Legalectric

For all of you planning to comment on the Freeborn Wind application, whether at the meeting Thursday (September 20) in Albert Lea or in writing, here is the Application and appendices to review.  Remember that for your comments to carry any weight, they need to be specific about what is and is not in the application and what Commerce needs to address in its Draft Site Permit.  Focus!!!

Siting_Initial Filing_Application_Narrative_20176-132804-01

Siting_Initial Filng_Figures1-17_20176-132804-02

Siting_Initial Filing_App A_Agency Correspondence

Siting_Initial Filing_App B_Noise analysis20176-132804-04

Siting_Initial Filing_App C_ShadowFlickerAnalysis_20176-132804-05

Siting_Initial Filing_App D_TelecomReports_20176-132804-06

Siting_Initial Filing_App E_MarketImpactAnalysis_20176-132804-07-1

Siting_Initial FIling_App F_Tier3WildlifeStudies_20176-132804-08

Siting_Initia lFIling_App G_Tier1&2_20176-132804-09

Siting_Initia lFiling_App H_AvianBatPPDraft_20176-132804-10

The Minnesota part of the Freeborn County wind project is the site in red, above.

The Association of Freeborn County Landowners has been granted intervention, we’re a party!!!

Order-Intervention-AFCL_20179-135455-01

And a footnote for those wonks interested in Minnesota Rules and OAH and Public Utilities Commission procedure:

For more information about this docket, the application and the filings thus far, go HERE and search for Public Utilities Commission docket 17-410.

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. ???)

Greenmark Solar v. Wacouta Township_Complaint 25-CV-17-1462

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.

Get to it, folks.  Comments are due TODAY! Here’s mine, and Alan’s, just filed:

Overland Legalectric Comment_HERC-Xcel 17-532

Muller Comments_20179-135413-01

in eDockets, go here to register, it’s quick, it’s easy, and you can post on Public Utilities Commission’s eDockets system.

Notice_20179-135289-01-1

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:

Commerce DER_20179-135384-01

Hennepin County_20179-135389-01

Xcel Energy_20179-135379-01

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:

CommerceDER_20178-134456-02

And Comments of Hennepin County:

Hennepin County_20178-134679-01

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!

PUC Order_20178-135140-01

Erratta_20179-135278-01 

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:

OAH_Notice_20179-135289-01

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…