del. Super. Apr. 5, 2016), rearg. den., 2016 WL 2620501 (Del. Super. Apr. 21,
2016)

49June 15, 2015, Affidavit of Susan F. Tierney, Ph.D., which is Defendants` Trial Exhibit
5, at p. 4, 11 7.

5°Plaintiffs’ February 22, 2018 Opening Post-Trial Brief.

12

spent any of the additional COz allowance auction revenues generated from the amended RGGI
regulations on energy-saving programs

Upon the enactment of Delaware’s RGGl, Delaware took 10% of the proceeds from the
auction and applied them to the administration of the program while it applied 90% of the
proceeds to consumer benefit programs51 Of that 90% being applied to programs which benefit
consumers, 65% went to the Delaware Sustainable Energy Utility (SFU) f`o_r the promotion of
energy efficiency and renewable energy technologies; 10% to the Weatheri;';ation Program; 5% to
the Low lncome Home Energy Assistance Program; and 10% to mitigation52 Since the
enactment of the amended regulations, Delaware has spent monies for weatherization, mitigation
and low income assistance From 2012-2014, the State spent monies on low income assistance,
on funding energy efficiency measures in the buildings of electricity consurners, on other
greenhouse-gas emission reduction programs and investment in renewable energy.53 This fact
undermines plaintiffs argument that no monies have been applied to benefit consumers since the
implementation of the amended regulations

Plaintiffs’ other argument is that because Dr. Tierney has stated she does not have an

opinion on the impact of the amended regulations on the individual p‘aintift`s’ electric bills, her

 

5lC-21. Pursuant to the MOU, Delaware’s commitment was to use only 25% of the
auction proceeds towards consumer benefits and the administration of the program.

52C-30.

53June 7, 2016, Affidavit of Susan F. Tierney, Ph.D., which is deficndants’ '1`r'ial Exhibit 4,
at p. 15, 1122 Although it is not in evidence, defendants represent in their briefing that monies
from the SEU have not been spent during this time period. That is oniy a portion of the proceeds,
not all of them.

13

opinion and all of the evidence presented by her should be excluded.54 They then turn around and
seek to include portions of her testimony, arguing that Dr. Tiemey’s subn.'lissions “establish that
the New RGGl Regulations will directly and proximately cause an increase in the electric bills of
consumers like the Plaintiffs who do not receive any subsidies or financial funding from the
RGGI Program.”55

Dr. Tiemey’s basic conclusions based upon knowledge, data, studies, and experience, are
as follows Electric-generating units will incur increased costs associated with the amended
regulations; however, other RGGI effects offset those increased costs and consumers’ electric
bills actually decrease rather than increase.56 This results because the money from the auctions
have been spent on energy-efficiency programs or products, which, in the end, have resulted in a
decrease in demand and that has caused a lowering of electricity prices l`o repeat, her studies
show, and her testimony is, that in the end, Delaware consumers will not pay greater prices
because of RGGI; instead, their electric bills are less than what they Woul d be because of RGGI
as originally imposed and as governed by the amended regulations

Dr. Tierney did agree that she was not testifying on the impact of the amended regulations
on each individual plaintiff’s electric bills Defendants had no obligation to study the individual

plaintiffs’ electric bills and provide an opinion on the effect of the arr ended regulations on them.

 

54Plaintiffs’ February 22, 2018 Opening Post-Trial Brief at 32 '3;5.

55Plaintiffs’ February 22, 2018 Opening Post-Trial Brief at 19 This incongruity is
repeated at page 26 of this brief, where they argue: “Tiemey’s statements have no bearing on the
issue of whether the Plaintiffs have standing in this action. lnstead, T erney actually supports the
fact that the Plaintiffs possess standing.”

56A-20.

14

That was plaintiffs’ burden.

