Legalectric

Yesterday was quite the day at the PUC, as Chinesey “interesting” as it gets.  I heard them saying things that made me wonder if I were really awake (and it was doubtful, long evening, rushed morning to get there, snoozing most of the way up).

As I came in, the New Ulm wind project was up.  I’d met some people afffected by this project at the Dog & Pony I did with people working for better wind siting practices in Goodhue County, landowners who had come all the way from Nicollet County, and whoo-boy, were they mad.  They said that the New Ulm muni was wanting to build a wind project, and as there wasn’t suitable land, they wanted to go into Nicollet County and take it by eminent domain!  HUH?  Say what?!?!?

This MOES description from the briefing papers gives a hint:

The proposed New Ulm Wind Farm Project comes to the Commission with a somewhat sullied history and polarized positions between landowners within and adjacent to the project site and NUPUC. OES EFP staff is not aware of the Project’s history prior to 2008.

New Ulm has put in an application.  It’s multi-part and so to get it all, go HERE and search for docket 09-178.

Here are the MOES Staff Briefing Papers:

MOES Staff Briefing Papers

As I got in, the New Ulm item had begun, and they were talking about eminent domain, the New Ulm muni’s plan to use eminent domain to get land to build this project, and here are some paraphrased snippets (count the number of times the term “eminent domain” is used, or “public purpose” or “question” as in “I question whether” and those sorts of words rarely spoken at the PUC:

(remember these are ROUGH paraphrased statements)

Wergin: questions whether eminent domain should be used.  We have an opportunity to investigate.  Questioned whether there’s a common practice to squelch freedom of speech (referring to contract provisions requiring support of the project).

O’Brien – asked whether there was “non-disparagement” language in the contract, utility said no, there was not (non-disparagement?  How about non-disclosure?  His choice of words was odd).

Pugh – there is a SLAPP statute, I sponsored that bill, if City attempted to initiate action it’s available.  Great reservations if this may be forced through eminent domain.  But we can’t legally stop it today, this is “acceptance of application as complete.”

Wergin – for eminent domain, a project must meet the standard for public purpose.

Reha – asked about public process, if and wehn draft permit issued there may be public hearings

Cupit – who gets notice per the rule – don’t have boundaries, some in circled areas got notice, notice should go to all potentially affected.

O’Brien – have to get the power to New Ulm, transmission?

Hartman – limited understanding, New Ulm working on interconnetion that doesn’t have to go through MISO queue

Applicant – there is powerline right next to these sites, or through spearate line to Ft. Ridgely substation about seven miles.

Hartman – MOES had applicant revise study area and did broad notification

A-1 amendment – applicant to submit map and legend

O’Brien – can this project go forward with current land rights?

Applicant – depends on conditions in permit

Wergin – don’t have a choice today, question whether we need additional piece for public participation.

Hartman – we can move forward, OES will bring a draft site permit to review, and Commission can determine what process

O’Brien – Public Advisor – speak to wisdom of project, there are 100s of projects with willing landowners, here it’s disputed.  Ask Public Advisor to address this matter, Commission could ask OES to address.

Reha – Public process as she sees it is draft permit is issued and that triggers the public process.  Will it be coming back?

Cupit – It will be back next when the draft permit is issued

Pugh – concerns about eminent domain issues, power different, our actions are taken as proof that public purpose exists, if it were to go forward in court, that removes the public purpose determination from the court process.  Here, there will be a draft site permit, no analysis has been submitted or need to be submitted as to wheter there’s another way to do it, rather than eminent domain.  We may be making a decision that has impact of declaring that it is a public necessity.  I’d like to see other options, I know I can’t mandate Hartman to do that.

O’Brien – Accept permit, specifically not including public purpose determination

Puch – fine with including that, without that analysis, I don’t feel comfortable taking position.

Reha – supplement application, explaination how they came about this.

O’Brien – ask applicants whether there are other means. 1) not proving public purpose, 2) address reasonable alternative means to acquire renewable resource, then we can act in fairness to all.  If we have authority to accept or reject, we have authority to require additional information.

PUC Counsel – could ask applicant to provide more information

O’Brien – whether they considered purchasing

Counsel – can ask, no need for CoN, this isn’t CoN, need to look deeper

Wergin – munis don’t have RES

Moves A1 as amended, B1, C and D – D = city to provide supplemental info regarding reaching decision re: generation v. PPA, and specifyting that PUC is NOT approving public purpose, that we have genuine issues surrounding that.

Ekness – recommend Dept. look at need issue and potential alternatives.

Wergin – adopt as E.

Passed unanimously.