The undermining continues — if ALJs are exempt from “competitive service” and scrutiny, can’t have “complicated and elaborate examination processes or rating procedures” now, can we.   Run of the mill immigration proceedings are before ALJs via Executive Office for Immigration Review (EOIR).  There are not enough immigration ALJs to handle the load, so they are moving them all over the country (don’t see a “help wanted” posting here!).  Do ya think there could there be some connection?  Heaven forbid someone be qualified, that’s the last thing this administration wants, look no further than judicial nominations.

Notice how “Presidential Actions” has disappeared from website menu options?!?!?!  After the inauguration, the bigliest of inaugurations, I was tracking this daily, and a few months in, distraught and disgusted, I couldn’t keep up, so I cannot report when this change occurred. Apologies for falling down on the job!

Anyway, read this recent Executive Order:

Executive Order Excepting Administrative Law Judges from the Competitive Service

Section 1Policy.  The Federal Government benefits from a professional cadre of administrative law judges (ALJs) appointed under section 3105 of title 5, United States Code, who are impartial and committed to the rule of law.  As illustrated by the Supreme Court’s recent decision in Lucia v. Securities and Exchange Commission, No. 17-130 (June 21, 2018), ALJs are often called upon to discharge significant duties and exercise significant discretion in conducting proceedings under the laws of the United States.  As part of their adjudications, ALJs interact with the public on issues of significance.  Especially given the importance of the functions they discharge ‑‑ which may range from taking testimony and conducting trials to ruling on the admissibility of evidence and enforcing compliance with their orders ‑‑ ALJs must display appropriate temperament, legal acumen, impartiality, and sound judgment.  They must also clearly communicate their decisions to the parties who appear before them, the agencies that oversee them, and the public that entrusts them with authority.

Previously, appointments to the position of ALJ have been made through competitive examination and competitive service selection procedures.  The role of ALJs, however, has increased over time and ALJ decisions have, with increasing frequency, become the final word of the agencies they serve.  Given this expanding responsibility for important agency adjudications, and as recognized by the Supreme Court in Lucia, at least some ‑‑ and perhaps all ‑‑ ALJs are “Officers of the United States” and thus subject to the Constitution’s Appointments Clause, which governs who may appoint such officials.

As evident from recent litigation, Lucia may also raise questions about the method of appointing ALJs, including whether competitive examination and competitive service selection procedures are compatible with the discretion an agency head must possess under the Appointments Clause in selecting ALJs.  Regardless of whether those procedures would violate the Appointments Clause as applied to certain ALJs, there are sound policy reasons to take steps to eliminate doubt regarding the constitutionality of the method of appointing officials who discharge such significant duties and exercise such significant discretion.

Pursuant to my authority under section 3302(1) of title 5, United States Code, I find that conditions of good administration make necessary an exception to the competitive hiring rules and examinations for the position of ALJ.  These conditions include the need to provide agency heads with additional flexibility to assess prospective appointees without the limitations imposed by competitive examination and competitive service selection procedures.  Placing the position of ALJ in the excepted service will mitigate concerns about undue limitations on the selection of ALJs, reduce the likelihood of successful Appointments Clause challenges, and forestall litigation in which such concerns have been or might be raised.  This action will also give agencies greater ability and discretion to assess critical qualities in ALJ candidates, such as work ethic, judgment, and ability to meet the particular needs of the agency.  These are all qualities individuals should have before wielding the significant authority conferred on ALJs, and each agency should be able to assess them without proceeding through complicated and elaborate examination processes or rating procedures that do not necessarily reflect the agency’s particular needs.  This change will also promote confidence in, and the durability of, agency adjudications.

Sec. 2Excepted Service.  Appointments of ALJs shall be made under Schedule E of the excepted service, as established by section 3 of this order.

Sec. 3Implementation.  (a)  Civil Service Rule VI is amended as follows:

(i)    5 CFR 6.2 is amended to read:

OPM shall list positions that it excepts from the competitive service in Schedules A, B, C, and D, and it shall list the position of administrative law judge in Schedule E, which schedules shall constitute parts of this rule, as follows:

Schedule A.  Positions other than those of a confidential or policy-determining character for which it is not practicable to examine shall be listed in Schedule A.

Schedule B.  Positions other than those of a confidential or policy-determining character for which it is not practicable to hold a competitive examination shall be listed in Schedule B.  Appointments to these positions shall be subject to such noncompetitive examination as may be prescribed by OPM.

Schedule C.  Positions of a confidential or policy-determining character shall be listed in Schedule C.

Schedule D.  Positions other than those of a confidential or policy-determining character for which the competitive service requirements make impracticable the adequate recruitment of sufficient numbers of students attending qualifying educational institutions or individuals who have recently completed qualifying educational programs.  These positions, which are temporarily placed in the excepted service to enable more effective recruitment from all segments of society by using means of recruiting and assessing candidates that diverge from the rules generally applicable to the competitive service, shall be listed in Schedule D.