Plaintiffs’ motion in limine is denied Dr. Tierney’s specialized knowledge and training
is based on sufficient facts and data and she has applied the appropriate principles and methods
reliably to the facts Dr. Tiemey’s testimony has educated the Court en electricity generation, the
wholesale and retail pricing of electricity, the connection (which is not direct) between the costs
generators incur and the retail prices consumers pay, and the effects of Delaware’s RGGI on
consumers’ electric bills Her testimony rebuts plaintiffs’ witnesses’ testimony by highlighting
the flaws in Dr. Stapleford and Stevenson’s knowledge, understanding and testimony on the
issues at hand and by establishing plaintiffs’ simplistic economic theory is inapplicable and

invalid

Pertinent Basics of Electricity and Pricing57

Plaintiffs ground their case on the basic economic theory that increased costs to the
electricity generator directly result in increased prices to the consumer. Dr. Tierne_v"`s testimony
and evidence establish that this theory does not apply in the context of electricity pricing58 She
could not know the cause-and-effect connection between CO2 permit costs and impacts on
individual customers’ bills because of “so many disconnections between the wholesale price

formation and electricity rate-making for individual customers.”59 “[T]he:re is not a one-to-one

 

57The information contained herein mostly is drawn from Dr. Tierney’s testimony, which
appears at A-12-136.

58A-93. She opined: “Typical economic supply and demand concepts don’t typically apply
to the electric industry.”

5g'A-114.

15

relationship between those circumstances in the wholesale market and the actual rates charged to
consumers in their retail electricity bills.”60 The one-to-one relationship does not exist because
of:

(a) the character of the way that electric power plants are dispatched; (b) the

manner in which price formation occurs in the wholesale electric industry in PJM;

and ( c) and how the costs and carbon intensity of different power plants affects

the ability of the generator to pass through CO2 allowance costs to consumers 6'

ln order to better understand her conclusions and the workings oif electricity production
and pricing, l set forth some of the basic concepts62

There are various types of generators of electricity, including, but not limited to, fossil
fuel (oil, coal, or natural gas (which is less carbon intensive)); nuclear; solar; wind; geothermal;
hydroelectric Delaware is part of the PJM region, which consists of an integrated grid of power
plants The PJl\/I63 grid currently encompasses thirteen (13) states, including Delawa;re. PJM
includes states that are non-RGGI participants and others that are RGGl participants While PJM
consists of thousands of generating units, only approximately thirty (30) of those units are
affected by Delaware’s RGGl.64

PJM (also referred to as the “grid operator”) dispatches plants to supply power according

 

60A-21 .

61August 25, 2016 Memorandum at 3, attached to September 8, 2()16, Affidavit of Susan
F. Tierney, Ph.D., which is Defendants’Trial Exhibit 3.

62Dr. Tierney explained these conclusions in more detail during her testimo ziy. A-28-31;
A-35-39; A-60-61.

63lnitially, Pennsylvania, New Jersey and Maryland made up tj;iis grid; hene::, the
abbreviation “PJM”.

64C-46; C-49.
16

to their offer price. The offer prices are based on the plants’ cost to produce electricity. The grid
operator decides how many of those offering plants to dispatch at any point in time in order to
meet instantaneous demand “[l]t is the offer price of the generator whose output (\vhen
combined with output from generators with lower offer prices) serves to satisfy demand sets the
clearing price.”65 The price of the last generator called upon to operate in a particular moment is
the clearing price Every generator selected to provide power at that moment is paid that clearing
price The group of plants dispatching power can include carbon-intensive and less carbon
intensive generators and/or non-carbon energy generators The clearing price varies across the
course of the year and across the time of day as demand for electricity goes up and down.

When demands are greater, more power plants are dispatched to meet the demand
lncluding CO2 prices in the offer prices can change the dispatch order of plants and make the less
carbon intensive and/or non-carbon generators more competitive66

Reductions in peak demand reduce the costs of electricity because the dispatch of power
from relatively costly plants is avoided67 Energy efficiency programs can cause those reductions

in peak demand.68 Even plaintiff Moore agreed that significant or drastic reductions in demand

 

65August 25, 2016 Memorandum at 5, attached to September 8, 12016, Affidavit of Susan
F. Tiemey, Ph.D., which is Defendants’ Trial Exhibit 3.

