Legalectric

Transmission over Red Wing’s Westwood subdivision

In routing permitting using “Alternate Review” and in wind siting permitting under Minn. Stat. Chapter 216F, exempted from environmental review, the environmental review is inadequate.  An Environmental Impact Statement is necessary!  DOH!

Looking at Minnesota’s draft Rules for Transmission/Utility Infrastructure siting and routing, it’s clear that the recent Minnesota Court of Appeals decision remanding the Sandpiper pipeline case to the Public Utilities Commission has implications beyond Certificate of Need.

“Sandpiper” decision – OPa150016-091415

The Court’s bottom line was:

This was based on its holding that a Certificate of Need decision by the Public Utilities Commission was a “major governmental action.”

Because the decision to grant a certificate of need for a large oil pipeline constitutes a major governmental action that has the potential to cause significant environmental effects, we conclude that MEPA requires an environmental impact statement to be completed before a final decision is made to grant or deny a certificate of need.

Just as a Certificate of Need is a major governmental decision, a Siting Permit or a Routing Permit is a major governmental decision.  The Minnesota statute and rules provide for “Alternate Review” for siting and routing:

Alternate Review of Applications – Minn. Stat. 216E.04

And in this statute, there’s a subdivision authorizing an “environmental assessment.”

Subd. 5.Environmental review.

For the projects identified in subdivision 2 and following these procedures, the commissioner of the Department of Commerce shall prepare for the commission an environmental assessment. The environmental assessment shall contain information on the human and environmental impacts of the proposed project and other sites or routes identified by the commission and shall address mitigating measures for all of the sites or routes considered. The environmental assessment shall be the only state environmental review document required to be prepared on the project.

Throughout this rulemaking, a number of us participating have been stressing that this “environmental assessment” does not comply with MEPA.  Under the logic of the “Sandpiper” decision – OPa150016-091415, the Court would agree.

Yet here are the draft rules for Siting and Routing — search for “environmental assessment” in the draft:

August 3 2015 Draft Minn. R. Ch. 7850 (Siting & Routing)

And Certificate of Need draft rules:

August 3 2015 Draft Minn. R. Ch. 7849 (Certificate of Need)

And regarding wind permits, also a major governmental decision, these are statutorily exempted from environmental review by exempting it from PPSA – Minn. Stat. 216E.03, Subd. 5 “Environmental Review.”

216F.02 EXEMPTIONS.

(a) The requirements of chapter 216E do not apply to the siting of LWECS, except for sections 216E.01; 216E.03, subdivision 7; 216E.08; 216E.11; 216E.12; 216E.14; 216E.15; 216E.17; and 216E.18, subdivision 3, which do apply.

Wind siting permits are exempt from environmental review?  Public Utilities Commission issuance of wind project siting permits is a major governmental action.  Nope, not compliant with MEPA.