Tomorrow, at 10 a.m. (gasp!), there’s a Prehearing Conference for the Cardinal-Hickory Creek transmission project in Wisconsin.

Notice of Prehearing Conference

WATCH HERE!! (info and link posted soon??)

This Prehearing Conference is being held for the express purpose of addressing the multitudes of potential intervenors in this docket.  After that, there will be yet another prehearing conference for scheduling purposes.  Here’s the ALJ’s missive outlining the situation and his probable approach:

ALJ Newmark’s Prehearing Converence Missive_ERF 354955

I’m not at all happy about having to take a full day out of my intense work week (LOTS due next week!) to go to Madison and deal with this fiasco.  Oh well…

From Judge Newmark’s prehearing missive:

The 76 requests break out into the five following groups: 1) three units of government; 2) eight organizations; 3) four individuals filing electronically; 4) 11 individuals filing by U.S. Mail; and 5) 50 individuals, municipalities, and an organization that appear to have common interest, and to whose requests appear filed in a common fashion.

50 individuals, municipalities, and an organization that appear to have common interest, and to whose requests appear filed in a common fashion.”  Appear??  That’s a generous description.  It’s clearly orchestrated, with form interventions that are not individualized.  The “Group 4” intervention requests also use the same form, but were mailed in, by likely Amish potential intervenors, presenting another issue, both in that ERF filing is required, and that if they would be allowed to intervene using paper copies, that means each filing would need to be printed out and mailed to them, creating a large burden on all the parties, particularly intervening parties.  This is an area where assistance in ERF filing is needed, it’s crucial to assure Amish can participate.

Why are there “the multitudes” showing up in this docket, the 11 in “Group 4” and the 50 in “Group 5?”  Rob Danielson and cohorts of  SOUL and “EPIC” held meetings in and around the project area and recruited people to sign up to intervene.  They used forms, where people just had to sign the forms.  The forms were collected and much later uploaded to ERF, the PSC’s eFiling system.  What information did they receive before signing, what did they know about the rights and responsibilities of intervention?  See for yourself:

Intervention Requests – ERF page

Note that it’s form/boilerplate language that’s been used in both Groups 4 & 5, and note the many that only list “WI, USA” as the address — the people who signed the document did not upload those “intervention requests.”  Was there a detailed description and warning of what’s required, the commitment necessary, to intervene in a docket?  Did they understand the commitment necessary?

This is one of those “too clever” machinations, strategy, tactics, that gums up the works.  See SCR 20:3.5(d).  It looks like there was little attention paid to the potential results of this action, or that attention was paid, and this result is what they wanted.  It’s important that people be informed of, understand, and agree to what it is that they’re signing up for.  See SCR 20:21 Advisor.  I don’t think that’s been happening.

What are they signing up for?  Well, SOUL just filed “SOUL Intervention focus and limits on representation 1-2-2019” which shows that SOUL has no intention of helping them through the process.

There’s also been ex parte contact, somebody thought that that was a good idea (?!?!?!), somebodies who should have known better.  The “no ex parte contact” rules need to be clearly spelled out, the ALJ’s “Intervenor Communication” missive about that was not as specific as it could have been.  Contact the judge?  JUST DON’T!!

Apparently, part of the SOUL speil is that people must intervene to have the right to appeal, that you must intervene or you lose your rights.  THAT’S NOT TRUE!!  Here’s part of the notice that follows at the end of every PSC transmission order, clearly stating that “a person aggrieved by this decision has a right to petition” for rehearing and/or judicial review:

You can find this language, for example, at the end of the Badger Coulee transmission Order:

Final Order 05-CE-142

Judge Newmark’s proposed consolidation approach makes sense to me for a few reasons:

  • When someone solicits and recruits interventions, they have an ethical and moral responsibility to give full disclosure of the meaning and responsibility of intervention.  How many of these “intervenors” would intervene if they knew they’d have to show up for Prehearing Conferences, Public and Technical Hearings, review the thousands of pages and participate in a meaningful way?
  • When someone solicits and recruits interventions, they have an ethical and moral responsibility for the result of their solicitation and recruitment.  In this case, consolidation may be the result.  That’s one way to hold the solicitor/recruiter responsible.  I’m thinking about this, trying to come up with other options.
  • Non-attorneys and attorneys not licensed to practice law in Wisconsin are allowed to practice before the Public Service Commission.  As Judge Newmark clearly noted in the Badger Hollow prehearing conference, non-attorneys are bound by Wisconsin Rules of Professional Conduct. Non-attorneys may be held to this standard when practicing before the Commission.  All parties need to review the rules, in light of its solicitation and recruiting, and can and should shoulder their responsibility for what they’ve created, as an “umbrella” or helping individually those who want to participate.
  • Line up assistance to Amish participants so they can participate and intervene if they are granted intervention, and help to comment if they are not.  Because the “Group 4” have used the same form as “Group 5,” a SOUL member with filing expertise could be assigned to facilitate their participation.
  • Line up assistance for “Group 5” people so they can participate meaningfully.  It’s a lot to figure out, and many have no idea what ERF is.  Intervention is a part-time to full-time job.

