Legalectric

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.

Doesn’t this guy ever quit?  New legislation with new option, wanting to change the law to allow a “biomass” plant on the Mesaba Project site.  WHAT?  Aren’t they paying attention to the Laurentian Energy Authority’s unworkable “biomass” projects in Hibbing and Virginia, the “biomass” plants that don’t have enough feedstock and so are burning coal?  Did they forget that the MPCA has only issued one woody biomass permit, for Laurentian (Hibbing and Virginia) and that that permit was violated, so extremely that the MPCA issued fines and reworked the permit?

LEGALECTRIC POST: Laurentian “biomass” Air Permit Draft (second time around)

LEGALECTRIC POST: “Biomass” violates air permit – fines likely

DOH!

Thanks to a little birdie for the heads up on this.

Here’s the change, hidden in Senate File 2101:

Today, say NO to lines 191.4 – 191.19 of Senate File 2101.

I read with horror news of  Rep. Bill Hilty’s amendment eliminating the moratorium on new nuclear generating plants that passed in a House Ominous Bill this week.  WHAT ARE THESE YAHOOS THINKING?  The Senate already approved it, and now the House… and I just can’t see Pawlenty doing anything but signing it with glee.

(sudden feeling of ice picks going through temples… buried in brain… electricity applied…)

AAAAAAAAGH!

Is this the “price” of the rollback of exemptions of utilities from eminent domain laws?  Is it an attempt to look like they’re repealing it when “conditions” mean it won’t happen? (like those that said Obama really doesn’t mean what he’s saying about coal gasification or transmission, he knows better)  Is it more of the same deal-making that took the Renewable Development Fund away from PrairIe Island Indian Community, or the enviro sell-outs that gave us the 2005 Transmission bill?  Minnesota’s second nuclear waste storage facility at Monticello, now two piles piling with no plan in sight, PERMANENT?

What I’m hearing about this from various little birdies….

… is NOT encouraging — ooooohhhhhhh do I have a headache…

… apparently NO ONE OBJECTED!

NO ONE OBJECTED?!?!?!?!

AAAAAAAAGH!

Here’s the bill as it is on the Senate site:

SF 2971

Here’s how Rep. Bill Hilty, Chair of House Energy, amended it:

Hilty, Faust, Norton and Obermueller moved to amend S. F. No. 2971, the third engrossment, as amended, as follows:

Page 4, after line 11, insert:

“Sec. 4.  [216B.1695] NUCLEAR POWER PLANT; COST RECOVERY.

(a) The commission may not allow any of the following costs attributable to the construction of a nuclear generating plant begun after July 1, 2010, to be recovered from Minnesota ratepayers until the plant begins operating at a monthly load capacity factor of at least 85 percent:

(1) planning, design, safety, environmental, or engineering studies undertaken prior to construction; or

(2) the costs of obtaining regulatory approval, including permits, licenses and any other approval required prior to construction from federal, state and local authorities.

(b) The commission may not allow any of the following costs attributable to the construction of a nuclear generating plant begun after July 1, 2010, to be recovered from Minnesota ratepayers:

Journal of the House – 98th Day – Thursday, May 6, 2010 – Top of Page 11584

(1) any construction costs exceeding the projected construction cost of the generating plant and any ancillary facility constructed by the utility to temporarily or permanently store nuclear waste generated by the plant, as identified in the utility’s certificate of need application submitted under section 216B.243;

(2) the costs of insuring the plant against accidents that exceed the cost of insurance for a fossil fuel plant of equivalent capacity; or

(3) contributions from the plant to provide and maintain local fire protection and emergency services to the plant in case of an accident.

(c) Except for regulatory costs of state agencies, no revenues from taxes or fees imposed by the state of Minnesota may be used to pay for any portion of the preconstruction, construction, maintenance, or operating costs of a nuclear generating plant, or to assume any financial risk associated with an accidental release of radioactivity from the generating plant or an ancillary facility constructed by the utility that owns the generating plant to temporarily or permanently store nuclear waste generated by the plant.