66PJl\/l has a market monitor who evaluates whether the markets are competitive. ln
fulfilling that job, the market monitor prepares a report where the monitor tries to identify the
drivers or components that constitute the cost of producing electricity. R_ecently, the biggest
driver is the use and cost of natural gas As noted earlier, the major trigger l`or reducing
allowances in the amended regulations was the oversupply of them because of an unanticipated
increase in the use of natural gas, which is a lower carbon-intensive fuel.

67A-25-29.
68A-25-29; A-160-6l; B-165.
17

and costs can be achieved fairly economically.69

To repeat, the generators which are a part of the clearing price at a particular moment can
include carbon-intensive generators, less-carbon intensive generators and/or non-carbon
generators The clearing prices, which include the price of CO2 allowances are based upon:

many variables that would have both an upward and downward effect on prices
For example, demands for electricity were flatter than you might have seen in
the recent past. That would tend to reduce the demand for carbon allowances
because you don’t have to generate as much electricity.
So economic conditions, if natural gas prices are cheaper than coal, then that
would reduce the demand for allowances So a lot of different things would go
into expectations about forward prices70

Dr. Tierney further explained:

But there is not a one-to-one relationship between the cost incurred by power
plant owners to keep their plants open and then to generate power from tha|, on
the one hand, and the prices that are paid to power plant owners or the electricity
and capacity that they produce to the system.

So, in fact, there are some power plant owners who do not enjoy the opportunity
to pass along all of their costs because of the way the prices are formed in the
markets that happen to coincide with the RGGI states Each o t`the RGGI states
operates in a power plant centralized wholesale market that does not allow for a
one-to-one pass-through of costs of power plant owners into wholesale prices paid
by consumers."

Because the hourly electricity prices established in the PJM are federally regulated, many

of the costs imposed by the individual states (such as RGGI allowances) cannot be passed on in

the wholesale market.72

 

69A-160.
70A-93-94.
71A-135-36.

72June 7, 2016, Affidavit of Susan F. Tiemey at pp. 8-9, 1113, which is l)efendants’ Trial
Exhibit 4.

18

The problems with tracking RGGI costs (if any) from the generator to the retail consumer
are compounded by the subsequent steps involved in obtaining electricity

Plaintiffs are retail customers either of Delmarva Power or Delaware Electric Cooperative
(“DEC” or “Delaware Electric Co-Op”). Dr. Tierney explained how the two companies acquire
their electricity and set prices for their customers

She first addressed Delmarva Power:

[A] utility like Delmarva Power is a utility that is a wires-only cle ctric
company. Those customers of Delmarva Power who are purchasing what is called
bundled electricity service and they are purchasing their total electricity supply
and wires - essentially paying for the cost of transmission and distribution
facilities, I’m calling that wires What I described in the wholesale market is
supply.

So Delmarva Power doesn’t own any power plants lt has to purchase from the
wholesale markets, from contractors73 to supply service for Dclma'r\ a Power
consumers And the Way that that works is those power suppliers of:t`er to
Delmarva Power to provide electricity, for example, to a residential electricity
customer at a certain price that is fixed in advance, and then that is held in place
for a three-year period of time.

So let’s say we’re standing in 2014. The way that it works for D'elmarva Power
is that one-third of the supply that’s available to meet a customer’.s demand in
2014 is provided by somebody who offered and won the contract three years
before that. They have a three-year contract for a third of the supply

Then two years in advance of 2014 there is another supplier who has Won a
contract. He or she is providing a third. And then in 2013 someone won that offer
and they are supplying one-third of supply to Delmarva Power:

The electricity customer, therefore, in 2014, is paying contract prices established
before 2014, and long before 2014 in some cases, but also long before the end of
2013 when those contracts were established

Okay. So over time those contracts, those supply contracts for De] marva Power
customers, are not only provided well in advance, but they reflect the expectation
of those suppliers about a myriad of things; most importantly, the cost of natural
gas and the expectation about how much demand is going to go up or down or so
forth.

The prices that were provided to Delmarva Power customers have gone down

 

73Plaintiffs refer to these contractors as “market Sellers”.

