Legalectric

Oh my… just in, a request to suspend the permitting schedule for Dodge County Wind, the Certificate of Need, the wind site permit, and to WITHDRAW the transmission route permit!

There are 3 Dodge County Wind dockets, a Certificate of Need (17-306), wind siting (17-307), and transmission (17-308).  Process wise, it goes to PUC for approval, and the PUC will probably announce a comment period in all 3 dockets. Then Commission will meet, and approve the withdrawal of the transmission without prejudice, so they can refile when they have a workable plan. That withdrawal process will take some time.

That time is an issue, because I don’t see any way they can come up with a transmission plan and get it through the MISO transmission studies to get a permit and start construction by year end.  Tax credit implications — they have a problem. 

As to the suspension of Certificate of Need and wind siting application proceedings, I’d like to see them dismissed without prejudice also, not suspended, gumming up the works at the Commission.  We shall see.

This transmission was absurd from the get-go, a 345kV line with what, a 2,200MVA capacity, for a 170 MW project? They said it was part of a regional interconnection, from the application:

Oh, really? Don’t see it in the MISO MTEP. It’s not… and it’s a radial line, and you just don’t build short radial 345kV lines!

Here are Dodge County Wind’s requests for suspension and withdrawal:

“On August 9, 2019, DCW withdrew its MISO interconnection queue position no. J441, because of the significant interconnection costs associated with that queue position.”

Oh my… what does the MISO DPP Report have to say about that? Just search this report, issued July 25, 2019, for “J441.”

I figured the PUC should have that MISO report in the record:

And check out the summary page on p. 149 of the 150 page pdf.

After getting the 345kV route alternatives “C” and “D” ejected, not to be considered in the FEIS, this is just the icing on the cake!!

Dodge Center Xmsn – Mission Accomplished!

Here’s some background info from just over a year ago:

Dodge County Wind info presentation

July 29th, 2018

From the very beginning, with Dodge County Concerned Citizens working hard to inform people of the project, all three dockets, and Dodge Center’s Tom Applegate going door to door and encouraging people to write comments and send photos showing how the transmission line would affect their neighborhood in Dodge Center, this public input helped call the entire project into question.  With the DEIS rejecting transmission alternative routes C and D, and with the MISO interconnection study showing so many network upgrades needed at a very high cost, this project is no longer viable.  The people affected by this project have had a tremendous impact.

Tonight is the public hearing, using the “Alternative Review Process,” for the transmission for the Freeborn Wind Project, the very same project that has been recommended be denied by the Administrative Law Judge:

WE WON!!! ALJ Recommend Freeborn Permit be DENIED, or…

Be there or be square:

What’s at issue?  Most important is “need” and lack thereof.  Under Minesota Rules, need may not be addressed in the environmental review:

Questions of need, including size, type, and timing; alternative system configurations; and voltage must not be included in the scope of environmental review conducted under this chapter.  Minn. Stat. 216E.02, Subd. 2.

BUT, where there is no Certificate of Need, issues of size, type and timing MAY be addressed — the prohibition of addressing need only applies where a Certificate of Need has been issued:

Comments on the Minn. R. Ch. 7849 and 7850 rulemaking are due next Monday!  Are you making any progress? Info on who, what, where, why, when of filing comments is here:

20173-130158-01_Notice of Comment Period

What to comment on? Here are the latest draft rules:

February 2017 Draft 7849 February 2017 Draft 7850

Get to it!  

Today was Deadline #1 for Comments on NDPC’s Petition for Withdrawal of the Sandpiper pipeline Certificate of Need and Route applications.  Here’s what was filed:

Sandpiper_Landowner Comments_Xmsn

Yup, that’s it.  My Sandpiper transmission clients weighed in.  I’ve been watching the docket, watching the inbox for service…. NO other comments, nothing, nada…

Just get to it.  Quick – take a few minutes and send a missive to the Public Utilities Commission encouraging them to allow Enbridge to withdraw their application for the Sandpiper pipeline WITH PREJUDICE so that they can’t refile it again.  Send to:

Daniel P. Wolf, Executive Secretary  (dan.wolf@state.mn.us)                        Minnesota Public Utilities Commission                                                           121 Seventh Place East, Suite 350                                                                    Saint Paul, MN  55101-2147

Ann O’Reilly and James La Fave, Administrative Law Judges
Office of Administrative Hearings
600 North Robert Street
P.O. Box 64620
St. Paul, MN 55164-0620

But it doesn’t end there, with zip comments… it gets weirder.  I’d saw there was no notice from the PUC about a comment period, nothing.  Here’s what they did with Hollydale, Notice, and there was a comment period and reply comments!  In that docket, Xcel Energy filed to withdraw its Hollydale applications on December 10, 2013, and this notice was issued on January 10, 2014:

20141-95340-02 Notice of Comment Period

Here’s what we got:

And when I asked:

Here’s the response:

Oh my… what do I do with that?  Guess I write a post about it!!!

 

 

 

Many thanks to the “little birdie” who brought this decades old report to my attention:

Rulemaking – Legislative Auditor-93-04-1

Yes, this is a report from the Minnesota Legislative Auditor from 1993, and if you read it, you’ll see little has changed is so many years…  The issues raised are issues we’ve been raising in the Public Utilities Commission rulemaking for Minn. R. Ch. 7849 and 7850 (Certificate of Need and Siting/Routing).  AAAAAAAAAAAACK!

