Legalectric

Putting MinnCan pipeline through the Nietes field

Today the Minnesota Court of Appeals finally determined that under the Minnesota Environmental Policy Act, a full Environmental Impact Statement, not the abbreviated “Environmental Report,” is required.  I’ve been before the Appellate Court, the Public Utilities Commission, the Administrative Law Judge, in Comments to the Dept. of Commerce, and at the Rulemaking Advisory Committee for Minn. R. ch. 7849 how many times on this?!?!? … sigh… OK, whatever…

Sent this to the PUC’s rulemaking staff because we’ve got to make sure the Certificate of Need rules are in line with this decision:

Letter_AppellateCourt_Sept142015

So back to today’s Appellate decision — I’m glad they’re finally acknowledging this problem.  Very, very glad to see this order to remand to the Public Utilities Commission for a full Environmental Impact Statement, as required by the Minnesota Environmental Policy Act.

Here is the decision:

OPa150016-091415

Here’s the meat of it — it’s so simple — why did it take so long?

Here the MPUC deviated from its usual practice and chose to conduct the certificate of need proceedings prior to the routing permit proceedings. As a result, the MEPA-compliant environmental review associated with the routing permit would not occur until after a decision was made on the certificate of need. Neither party challenges the underlying decision to bifurcate the proceedings, but FOH argues that making a decision on the certificate of need in the absence of an EIS violates MEPA. The MPUC and NDPC contend that requiring an EIS at the certificate of need stage is inconsistent with the EQB’s longstanding determination that the alternative environmental review conducted as part of the routing permit proceedings satisfies MEPA. We agree with FOH, and see this as a simple question of statutory interpretation that requires us to examine the plain meaning of two MEPA provisions.

…

Relying on subdivision 2b, FOH contends that the issuance of a certificate of need constitutes a “final governmental decision” to grant a permit, and as such is prohibited until an EIS has been completed. We agree. For purposes of MEPA, the definition of permit includes a “certificate, or other entitlement for use or permission to act that may be granted or issued by a governmental unit.” Minn. R. 4410.0200, subp. 58 (2013) (emphasis added). This unambiguous definition encompasses a certificate of need. All parties also agree that once the MPUC decides to grant a certificate of need, its decision regarding the issuance of that specific permit is final. Therefore, based on the plain language of subdivision 2b, the MPUC’s issuance of a certificate of need constitutes a final governmental decision that is prohibited until the required environmental review is completed.

We are also not convinced that an EIS is not required before a certificate of need may be issued simply because the EQB has approved the environmental assessment associated with the routing permit process as an adequate alternative to a formal EIS. While the substance of this alternative review process may be equivalent to an EIS, its approval as an alternative by the EQB says nothing about when a final governmental decision to grant a permit may or may not be made in the absence of an EIS, which is specifically addressed by subdivisions 2a and 2b. Minn. Stat. § 116D.04, subds. 2a, 2b. We also note that the legislature could have clearly stated that a certificate of need for a large oil pipeline was excluded from the environmental review requirements of MEPA, but it declined to do so. See Minn. Stat. § 116D.04, subd. 2a(a) (authorizing EQB to establish categories of action for which an EIS is mandatory and identifying certain actions for which an environmental assessment worksheet or EIS shall not be required). As a result, in the absence of a statutory exclusion or an explicit statement by the EQB that the approved routing permit application process supplants the need for environmental review at the certificate of need stage, subdivisions 2a and 2b must control our determination of whether environmental review is required. The unambiguous language of those provisions mandates that in a situation such as this, when the MEPA-compliant environmental review would not occur until after a certificate of need was issued, an EIS must be completed as part of the certificate of need proceedings.