19

during this period of time, since 2014, 2015, 2016.74

So basically, with regard to Delmarva Power, the prices customers pay stem from contract
prices which are reached based on numerous factors Even Delmarva Powe:‘ cannot determine
what amount of increased costs for RGGI might be passed on to a retail custorner.75

Dr. Tierney then explained that Delaware Electric Co-Op differs from Delmarva Power.76
Delaware Electric Co-Op buys its power from Old Dominion Electric Co-Ciperative (“Old
Dominion”). Old Dominion does not operate in Delaware, but it has power plants :in Maryland
and Virginia that supply power to Delaware Electric Co-Op. In addition, ()ld Dominion buys
power from suppliers that participate in the PJM wholesale market. Thus, Delaware Co-Op’s
prices are supply prices that are affected by Maryland’s RGGI and the PJl,\/I.

Dr. Tierney’s testimony shows that because of the various fac _:ors wnich go into
electricity generation, wholesale pricing, and consumer pricing, plaintiffs’ Witnesses’ opinions
that an increase in the costs of CO2 allowances directly results in an increase in electricity costs to

the consumer are invalid.

 

74A-29-3 l.

75April 28, 2015, letter from Todd L. Goodman, Esquire, Associate General Counsel to
Delmarva Power. This letter, dated April 28, 2015, is to Jason R. Smith, Pu blic Utilities Analyst
to the Delaware Public Service Commission (“PSC”) in response to plaintiff David Stevenson’s
request, on behalf of the Caesar Rodney lnstitute (CRI), to open Phase ll workshops in regards to
a PSC Docket concerning bill transparency of Delmarva’s bills The purpose of Mr. Goodman’s
letter was to correct inaccuracies CRI made in its request. The inaccuracies address the issue at
hand. This letter is located at Exhibit D of the Appendix to Defendani.'s’ Pos:t-Trial
Memorandum, filed February 22, 2018.

76A-31-32.
20

The Plaintiffs
There are three plaintiffs: R. Christian Hudson, John A. Moore, and David T.
Stevenson.77
The first plaintiff is R. Christian Hudson (“Hudson”). He is a resident of Sussex
County. The basis for his lawsuit is as follows:
Well, you know, in general, l think the DNREC, I’ve been a party to a number
of suits where we felt, and in some cases the Court ruled, that the DNREC

overstepped their bounds And l feel that this is yet another one where 1 feel that
they should have to follow their own law.78

He is a customer of Delmarva Power and has been since at least early 2013.79 He cannot
point out on his electric bills a dollar amount attributable to the Delaware RGGI Program or to
the changes to that program.80 He is relying on plaintiff David T. Stevenson and John E.
Stapleford, Ph.D., an economist, to establish the 2013 amended Delaware FI_GGI regulations
negatively impacted his power bills81

The second plaintiff is John A. Moore (“Moore”).82 He is a Delawa re resident and is a

customer of Delmarva Power. He acknowledged he did not pay a lot of attention tc his electric

 

77At one point, Jack Peterman was a plaintiff. He Was dismissed as a plaintiff earlier in
the litigation but an order was not entered at that time directing the amendment of the caption to
reflect that action. That oversight is corrected at this time; Jack Peterman is removed from the
caption as a party and the caption hereinafter reads as set forth on the front page of this opinion.

78A-139-40.
79A- l 4()-41.
80A-l43.
81A-l42.
82His testimony appears at A-154-64.
21

bills83 He, too, is relying upon experts like David T. Stevenson to show the impact of the
amended regulations on his electric bills.84 However, he thinks “it also just stands to reason that
when one state has a tax that our neighborhood [sic] states don’t have, that we"re paying more for
electricity because of that tax.”85 This is a complaint against Delaware’s RGGI in general and
not to the amended regulations in particular. He joined the lawsuit because he feels that
Delaware’s RGGI itself “was an unnecessary burden on Delaware business and on Delaware

consumers.”86

The third plaintiff is David T. Stevenson (“Stevenson”).87 Stevenson also is a resident of
Delaware. He is a customer of Delaware Electric Co-Op. As explained eai'lier, Delaware Electric
Co-Op buys its power from Old Dominion, which does not operate in Dela ware. Old Dominion
acquires its electricity from Maryland, Virginia, and PJM. Out of the thousands of units of PJM
upon which Old Dominion might call, only thirty (30) are impacted by l[)elaware’s RGGI.88 Thus,
there is the remote possibility that at times, the sources of the supply of electricity to Stevenson
“may be produced in part by Electric Generation facilities located in Delaware that must have

CO2 Permits [Emphasis added]”89

 

83A- l 64.

