Legalectric

Harris McDowell runs the Senate Energy Committee here in Delaware. There’s a ongoing spat, seems he isn’t excited about enforcing what’s affectionately known as H.B. 6 (LINK HERE), which is how the Bluewater Wind project was put on the map. Bluewater won a level playing field RFP competition between its proposal and NRG’s IGCC/coal gasification plant and a ho-hum gas plant. So he’s decided to have hearings about it — why, I don’t know, because everything’s been public record, the PSC has held so many hearings, even I’ve testified three times and written too many comments. So why? Only reason I can see is delay. Alan’s been dealing with him for some time, and it seems his primary constituent is Delmarva Power. Check Green Delaware Alert 581 for more on that.

I’m inclined to agree. What I’ve seen is that Delmarva Power is resisting, they do NOT want to sign a PPA with Bluewater Wind, they do NOT want offshore wind for Delaware. The state legislature, reeling from huge price increases that came with deregulation (and that deregulation bill was thanks to Harris McDowell), passed HB 6, which required that Delmarva do an RFP to stabilize cost for the “SOS” customers, “Standard Offer Service,” but the other meaning is as relevant. These are the residential customers hardest hit. There was a level playing field comparison of the three bidders, which were NRG with a coal gasification plant (oh, give me a break…), Conectiv with more natural gas, and Bluewater Wind with offshore wind (in Delaware, the wind is offshore, and onshore, it just doesn’t cut it). Bluewater won, following a very detailed, careful and thoughtful analysis by PSC staff, the PSC approved it, but it takes approval of four agencies, and at the meeting of the Gang of Four, the Gov’s Office of Management & Budget rep made a motion to table the whole thing and it was tabled! Since Bluewater won at the PSC, it’s sour grapes everywhere, and the people are clearly shouting, “WE WANT WIND” and the legislature is getting into the middle of it rather than follow HB6 (because they don’t like the results — rumor has it that this was desgined for NRG to get an IGCC plant and that didn’t work so they’re trying to throw a wrench in the gears — and to this observer, that rumor makes sense, whereas to the rest of the world, IGCC is senseless). McDowell doesn’t get that it’s not binary — he tosses out “conservation” and “efficiency” when faced with new generation of a type he doesn’t like, and doesn’t get that it’s electricity but it’s NOT binary, that we need it all, and we need it now. We need conservation, we need efficiency, we need wind and we need the gas for backup, and then we can shut down the coal plants (which is something he NEVER talks about, fancy that). So, here are primary documents shaping the fracas:

Delmarva RFP

Delmarva IRP

Delaware PSC Staff Recommends Wind/Gas Combo

Having experienced the first of Harris McDowell’s Senate Energy “public hearings” today, well… it was sort of like testifying about transmisison at Rep. Bill Hilty’s House Energy Committee… let’s start at the beginning.

Alan and I got there early, not an easy or common thing for either of us. We signed in, and I checked the box that said I wanted to speak (with a BIG green X) and roamed around. It was standing room only and were lucky enough to find a seat, a desk on the Republican side of the Senate chamber, B. Gary Simpson’s desk. Only three Energy Committee members were present! Maybe they didn’t want to join in the farce? We sat and sat and sat, listening to speaker after speaker, mostly the “usual suspects” in Delaware, and suddenly he says, “We’ve gone through the list,” and he held it up, and started to close it down. At that point, I hollered out from the floor, “I don’t think so, I signed up as we came in.” He said that we had to sign up by 5:00 p.m. to speak ?? say what?? Where was that publicized and if that was the case, why sign in lists at the door with a box to check to speak? A young staffer ran up to confer, and it turns out there’s an “A” list and a “B” list.

Really! There was the list prepared beforehand, the “A” list that he called on at the “public hearing,” and then there was the “B” list, the list of the public who had made the effort and travelled to show up at the hearing and who had signed up to speak on the list they provided. And he calls this a “public hearing.” What a farce.

Alan had questions last week and had been called back by McDowell’s staff guy, and I know he had actually talked to him, the guy on the phone was very gracious and helpful in answering Alan’s questions, but I also know that he was asked if he wanted to speak, if he was planning on it, and Alan said he didn’t know, he wanted to see how it goes (and at the time, I thought that was strange, and noted it and asked him about it, wanting to know why he didn’t demand time to speak), but apparently he’d been put on the “A” list anyway, even though he didn’t ask. So Alan was called and he spoke. I’d signed up at the door and was not called, and the same goes for the others who signed up at the door and had not been put on the “A” list. I stuck to my guns and probably wore out my welcome in Delaware, but it’s not a small thing to shut out the public and include only those few you want to speak. Worse, he’s holding a series of “public hearings” but this one, of at least five, is the only one where the public can speak! Suffice it to say, this did not sit well, and I stuck to my guns and after some mild protestations and a few hostile glares, he moved over to the real list, and went through it, protesting repeatedly that it was late, that we didn’t have time for them all, and of course I was last. Thankfully, though, after I spoke, he asked if there was anyone else, and a representative of the Delaware Nurse’s Association spoke about the health risks associated with coal, and it was GREAT! Perfect ending to a really stupid night…

I’m writing up my comments, what I’d planned to say, and I’ll post that tomorrow, but in the meantime, what I did say, when finally given the “opportunity” to speak, was in essence that he’s obviously got an “A” list and a “B” list and that’s not OK, that this process seemed to be a delay and that they should just get to it and order that the agencies approve the wind project, and most importantly, that his sense of procedure was appalling, that he’s shutting the public out. They need to know that the people of Delaware have spoken and they want wind, and shutting them out won’t change that, can’t be avoided, the people want wind, so get to it, just do it and make it happen.

