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

Issued on: July 10, 2018

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Section 1.  Policy.  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. 2.  Excepted Service.  Appointments of ALJs shall be made under Schedule E of the excepted service, as established by section 3 of this order.

Sec. 3.  Implementation.  (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. 4.  General 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.

Remember when the site of the Elk River garbage burner was a nuclear demonstration plant?  I do, because my father worked on parts of the design for that plant, and characterization after it was operational — I played with the geiger counter as a kid, and the rest is history.  Technical difficulties at the Elk River Nuclear Station were many.  It was shut down and decommissioned in the early 1970s.  Today, that site is now a garbage incinerator.

Remember just one year ago, Xcel Energy going to the Public Utilities Commission to terminate their garbage and turkey shit burning Power Purchase Agreements?

GRE now wants to do the same, and is considering, and is likely to, shut down its Elk River garbage burning operation.  News from Elk River, the red highlights are mine, and (red comments in parens are mine).  If you get confused what’s what, click on link for original article:

Garbage project closure pondered

Great River Energy would like Elk River Resource Recovery Project to become publicly owned

COMMENT PERIOD HAS BEEN EXTENDED – SEE BELOW!

I’ve been hearing a lot of comments about an Inspector General report, in the last few days,for example:

The Public Has Been Ignored for Too Long on Pipelines

Oh so true!!  That’s how it is in all infrastructure proceedings I’ve been involved with and observed. And as I sit here with a terrified doggy coping with a storm and fireworks, I’ve got time to look into it.  She’s watching the storm come in from the west, have the office screen door open, oh, she’s a freakin’.  Not drooling, that’s a start, Xanax might be doing something, but not much…

Anyway, a gas pipeline group I’m in was posting articles about this, and so I started with the post, no link… read the article, with many links, but no link to the Inspector General report, so followed the links, still no report.  OK, fine, it’s GOOGLE TIME!

DOE-OIG Audit-18-33 – FERC’s Certification Process

The bottom line?  There is an Office of Inspector General Audit, a NRDC commissioned report, AND FERC published notice of a comment period, NOTICE OF A COMMENT PERIOD 4/25/2018 AND A COMMENT PERIOD THAT ENDED 6/25.  BUT IT’S BEEN EXTENDED!

Here’s the Notice in the Federal Register, April 25, 2018:

2018-08658_FR 4-25-2018

Here’s the notice of extension of the comment period:

20180523175645-PL18-1-000_Comment Extension

DATES: Comments are due July 25, 2018.

WHO READS THE FEDERAL REGISTER? 

ANYWAY, COMMENT – WE’VE GOT THREE WEEKS!

What did the FERC Office of Inspector General have to say?  In summary:

Opening a new docket to solicit comment on various points would be an appropriate vehicle by which FERC could obtain broad public input and fresh consideration of the substantial recent and ongoing changes in energy industries and what changes in FERC’s certification policy may be appropriate in light of these transitions. The questions that could be posed for comment might raise some of the same types of issues examined by FERC two decades ago, as well as other ones raised by the trends of the past two decades. Examples of such questions include:

 Should FERC develop more prescriptive standards for reviewing applications for new pipelines, in light of the increasingly uncertain forecasts of the need for incremental pipeline capacity?
 Do changes underway in both the gas and electric industries – and the increasingly strong interrelationship between them – warrant a more integrated assessment of sectoral demand and electricity market forces in assessing natural gas pipeline need in Section 7 proceedings?
 Should FERC require regional planning regarding gas transportation resources similar to the regional planning requirement imposed on electric transmission owners?
 Should FERC apply a higher threshold standard and greater scrutiny with respect to demonstration of need, market demand, and public benefit where an affiliate (e.g., gas LDC, electric utility, and/or independent power producer) is involved in the proposed project?
 Should determination of need for a proposed pipeline project be the threshold determination (instead of the current threshold determination, which is whether the project could proceed without subsidies from existing customers)?
 Should FERC’s balancing of benefits against adverse impacts be expanded to include noneconomic factors (e.g., should environmental impacts be among the adverse impacts FERC considers while applying the balancing test)?
 Should FERC give deference to state regulatory approvals (e.g., of contracts between pipeline companies and affiliated shippers, including either local distribution companies or power plants) only when such approvals involve a regulatory review of whether such contracts represent the least-cost method of serving such demand, taking into account other strategies (e.g., energy efficiency in the case of an LDC contract, or dual-fuel capability at the power plant, or application of technologies to increase throughput on existing pipeline capacity)?
 Should FERC require a demonstration of need and public benefit based on a showing that non-pipeline alternatives have been considered as options to meet the demand of shippers (e.g., an integrated gas/electric resource plan or an integrated gas/electric reliability study, energy efficiency programs in the case of an LDC contract, dual-fuel capability at a power plant, or adoption and application of technologies to increase throughput on existing pipeline capacity)?
 Should FERC impose a greater burden to show that a pipeline is needed when it is proposed to gain market share rather than to meet new market demand?
 How should FERC’s policy take into account the views of a variety of interested constituencies (including competitors, customers, landowners, local communities, and others affected directly and indirectly by the pipeline and by the impacts of gas combustion), many of whom may have limited access to resources to participate as full parties in specific pipeline-review cases?
 How should FERC weigh the relative distribution of benefits and burdens across those interested and affected constituencies?
 How should FERC take into account the potential for stranded costs of new pipeline capacity that is later determined to be no longer needed in light of changes in the nation’s current and future energy mix?
 Should FERC consider new ways for pipeline applicants to internalize the long-term monetary and non-monetary risks associated with near-term capacity investment decisions?

