Legalectric

Photo – Gretchen Hoffman, Capitol Chat

John Howe has announced he’s running for Congress in Minnesota’s 2nd Congressional District.  It’s all over the web.  I’d wager a fair amount that John Howe would win the election.  The good news is that Drazkowski will not run, Dog help us if he did (though it would get him out of the MN House!). What I know about Howe is that as Mayor of Red Wing, and as our area state Senator, he stood up to Xcel Energy on its Prairie Island uprate and worked to get the full story out, and Xcel Energy did ask that the Certificate of Need be revoked/withdrawn after it was clear that there was no need for the uprate.  Howe also returns phone calls, and he’ll stop for a chat at the Farmers Market.

He was working for a bipartisan legislative environmental lobbying/caucus org of some sort, so I hope that he’ll continue with that mindset.  But given the MPR blurb below of Howe’s early campaign stop at a Red Wing Tea Party meeting, that gives me the willies, and I do hope he’s not taking that party line.  He also says he’ll put in $500k of his own money toward the campaign.  If he’s got that kind of money to throw around, and buys in to the “pay to play” notion, that’s a concern.  He’s been a moderate, sane voice, and if he continues on in that vein, he’ll win.  If not, if he goes off like Republican Presidential candidates these days, well, he’ll have trouble in this swing district.

We shall see…

Here’s the MPR article:

Howe enters race for Congress

And on Hubbard’s KSTP:

Former Sen. John Howe to Run for Congress

In the StPPP and StPPP blog:

2nd Republican announces bid to replace Rep. John Kline

Howe runs for Second District as ‘conservative’ but ‘electable’

I think that last headline pretty much sums it up for CD2!

WHAT!?!?!  Yes… Really… after the delightful decision from the Appellate Court requiring an Environmental Impact Statement, telling the Public Utilities Commission that an EIS must be completed before a Certificate of Need can be issue, the Applicants dropped  Petition.  Read this whale-eye inducing filing from North Dakota Pipeline Company, LLC (a/k/a Enbridge) hot off the press:

North Dakota Pipeline Company _ Petition for Rejoinder and Comment Period 20159-114150-03

Here’s the short version:

Once more with feeling, here’s the Appellate Court’s decision:

OPa150016-091415

And the bottom line:

So from this order of the Appellate Court “to complete an EIS” the Applicant now asks for the “need” docket and “routing” docket to be brought back together and to use the “Comparative Environmental Analysis” that the Appellate Court says isn’t sufficient.  Yes, that what they’re saying:

What planet is North Dakota Pipeline Company living on?  Earth to Mars!!!!!  A “CEA” is not sufficient.  MEPA requires an EIS.  The court told the Public Utilities Commission to complete an EIS.  The Court did NOT say to go ahead with a “CEA.”

Not too long ago, Lisa Agrimonti sent around notice that she had moved over to Fredrickson & Byron.  $50 says that she’ll be filing Notice of Appearance for this docket!

It’s fall, the sun is rising on the other side of the house and bluff now, and I’m not ready!  Getting out to enjoy fall as much as possible, and then Little Sadie and I are heading to St. Louis soon for BaronFest III (didn’t have one last year).  Maybe down to Arkansas to catch fall later!  This is the first BaronFest where I don’t have a German Shepherd, and I’m not sure how Little Sadie will fare.

It’s hard to feel motivated to work with all this transmission going up here in Minnesota.  Earlier in the summer, we went down through Wabasha, and south of Wabasha where CapX Hampton – La Crosse cuts across the Mississippi River to Alma, through La Crosse and checked out the Briggs Road substation, host to CapX and Badger Coulee transmission, to Cassville and Dubuque and back up further west, a tour of electric infrastructure.

Don’t they have enough?  If they’re shutting down this coal plant, why would they need transmission?  How about using that capacity… oh, right, they get that 12.38% or thereabouts for building transmission, that’s their primary revenue source these days!

Time for a break…

Until then, I can vicariously enjoy my SiL’s trek along El Camino, and transmission lines too, in Spain.  Go, Jeanne, go!!!

Yesterday, the Arkansas Delegation hit Plains & Eastern Clean Line where it counts — a line drive to the Secretary of the DOE with this letter:

AR Delegation_Moniz_Sept 14 2015

Maybe this letter should have been headed “FREEDOM OF INFORMATION ACT REQUEST.”  Plains & Eastern Clean Line applied under Section 1222 of the Federal Energy Policy Act of 2005.

For reference, here’s Section 1222 of Energy Policy Act 2005.

Many of the points raised were ones brought forward in testimony, public comments, and media reports of the Plains & Eastern Clean Line transmission line proposal.  Questions the AR delegation raised include basic project information and:

• transactions and costs related to participation in Section 1222;
• obvious failure to qualify because it is not in a “national interest electric transmission corridor” under Section 216(a) of the Federal Power Act;
• improper use of Federal eminent domain authority undermining states’ rights;
• that the project is outside the statutory mission of federal Power Marketing Administrations (Southwestern PMA is proposed by Plains & Eastern Clean Line as partner in its project);
• project boundaries extend beyond the statutory boundaries of Southwestern Power Administration;
• costs for this private project could be transferred to electric utilities and their customers and this possibility has not been walled off/mitigated to insulate Southwestern’s customers;
• concerns about “non-completion” assessment of costs and prevention/mitigation have not been addressed;
• Clean Line’s assertions that they will pay certain taxes to local communities have not been investigated and verified;
• use of existing federal rights-of-way and federal land;
• Clean Line’s substantially incorrect, misleading, and/or inconsistent statements, which are basis for rejection or denial of the application, have not been addressed;
• draft EIS “did not meet the expectations of an inclusive, community-driven feedback process” expected of administrative agencies, and public comment periods and involvement of landowners and stakeholders was insufficient public engagement;
• questions regarding tribal consultation; questions regarding DOE position on state’s role in siting under Section 1222;
• impacts of traversing Mississippi Flyway on waterfowl and migratory birds, together with resultant economic and recreational impacts;
• impacts on public recreation on outdoor recreation in Arkansas;
• use of non-governmental email accounts for Department deliberations regarding this project.

Like WOW!  I’m impressed — this letter is a work of art.

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.