Legalectric

This is one of those things that’s been bugging me for a long time, and I’m finally getting around to looking it up.  There are a few twists and turns, and this is a long post, with a lot of links and a lot of audio listening for you to dig in if you’re interested.  If you’re a landowner, you sure better be!  If you’re a landowner affected by utility infrastructure, this is required reading and listening!

Here we go!

History of Minn. Stat. 117.189

Here’s the statute (the specific statutory cites below are linked):

117.189 PUBLIC SERVICE CORPORATION EXCEPTIONS.

Sections 117.031; 117.036; 117.055, subdivision 2, paragraph (b); 117.186; 117.187; 117.188; and 117.52, subdivisions 1a and 4, do not apply to public service corporations. For purposes of an award of appraisal fees under section 117.085, the fees awarded may not exceed $500 for all types of property.
History:

2006 c 214 s 14

Short version – this bill was a bipartisan sell-out that exempted CapX 2020 and any other public service corporation project from eminent domain that every other entity must comply with.  Why on earth would they do this… or rather, what innocent explaination is there for this 117.189 section of the bill?

So far that I’ve heard (only ~6 hours thus far), Sen. Scott Dibble is the only one asking “Why exempt public service corporations?”

The only Senators who voted against this were:

Anderson, Cohen, Dibble, Hottinger, Marko, Moua, Pappas, Ranum, Skoglund

The only Reps who voted against this were:

Davnie, Ellison, Goodwin, Hausman, Hornstein, Huntley, Johnson, S., Kahn, Lanning, Lenczewski, Mahoney, Mariani, Mullery, Paymar, Thao, Wagenius, Walker

Please take a few minutes and send them a thank you note!  Here’s a link to their emails:

House Members

Senate Members

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First, some more history, going back to my all time favorite bill:

2005 TRANSMISSION OMNIBUS BILL FROM HELL

Remember, this was the bill that grew from the deal the enviros did in 2003, incorporating the material terms of that deal into the 2005 Omnibus bill.

ME3, MCEA, Waltons, NAWO -TRANSLink deal

And… why… look, there’s language in the 2005 Transmission Omnibus Bill from Hell mandating an “Eminent Domain Landowner Compensation — Landowner Payments Working Group!”

55.35                             ARTICLE 1155.36               EMINENT DOMAIN LANDOWNER COMPENSATION56.1      Section. 1.  [LANDOWNER PAYMENTS WORKING GROUP.]56.2      Subdivision 1.  [MEMBERSHIP.] By June 15, 2005, the56.3   Legislative Electric Energy Task Force shall convene a landowner56.4   payments working group consisting of up to 12 members, including56.5   representatives from each of the following groups:56.6   transmission-owning investor-owned utilities, electric56.7   cooperatives, municipal power agencies, Farm Bureau, Farmers56.8   Union, county commissioners, real estate appraisers and others56.9   with an interest and expertise in landowner rights and the56.10  market value of rural property.56.11     Subd. 2.  [APPOINTMENT.] The chairs of the Legislative56.12  Electric Energy Task Force and the chairs of the senate and56.13  house committees with primary jurisdiction over energy policy56.14  shall jointly appoint the working group members.56.15     Subd. 3.  [CHARGE.] (a) The landowner payments working56.16  group shall research alternative methods of remunerating56.17  landowners on whose land high voltage transmission lines have56.18  been constructed.56.19     (b) In developing its recommendations, the working group56.20  shall:56.21     (1) examine different methods of landowner payments that56.22  operate in other states and countries;56.23     (2) consider innovative alternatives to lump-sum payments56.24  that extend payments over the life of the transmission line and56.25  that run with the land if the land is conveyed to another owner;56.26     (3) consider alternative ways of structuring payments that56.27  are equitable to landowners and utilities.56.28     Subd. 4.  [EXPENSES.] Members of the working group shall be56.29  reimbursed for expenses as provided in Minnesota Statutes,56.30  section 15.059, subdivision 6.  Expenses of the landowner56.31  payments working group shall not exceed $10,000 without the56.32  approval of the chairs of the Legislative Electric Energy Task56.33  Force.56.34     Subd. 5.  [REPORT.] The landowner payments working group56.35  shall present its findings and recommendations, including56.36  legislative recommendations and model legislation, if any, in a57.1   report to the Legislative Electric Energy Task Force by January57.2   15, 2006.