Finally, we point out that requiring an EIS during the initial certificate of need proceedings affirms the emphasis MEPA places on conducting environmental review early on in the decision-making process. Specifically, MEPA states that, “[t]o ensure its use in the decision-making process, the environmental impact statement shall be prepared as early as practical in the formulation of an action.” Id., subd. 2a. This emphasis on timing is also consistent with the way federal courts have applied the National Environmental Policy Act (NEPA), which we may look to for guidance when interpreting MEPA. See Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 468 (Minn. 2002). The United States Supreme Court has explained that the early-stage environmental review similarly required by NEPA is critical because it “ensures that that important [environmental] effects will not be overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S. Ct. 1835, 1845 (1989)

In this case, the completion of an EIS at the certificate of need stage satisfies the imperative identified above by ensuring decision-makers are fully informed regarding the environmental consequences of the pipeline, before determining whether there is a need for it. Moreover, completion of an EIS at the initial certificate of need stage seems particularly critical here because once a need is determined, the focus will inevitably turn to where the pipeline should go, as opposed to whether it should be built at all. We acknowledge that the MPUC did order a high level environmental review to be considered during the certificate of need proceedings. But as the MPUC noted, this review was not meant to serve as a substitute for the more rigorous and detailed review needed to satisfy MEPA, and it cannot take the place of a formal EIS now. Accordingly, we conclude the MPUC erred by not completing an EIS at the certificate of need stage as MEPA requires.

NOTICE!!!  Landowners need notice if their land is affected!  Local governments and residents need notice if their communities are affected!  Yes, posting something can have an impact!

Notice is something that’s been an issue in utility dockets, and transmission proceedings particularly, for a long, long time.  It’s something we’re trying to address in the Minn. R. Ch. 7850 in our rulemaking advisory committee meetings over the last TWO PLUS YEARS!

Here are the latest Comments:

NoCapX_U-CAN_ Cover_8-25-2015

NoCapX-U-CAN_Comments_8-25-2-15_20158-113514-02

Why does notice matter?  Well, there’s this thing called “Due Process.”  Notice is a fundamental Constitutional Right.  It matters because “NOTICE” often doesn’t happen.  And it ties in with eminent domain, where land may Constitutionally be taken for public purpose projects with just compensation (and what is a “public” project?  What is “just” compensation?)  If you aren’t properly informed, have no notice, what does that do to your ability to participate?

In Minnesota, it’s a matter of law, clear, simply stated law:

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.

Looking over posts and filings where this has happened, situations I’ve been aware of where landowners have been surprised at the last minute, too late to meaningfully participate in the proceedings, have filed Motions for Reconsideration, and have been to the Appellate Court on their behalf, it is SO frustrating.  Looking at the many times I’ve tried to intervene, to have intervention deadlines extended in case landowners want to stand up,   There’s no excuse.  People should not be surprised at the last minute with a utility attempt to run transmission over their land.

It happened recently in the Great Northern Transmission Line routing docket:

ALJ Order filed, no RRANT intervention

Can you believe Commerce EERA would file this?

Commerce EERA Responds… NOT!

It happened in CapX Brookings route and on CapX Hampton- La Crosse route:

• Cannon Falls (CapX Hampton- LaX route) example to go around county park and DOT prohibited intersection area:

Cannon Falls Beacon – CapX in the news!

Dakota County resolution about CapX 2020

CAPX APPEAL — DECISION RELEASED (includes Cannon Falls)

UPDATED Updated Minnesota Appeal Update

Initial Brief – St. Paul’s Lutheran School and Church and Cannon Falls Landowners

Reply Brief – Cannon Falls Landowners and St. Paul’s Lutheran School and Church

• Oronoco(CapX Hampton – La X route) enters “new route” proposal without notice to its own landowners:

Oronoco Twp’s Exhibit 89

• USDA’s Rural Utilites Service (CapX Hampton – La X) example:

RUS Reopens Comments on Hampton-LaCrosse

• Myrick Route (CapX Brookings) example:

Myrick route withdrawn

Myrick Route & How to find things on PUC site

• In particular this “Notice” which went out after all the hearings were over with no way to participate at all: Dec 30 Notice – Myrick Route

PUC chooses Belle Plaine crossing

• This is important to understand the set-up, and now this notice was snuck in at the last minute due to Applicant and Commerce disregard for objections of DOT, DNR and USFWS.

