Legalectric

An odd notice came out today — an extension of the Power Plant Siting Act Annual Hearing comment period, “due to late-filed materials…”

Late filed materials??? Whatever could that be… SNORT!

Naaaah, more likely than not it’s the Comments I’ve filed in all the related wind dockets, plus the PPSA dockets, regarding “ground factor” an inappropriate use of anything but 0.0 as a ground factor:

That’s all about the many wind projects that are improperly using 0.5 and 0.7 ground factor. 0.0 is the only ground factor because the turbine is elevated, and from the source to the “receptor” it is a DIRECT hit! It’s really not hard to understand.

There are so many projects, ALL of the wind projects listed in this year’s Commerce-EERA handout for the PPSA:

These projects were all permitted using bogus noise modeling with GIGO input assumption of 0.5 or even 0.7 for ground factor!!! REALLY! These:

And these:

Guess somebody is wanting time to rebut! May it means we need a contested case, eh?!?! SNORT!

But then, even developer’s expert Mike Hankard agrees that 0.5 is not appropriate for an elevated source like a wind turbine:

It’ll be interesting to see what they have to say.

To look at the PPSA Annual Hearing docket go HERE and enter docket 19-18, using 19 (year number)- 18 (docket number).

An old Enbridge map of proposed Sandpiper route

The Minnesota Department of Commerce has released Notice of Scoping Meetings for the Sandpiper pipeline:

Here’s the full Notice:

Scoping & Meeting Notice_20164-119967-01

There’s also a lot of new information posted to go along with this, routes and alternatives and modifications are posted.

To look at the entire docket, go to the PUC’s Seach eDockets page, and search for dockets 13-473 (Certificate of Need) or 13-474 (Routing Docket).

Check out this weeks filings regarding environmental review filed by Commerce:

20164-119946-04	13-473	DOC EERA	OTHER–APPENDIX C – ACCESS ROADS TABLE	04/11/2016
20164-119944-09	13-473	DOC EERA	OTHER–APPENDIX A2 – SURVEY MAPS 70-82	04/11/2016
20164-119945-05	13-473	DOC EERA	OTHER–APPENDIX A3 – SOIL MAPS 37-49	04/11/2016
20164-119944-01	13-473	DOC EERA	OTHER–APPENDIX A2 – SURVEY MAPS 1-24	04/11/2016
20164-119946-02	13-473	DOC EERA	OTHER–APPENDIX B – TAX PARCEL LIST	04/11/2016
20164-119946-08	13-473	DOC EERA	OTHER–APPENDIX E – WETLAND CROSSING TABLE	04/11/2016
20164-119944-15	13-473	DOC EERA	OTHER–APPENDIX A2 – SURVEY MAPS 109-121	04/11/2016
20164-119944-07	13-473	DOC EERA	OTHER–APPENDIX A2 – SURVEY MAPS 54-69	04/11/2016
20164-119946-16	13-473	DOC EERA	OTHER–APPENDIX I – ROAD AND RAILROAD CROSSING TABLE	04/11/2016
20164-119945-01	13-473	DOC EERA	OTHER–APPENDIX A3 – SOIL MAPS 1-21	04/11/2016
20164-119944-13	13-473	DOC EERA	OTHER–APPENDIX A2 – SURVEY MAPS 95-108	04/11/2016
20164-119945-11	13-473	DOC EERA	OTHER–APPENDIX A3 – SOIL MAPS 77-88	04/11/2016
20164-119944-11	13-473	DOC EERA	OTHER–APPENDIX A2 SURVEY MAPS 83-94	04/11/2016
20164-119946-10	13-473	DOC EERA	OTHER–APPENDIX F – WATERBODIES IN MN WITHIN 1 MILE DOWNSTREAM OF CROSSINGS	04/11/2016
20164-119945-09	13-473	DOC EERA	OTHER–APPENDIX A3 – SOIL MAPS 64-76	04/11/2016
20164-119944-17	13-473	DOC EERA	OTHER–APPENDIX A2 – SURVEY MAPS 122-125	04/11/2016
20164-119946-12	13-473	DOC EERA	OTHER–APPENDIX G – LOG FOR WELL 653274	04/11/2016
20164-119944-05	13-473	DOC EERA	OTHER–APPENDIX A2 – SURVEY MAPS 41-53	04/11/2016
20164-119943-07	13-473	DOC EERA	OTHER–APPENDIX A – DETAILED ROUTE MAPS 19-29	04/11/2016
20164-119943-09	13-473	DOC EERA	OTHER–APPENDIX A – DETAILED ROUTE MAPS 30-43	04/11/2016
20164-119943-13	13-473	DOC EERA	OTHER–APPENDIX A – DETAILED ROUTE MAPS 58-61	04/11/2016
20164-119943-03	13-473	DOC EERA	OTHER–EAW PART 2	04/11/2016
20164-119943-01	13-473	DOC EERA	OTHER–EAW PART 1	04/11/2016
20164-119945-13	13-473	DOC EERA	OTHER–APPENDIX A3 – SOIL MAPS 89-101	04/11/2016
20164-119944-03	13-473	DOC EERA	OTHER–APPENDIX A2 – SURVEY MAPS 25-40	04/11/2016
20164-119943-05	13-473	DOC EERA	OTHER–APPENDIX A – DETAILED ROUTE MAPS 1-18	04/11/2016
20164-119945-15	13-473	DOC EERA	OTHER–APPENDIX A3 – SOIL MAPS 102-114	04/11/2016
20164-119945-07	13-473	DOC EERA	OTHER–APPENDIX A3 – SOIL MAPS – 50-63	04/11/2016
20164-119945-17	13-473	DOC EERA	OTHER–APPENDIX A3 – SOIL MAPS 115-125	04/11/2016
20164-119943-11	13-473	DOC EERA	OTHER–APPENDIX A – DETAILED ROUTE MAPS 44-57	04/11/2016
20164-119945-03	13-473	DOC EERA	OTHER–APPENDIX A3 – SOIL MAPS 22-36	04/11/2016
20164-119947-02	13-473	DOC EERA	OTHER–DRAFT SCOPING DECISION DOCUMENT	04/11/2016
20164-119946-06	13-473	DOC EERA	OTHER–APPENDIX D – WATERBODY CROSSING TABLE	04/11/2016
20164-119946-14	13-473	DOC EERA	OTHER–APPENDIX H – SENSITIVE NOISE RECEPTORS	04/11/2016