84A-15 8.

851£1.

86A-l 55.

87His testimony appears at pages B-59-186.

88C-46; C-49.

89Plaintiff’s Opening Post-Trial Brief, dated February 22, 2018, at 7

22

Standing

The Court will not consider the merits of plaintiffs’ arguments unless they have standing

As the Supreme Court has explained:

The concept of"‘standing,” in its procedural sense, refers to the right of a party
to invoke the jurisdiction of a court to enforce a claim or redress a grievancen lt is
concerned only With the question of who is entitled to mount a legal challenge and
not with the merits of the subject matter of the controversy. In order to achieve
standing, the plaintiff’ s interest in the controversy must be distinguishable from
the interest shared by other members of a class or the public in general Un|ike the
federal courts, where standing may be subject to stated constitutional limits, state
courts apply the concept of standing as a matter of self-restraint to avoid the
rendering of advisory opinions at the behest of parties who are “mere
intermeddlers.” [Citations omitted. Emphasis in original.]90

The Supreme Court further explained what a party must show in order to establish

standing:

To establish standing, a plaintiff or petitioner must demonstrate first, that he or
she sustained an “injury-in-fact”; and second, that the interests he or she seeks to
be protected are within the zone of interests to be protected.°'

The injury in fact element is detailed as follows:

(1) the plaintiff must have suffered an injury in fact- an invasion of a legally
protected interest which is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical; (2) there must be a causal connection
between the injury and the conduct complained of- the injury has to be fairly
traceable to the challenged action of the defendant and not the result of the
independent action of some third party not before the court; and (3) it must be
likely, as opposed to merely speculative, that the injury will bc redressed b}, a
favorable decision.92

 

2003)

9°Stuart Kingston, Inc. v. Robinson, 596 A.2d 1378, 1382 (Del. 1991).

9‘D0ver Historl`cal Soc. v. City of Dover 'Planm'ng Com ’n, 835 A.2d 1103, f 1 10 (Del.

9210’., quoting Socz'ely Hill Towers Owners’Ass 'n v. Rendell, 210 l§<`.3d 168, 175-76 (3rd

chr.zoooy

23

Stevenson does not have standing to pursue this case. He has :1ot presented any evidence
which establishes that it is probable that Old Dominion will purchase electricity from a
Delaware fossil fuel generator which will cause Stevenson’s bill to increase. Plaintiffs merely
argue that the purchase from one of the thirty (3 0) generators in Delaware out of a group of
thousands in PJM may happen. Stevenson’s injury, if there is one, is conjectural or
hypothetical93 Consequently, Stevenson, who has not attempted to sh ow it is probable that he has
been financially injured as a result of Delaware’s amended regulations, lacks standing in this
matter and is dismissed as a plaintiff.

Alternatively, even if the Court gave Stevenson a pass and dic. not rule at this point that
Stevenson absolutely has no standing to pursue this matter, his standing suffers the same fate as
the other two plaintiffs for the reasons discussed below.

In this case, there were three ways plaintiffs could have shown they have suffered a
concrete, actual injury directly related to the amended regulations thcli decreased the CO2
allowances

The first way would have been by producing electric bills which show an increase in what
they paid attributable to the amended regulations They did not attempt to do this ln fact, as
noted above, plaintiffs fought very hard to keep out any analysis regarding the connection
between the amended regulations and Stevenson’s electric bill from Delaware Electric Co-Op.94
As the Court previously noted, that fight was much to do about nothing because Stevenson

acknowledged the difficulty for him “to prove a direct link between the PJM wholesale market

 

931d
°4Plaintiffs’ Opening Post-Trial Brief, dated February 22, 2013, at 3 5-38.

