Legalectric

From Dogs Against Romney, it’s up and installed!!!  And don’t bother stealing it, I’ve got replacements!

For more, see Dogs Against Romney

Wednesday, August 29th and Thursday, August 30th at the MPCA were days focused on the Range.  (yes, it’s taken forever to get this posted)

Wednesday, August 29th was the “Haze Day” at the MPCA, a hearing held by the federal Environmental Protection Agency because it wants to take back the MPCA’s haze regulatory authority and adopt rules.  The MPCA has had a very, very long time to deal with this, and hasn’t done the job.   Here’s the MPCA page:

MPCA’s Minnesota Regional Haze Plan

Comments are due

Meanwhile, in a different venue, there’s a federal lawsuit afoot:

Lawsuit challenges wilderness haze plan

And then on Thursday, August 30, it was all about greenhouse gas emissions, but for only a handful of facilities, taconite plants on the range.  This one was really bizarre.  It started with the MPCA’s Ass. A.G. running down the “jurisdictional” exhibits to enter into the record.  Alan and I were the last in, and signed on page 3 of the sign in sheet.  They had much needed coffee, and some great macadamia nut white chocolate cookies.  The Asst. A.G. noted in his presentation (and he seemed to have zero familiarity with the exhibits) that it did not meet the notice requirements but that he regarded it as harmless error and wanted a finding from the judge to that effect.  I was in the back of the room, and noted more empty chairs than there were the day before, and got to wondering…

Starting at the beginning, here is the MPCA page for the greenhouse gas rules for taconite plants on the Range:

Air Quality Rules; the MPCA Proposes to Adopt Permanent Rules Implementing Federal Air Permit Thresholds for Greenhouse Gases (GHG — Temporary Rules in Effect Since January 24, 2011)

When I testified, I had a few questions, and learned that the Notice and list of those receiving notice, and some of the other “jurisdictional” documents were not available online.

If notice was not adequate, as the Asst. A.G. stated, twice, maybe more, then they’ve got a problem under Minnesota’s admnistrative law:

Subd. 1a.Notice of rule hearing.

(a) Each agency shall maintain a list of all persons who have registered with the agency for the purpose of receiving notice of rule proceedings. Persons may register to receive notice of rule proceedings by submitting to the agency:

(1) their electronic mail address; or

(2) their name and United States mail address.

The agency may inquire as to whether those persons on the list wish to remain on it and may remove persons for whom there is a negative reply or no reply within 60 days. The agency shall, at least 30 days before the date set for the hearing, give notice of its intention to adopt rules by United States mail or electronic mail to all persons on its list, and by publication in the State Register.

…oops… and not only that:

14.50 HEARINGS BEFORE ADMINISTRATIVE LAW JUDGE.

All hearings of state agencies required to be conducted under this chapter shall be conducted by an administrative law judge assigned by the chief administrative law judge or by a workers’ compensation judge assigned by the chief administrative law judge as provided in section 14.48. All hearings required to be conducted under chapter 176 shall be conducted by a compensation judge assigned by the chief administrative law judge. In assigning administrative law judges or compensation judges to conduct hearings under this chapter, the chief administrative law judge shall attempt to utilize personnel having expertise in the subject to be dealt with in the hearing. It shall be the duty of the judge to: (1) advise an agency as to the location at which and time during which a hearing should be held so as to allow for participation by all affected interests; (2) conduct only hearings for which proper notice has been given; (3) see to it that all hearings are conducted in a fair and impartial manner. Except in the case of workers’ compensation hearings involving claims for compensation it shall also be the duty of the judge to make a report on each proposed agency action in which the administrative law judge functioned in an official capacity, stating findings of fact and conclusions and recommendations, taking notice of the degree to which the agency has (i) documented its statutory authority to take the proposed action, (ii) fulfilled all relevant procedural requirements of law or rule, and (iii) in rulemaking proceedings, demonstrated the need for and reasonableness of its proposed action with an affirmative presentation of facts.

Oops again!

