I found my notes!!  On August 29, 2017, Alan and I went to the Goodhue County Courthouse for the GreenMark Solar v. Wacouta Township (Court Case No. 25-CV-17-1462) festivities — a Summary Judgment hearing.

FULL DISCLOSURE: I’m not a fan of any of the principals of GreenMark, Mark Andrew, Dennis Egan, and Julie Jorgensen.  Mark Andrew is a former Hennepin County Commissioner and a fan of burning garbage. Here’s a thread from the Mpls yak-yak list about Andrew when he was running for Mayor.  Dennis Egan, well, we had a few go rounds when he was Mayor of Red Wing AND was executive director of Minnesota Industrial Sand Council, and at the time silica sand mining issue was on agenda for City of Red Wing. Julie Jorgensen? Her Excelsior Energy Mesaba Project coal gasification plant took up 5 years of my full-time labor before it went to part-time and intermittent, and still just won’t fully go away! Minn. Stat. 216B.1694, Subd. 3(b)(1)(ii).

That said, I’m also a big fan of solar, from way, way back when my father designed the solar on the Minnesota Zoo (that was later taken down, it was hot water! Not quite what was most needed, and they didn’t know much about solar back then).

Here’s the GreenMark Complaint — couldn’t find the Wacouta Answer or the cross-motions for Summary Judgment. The Wacouta Township website is years out of date — what’s up with that?  (2014 is most current minutes, plus a notice of the May 2017 meeting about the solar project. ???)

Greenmark Solar v. Wacouta Township_Complaint 25-CV-17-1462

Here are a couple articles:

GreenMark Solar challenges Wacouta Township | Republican Eagle

Minnesota Developer Sues for Solar Garden Permit

The oral argument started with Greenmark.  Some points (not all inclusive):

Focus on Minn. Stat. 394.33, Subd. 1, that the township decision violates Town Powers Act. It’s inconsistent with their zoning. They can enact more restrictive zoning, but they didn’t, township has no solar ordinance.2

Township ordinance is ambiguous.  Frank’s Nursery case — if ambiguous, allow property owner to do what they want with the property.

“Agricultural community” — Planning Commission and Board selected different definitions.  Current use, peat mining and hay.  Pollinator scale 45, and 85 with solar.  Wetlands. Reduce carbon emissions.

Township argument:

Town Power Act does not restrict township actions. Bergen defines inconsistent, it’s not different.
Township Ordinance, Art. 3, Subd. 10, limits industrial uses that do not support agricultural. Solar is an industrial use. Twp. does allow solar in ag, BUT, it’s more restrictive, and it’s not inconsistnet.

The standard is whether down decision was rational, i.e., legally sufficient, supported by record.

Reasonable — inconsistent with agriculture, exported to the grid. CUP – exported, GreenMark takes issue with def of ag use, but see “Hubbard Broadcasting” denial of Conditional Use.  Review is deferential.  Mandamus (GreenMark’s action) review not to challenge discretionary decisions of local government.

Frank’s Nursery re: ambiguous ordinance, doesn’t require ordinance to be construed to support use. Court still needs to determine rationality.

Greenmark Rebuttal

Mandamus – this is about building permit, a ministerial act, not discretionary.

Does township even have jurisdiction/authority.

Purpose of project — Goodhue County, that’s the area.

Altenberg (?) – Town Powers Act – Twp didn’t adopt a more restrictive ordinance.

Bergum (?) – legislative intent of Town Powers Act.

Township Rebuttal

Cases of Mandamus for building permits

Goodhue – zoned agricultural, township couldn’t zone industrial, that would be inconsistent with county zoning.

__________________________

Judge Bayley said he has a lot of homework to do, and will do it and issue Order.

Looking forward to catching up with Ted Nace soon in San Francisco.  He’s author of Gangs of America: The Rise of Corporate Power and the Disabling of Democracy — get your copy HERE.

Alan Muller and I had the good fortune of meeting him through our “no coal” work and the “No New Coal Plants” list that was instrumental in stopping so many coal gasification plants across the U.S., including Minnesota’s Excelsior Energy Mesaba Project (see also www.camp-site.info)and the NRG coal gasification plant proposed for Delaware.  He wrote this Orion article about that coal gasification fight (a couple things are off — hey, Ted, it’s an ORANGE crate!!):

Orion-Stopping Coal in its Tracks – Ted Nace – JanFeb 2008

And from that, he also also wrote:

Climate Hope: On the Front Lines of the Fight Against Coal

Check these out, you can find them reasonably priced at www.abebooks.com.  Support your independent bookseller!