Schedule E.  Position of administrative law judge appointed under 5 U.S.C. 3105.  Conditions of good administration warrant that the position of administrative law judge be placed in the excepted service and that appointment to this position not be subject to the requirements of 5 CFR, part 302, including examination and rating requirements, though each agency shall follow the principle of veteran preference as far as administratively feasible.

(ii)   5 CFR 6.3(b) is amended to read:

(b)  To the extent permitted by law and the provisions of this part, and subject to the suitability and fitness requirements of the applicable Civil Service Rules and Regulations, appointments and position changes in the excepted service shall be made in accordance with such regulations and practices as the head of the agency concerned finds necessary.  These shall include, for the position of administrative law judge appointed under 5 U.S.C. 3105, the requirement that, at the time of application and any new appointment, the individual, other than an incumbent administrative law judge, must possess a professional license to practice law and be authorized to practice law under the laws of a State, the District of Columbia, the Commonwealth of Puerto Rico, or any territorial court established under the United States Constitution.  For purposes of this requirement, judicial status is acceptable in lieu of “active” status in States that prohibit sitting judges from maintaining “active” status to practice law, and being in “good standing” is also acceptable in lieu of “active” status in States where the licensing authority considers “good standing” as having a current license to practice law.  This requirement shall constitute a minimum standard for appointment to the position of administrative law judge, and such appointments may be subject to additional agency requirements where appropriate.

(iii)  5 CFR 6.4 is amended to read:

Except as required by statute, the Civil Service Rules and Regulations shall not apply to removals from positions listed in Schedules A, C, D, or E, or from positions excepted from the competitive service by statute.  The Civil Service Rules and Regulations shall apply to removals from positions listed in Schedule B of persons who have competitive status.

(iv)   5 CFR 6.8 is amended to add after subsection (c):(d)  Effective on July 10, 2018, the position of administrative law judge appointed under 5 U.S.C. 3105 shall be listed in Schedule E for all levels of basic pay under 5 U.S.C. 5372(b).  Incumbents of this position who are, on July 10, 2018, in the competitive service shall remain in the competitive service as long as they remain in their current positions.

(b)  The Director of the Office of Personnel Management (Director) shall:

(i)   adopt such regulations as the Director determines may be necessary to implement this order, including, as appropriate, amendments to or rescissions of regulations that are inconsistent with, or that would impede the implementation of, this order, giving particular attention to 5 CFR, part 212, subpart D; 5 CFR, part 213, subparts A and C; 5 CFR 302.101; and 5 CFR, part 930, subpart B; and

(ii)  provide guidance on conducting a swift, orderly transition from the existing appointment process for ALJs to the Schedule E process established by this order.

Sec. 4General Provisions.  (a)  Nothing in this order shall be construed to impair or otherwise affect:

(i)   the authority granted by law to an executive department or agency, or the head thereof; or

(ii)  the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b)  This order shall be implemented in a manner consistent with applicable law and subject to the availability of appropriations.

(c)  This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

DONALD J. TRUMP

THE WHITE HOUSE,

July 10, 2018.

LISTEN HERE: http://minnesotapuc.granicus.com/MediaPlayer.php?event_id=1856

It’s pretty disturbing.  Today started out with the Commission asking Intervenors to pick their least awful route option.  WHAT?!?!  That is NOT how a line is chosen. I think they’re using that to build a “record” (NOT!) for whatever decision they may make.

As the Commission was reminded, the Commission is to choose a route, only AFTER a Certificate of Need is granted, based on the criteria in the statutes and rules.  Commissioner Sieben turned to a pretty manipulative attempt at burden of proof shift, looking for a statement to get them off the hook.  NO!

NO?  That’s correct.  This is the Commission’s job, and if there’s no need, deny the application.  If there’s no acceptable route, deny the application.  The ALJ made a Recommendation, and the Commission has to deal with that.

Then there’s the push about System Alternative SA-04.  That route would go right through my Association of Freeborn County Landowners’ community, and AFCL filed an Exception regarding that SA-04 route:

Line 3 – Exceptions to ALJ’s Report

Sieben keeps saying it’s a “difficult decision.”  Yeah, it is.

Lipschultz keeps asking which alternative is least objectionable.  NO. JUST STOP THAT!

Fair use – from Enbridge’s Line 3 website

Looks like a lot of folks are angry with Judge O’Reilly’s Enbridge Line 3 decision.

Findings of Fact, Conclusions of Law, and Recommendation

Oh well… she had to make some decision and I think she did an excellent job of weighing all the factors, getting into the details in a very difficult case, and come up with a Recommendation that pisses everyone off!  That’s something that takes a LOT of work and is very hard to do!

