Legalectric

IT’S NOT IN THE PUBLIC INTEREST! WELL, DUH!

Yet another silver stake in the ugly, slimy heart of Excelsior Energy’s Mesaba Project — the coal gasification (IGCC) boondoggle that’s been haunting Minnesota for almost six years now. Today, the ALJ Recommendation has been released, and it also finds that that there’s no basis for moving forward.

Mesaba Phase II – ALJ Report

Here’s the bottom line, sans formatting glitches:

CONCLUSIONS OF LAW

The Minnesota Public Utilities Commission and the Administrative Law
Judges have jurisdiction over this matter pursuant to Minn. Stat. §§ 216B.08,
216B.1693, 216B.1694, and 14.50, Minn. R. 1400.5100-.8400, and to the extent not
superseded by those rules, Minn. R. 7829.0100-.3200.

The Commission gave proper notice of the hearing in this matter, has fulfilled all
relevant substantive and procedural requirements of law or rule, and has the authority to
take the action proposed.

Since the Project is an Innovative Energy Project under Minn. Stat. § 216B.1694, subd.
2(a)(4) and is therefore also as a Clean Energy Technology under Minn. Stat. §
216B.1693.

The Project and its technology do not satisfy the requirements of Minn. Stat. §
216B.1693(a) because the Project is not likely to be, a least cost resource, including the
costs of ancillary services and other necessary generation and transmission upgrades,
to provide 13% of the electric energy that Xcel supplies to its retail customers.

It would be contrary to the public interest for the Project to supply 13% percent of Xcel
Energy’s retail load starting in 2012.

This report has some choice nuggets, beyond listing “Wind on the Wires” as an Intervenor, such as this slap down of Excelsior when they tried again, for the eighthundredthousandth time, to enter evidence long after the record closed (I’ve made how many Motions trying to stop this? Amazing that the ALJ is not letting this slide by):

In summary, the ALJ concludes that the written testimony of Messrs. Cortez and
Weissman contained in Excelsior’s Offer of Proof is not admissible either to revisit
Phase 1 issues that have been referred to the Commission issues or to supplement
their prefiled testimony on the Phase 2 record. If the Commission should conclude that
the written testimony of Messrs. Weissman and Cortez is not repetitive but necessary
for resolving either Phase 1 or Phase 2 issues, it may wish to remand proceedings to
the ALJ for inclusion of that evidence in the record and to provide opposing parties with
an opportunity to present rebuttal evidence.

In this docket, as in the others, Excelsior submitted statements to show legislative intent, ones that I challenged with Motions to have them tossed out, and the ALJ summarily said, “NO THANKS” to Excelsior, not only giving them a lesson in statutory intent, but also a slap upside the head to their megalomaniacal entitlement notions:

First, the communications by the Governor and members of the Legislature that
Excelsior relies on are either irrelevant, inadmissible to establish legislative intent, or
both. In his May 23, 2003 letter, the Governor communicated to members of the Senate
a number of objections he had to H.F. 9, which the House had passed the day before
and had sent to the Senate for its consideration. The third paragraph of the
Governor’s letter stated:

The coal-gasification plant technology proposed for the Excelsior Energy
project will provide base-load power with clean emissions, helping pave the
way for a better future. The project also provides economic development
opportunities in a region of the state that has suffered significant job losses.
The project has merit and it should be encouraged, but not at the expense of
true renewable initiatives.”

The Governor’s letter sheds no light on his position on whether there should be an
expiration date for the proposed Minn. Stat. § 216.1693 and, if so, what that expiration
date should be. Moreover, even if the Governor’s letter is taken as an expression of his
desire for a long term power supply entitlement in Minn. Stat. § 216.1693 extending into
the indefinite future, the Legislature passed a bill on the following day that included the
explicit expiration date in Minn. Stat. § 216.1693(d), and the Governor subsequently
signed that amended version of the bill into law. Excelsior also relies on some more
recent statements by legislators, including some bill authors, as to what the Legislature
may have intended when it passed H.F. 9. However, comments and statements of
legislators, including authors, made after a statute has been passed “are inadmissible
for the purpose of construing a statute.”

