GreenMark & Wacouta Township in Goodhue Co. District Court
September 12th, 2017
I found my notes!! On August 29, 2017, Alan and I went to the Goodhue County Courthouse for the GreenMark Solar v. Wacouta Township (Court Case No. 25-CV-17-1462) festivities — a Summary Judgment hearing.
FULL DISCLOSURE: I’m not a fan of any of the principals of GreenMark, Mark Andrew, Dennis Egan, and Julie Jorgensen. Mark Andrew is a former Hennepin County Commissioner and a fan of burning garbage. Here’s a thread from the Mpls yak-yak list about Andrew when he was running for Mayor. Dennis Egan, well, we had a few go rounds when he was Mayor of Red Wing AND was executive director of Minnesota Industrial Sand Council, and at the time silica sand mining issue was on agenda for City of Red Wing. Julie Jorgensen? Her Excelsior Energy Mesaba Project coal gasification plant took up 5 years of my full-time labor before it went to part-time and intermittent, and still just won’t fully go away! Minn. Stat. 216B.1694, Subd. 3(b)(1)(ii).
That said, I’m also a big fan of solar, from way, way back when my father designed the solar on the Minnesota Zoo (that was later taken down, it was hot water! Not quite what was most needed, and they didn’t know much about solar back then).
Here’s the GreenMark Complaint — couldn’t find the Wacouta Answer or the cross-motions for Summary Judgment. The Wacouta Township website is years out of date — what’s up with that? (2014 is most current minutes, plus a notice of the May 2017 meeting about the solar project. ???)
Here are a couple articles:
GreenMark Solar challenges Wacouta Township | Republican Eagle
Minnesota Developer Sues for Solar Garden Permit
The oral argument started with Greenmark. Some points (not all inclusive):
Focus on Minn. Stat. 394.33, Subd. 1, that the township decision violates Town Powers Act. It’s inconsistent with their zoning. They can enact more restrictive zoning, but they didn’t, township has no solar ordinance.2
Township ordinance is ambiguous. Frank’s Nursery case — if ambiguous, allow property owner to do what they want with the property.
“Agricultural community” — Planning Commission and Board selected different definitions. Current use, peat mining and hay. Pollinator scale 45, and 85 with solar. Wetlands. Reduce carbon emissions.
Township argument:
Town Power Act does not restrict township actions. Bergen defines inconsistent, it’s not different.
Township Ordinance, Art. 3, Subd. 10, limits industrial uses that do not support agricultural. Solar is an industrial use. Twp. does allow solar in ag, BUT, it’s more restrictive, and it’s not inconsistnet.
The standard is whether down decision was rational, i.e., legally sufficient, supported by record.
Reasonable — inconsistent with agriculture, exported to the grid. CUP – exported, GreenMark takes issue with def of ag use, but see “Hubbard Broadcasting” denial of Conditional Use. Review is deferential. Mandamus (GreenMark’s action) review not to challenge discretionary decisions of local government.
Frank’s Nursery re: ambiguous ordinance, doesn’t require ordinance to be construed to support use. Court still needs to determine rationality.
Greenmark Rebuttal
Mandamus – this is about building permit, a ministerial act, not discretionary.
Does township even have jurisdiction/authority.
Purpose of project — Goodhue County, that’s the area.
Altenberg (?) – Town Powers Act – Twp didn’t adopt a more restrictive ordinance.
Bergum (?) – legislative intent of Town Powers Act.
Township Rebuttal
Cases of Mandamus for building permits
Goodhue – zoned agricultural, township couldn’t zone industrial, that would be inconsistent with county zoning.
__________________________
Judge Bayley said he has a lot of homework to do, and will do it and issue Order.
Due TODAY — Comments on HERC
September 11th, 2017
Get to it, folks. Comments are due TODAY! Here’s mine, and Alan’s, just filed:
in eDockets, go here to register, it’s quick, it’s easy, and you can post on Public Utilities Commission’s eDockets system.
On what? Xcel Energy’s latest plan (part of) to terminate and/or amend outrageously high priced Power Purchase Agreements on incinerators across Minnesota.
Comment period on HERC PPA Amendment
Just filed — hot off the press:
And check what Commerce DER is at long last admitting, that there’s a generation surplus and transmission is for export:
Not only is there no need, BUT THERE IS NO NEED FOR MINNESOTANS TO PAY FOR MORE TRANSMISSION! But that’s an argument for another day, another docket…
Here’s another snippet:
And check this conclusion reached by MN’s Dept of Commerce – DER in its first round of comments — that Xcel is double dipping:
Here are the DER Comments:
And Comments of Hennepin County:
From Hennepin County:
Freeborn Wind Orders and a Petition for Intervention filed
September 8th, 2017
Slowly, the siting process for Freeborn Wind is moving. The Commission issued its order referring the application to Office of Administrative Hearings for a contested case, that’s a first for a wind project in Minnesota!
And LauraSue Schlatter, the Administrative Law Judge, has issued the Order for the Prehearing Conference, and a directive to the Applicants to share a proposed schedule, which they have done:
The Erratta Order issued is particularly important because it specifies that the rules that this process will go forward under is Minn. R. Ch. 1405:
Minn. R. Ch. 1405 contains the rules for siting under the Power Plant Siting Act (and wind siting chapter, Minn. Stat. Ch. 216F, is NOT under the PPSA, which is Minn. Stat. Ch. 216E), and not the OAH more general administrative procedure rules, Minn. R. Ch. 1400. Note there’s no mention of Minn. R. Ch. 7854, about which I’ve filed how many Petitions for Rulemaking because these rules are so deficient and inadequate? This is seriously inside baseball — it’s a major change, major admission, and what are the implications? I’ve wanted wind siting to be moved over to the Power Plant Siting Act forever… it was improperly separated out of 116C, without any directive or authorization, when PPSA became Minn. Stat. Ch. 216E. There’s homework to do.
