Legalectric

Today was the deadline for filing Exceptions to the Administrative Law Judge’s Recommendation for Line 3 Certificate of Need and Route.  Here’s the ALJ’s Recommendation:

Findings of Fact, Conclusions of Law, and Recommendation

I quick filed an Exception on behalf of Association of Freeborn County Landowners, objecting to inclusion and objecting to any consideration of “System Alternative 04” or SA-04, because no notice was given to landowners in Freeborn County, and well, to any of the landowners along SA-04.

Association of Freeborn County Landowners_ Exceptions to Findings of Fact, Conclusions of Law and Recommendation of ALJ

Friends of the Headwaters proposed SA-04, the only “System Alternative” proposed in the Certificate of Need proceeding.  … sigh…. foisting it elsewhere is not a good strategy.  Search their Exceptions for more info on their rationale – do a search for “SA-04” of this filing:

20185-142900-04_Exceptions – Friends Of The Headwaters

Are there others advocating for AS-04?  Looking… it’ll take a bit.

System Alternative SA-04 is noted 139 times in the ALJ’s Recommendation, and is first mentioned on p. 24:

And the Public Utilities Commission accepted it for further evaluation, but no notice was provided:

But no meetings in the area — and still no notice:

… sigh… on it goes…

And regarding the DNR’s take on SA-04 (will find DNR comment):

Here are all the other references to SA-04 in order — the ALJ does reject it, saying it is not a viable alternative:

And then the ALJ considers comments:

The DNR comments are troubling:

Here’s the actual DNR Comment:

201711-137640-01_DNR’s  Comment (SA-04)

The DNR said about SA-04:

And back to the ALJ’s mentions of SA-04:

There’s a rulemaking afoot, and rulemaking hearing.  Usually rulemakings are the not-so-blind leading the blind, because by the time there’s a rule to comment on, the fix is in.  It’s been decided how it will go, and the public comment period is just a box to check off.  All the action occurs before it is released, the wrangling about language, the focus, all that is done by the agency in consultation with “stakeholders” who are typically the corporate sort that agencies regard as their “constituents” and there’s little public or advocate participation.  That’s how it works.  If we’re (we the people) are lucky, or if we really push for it, there’s an Advisory Committee, as authorized by Minn. Stat. 14.10:

14.101 ADVICE ON POSSIBLE RULES.

Subd. 2.Advisory committees.

Each agency may also appoint committees to comment, before publication of a notice of intent to adopt or a notice of hearing, on the subject matter of a possible rulemaking under active consideration within the agency.

I don’t see any evidence that it happened here.  So…  we have a proposed rule, and the comment period is now open, and hearings are being held in various spots in Minnesota.

There’s a hearing now scheduled for Red Wing (links to docs below), which was not in the original list:

Red Wing Nitrate Hearing
Tuesday, June 5
7:00 p.m. – 8:30 p.m.
Minnesota State College Southeast
308 Pioneer Road
Red Wing, MN 55066

Here’s the original schedule:

1:00-6:00 PM on Monday, July 16, 2018
Robert Boeckman Middle School
800 Denmark Ave
Farmington, MN 55024

10:00 AM – 4:00 PM on Wednesday, July 18, 2018
Stewartville Civic Center
105 1st St E
Stewartville, MN 55976

10:00 AM – 4:00 PM on Thursday, July 19, 2018
Minnesota West Community and Technical College
1450 College Way
Worthington, MN 56187

10:00 – 4:00 PM on Wednesday, July 25, 2018
River’s Edge Convention Center
10 Fourth Avenue South
St. Cloud, MN 56301

9:00 AM – 3:00 PM on Thursday, July 26, 2018
American Legion
900 1st St E
Park Rapids, MN 5670

The “draft” rule has been released for public comment, but there was a first draft rule from June 2017.  Below is the official draft, revised in April, 2018:

Groundwater Protection Rule (PDF: 328 KB / 26 pages)
Statement of Need and Reasonableness (SONAR) (PDF: 3.18 MB / 164 pages)
Notice of Hearing (PDF: 85 KB / 3 pages)
SONAR Appendixes (PDF: 15.73 MB / 208 pages)

COMMENT PERIOD:

• Initial Comment Period closes on July 31, 2018 at 4:30 p.m
• Rebuttal Comment Period: August 1, 2018 through 4:30 p.m. on August 7, 2018

Here’s where to send comments (note SEND TO OAH, and not Dept. of Ag):

https://mi1111esotaoah.granicusideas.comldiscussio11s/

or

Administrative Law Judge Palmer-Denig

Office of Administrative Hearings

P.O. Box 64620

Saint Paul, Minnesota 55164-0620

There are more specific instructions for filing comments on the OAH site:

Instructions: To comment, scroll down to “Topic: Submit a Comment” and click “View Topic.”Please make sure that your comments:

• Identify the specific part or subpart of the rule you are addressing;
• Specify whether you support or oppose the proposed rule language;
• Give reasons for your views; and
• Be specific and offer language changes to solve the problems you identify.

Attachments: Commenters may attach up to three documents to a comment. Allowed attachments include PDFs, spreadsheets, and word documents. Please include your name and contact information on all attachments.

