Legalectric

NOTICE!!!  Landowners need notice if their land is affected!  Local governments and residents need notice if their communities are affected!  Yes, posting something can have an impact!

Notice is something that’s been an issue in utility dockets, and transmission proceedings particularly, for a long, long time.  It’s something we’re trying to address in the Minn. R. Ch. 7850 in our rulemaking advisory committee meetings over the last TWO PLUS YEARS!

Here are the latest Comments:

NoCapX_U-CAN_ Cover_8-25-2015

NoCapX-U-CAN_Comments_8-25-2-15_20158-113514-02

Why does notice matter?  Well, there’s this thing called “Due Process.”  Notice is a fundamental Constitutional Right.  It matters because “NOTICE” often doesn’t happen.  And it ties in with eminent domain, where land may Constitutionally be taken for public purpose projects with just compensation (and what is a “public” project?  What is “just” compensation?)  If you aren’t properly informed, have no notice, what does that do to your ability to participate?

In Minnesota, it’s a matter of law, clear, simply stated law:

The commission shall adopt broad spectrum citizen participation as a principal of operation. The form of public participation shall not be limited to public hearings and advisory task forces and shall be consistent with the commission’s rules and guidelines as provided for in section 216E.16.

Looking over posts and filings where this has happened, situations I’ve been aware of where landowners have been surprised at the last minute, too late to meaningfully participate in the proceedings, have filed Motions for Reconsideration, and have been to the Appellate Court on their behalf, it is SO frustrating.  Looking at the many times I’ve tried to intervene, to have intervention deadlines extended in case landowners want to stand up,   There’s no excuse.  People should not be surprised at the last minute with a utility attempt to run transmission over their land.

It happened recently in the Great Northern Transmission Line routing docket:

ALJ Order filed, no RRANT intervention

Can you believe Commerce EERA would file this?

Commerce EERA Responds… NOT!

It happened in CapX Brookings route and on CapX Hampton- La Crosse route:

• Cannon Falls (CapX Hampton- LaX route) example to go around county park and DOT prohibited intersection area:

Cannon Falls Beacon – CapX in the news!

Dakota County resolution about CapX 2020

CAPX APPEAL — DECISION RELEASED (includes Cannon Falls)

UPDATED Updated Minnesota Appeal Update

Initial Brief – St. Paul’s Lutheran School and Church and Cannon Falls Landowners

Reply Brief – Cannon Falls Landowners and St. Paul’s Lutheran School and Church

• Oronoco(CapX Hampton – La X route) enters “new route” proposal without notice to its own landowners:

Oronoco Twp’s Exhibit 89

• USDA’s Rural Utilites Service (CapX Hampton – La X) example:

RUS Reopens Comments on Hampton-LaCrosse

• Myrick Route (CapX Brookings) example:

Myrick route withdrawn

Myrick Route & How to find things on PUC site

• In particular this “Notice” which went out after all the hearings were over with no way to participate at all: Dec 30 Notice – Myrick Route

PUC chooses Belle Plaine crossing

• This is important to understand the set-up, and now this notice was snuck in at the last minute due to Applicant and Commerce disregard for objections of DOT, DNR and USFWS.

That’s enough examples to get an idea of the problem… but there are more that I can trot out if necessary.  The notice provisions in Minnesota law and rule must be corrected.

What’s new?  Well, Xcel Energy has announced its 3Q results and the 2013 demand just keeps going down!

From Seeking Alpha, the 3Q call transcript (emphasis added):

Kit Konolige – BGC Partners, Inc., Research Division

On the — your sales growth outlook, I believe you said that you are expecting 0% to 0.5% in 2013. Can you discuss the breakdown by states on that and maybe any color about commercial versus industrial versus residential? And also give us a view of the longer term sales outlook that you’re seeing at this point?

Teresa S. Madden – Chief Financial Officer and Senior Vice President

Well, sure, Kit. Let’s start with the 2013 by the states. Minnesota, we’re still projecting a decline of about 1.2%. In NSP-Wisconsin, just a slight decline. And then the other 2 jurisdiction, PSCo slightly up and SPS at about 1.2% range. But all of it netting to within the — up to 0.5%. When we look to the future, we’re looking at about, as we indicated in our guidance up to 0.5%, those are narrowing, not such a great degree in terms of the decline in NSP-Minnesota. In terms of the various classes of customers, it does vary by jurisdiction. I will say that C&I, we see the most growth in Texas with the oil and gas industry boom.

CLICK HERE FOR FULL TRANSCRIPT.

Let me repeat that tidbit:

Minnesota, we’re still projecting a decline of about 1.2%. In NSP-Wisconsin, just a slight decline.

And as we know too well, the CapX 2020 transmission project taking over Minnesota is based on their wishful-thinking projections of a 2.49% annual increase.