More tomorrow…

OH, I almost forgot, one of these guys for Harris McDowell, III:

News over the wire today, Rep. Patti Fritz has authored and introduced HF 2601, a stealth interim introduction, hmmmm…

H.F. No. 2601, as introduced – 85th Legislative Session (2007-2008)
Posted on Jan 22, 2008

1.1 A bill for an act
1.2 relating to natural resources; removing certain land in the Cannon River area
1.3 from the wild and scenic rivers program.
1.4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

1.5 Section 1. CANNON RIVER WILD AND SCENIC RIVERS DESIGNATION.
1.6 The commissioner of natural resources shall remove the following land within
1.7 the Cannon River wild and scenic river area from the Minnesota wild and scenic rivers
1.8 program under Minnesota Statutes, sections 103F.301 to 103F.345: all property west of
1.9 Faribault Boulevard, north of 164th Street, and south of 158th Street. The commissioner
1.10 shall amend Minnesota Rules, chapter 6105, and the management plan for the area to
1.11 reflect this change.
1.12 EFFECTIVE DATE.This section is effective the day following final enactment.

Whatever is she thinking? This bill would remove a chunk of the Cannon River from Wild & Scenic designation. Why? I can’t imagine any other reason than that the Wild & Scenic designation gets in the way of something some developer wants to do. What gives?

Here’s a google map: 158th & Hwy. 3

Here’s the street view (cool option, eh?), and isn’t this right by the park:

STREET VIEW

(Now, if I can just learn how to embed this stuff)

Mikey Bull’s been busy… he was promoting this last night, though earlier he’d said it would be a while before something came out in writing.  Well, wait no longer…

Here it is, warm off the press:

Cover Letter to Senate and House Energy Chairs

Preliminary Climate Change Action Plan

Here’s what jumps out at me that sucks (yes, Mikey, to critique is to live, it is my job):

Remove the barriers to and encourage development of Combined Heat and Power (CHP) projects.

Repeal the state’s moratorium on new nuclear energy facilities.

Reduce regulatory barriers by eliminating the Certificate of Need requirement for generation and transmission facilities needed to meet the renewable energy standard.

Create renewable energy “zones” and “corridors” to streamline the regulatory, environmental and siting review process for new renewable energy generation facilities and transmission lines.

Support the creation of incentives aimed at bioenergy facilities that use biomass as an energy feedstock to lower their carbon footprint.

Define wastwater sludge and byproducts as biomass and define wastewater sludge and the organic portion of solid waste and organic byproducts of each as renewable fuels.

Cap and Trade Implementation – SHOULD BE CAP AND TAX!

Advance Coal and Carbon Capture and Storage — the Midwest Regional Commitment on coal use for electricity generation is that by 2020, all new coal gasification and coal combustion plants will capture and store CO2 emissions.

And the best thing, I guess the only thing that excites me about this plan, is recycling increase, although I’d previously heard it was 75%, not 50%:

• Expand waste reduction, recycling, composting and management efforts:

• Increase further recycling and source reduction rates in Minnesota. Minnesota has reduced GHG emissions from the solid waste sector by 14% since 1990 by having the second highest recycling rates in the country and landfill gas emissions controls.

• Support increased source reduction and the interim goal of achieving a 50% statewiderecycling rate by January 2011, through efforts including:

– Recycle More Minnesota Campaign
– Office paper and junk mail reduction
– Waste reduction in the grocery sector
– Electronics recycling
– Telephone book reductions
– Increased beverage container recycling

OK, folks, comments???

Above — the mittens (approximation) the judge was wearing at the hearing, big brown leather — DURING the hearing, yes, it was indeed a cold day in hell…

The “siting” hearing for Excelsior Energy’s Mesaba Project was Tuesday and Wednesday, that’s the long dead IGCC/coal gasification plant that keeps hanging on as we beat that equine’s bloated and stinky carcass. It was bizarre, but it’s hard to tell how far back to go in detailing the bizarreness… and I’m a little cranky, having sat most of the 20 degrees below zero day in an unheated gym attached to the Hoyt Lakes Arena (they couldn’t turn the heat on because when they did, the blowers made so much noise we wouldn’t hear anything but the blowers). The first day went pretty well, we did get through a few witnesses with some good issues raised in the record, so good for our side that the second day the process was shut down. They rammed through all the witnesses through at once, before any public questioning was allowed, and it wasn’t until around 7 p.m. or later that we could get started.

