Legalectric

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!!!

Many thanks to the “little birdie” who brought this decades old report to my attention:

Rulemaking – Legislative Auditor-93-04-1

Yes, this is a report from the Minnesota Legislative Auditor from 1993, and if you read it, you’ll see little has changed is so many years…  The issues raised are issues we’ve been raising in the Public Utilities Commission rulemaking for Minn. R. Ch. 7849 and 7850 (Certificate of Need and Siting/Routing).  AAAAAAAAAAAACK!

For example, from the Summary:

• Encouraging agencies to negotiate rules before formally proposing them has made the formal public notice-and-comment process mandated by the APA less meaningful; and

• Since there are no requirements or guidelines governing the negotiation process, those people selected to help an agency draft rules have an unfair advantage over those who are not asked to participate.

One unintended consequence of negotiated rulemaking is that the public participation process mandated by the APA has become less important because the content of rules is largely decided during the negotiation phase. As a result, by the time a rule is formally published in the State Register with a request for public comments, an informal agreement between an agency and parties to the negotiation may already have been reached. Those groups and individuals not consulted often are left out. Nearly 70 percent of the affected parties who responded to our survey said they hear about rules too late for their input to make a difference. People who live outside the Twin Cities area were much more likely to feel unable to influence the rulemaking process and to express dissatisfaction with agency rulemaking performance generally.

For example, in the PUC Rulemaking for 7849 and 7850 (PUC Docket 12-1246), it’s been an over two-year-long process, and few are showing up anymore.  We weigh in, some things are taken into account in the drafts, and then that disappears from the next draft.  How can it feel like anything but a colossal waste of time?  Yet if we weren’t there, the utilities would get everything they want.  And as with the utility Certificate of Need and Siting/Routing processes, rulemaking has the same notice and public participation problems.  It’s all the same, deja vu all over again.

… and also from the report …

Furthermore, the rule negotiation process is not part of the official rulemaking record nor subject to statutory controls or legal review that would guarantee equal access. Therefore, it can easily be dominated by those groups and organizations with more resources. In the absence of formal guidelines or standards, agency practices vary, and some agencies are better than others at obtaining broad-based input.

We also conclude that:

• The formal public notice mechanisms may be inadequate to ensure timely notice and meaningful participation in rulemaking; and

• The prohibition of “substantial changes” after rules are proposed is often misunderstood by agency staff and may inhibit them from incorporating public comments made through official mechanisms.

Does this sound familiar?

Once more with feeling:  … the rule negotiation process is not part of the official rulemaking record nor subject to statutory controls or legal review that would guarantee equal access. Therefore, it can easily be dominated by those groups and organizations with more resources.

So what is the bottom line of this report?

Therefore, we recommend that:

The Legislature should consider amending the Administrative Procedure Act to require that a “notice of regulatory action” be published in the State Register and mailed to all affected parties when an agency begins drafting a rule.

We also recommend that:

• The Legislature should consider amending the Administrative Procedure Act to require that agencies maintain a “rulemaking docket” that contains an up-to-date listing of the status of existing rules and impending rulemaking actions, to be submitted annually to the Legislature.

The recommendations we make are designed to revitalize the formal rulemaking process, ensure more equitable access to agencies at a time when comments can reasonably be considered, and strengthen public accountability over agency rules. We think that replacing the current “notice to solicit outside opinion,” which is published for 62 percent of all rules, with a mandatory “notice of regulatory action” will not represent an undue burden on agencies. The current notice is not widely distributed and does not contain enough information to enable interested parties to respond. Therefore, we recommend that the new notice should contain more information about the rule and the process to be used in drafting it, and that it should receive wider distribution than the current notice. A mandatory rulemaking docket, to be submitted to the Legislature and made available to the public upon request, should help the Legislature monitor rulemaking and provide better oversight.

Also, we recommend the following additional changes to the Administrative Procedure Act:

• Rules not adopted within 18 months of their authorizing legislation should require reauthorization, which would replace the current requirement that new rules be published within 180 days;

• A single definition of “substantial change” should be incorporated into the APA;

• “Regulatory analyses” should be done on rules if requested by the Governor, the Legislative Commission to Review Administrative Rules, a political subdivision, another state agency, or 300 persons; and the current special rule justification requirements relating to agricultural land, small business, and fiscal impacts on local government should be eliminated;

• Agency efforts to notify all people potentially affected by a rule should be made part of the official rulemaking record and subject to external examination during the rules review process;

• Individuals requesting a public hearing should provide their address and phone number;

• Everyone who has requested a hearing should be notified when agencies negotiate to secure withdrawal of hearing requests, and agreements made in negotiations should be made a matter of public record and included in the official rulemaking record;

• Exempt rules should be reviewed for form, statutory authority, need and reasonableness, and consistency with legislative intent; and

• All rules should be reviewed by the Office of Administrative Hearings, thereby eliminating the Attorney General’s role in rules review.