From Xcel Energy’s own investor page (click to enlarge):

Here’s the full 10-Q (above from p. 50):

XCEL 9.30.13 10-Q

Someone remind me — why are we paying to build this CapX 2020 transmission project?

How to work up excitement about the Certificate of Need rulemaking???  On its own, it’s dry, detailed, wonkish stuff, thrilling only to those of us who live and breathe need decisions and utility infrastructure siting and routing… but may there’s some pizazz in the machinations surrounding input, like lack of public representation on the Advisory Committee such that even my tremendous bulk doesn’t even it out.  Does Xcel deserve THREE representatives? ITC two?  “Participating Utilities” two, “Wind Coalition” one and none for Goodhue Wind Truth?  Here’s the list:

Advisory Committee Contact List

Plus they’re not posting the drafts on the rulemaking site, so the public has no idea what’s being proposed:

7849 June 5 DRAFT New

And minutes from the first meeting:

Synopsis – May 29 meeting

To get to the docket, go to www.puc.state.mn.us and then “search eDockets” and search for 12-1246.

We’ll be talking about the Certificate of Need criteria next, and here’s what’s proposed:

7849.0120 CRITERIA CERTIFICATE OF NEED REQUIREMENTS.

   A certificate of need must be granted to the applicant on determining that:

  Subpart 1. Need Demonstration. An applicant for a certificate of need must demonstrate that the demand for electricity cannot be met more cost effectively through energy conservation and load-management measures.

Subpart 2. Renewable Resource Preferred. An applicant proposing an LEGF that uses a nonrenewable energy source must demonstrate that it has considered the use of renewable energy sources, as required under Minnesota Statutes section 216B.243, subd. 3a.

Subpart 3. Assessment of Need Criteria. In evaluating a certificate of need application, the

commission shall consider the criteria contained in Minnesota Statutes, section 216B.243, subd. 3, as well as the following:

     A.  whether the probable result of denial would be an adverse effect upon the future adequacy, reliability, or efficiency of energy supply to the applicant, to the applicant’s customers, or to the people of Minnesota and neighboring states, considering: the region;

                (1)  the accuracy of the applicant’s forecast of demand for the type of energy that would be supplied by the proposed facility;

                  (2) the effects of the applicant’s existing or expected conservation programs and state and federal conservation programs;

      (3)  the effects of promotional practices of the applicant that may have given rise to the

increase in the energy demand, particularly promotional practices which have occurred since 1974;

      (4) B. the ability of current facilities and planned facilities not requiring certificates of need to meet the future demand; and

      (5)  the effect of the proposed facility, or a suitable modification thereof, in making efficient use of resources;

             B C.  whether a more reasonable and prudent alternative to the proposed facility has not been demonstrated by a preponderance of the evidence on the record, considering:;

                (1)  D. the appropriateness of the size, the type, and the timing of the proposed facility compared to those of reasonable alternatives;

      (2) E. the cost of the proposed facility and the cost of energy to be supplied by the proposed facility compared to the costs of reasonable alternatives and the cost of energy that would be supplied by reasonable alternatives;

              (3) F. the effects of the proposed facility upon the natural and socioeconomic environments compared to the effects of reasonable alternatives; and

                (4) G.  the expected reliability of the proposed facility compared to the expected reliability of reasonable alternatives;

             C.   by a preponderance of the evidence on the record, the proposed facility, or a suitable modification of the facility, will provide benefits to society in a manner compatible with protecting the natural and socioeconomic environments, including human health, considering:

                (1) the relationship of the proposed facility, or a suitable modification thereof, to overall state energy needs;

      (2) H. the effects of the proposed facility, or a suitable modification thereof, upon the natural and socioeconomic environments compared to the effects of not building the facility;

                (3) I.  the effects of the proposed facility, or a suitable modification thereof, in inducing future development; and

                (4) J. the socially beneficial uses of the output of the proposed facility, or a suitable modification thereof, including its uses to protect or enhance environmental quality; and.

             D.   the record does not demonstrate that the design, construction, or operation of the proposed facility, or a suitable modification of the facility, will fail to comply with relevant policies, rules, and regulations of other state and federal agencies and local governments.

Comments due TOMORROW!!!  If you want to be a part of the Rulemaking Advisory Committee, this is the time to let them know that you want to be included.  After you’ve written your comments, file in PUC Docket 12-1246 or email to: kate.kahlert@state.mn.us

The Minnesota Public Utilities Commission has opened a docket for… get this:

Possible Amendments to Rules Governing Certificates of Need and Site and Route Permits for Large Electric Power Plants and High-Voltage Transmission Lines, Minnesota Rules, Chapters 7849 and 7850; and to Rules Governing Notice Plan Requirements for High-Voltage Transmission Lines, Minnesota Rules, part 7829.2550; Revisor’s ID Number R-04151; PUC Docket No. E,ET,IP-999/R-12-1246.