I can’t stress enough how important it is to be specific, and to refer to parts of the rule that you’re commenting about.  Vague rah-rah OR blah, blah, comments will have no impact, nor will form letters or postcards.  Once more with feeling, be specific, and to refer to parts of the rule.  Have at it!

Update on Bent Tree.  Filed earlier, Notice of Settlement Agreements:

FILED_Bent+Tree+WPL+Settlement+Agr+-+Hagen

FILED_Bent+Tree+WPL+Settlement+Agr+-+Langrud

And today:

20185-142656-01_Settlement Specific Comments

And yesterday from EERA-Commerce:

20184-142562-01_EERA_Commerce_Comments

As for process going forward, Commerce recommends:

From WPL yesterday:

20184-142555-01_WPL_Response Order Show Cause

Next up – Public Utilities Commission meeting, the sooner the better.

Fair use – from Enbridge’s Line 3 website

Looks like a lot of folks are angry with Judge O’Reilly’s Enbridge Line 3 decision.

Findings of Fact, Conclusions of Law, and Recommendation

Oh well… she had to make some decision and I think she did an excellent job of weighing all the factors, getting into the details in a very difficult case, and come up with a Recommendation that pisses everyone off!  That’s something that takes a LOT of work and is very hard to do!

Here’s a post on it with an insightful/inciteful framing of the decision and what it means:

Pipeline “poison approvals”: a new trend?

In the press, people are getting wound up.  From MPR:

Dayton: No ‘viable way’ to build new Line 3 pipeline on current route

From the MPR piece: The Leech Lake Band of Ojibwe has denounced the judge’s recommendation, calling it “a clear attack on sovereignty and Tribal communities.”

My take is that O’Reilly laid out the Leech Lake Band’s sovereignty and power and the lay of the land as it exists now — the easements are there now, allowing Enbridge to use the land until 2029.  This recommendation sets the stage for the easement renegotiation in 2029, where the Band has power to say “NO!” and Enbridge is very afraid of that, facing either outright refusal or greatly increased easement payment as the obvious outcome.  This Recommendation, and use of the existing easement gives Leech Lake greater leverage going forward, and might even move those easement negotiations up in time.  If that renegotation is a decade in the future, Enbridge will also by then be operating in a very different world than exists right now, with decreased oil use and demand.  O’Reilly also noted that if a new corridor were used with this, given state non-proliferation, Enbridge would logically seek to use that corridor for all its pipelines going forward.

Along this line (but note that LaDuke, Honor the Earth, is the one quoted, and there are no quotes from Leech Lake or Fond du Lac tribal officials, who should be the ones weighing in here):

Minnesota Pipeline Ruling Could strengthen Tribes’ Legal Case Against Enbridge Line 3

And more, this with quotes from tribal officials:

Major pushback against Line 3 recommendation

In a statement Tuesday, April 24, the Leech Lake Band of Ojibwe described the recommendation as “anti-sovereignty” and said that it “puts undue burden on the Leech Lake Band of Ojibwe to hold the risk of the pipeline replacement and to revoke the permit.”

“The judge has made this horrific recommendation without even holding a single ALJ hearing on the Leech Lake Reservation and gave a recommendation on a route that has not had the same level of environmental review,” wrote Ben Benoit, the band’s environmental director.

Once more with feeling — If you have comments, objections, there’s been a notice issued regarding submission of “Exceptions” which are due May 9, 2018:

20184-142282-01_Exceptions Notice

Line 3 proposed and alternate routes

The Administrative Law Judge’s Recommendation is out:

Findings of Fact, Conclusions of Law, and Recommendation

Enbridge should be glad they got this Recommendation.  There’s something for everyone in this decision, and there’s something for everyone to object to — which tells me it’s a job well done.  It’s a fascinating read, exposing the misrepresentations of Enbridge about quite a few material issues, particularly about Enbridge circumventing FERC requirement of removing the pipeline, the paucity of the “jobs jobs jobs” claim, and the need to renegotiate easements with tribes, which factors into Enbridge’s “inexplicable” easement acquisition for up to 4 pipelines as it finagled for this Line 3.  READ THE Findings of Fact, Conclusions of Law, and Recommendation!  Judge O’Reilly did a great work in digging through the literally tons of materials in this docket.  The misrepresentations and omissions are so blatant that there’s a firm basis for requiring disclosure and correction of their application, and were I the ALJ, outright denial of their application!  They’ve been caught.  It’s all well documented in the Recommendation.

Something near and dear to me about this — note the “SA-04” alternative route — it goes right through two of the Freeborn County townships dealing with the Freeborn wind project. Notice?  See p. 47-48.

Guess the Certificate of Need “Notice Plan” and notice requirements are worthless…

Apparently the karst is more important than notice:

And the DNR supported this option?!?!

However, SA-04 was deemed not a viable alternative:

If you have comments, objections, there’s been a notice issued regarding submission of “Exceptions” which are due May 9, 2018:

20184-142282-01_Exceptions Notice

Here’s how this is interpreted by the press:

‘There’s a ton riding on this’: Enbridge pipeline project dealt blow in Minnesota

Enbridge faces new Line 3 setback in Minnesota ruling

Judge: Enbridge Line 3 project should follow existing route

Ruling: Minnesota regulators should approve new Line 3 pipeline — if it follows current pipeline’s route