Some have said that the Renewable Development Fund is sacred.  WRONG.  The Renewable Development Fund is profane, not sacred, all the way from its origins to its uses.  It’s now under scrutiny at Minnesota legislature, and institutional memory is nowhere to be found in this discussion.  See HF 235 and SF 214.

The Renewable Development Fund (RDF) came into being in the 1994 Prairie Island bill, and was to be a per cask compensation fund for the Prairie Island Indian Community for storage of nuclear waste next door and extension of Prairie Island nuclear plant life.  That compensation was turned into the RDF in a late night deal by “environmental” groups lobbying, of which Bill Grant (now Deputy Commissioner, Dept. of Commerce, formerly and then Izaak Walton League) was an integral part, Michael Noble (ME3, now “Fresh Energy”), and George Crocker (North American Water Office) too.  Prairie Island Indian Community was supposed to get priority in grants, but that never happened.  The RDF was administered by 3 from Xcel, plus Bill Grant, and one other “environmental” rep.  The composition of the group giving out the grants has changed, and there is now someone from PI on it, but that’s recent. (Full Disclosure: I represented Florence Twp. fighting the “in Goodhue County” alternate site mandate for nuclear waste and the Township worked very mindful of, and often in tandem with, PIIC, where it fiercely refused to acquiesce to Xcel and say “STICK IT THERE” to PIIC.  The working relationship continues and PIIC is now largest private  landowner in Florence Twp.).

1994 Prairie Island bill — Ch. 641, MN Session Laws (https://www.revisor.mn.gov/laws/?year=1994&type=0&doctype=Chapter&id=641).

The RDF was a material term of the 2003 Prairie Island bill, where as part of the deal millions of RDF money was to go to the Excelsior Energy Mesaba Project.  Bill Grant was primary again, and when the Mesaba Project was stricken in one House session, a red-faced Tom Micheletti came flying down the hall yelling at Grant “We had a deal, we had a deal!” That deal was later added back in, and Micheletti’s Excelsior Energy coal gasification plant, Mesaba Project, was added to the factors to keep PI open.  “Environmental groups” got massive grants to promote coal gasification.  Micheletti got $10-12 million from RDF for Mesaba (and lots more from IRRB and DOE) and other regulator perks in the 2003 law, like exemption from CoN, and a mandated PPA with Xcel.  (Full Disclosure: I represented MNcoalgasplant.com against Mesaba Project, and with CAMP and help from Xcel, we got the details of coal gasification, that project was killed, and the info killed others nationwide, but Mesaba still has a site permit in Taconite from PUC valid until 2019!)

2003 Prairie Island bill – Ch. 11, MN Session Laws (https://www.revisor.mn.gov/laws/?year=2003&type=1&doctype=Chapter&id=11

On Monday, January 23, the Red Wing City Council voted to accept a $2 million grant from RDF to install a garbage grinder, a project they’ve been lobbying for for years, where they’ll take in garbage from the whole county, grind it up, and burn it in Xcel’s garbage burner here, its air permit expired in 2009!  GARBAGE!!!  DOH!  GARBAGE is not clean, it’s toxic!  The purpose of all this is to keep the incinerators open and burning.  (Full Disclosure:  I have been representing clients being screwed by Xcel’s plan for “ash mining” in their incinerator ash landfill in Red Wing, part of which includes a plan to build a Red Wing laydown yard and crusher on a site half of which is designated Water Tower Burial Mounds — yeah, really. That’s been exposed:

My partner, Alan Muller, is an incineration expert and has worked with groups to stop RockTenn; Midtown Burner in Phillips, Rockford City and Township; HERC uprate, etc.  See the Tyler Hills Neighbors Comments: Comment Extension for Lab USA EAW & Xcel & Lab USA Solid Waste)

The RDF has been a slush fund for deals enabling nuclear, promoting coal gasification, and greasing the skids for scams of great financial and environmental magnitude and impact.  It should be shut down and turned over to Prairie Island Indian Community as originally intended.

gasification_schematic

After this election, there are so many things to be concerned about, so many reasons to be utterly horrified… a Muslim database, Trump’s fraud trial to begin November 28th, promise of mass deportations, sharp increase in hate crimes, assaults and threats on the street and in the schools (and online, oh my!).  Trump’s “100 Days” plan was out in October, and has many points, full of words to decode, including a ‘clean coal’ reference, showing he’s clueless, just clueless:

Trump’s Contract with the American voter — the First 100 Days

In the 2nd and 3rd debate, Trump used those two words that have deep meaning to me, “clean coal,” because of Excelsior Energy’s Mesaba Project here in Minnesota, and because of the NRG proposed IGCC plant in Delaware, both of which were defeated after a long protracted fight.  There is no such thing as ‘clean coal.”