Anyway, here is what they sent me in response to my request for the Exhibits (particularly the notice exhibits, 6 and 7):

Minnesota PCA Jurisdictional Document Title Table of Comments

Exhibit 1: Request for Comments Notice (aq-rule4-05a)

Exhibit 2: Revisor’s Extract of Proposed Rules (aq-rule4-05d)

Exhibit 3 – the SONAR and links

Exhibit 4:

Exhibit 5:

Exhibit 6 – Subscribers of Rulemaking: Federal Air Permit Thresholds for Greenhouse Gases Rule:

MPCA Notice List 2 – 5172625

Exhibit 7? – Subscribers of Air Regulatory and Technical Information, Rulemaking: Federal Air Permit Thresholds for Greenhouse Gases Rule:

MPCA email notice list I – 4702381

Exhibit 8: Comments received on proposed Greenhouse Gas Rule (aq-rule4-05r)

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FULL DISCLOSURE:  I’m a bumper-sticker carrying member of Dogs Against Romney.

A link to Romney’s Energy Plan, “The Romney Plan for a Stronger Middle Class: ENERGY INDEPENDENCE,” showed up in the inbox today, so I printed it out, got out the highlighter… but I was SO disappointed, there’s hardly anything in it, about half of it is quotes and links from news articles. For the most part, this is about oil.  OIL, not ENERGY.  Oil is only one piece of our energy use and needs. That’s not a plan.  It looks like something written by a campaign intern not yet graduated.  The structure is a heading, a few bullet points, and a narrative paragraph, followed by the news articles.  But the good news for me this morning is it left much less to read, highlight and critique!

T. Boone Pickens apparently doesn’t like it:

But TBP, it DOES mention natural gas, often, do a search (but there’s not much of substance about it, or anything else).

Let’s take a look.  The first sentence is where I start having problems with it:

A crucial component of Mitt Romney’s Plan for a Stronger Middle Class is to dramatically increase domestic energy production and partner closely with Canada and Mexico to achieve North American energy independence by 2020.

So he’s talking “North America” and more importantly, INCREASE energy production.  I would guess that “partner closely with Canada and Mexico” means to take their oil. There’s also a focus on “lower energy prices” which is not going to do anything but create more energy dependence through increased use and reliance on a cheap, illusory “plentiful” supply.

The focus on this “plan” is oil, and increasing domestic production.  There is not a word about decreasing non-domestic imports.

Back to the “plan” area by area, all 9 sections, 31 bullet points and 16 paragraphs (not much of substance):

