Platteville to Dodgeville along U.S. Hwy 151

On Tuesday, Jewell Jinkins Intervenors had filed a Motion to Supplement the EIS in the Cardinal-Hickory Creek transmission line project.

Neither the applicants nor the PSC were enamored with the idea. Here are their responses, filed yesterday:

In short, they say ALJ has no authority to order a Supplement to the EIS, and that anyway, this route idea is not new, is not substantial. Oh, really? And to suggest that we wait, WAIT, until briefing! Wait until the hearing is OVER, to argue that the EIS is inadequate? Oh, right, that’ll go real far. And of course, then it’s not “new,” is it!

We have a status conferenc on June 13, 2019 at the PSC to deal with whatever is left hanging before the following week’s hearing. We’ll see how that goes.

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.

Today was the deadline for filing Exceptions to the Administrative Law Judge’s Recommendation for Line 3 Certificate of Need and Route.  Here’s the ALJ’s Recommendation:

Findings of Fact, Conclusions of Law, and Recommendation

I quick filed an Exception on behalf of Association of Freeborn County Landowners, objecting to inclusion and objecting to any consideration of “System Alternative 04” or SA-04, because no notice was given to landowners in Freeborn County, and well, to any of the landowners along SA-04.

Association of Freeborn County Landowners_ Exceptions to Findings of Fact, Conclusions of Law and Recommendation of ALJ

Friends of the Headwaters proposed SA-04, the only “System Alternative” proposed in the Certificate of Need proceeding.  … sigh…. foisting it elsewhere is not a good strategy.  Search their Exceptions for more info on their rationale – do a search for “SA-04” of this filing:

20185-142900-04_Exceptions – Friends Of The Headwaters

Are there others advocating for AS-04?  Looking… it’ll take a bit.

System Alternative SA-04 is noted 139 times in the ALJ’s Recommendation, and is first mentioned on p. 24:

And the Public Utilities Commission accepted it for further evaluation, but no notice was provided:

But no meetings in the area — and still no notice:

… sigh… on it goes…

And regarding the DNR’s take on SA-04 (will find DNR comment):

Here are all the other references to SA-04 in order — the ALJ does reject it, saying it is not a viable alternative:

And then the ALJ considers comments:

The DNR comments are troubling:

Here’s the actual DNR Comment:

201711-137640-01_DNR’s  Comment (SA-04)

The DNR said about SA-04:

And back to the ALJ’s mentions of SA-04:

 

 

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