mesabaone

Coal gasification is one thing that my coal-plant designing Mechanical Engineer father and I had some bonding moments over, going over EPRI coal gasification reports from the 80s and the Mesaba application…  And I had the pleasure of meeting and working alongside my father’s boss’s son, who is also an engineer, formerly with NSP/Xcel, who knew what a bad idea coal gasification is.  Oh yeah, we who fought these projects have learned a lot about coal gasification, “carbon capture and storage,” and will not go there again (see Legalectric and CAMP – Citizens Against the Mesaba Project sites for more info).  We know it doesn’t work.  And experience with the few projects that did go forward, what a mess, cost overruns beyond the wildest SWAG estimate, inability to get the plant running…  Trump, don’t even think about it:

IGCC – Pipedreams of Green & Clean

IGCC, coal gasification, is nothing new.  And despite its long history, it’s a history of failure, failure to live up to promises, failure to operate as a workable technology, and failure to produce electricity at a marketable cost, failure to produce electricity at all!  On top of that, it’s often touted as being available with “CO2 capture and storage” which it is not.  That’s a flat out lie.  Check this old Legalectric post:

More on Carbon Capture Pipedream

A key to this promotion is massive subsidies from state and federal sources, and selection of locations desperate for economic jump-start, so desperate that they’ll bite on a project this absurd, places like Minnesota’s Iron Range, or southern Indiana, or Mississippi.  The financing scam was put together at Harvard, and this blueprint has been used for all of these IGCC projects:

Harvard I – 3 Party Covenant

That, coupled with massive payments to “environmental” organizations to promote coal gasification, and they were off to the races.

Joyce Foundation PROMOTES coal gasification

Doris Duke Charitable Foundation & IGCC – WHY???

VP-elect Mike Pence should know all about coal gasification, he’s from Indiana.  Indiana is coal generation central, and has had a couple of IGCC projects planned, construction started, and built.  Indiana’s Wabash Valley plant is a perfect example, a small IGCC plant that was built, and after it was “completed,” took 22 on-site engineers to keep it running, now and then, at a greatly reduced capacity.

Wabash River Final Technical Report (it was “routinely” in violation of its water permit for selenium, cyanide and arsenic)

When they tried to sell the Wabash Valley plant recently, of course no one wanted it:

Wabash Valley coal gasification plant closing!

And another Indiana plant, with huge cost overruns that never started operating:

Rockport coal gasification plant dies – Indianapolis Star

Coal News: $2.8B coal gasification plant in Indiana canceled

And then there’s Edwardsport IGCC plant, also in Indiana, what a disaster:

Edwardsport plant not at promised capacity

Settlement won’t be the last word on controversial Indiana coal plant

Duke Energy Edwardsport Plant Settlement Expanded

The original settlement in September was a response to the plant’s rising operating costs while failing to meet performance expectations.

In the new agreement, Duke Energy agrees not to charge customers for $87.5 million of the operating costs of the Edwardsport plant, $2.5 million more than the original agreement.

And note that problems with Edwardsport tie in to similar problems with the Kemper IGCC plant in Mississippi:

Indiana ‘cease fire’ could provide a model for Mississippi regulators

Yes, in Mississippi, the Kemper IGCC plant is proving to be a problem, and yes, folks, note the Obama promotion of IGCC — after all, Obama is from Illinois, a coal state, and had lots of support from coal lobbyists.  Check this detailed NY Times article:

Piles of Dirty Secrets Behind a Model “Clean Coal’ project: Mississippi project, a centerpiece of President Obama’s climate plan, has been plagued by problems that managers tried to conceal, and by cost overruns and questions of who will pay.

The sense of hope is fading fast, however. The Kemper coal plant is more than two years behind schedule and more than $4 billion over its initial budget, $2.4 billion, and it is still not operational.

The plant and its owner, Southern Company, are the focus of a Securities and Exchange Commission investigation, and ratepayers, alleging fraud, are suing the company. Members of Congress have described the project as more boondoggle than boon. The mismanagement is particularly egregious, they say, given the urgent need to rein in the largest source of dangerous emissions around the world: coal plants.

Trump, just don’t.

okla-quake_wide-df42df8a84055fe96e5682321e4b5cc937030c06-s1500-c85BIG earthquake in Oklahoma today, and are we surprised?   Naaaaah…  Here’s the info, including location, economic impacts, etc., from USGS:

CLICK HERE: USGS Pawnee, OK Earthquake Page

In the news, and they’re making the link between gas wells and earthquakes:

Earthquake Rattles Oklahoma; One Of Strongest Recorded In State

Earthquake Shakes Swath of Country Where Wells Have Drawn Scrutiny

Earthquake rattles Oklahoma, six neighboring states

VIDEO: Dogs react to Oklahoma earthquake

IMPORTANT: The Oklahoma Corporation Commission takes action!

