Hot off the press from the Federal Appellate Court — Missouri Western District

Western-District-Appeal-Results

From the Order:

ATXI is an Illinois corporation authorized to do business in Missouri and engaged in the construction, ownership, and operation of interstate transmission lines that transmit electricity for the public use. It does not generate, distribute, or sell electricity to the general public or serve any retail service territory.

And the law is clear:

“If any of the items required under this rule are unavailable at the time the application is filed, they shall be furnished prior to the granting of the authority sought.”  4 CSR 240-3.105(2) (emphasis added).

And interpretation of the law:

The general language of section 393.170.3 authorizes the PSC to impose “reasonable and necessary” conditions on a CCN. However, the specific language of section 393.170.2 states that evidence of the county commission consents “shall” be on file before the PSC grants a CCN.  “Where one provision of a statute contains general language and another provision in the same statute contains more specific language, the general language should give way to the specific.” Id.

And bottom line?

The PSC’s Report and Order is vacated as it was entered in excess of the PSC’s statutory authority.

Love it when this happens!

Thursday, tomorrow, the Minnesota Public Utilities Commission will take up the rulemaking, Minn. R. Ch. 7849 and 7850, that’s been ongoing since 2012. 

Agenda Meeting

Public Utilities Commission

Large Hearing Room — 3rd Floor

121 – 7th Place East

St. Paul, MN

Watch Live Webcast HERE!

The Commission will consider the draft rules, below, and decide whether to move the process forward (in itty bitty steps) and release the rules for public comment and a hearing (and we’ll need 25 requests for a hearing to get that hearing), or to send us back to the drawing board, or revise themselves, request public comment, or “take other action as the Commission deems appropriate.”  See the last pages of Briefing Papers for these options in detail.

Yes, since 2012 — that’s 5 years in the making, an unreasonably long time.  But wait, it gets worse — the enabling legislation is the 2005 Transmission Omnibus Bill from Hell!  That’s particularly galling because the 2005 legislative changes were enacted to pave the way for CapX 2020, and all of CapX 2020 was rammed through without rulemaking covering these changes.  GRRRRRRRRRRR.  I like to encourage clients to carry on with the process after our immediate issue is resolved, because who knows better how the Certificate of Need and Siting/Routing process works than those who have been through it, but 5 years?!?!  12 years?!?!  Some of these things I’ve been on the Commission about for over 20 years, particularly notice issues.

The existing rules:

7849 CERTIFICATE OF NEED; POWER PLANT OR LINE
7850 SITE OR ROUTE PERMIT; POWER PLANT OR LINE

And the proposed drafts that the Commission will consider:

20173-129606-01_Briefing Papers

20173-129606-02_Draft Ch. 7849 – Certificate of Need

20173-129605-01_CoN_Legislative Changes

20173-129606-03_Draft Ch. 7850 – Siting/Routing

20173-129605-02_Siting-Routing_Legislative Changes

Certificate of Need

An issue right up front is in the definitions in Certificate of Need rules, where a “transmission company” is a “utility.”  Draft Minn. R. 7849.0010, Subp. 32.This is problematic because a Certificate of Need is the “need” determination necessary for use of power of eminent domain.  A “transmission company” has a private purpose, not a public purpose, and should not have access to eminent domain.  This change should not be made, and if it is, should only after thoughtful consideration abut the meaning of the change.

Another issue, which is in line with statutory changes, is the use of “the region” as a consideration for an determination of impact of denial of the application upon “future adequacy, reliability, or efficiency of energy supply to the applicant, to the applicant’s customers, or to the people of Minnesota and the region.  Draft Minn. R. 7849.0120.  This regional aspect has an impact on the Commission’s jurisdiction, and on the weight the Commission gives to MISO review and “approval” of transmission, which is very different from the review and approval performed by the Commission.  Where it’s regional need, how does that mesh with the Commission’s responsibility to the residents and ratepayers of Minnesota?  When “efficiency of energy supply” is at issue, how is the inherent inefficiency of transmission taken into account, particularly over the long distances contemplated by regional planning and buildout?