… and …

In addition to changing the APA and other statutes that govern agency rulemaking, we recommend that:

• State agencies involved in rulemaking should make more efforts to broaden public participation in rulemaking.

For example, they should make a greater effort to educate the public about how to receive direct information about rulemaking actions and make greater use of agency-held public hearings or widely publicized public meetings early in the rulemaking process. They should also include circulation of rule drafts and “statements of need and reasonableness” earlier and more widely among all parties affected by rules. Finally, agencies should terminate the negotiation process when it fails to make progress toward resolving issues and either proceed more quickly to an official public hearing, employ the services of a professional negotiator or mediator, or return to the Legislature for guidance.

Adopting these recommendations should shorten the informal process, broaden public input in the early stages of rulemaking, and make rules more responsive to the Legislature.

NOTICE!!!  Landowners need notice if their land is affected!  Local governments and residents need notice if their communities are affected!  Yes, posting something can have an impact!

Notice is something that’s been an issue in utility dockets, and transmission proceedings particularly, for a long, long time.  It’s something we’re trying to address in the Minn. R. Ch. 7850 in our rulemaking advisory committee meetings over the last TWO PLUS YEARS!

Here are the latest Comments:

NoCapX_U-CAN_ Cover_8-25-2015

NoCapX-U-CAN_Comments_8-25-2-15_20158-113514-02

Why does notice matter?  Well, there’s this thing called “Due Process.”  Notice is a fundamental Constitutional Right.  It matters because “NOTICE” often doesn’t happen.  And it ties in with eminent domain, where land may Constitutionally be taken for public purpose projects with just compensation (and what is a “public” project?  What is “just” compensation?)  If you aren’t properly informed, have no notice, what does that do to your ability to participate?

In Minnesota, it’s a matter of law, clear, simply stated law:

The commission shall adopt broad spectrum citizen participation as a principal of operation. The form of public participation shall not be limited to public hearings and advisory task forces and shall be consistent with the commission’s rules and guidelines as provided for in section 216E.16.

Looking over posts and filings where this has happened, situations I’ve been aware of where landowners have been surprised at the last minute, too late to meaningfully participate in the proceedings, have filed Motions for Reconsideration, and have been to the Appellate Court on their behalf, it is SO frustrating.  Looking at the many times I’ve tried to intervene, to have intervention deadlines extended in case landowners want to stand up,   There’s no excuse.  People should not be surprised at the last minute with a utility attempt to run transmission over their land.

It happened recently in the Great Northern Transmission Line routing docket:

ALJ Order filed, no RRANT intervention

Can you believe Commerce EERA would file this?

Commerce EERA Responds… NOT!

It happened in CapX Brookings route and on CapX Hampton- La Crosse route:

• Cannon Falls (CapX Hampton- LaX route) example to go around county park and DOT prohibited intersection area:

Cannon Falls Beacon – CapX in the news!

Dakota County resolution about CapX 2020

CAPX APPEAL — DECISION RELEASED (includes Cannon Falls)

UPDATED Updated Minnesota Appeal Update

Initial Brief – St. Paul’s Lutheran School and Church and Cannon Falls Landowners

Reply Brief – Cannon Falls Landowners and St. Paul’s Lutheran School and Church

• Oronoco(CapX Hampton – La X route) enters “new route” proposal without notice to its own landowners:

Oronoco Twp’s Exhibit 89

• USDA’s Rural Utilites Service (CapX Hampton – La X) example:

RUS Reopens Comments on Hampton-LaCrosse

• Myrick Route (CapX Brookings) example:

Myrick route withdrawn

Myrick Route & How to find things on PUC site

• In particular this “Notice” which went out after all the hearings were over with no way to participate at all: Dec 30 Notice – Myrick Route

PUC chooses Belle Plaine crossing

• This is important to understand the set-up, and now this notice was snuck in at the last minute due to Applicant and Commerce disregard for objections of DOT, DNR and USFWS.

That’s enough examples to get an idea of the problem… but there are more that I can trot out if necessary.  The notice provisions in Minnesota law and rule must be corrected.

