Legalectric

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Transmission lines may be coming your way, through federal pre-emption of state processes that give transmission lines the scrutiny they require. They’re working to transfer jurisdiction of transmission siting out of the hands of the states and into the hands of FERC, we’ve been hearing about this for a while, they’ve got the authority to do it, and now there are specific transmission corridors proposed. Well, as specific as you can get with a 100-200 mile wide corridor!

Is this what you want? Do you want the feds to have power of eminent domain to give utilities what they want — YOUR LAND? Do you want these National Transmission Corridors through your yard? Do you want them to get away with characterizing transmission of market transactions, bulk power transfer, as necessary for “national security?”

NATIONAL ELECTRIC TRANSMISSION CORRIDORS WERE ANNOUNCED LAST WEEK. NOW’S THE TIME TO REGISTER YOUR COMMENTS!

HERE’S THEIR MAIN SITE

How to Submit Comments – details CLICK HERE

“Public Comment Form” HERE

Public Comment Period is 60 days, beginning on April 26, 2006, and ending on (I think) June 25, 2007 (depending on how they count!). They claim that comments received or postmarked within the 60-day comment period will be considered, but I recommend making sure it GETS THERE by the deadline, I hate to rely on their statement about postmarks!

They have the above Public Comment Form on their site, and if you use this, I’d recommend printing it out so you have a record of it.

They ask that you specify the docket you’re Commenting on, i.e., Docket No. 2007-OE-01 (the draft Mid-Atlantic Area National Corridor), comments must be marked “Attn: Docket No. 2007-OE-01” and for Docket No. 2007-OE-02 (the draft Southwest Area National Corridor), comments must be marked “Attn: Docket No. 2007-OE-02.”
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This is the proposed Mid-Atlantic Area National Corridor, I’d heard questions about this from Pennsylvania and New York, and it seems it covers half the state of Delaware (that doesn’t take much):

This is the proposed Southwest Area National Corridor:

The U.S. Department of Energy (DOE) is holding three public meetings on the two draft National Corridor Designations announced on April 26, 2007. The meetings are being held in two eastern locations and one southwest location, and they’re not readily accessible. The one in Washington, D.C. is held at a hotel where parking is $18/day and not on a Metro stop — it seems that there MUST be somewhere with a sufficiently large meeting room with parking and more direct accessibility — but who wants that pesky “public” there anyway!
Two public meetings will be held on Docket NO. 2007-OE-01 (the Draft Mid-Atlantic Area National Corridor Designation) – in Arlington, VA, on May 15, 2007, and in New York, NY, on May 23, 2007 – and one public meeting will be held on Docket NO.2007-OE-02 (the Draft Southwest Area National Corridor Designation) – in San Diego on May 17, 2007.

Arlington, VA Meeting on May 15:

Doubletree Hotel Crystal City-National Airport
300 Army Navy Drive
Arlington, VA 22202-2891
Phone: 703-416-4100

(hotel says parking costs $18!)

San Diego, CA Meeting on May 17:

Manchester Grand Hyatt San Diego Hotel
One Market Place
San Diego, California 92101
Phone: (619) 232-1234

New York, NY Meeting on May 23:

Park Central New York Hotel
870 Seventh Avenue at 56th Street
New York, NY 10019-4038
Phone: 212-247-8000
From their blurb:

DOE invites all interested parties to participate in the public meetings and to provide oral and written comments at these sessions in addition to submitting comments in response to the Federal Register Notice on Draft National Interest Electric Transmission Corridor Designations.

Agenda

Each of the three meetings will have the same basic format:
9:00 a.m. – 10:00 a.m. Registration Desk Open
10:00 a.m. – 10:30 a.m. DOE Opening Remarks and Presentation
10:30 a.m. – 12:00 p.m. Public Comments
12:00 p.m. – 1:30 p.m. Lunch (on participants own)
1:30 p.m. – 3:30 p.m. Public Comments

Advance registration is not required to attend. However, participants who would like to provide oral comments must sign up in advance.

Sign-up to Provide Public Comments at the Meeting

If you would like to present oral comments at one of the meetings, you must register in advance. The opportunity to comment will be limited to 2 minutes per presenter. Those wishing to provide oral comments will present on the day of the meeting in the order in which they are received. Sign-up here to provide public comments.

Each public meeting will be transcribed and the transcript will be posted on the web site following the meeting. To supplement oral comments, written comments may be submitted.

For More Information

For general information on the Draft National Interest Electric Transmission Corridor Designations, please visit http://nietc.anl.gov.