Here we go…
Comment Period on Benson burner EXTENDED!
August 28th, 2017
Comments are due September 1, and Reply Comments are due September 15.
New law allows much of Minnesota’s biomass industry to be shut down
And it’s happening, and that’s a good thing — these plants that spew toxins and which have routinely violated their air permits should not have been built, permitted, and subsidized. Shut down is going to happen:
Xcel, Benson agree on plan to mitigate power plant closure – MPR News
But is what they’ve agreed to in the public interest? Who all was a party to the negotiation? Are there other ways to deal with this?
Xcel Energy has asked the Minnesota Public Utilities Commission to approve its request to terminate the Power Purchase Agreement for the Benson turkey shit burner.
To review the full docket, E-002/M-17-530, go HERE, and search for “17” (year) and “530” (docket).
What’s at issue?
I need to find the older dockets, they’re not listed here…
Hearing on Minot Load Delivery Transmission Project
August 18th, 2017
Today was the hearing on Xcel Energy’s Minot Load Serving Transmission Project, or McHenry-Magic City 230 kV Transmission Line Project.
PSC hears NSP’s plan to upgrade transmission line to Minot
I got a Google Alert on this project, and it’s just a short jaunt from the Ft. Stevenson State Park (no relation to Xcel’s Grant Stevenson, I believe), so it seemed a lot more exciting than a tour of the Garrison Dam (I mean, yawn, we toured the Ft. Peck Dam last year and a dam’s a dam!). Last night was a rough night in the ol’ campground, highest winds I’ve ever experienced, and I thought the roof might collapse. Not a drop of rain, but the wind was so high, and lightning and thunder just a bit to the north. Everything blew around and I had to get up and get out and get everything in. Whew, it’s tired out…
Here’s the project:
The Route Application, at issue in this hearing:
Consolidated Application for Certificate of Corridor Compatibility, Route Permit, Waiver
And the CPCN Application, which has been issued:
Application for Certificate of Public Convenience and Necessity
This hearing yesterday was about not just Xcel’s application, but also its request for a waiver, wanting to rush it through. That was the major point that made no sense. This project was the result of a study that is Appendix A in the above Application for Certificate of Public Convenience and Necessity, and a Supplement that is Appendix B. It was dated 3/27, 2015, which is 2.5 years ago! Why the hurry? It’s also in MISO’s MTEP 15. The CPCN application wasn’t filed until September, 2016, by Pam Rasmussen. Again, what’s the hurry? That wasn’t answered. Xcel’s Tom Hilstrom said that he was responsible for the application, and that there were things that changed, but ??? Granted, “Hilly” probably wasn’t at Xcel for some of the time in question, Pam Rasmussen could have filed it, anyone could have, but it wasn’t. So it’s not really so urgent, eh?
The “need” for this project, and this project alone, wasn’t established. Commissioner Fedorchak had a number of questions about need, acknowledging that the CPCN proceeding came before, was already decided, but she wanted more info on need. However, when I raised issues about “what’s the hurry” and “need” and urged them to consider generation in Minot, such as natural gas generation, solar installed on the excess 40 acres of substation land purchased that isn’t necessary for the substation, and that all the recommendations of the study should be addressed, not just this one. I also asked that they take into consideration the unspecified GRE project connected (after all, this is transmission, it’s all connected, and another Commissioner had questions about Xcel’s agreements with the other transmission owners, particularly GRE, owner of the McHenry substation). Fedorchak apparently wasn’t too happy and wanted to make sure I knew need had already been decided. Ummmmm, raising issues similar to the ones she raised… hmmmmm. And she very pointed asked, “And what’s YOUR interest in this project?” I’d disclosed that at the beginning, no dog in the fight, camping nearby, got notice, and so looked into it. That’s called public participation.
What’s more odd is that there were only two of us who commented on the project. The other speaker was from the North Prairie Town Board, which had worked out an agreement with Xcel to follow quarter section lines rather than cut cross country diagonally, as the existing line does. Kudos to the town board!!!
The study has a number of changes recommended, and the transformer at McHenry substation is the limiting factor. Also, given that this is two lines on one structure, that’s regarded by NERC as one element, not two, and therefore not technically a reliability boost!
And about that McHenry transformer… where’s that? And it seems that the “rebuild both Ward County-Souris 115kV lines should be a top priority.
The good news? North Dakota has some interesting notions, like that those testifying should be reminded of “perjury” and that they swear or affirm that their testimony is true, both utility witnesses and the public (there was no staff testimony). Second is that the Commissioners go to the hearings! What a concept! Commissioner Christmann, responding to my testimony, wanted me to note how exceptional it is that the Commissioners were there, but it’s not ONLY North Dakota. That’s how it works in Wisconsin too, except in WI, it’s only the public hearings, and not the evidentiary hearings, although there is usually one commissioner present, and/or commissioners’ staff, to monitor. I had a short chat with Commissioner Kroshus, who came up and introduced himself, in a break, prior to my testimony,and I was clear, FULL DISCLOSURE, no dog in the fight, not representing anyone in this, and we talked some about differences in procedure, the ups and downs of our respective states.
Meanwhile… the office today, a perfect day in the shade at the Marina!