There’s a 10 day Comment period for the CoN Environmental Report which should be longer than 10 days, that’s a bit too tight!

Siting and Routing

There are quite a few provisions for additional notice — more notice is always good.  Lack of notice was an issue in both CapX 2020 Brookings and Hampton-La Crosse dockets.  Previously, the applicants were allowed to submit route alternatives very late, even a day before the public hearings, where people had no notice and no idea what the process was or how to participate.  I’ve made oral and written motions to extend intervention deadlines for these people to be able to jump in, and the motions were denied. Another notice issue is that where alternatives routes/sites are added, now they may not be added after the scoping decision is issued.  This means that people will get notice in a more timely manner.  AND, notice upon adding alternatives for consideration MUST be given.  Previously, there was no requirement, and when people would say, “Hey, we didn’t get notice,” Commerce would say, “Oh, well, there’s no requirement.”  ENOUGH!  These draft rules would require that they get notice.  DOH!  This is a no brainer, and very glad to see this in the draft.

The timing has been improved in a couple areas — look at the charts at the end of the Briefing Papers.  The timing of release of the DEIS and FEIS is improved, but remains an issue, because the Draft EIS can be released up until the time of the Public Hearings, meaning just before and people won’t have time to review prior to the hearings.  On the other hand, the draft rules do provide for a comment period for the Final EIS, which hadn’t happened previously.  In several dockets I’ve worked on, the FEIS was not available until AFTER the public hearing and AFTER comment period had closed, and there was no way to raise adequacy issues with the FEIS.  Twice, or maybe three times, I’ve made motions to keep the comment period open, but was denied.

I’d like to see a more beefed up rule, or a broader interpretation, of the Public Advisor’s role, because on the routing road shows, I’ve had to ask questions in the meeting to get the Public Advisor to explain the participation options.  Public Advisors do get in the groove and let people know about Participant and Intervenor roles, volunteering for Citizen Advisory Task Force, and what they can do, but this shouldn’t have to be pulled out of the Public Advisor.  What people have told me, over and over, is that the information about participation options is not volunteered, that they have to know the questions to ask, and that they feel that is not fair, that the Commission and Commerce should volunteer information to help them speak up and be heard.

Citizen Advisory Task Force has morphed into something unrecognizable over the last 20 years.  These days, membership is limited to representatives of local units of government, and whether that limitation is by Commerce, or the facilitator, it has not been limited by the Commission, and it’d be useful for the Commission, in authorizing Task Forces, to specifically state that participation on a Task Force is NOT strictly limited and that members of the public are welcome to apply and participate.

There’s more, but I’m trying to keep it simple for tomorrow.  There ARE some positive changes, things we’ve been raising for a long, long time.  But there are some very important things missing here.

Xcel Energy has released its 2016 SEC 10-K, and here is the number I care most about, the peak demand, incorporated into the chart above:

“Peak Demand” is the number they use to attempt to justify “need” for all sorts of abhorrent and expensive infrastructure, particularly infrastructure of the transmission variety.  Here are the specifics in megawatts (MW):

As Xcel Energy’s Ben Fowkes says, this is the “new normal.”  From the Seeking Alpha transcript of the XEL Earnings Call, January 31, 2013. 

So I think the economies are in decent shape across all our jurisdictions. Doesn’t necessarily mean it translates to high sales growth. And that’s consistent with our forecast. I mean, we’re not anticipating that we’re going to see a tremendous rebound in sales, even as the economies start to improve. I mean, I think, that’s our new normal, frankly.