Contacts
Poonum Agrawal (Technical Contact)
Manager
Markets & Technical Integration
Office of Electricity Delivery and Energy Reliability
U.S. Department of Energy
Phone: (202) 586-6048
Email: poonum.agrawal@hq.doe.gov

Lauren Giles (Logistics)
Program Manager
Energetics Incorporated
Phone: (410) 953-6250
Email: LGiles@energetics.com

Here’s a link to PJM Transmission Maps. Most of the affected area is in PJM, though not all.

Just in today — the “Second Order of Intervention” granting Concerned River Valley Citizens Intervention status:

SECOND ORDER ON INTERVENTION

And check this Memorandum, which simply must be read in its entirety to appreciate:

Because of the concerns Concerned River Valley Citizens (“CRVC”) raised in its filings as to the extent of public participation if its motion for intervention as a party were not granted, a few points deserve special emphasis.

It bears noting that while the Administrative Law Judge had concerns as to who might make an appearance on behalf of CRVC in these proceedings there was never a serious question as to whether, as an association of affected landowners, CRVC had a legal right to raise questions or be heard as to the proposed project. Similarly, there was never a risk that the views of CRVC would not be sought, or integrated in a meaningful way, into hearing record. Likewise, it is free from doubt that Mr. Neuman, Ms. Johnson or other affected landowners, could have intervened in their individual capacity, without counsel. The fact is that our system of due process delights in the contributions that genuinely motivated parties make toward building a record for later decision-making.

The much narrower item of concern for the Administrative Law Judge was whether Mr. Neuman or Ms. Johnson, neither of whom are attorneys, could permissibly make an appearance on behalf of CRVC – which is a corporate entity. The general, and more familiar rule, is that a corporation must be represented by an attorney in legal proceedings.

There is, however, an important exception to this general rule. The predecessor Environmental Quality Board2 had a specific representation rule for proceedings “involving … the routing of high voltage transmission lines” that is more generous and permissive than both the common law rule and the representation rule for contested cases under the Minnesota Administrative rocedures Act. Rule 1405.0600 permits “all persons” to be “represented by legal counsel, or by a person of their choice, or they may represent themselves.”  Under these same rules, the definition of “person” is broad enough to include corporate entities such as CRVC. 

Because of these more generous rules, which are specific to these proceedings, granting CRVC’s request as it was submitted by its chosen representatives, is appropriate.

And this is another aspect of the Chisago case that has me fuming!  There’s yet another twist in the Chisago proceeding is the harassment of my former client, Concerned River Valley Citizens (CRVC).  I’m glad I’m a step removed, because this is such flagrant _________ (your favorite invective here).

Earlier this month, CRVC’s Motion for Extension of Task Force was “taken under advisement,” and they received the most bizarre Order from the ALJ, directing them to respond to specific questions of the ALJ set out in Order point 3:

    3.    On or before 4:30 p.m. on Wednesday, April 18, 2007, a representative of the Concerned River Valley Citizens shall file responsive papers addressing the following matters:

a.    Whether either Mr. Neuman or Ms. Johnson is licensed to practice law in Minnesota or any other jurisdiction;

b.    Whether, in the view of the association, representation of Concerned River Valley Citizens by a non-attorney would amount to the unauthorized practice of law, as those terms are used in Rule 1400.5800;

c.    Whether, in the view of the association, retaining the services of a licensed attorney to appear on behalf of Concerned River Valley Citizens would be unduly burdensome;

d.    Whether the Concerned River Valley Citizens, if granted intervention as a party, would seek access to confidential trade secret data; and,

e.    Whether a more limited role than intervention, under Rule 1400.7150, might meet the needs of Concerned River Valley Citizens.

Seems to me that this is express notice to CRVC that they are being offered the “choice” of caving and relinquishing meaningful participation, or they’ll get only a “limited role.”  Good thing I’m not representing them, because MY response would not be printable in this “family blog.”

Here’s the full Order:

ALJ Harrassment and Quashing of CRVC

Bill Neuman has taken the lead in CRVC’s Intervention, since they “passed me off” to the City, and he submitted the following responses to the ALJ:

II. CRVC POSITION ON ISSUES

A. Whether either Mr. Neuman or Ms. Johnson is licensed to practice law in Minnesota or any other jurisdiction.

CRVC objects to this question as it infers a requirement that it be represented by a licensed attorney.  Maintaining that objection, neither Mr. Neuman nor Ms. Johnson are  attorneys licensed to practice law in Minnesota or any other jurisdiction. There is no authority in rule or statute to support the notion that licensure is required for an individual to represent themselves or a non-profit organization of which they are an officer. Further, the statutory and regulatory policy of encouraging public participation requires that parties be afforded the opportunity to represent their interests.