For example, from the Summary:

• Encouraging agencies to negotiate rules before formally proposing them has made the formal public notice-and-comment process mandated by the APA less meaningful; and

• Since there are no requirements or guidelines governing the negotiation process, those people selected to help an agency draft rules have an unfair advantage over those who are not asked to participate.

One unintended consequence of negotiated rulemaking is that the public participation process mandated by the APA has become less important because the content of rules is largely decided during the negotiation phase. As a result, by the time a rule is formally published in the State Register with a request for public comments, an informal agreement between an agency and parties to the negotiation may already have been reached. Those groups and individuals not consulted often are left out. Nearly 70 percent of the affected parties who responded to our survey said they hear about rules too late for their input to make a difference. People who live outside the Twin Cities area were much more likely to feel unable to influence the rulemaking process and to express dissatisfaction with agency rulemaking performance generally.

For example, in the PUC Rulemaking for 7849 and 7850 (PUC Docket 12-1246), it’s been an over two-year-long process, and few are showing up anymore.  We weigh in, some things are taken into account in the drafts, and then that disappears from the next draft.  How can it feel like anything but a colossal waste of time?  Yet if we weren’t there, the utilities would get everything they want.  And as with the utility Certificate of Need and Siting/Routing processes, rulemaking has the same notice and public participation problems.  It’s all the same, deja vu all over again.

… and also from the report …

Furthermore, the rule negotiation process is not part of the official rulemaking record nor subject to statutory controls or legal review that would guarantee equal access. Therefore, it can easily be dominated by those groups and organizations with more resources. In the absence of formal guidelines or standards, agency practices vary, and some agencies are better than others at obtaining broad-based input.

We also conclude that:

• The formal public notice mechanisms may be inadequate to ensure timely notice and meaningful participation in rulemaking; and

• The prohibition of “substantial changes” after rules are proposed is often misunderstood by agency staff and may inhibit them from incorporating public comments made through official mechanisms.

Does this sound familiar?

Once more with feeling:  … the rule negotiation process is not part of the official rulemaking record nor subject to statutory controls or legal review that would guarantee equal access. Therefore, it can easily be dominated by those groups and organizations with more resources.

So what is the bottom line of this report?

Therefore, we recommend that:

The Legislature should consider amending the Administrative Procedure Act to require that a “notice of regulatory action” be published in the State Register and mailed to all affected parties when an agency begins drafting a rule.

We also recommend that:

• The Legislature should consider amending the Administrative Procedure Act to require that agencies maintain a “rulemaking docket” that contains an up-to-date listing of the status of existing rules and impending rulemaking actions, to be submitted annually to the Legislature.

The recommendations we make are designed to revitalize the formal rulemaking process, ensure more equitable access to agencies at a time when comments can reasonably be considered, and strengthen public accountability over agency rules. We think that replacing the current “notice to solicit outside opinion,” which is published for 62 percent of all rules, with a mandatory “notice of regulatory action” will not represent an undue burden on agencies. The current notice is not widely distributed and does not contain enough information to enable interested parties to respond. Therefore, we recommend that the new notice should contain more information about the rule and the process to be used in drafting it, and that it should receive wider distribution than the current notice. A mandatory rulemaking docket, to be submitted to the Legislature and made available to the public upon request, should help the Legislature monitor rulemaking and provide better oversight.

Also, we recommend the following additional changes to the Administrative Procedure Act:

• Rules not adopted within 18 months of their authorizing legislation should require reauthorization, which would replace the current requirement that new rules be published within 180 days;

• A single definition of “substantial change” should be incorporated into the APA;

• “Regulatory analyses” should be done on rules if requested by the Governor, the Legislative Commission to Review Administrative Rules, a political subdivision, another state agency, or 300 persons; and the current special rule justification requirements relating to agricultural land, small business, and fiscal impacts on local government should be eliminated;

• Agency efforts to notify all people potentially affected by a rule should be made part of the official rulemaking record and subject to external examination during the rules review process;

• Individuals requesting a public hearing should provide their address and phone number;

• Everyone who has requested a hearing should be notified when agencies negotiate to secure withdrawal of hearing requests, and agreements made in negotiations should be made a matter of public record and included in the official rulemaking record;

• Exempt rules should be reviewed for form, statutory authority, need and reasonableness, and consistency with legislative intent; and

• All rules should be reviewed by the Office of Administrative Hearings, thereby eliminating the Attorney General’s role in rules review.

… and …

In addition to changing the APA and other statutes that govern agency rulemaking, we recommend that:

• State agencies involved in rulemaking should make more efforts to broaden public participation in rulemaking.

For example, they should make a greater effort to educate the public about how to receive direct information about rulemaking actions and make greater use of agency-held public hearings or widely publicized public meetings early in the rulemaking process. They should also include circulation of rule drafts and “statements of need and reasonableness” earlier and more widely among all parties affected by rules. Finally, agencies should terminate the negotiation process when it fails to make progress toward resolving issues and either proceed more quickly to an official public hearing, employ the services of a professional negotiator or mediator, or return to the Legislature for guidance.

Adopting these recommendations should shorten the informal process, broaden public input in the early stages of rulemaking, and make rules more responsive to the Legislature.