Hence, they’re looking for other ways to make money, which they found in transmission, specifically CapX 2020 transmission, which was justified with this chart from MN Dept. of Commerce’s Steve Rakow, in his bar napkin depiction of the ups and down of peak demand:

Compare this drunken-dream drawing with the actual peak demand above — doesn’t look at all similar, does it.  Nevertheless, we’ve been stuck with over $2 billion in transmission infrastructure build-out which we’re just starting to pay for, and just starting to see show up in rate cases.  People are just now starting to get a feel for the economic impact, as if the environmental and quality-of-life impact isn’t bad enough…

Meanwhile, after going through years and years over CapX 2020, followed by the MISO MVP 17 project portfolio, now under construction, MISO wants to spring another bunch of projects on us. Their “Transmission Overlay.”  Yeah, right…

Here’s the list, in a spreadsheet:

20170131 EPUG Preliminary Overlay Ideas List

This is the MN, WI, SD, ND and some IA wish list weeded out from that spreadsheet (click for a larger version):

They want to add all of this, nevermind that Xcel is whining in its e21_Initiative that only 55% of the grid is not utilized:

(N) Identify and develop opportunities to reduce customer costs by improving overall grid efficiency.  In Minnesota, the total electric system utilization is approximately 55 percent (average demand divided by peak demand), thus providing an opportunity to reduce system costs by better utilizing existing system assets (e.g., generation, wires, etc.). (e21_Initiative_Phase_I_Report, p. 11).

And they want to build more?  MORE?!?!

And they want to ram it through even though it’s not needed, just like CapX 2020 transmission?  As if Obama’s RRTT wasn’t enough, pushing CapX 2020 Hampton-La Crosse transmission line:

Obama “fast tracks” CapX Hampton-LaCrosse?!?!?!

… check out tRump’s Executive Order 13766:

Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects

GRRRRRRRRRRRR!  As if there’s not enough work to do these days… but you know, the work never ends for us “paid protesters.”  And a woman’s work is never done either.

Xcel’s 2016 Earnings Call was this morning.  Look at the above chart, pay close attention to the numbers I’ve highlighted in yellow.  2016 4th Quarter sales growth is down 0.6%.  Yearly sales decrease is -0.3%.  Here’s the rest of the Earnings Call Presentation:

1001219517_Presentation_Year End 2016

Remember CapX 2020, based on projections of annual increases of 2.49%.  Remember Commerce’s Steve Rakow who introduced the most bizarre chart ever in an effort to prop up need for CapX 2020, one without identifying the X axis or Y axis and just a sine wave trending sharply upward?  Yea, this one…

Hasn’t worked out that way, has it… the 2016 10-K isn’t filed yet, so there’s only 2015 to go on, though looking at their 10-Q for summer, I expect it’s flat at best.

So with sales down, I presume it’ll be flat peak demand?  It’s not disclosed in the 3rd Quarter 10-Q.  Xcel, we’ll be looking for that this month in your 10-K filing!

There’s been a flurry of activity, and finally they posted the actual documents so we can see what’s going on, or what won’t be going on.  This was part of my “One a Day” plan to send off a missive to the White House every day, something of substance.  When the Contact page was blank on Monday morning, I started calling, ALL DAY LONG, and got through around 7 p.m., when a human answered, and hung up.  I called back, got that same human, who wouldn’t tell me who I should talk to about the Executive Orders (presumed that’s what they were as that’s what was said) and said the Comment office person was gone so I had to leave it online, and she got pissy when I said that the Comment page was blank, and hung up again.  OK, whatever…

Civics Lesson from USA Today, Presidential memoranda vs. executive orders. What’s the difference?

Here are the Memoranda thus far from the White House page (these are not required to be published in the Federal Register, so ???, but they are now on the White House Memoranda page:

Now maybe they’ll have the routine down and keep up with what they’re doing.  Drives me crazy to be loating around in the dark — it’s hard enough to know or guess what these might mean in practice, but without an actual document to look at, it’s just blather.  Well, it’s just blather anyway, but here it is.  Read it and get busy!