There was also a NRDC report, done by Susan Tierney:

AG_FERC_Natural_Gas_Pipeline_Certification

This report was more concerned about broader issues, such as OVERBUILDING, as happened in electric transmission:

Although there is interest in some regions to add pipeline capacity to alleviate wintertime gas-transportation constraints (and the pricing impacts that result), some industry observers are increasingly concerned about the potential to overbuild capacity on the interstate system in light of anticipated transitions in the nation’s energy system in the future.  And there are growing questions about FERC’s balancing of public benefits versus adverse consequences in the context of case-by-case review of applications.

And listing factors that should be considered in updating FERC procedures:

Key Factors Warranting a Refresh of FERC’s 1999 Policy Statement:

Significant industry changes led to adoption of the 1999 Policy Statement, but rapid industry changes and trends since then call into question the policy’s continued appropriateness.

A new, generic proceeding is a better forum than individual case dockets for addressing implications of wide-ranging industry changes and trends.

The meaning and application of FERC goals have evolved over the decades.

The interaction of gas and electric industries suggests a need for integrated assessment of both markets.

Other factors originally highlighted in FERC’s 1999 Policy Statement remain important but warrant a reassessment in light of changes. Changes in the gas and electric industries and an increasingly active and oppositional context in which FERC’s pipeline certification cases occur indicate the need for review of factors FERC initially emphasized. These factors include:

 the relevance and magnitude of pre-certification contractual commitments and/or precedent agreements;
 the nature of relationships between pipeline developers and natural gas LDC, electric utility, and/or independent power producer affiliates;
 the balancing of public benefits against adverse impacts in an era of debate over power system reliability implications and accelerating evidence of and concern over GHG emissions and climate-change risks resulting from current and future combustion of natural gas;
 complications in assessing need and impacts across pipeline owners in an era of rapidly expanding changes and growth in production regions and consumption patterns; and
 trade-offs across the interests of gas-consuming populations and those of communities impacted by gas infrastructure.

This is a good assessment of where we’re at.  BUT, the many things raised by Tierney in NRDC’s report were not addressed in the FERC Office of Inspector General report.  And yes, those things addressed by the Inspector General are also oh-so-relevant.  So there’s a lot to do!

DATES: Comments are due June 25, 2018.

We have three weeks.  Let’s get cracking!

We’re in another day of Enbridge Line 3, today no oral argument or comments, it’s deliberation only.  In the intro, Commissioner Sieben introduced a lot of modifications, laid out on a sheet of paper which was passed around to Commissioners, and then Commissioner Tuma did the same with I believe a couple of sheets (he seems to introduce something at every meeting, spring it on people, with no time to review).  Now they seem to be negotiating how they’re going to approve the Certificate of Need.  ??  I have no idea what they’re talking about, there are no copies for the public, and the documents Commissioners Sieben and Tuma have not been eFiled.  ???

Sierra Club and other intervenors have filed a Motion objecting to entry of new information that has not been subject to review, and that the information should be subject to a contested case proceeding before the Administrative Law Judge.

20186-144310-01_New Info_Remand for Contested Case Proceeding

As they’re going now, it’s as if they are negotiating a settlement with Enbridge, but hey, what about the intervenors, who are parties with equal standing in this?

They’re talking about “beneficiary,” but what they’re searching for is “additional insured.”  And they’re talking about unavailability of insurance for this, well, this is right along the lines of Price-Anderson for nuclear, where we subsidize the industry with no-fault coverage with nominal recovery allowed!

I have tried to get copies eFiled of the Sieben and Tuma sheets that have been passed around, struck out.  Ain’t happening.

They’re talking about a “landowner choice” program where landowners have the option of removal of the old Line 3 from their land.  Schuerger is raising issue of need for informed consent.  YES!  So can we hear from intervenors about all this?  Big issue — all of this is proposed to be handled in a Compliance Filing, and there’s no procedural option for anyone to comment on compliance filngs, unless people just jump in and take it upon themselves to file comments — but there’s no suggestion or guarantee that any comments on what Enbridge comes up with, that it will even be considered.

What a mess…  Certificate of Need approved, with directive to adopt the Recommendation of the Administrative Law Judge to the extent that it is consistent with their decision — that’s backwards, putting the cart before the horse.  Are they making such a mess of this so that on appeal the court will throw it out?

Now on to the route permit.