How far back to go… It really started back in Big Stone II, I think, but I’ll stick to this docket for now… First large weirdness in this docket was the ALJ’s Prehearing Order granting intervenor status to Xcel, Minnesota Power, and Public Energy-Mesaba (coalition of groups actively challenging Mesaba), and then there was the Prehearing Order that those not submitting prefiled testimony would no longer be intervenors and could not participate as intervenors, only as members of the public! Really!

Fourth Prehearing Order

In that Fourth Prehearing Order, it was noted that there would be a Phase I and Phase II as provided by Minn. R. 1405.1500:

1405.1500 SEQUENCE OF PROCEEDINGS.

Subpart 1. Recess. All hearings shall recess at 11:00 p.m.
unless the administrative law judge determines that the public
interest will best be served in any given hearing by continuing
the hearing beyond 11:00 p.m. The administrative law judge may,
in the judge’s discretion, order a time and place for a
continuance of that hearing.

Subp. 2. Two-stage hearing. The hearing may be scheduled
in two stages. The first stage shall be for the purpose of
introducing into evidence all of the prefiled direct testimony
of the parties, and the cross-examination of each witness by all
other parties. The subsequent stage shall be for the purpose of
allowing all other interested persons to present their direct
testimony and to question witnesses that offered testimony
during the first stage of the hearing process.

Nothing contained herein shall be interpreted so as to
prevent the public from being present during the first stage of
the proceedings or to question witnesses at an appropriate time
during the first stage of the proceedings, should time allow.
The administrative law judge may give priority to those members
of the public desiring to ask questions which would enable them
to better prepare for cross-examination during subsequent stages.
It is the intended purpose of the two-stage process to establish
specific hearing dates for the primary purpose of public
participation in order to avoid inconveniencing the general
public by requiring them to wait until late at each hearing
before having opportunity to offer direct testimony and ask
questions. However, at the discretion of the administrative law
judge, the applicant and other parties may present a brief
summary of the prefiled direct testimony at the beginning of
each session.

Subp. 3. Additional hearing dates. Nothing contained
herein shall be interpreted so as to prevent the administrative
law judge from establishing additional hearing dates on motion
or at the judge’s discretion.

STAT AUTH: MS s 116C.66; 216E.16

HIST: L 1984 c 640 s 32; 17 SR 1279
Current as of 08/21/07

About this time, I saw trouble coming… So anyway, when Xcel, Minnesota Power and Public Energy-Mesaba did not submit Pre-Filed Testimony, we got the ax, we were out as Intervenors. THERE WERE NO INTERVENORS IN THE EXCELSIOR ENERGY – MESABA PROJECT DOCKET!!! That happened in Prehearing Order 5:

Fifth Prehearing Order

which said, in pertinent part:

4. Because they have failed to file testimony when due, Xcel Energy,
Minnesota Power, and Public Energy—Mesaba are denied further participation as
parties in this matter. They shall remain on the service list and may participate as
members of the public and interested persons as set forth in the First Prehearing Order
(January 19, 2007).

So let’s go back to that First Prehearing Order:

First Prehearing Order

Note the foreshadowing:

3. Any person desiring to become a formal party must file a Petition to
Intervene by February 12, 2007. Any person petitioning to intervene after that date may
be restricted as to the scope of their participation. Any existing party that wishes to
object must file an objection within seven days of service of the petition. Petitions to
Intervene should comply with Minn. R. 1400.6200.

5. Members of the public need not become formal parties to participate in the
hearings. Members of the public may offer either oral or written testimony, may offer
exhibits for inclusion in the record and may question the parties’ witnesses as set forth
below.

7. As suggested by Excelsior Energy, and for the greatest convenience of
the public, the two-stage hearing procedure permitted by Minn. R. 1405.1500, subp. 2,
will be used. In Stage One, the prefiled direct testimony of each party’s witnesses shall
be admitted and those witnesses shall be cross-examined by the other parties. If time
allows, limited questioning by other interested persons may be allowed. In Stage Two,
other interested persons may present testimony and may question the witnesses who
offered testimony during Stage One. Interested persons offering testimony may be
questioned by other persons at the hearing.

In the First Prehearing Order, there were to be days and days of hearings, more than two weeks worth! Given there were 20 or so witnesses, that sounds workable:

April 2-6, 2007 Stage One sessions in St. Paul, Taconite, and/or
Hoyt Lakes

April 9-11, 2007 If necessary, additional Stage One sessions in
St. Paul, Taconite, and/or Hoyt Lakes

April 20-24, 2007 If necessary, additional Stage One sessions in
St. Paul, Taconite, and/or Hoyt Lakes

April 25-26, 2007 Stage Two sessions in Taconite and/or Hoyt
Lakes

April 27, 2007 If necessary, additional Stage Two sessions in
Taconite and/or Hoyt Lakes

But all the Intervenors were eliminated and so was the public vetting and gutting of Excelsior Energy’s Mesaba Project. That got it down to two days… TWO DAYS!!!!!! Twenty witnesses in two days. Yup, great record we’ve got here. So under the rules, Minn. R. 1405.1500, Subp. 3, seems it’s time for a Motion…

Stay tuned… highlights and lowlights of the hearing to follow …