Now, let’s take a look at who was on that Committee:

REPRESENTATIVE MEMBERS

1. Jim Musso (Xcel Energy) representing transmission owning investor-owned utilities
2. Bob Ambrose (Great River Energy) representing electric cooperatives
3. Mrg Simon (Missouri River Energy) representing municipal power agencies
4. Chris Radatz-representing the Minnesota Farm Bureau
5. Tim Henning (farmer) representing the Minnesota Farmers Union
6. Jack Keers (Pipestone County Commissioner) representing county commissioners
7. Robin Nesburg (Rural Appraisal Services) representing real estate appraisers

AT LARGE MEMBERS

8. Beth Soholt (Wind on the Wires)
9. John Nauerth III (farmer)
10. George Crocker (North American Water Office)
11. Bob Cupit (Public Utilities Commission)
12. Bill Blazar (Minnesota Chamber of Commerce)

Here’s the report of the Work Group:

LANDOWNERS’ PAYMENTS WORKING GROUP

REPORT TO THE LEGISLATIVE ELECTRIC ENERGY TASK FORCE  (LEETF)

Laws 2005, chapter 97, article 11, required the Legislative Electric Energy Task Force (LEETF) to create a landowners’ payments working group to study alternative methods of remunerating landowners on whose land high-voltage transmission lines have been constructed.

The group was created, met twice, and this is a report of its findings and recommendations.

LANDOWNER PAYMENTS GROUP FINDINGS

1.  Farm owners in southwestern Minnesota want compensation for high-voltage transmission line easements to be paid annually as a percentage of the current value of the land so that as land values rise or drop, the payments rise or drop accordingly.

2.  Easement acquiring utilities are not in favor of the proposal described in item #1 and do not want to fundamentally change the current method of payment for easements, which consists of a onetime payment based on a percentage value of the land over which the easement is acquired.

3.  The Legislature has the authority to mandate the payment system described in item #1.

4.  There are no jurisdictions that have the payment system described in item #1.

5.  The payment system described in item #1 would be more expensive than the current payment system, assuming the percentages proposed by the landowners with attendant upward pressure on rates.

6.  There is a social value to having a harmonious, nonadversarial process to acquire high-voltage transmission line easements that has an economic value that is hard to quantify.

7.  There is a sense that the process for negotiating an easement and/or contesting it by a landowner is too expensive and complicated and it may be helpful to search for legislative ways to ensure that all similarly situated landowners receive the same just compensation without being intimidated by the process or forced to great expense by the process.

8.  While this group was formed due to farm landowner concerns, the scope of the charge extends to all landowners.  Guidance from the task force is necessary as to the scope of the charge because the scale of the issue is altered if any easement over any land is the subject of the discussion.

9.  While the direct parties in interest–the landowners and utilities–are stalemated, the current push to acquire easements for new lines makes the issue one that should have a firm handle kept on it.

RECOMMENDATIONS

1.  If further work is to be done on this topic, the task force should provide the guidance described under finding #8.

2.  If the task force wants to continue work on this topic and wants more public input, it should consider utilizing the same persons who are on the current study group.

3.  The task force may wish to consider whether there are flaws in the current easement acquisition process related to its expense to landowners to contest and perceived intimidating qualities.

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Let’s look at the eminent domain bills the following session, Senate bill, SF 2750 and the House bill, HF 2846.

SF 2750

Senate Authors, none added after introduction:    Bakk ; Kiscaden ; Bachmann ; Chaudhary ; Kubly

Bill as introduced, had the Public Service Corporation exemption AND the appraisal fee limitation:

12.8        Sec. 14. [117.189] PUBLIC SERVICE CORPORATION EXCEPTIONS.
12.9    Sections 117.031; 117.036; 117.055, subdivision 2, paragraph (b); 117.186; 117.187;
12.10   117.188; and 117.52, subdivisions 1a and 4, do not apply to public service corporations.
12.11   For purposes of an award of appraisal fees under section 117.085, the fees awarded may
12.12   not exceed $500 for all types of property.

