Legalectric

MISO objects to the NRG & NO765MN Motion to Compel Appearance of their witness, that’s no surprise. Here’s the recap – NRG & NO765MN’s Motion to Compel MISO’s Attendance and Subpoena Request:

Here’s what MISO has to say:

There are some pretty remarkable statements within, starting on the first page. Their first objection:

Movants assert that state law, administrative rules, and Commission orders encourage public participation, including opportunities to testify, present exhibits, and cross-examine witnesses [fn. omitted]. Movants’ reliance on these authorities is misplaced as applied to public hearings for a certificate of need proceeding. None of these sources require any party to present its witnesses for examination at the public hearings. Movants principally cite Minn. Stat.§216I.16 and Minnesota Rules chapter 1405 as support for their assertions [fn. omitted] but these provisions are not applicable here.

Ummmm, let’s see what I’ve cited and why:

• 216I.16 Public Participation this is the Commission’s mandate to “adopt broad spectrum citizen participation as a principal of operation.” 216I is the “replacement” for the Power Plant Siting Act, but it’s hard to argue that this Commission mandate applies only to routing and siting!
• Commission Order Accepting Application, Varying Rules, Requiring Filings, and Notice of and Order for Hearing, April 26, 2026: p. 5, 20264-230753-01, stating that “persons have the right to present evidence, conduct cross-examination, and make written and oral argument,” and reference the rule for subpoena, yet that same order states that the public cannot participate in the Evidentiary Hearing.
• Minn. R. 1400.7000 Subpoena (in the CAH general rules)
• Notice and Order for Hearing, p. 4, October 19, 2026  202610-237730-01 stating that cannot participate in the Evidentiary Hearing.
• Minn. R. 1400.6200, Subp. 5, Participation by the Public: The judge may, in the absence of a petition to intervene, nevertheless hear the testimony and receive exhibits from any person at the hearing, or allow a person to note that person’s appearance, or allow a person to question witnesses, but no person shall become, or be deemed to have become, a party by reason of such participation. Persons offering testimony or exhibits may be questioned by parties to the proceeding.
• Minn. R. 1400.7150 Rights and Responsibilities of Nonparties: Subpart 1. Offering evidence. With the approval of the judge, any person may offer testimony or other evidence relevant to the case. Any nonparty offering testimony or other evidence may be questioned by parties to the case and by the judge.
• Subp. 2. Questioning witnesses. The judge may allow nonparties to question witnesses if deemed necessary for the development of a full and complete record.
• Minn. Stat. §14.60 Evidence in Contested Case Hearings Subd. 3. Cross-examination of witnesses. Every party or agency shall have the right of cross-examination of witnesses who testify, and shall have the right to submit rebuttal evidence.
• Minn. R. 1400.7800 Conduct of Hearing F. Cross-examination of witnesses shall be conducted in a sequence and in a manner determined by the judge to expedite the hearing while ensuring a fair hearing. At the request of a party whose witness is being cross-examined, the judge shall make rulings as are necessary to prevent argumentative, repetitive, or irrelevant questioning and to expedite the cross-examination to the extent consistent with the disclosure of all relevant testimony and information. G. Any party may be a witness or may present other persons as witnesses at the hearing. All evidentiary testimony presented to prove or disprove a fact at issue shall be under oath or affirmation.
• Minn. R. 1405.1400 Conduct of Hearing A. all persons may present evidence and argument with respect to the issues and cross-examine witnesses. [1405 is in routing/citing chapter of administrative rules, BUT, as I noted in the Motion, it is the Commission that cited that rule.]
• Intervention is not necessary to participate in a hearing: Minnesota’s statutes, rules, and Commission orders repeatedly state that one does not need to intervene in a docket to participate. Minn. R 1405.0800; see also as above, Minn. Stat. §14.60; Minn. R. 1400.6200, Subp. 5; 1400.7150; 1400.7800, Subp. G & H; Commission Order, p. 5-6, April 26, 2026 (20264-230753-01).

Of the citations to Statutes and Rules, above, yup, just TWO are not in ch. 1400 of the administrative rules, and the 1405.1400 reference came from the Commission’s Order, so really, just one, in the list just above addressing intervention and participation, so no need to be pissy about that. How about addressing all the other citations?