24

prices and consumer utility bills.”‘)5

The second way they could have shown that increased costs were passed on to them is by
establishing that Delmarva Power or Delaware Electric Co-Op sought from the Public Service
Commission an increase in rates because of the amendments That has not happened

The final way to prove their case was to produce an expert, or experts, to testify that the
increase in costs attributable to the amendments resulted in an increase in retail costs to
consumers such as themselves They attempted to do this by offering John E. Stapleford, Ph.D.
and plaintiff Stevenson as experts.96 While both men are educated and l<;nowledgeal)le about
certain subjects, they are not experts on electricity pricing or on RGGI and its effects on
electricity pricing. Thus, l reject their opinion that the amended regulations resulted in financial
harm to plaintiffs

Delaware’s Rules of Evidence Rule 70297 addresses testimony by experts lt provides:

lf scientific, technical or other specialized knowledge will assist the trier of fact

to understand the evidence or to determine a fact in issue, a witness qualified as an

expert by knowledge, skill, experience, training or education may testify thereto in

the form of an opinion or otherwise, if (l) the testimony is based upon sufficient

facts or data, (2) the testimony is the product of reliable principles and methods,

and (3) the witness has applied the principles and methods reliably to the facts of

the case.

Dr. Stapleford has a Bachelor of Science in Chemistry from Denison Univcrsity, a

 

95B-183.

96Defendants filed motions in limine to exclude the opinion testimony of these witnesses
The Court allowed the witnesses to testify with the understanding that it would render a decision
on the admissibility of their testimony in this final decision.

97Although the R_ules of Evidence were revised as of January `i, 2()13, there are no
substantive changes to the Rule applied here.

25

Master’s Degree in Government and Planning from Southern Illinois, and a Ph.D. in Urban and
Regional Economics from the University of Delaware. He has worked in government and in the
private sector as an economist and has taught economics He has testified before various courts
and before the Alcohol Beverage Control Commission. He has not, howeve r, ever testified as an
expert witness on utility pricing.98 Dr. Stapleford clarified he is not an expert in electricity
generation99 He agreed that his role as an expert was limited to the impact of RGGI on the
Delaware economy.100

Stevenson has a Bachelor of Science degree in agricultural economics He has served as a
consultant for the Delaware Public Advocate in energy-related dockets in Delaware He has
intervened in numerous Delaware Public Service Commission dockets lie is a successful
entrepreneur. He has worked in sales, technical and management posi tions. At the time he
testified, he was employed by the Caesar Rodney Institute, a public policy advocacy organization,
where he held the position of Director for Center for Energy Competitiveness. He also was
President of Alternative Strategies Consulting, which is a paid consulting firm where he consults
on energy and environmental issues Stevenson has no work experience or academic training in
the fields of utility pricing, the electric industry, or carbon-emission allowance trading markets
He admitted he lacked the specialized education or training in the pertinent areas l§le is self-
taught. This is the first time he has attempted to testify in a court as an expert.

Dr. Stapleford and Stevenson collaborated and produced a joint report datec`. August 6,

 

98B-45.
99B-23.
100B-45.
26

2016, and captioned “Cost lmpacts of 2013 RGGI Rule Changes in Belaware” (“Report”). '0‘ Dr.
Stapleford had to rely upon Stevenson for some of the conclusions while St evenson had to rely
upon Dr. Stapleford for other conclusions ln this report, they concluded as follows ::

Our conclusionq to a reasonable degree of economic and electric industrv
eertaintv. is the 2013 RGGI rule changes increased consumer electric rates in
Delaware bv $33.6 million between Mareh ol"2013. and March of 25)1(). or about
$] l million a year. In addition, the net effect of indirect costs and benefits raised
electric rates another $28.5 million a year for a total of $39.5 million a year in cost
that is passed from generators, to distributors to electric customers, or roughly
$42 a year for residential customers [Emphasis in original.] '0"

They also reached an additional conclusion:
Our conclusion. to a reasonable degree o'f` economic and electric industry

eertaintv, is no offsetting benefits accrued from RGG[ permit sale revenue as the

revenue raised from the cost premium of permits from the new aucti on rules

triggered by the 2013 RGGI regulation amendments sits unspcnt and will n-_)t

likely be spent in the l`uture. [Emphasis in original.]103

This Report fails to cite to independent research or to the results ofthe witnesses’ own
work. The Report assumes that all allowances had to be purchased 'l`hat is an incorrect

assumption. Pursuant to statute,104 Delaware gifted the generators allc wanccs over a five-year

period.105 The generators had “a very hefty bank account.”'06 These allowances last forever,")7

 

‘°'This report is located at Tab 20 of Plaintiffs’ Trial Exhibit 1.
102Report at 2.