That’s enough examples to get an idea of the problem… but there are more that I can trot out if necessary.  The notice provisions in Minnesota law and rule must be corrected.

Commentary by Alan Muller, Green Delaware, in today’s Delaware State News:

Commentary: Time to think about Delaware’s Peterson, Coastal Zone Act

Delaware’s a mess. The water is rising. We are a major destination for bomb trains. One of the most leaky and dangerous nuke power complexes threatens and pollutes the state and is trying to expand with new reactors. The air and water are polluted. The economy is stagnant and the political system corrupt. The public schools are under attack. The court system is openly dedicated to protecting corporate crime. A tale of woe, to be sure.

Some of it is self-inflicted, like the reopening of the mega-toxic Delaware City Refinery and the resulting routing of bomb trains to Delaware.  Some, like global climate change and sea level rise, is mostly beyond the ability of Delaware to do much about. On the other hand, it could well be argued that little three-county Delaware has done way-out-of-proportion damage to the world, has been a damaging leader in the “race to the bottom.”

What is the cumulative damage to individuals and families done by out-of-control credit card “banks?” Would that have happened anyway, with or without Delaware’s shameful Financial Center Development Act?  Would so many electric ratepayers been screwed over so much without the hundreds of Enron subsidiaries incorporated in Delaware? Maybe they would have just been set up somewhere else.  Would there have been so many bogus bankruptcies and stolen pension plans?  Would the US, or the world, be in better shape without Delaware?  Alternative history can’t be much more than speculative, but there is a case to be made.

Is it possible to imagine a better Delaware? A place to be proud of rather than ashamed of? A Delaware, for example, where John  Kowalko is Speaker of the House rather than Pete Schwartzkopf?  A place where the University of  Delaware symbolizes intellectual freedom rather than civil liberties violations and the worship of capital at the expense of labor?

Well, yes, actually.  There  have been better leadership and better political times in Delaware, within my memory.

Russ Peterson died in 2011.  (Here’s his obit in the New York Times.) Peterson was a significant figure in environmental matters in Delaware, nationally, and sometimes globally.  But it seemed to me that most of what was being written about Russ was the same old stuff, regurgitated for the umpteenth time and not giving us much new or insightful to think about.

Now, three years have gone by, and Delaware’s rulers are pursuing another major attack on the Delaware Coastal Zone Act, the centerpiece, the masterpiece, of  Peterson’s public policy work in Delaware.   So, this seems an appropriate time to think about Russ Peterson.

Peterson was likely the most significant person ever to operate out of little Delaware.  But he didn’t walk on water and he wasn’t God.  He was both more flawed and more interesting than one might see from most writings about him. He deserves more thoughtful commentary than he’s so far received.

Peterson, first of all, not a “Delaware Native.”  He was born, raised, and educated in Wisconsin, and was a product of the relatively progressive atmosphere, at least at that time, of the Upper Midwest.  (For factual information on Russ Peterson see this Wikipedia article.)

If Peterson had grown up in the plantation culture of Delaware, and learned his chemistry at the University of Delaware, would he have made the same contributions?  Maybe, but it’s doubtful.  In general, the human intellect does not seem to blossom in Delaware.

Russ was educated as a chemist and was recruited by E.I. du Pont de Nemours and Company as a research chemist.  He rose to be director of Central Research and Development.  This would be considered, at least at the time, high in the pecking order of the technical world, or at least its industrial side.  Peterson was a smart man.

Peterson’s interests eventually shifted out of DuPont.  My favorite story of Peterson and DuPont:  At one time he was in charge of a suburban office/lab site known as Chestnut Run Plaza.  At the time, in DuPont, black people could generally have only menial, broom-pushing jobs.  Peterson set up a program to enable and encourage black workers to move up. DuPont’s response was to schedule Peterson for an interview with “the company psychiatrist.”  Mental illness was suspected.