This is from the Commission’s October 19, 2026 Order (202610-237730-01) that expressly stated that the public could not, would not be allowed, to participate in the Evidentiary Hearing:

Next, MISO claims that “MISO is NOT an Applicant and MISO Does Not Have a Burden of Proof in this Proceeding.”

Conflation much? MISO has put up a wall, yet MISO decided factors about the project that are determinative in the Certificate of Need proceeding, deciding these factors, with Applicants requesting (202510-223482-03) and receiving (202511-225329-01) Exemptions from Application Contents that prevent meaningful participation, prohibit consideration of reasonable alternatives, and avoid effective challenge too:

• The purpose – it matters because system alternatives are limited Minn. Stat. §216B.243, Subd. 3(a) – www.revisor.mn.gov/statutes/cite/216b.243
• Endpoints – also matters because system alternatives are limited Minn. Stat. §216B.243, Subd. 3(a) – www.revisor.mn.gov/statutes/cite/216b.243
• Proxy Route – endpoint to endpoint, with endpoints determined by MISO
• Individual projects – chosen by MISO – with “PowerOn Midwest” having FOUR individual projects, LRTP 22, 23, 24, 25 (and nevermind that in their “need” claim, “studied projects” include LRTP 26 also, from “North Rochester” to Columbia, WI, that’s one huge addition, which means their “need” claim for “PowerOn Midwest” is deficient).
• Cost/benefit – to justify project, it must provide more benefit than cost, but the benefits are bogus, and this “analysis” is done on a “zonal” basis, not a project basis, so there’s no evidence of the benefit of any specific project!

… and then the Applicants “apply” and take on the chore of marching it through the Public Utilities Commission. Oh, right, that’s the same “Public Utilities Commission” where from the dais we hear the Commission Chair saying, “What can we do to make this faster for you?” and “What can we do to speed this permitting up?” and that whole “streamlining” effort, which is really STEAMROLLING. Fast tracking permitting, denial of interventions, failure to have project proponents witnesses at hearings for questioning… That 2024 legislation sure did that (Article 43, Energy Infrastructure Permitting Act), reducing timeline and process, reducing environmental review, eliminating Task Forces, and REPEALING ALL BUT 3 OF THE Minn. R. ch. 7850 SITING RULES! We’re seeing how that works.

And last but not least:

First, public comments are not part of the record? Ahem… ya better check the rules. Members of the public can provide testimony, exhibits, and cross witnesses, public comments made under oath, check statute and rules.

But getting to the meat of this… Burdensome? Crocodile tears… MISO’s been offered the option of zoom or phone. That’s been done before, nothing new.

And how dare they complain about “burdensome.” This is MISO’s project. How burdensome might it be for those affected by this project that’s a marketing expansion plan, not a need? How burdensome must it be to be reading, researching, writing, commenting, going to meeting after meeting, hearings too, more meetings, more reading, researching, writing, showing up over and over and over, with the Damocles of a 765 kV transmission dangling overhead? Once more with feeling… This is YOUR project, MISO.

Oh, right… Public Hearings are not just Applicants presenting their case to the public and hearing and responding to the public. Representatives of state agencies and intervenors who have sponsored witnesses have consistently been available at Public Hearings before the ALJ. More importantly, this project is MISO’s invention. MISO established the purpose of Tranche 2.1 and LRTP 22, 23, 24, and 25 (and 26); the endpoints substations identified in MTEP projects that have been approved by the MISO Board, NRG & NO765MN IR 4(b); that for this project 4,000 amps was required. Application, p. 33 & 182. MISO developed a proxy route (p. 31, Transmission Cost Estimation Guide For MTEP24, May 1, 2024), and organized “solutions” into projects, in light of factors including ownership, project, size boundaries, and MISO notes that “MISO is solely responsible for dividing the portfolio into individual projects.” MISO response to Commerce IR 14(b). With such a fundamental role in developing each of the projects in Tranche 2.1, MISO does have at the very least a burden of production, and because MISO made the determination of the project purpose, which the state by law accepts, that is a presumption of “need” that MISO needs to back up.