B. Whether, in the view of the association, representation of Concerned River Valley Citizens by a non-attorney would amount to the unauthorized practice of law, as   those terms are used in Rule 1400.5800.

CRVC objects to this question, as it, again, infers a requirement that CRVC be represented by a licensed attorney. While maintaining that objection, representation of CRVC by a non-attorney does not amount to unauthorized practice. Rule 1400.5800 does not offer guidance as to the definition of “unauthorized practice,” which is correctly found in Minn. Stat. §481.02. CRVC notes that this statute draws a distinction between those corporations organized for pecuniary profit, and non-profits such as CRVC. Minn. Stat. §481.02, Subd. 2. The statute also specifies legal representation in “court” and does not address administrative proceedings. Parties may draw and submit documents without charge where they are officers of a corporation, as Ms. Johnson and Mr. Neuman are with CRVC. Neither Johnson nor Neuman are receiving payment for their work on this issue. Minn. Stat. §481.02, Subd. 3. Minn. Stat. §481.02, Subd. 1,Subd. 5. Further, it has long been agency practice that individuals and officers of non-profit corporations represent themselves before the Commission and the Environmental Quality Board, and before ALJs of the Office of Administrative Hearings. Departure from this practice would be a change of great magnitude and impact and would greatly limit the ability of the public to participate in dockets that have a direct impact on
their lives and property.

Again, there is no authority in rule or statute to support the notion that licensure is required for an individual to represent themselves or a non-profit organization of which they are an officer. Further, the statutory and regulatory policy of encouraging public participation requires that parties be afforded the opportunity to represent their interests.

C. Whether, in the view of the association, retaining the services of a licensed attorney to appear on behalf of Concerned River Valley Citizens would be unduly burdensome.

CRVC objects to this question as it again infers a requirement that CRVC be represented by a licensed attorney and that an Order to that effect is contemplated. Maintaining that objection, CRVC states that retaining the services of a licensed attorney to appear on behalf of Concerned River Valley Citizens would be unduly burdensome, utterly unnecessary, and that any Order that CRVC must retain an attorney would be unreasonable. It should be noted that Minnesota does not offer Intervenor Compensation.

D. Whether the Concerned River Valley Citizens, if granted intervention as a party, would seek access to confidential trade secret data.

CRVC objects to this question because whether a potential party would seek access to confidential trade secret data is not a criteria for granting or denying intervention. Commission and OAH practice has long been to provide Intervenors with confidential trade secret data under a protective order, whether utility or non-profit intervenors. These agreements are routine. CRVC would obviously be bound by a confidentiality agreement. Further, there does not seem to be any confidential trade secret.

E. Whether a more limited role than intervention, under Rule 1400.7150, might meet the needs of Concerned River Valley Citizens.

CRVC objects to this question as it implies granting a limited intervention only, contrary to the policy goals of encouragement of public participation. Further, provisions of Rule 1400.7150 do not convey a right of participation. CRVC requires intervention with full-party status, as has been granted previously, because of the depth and breadth of issues raised, and that no other party adequately represents these interests. 

I guess CRVC told the ALJ, huh!!!

The ALJ’s Order is unprecedented harassment of Intervenors and is an extreme example of the many attacks against public participation, the basic due process rights of people affected by all these infrastructure proposals.  HOW DARE THEY!!!!

We had a “win” at the PUC on Thursday, but it’s the kind of a win that is such a “DUH!” that it’s hard to celebrate, it’s too much of a reminder of the ways that the public is being treated these days, shut out of process, harassed, quashed, and in this case, as attorney for City of Lindstrom, it’s astounding me the lengths Commerce on the Siting and Routing side will go to to keep a local government from having input. Unbelievable!

While I’m clear that Xcel is not “our friend,” they are not the ones putting up the roadblocks, and we have to be ever vigilant about ALL the players in this. Pawlenty’s state agencies particularly!