This is similar to the OAH “Possible” rulemaking, where they’re on a fishing expedition, for what I have not a clue, whether it’s to get ideas, or find out what not to include or identify the usual suspects, very hard to tell, and I couldn’t get any information out of Bret Eknes at the PPSA Annual Hearing.  The notice states “The Commission has not yet drafted the possible rule amendments.”

Here’s the notice — note they do say that part of this is to “maximize citizen participation” so let’s hold them to it:

Request for Comments – “Possible” Amendments to Rules PUC Docket 12-1246

Possible?  Ummmmm, right… well, it’s about time. Here’s the PUC’s Rulemaking site (you can also go to eDockets, search for 12-1246):

I’d put in a rulemaking Petition two years ago tomorrow…

Overland Petition 2010 PPSA Annual Hearing, filed January 2011

…and they said they wanted it broken down.  OK, sure, whatever, so I did.  Thus far I’ve filed the OAH ones, and haven’t gotten around to doing that yet.  SO, got to work today and ground out these comments based on the previously filed ones, you can use these for ideas, steal away!

NoCapX & U-CAN Comments – Jan 23, 2013

Once more with feeling, they’re due tomorrow.

Last night, Rep. Steve Drazkowski and Rep. Tim Kelly (who wasn’t there!) hosted a meeting about CapX 2o2o.

But Rep. Randy Demmer, 29A was.

As one person said, he had a “deer in the headlights” look as he sat in the front of the room.  Did he have any idea what he’d be in for?  I’d talked with him a bit when he came in, and he said he hadn’t heard from many constituents about CapX… oh… OK, well, we can do something about that!  And it’s good he showed up to find out what was going on and hear the word on the streets and in the fields.

Short version of the meeting:

• Bill Glahn gets roasted for MOES “Minnesota_Resource_Assessment” report, which is utter crap, the report, that is… the roasting was well-deserved.

• PUC, Commerce, and DOT show up en mass and toady for process and project.

• Rep. Drazkowski utters words of placation, but did not promote Nov. 4 joint committee hearing on repeal of Minn. Stat. 117.19.  HE’S ON ONE OF THE COMMITTEES, EARTH TO MARS!!!

• Affected landowners don’t buy it,  they get that fundamentally CapX 2020 is not needed and are pissed-off at the crap (see above).

• CapX said they were not going through or around Rochester.

There were two things I let slide, can’t take on everything:

1.Their statements about Big Stone were odd, theywell knows that Big Stone could not interconnect without CapX, and I have the electrical studies which prove it, which after trying 5 times to make it work with a line to nowhere (Granite Falls) then assumed CapX in try #6…   But I also wonder whether CapX Brookings (hence all of CapX) can go forward without Big Stone.

2. They kept saying “this is all about local load” and denying the LaX to Mad line, and kept talking about Rochester as the driver, yet they did not note, of course, the new gas plant at West Side sub or the four 161kV lines that are planned.

Overland’s Scorecard (concept stolen from Deb!):

CapX:     0
PUC:     -5
DOT:       1
Commerce:   -4
The People: +1

Longer version, bigger photo:

The people did a good job of expressing their displeasure and disbelief.

Bill Glahn brought up the Minnesota Resource Assessment Survey!  Bad move…  He  got one of my awards for that Minnesota Resource Assessment Survey, and here’s Maccabee – Presentation to LEC 10/23/09 , another voice saying it’s outrageous.  Last night  Alan Muller got him good about it, told him” it was  an unsatisfactory report, basically just a regurgitation of the business plans of MN… no independent thinking and not in the interests of the citizens of Minnesota …”  Alan does have a way with words.  When asked for a response Glahn looked abashed and admitted that he knows many people are unhappy with it.  AS WELL HE SHOULD!  I mean really… to use as an example that phony “chart” of Steve Rakow’s on p. 6:

… with no ID of meaning of X or Y axis, it’s deceitful, but they pulled that in CapX when faced with decreased demand, entering this chart, then citing its entry in the CapX 2020 Certificate of need record as if it means something.  Oh, pleeeeeeeeze…  We’re way below the 2004 actuals, and this forecast, for the Blue Lake expansion, it’s CapX 2020 era forecasts, we’re about 1,500MW down and growing, down 15% so far, down 2.5% in 1&2Q 2009, SEC 3Q filing and investor call due any second now will take it down further:

After last night’s meeting, Bill Glahn is certainly under fire, but I also got the feeling due to the cadre of state employees stumping for CapX, that it’s their perception that it’s in trouble.  It could be something as simple as they have no financing to do it, that demand is so far down that it makes no sense even to PUC and applicants to build it, or …  The DOT was distancing itself, there’s been a lot of pressure on DOT.  The DOT has its “Policy of Accomodation” (at issue in Chisago Transmission Project III, or IV, the last round, where Xcel stuck poles, BIG poles, right in the middle of the new plan for US Hwy. 8, in one example, right next to and over a business), and here it is:

DOT Policy on Utility Accomodation

…and I don’t think they’re going to change that anytime soon.  At the Legislative Energy Commission meeting in September, there was mention of an October 13 meeting with the DOT, but Dave Sykora, DOT, mentioned that was cancelled, and instead they met last week.  There were no specifics disclosed, but the feeling I got from what was said was that it didn’t go the way legislators wanted it to, DOT didn’t cave.  Legislators are looking, from Rep. Drazkowski’s statements last night, and from Rep. Westrom’s comments at the LEC meeting, for a way to do the project with minimal landowner pain.  I don’t think that’s doable, and it’s sure not desirable.   CapX 2020 is a project that shouldn’t be built, and if it is, it will cause considerable pain, for landowners, applicants and legislators!

Also noteworthy last night was the general failure to accept “need” and a high level of understanding, and for the most part, people are getting the broader picture.  (there was an odd comment by Burl Haar that if there were questions about the appeal of the CapX decision, that they post most things on the docket, and to check with him!).  So is the PUC’s argument that this belongs at the District Court, and not the Appellate Court (despite what Cupit says) on display in the docket for the world to see?  I doubt it, but I’ll check.

Last night, Drazkowski kept referring to efforts to alter the eminent domain law, but he was evasive and didn’t disclose important info, like the upcoming November 4 hearing before Energy & Civil Justice (he’s on Civil Justice!) (Upcoming hearing on repeal of eminent domain exemptions), and he didn’t advise on how to advocate for change, dropped the ball, wouldn’t even pick it up.

Here’s the info on the hearing:

WEDNESDAY, November 4, 2009
10:00 AM
Joint Meeting of the Energy Finance & Policy Division and Civil Justice Committee
Room: 5 State Office Building
Chairs: Rep. Bill Hilty, Rep. Joe Mullery
Agenda: Informational hearing on HF1182 (Bly) Public service corporation exemptions repealed.

Anyone wishing to testify should contact Andy Pomroy at andy.pomroy [at] house.mn
Last night’s meeting in Mazeppa on CapX 2020  follows on the heels of one last Monday night in Chisago, about an 855MW gas plant proposed by LS Power, the Sunrise River Energy Station.  Click here for  Report on Monday Chisago meeting.  They’ve  proposed at least three gas plants before at that site, and they didn’t go far, this is the biggest, and most public, and will need mega transmission, BUT LS Power’s Blake Wheatley admitted at the Chisago meeting that they don’t have a plan, don’t have a PPA, don’t have anything but a tax exemption (est. $9-10 million) from legislators who should have known better than to sell out their constituents for nothing, and then after being caught, for a very small “Host Fee.”  At that meeting, Mike Bull said Xcel won’t need any power for a long time, 2016-2017 (and if he’ll admit that at long last, we know it’s really a lot further out).  As with last night’s meeting, at the Chisago meeting there was, despite heavy lobbying and presence of unions like IBEW and Building & Trades, a clear understanding that the LS Power plant is not needed, and that peak demand is down.  Granted LS Power made the mistake of walking into an energy educated community, but even Bob Cupit was surpirsed by the turnout, said he’d never seen such a large crowd, ~500, standing room only in a hockey rink sized room (Also, FYI, Bob stated to the audience that “If citizens feel the system still failed to consider issues, the decision of the PUC can be appealed to the state Court of Appeals.“)

There is a theme.  Minnesota doesn’t need more transmission, and we won’t, in the words of Xcel’s Mikey Bull, need an generation anytime soon.  Am I paraphrasing correctly, Mike? (Duck & cover — the You Tube of that is forthcoming!!!)  The MOES Minnesota_Resource_Assessment is a crock.

Here are the LEC members — it’d be good to contact all of them, and let them know what you think about “need” for generation and transmission, decreasing demand, and CapX 2020 in particular:

http://www.commissions.leg.state.mn.us/lec/members.htm
Here’s Senate member info:
http://www.senate.leg.state.mn.us/members/index.php?ls=#header
Here’s House member info:
http://www.house.leg.state.mn.us/members/hmem.asp

And about CapX and eminent domain, contact:

rep.steve.drazkowski [at] house.mn

rep.tim.kelly [at] house.mn

rep. randy.demmer [at] house.mn

Once more with feeling — Get thee to the House Energy and Judiciary Committee meeting:

WEDNESDAY, November 4, 2009
10:00 AM
Joint Meeting of the Energy Finance & Policy Division and Civil Justice Committee
Room: 5 State Office Building
Chairs: Rep. Bill Hilty, Rep. Joe Mullery
Agenda: Informational hearing on HF1182 (Bly) Public service corporation exemptions repealed.