Sec. 5.  Minnesota Statutes 2008, section 216B.243, subdivision 3b, is amended to read:

 Subd. 3b.  Nuclear power plant; new construction prohibited; relicensing.  (a) The commission may not issue a certificate of need for the construction of a new nuclear-powered electric generating plant provided that the certificate of need application contains a separate estimate of preconstruction and construction costs that does not include any of the costs identified in section 216B.1695, paragraphs (a) and (b).

(b) Any certificate of need for additional storage of spent nuclear fuel for a facility seeking a license extension shall address the impacts of continued operations over the period for which approval is sought.”

Renumber the sections in sequence and correct the internal references

Amend the title accordingly.

Way below is the list of yeas and nays, do send each of them a missive:

MEMBERS OF MINNESOTA HOUSE OF REPRESENTATIVES

The ones who voted against it are the strangest set of bedfellows!  But KUDOS TO THEM!

If you click on this to look at the whole back and forth with amendments, scroll to p. 11579 to start.  Here’s the vote:

S. F. No. 2971, A bill for an act relating to energy; making technical changes and modifying provisions related to utility report filings, hydrogen energy projects, weatherization programs, high-voltage transmission lines, public utility commission assessments, and utility metering for supportive housing; removing obsolete and redundant language; authorizing individuals and entities to take certain easements in agricultural land; providing for certain reporting requirements; providing for wind and solar easements; amending Minnesota Statutes 2008, sections 16E.15, subdivision 2; 117.225; 216B.16, by adding a subdivision; 216B.241, subdivision 2; 216B.812, subdivision 2; 216C.264; 216E.03, subdivision 7; 216E.18, subdivision 3; 326B.106, subdivision 12; 500.221, subdivisions 2, 4;
Journal of the House – 98th Day – Thursday, May 6, 2010 – Top of Page 11596

Minnesota Statutes 2009 Supplement, section 117.189; Laws 2008, chapter 296, article 1, section 25; repealing Minnesota Statutes 2008, sections 216C.19, subdivisions 2, 3, 13, 14, 15, 16, 18, 19, 20; 216C.262; Minnesota Statutes 2009 Supplement, section 216C.19, subdivision 17.

The bill was read for the third time, as amended, and placed upon its final passage.

The question was taken on the passage of the bill and the roll was called.  There were 86 yeas and 43 nays as follows:

Those who voted in the affirmative were:

Abeler
Anderson, S.
Anzelc
Atkins
Beard
Benson
Bigham
Bly
Brown
Brynaert
Bunn
Carlson
Cornish
Dill
Dittrich
Doty
Eken
Faust
Fritz
Gardner
Hansen
Haws
Hayden
Hilstrom
Hilty
Hosch
Howes
Huntley
Jackson
Johnson
Juhnke
Kahn
Kalin
Kath
Kelly
Knuth
Koenen
Laine
Lanning
Lenczewski
Liebling
Lieder
Lillie
Loeffler
Loon
Mahoney
Marquart
Masin
McFarlane
McNamara
Morgan
Morrow
Murdock
Murphy, E.
Murphy, M.
Nelson
Newton
Nornes
Norton
Obermueller
Olin
Otremba
Pelowski
Persell
Peterson
Poppe
Reinert
Rosenthal
Rukavina
Ruud
Sailer
Scalze
Sertich
Simon
Slawik
Slocum
Solberg
Sterner
Swails
Thao
Thissen
Tillberry
Ward
Welti
Westrom
Spk. Kelliher

Those who voted in the negative were:

Anderson, B.
Anderson, P.
Brod
Buesgens
Champion
Clark
Davids
Davnie
Dean
Demmer
Dettmer
Doepke
Downey
Eastlund
Falk
Garofalo
Gottwalt
Greiling
Gunther
Hamilton
Hausman
Holberg
Hoppe
Hornstein
Hortman
Kiffmeyer
Kohls
Mack
Magnus
Mariani
Mullery
Paymar
Peppin
Sanders
Scott
Seifert
Severson
Shimanski
Torkelson
Urdahl
Wagenius
Winkler
Zellers