On the Senate side, there are some interesting statements in the first Committee hearing, Judiciary, discussion about limiting who can speak at county meetings about eminent domain (!!!), limitations of attorneys’ fees… and there’s a discussion that I’m trying to transcribe … will post soon…

Senate Judiciary – March 9, 2006 – PART I

Senate Judiciary – March 9, 2006 – PART II

Senate State and Local Government Operations – March 13, 2006 – Part I

Senate State and Local Government Operations – March 13, 2006 – Part II

Here’s Sen. Dibble questioning, in State and Local Government Operations – March 13, 2006 Part I (linked):

MARCH 13, 2009

Senate State and Local Operations Committee

Sen. Dibble: I guess I have a larger policy question, why we think that utilities should be exempted from the provisions of this bill when we think that eminent domain is such a problem that we need to address.

Chair: We’ll ask Senator Bakk to address this question.

Sen. Bakk:    I think  You can have that question, as far as this amendment is concerned, it wouldn’t change anything in the bill other than just referencing the statutes, that statutory definition of utility. So, so, if you don’t like what’s in the bill, that’s fine, but this amendment doesn’t change anything.

Dibble:  I think it is a subject of interest that we should have as a policy committee, and as a larger public discussion.

Sen. Bakk:  Well, Madam Chair, Mike Ahern was, this question was asked at the judiciary committee and Mike Ahern came to the table and gave a pretty good explanation to the Committee of why utilities aren’t included.  This isn’t new that utilities are not included, this bill has been floating around, I think this is its third session, they’ve always not been included for a number of reasons.  One, they’re regulated by the Public Utilities Commission already.  And there is the Energy Task Force that’s looking at all of these energy issues, so, there are also provisions in law where, for instance, when they’re siting transmission lines, that there is a special provision in law, that if you’re gonna go over a farm, in addition to buying the easement for the powerline, the property owner has the right to ask that the entire farm be bought, I believe it’s called the Buy the Farm provision, but there are a number provisions in law, and maybe a little later when Mr. Ahern gets here, oh, he is here, Madam Chair, if you’d like, maybe he can respond to Senator Dibble’s question.

Chair: Mr. Ahern?

Mike Ahern: Yes, good morning Madam Chair, members of the committee, I’m Michael Ahern, and I represent a variety of utilities, pipeline, telecommunications
The question is the reason for exclusion of public service corporations. … I got in a little late.  Senator Bakk did touch on a number of the reasons. The reasons are, frankly, that the, substantively, most of the law governing public service corporations are dealt with in other sections of the statute, for example, Chapter 116C, governs powerlines, and not only does it deal with the grants of eminent domain, it sets up quite elaborate processes for, which this legislation addresses, quite elaborate public input processes, such as sets up EQB staff as facilitator for how and why a pipeline or powerline gets established.  There are things, again, that also conflict, such as the going concern provision, which is a major issue in this bill.  Public utilities are subject to language that entitles a farmer or business owner to take the entire farm or business at their option, since 1977.  I could go on and there are a lot of distinctions between, and reasons why at least traditionally, the legislature has dealt with utilities separately.

Chair:  Any other questions?  Sen. Dibble?

Sen. Dibble:  Thank you.   I’m not prepared yet to have a huge debate on this, but I think the same arguments could be made for local governments that are subject to elaborate processes in state law, and we can certainly look to examples that, driving motive and intent behind this statute, similarly we see places where people complain bitterly about abuses at the hands of public utilities, you can drive down Hwy. 52 and stills see the signs in people’s front yards about how they felt they were treated when a large powerline was being rammed along that corridor.  So it’s interesting that we’re making a special exception essentially for private entities that have been identified as culprits of abuse of eminent domain authority.

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HF 2846

Introduced with these authors: House Authors    Johnson, J. ; Thissen ; Smith ; Davids ; Dill ; Paulsen
By the end, here is who signed on to this:
House Authors        Johnson, J. ; Thissen ; Smith ; Davids ; Dill ; Paulsen ; Penas ; Moe ; Garofalo ; Nelson, P. ; Wardlow ; Magnus ; Cybart ; Olson ; Westrom ; Erickson ; Klinzing ; Charron

As introduced it had the Public Service Corporation exemption:

5.25         Sec. 9. [117.189] PUBLIC SERVICE CORPORATION EXCEPTION.
5.26     Sections 117.031, 117.186, 117.187, and 117.188 do not apply to public service
5.27     corporations.