Commentary by Alan Muller, Green Delaware, in today’s Delaware State News:

Commentary: Time to think about Delaware’s Peterson, Coastal Zone Act

Delaware’s a mess. The water is rising. We are a major destination for bomb trains. One of the most leaky and dangerous nuke power complexes threatens and pollutes the state and is trying to expand with new reactors. The air and water are polluted. The economy is stagnant and the political system corrupt. The public schools are under attack. The court system is openly dedicated to protecting corporate crime. A tale of woe, to be sure.

Some of it is self-inflicted, like the reopening of the mega-toxic Delaware City Refinery and the resulting routing of bomb trains to Delaware.  Some, like global climate change and sea level rise, is mostly beyond the ability of Delaware to do much about. On the other hand, it could well be argued that little three-county Delaware has done way-out-of-proportion damage to the world, has been a damaging leader in the “race to the bottom.”

What is the cumulative damage to individuals and families done by out-of-control credit card “banks?” Would that have happened anyway, with or without Delaware’s shameful Financial Center Development Act?  Would so many electric ratepayers been screwed over so much without the hundreds of Enron subsidiaries incorporated in Delaware? Maybe they would have just been set up somewhere else.  Would there have been so many bogus bankruptcies and stolen pension plans?  Would the US, or the world, be in better shape without Delaware?  Alternative history can’t be much more than speculative, but there is a case to be made.

Is it possible to imagine a better Delaware? A place to be proud of rather than ashamed of? A Delaware, for example, where John  Kowalko is Speaker of the House rather than Pete Schwartzkopf?  A place where the University of  Delaware symbolizes intellectual freedom rather than civil liberties violations and the worship of capital at the expense of labor?

Well, yes, actually.  There  have been better leadership and better political times in Delaware, within my memory.

Russ Peterson died in 2011.  (Here’s his obit in the New York Times.) Peterson was a significant figure in environmental matters in Delaware, nationally, and sometimes globally.  But it seemed to me that most of what was being written about Russ was the same old stuff, regurgitated for the umpteenth time and not giving us much new or insightful to think about.

Now, three years have gone by, and Delaware’s rulers are pursuing another major attack on the Delaware Coastal Zone Act, the centerpiece, the masterpiece, of  Peterson’s public policy work in Delaware.   So, this seems an appropriate time to think about Russ Peterson.

Peterson was likely the most significant person ever to operate out of little Delaware.  But he didn’t walk on water and he wasn’t God.  He was both more flawed and more interesting than one might see from most writings about him. He deserves more thoughtful commentary than he’s so far received.

Peterson, first of all, not a “Delaware Native.”  He was born, raised, and educated in Wisconsin, and was a product of the relatively progressive atmosphere, at least at that time, of the Upper Midwest.  (For factual information on Russ Peterson see this Wikipedia article.)

If Peterson had grown up in the plantation culture of Delaware, and learned his chemistry at the University of Delaware, would he have made the same contributions?  Maybe, but it’s doubtful.  In general, the human intellect does not seem to blossom in Delaware.

Russ was educated as a chemist and was recruited by E.I. du Pont de Nemours and Company as a research chemist.  He rose to be director of Central Research and Development.  This would be considered, at least at the time, high in the pecking order of the technical world, or at least its industrial side.  Peterson was a smart man.

Peterson’s interests eventually shifted out of DuPont.  My favorite story of Peterson and DuPont:  At one time he was in charge of a suburban office/lab site known as Chestnut Run Plaza.  At the time, in DuPont, black people could generally have only menial, broom-pushing jobs.  Peterson set up a program to enable and encourage black workers to move up. DuPont’s response was to schedule Peterson for an interview with “the company psychiatrist.”  Mental illness was suspected.

In any case, Peterson got involved in reform efforts in Delaware, notably prison reform. Being of an analytical turn of mind, he figured out how to organize such efforts: a committee in every Representative district, and so on.   Some years of this work gave him good, if imperfect, insight into the workings of Delaware politics.

He wasn’t without his critics.  Tom Colgan, long time campaigner against housing discrimination, used to say “Russ always showed up when the fighting was over.”  Perhaps so.  But Delaware is a place with a narrow intellectual and political space, where perceptions of non-mainstream views generally relegate people to a gadfly role.  In a sense, Russ Peterson’s achievement was to keep close enough to the political mainstream to achieve, at least briefly, real power, yet he was not co-opted from the neck up.