103Report at 14.

'0“7 Del.C. § 604.5(d).

l05C-99.

106C-l 1 1.

107C-45.

27

and it may be a long while before a generator needed to purchase an allowance108 Allowances
also may be acquired if the generator was “an offset project sponsor”:`O°; allowances are awarded
for the emissions that the generator would avoid by undertaking a project which reduces
greenhouse gas emissions, such as “planting a tree, forestry projects, _mplementing building
energy, energy efficiency.”llO Thus, the basic conclusion that the generators all purchased
allowances pursuant to the amended regulations is wrong That means that the assumptions that
all the generators paid more for the allowances after the implementation of the amended
regulations and then passed on those increased costs is wrong This error goes towards rendering
the Report’s conclusions to be unreliable.

The Report counters the conclusions of Dr. Tiemey. However, Dr. Stapleford does not
know information about the PJM interconnection region and he cannot state whether Dr. Tierney
is correct when she testified that some attributes of PJM are not purely marl-;et--based.' " He has
not looked at the literature and he does not know if there are benefits from ‘veathe):‘ization and if
they have been measured.112 He did not focus “on the details of weathe:ri:zat ion and things like

that.”‘ '3 He did not look at the computer model Dr. Tiemey used in connection with her study.'14

 

108C-lll.

109C-43.

"0C-44.

lllB-18-19.
112B-33.

113B-45.

114B-33.

28

Dr. Stapleford was incorrect when he said there was a cap on the auction price.l '5 Also, Dr.
Stapleford opines that decreased electric demand ultimately results in increased prices ' '6
However, this is a basic misunderstanding regarding the operation of the electricity market since
reductions of peak demand reduce the costs of electricity because the dispatch of power from
relatively costly plants is avoided."7

With regard to consumers, Dr. Stapleford considers RGGI to be taxation without
representation.118 According to him, “the impact on business is from an economic standpoint has
greater consequences over time.”' '° His testimony and opinion focus on the general impact of
Delaware’s RGGI on businesses in Delaware and do not focus on the impact of the amended
regulations on the plaintiffs in this case.

Dr. Stapleford verified that questions about utility pricing on the wholesale market and
the affect, if any, on consumer bills should be directed to Stevenson, not him.120 In order to
address the pertinent question of whether it is probable that Delaware electric consumers such as
plaintiffs would pay any additional amount due to the CO2 allowance prices increase, Stevenson

conceded he would have to rely on Dr. Stapleford for that answer.121 l)r. Stapleford, however, as

 

ll5C-45; B-lO.

"6Report at 12; B-22-23.

117A-25-27. Plaintiffs Stevenson (B-165) and Moore (A-160-6 l) agree this to be the case.
HgB-l$; B-28.

11913-15-16.

12013-46.

121B-112.
29

just noted, did not give an opinion on this question, stating he would rely upon Ste \'enson to
answer it.122 To the extent it is asserted that Dr. Stapleford gave an opinion, the Court rejects that
opinion. Dr. Stapleford does not have expertise or knowledge about electricity generation and
utility pricing His conclusions are based on erroneous assumptions He does not provide any
research methods, evaluation techniques, or data to support his conclusions This Court has no
confidence that Dr. Stapleford has applied reliable principles and methods regarding electricity
generation and utility pricing to the facts of the case. His opinion is not reliable on the question
of whether consumers such as plaintiffs would pay an additional amount due to the increase in
CO2 allowance prices Thus, the Court excludes Dr. Stapleford’s opinion testimony

l also conclude Stevenson is not an expert on RGGI and its effects on his and the other
plaintiffs’ electric bills l do not accept his opinion testimony, either.