*** The sentence about appraisals did not appear in it as introduced or in the 5 engrossments online.

Here’s the House Research explanation of that paragraph:

12      Public service corporation exception. Provides that the provisions for attorneys’ fees (section 4 ), compensation for loss of going concern (section 8 ), minimum compensation (section 10 ), and limitations (section 11 ), do not apply to public service corporations.

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Conference Committee

04/12/2006      Senate conferees       Bakk, Murphy, Betzold, Higgins, Ortman
04/12/2006      House conferees       Johnson, J.; Abrams; Davids; Anderson, B.; Thissen

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Here are the reports of House and Senate adoption of Conference Committee Report, including votes:

Senate Adopted Conference Committee Report, bill repassed

House Adopted Conference Committee Report, bill repassed

Let’s hear it for California!

They’re getting the message — transmission is not needed and transmission is not wanted.  If they try to push it through on the landowners across the state, well, they’re in trouble.  And so they did a study of what’s necessary to accomplish their Renewable Energy Standard and here it is.

33% RPS Implementation Analysis – Executive Summary

Here’s a statement from p. 10 of the Executive Summary that leads me to think they’re on the right path — just the simple recognition of this point:

California IOUs are currently on a procurement path that in effect prioritizes long-term market transformation over other policy objectives.

Here’s the full report:

33% RPS Implementation Analysis — Interim Report

And here’s a Power Point that hits the highlights:

Power Point – 33% RPS Implementation Analysis

It’s here, the testimony of the Intervenors against PSE&G’s Susquehanna-Roseland transmission project, well, it was last week, and FINALLY I’m getting around to posting it.

STOP THE LINES needs donations to keep up the fight.  Donations can be made by check payable to: Stop The Lines   PO Box 398  Tranquility NJ 07879.  You can also use paypal — just go to STOP THE LINES and scroll down.

Tax-deductible checks are also accepted,  made out to “NJ Highlands Coalition”, and put “Stop The Lines” in the memo
Mail to: NJ Highlands Coalition, ATT: Stop The Lines, 508 Main St. #3,  Boonton NJ 07005

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STOP THE LINES

Testimony of Helene Jaros

Exhibit JH-1 – HRA 4150-2, p. 6-7

Exhibit HJ-2 – HRA 4150-2, p. 11-12

Exhibit HJ-3 – VA Pamphlet 26-7, p.13

COALITION OF TOWNS

Testimony of Benjamin Sovacool

Exhibits will take a while — there are a LOT

BKS-1 – PEC Motion to VA Supreme Court

BKS-2 – PJM

BKS-3 – PSEG 20-K 2008

BKS-4 – NERC PR 05-19-09

BKS-5 – PSEG 2009 Q1 Earnings Call Transcript

BKS-6 – 2009 PJM Load Report

BKS-7 – Rosengren Reuters June 5, 2009

BKS-8 – PEPCO PR MAPP May 19, 2009

BKS-10 – Rebecca Smith, Wall Street Journal

BKS-14 – Brattle Group Evaluation of PJM Forecast Modeling

BKS-15 – PJM Manual 14B

BKS-16 – PATH 1st Delay

Testimony of Steven Balzano

FREDON PALS  & WILLOW DAY CAMP

Testimony of Dr. Martin Blank

Yes, more good news.  Yesterday, the TANC Board met, and were heard on the public conference call to vote, one by one, to put an end to this project that no one wants:

Special Op-ed: TANC’s Implosion: Lessons of Failure

July 16, 2009

By Nora Shimoda

Fizzle, crackling and popping noises came to the minds of many as they heard news of a short-circuit in a controversial plan to build a multi-billion dollar high-voltage transmissions line that would span 600 miles from Lassen County to serve Sacramento and Bay Area utility customers.

Following months of agitated protests from community groups organized across Northern California, including Round Mountain, Glenn and Shasta Counties, Capay, Clarksburg, Winters and Davis in Yolo County, Stanislaus and San Joaquin Counties, tribal groups of Native Americans, and environmentalists, the Transmission Agency of Northern California (TANC) terminated the project.