In 1968, Peterson resigned from DuPont and ran for Governor as a Republican.  At the time, the DuPont Company was behind him.  I recall, as the teenage son of a DuPont manager, being turned out to flyer for Russ Peterson.  He won.

But, after the enactment of the Coastal Zone Act in his first term, DuPont turned on him, and told its 25,000 Delaware employees–there are way fewer now, or course–to vote for Democrat Sherman W. Tribbitt, a hardware store owner in the small town of Odessa.  Peterson was out of office after one term.

There were other factors in his defeat, including budgetary miscalculations that required the state to “claw back” spending.  Whether this was a genuine screwup or a trap set for Peterson has never been entirely clear to me.  The budget shortfall was five million dollars.

Peterson also pushed a transition from Delaware’s “commission” form of government to a “cabinet” system.  Traditionally, many governmental functions had been run by citizen commissions.  Some still are, such as utility regulation by the “Public Service Commission.”  The members of these commissions were mostly appointed by the governor but were not, afterwards, directly under his control.  On the other hand, departments of the Executive Branch were. and are, headed by officials reporting to the Governor.  This increased the power of the governor; it made for a more centralized decision-making process.  Like most change, it was resented.

This centralization of power continues:  a disturbing example is the shift of power over schools from elected district school boards to a state Department of Education controlled by the governor.  Many people these days feel that Governor Jack Markell is using this power to attack the fundamental features of public schools and public education, and to implement privatization of the public schools to the benefit of for-profit “education” companies.

After Tribbitt’s one term, hard right winger and special interest servant Pierre S. du Pont IV was installed as Governor for two terms.  DuPont shut down the state planning office and, in general, tried to reverse many of the Peterson reforms.  Many people see his two terms as the time during which Delaware abandoned real representative government and adopted the “Delaware Way” of governance.  The “Delaware Way” could better be called the “Dirty Deals Behind Closed Doors” approach.

So what about this Coastal Zone Act?  What makes it special and worth preserving.

It was based on an understanding that coastal areas, that is, where the water meets the land and the air, are crucial from an ecological perspective and need special protections.  The wording of it is pretty clear:

Purpose.

It is hereby determined that the coastal areas of Delaware are the most critical areas for the future of the State in terms of the quality of life in the State. It is, therefore, the declared public policy of the State to control the location, extent and type of industrial development in Delaware’s coastal areas. In so doing, the State can better protect the natural environment of its bay and coastal areas and safeguard their use primarily for recreation and tourism. Specifically, this chapter seeks to prohibit entirely the construction of new heavy industry in its coastal areas, which industry is determined to be incompatible with the protection of that natural environment in those areas. While it is the declared public policy of the State to encourage the introduction of new industry into Delaware, the protection of the environment, natural beauty and recreation potential of the State is also of great concern. In order to strike the correct balance between these 2 policies, careful planning based on a thorough understanding of Delaware’s potential and the State’s needs is required. Therefore, control of industrial development other than that of heavy industry in the coastal zone of Delaware through a permit system at the state level is called for. It is further determined that offshore bulk product transfer facilities represent a significant danger of pollution to the coastal zone and generate pressure for the construction of industrial plants in the coastal zone, which construction is declared to be against public policy. For these reasons, prohibition against bulk product transfer facilities in the coastal zone is deemed imperative.

The immediate tactical driver for the bill was an attempt to build a second oil refinery in Delaware.  Shell had bought the land, designed the refinery, and survey monuments were in the ground.  The threat was immediate.  The damage being done by the existing Delaware City Refinery, one of the dirtiest in the world, was obvious.

It’s worth noting that Peterson and the leaders of the General Assembly were Republicans.  The President of the US was Richard Nixon.  The Nixon administration wanted to increase oil imports and wanted a lot of it to come up the Delaware River and be refined alongside it. So, in effect, Peterson was not only defying Delaware’s fat-cat industrial establishment, and many labor leaders, he was defying the US federal government and his fellow Republicans.

“U. S. Secretary of Commerce Maurice Stans accused Peterson of being disloyal to his country.  Peterson famously replied, ‘Hell no, I’m being loyal to future generations of Americans.’” (Man and Nature in Delaware.  Williams, 2008)

There were, however, flaws in the Coastal Zone Act, like most legislation a product of compromise.  A key weakness is that the Act covers “industry” but not residential and commercial activities.  Over the years, as coastal industry has tended to contract and sprawl development expand, the CZA has increasingly failed to control many of the greatest threats to the Coastal Zone including runoff and sewage.  It has been obvious for many years that the scope of the Act needs to be expanded, but the vision and leadership to accomplish that has been lacking.