Stevenson’s failure to consider that many allowances were gifted to the generators and
that the generators could offset allowances renders his conclusions flawed.

He ignored the fact that it is only a remote possibility that Delaware Electric Co-Op
would pass on Delaware RGGl’s costs.

When Stevenson referred to the costs containment reserve as n cap Which would set the
floor price, he was wrong.123 Instead, it is a mechanism to reduce the price if the price goes up
higher than expected:

The purpose of a cost containment reserve is to contain costs in the event that
unforeseen events occur, units have to shut down, nuclear facilities suddenly are
not operating and emission prices ~ or emissions in the region go up beyond

 

122B-46.
123C-38.
30

what the regional cap or the state budgets are. So we would th en introd uce at

auction an additional amount of allowances in order to reduce the costs of

allowances and compliance by our compliance entities124

Stevenson also was incorrect when he spoke about the installation of mercury controls on
the Indian River Power Plant.125 His argument was supported by an erroneous understanding of
the facts, a flaw which goes to the reliability question.

His claim that there has been no reduction in peak energy demand a'ttributa ble to the 2013
Amendments is flawed because he ignores the appropriations which l)r. '.l`ierney studied126

His assumption that low income consumers would use subsidies to purchase more
expensive appliances that would increase their usage, rather than mak ing efficient choices that
would lead to decreased electric bills, is unsupported, thereby rendering his decision to discount
reductions in peak demand attributable to demand reduction strategie; un su pported.

His calculations on the costs of allowances omitted the impac; of the federal Clean Power
Plan.

In this case, Stevenson lacked training in the field of utility pricing and electricity
generation He did not provide data or scientific studies to support his opinions He did not
establish he reliably applied accepted economic principles and methods to the facts and

conclusions he presented. Key parts of his conclusions were based on inaccuracies Stevenson’s

opinion testimony is not reliable and the Court refuses to accept it.

 

124C-38-39.
125B-112-13; C-l25-27.

126June 7, 2016, Affidavit of Susan F. Tierney, Ph.D., which is Defendants"' l.`rial Exhibit
4, at p. 15, 11 22.

31

ln light of the foregoing, the Court concludes that plaintiffs failed to produce an expert
opinion to establish that an increase in the allowance costs have and/or will result in financial
harm to them.

Finally, and very importantly, plaintiffs have not even attempted to show it is likely that
their alleged harm will be redressed by a favorable decision in this lit: gation. '27 The only
evidence regarding what would happen if the amended regulations were deemed invalid came
from Valerie Gray, the Department of Natural Resources and Enviror mental Control Program
Supervisor with responsibilities for RGGI. She explained that if the amended regulations are
deemed invalid, no one knows what will happen '28 Delaware may have to withdraw from the
auction but the utilities still will be required to buy allowances Could that mean buying
allowances from the other states or from secondary sources? If they are purchased from
secondary sources then the prices are likely to be higher since, as plaintiffs no ted, secondary
sources purchase allowances with the hopes of making a profit.129 Woul d th at result in returning
the utility prices to the point they were before the amended regulations came into effect or would
that result in even greater utility prices? It is pure speculation to say what will happen The
failure to address this issue is fatal to plaintiffs’ standing, in and of itself.

ln the end, l conclude plaintiffs are intermeddlers. They lack standing and their case is

dismissed with prejudice.

 

127The Court could have resolved the entire issue of standing against plaintiffs on this
single failure.

128C-66-68; C-103-04.

‘29Plaintiffs’ August 6, 2016 Report, “Cost lmpacts of 2013 RG Gl Rule Changes in
Delaware” at 3.

32

Conclusion

For the reasons set forth herein, the Court rules as follows:

1) Jack Peterman is removed from the caption as a party and the caption hereinafter reads

as set forth on the front page of this opinion

2) The Court grants defendants’ motions in limine and excludes the opinions of Dr.

Stapleford and David T. Stevenson

3) The Court denies plaintiffs’ motion in limine to exclude the opinions and evidence of

Dr. Tierney.

4) For the various reasons set forth above, plaintiffs lack standing to pursue this action
5) The action is dismissed with prejudice.

IT IS SO ORDERED.

33