Here’s a post on it with an insightful/inciteful framing of the decision and what it means:

Pipeline “poison approvals”: a new trend?

In the press, people are getting wound up.  From MPR:

Dayton: No ‘viable way’ to build new Line 3 pipeline on current route

From the MPR piece: The Leech Lake Band of Ojibwe has denounced the judge’s recommendation, calling it “a clear attack on sovereignty and Tribal communities.”

My take is that O’Reilly laid out the Leech Lake Band’s sovereignty and power and the lay of the land as it exists now — the easements are there now, allowing Enbridge to use the land until 2029.  This recommendation sets the stage for the easement renegotiation in 2029, where the Band has power to say “NO!” and Enbridge is very afraid of that, facing either outright refusal or greatly increased easement payment as the obvious outcome.  This Recommendation, and use of the existing easement gives Leech Lake greater leverage going forward, and might even move those easement negotiations up in time.  If that renegotation is a decade in the future, Enbridge will also by then be operating in a very different world than exists right now, with decreased oil use and demand.  O’Reilly also noted that if a new corridor were used with this, given state non-proliferation, Enbridge would logically seek to use that corridor for all its pipelines going forward.

Along this line (but note that LaDuke, Honor the Earth, is the one quoted, and there are no quotes from Leech Lake or Fond du Lac tribal officials, who should be the ones weighing in here):

Minnesota Pipeline Ruling Could strengthen Tribes’ Legal Case Against Enbridge Line 3

And more, this with quotes from tribal officials:

Major pushback against Line 3 recommendation

In a statement Tuesday, April 24, the Leech Lake Band of Ojibwe described the recommendation as “anti-sovereignty” and said that it “puts undue burden on the Leech Lake Band of Ojibwe to hold the risk of the pipeline replacement and to revoke the permit.”

“The judge has made this horrific recommendation without even holding a single ALJ hearing on the Leech Lake Reservation and gave a recommendation on a route that has not had the same level of environmental review,” wrote Ben Benoit, the band’s environmental director.

Once more with feeling — If you have comments, objections, there’s been a notice issued regarding submission of “Exceptions” which are due May 9, 2018:

20184-142282-01_Exceptions Notice

RateCase_MankatoHearing

Last night there was a hearing in Mankato on the Xcel Energy rate case (Docket E002/GR-15-826).  Public participation in Public Utilities Commission dockets is supposed to be a happenin’ thang…   But there were no witnesses to question yesterday at the public hearing, and the Xcel representative who was there could not answer questions.  Worse, there was no commitment to have witnesses available to the public at the public hearings, and only advice that the public could attend the evidentiary hearing.  ATTEND?!?  When might we be able to question witnesses?

Sent this Data Practices Act Request this morning to round up the Information Requests and Responses regarding transmission, transmission riders, MISO and FERC:

Data Practices Act Request

Xcel Energy wants to shift its transmission rate recovery from CWIP and AFUDC to general rates, but there was no one there to talk about it.  These are the MVP projects at issue, in Schedule 26A, below, which are worked into MISO tariff and FERC blessed:

MVP ProjectsAnd here’s the projects in Schedule 26, below, but hmmmm, no project costs shown (click for larger view):

Sched 26I entered these exhibits:

Exhibit 1A – XcelCover_e21_Request for Planning Meeting and Dialogue – PUC Docket 14-1055

Exhibit 1B – e21_Initiative_Phase_I_Report_2014 – Xcel Filing PUC Docket 14-1055

Exhibit 2_MISO Schedule 26A Indicative Annual Charges_02262014

Exhibit 3 – FERC EL-14-12-002_ALJ Order – ROE on MISO Transmission

Next meeting I’ll have some more:

e21_MikeBull_Center for Energy and Environment

MISO Schedule 26 Indicative Annual Charges

1Q_Earnings Release Presentation_5-9-2016_1500085150

Investor Presentation – NYC-Boston_3-1-2=16_1001207698

Investor Presentation – NYInvestorMtgs_5-10-2016_1500085349

2015 10K – Xcel Energy

2015 10K – NSP

Back to last night’s hearing…

Check the rules about public participation:

1400.6200 INTERVENTION IN PROCEEDINGS AS PARTY.

Subp. 5.  Participation by public.

The judge may, in the absence of a petition to intervene, nevertheless hear the testimony and receive exhibits from any person at the hearing, or allow a person to note that person’s appearance, or allow a person to question witnesses, but no person shall become, or be deemed to have become, a party by reason of such participation. Persons offering testimony or exhibits may be questioned by parties to the proceeding.

Another, the PUC practice rules:

And yet another:

And this one (though they’ll say it isn’t applicable because a rate case isn’t part o the Power Plant Siting Act):

What about the mediation next week?  How is the public interest represented?
PublicHearingSchedule