• An Achievable Goal: Energy Independence by 2020.  (there’s ONE paragraph) It’s not US Energy Independence, it’s using Canadian and Mexican oil.  And it’s about open access — I don’t see anything about the impacts of the ND oil rush, the gas rush in PA, NY and subsequent waste injections in Ohio and elsewhere, destruction of the aquifers and exploding wells and flammeable tap water nothing.
• The Result: The Emergence of an Energy Superpower.  (here we get TWO paragraphs)  This section makes claims of over 3 million jobs, $500 billion addition to GDP, reduced trade deficit, $1 trillion in revenue for federal state, and local governments, lower energy prices for “job creators and middle-class families,” and national security because we’re not beholden to unstable but oil-rich regions.  What I want to see are the assumptions, how much of what has to be extracted to achieve this, show me the numbers.  I also want to see numbers on use of federal lands, OUR lands, not oil company lands.
• The Result: Resurgence in American Manufacturing.  (here we’re back to ONE paragraph).  Stresses that manufacturers will benefit by lower energy and feedstock prices.  ???  Most manufacturers use electricity, not oil, to power their operations.  What are these assumptions based on?  One article cited is about a steel plant opening up in Youngstown, Ohio, with 350 jobs making seamless pipes for fracking, the same fracking that has been pumping in fracking waste near Youngstown and causing earthquakes in the area.  Is this a reasonable tradeoff? Steel plant and 350 jobs for waste and earthquakes?  Has anyone checked the aquifer lately?
• The Romney Agenda: Federal Lands. (WOO-HOO, TWO paragraphs here).  Yes, let’s talk about federal lands.  State jurisdiction over federal lands within a state?  State regulatory process “deemed to satisfy all requirements of federal law” ????  It pushes “STRONGER” and “IOGCC” and if you google “STRONGER” nada, have to get to “State Review of Natural Gas Environmental Regulation” to have it come up.  Look at the formation of “STRONGER.”  And IOGCC — I come up with the Interstate Oil and Gas Compact Commission in Oklahoma, and a big focus of theirs is CO2 Capture and Storage and we know what a scam that is.  The narrative brags that “The state of North Dakota can permit a project in 10 days, Colorado does it in twenty-seven.”  The articles cited notes that “In Ohio, it takes 14 days.”  In talking about ramping up use of federal lands, there is no recognition in his “We Built It” mindset that this is about exploitation of FEDERAL lands, OUR land, blatant corporate welfare.  Corporate welfare?  Well, what else would you call it where Peabody buys for $0.25/ton and sells for $80-100/ton export?  No, Peabody, you’re not building it, you’re stealing it from us.
• The Romney Agenda: Offshore Areas. (here we get TWO paragraphs again).  There is no mention of the BP spill and its impact on feasibility and reasonableness of offshore drilling.  Oh, and COST, because the cost of spills needs to be in that cost/benefit analysis.  And again, whose land is this, who owns the oceans?  Not the oil companies.  Romney is all for “opening greater access and streamlining permitting…” and we know what that means.
• The Romney Agenda: North America. (here we get another TWO paragraphs)  This is about Canada and Mexico, the XL pipeline, objecting to Canada exporting it, without mention of intent of exporting much of that oil from U.S. if it got down to the Gulf in the pipeline.  Romney says it outright, at the top, “Approve the Keystone XL pipeline.”  It also bullet-points “Institute fast track regulatory approval processes for cross-border pipelines and other infrastructure.”  Pipelines and transmission, probably under the Dept. of State as with XL pipeline.  The “plan” claims that Canada and Mexico are wanting partnership and collaboration, and that if we do that, “…America can guarantee itself a reliable and affordable supply of energy while also opening up new opportunities for American businesses and workers in the region.”  Region — opening up new opportunities for American busniesses and workers in Mexico and Canada.  Oh… right..
• The Romney Agenda: Resource Evaluations. (here we get another TWO paragraphs)  This section is about assessment and inventory.  Offshore resource exploration it seems would be encouraged and maybe performed by the feds and extraction of Canada and Mexico’s resource information as well.  Note the references to “seismic” on this page.  Messing with the earth creates seismic impacts, as evidenced in Pennsylvania, Oklahoma and Ohio related to fracking and waste injection.  (Oh, and I’ve not seen waste mentioned anywhere here, BIG issue.)
• The Romney Agenda: Regulatory Reform. (here we get yet another TWO paragraphs).  This is more of the strengthen environmental protection through gutting regulation, the angle I find SO offensive.  Gutting regulation guts jobs, and regulation creates jobs both for industry and regulators!  And the projects typically get permitted and get built.  What are they complaining about?  The MPCA doesn’t even look at expired permits, only new ones, because they don’t have the staff or budget, and because they haven’t been directed to by their boss, the Governor.  But more importantly, without environmental review and regulation, we’d have more really stupid projects than we’d otherwise have.  In Minnesota, MPCA is responsible for federal review delegated to the state, yet how often do they deny a permit?  The PUC is responsible for need determinations and routing/siting permits, and the only projects they’ve denied have been vaporware projects that don’t have a PPA or a project to speak of.  Without Minnesota environmental review and regulation, we’d have vaporware Excelsior Energy’s Mesaba Project on the Range, we’d have Kenyon and Goodhue wind projects here in Goodhue County, and we’d have the utterly unnecessary Big Stone II coal plant up and running.  From what I can see, the PUC has never met a transmission line it didn’t like.  Romney has accused Obama of bankrupting the coal industry, but Obama has been a friend of coal, promoter of IGCC, he’s from a coal state and is in the pockets of coal lobbyists.  EH?  The “plan” goes on: “But statutes and regulations that were designed to protect public health and the environment have instead been seized on by environmentalists as tools to stop development altogether.”  OK, tell me what projects were stopped by “environmentalists” and tell me what projects were stopped because by regulatory agencies because they’d violate regulatory provisions?  I’ve been looking at this in association with Dayton’s “review of environmental review” and note that the MPCA only rarely denies a permit, but permits expire and the plants spewing pollution are allowed to continue operating without a renewal application or any review!  There is no pattern of delay in issuing permits.  Romney, show me the data!  He wants disclosure of “federal funds spent reimbursing groups for lawsuits against the government.”  DUH, where anyone sues the government for flagrant violations of federal law, and where fees and costs are paid as part of the win, that is public information, just look at the settlements!  How else would federal law be enforced?  They’ve gutted the agency budgets and they’re not doing review, so it’s up to the citizens. Romney says that “laws should be carefully crafted to support rather than impede development.”  It is not an agency’s job to SUPPORT development, it is their job to impartially review permits, conduct analysis.  What Romney is promoting is the MN Dept. of Commerce style of regulation, where according to PUC Commissioners, it looks like Commerce is representing the project applicant.  “Repetitive reviews and strategic lawsuits should not be allowed to endlessly delay progress or force government into imposing rules behind closed doors that it would not approve in public.”  Examples please, because I haven’t a clue what you’re talking about!  An article cited states that “individuals have accounted for just 7% of Plaintiff cases filed under the EAJA while Environmental Groups have accounted for 30%.  First, what’s the other 63%?  Second, is it the Romney position that Environmental Groups are suing too often?  That individuals should sue the government more?  How would we do that?  Please let me know, I’d be happy to comply!
• The Romney Agenda: Innovation. (and we get another two paragraphs).  “The federal government has a role to play in facilitating innovation in the energy industry.”  Please explain.  Isn’t it the Romney position that government should not insert itself into business?  “Instead of distorting the playing field, the government should be ensuring that it remains level.”  Level?  When has it been level?  “… success should be defined as eliminating any abrriers that might prevent the best technologies from succeeding on their own.”  This is straight out of the Wind on the Wires playbook, always looking to eliminate barriers, particularly to transmission (she says, admittedly a barrier to transmission herself!).  Are they looking at cutting 1703(d) coal perks anytime soon?  See the “End Polluter Welfare Act of 2012” for specific examples of coal perks (GO Bernie!).  And last but not least, last but everlasting, Romney is promoting nuclear power, to “revitalize nuclear power by equipping the NRC to approve new designs and to license approve reactor designs on approved sites within two years.”  Even Xcel admits it has no desire to build a nuclear power plant.  And new plants are not needed, there is a glut of electricity that is leading utilities to close down their smaller dirty coal plants and recently, even some larger ones.  So why would he promote nuclear after Fukushima Dai-ichi?  Our Monticello plant is the same design.  Earth to Mars…