Another weakness is that regulations implementing the act we not adopted for many years, and when they were adopted they were inconsistent with the purposes of the act and tended to weaken it.  Thus, interpretation of the Act has mostly been left to Delaware’s courts, with unpredictable and increasingly bad results, as the quality of Delaware’s judiciary has declined.

But, despite these issues, the Delaware Coastal Zone Act was groundbreaking, whether one regards it as primarily a “land use” law or an “environmental” law.  It came about because a visionary governor was supported by a generation of reform-minded legislators and a relatively-active “environmental community.”  Where are the visionary governors and the generation of reform-minded legislators when we need them now??  Gov. Jack Markell is certainly not cast in that mold.

Peterson went on to serve as President of the National Audubon Society, Chaired the federal Council on Environmental Quality, and worked with various commissions, environmental organizations and projects.  He never again held elective office or a high position in the business or scientific worlds.

Peterson stayed, at least episodically, involved in environmental politics in Delaware, until his death in 2011 at the age of about 95.  He was, for example, a supporter of the Bluewater Wind project, which eventually collapsed but potentially could have been the first large offshore wind project in North America.  He usually popped up when the Coastal Zone Act was being attacked.

But in the end Russ Peterson was diminished by two things:

Advancing age.  Anyone remaining active into his mid-90s is likely to be remembered for things he or she did when no longer at the peak of their powers, and

His love-hate relationship with the chemical industry.  Perhaps Peterson never got over being pushed out of his job as Governor by DuPont.  It seemed to me that he carried deep and legitimate grievances, and of course he knew intellectually that the policies pursued by big corporate interests were destroying the planet.  On the other hand, Peterson had money, identified socially with the powers-that-be, and seemed to crave forgiveness and acceptance from the leaders of DuPont, etc.  Thus, he could and did alternate between sucking up and lashing out.  He wasn’t always reliable or predictable.  He could and did make serious mistakes and publish stupid things, such as an endorsement of a bad waste incineration company.

Russ’ key mistake was to be politically seduced by “Toxic Tom” Carper.  Carper was elected Governor in 1992, with the naive support of some Delaware enviros.  At that time, a long Coastal Zone Act negotiation between enviro types and Chamber of Commerce types had been in progress under Gov. Mike Castle and was coming to conclusion.  Carper came in with a pure “Chamber of Commerce” agenda and one of his first actions was to call in the enviros and tell them to yield to the Chamber on Coastal Zone issues.  Initially, they resisted.  So Carper went after Peterson, knowing that if Russ yielded, inevitably the mainstream enviros would go along.  Peterson fell for it.  I remember him yelling at me that Tom Carper and Chris Tolou, then Secretary of DNREC, were “great environmentalists.”  He hired a bogus “neutral facilitator” shop called the “Consensus Building Institute” to give the enviros cover for their sellout.  In the sad end, the enviros–many controlled by DuPont–wimped out and rolled over.  They signed an agreement essentially abandoning the clear language of the Coastal Zone Act in favor of “environmental indicators,” “offsets,” and other excuses for abandoning the plain meaning of the Act.  It’s been mostly downhill since.

There have been some high moments.  John Hughes, as Secretary of DNREC, denied a permit for a Liquified Natural Gas (LNG) terminal in Logan Township, NJ.  This he could do because at that point Delaware owns the Delaware River all the way across.  The case went to the US Supreme Court and Delaware prevailed.  At the time, the oil and gas people were saying that more gas imports were essential.  Now, of course, they are saying that gas exports are essential…..

So what’s the relevance of this to 2015?  Delaware faces more severe threats now than when Peterson was governor.  The land is sinking, the sea is rising, and much of Delaware is subject to flooding.  How is the state reacting to this? So far, with nothing but words.  Decades of pandering to business interests, without foresight or planning, have left Delaware’s economy in bad shape and our quality of life degraded.  Compare Peterson’s visionary Coastal Zone Act, which kept a Shell refinery out of Delaware, with Jack Markell’s dirty backdoor deal to reopen the Delaware City Refinery, and bring bomb trains into the state.  Delaware is the big loser.

How do we (re)open Delaware’s political system to visionary leaders?  Or at least people of intelligence and good will?  Who will step up, or be pushed forward, to run for Governor?

Alan Muller is Executive Director of Green Delaware.