In any case, Peterson got involved in reform efforts in Delaware, notably prison reform. Being of an analytical turn of mind, he figured out how to organize such efforts: a committee in every Representative district, and so on.   Some years of this work gave him good, if imperfect, insight into the workings of Delaware politics.

He wasn’t without his critics.  Tom Colgan, long time campaigner against housing discrimination, used to say “Russ always showed up when the fighting was over.”  Perhaps so.  But Delaware is a place with a narrow intellectual and political space, where perceptions of non-mainstream views generally relegate people to a gadfly role.  In a sense, Russ Peterson’s achievement was to keep close enough to the political mainstream to achieve, at least briefly, real power, yet he was not co-opted from the neck up.

In 1968, Peterson resigned from DuPont and ran for Governor as a Republican.  At the time, the DuPont Company was behind him.  I recall, as the teenage son of a DuPont manager, being turned out to flyer for Russ Peterson.  He won.

But, after the enactment of the Coastal Zone Act in his first term, DuPont turned on him, and told its 25,000 Delaware employees–there are way fewer now, or course–to vote for Democrat Sherman W. Tribbitt, a hardware store owner in the small town of Odessa.  Peterson was out of office after one term.

There were other factors in his defeat, including budgetary miscalculations that required the state to “claw back” spending.  Whether this was a genuine screwup or a trap set for Peterson has never been entirely clear to me.  The budget shortfall was five million dollars.

Peterson also pushed a transition from Delaware’s “commission” form of government to a “cabinet” system.  Traditionally, many governmental functions had been run by citizen commissions.  Some still are, such as utility regulation by the “Public Service Commission.”  The members of these commissions were mostly appointed by the governor but were not, afterwards, directly under his control.  On the other hand, departments of the Executive Branch were. and are, headed by officials reporting to the Governor.  This increased the power of the governor; it made for a more centralized decision-making process.  Like most change, it was resented.

This centralization of power continues:  a disturbing example is the shift of power over schools from elected district school boards to a state Department of Education controlled by the governor.  Many people these days feel that Governor Jack Markell is using this power to attack the fundamental features of public schools and public education, and to implement privatization of the public schools to the benefit of for-profit “education” companies.

After Tribbitt’s one term, hard right winger and special interest servant Pierre S. du Pont IV was installed as Governor for two terms.  DuPont shut down the state planning office and, in general, tried to reverse many of the Peterson reforms.  Many people see his two terms as the time during which Delaware abandoned real representative government and adopted the “Delaware Way” of governance.  The “Delaware Way” could better be called the “Dirty Deals Behind Closed Doors” approach.

So what about this Coastal Zone Act?  What makes it special and worth preserving.

It was based on an understanding that coastal areas, that is, where the water meets the land and the air, are crucial from an ecological perspective and need special protections.  The wording of it is pretty clear:

Purpose.

It is hereby determined that the coastal areas of Delaware are the most critical areas for the future of the State in terms of the quality of life in the State. It is, therefore, the declared public policy of the State to control the location, extent and type of industrial development in Delaware’s coastal areas. In so doing, the State can better protect the natural environment of its bay and coastal areas and safeguard their use primarily for recreation and tourism. Specifically, this chapter seeks to prohibit entirely the construction of new heavy industry in its coastal areas, which industry is determined to be incompatible with the protection of that natural environment in those areas. While it is the declared public policy of the State to encourage the introduction of new industry into Delaware, the protection of the environment, natural beauty and recreation potential of the State is also of great concern. In order to strike the correct balance between these 2 policies, careful planning based on a thorough understanding of Delaware’s potential and the State’s needs is required. Therefore, control of industrial development other than that of heavy industry in the coastal zone of Delaware through a permit system at the state level is called for. It is further determined that offshore bulk product transfer facilities represent a significant danger of pollution to the coastal zone and generate pressure for the construction of industrial plants in the coastal zone, which construction is declared to be against public policy. For these reasons, prohibition against bulk product transfer facilities in the coastal zone is deemed imperative.