John Hoff, a/k/a Johnny Northside, just won in a big way, and it’s a case that gives me hope.

Jerry L. Moore v. John Hoff a/k/a Johnny Northside

It’s about freedom of speech, it’s about defamation, and it’s about tortious interference with a contract.  Johnny Northside is loved and hated, worshipped and vilified by many people I know.  It seems he’s one of those people who are a royal pain in the ass but are usually right, and in this case, he had the facts right, and he can’t and shouldn’t be held liable, so the Appellate Court said.  $50 this goes to the Supremes, of Minnesota, that is.

Hoff’s blog post is the kind of speech that the First Amendment is designed to protect. He was publishing information about a public figure that he believed was true (and that the jury determined was not false) and that involved an issue of public concern. See Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759, 105 S. Ct. 2939, 2945 (1985) (noting that “speech on public issues occupies the highest rung of the hierarchy of First Amendment values” (quotation omitted)). Attaching liability to this speech would infringe on Hoff’s First Amendment rights.

First the Syllabus and then the bottom line:

S Y L L A B U S

1. A claim for tortious interference with a contract or prospective business advantage cannot be based on conveying true information to a third party.

2. When speech protected by the First Amendment is intertwined with allegedly tortious conduct, courts must carefully and explicitly delineate the tortious conduct on which liability is based so as not to infringe on a defendant’s constitutional rights. When there is no practical way to separate the tortious conduct from the protected speech, there is no liability as a matter of law.

…

DECISION

Because a tortious-interference claim cannot be based upon true information and because the record does not contain sufficient evidence of conduct separate and distinct from Hoff’s constitutionally protected speech to sustain the verdict, we conclude that the district court erred by denying Hoff’s motion for JMOL. We therefore reverse and remand for the district court to enter judgment for Hoff.

Check out his blog here:

The Adventures of Johnny Northside