On Wednesday, Association of Freeborn County Landowners filed an appeal of the Public Utilities Commission’s denial of AFCL’s Petition for and Environmental Assessment Worksheet. It was mailed Certified Mail yesterday, as required by statute, and today, filed on the PUC’s eDockets:

The PUC really screwed this up, in so many ways. Granted there are few Petitions for EAW to the Commission, and Commission staff may not be familiar with EQB rules and process. However, in the only other Petition for Environmental Assessment Worksheet/EIS, they denied a Motion and then a Petition for EAW forwarded by the EQB, and it was sent back to the Commission by the Appellate Court:

In the Matter of Minnesota Power’s Petition for Approval of the EnergyForward Resource Package

Lesson not learned. We’ve been trying to get environmental review of wind projects for how long now, particularly given the demonstrable impacts, actual and constructive notice, beyond the “potential” for environmental impacts. Bent Tree noise excedences and landowner settlements? What more is needed?

Bent Tree Order filed by PUC

In the Staff Briefing Papers, which is staff’s recommendation to the Commission, over and over it was said that the Petition was insufficient because there were not 100 signatures, but there were 380+ signatures! In the Staff Briefing Papers, over and over it was said that the Commission could declare the Petition insufficient, when it is NOT the Commission’s job to address sufficiency, that was already determined by the Environmental Quality Board, which validated the Petition and forwarded it to the Commission for action! Read the Briefing Papers… really, it’s that absurd:

I fired off a letter requesting correction, which never happened:

And even after denying AFCL’s Petition, they went further, and provided “notice” in an email to the EQB that the Board had made its decision:

And that “notice” was published in the EQB Monitor on February 18, 2020:

And yet to this date, they’ve not filed an Order or the Record of Decision on this decision! WHAT?!?! Yes, really!!

I’d sent a letter to the EQB about the Commission’s failure to file the Order and Record of Decision nearly a month ago:

STILL NO ORDER OR RECORD OF DECISION. There are no Findings of Facts to explain, to support, the Commission’s decision. I guess it’s harder to make them up than staff thought?!?!

Meanwhile, the appeal deadline of a decision on an EAW Petition is 30 days after the notice is published in the EQB Monitor. Minn. Stat. 116D.04, Subd. 10. It’s kind of hard to Appeal a decision without the necessary documents, so I can guess that’s one more reason the Commission has chosen not to file! Oh well… ONWARD!

Prior posts on AFCL’s Petition for Environmental Assessment Worksheet:

Freeborn EAW – more time!

EQB forwards EAW Petition to PUC

Petition for EAW – Freeborn Wind

Westwood 3Transmission 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:

BottomLine

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.

Carleton's Turbine Sept 1 2004

If you’re interested in going to the Minnesota Environmental Congress, register NOW — and I sure hope that many of those who went to the meetings around the state follow through and keep demanding change!

2013 Minnesota Environmental Congress

Friday, March 15, 2013 8:00 AM5:00 PM

Ramada Inn Bloomington
2300 East American Boulevard
Bloomington, MN 55425

952-854-3411

Registration Questions:
Catherine Dubbe
GTS Educational Events
cdubbe@mngts.org

This was originally INVITATION ONLY!  Can you believe it!  Yours truly didn’t make the cut, I can’t imagine why… and now, it’s thrown open to any ol’ body, so I guess that means us.

REGISTER HERE

And the AGENDA for Friday.

For those of you who went to the meetings, or are curious about what happened, here are the reports:

Environmental Congress Citizen Forums

Suffice it to say, the standing room only attendance at all of the sessions was a surprise to the organizers.  The people of Minnesota are more than a little upset about the state’s failure to protect Minnesota’s environment.

It struck me as hilarious that on the opening page, they cite the Minnesota Environmental Policy Act:

Minnesota law directs the EQB to host an annual Environmental Congress. Read MN Statute Ch. 116C Sec. 04 to learn more about the statutory role of the EQB.

Now’s the time to keep that message hammering home…  Best read both the Minnesota Environmental Policy Act and the Minnesota Environmental Rights Act.

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

dsc01114

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:

dsc01122

Links to the EQB Environmental Review documents:

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):

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!