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!!!!

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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.

Oh my… look what I found… seems I hit “save” and not “publish” and so here it is, a bit later…

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“We’re connected to you by more than power lines” 

Today is the meeting where Delmarva addresses its plan — will the public be part of this process or will the public be shut out?

The PSC is scheduled to meet at 1 p.m. Tuesday in the Cannon Building hearing room, 861 Silver Lake Blvd., Dover. … Another session is set for the same time and location on May 8 to review staff recommendations on the power plant issue.

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Day of decision ahead for Delmarva Power

State utility regulators poised to recommend new power plant to meet long-term needs

By JEFF MONTGOMERY, The News Journal

Posted Sunday, April 22, 2007

A year-long power plant sweepstakes turns into the home stretch this week, with the Delaware Public Service Commission slated to receive a briefing Tuesday in Dover on Delmarva Power’s long-range plan and need for new electricity supplies.

Two weeks later, PSC members and representatives of three other state agencies are scheduled to tentatively decide whether to refer any of three power plant bids to Delmarva for a long-term power-purchase contract potentially worth billions of dollars.

State lawmakers ordered the bidding for a new Delaware plant last year, in reform legislation prompted by public complaints about a 59 percent jump in Delmarva’s rates after a six-year freeze and deregulation.

Three companies submitted offers, ranging from a small, conventional natural gas turbine for peak power needs to a 200-turbine offshore wind farm and 600-megawatt plant fueled by a clean-burning gas extracted from processed coal.

Delmarva estimated that the new plants could add from $100 million to $5.2 billion to customer costs through the year 2038, and the company opposed any of the three as unnecessary obligations.

“The intent of the legislation was to try to get alternative power that was going to save consumers money,” said Rep. Gerald W. Hocker, R-Ocean View, who chairs the House Energy and Natural Resources Committee. “From what I’ve seen, none of these are going to save money.”

But the PSC staff and consultants recently asked Delmarva to re-examine some assumptions used to judge the bids, moves that could change rankings or results. A separate report released this month recommended a bidding that would include energy sources outside the state.

“A lot of people think it’s going to fall back to the Legislature,” said Sen. George H. Bunting Jr., D-Bethany Beach. “If that does happen, you’re going to have a whole different dynamic.”

The bidding ignited sometimes-passionate debates over energy costs, the state’s economy, air quality, renewable energy supplies and global warming. Weighing in were labor, citizen, environmental and business and health interests.

The Medical Society of Delaware urged officials last month to develop comprehensive energy conservation programs and improved efficiency standards, with “least-polluting” options favored for any new supplies.

“We believe that the three proposals under this RFP [process] would not benefit our customers as far as savings in energy costs,” said Merrie Street, a spokeswoman for Delmarva Power. She added that the company believes the PSC should reject all three even if officials conduct a wider search for supplies.

Still to come is a package of legislation developed by the state’s Sustainable Energy Utility Task Force that would encourage and subsidize consumer conservation, use of energy efficient appliances and development of small-scale renewable electricity supplies such as solar and wind power.

Hocker said he expects to meet with the chairman of that task force, Sen. Harris B. McDowell III, D-Wilmington North, as early as next week.

The PSC is scheduled to meet at 1 p.m. Tuesday in the Cannon Building hearing room, 861 Silver Lake Blvd., Dover. Several other utility issues, including water, wastewater and telephone services, are up for consideration. Another session is set for the same time and location on May 8 to review staff recommendations on the power plant issue.

Copyright ©2007, The News Journal.

IGCC is dead, dead, dead

April 21st, 2007

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In the Sunday STrib (good stuff in the paper lately, they must be working hard to counter the recent axeing of so many class A people):

   “Dead, dead, dead,” said Carol Overland, lawyer for a group of northern Minnesota landowners opposed to the Excelsior project.

“It was on life support before,” she said. “The plug has been pulled and we’re waiting for the inevitable.”

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Crunch time for coal-gas plant

More arguments are ahead before the Excelsior Energy plant on the Iron Range gets a no or a go from state regulators on the first major power plant proposed in Minnesota in three decades.