I’m having a hard time getting this posting done because the actions and position of the Dept. of Commerce have been so egregious… so I guess I’ll just let them speak for themselves, the pattern will show through:

Prior Post: Chisago — State cuts out the public

When it became clear that the Task Force process was being perverted by Dept. of Commerce into a “no notice” and “too little time” fiasco, we filed a Motion to Extend Task Force:

City of Lindstrom – Motion to Extend Task Force

Which was followed by the Commerce position, in a “letter” and not a responsive pleading, that it was not necessary to extend Task Force, that what had transpired was just fine, and arguing that the Siting/Routing docket was not a contested case:

Commerce Letter to ALJ Lipman

OK, fine, so then we filed a Petition for a Contested Case with the PUC:

City of Lindstrom – Petition for Contested Case

Our Motion was referred to the PUC, and was put on agenda for Thursday, April 19, 2007.  And here are the Staff Briefing Papers for Thursday’s meeting:

Staff Briefing Papers for April 19 2007

And here’s where it gets interesting. Xcel was not the “bad guy” here, the “bad guy” is the Dept. of Commerce Siting and Routing staff! Xcel came in with no objections to a contested case, an interest in assuring that “at the end of the day” the City of Lindstrom couldn’t say “we were shut out,” and “we had no opportunity to participate!” AND, best of all, they brought in this great chart showing just how it could be handled, where the rules for this “Alternate Review Process” can be integrated into the pre-existing Contested Case for the Certificate of Need! Minn. R. 4400.2850 folded into Minn. R. Ch. 1400 (and noting in places that “Ch 1405 provides helpful analogy.” And yes, I made sure Mike Krikava new that I appreciated Xcel’s attitude in this. Another interesting point — Commerce staff, in presenting their off the wall arguments, were there on their own, no Asst. A.G. to be seen!

Here’s Xcel’s chart, that shows how the processes can be combined:

Xcel – Alternate Review and CoN can be combined

The meeting was “spirited” and the bottom line was that because (I believe) Xcel had no objection with combining the two forks, Siting/Routing and Certificate of Need, into one contested case, that’s how it’s going to go! Will post the Order when it comes out.

It’s not just in Delaware. Things got wound up in the Chisago Transmission Line docket, starting Friday, the 6th. For background, check these dockets:

04-1176

06-1677

To do that, go to www.puc.state.mn.us and then to “eDockets” and then to “Search documents” and then search for the dockets.

Friday was the day when Commerce sent this convoluted and tortured responsive letter (not pleading) to the City of Lindstrom’s Motion to Extend Task Force:

City of Lindstrom – Motion to Extend Task Force

Here’s their take — which is beyond… beyond… well, read it for yourself:

Commerce Letter to ALJ Lipman

The Commerce position was a bit more than I could take — to think that, even where the PUC decision is silent on it, to think that the routing of the Chisago project is not a contested case is just nuts, so I fired off this quickie Petition to get this nailed down:

City of Lindstrom – Petition for Contested Case

They’ve been doing a good job of trying to keep the public out, keeping local government out. It started right out the gate, when Xcel didn’t serve me with the Certificate of Need application, and then didn’t seve me with the Routing application either! They didn’t serve my former client, Concerned River Valley Citizens, etiher. Chisago City was not served with notice or the application or with notice of the Citizens Task Force. CRVC participated in the notice plan, and yet when it was time for Comments on Completeness, Commerce did not bother to serve any of us with those Comments, and when challenged, PUC staff Bret Ekness said they were only about “completeness” and that the Comment period shouldn’t be extended. Nevermind that they were arguing for a “non-contested” proceeding, which given Chisago history is NOT realistic. Then came the PUC hearing, at which time Jim Alders addressed whether it should be a contested case, saying that the company expected it would be a contested case and that Xcel did not have an issue with that.

But noooo, that’s not the end of it. Last Monday, the ALJ issued two Orders, one regarding the City of Lindstrom’s Motion to Extend Task Force:

ALJ Certification to the PUC

But noooo, that’s not the end of it. Here’s the Minnesota version of gavelling the public, quashing participation:

ALJ Harrassment and Quashing of CRVC

By Wednesday of this week, the ALJ  has ordered CRVC that:

3.    On or before 4:30 p.m. on Wednesday, April 18, 2007, a representative of the Concerned River Valley Citizens shall file responsive papers addressing the following matters:

a.    Whether either Mr. Neuman or Ms. Johnson is licensed to practice law in Minnesota or any other jurisdiction;

b.    Whether, in the view of the association, representation of Concerned River Valley Citizens by a non-attorney would amount to the unauthorized practice of law, as those terms are used in Rule 1400.5800;

c.    Whether, in the view of the association, retaining the services of a licensed attorney to appear on behalf of Concerned River Valley Citizens would be unduly burdensome;

d.    Whether the Concerned River Valley Citizens, if granted intervention as a party, would seek access to confidential trade secret data; and,

e.    Whether a more limited role than intervention, under Rule 1400.7150, might meet the needs of Concerned River Valley Citizens

…. sigh… can  you believe????
So we’re before the PUC on Thursday.