Something Judge Newmark has utilized previously could be useful here.  He has allowed “non-party briefs” if requested and approved prior.  This is authorized under Wisconsin Code PSC 2.20(3). If this option were provided to potential intervenors, for those not wanting to or prepared to dive in, for those not meeting intervention requirements, that would give the multitudes the opportunity to weigh in with more weight than just a public comment, to address their concerns, and would require less commitment than participating in a full-blown intervention.  Intervention lite.  Perhaps those not wanting to be consolidated under SOUL’s umbrella could be extended the opportunity to file a non-party brief, in their own words uniquely addressing their own specific concerns (unlike the many form “interventions” that have been filed).

Tomorrow?  Oh, it will be a circus…

Hot off the press… MISO‘s forecast, much like my all-time favorite industry report, the NERC Reliability Assessment!  Because each region sends its forecasts to NERC, odds are that this is the basis for the MISO part of the next NERC Reliability Assessment.  The NERC reports have showed for a long time that reserve margins are way higher than needed, sometimes 2-3 times higher than needed, and that demand is not at all what has been predicted.  DOH!

HERE IT IS — READ IT:

2018 MISO Energy and Peak Demand Forecasting for System Planning302799

Bottom line?  And remember, this is the industry “forecast” which consistently overstates:

Remember CapX 2020 “forecast” of 2.49% used to justify that transmission build-out?  And all that’s happened since, is happening now, like the MISO MVP 17 project portfolio?

Or more correctly, all that HASN’T happened since, like increase in demand?

This has been an historical, systematic misrepresentation, Xcel’s “business plan” is based on these lies.  From Xcel’s IRP (Docket 15-21), p. 45 of 102:

Historic&ForecastPeakDemand_IRPp45That Xcel IRP docket continues, and compare peak demand with their bogus chart… what can we expect?

Hoar Frost over Shell Rock River

December 10th, 2018

This is the Shell Rock River, covered with winter hoar frost today, and part of the DNR’s Shell Rock River State Water Trail, where Freeborn Wind wants to string a transmission line over the river!  Click for larger view:

It’s a State Water Trail – click for larger view:

Doesn’t this just look like the greatest place for transmission across the river?!?!  Good grief, what are they thinking?

It’s out, the USDA’s RUS EIS for Cardinal-Hickory Creek transmission project:

Draft Environmental Impact Statement – November 2018

From the RUS Notice, how to send in comments and list of public meetings:

RUS page for Environmental Review for Cardinal – Hickory Creek Transmission Line Project – Iowa & Wisconsin

 

Freeborn Wind’s Transmission

October 26th, 2018

It’s worth taking a look at the Freeborn Wind transmission docket (PUC Docket 17-322). To check it out, go to eDockets and search for 17 (year) 322 (docket number).  Obviously the Commission’s decision is a problem here, and as we’re awaiting the written order, I’m pondering.

There’s a statute that applies to wind proceedings, specified expressly in the “Exemptions” statute  as part of the Power Plant Siting Act that DOES apply.  That’s found here:

216F.02 EXEMPTIONS.

(a) The requirements of chapter 216E do not apply to the siting of LWECS, except for sections 216E.01; 216E.03, subdivision 7; 216E.08; 216E.11; 216E.12; 216E.14; 216E.15; 216E.17; and 216E.18, subdivision 3, which do apply.

Note the seafoam green Minn. Stat. 216E.08:

Subd. 2.Other public participation.

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.

Check out the first and only Prehearing Order issued by the ALJ:

20184-141685-01_PHO

To call it “minimalist” is too generous…  What does it say about public participation?  Where’s the boilerplate information about intervention, about participation and being a “participant,” etc?  M-I-S-S-I-N-G…

Here’s the siting docket’s Prehearing Order #1 as an example – see the difference?

Prehearing Order 1_20179-135781-01

Association of Freeborn County Landowners showed up on September 20, and let the ALJ know in technicolor what we thought, raised many issues in detail, and later submitted written comments, together with the written comments from many members, including information about land where Freeborn Wind was attempting to route over non-participants!

Before the hearing started, I’d approached the ALJ and requested that he swear people on oath or affirm, and he said something to the order of “I remember you” having requested that before.  He didn’t want to put people under oath.  I reiterated that I’d been present, twice, at Commission meetings where Commissioners asked if specific testimony had been provided under oath, and that the rules provide it as an option, so I want to assure that’s not an issue.  The ALJ was not happy but essentially agreed to swear people in if so requested.  AAAAAAAAAAAAAARGH!