By Mike Meyers, Star Tribune

It’s become do or die by July for one of the largest economic projects ever proposed for the Iron Range.

Between now and then, the Minnesota Public Utilities Commission will collect one last round of arguments from proponents and opponents of a $2 billion-plus coal-gasification plant near the city of Taconite. The plant would also be the first large-scale power plant built in the state since the 1970s.

The plan recently received a stinging rejection from two administrative law judges who are key advisers to the PUC on the plan.

“It’s fair to say the commission gives a great deal of weight to an administrative law judge decision? Yes,” PUC spokesman Burl Haar said. “Do they always follow it? No.”

The husband-and-wife team leading Excelsior Energy aren’t planning any revisions to win over the state regulators. No changes in design. No cutting what they would charge for power. No alterations in the way they will deal with greenhouse gases.

“We’re not going to redraw the blueprints,” said Julie Jorgensen, who shares the titles of Excelsior chief executive and president with her husband, Tom Micheletti.

The price Excelsior is asking Xcel Energy to pay for power is the price needed to make the plant viable, Jorgensen said.

“There’s no fudge factor here,” she said.

Opponents of the Excelsior plant, who argue that it’s not needed, is too costly and offers a sketchy plan for disposing of greenhouse gases, see the judges’ decision as fatal to the project.

“Dead, dead, dead,” said Carol Overland, lawyer for a group of northern Minnesota landowners opposed to the Excelsior project.

“It was on life support before,” she said. “The plug has been pulled and we’re waiting for the inevitable.”

Among the judges’ conclusions: The plant is not as new or innovative as promised, its power would cost more than alternative sources of electricity and its plans to keep some plant-generated carbon dioxide out of the atmosphere would cost more than $1 billion.

Jorgensen and Micheletti argue that the judges were mistaken.

Xcel also argues that the power is not needed.

In 2003, however, the state Legislature said Xcel will have to buy the power from the plant if the PUC finds the plant in the public interest.

The coal-gasification technology, which Excelsior described as innovative, transforms pulverized coal into a cleaner-burning gas. But in testimony before the law judges, critics said the Excelsior design was not environment-friendly and would generate as much greenhouse gas as any other coal plant. The law judges agreed.

“The record was closed when an independent group said the Excelsior plan is innovative,” Micheletti said.

He cited a trade group announcement last month by the Electric Power Research Institute certifying the Excelsior plant as the first coal-gasification project in the nation to issue “pre-design” specifications that can be used as a template for other projects.

State law gives regulators leeway on approving power plants, even if they’re not the lowest-cost way to get electricity, if they’re innovative and offer environmental and other benefits.

Jorgensen and Micheletti also will argue to the PUC that regulators should not compare the cost of energy from Excelsior with conventional coal plants — which are less expensive but produce more pollution and which Xcel has vowed not to build in the future.

“We find ourselves shadow boxing,” Jorgensen said of his project being compared with older technology that has no future in Minnesota.

She also said Excelsior is plans to divert 30 percent of the carbon dioxide produced at its plant to pipelines headed for North Dakota and Canada. Oil producers would buy the CO2, a greenhouse gas associated with global warming, to build up pressure in oil fields to help pump out petroleum, she said.

The net cost of the pipeline, after subtracting revenue from CO2 sales, would be far less than $1 billion estimate cited by the judges, Excelsior officials said. They offered no alternative number.

Opponents aren’t impressed by those arguments, however.

Overland said Excelsior has made no clear commitment to building a CO2 pipeline and, even if it did, 70 percent of the greenhouse gases produced by the plant still would escape into the atmosphere. In that event, the plant would be almost as great a contributor to global warming as a coal plant, she said.

Janette Brimmer, legal director for the Minnesota Center for Environmental Advocacy, said Excelsior developers are offering no binding assurances for dealing with greenhouse gases.

“When they flip that switch on, there’s no CO2 being eliminated. It’s just another coal plant,” she said.

Mike Meyers • 612-673-1746 • meyers@startribune.com