Transmission over Red Wing’s Westwood subdivision

In routing permitting using “Alternate Review” and in wind siting permitting under Minn. Stat. Chapter 216F, exempted from environmental review, the environmental review is inadequate.  An Environmental Impact Statement is necessary!  DOH!

Looking at Minnesota’s draft Rules for Transmission/Utility Infrastructure siting and routing, it’s clear that the recent Minnesota Court of Appeals decision remanding the Sandpiper pipeline case to the Public Utilities Commission has implications beyond Certificate of Need.

“Sandpiper” decision – OPa150016-091415

The Court’s bottom line was:

This was based on its holding that a Certificate of Need decision by the Public Utilities Commission was a “major governmental action.”

Because the decision to grant a certificate of need for a large oil pipeline constitutes a major governmental action that has the potential to cause significant environmental effects, we conclude that MEPA requires an environmental impact statement to be completed before a final decision is made to grant or deny a certificate of need.

Just as a Certificate of Need is a major governmental decision, a Siting Permit or a Routing Permit is a major governmental decision.  The Minnesota statute and rules provide for “Alternate Review” for siting and routing:

Alternate Review of Applications – Minn. Stat. 216E.04

And in this statute, there’s a subdivision authorizing an “environmental assessment.”

Subd. 5.Environmental review.

For the projects identified in subdivision 2 and following these procedures, the commissioner of the Department of Commerce shall prepare for the commission an environmental assessment. The environmental assessment shall contain information on the human and environmental impacts of the proposed project and other sites or routes identified by the commission and shall address mitigating measures for all of the sites or routes considered. The environmental assessment shall be the only state environmental review document required to be prepared on the project.

Throughout this rulemaking, a number of us participating have been stressing that this “environmental assessment” does not comply with MEPA.  Under the logic of the “Sandpiper” decision – OPa150016-091415, the Court would agree.

Yet here are the draft rules for Siting and Routing — search for “environmental assessment” in the draft:

August 3 2015 Draft Minn. R. Ch. 7850 (Siting & Routing)

And Certificate of Need draft rules:

August 3 2015 Draft Minn. R. Ch. 7849 (Certificate of Need)

And regarding wind permits, also a major governmental decision, these are statutorily exempted from environmental review by exempting it from PPSA – Minn. Stat. 216E.03, Subd. 5 “Environmental Review.”

216F.02 EXEMPTIONS.

(a) The requirements of chapter 216E do not apply to the siting of LWECS, except for sections 216E.01; 216E.03, subdivision 7; 216E.08; 216E.11; 216E.12; 216E.14; 216E.15; 216E.17; and 216E.18, subdivision 3, which do apply.

Wind siting permits are exempt from environmental review?  Public Utilities Commission issuance of wind project siting permits is a major governmental action.  Nope, not compliant with MEPA.

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.

 

 

 

 

This “streamlining” of environmental review marches onward.

COMMENTS ARE DUE TOMORROW!