Minnesota Rules include swearing in as a duty of the ALJ:

1400.5500 DUTIES OF ADMINISTRATIVE LAW JUDGE.

Consistent with law, the judge shall perform the following duties:

…  F. administer oaths and affirmations;

That’s a “shall.”

Minnesota Rules have many provisions regarding being sworn in, and regarding testimony regarding “a fact at issue” in a contested case hearing:

All evidentiary testimony presented to prove or disprove a fact at issue shall be under oath or affirmation.

Minn. R. 1400.7800(g).  That’s a “shall.”  Here are a few citations regarding witnesses, oath/affirmation, and facts:

1400.7200 WITNESSES.

Any party may be a witness and may present witnesses on the party’s behalf at the hearing. All oral testimony at the hearing shall be under oath or affirmation. At the request of a party or upon the judge’s own motion, the judge shall exclude witnesses from the hearing room so that they cannot hear the testimony of other witnesses.

1400.7800 CONDUCT OF HEARING, Subp. G.  Any party may be a witness or may present other persons as witnesses at the hearing. All evidentiary testimony presented to prove or disprove a fact at issue shall be under oath or affirmation.

1405.0800 PUBLIC PARTICIPATION, Subp. B.  … However, testimony which is offered without benefit of oath or affirmation, or written testimony which is not subject to cross-examination, shall be given such weight as the administrative law judge deems appropriate.

Oath?  Affirmation?  This is not something anyone should have to push about…

Every Association of Freeborn County Landowner participant requested to be sworn on oath and was.  Not one of the witnesses speaking in support of the project requested to be sworn on oath.

AFCL also filed extensive written comments:

AFCL_TransmissionComments_FINAL

Here’s the ALJ’s Recommendation, filed July 26, 2018:

20187-145230-01_Freeborn ALJ Recommendation

Looking at this recommendation, how are comments from the public laid out?  How are the many substantive comments of AFCL members and project opponents positioned against the few, and with few exceptions, the comments of supports that had no content? Search the Recommendation for “AFCL” and/or “Association of Freeborn County Landowners” and what do ya get?

20187-145230-01_Freeborn ALJ Recommendation

Another point — do you see anywhere the boilerplate language regarding opportunity for any affected party to file Exceptions?  Yeah, this language (example from Docket 17-568):

NOTICE
Notice is hereby given that exceptions to this Report, if any, by any party
adversely affected must be filed under the time frames established in the Commission’s
rules of practice and procedure, Minn. R. 7829.2700, .3100 (2017), unless otherwise
directed by the Commission. Exceptions should be specific and stated and numbered
separately. Oral argument before a majority of the Commission will be permitted
pursuant to Minn. R. 7829.2700, subp. 3. The Commission will make the final
determination of the matter after the expiration of the period for filing exceptions, or after oral argument, if an oral argument is held.
That’s right, it’s not there in the Freeborn Wind transmission docket.
Association of Freeborn County Landowners did file exceptions, filed August 10, 2018, 15 days after the ALJ’s Recommendation:
Yet when the Commission listed “Relevant Documents” in Staff Briefing Papers, ahem… no mention of AFCL Exceptions — it’s as if we didn’t weigh in:
And on the PUC’s calendar and agenda, AFCL Exceptions were also not linked for consideration:
File #: Details 2018-190    Version: 1 Name:
Type: M – Miscellaneous Status: Agenda Ready
File created: 8/30/2018 In control: PUC Agenda Meeting
On agenda: 9/20/2018 Final action:
Title: * IP6946/TL-17-322 Freeborn Wind Energy LLC In the Matter of the Application of Freeborn Wind Energy LLC for a Route Permit for the Freeborn Wind Transmission Line in Freeborn County. 1. Should the Commission adopt the Administrative Law Judge’s Findings of Fact, Conclusions of Law, and Recommendation? 2. Should the Commission find that the environmental assessment and the record created at the public hearing adequately address the issues identified in the scoping decision? 3. Should the Commission issue a route permit identifying a specific route and permit conditions for the Freeborn Wind 115 kV Transmission Line Project? (PUC: Kaluzniak)
Attachments: 1. COMBINED files of the Route Permit Application – 9-20-2017, 2. Order Finding Application Complete -12-5-2017, 3. Environmental Assessment Scoping Decision – 3-8-2018, 4. COMBINED files of the Environmental Assessment – 5-14-2018, 5. COMBINED files of the Freeborn Wind Reply Comments – 6-18-2018, 6. COMBINED files of the Freeborn Wind Reply Comments – 6-19-2018, 7. DOC EERA Comments and Proposed Findings of Fact – 6-28-2018, 8. AJI Report – 7-26-2018, 9. DOC EERA Exceptions – 8-8-2018, 10. Briefing Papers