There’s no argument that MISO is not the “applicant,” but the way it’s working is more like what I saw so often in trucking — MISO is a company and the Applicant is a phony “independent contractor,” with zero latitude and essentially, doing whatever MISO requires (and in this case, both are benefiting from that distancing)! Because the Applicant is not a “utility” applying for a transmission project, and “don’t have the information” or what they have is not “relevant” because it’s a “regional” project, and as above, the Applicant requested (202510-223482-03) and received (202511-225329-01) Exemptions from Application Contents (but remember, an exemption from the application is not an exemption from provision of information in the permitting process). MISO‘s the one with the information, and MISO presumes there’s no responsibility to provide it. The Exemption Order (202511-225329-01) was on the Commission’s Consent Agenda, no less. It’s that second Order point that’s the problem:

And Exemptions, as requested by Applicant and modified by Commerce (look up Application Content rules here 7849.0220, and all the others HERE in Chapter 7849:

Another systemic problem: Two things thwart entry of system alternatives, the Certificate of Need statute and the scoping decision.

Minn. Stat. §216B.243, Subd. 3(6):

Reworked scoping decision:

And why would Applicants care that I’ve filed Subpoena Requests for DOT (and DNR, I’m sure)? I can see that neither Applicant would want David Patton, Ph.D., the MISO Market Monitor, to testify and provide documentation:

And there’s this, MISO wanting to muzzle it’s Independent Market Monitor, thankfully rejected by FERC:

And IMM Response:

Well, that didn’t work! Here’s FERC’s Order:

AAAAARGH, that’s enough for today…

On October 22, 2026, the Minnesota Public Utilities Commission met to consider the site permit for Lemon Hill Solar (PUC Docket GS-25-126. This meeting was one of the most difficult to watch, and I’m sure glad I wasn’t representing anyone on this project.

ALJ’s Recommendation

I’d read the ALJ’s Recommendation because of a couple of issues raised, particularly karst, and also erosion, an issue in one of the Wisconsin dockets I’d worked on. The ALJ recommended the permit be denied, giving detailed reasons and citing evidence from the record. Denial of an application is rare, I know the Freeborn Wind application was originally denied, the application withdrawn, until Commerce and Xcel changed the rules, moved the goal posts, and applied again. Of course then it sailed through. I’ve not heard of another recommendation of denial, but ? there could be others, I don’t have an eye on every PUC Docket.

And this –I’ve never seen anything like this:

LISTEN TO THIS MEETING – STARTS AT 33:44:

October 22 Public Utilities Commission Meeting: Start at 33:44 (won’t let me embed)

The written order is not out yet… will update this post when it’s available.

PowerOn Midwest Public hearings start on Monday, November 9th. Do mark you calendars, go over what’s in the docket (CN-25-117), and come on down!!

UPDATED October 20, 21, 23, and 29, 2026

Here are the Resolutions filed thus far by Counties and Townships affected by PowerOn Midwest 765kV transmission (PUC Docket CN-25-117) through their communities. Some are forms, fill in the blank even, and I’m hoping that there will be more individual ones filed — individually drafted filings have greater weight, greater impact.

Cities:

Counties:

Townships:

A few days ago, an odd filing hit the inbox, Minutes from the May 28, 2026 Public Utilities Commission meeting, about 5 months after the meeting!

Here’s what’s interesting. Remember the Biennial Transmission Plan, instituted before CapX 2020 erupted, with the intent of requiring transmission plans to be publicly disclosed. Minn. Stat. 216B.2425! This was part of the legislative changes in 2001, what a year that was.

Here’s what’s supposed to be in it:

7848.1300 CONTENT OF BIENNIAL TRANSMISSION PROJECTS REPORT.

Over the years, it’s been neglected, and at that May 28, 2026 Commission meeting, Commissioner Hwikwon Ham got some necessary updates through. The first bunch was a round of changes to keep up with the lack of excitement and participation (!), to put it mildly. What changed?

That’s the easy part. What followed was an extensive list for utilities to add to reports from here on in, including info on transmission “alternatives,” increase in transparency – reduction of secrecy, and costs & cost/benefit:

Now that’s interesting. But does that mean diving into that (&%#($%& Biennial Transmission Plan again?

Here’s the full meeting minutes as eFiled: