Legalectric

Photo – Gretchen Hoffman, Capitol Chat

John Howe has announced he’s running for Congress in Minnesota’s 2nd Congressional District.  It’s all over the web.  I’d wager a fair amount that John Howe would win the election.  The good news is that Drazkowski will not run, Dog help us if he did (though it would get him out of the MN House!). What I know about Howe is that as Mayor of Red Wing, and as our area state Senator, he stood up to Xcel Energy on its Prairie Island uprate and worked to get the full story out, and Xcel Energy did ask that the Certificate of Need be revoked/withdrawn after it was clear that there was no need for the uprate.  Howe also returns phone calls, and he’ll stop for a chat at the Farmers Market.

He was working for a bipartisan legislative environmental lobbying/caucus org of some sort, so I hope that he’ll continue with that mindset.  But given the MPR blurb below of Howe’s early campaign stop at a Red Wing Tea Party meeting, that gives me the willies, and I do hope he’s not taking that party line.  He also says he’ll put in $500k of his own money toward the campaign.  If he’s got that kind of money to throw around, and buys in to the “pay to play” notion, that’s a concern.  He’s been a moderate, sane voice, and if he continues on in that vein, he’ll win.  If not, if he goes off like Republican Presidential candidates these days, well, he’ll have trouble in this swing district.

We shall see…

Here’s the MPR article:

Howe enters race for Congress

And on Hubbard’s KSTP:

Former Sen. John Howe to Run for Congress

In the StPPP and StPPP blog:

2nd Republican announces bid to replace Rep. John Kline

Howe runs for Second District as ‘conservative’ but ‘electable’

I think that last headline pretty much sums it up for CD2!

WHAT!?!?!  Yes… Really… after the delightful decision from the Appellate Court requiring an Environmental Impact Statement, telling the Public Utilities Commission that an EIS must be completed before a Certificate of Need can be issue, the Applicants dropped  Petition.  Read this whale-eye inducing filing from North Dakota Pipeline Company, LLC (a/k/a Enbridge) hot off the press:

North Dakota Pipeline Company _ Petition for Rejoinder and Comment Period 20159-114150-03

Here’s the short version:

Once more with feeling, here’s the Appellate Court’s decision:

OPa150016-091415

And the bottom line:

So from this order of the Appellate Court “to complete an EIS” the Applicant now asks for the “need” docket and “routing” docket to be brought back together and to use the “Comparative Environmental Analysis” that the Appellate Court says isn’t sufficient.  Yes, that what they’re saying:

What planet is North Dakota Pipeline Company living on?  Earth to Mars!!!!!  A “CEA” is not sufficient.  MEPA requires an EIS.  The court told the Public Utilities Commission to complete an EIS.  The Court did NOT say to go ahead with a “CEA.”

Not too long ago, Lisa Agrimonti sent around notice that she had moved over to Fredrickson & Byron.  $50 says that she’ll be filing Notice of Appearance for this docket!

It’s fall, the sun is rising on the other side of the house and bluff now, and I’m not ready!  Getting out to enjoy fall as much as possible, and then Little Sadie and I are heading to St. Louis soon for BaronFest III (didn’t have one last year).  Maybe down to Arkansas to catch fall later!  This is the first BaronFest where I don’t have a German Shepherd, and I’m not sure how Little Sadie will fare.

It’s hard to feel motivated to work with all this transmission going up here in Minnesota.  Earlier in the summer, we went down through Wabasha, and south of Wabasha where CapX Hampton – La Crosse cuts across the Mississippi River to Alma, through La Crosse and checked out the Briggs Road substation, host to CapX and Badger Coulee transmission, to Cassville and Dubuque and back up further west, a tour of electric infrastructure.

Don’t they have enough?  If they’re shutting down this coal plant, why would they need transmission?  How about using that capacity… oh, right, they get that 12.38% or thereabouts for building transmission, that’s their primary revenue source these days!

Time for a break…

Until then, I can vicariously enjoy my SiL’s trek along El Camino, and transmission lines too, in Spain.  Go, Jeanne, go!!!

Yesterday, the Arkansas Delegation hit Plains & Eastern Clean Line where it counts — a line drive to the Secretary of the DOE with this letter:

AR Delegation_Moniz_Sept 14 2015

Maybe this letter should have been headed “FREEDOM OF INFORMATION ACT REQUEST.”  Plains & Eastern Clean Line applied under Section 1222 of the Federal Energy Policy Act of 2005.

For reference, here’s Section 1222 of Energy Policy Act 2005.

Many of the points raised were ones brought forward in testimony, public comments, and media reports of the Plains & Eastern Clean Line transmission line proposal.  Questions the AR delegation raised include basic project information and:

• transactions and costs related to participation in Section 1222;
• obvious failure to qualify because it is not in a “national interest electric transmission corridor” under Section 216(a) of the Federal Power Act;
• improper use of Federal eminent domain authority undermining states’ rights;
• that the project is outside the statutory mission of federal Power Marketing Administrations (Southwestern PMA is proposed by Plains & Eastern Clean Line as partner in its project);
• project boundaries extend beyond the statutory boundaries of Southwestern Power Administration;
• costs for this private project could be transferred to electric utilities and their customers and this possibility has not been walled off/mitigated to insulate Southwestern’s customers;
• concerns about “non-completion” assessment of costs and prevention/mitigation have not been addressed;
• Clean Line’s assertions that they will pay certain taxes to local communities have not been investigated and verified;
• use of existing federal rights-of-way and federal land;
• Clean Line’s substantially incorrect, misleading, and/or inconsistent statements, which are basis for rejection or denial of the application, have not been addressed;
• draft EIS “did not meet the expectations of an inclusive, community-driven feedback process” expected of administrative agencies, and public comment periods and involvement of landowners and stakeholders was insufficient public engagement;
• questions regarding tribal consultation; questions regarding DOE position on state’s role in siting under Section 1222;
• impacts of traversing Mississippi Flyway on waterfowl and migratory birds, together with resultant economic and recreational impacts;
• impacts on public recreation on outdoor recreation in Arkansas;
• use of non-governmental email accounts for Department deliberations regarding this project.

Like WOW!  I’m impressed — this letter is a work of art.

Putting MinnCan pipeline through the Nietes field

Today the Minnesota Court of Appeals finally determined that under the Minnesota Environmental Policy Act, a full Environmental Impact Statement, not the abbreviated “Environmental Report,” is required.  I’ve been before the Appellate Court, the Public Utilities Commission, the Administrative Law Judge, in Comments to the Dept. of Commerce, and at the Rulemaking Advisory Committee for Minn. R. ch. 7849 how many times on this?!?!? … sigh… OK, whatever…

Sent this to the PUC’s rulemaking staff because we’ve got to make sure the Certificate of Need rules are in line with this decision:

Letter_AppellateCourt_Sept142015

So back to today’s Appellate decision — I’m glad they’re finally acknowledging this problem.  Very, very glad to see this order to remand to the Public Utilities Commission for a full Environmental Impact Statement, as required by the Minnesota Environmental Policy Act.

Here is the decision:

OPa150016-091415

Here’s the meat of it — it’s so simple — why did it take so long?

Here the MPUC deviated from its usual practice and chose to conduct the certificate of need proceedings prior to the routing permit proceedings. As a result, the MEPA-compliant environmental review associated with the routing permit would not occur until after a decision was made on the certificate of need. Neither party challenges the underlying decision to bifurcate the proceedings, but FOH argues that making a decision on the certificate of need in the absence of an EIS violates MEPA. The MPUC and NDPC contend that requiring an EIS at the certificate of need stage is inconsistent with the EQB’s longstanding determination that the alternative environmental review conducted as part of the routing permit proceedings satisfies MEPA. We agree with FOH, and see this as a simple question of statutory interpretation that requires us to examine the plain meaning of two MEPA provisions.

…

Relying on subdivision 2b, FOH contends that the issuance of a certificate of need constitutes a “final governmental decision” to grant a permit, and as such is prohibited until an EIS has been completed. We agree. For purposes of MEPA, the definition of permit includes a “certificate, or other entitlement for use or permission to act that may be granted or issued by a governmental unit.” Minn. R. 4410.0200, subp. 58 (2013) (emphasis added). This unambiguous definition encompasses a certificate of need. All parties also agree that once the MPUC decides to grant a certificate of need, its decision regarding the issuance of that specific permit is final. Therefore, based on the plain language of subdivision 2b, the MPUC’s issuance of a certificate of need constitutes a final governmental decision that is prohibited until the required environmental review is completed.

We are also not convinced that an EIS is not required before a certificate of need may be issued simply because the EQB has approved the environmental assessment associated with the routing permit process as an adequate alternative to a formal EIS. While the substance of this alternative review process may be equivalent to an EIS, its approval as an alternative by the EQB says nothing about when a final governmental decision to grant a permit may or may not be made in the absence of an EIS, which is specifically addressed by subdivisions 2a and 2b. Minn. Stat. § 116D.04, subds. 2a, 2b. We also note that the legislature could have clearly stated that a certificate of need for a large oil pipeline was excluded from the environmental review requirements of MEPA, but it declined to do so. See Minn. Stat. § 116D.04, subd. 2a(a) (authorizing EQB to establish categories of action for which an EIS is mandatory and identifying certain actions for which an environmental assessment worksheet or EIS shall not be required). As a result, in the absence of a statutory exclusion or an explicit statement by the EQB that the approved routing permit application process supplants the need for environmental review at the certificate of need stage, subdivisions 2a and 2b must control our determination of whether environmental review is required. The unambiguous language of those provisions mandates that in a situation such as this, when the MEPA-compliant environmental review would not occur until after a certificate of need was issued, an EIS must be completed as part of the certificate of need proceedings.

Finally, we point out that requiring an EIS during the initial certificate of need proceedings affirms the emphasis MEPA places on conducting environmental review early on in the decision-making process. Specifically, MEPA states that, “[t]o ensure its use in the decision-making process, the environmental impact statement shall be prepared as early as practical in the formulation of an action.” Id., subd. 2a. This emphasis on timing is also consistent with the way federal courts have applied the National Environmental Policy Act (NEPA), which we may look to for guidance when interpreting MEPA. See Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 468 (Minn. 2002). The United States Supreme Court has explained that the early-stage environmental review similarly required by NEPA is critical because it “ensures that that important [environmental] effects will not be overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S. Ct. 1835, 1845 (1989)

In this case, the completion of an EIS at the certificate of need stage satisfies the imperative identified above by ensuring decision-makers are fully informed regarding the environmental consequences of the pipeline, before determining whether there is a need for it. Moreover, completion of an EIS at the initial certificate of need stage seems particularly critical here because once a need is determined, the focus will inevitably turn to where the pipeline should go, as opposed to whether it should be built at all. We acknowledge that the MPUC did order a high level environmental review to be considered during the certificate of need proceedings. But as the MPUC noted, this review was not meant to serve as a substitute for the more rigorous and detailed review needed to satisfy MEPA, and it cannot take the place of a formal EIS now. Accordingly, we conclude the MPUC erred by not completing an EIS at the certificate of need stage as MEPA requires.