The burden of negative impacts, such as health concerns, blight and loss of property value, affected thousands of people in many communities, yet these communities would not benefit from energy of the line. Inadequate notification to property owners, cities, and counties forced the agency to extend the scoping comment deadline several times.

TANC is a joint powers agency, a consortium of 15 municipal utilities, but only five were participating in the transmission line project (Sacramento Municipal Utility District (SMUD), Modesto Irrigation District (MID), Turlock Irrigation District (TID), Silicon Valley Power (City of Santa Clara) and Redding Electric). State mandates to meet renewable energy goals of 20 percent by 2012, and an anticipated boost to 30 percent by 2020, is the primary justification for the project, according to TANC officials. The scheduled completion was 2014.

Questions of fiscal responsibility arose when a study by the California Energy Commission, called the Renewable Energy Transmission Initiative (RETI), evaluated 30 potential sites for renewable energy and the Lassen County source was ranked virtually at the bottom of the list. The RETI report also stated it was one of the most costly to build and having the most impact on the environment. Despite the evidence, TANC steadfastly moved forward with its plans as a frustrated public perceived its comments falling on deaf ears.

Citing uncertainty of plans by the federal government to construct transmission lines, SMUD, with the largest stake in the project at 37 percent, withdrew its support on July 1. The TID and MID followed suit two weeks later on July 14th. With financial support severed by three significant partners, the entire project collapsed the following day as TANC general manager Jim Beck announced termination of the project, including engineering and EIR/EIS reports.

And that marked the demise of what many critics called, “The Power Line to Nowhere.”

Reasons Why the TANC project Imploded:

1. TANC was not fair and not accepting responsibilities or negative impacts. It is bad public policy to place lines in communities where there is no access to the energy provided and making these communities bear all of the negative burdens, while the cities that benefit suffer no impacts. There are existing rights of way, possibilites of co-location and as much non-densely populated areas in Sacramento where lines could have been placed. If they truly were alternate routes, why do all 3 run through Yolo County and none through Sacramento? All of the lines are generally in the same area. It is a lose-lose situation for many communities, and win-win for many cities that would receive the power and no burden of negative impacts.

2. No notification to local governments, or very vague notification, of lines going over city and county owned properties. No notification to school districts (the proposed central 2 line was directly across the street from Harper Jr. High in Davis). TANC should have worked with the public and city and county governments to developed route criteria before issuing proposed routes.

3. Lack of integrity with public image of TANC and the TANC/Navigant relationship. TANC consistently called itself a not-for-profit agency. But it has just one employee, general manager, James Beck, and his desk is in the Navigant offices. The Navigant web site indicates that it is a worldwide consulting conglomerate that is a publicly traded company on the New York Stock Exchange. It states on its web site, something to the effect that its foremost goal is “maximizing shareholder interests,” which certainly sounds like a profit-making agenda. Perhaps there is nothing wrong with this relationship but the public perception is that of mistrust. If in fact, the tangled relationship turned out to be private, then a private company would not and should not have rights of eminent domain.

4. Lack of transparency despite many requests from the public to have access to engineering and environmental studies, maps of existing transmission lines, and cost/benefit analyses (such as rate increases), TANC did not provide information requested. There was also a failure to provide evidence of congestion and reliability of the current transmission system.

5. Mismanaged planning, as there were no contracts signed for renewable power supply. CEQA regulations require jointly, plans/contracts for power supply and transmission lines.

6. No state regulation of publicly-owned utility agencies. The controversial TANC plan brought to the attention of lawmakers this egregious oversight. State Senator Lois Wolk (D-Davis) introduced legislation (SB 460) to close a loophole in existing state law that exempts publicly-owned utilities from state oversight in planning and location of high voltage transmission lines. Senator Wolk states, “While this project is no longer moving forward, the root problem is still there,” she said. “The TANC project was a cautionary tale of what can happen when local public utilities aren’t held to the same state oversight and coordination as their investor-owned counterparts. The planning process for local public utility projects remains horribly flawed.”

Most opponents of the TANC project have a history of conservation and support the need for renewable energy, but this plan was fatally flawed.