The immediate tactical driver for the bill was an attempt to build a second oil refinery in Delaware.  Shell had bought the land, designed the refinery, and survey monuments were in the ground.  The threat was immediate.  The damage being done by the existing Delaware City Refinery, one of the dirtiest in the world, was obvious.

It’s worth noting that Peterson and the leaders of the General Assembly were Republicans.  The President of the US was Richard Nixon.  The Nixon administration wanted to increase oil imports and wanted a lot of it to come up the Delaware River and be refined alongside it. So, in effect, Peterson was not only defying Delaware’s fat-cat industrial establishment, and many labor leaders, he was defying the US federal government and his fellow Republicans.

“U. S. Secretary of Commerce Maurice Stans accused Peterson of being disloyal to his country.  Peterson famously replied, ‘Hell no, I’m being loyal to future generations of Americans.’” (Man and Nature in Delaware.  Williams, 2008)

There were, however, flaws in the Coastal Zone Act, like most legislation a product of compromise.  A key weakness is that the Act covers “industry” but not residential and commercial activities.  Over the years, as coastal industry has tended to contract and sprawl development expand, the CZA has increasingly failed to control many of the greatest threats to the Coastal Zone including runoff and sewage.  It has been obvious for many years that the scope of the Act needs to be expanded, but the vision and leadership to accomplish that has been lacking.

Another weakness is that regulations implementing the act we not adopted for many years, and when they were adopted they were inconsistent with the purposes of the act and tended to weaken it.  Thus, interpretation of the Act has mostly been left to Delaware’s courts, with unpredictable and increasingly bad results, as the quality of Delaware’s judiciary has declined.

But, despite these issues, the Delaware Coastal Zone Act was groundbreaking, whether one regards it as primarily a “land use” law or an “environmental” law.  It came about because a visionary governor was supported by a generation of reform-minded legislators and a relatively-active “environmental community.”  Where are the visionary governors and the generation of reform-minded legislators when we need them now??  Gov. Jack Markell is certainly not cast in that mold.

Peterson went on to serve as President of the National Audubon Society, Chaired the federal Council on Environmental Quality, and worked with various commissions, environmental organizations and projects.  He never again held elective office or a high position in the business or scientific worlds.

Peterson stayed, at least episodically, involved in environmental politics in Delaware, until his death in 2011 at the age of about 95.  He was, for example, a supporter of the Bluewater Wind project, which eventually collapsed but potentially could have been the first large offshore wind project in North America.  He usually popped up when the Coastal Zone Act was being attacked.

But in the end Russ Peterson was diminished by two things:

Advancing age.  Anyone remaining active into his mid-90s is likely to be remembered for things he or she did when no longer at the peak of their powers, and

His love-hate relationship with the chemical industry.  Perhaps Peterson never got over being pushed out of his job as Governor by DuPont.  It seemed to me that he carried deep and legitimate grievances, and of course he knew intellectually that the policies pursued by big corporate interests were destroying the planet.  On the other hand, Peterson had money, identified socially with the powers-that-be, and seemed to crave forgiveness and acceptance from the leaders of DuPont, etc.  Thus, he could and did alternate between sucking up and lashing out.  He wasn’t always reliable or predictable.  He could and did make serious mistakes and publish stupid things, such as an endorsement of a bad waste incineration company.