ONLINE COMMENT FORM HERE

I’d guess that the Gov. got an earful of what the people thought of his idea to … well… to… see E.O. 11-32, with an apparent intent to gut, slice and dice – the people don’t like it one bit:

Executive Order 11-32

Meetings were held, comments were given, but the only thing presented to comment on, and about which comments were directed, was the “Environmental Report Card.”  But there also was a report about “Improving Environmental Review” and “Environmental Coordination and Governance.”  Not one word was said by the meeting facilitators about these two reports, reports that were “approved” by the EQB before these meetings were even held!  Great, just great.

Here were a few of my comments at the time, which I’ll be sending in, in technicolor:

Links to the EQB Environmental Review documents:

• Evaluation and Recommendations for Improving Environmental Review
• Recommendations for Environmental Governance and Coordination
• Minnesota Environment and Energy Report Card

At the meeting, I’d asked when comments were due, and the response, after they all looked at each other, was “anytime before the Environmental Congress (sometime in March, still no date disclosed).

Now, I hear there’s a deadline of January 15.  It’s not on the EQB calendar, and it’s buried on the “Environmental Congress” page.  Here is that deadline and also a form to make online comments:

ONLINE COMMENT FORM HERE

Click HERE for the EQB’s “Resource” page.

Note there’s a “Calendar” on the Resource Page, above  Click on that CALENDAR and note that there is no mention of any deadline for comments.

Please read the two reports with something of substance (the report card is “fluff” at best):

• Evaluation and Recommendations for Improving Environmental Review
• Recommendations for Environmental Governance and Coordination

What’s most important about these is that they’ve backed off from some of the language of the draft reports, the “eliminate regulation” mantra is not so frenetic.  The charge for these reports was:

1. Evaluate and make recommendations on how to improve environmental review
2. Evaluate and make recommendations for improved environmental governance and
coordination

This is the part I find disturbing — tell me, how does this relate to the charge:

The elements of the evaluation directed by EQB included:

• Look at the original intent of environmental review and consider if circumstances in Minnesota have changed such that a fundamental change in the original intent is needed.

It also claims that:

The intent of this draft report is to provide a transparent depiction of the process
that was used to develop recommendations and allow for broad public review of the
recommendations.

Where’s the “broad public review” of this report?  There is NONE!  It’s up to us, folks, to go over this and review it and comment on it, because so far, “broad public review” hasn’t been happening.

The part that is most disturbing to me is the way they’re trying to reframe “intent.”  I don’t know where this came from, E.O. 11-32 says not one word about “intent” of environmental review — that’s a legislative mandate from decades ago.  Who wrote this?  Was it our good friend Charlie Peterson who wrote it, the one who facilitated these meetings, the one who facilitated the CapX 2020 Task Forces so abysmally, going far afield of the charge?  Where does the writer of this report get any direction or authority to rewrite legislation, legislative history, and redefine the intent of environmental review?

Here’s what’s in the “final” report, p. 5-6, approved by the EQB on November 14, 2012:

Working Draft of Intent

Based on review of statute and rule, agency staff has developed a working draft of the
intent of environmental review:

Understand the environmental effects of proposed projects in order to promote harmony between human activities and the environment, with consideration of both short and long term social and economic needs of the state.

Principles:
• Providing information for decision makers and project proposers
• Coordination with federal, state and local agencies
• Public involvement in decision making
• Efficiency in process

With this as working draft of intent agency staff believe the original intent of environmental review is just as valid today as it was first envisioned by the legislature in the 1970s. One significant difference between the 1970s and today is the “information” that is available, needed, and desired for achieving harmony between human activities and the environment. The information and technology available is much greater today, but there is also a better understanding of the complexity of environmental systems and the challenges with predicting and implementing harmony with human activities.

What’s wrong with that?  Take a closer look.  The problem is the part about “consideration of both short and long term social and economic needs of the state.”  Environmental review is to look at impacts, to provide information, and it is not about “consideration of both short and long term social and economic needs of the state.”  Environmental review has never done a thorough cost/benefit analysis.  Social and economic impacts are supposed to be addressed in environmental review, but “NEEDS”  — let’s talk about what the social “needs” of the state are, and let’s talk about what the economic “needs” of the state are.  Who decides what a social or economic “need” is, and what weight to give it?  If this report is any indication, we’re in trouble.  Look in Appendix D at the weights given to the groups, and you’ll see that in the identical categories, when asked to pick the most important issues, some groups get more votes than others.  Whose opinion counts more?  Look at their Appendix D to see.

Send in your comments on the studies, let them know you’re commenting on the studies and then tell them what you have to say, and note that something this important does indeed require a “broad public review.”  At least, that’s this broad’s opinion!