Although it is lights out for TANC, many skeptics now keep a watchful eye on the federal government’s stimulus plan which includes high-voltage transmission projects for renewable energy.

Written by Nora Shimoda, Journalist, Media Strategist, Davis/Yolo County Ad Hoc Coalition opposing TANC.

TANC pulls plug

TANC project ended

TANC power plan plug pulled

TANC tanks as the public gets involved

TANC Powerline project goes dark

NorCal power agency abandons power line project

From “Silicon Valley Mercury News” (ummm, whatever happend to San Jose Mercury News?):

Controversial power line project canceled

By Jeanine Benca,

Bay Area News Group

Posted: 07/15/2009 07:00:00 PM PDT

Updated: 07/15/2009 09:05:35 PM PDT

The plug has been pulled on a controversial 600-mile power line project that would have delivered renewable energy to the city of Santa Clara and other parts of Northern California, officials from the Transmission Agency of Northern California said Wednesday.

The announcement to terminate the $1.5 billion project, made after a special meeting of the 15 public power providers who make up TANC, was spurred by the withdrawal of utility districts in Modesto, Turlock and Sacramento, said TANC spokesman Brendan Wonnacott.

The agency had hoped by 2014 to connect power lines from yet-to-be-developed wind and solar farms in northeastern California to power-thirsty urban areas elsewhere in Northern California. The lines would have wound through parts of the Central Valley and Bay Area, cutting through more than 50 agricultural and viticultural tracts in Livermore and Pleasanton, to bring energy to the city of Santa Clara and other TANC members.

The Sacramento Municipal Utility District abruptly backed out of the project earlier this month, citing financial and regulatory concerns. The district also voiced doubts over whether northeastern Lassen County — the proposed starting point for the transmission line system — was the best site for renewable energy.

On Monday, the Modesto and Turlock Irrigation Districts followed suit.

Read the rest of this entry »

Just heard from Lisa Goza, of Stop TANC, that Modesto and Turlock dropped out, following SMUD’s withdrawal last week.  That’s supposedly 70% of the $$$$ for the project — gone!   Redding is hanging in there, but the STOP TANC crew is on them and… well… maybe tomorrow morning at the TANC board meeting, they’ll give it up, throw in the towel, and tank TANC.  It’s so close…

This group is amazing, so many people spread out over such a great distance, and they’re so wildly diverse, united against this obscene project built on lies — they’ve exposed the TANC project for what it is,  and it is falling… this is a case study in how to organize for impact.

Soon… it’s time for the silver stake!

Yolo supervisors reject transmission power lines

By LIZETH CAZARES/Lcazares@dailydemocrat.com
Created: 07/14/2009 03:49:59 PM PDT

The Yolo County Board of Supervisors attempted to short out a proposed high-voltage power line by sending a letter recommending the end of the long-debated project.

TANC, or the Transmission Agency of Northern California, is proposing to erect high-voltage power lines across Yolo County in an attempt set in place future renewable energy projects scattered throughout the state.

On June 30, TANC representatives spoke with Yolo County about the project, but after a lengthy discussion the board was not convinced the project was a good idea. While supervisors emphasized their commitment to renewable energy, they questioned the feasibility of the project and expressed their displeasure with TANC’s inability to work with local governing agencies.

Now, after the Sacramento Municipal Utility District, Turlock Irrigation District and the Modesto Irrigation District all withdrew from the project, the board decided to officially request that TANC end its project.

On Tuesday the board recommended to send a letter requesting that officials put an end to the project and adopt protocol for working with local government in the future.

Two more players drop out of TANC proposal

* By Scott Mobley

Two more TANC power line backers have defected, perhaps dooming a power line that has galvanized grass roots opposition from Cassel to Davis and beyond.

The Transmission Agency of Northern California board will hold a special telephone meeting this morning to consider whether to go ahead with a proposal to build the $1.5 billion, 600-mile-long power line.

Members of the public may participate in the meeting by telephone from the Redding Electric Utility office at City Hall and from 16 other TANC member offices around Northern California.

Turlock Irrigation District and Modesto Irrigation District on Tuesday followed the Sacramento Municipal Utility District in pulling out of planning for the high-voltage power line, slated to stretch from Lassen County to Silicon Valley.

Read the rest of this entry »