…

Finally, Excelsior argues that any interpretation of Minn. Stat. § 216B.1693(d)
other than its own would defeat the purpose of the statute, undermine the legislative
intent behind the law and eliminate the intended effect of the statute, “which is to
encourage the development of IGCC plants to serve Minnesota’s need for base load
power.” In other words, Excelsior argues that there is no reasonable explanation for
having the statute and the entitlement and obligation that it creates expire on January 1,
2012. The ALJ also disagrees with that analysis. In its Phase 2 argument, Excelsior
proposes that Minn. Stat. § 216B.1693 evidences a legislative “intent to enable clean
energy technology to establish to establish a foothold in Xcel’s generation
portfolio . . . .” In the ALJ’s view that proposition is only partly correct. First of all, by
enacting Minn. Stat. § 216B.1693, the Legislature did not guarantee clean energy
technology a foothold in Xcel’s generation portfolio; it only provided clean energy
technology an opportunity for such a foothold if other statutory conditions could be met.
Second, the plain language of Minn. Stat. § 216B.1693(d) indicates that Legislature only
offered an opportunity for a foothold in Xcel’s generation portfolio that would be
available until January 1, 2012, about eight and one-half years from the date of
enactment. If Excelsior or other potential IGCC providers could not avail themselves of
the opportunity before then, it would be necessary for them to return to the Legislature
and seek reenactment. That is a legislative intent that is consistent with the plain
meaning of Minn. Stat. § 216B.1693(d).

(Footnotes excised) Hey, Excelsior, is it clear? “…[T]he Legislature did not guarantee clean energy
technology a foothold in Xcel’s generation portfolio; it only provided clean energy
technology an opportunity for such a foothold if other statutory conditions could be met. ” You’re not meeting the conditions — you’re outtahere!

There’s a cute little footnote on p. 33:

110 The ALJ notes that the evidence establishes the Excelsior is scheduled to
complete neither Mesaba Unit 1 nor Mesaba Unit 2 prior to January 1, 2012,
when the CET Statute’s power supply entitlement expires.

So take that, Excelsior!

And would you agree, Mr. Micheletti, that this accurately characterizes your position:

Stolen from AP – Firefighters rescue donkey trapped in well in Western Minnesota 

… not only are we still waiting, we’ve not heard a peep whatsoever about it…

grrrrrrrrrrrrrrrrrrrrrrrrrrrrr

Let sleeping dogs lie????

I guess the rules only apply to some, the schedule only applies to some… The Excelsior Mesaba Project PPA ALJ Recommendation to the PUC was due yesterday. Word comes from a lobbyist, and separately from a non-party, that the ALJs’ recommendation is delayed. I had inquired at OAH because I hadn’t received it. No response… I called back and asked about the comments of others I’d heard that the Recommendation was coming out late and got confirmation. WHY AREN’T THE PARTIES NOTIFIED? Finally, at 9:45 a.m., the day after the Recommendation was due:

Dear Parties:

The Administrative Law Judges hope to issue the report in this matter late next week. Thank you for your patience.

Sincerely,

Maria Lindstrom
Staff Attorney
Office of Administrative Hearings
612-349-2527

Patience? Uh-huh… As a party whose name I can’t recall often says, “I feel like I’m at the Mad Hatter’s tea party.” I guess I’ll just sit here and collect and disseminate information from elsewhere in the country about IGCC as it goes down in flames.  Today it’s Delaware!

There’s more in the Grand Rapids Herald Review about Excelsior‘s Mesaba coal gasification (IGCC) project:

Build a research facility for energy projects

Herald-Review
Wednesday, January 10th, 2007 11:59:21 AM

Editor:

On Dec. 29, ABC News International reported on a seismic event, but not an earthquake. The Ayles Ice Shelf, all 41 square miles of it, one of six major shelves remaining in Canadaâ??s arctic, had snapped off, broken away from Ellesmere Island. Scientists described this occurrence as signaling a â??crossing of climate thresholds.â?

Theis â??dramatic and disturbing eventâ? registered on seismographs, but that wonâ??t help any if is significance doesnâ??t register on us.

We know that we must change the way we produce energy if weâ??re to avoid the further catastrophes that climate change has in store. How should we change?

The Mesabi Energy Project is a prefect example of what not to do. Burning more coal is not the answer. Burying toxic waste in landfills is not the answer. Using a process designed to sequester CO2 in a place where the geology does not allow it, is not the answer.

The $2.1 billion the Mesabi Energy Project will cost us, citizen taxpayers, might be used to develop means of making energy that will help to solve, instead of contributing to, global pollution and catastrophic climate change.

What if, instead of contributing public money to a project designed to enrich further the already wealthy, our state and federal governments created a state of the art research facility, right here in northern Minnesota, in, say, Taconite, to house a truly creative energy project, something on the scale of the Manhattan Project in World War II, to find clean ways to produce energy?

Matthew Miltich
Wabana Township