Oklahoma Corporation Commission orders disposal wells shut down near quake epicenter

Consider why fracking and injection of frac waste is allowed…  Why is a pipeline route through earthquake prone area considered?  The impacts of fracking and waste injection is one thing they do NOT want to acknowledge.  From KOTV in June 2014 — USGS should know better:

OklahomaEarthquakes_June2014_KOTV

And when searching, look at this — can you believe:

OGS: Earthquake risk low for proposed disposal wells in Yukon

When the topic of earthquakes and other seismic activity comes up, I always recommend the “bible” of injection into the earth, because this is not a new phenomenon and we’re making this happen, putting people and our water supply at risk:

Gas Migration: Events Preceding Earthquakes, by Khilyuk

When I got this book, it was an older edition, though pricey, but with patience, it could be had for $20.  For about a decade now I’ve been recommending this book, and look at the price now.  Out of bounds for most of us… funny how that works.  I’d guess a library could find a copy, and here it is on google books, “only” $224.00 (GRRRRRRRRRR):

Gas migration: events preceding earthquakes

Elisa Young, a cohort in Ohio, has lived in the epicenter of frack injection triggered earthquakes around Youngstown.  There, after so many earthquakes, the causal connection was acknowledged, but it took too long.  Here’s a Legalectric post from four years ago:

Ohio Earthquakes & Fracking

And now for a complicated sidebar.  Elisa Young asked today how to get the state and federal agencies to communicate about this problem and take action.  How?  Damned if I know — impacts of injecting gas and liquids into the earth are well known.  Yet federal and state agencies are in serious state of denial.  And it’s very difficult at times to get the agencies to show up, to do their job.  It’s even difficult to get their analysis, their own reports, into project permit dockets.  I get really tired of this…

How to get them to weigh in?  In Public Utilities Commission dockets in Minnesota, I’ve had a hard time with state agencies, initially.  For example, in Excelsior Energy’s Mesaba Project docket, there was a claim that coal gasification was “clean” yet the Minnesota Pollution Agency had not, and would not, weigh in on the emissions projected for this coal gasification power plant.  WHAT?  We pushed and pushed, threatened to subpoena, raised this at a PUC meeting, and finally, the PUC issued an Order and wrote a letter to the PCA Commissioner requesting the MPCA lend its expertise to the Commission and show up!

3114835_PUC Letter to MPCA

And a Legalectric post about later subpoena requests on the Mesaba Project:

FOIAs to feds, subpoena requests to state agencies

And subpoena and Data Practices Act requests in that same docket for financial information:

Subpoena Request IRR September 7, 2006

IRRB Data Practices Act Request

Letter to IRRRB June 19, 2006

Letter to IRRRB July 26, 2006

I’ve had similar issues in transmission dockets, where the DOT and DNR would file Comments on environmental scoping, and/or the Draft Environmental Impact Statement, but those Comments would only be sent to the Dept. of Commerce, and were not posted in the PUC docket, so parties and the public had no idea the concerns the agencies may have.  NOT OK.  During the first CapX 2020 routing docket, Brookings 08-1474, it was so egregious, I asked the DOT General Counsel who was present to make comments at the public hearing, and to submit a copy for the routing docket record (the route ultimately turned on DOT easements and that DOT would not allow the transmission line to be built over those easements).   The matter was remanded by the Commission for rehearing based on their routing quandry.  Shortly after, on behalf of No CapX 2020, I subpoenaed testimony and Comments.

Subpoena requests sent! (DOT & DNR)

Subpoena plot thickens (Agreement to testify)

Subpoena request for US Fish & Wildlife

Subpoena Denied(tried to get USFWS, didn’t work.  USFWS Comments had been hidden in EIS Comments)

Notes from Friday

In the Goodhue Wind docket (permit granted, and then much later revoked!):

Goodhue Wind Truth – Subpoena Requests for Bjorklund and Bull

ALJ Sheehy’s Letter to Overland – Denial of Subpoena Requests

Goodhue Wind Docket … REFILE!

When this was attempted in the Sandpiper Pipeline docket, the ALJ denied the Subpoena request.  WHAT?

And an interesting back and forth with a hearing officer about getting information into the record and whether it would take a subpoena to get it, where ultimately, the ALJ agreed that the primary documents would be entered in the record:

NRG in hiding at DNREC hearing

And here’s an aside, use of subpoena regarding Xcel’s plans for coal, served by NY’s A.G.:

New York A.G. serves Xcel with subpoena