Russ’ key mistake was to be politically seduced by “Toxic Tom” Carper.  Carper was elected Governor in 1992, with the naive support of some Delaware enviros.  At that time, a long Coastal Zone Act negotiation between enviro types and Chamber of Commerce types had been in progress under Gov. Mike Castle and was coming to conclusion.  Carper came in with a pure “Chamber of Commerce” agenda and one of his first actions was to call in the enviros and tell them to yield to the Chamber on Coastal Zone issues.  Initially, they resisted.  So Carper went after Peterson, knowing that if Russ yielded, inevitably the mainstream enviros would go along.  Peterson fell for it.  I remember him yelling at me that Tom Carper and Chris Tolou, then Secretary of DNREC, were “great environmentalists.”  He hired a bogus “neutral facilitator” shop called the “Consensus Building Institute” to give the enviros cover for their sellout.  In the sad end, the enviros–many controlled by DuPont–wimped out and rolled over.  They signed an agreement essentially abandoning the clear language of the Coastal Zone Act in favor of “environmental indicators,” “offsets,” and other excuses for abandoning the plain meaning of the Act.  It’s been mostly downhill since.

There have been some high moments.  John Hughes, as Secretary of DNREC, denied a permit for a Liquified Natural Gas (LNG) terminal in Logan Township, NJ.  This he could do because at that point Delaware owns the Delaware River all the way across.  The case went to the US Supreme Court and Delaware prevailed.  At the time, the oil and gas people were saying that more gas imports were essential.  Now, of course, they are saying that gas exports are essential…..

So what’s the relevance of this to 2015?  Delaware faces more severe threats now than when Peterson was governor.  The land is sinking, the sea is rising, and much of Delaware is subject to flooding.  How is the state reacting to this? So far, with nothing but words.  Decades of pandering to business interests, without foresight or planning, have left Delaware’s economy in bad shape and our quality of life degraded.  Compare Peterson’s visionary Coastal Zone Act, which kept a Shell refinery out of Delaware, with Jack Markell’s dirty backdoor deal to reopen the Delaware City Refinery, and bring bomb trains into the state.  Delaware is the big loser.

How do we (re)open Delaware’s political system to visionary leaders?  Or at least people of intelligence and good will?  Who will step up, or be pushed forward, to run for Governor?

Alan Muller is Executive Director of Green Delaware.

We’ve been working on the rules for the Minnesota Public Utilities Commission’s chapters covering Certificate of Need and Siting/Routing of electric utility infrastructure, ranging from transmission to power plants.  WHEW!  It takes forever, and thus far it’s been over two and a half years, just for the “pre-Commission-sends-it-out-for-comments” rulemaking advisory group part.

Who cares about rules?  Well I do, as to many others who have been dealing with Certificate of Need and Routing/Siting issues over the years.  It’s important because so many things are wrong with the process, from awkward to just plain wrong/unfair, even in light of the enabling statutes for these rules (rules need to operate within some pretty restrictive statutory framing).

This is, again, still informal, and PUC is open to any and all comments, ones on point, that is, and so comment on specific language, and suggest specific language!  Here’s the latest (and I’ve filed them on the PUC site):

August 3 Draft 7849

August 3 2015 Draft 7850

To see the versions and comments thus far, go to the PUC’s SEARCH PAGE HERE, and search for PUC Docket 12-1246.

To file comments, go HERE and file.  If you’re not registered to file, go HERE and register and file!  It’s that easy, almost instantaneous!

Yesterday, I received a missive about the Plains & Eastern Clean Line that was disconcerting to say the least.  After all the Comment periods have closed, both DEIS and Section 1222, the DOE now says that based on comments received, there have been changes, and we get this:

Route Variations and Modified Converter Station Siting Areas

Route Variations Project Overview
Route Variations by Regions
Route Variation Sheet Maps
Modified Arkansas Converter Station Alternative Siting Area
Modified Tennessee Converter Station Siting Area

Here’s an example that makes no sense to me — look at the site for the so-called Arkansas Converter Station — it’s surrounded.  Does DOE think it can ram through Wildlife Management Areas?

Given all this new information, where’s the announcement of opportunity to review and file DEIS Comments on this?

Given the alterations of routes, are new landowners affected?  If so, where’s the announcement of opportunity to review the whole mess and file Section 1222 Comments?