Legalectric

We’re in another day of Enbridge Line 3, today no oral argument or comments, it’s deliberation only.  In the intro, Commissioner Sieben introduced a lot of modifications, laid out on a sheet of paper which was passed around to Commissioners, and then Commissioner Tuma did the same with I believe a couple of sheets (he seems to introduce something at every meeting, spring it on people, with no time to review).  Now they seem to be negotiating how they’re going to approve the Certificate of Need.  ??  I have no idea what they’re talking about, there are no copies for the public, and the documents Commissioners Sieben and Tuma have not been eFiled.  ???

Sierra Club and other intervenors have filed a Motion objecting to entry of new information that has not been subject to review, and that the information should be subject to a contested case proceeding before the Administrative Law Judge.

20186-144310-01_New Info_Remand for Contested Case Proceeding

As they’re going now, it’s as if they are negotiating a settlement with Enbridge, but hey, what about the intervenors, who are parties with equal standing in this?

They’re talking about “beneficiary,” but what they’re searching for is “additional insured.”  And they’re talking about unavailability of insurance for this, well, this is right along the lines of Price-Anderson for nuclear, where we subsidize the industry with no-fault coverage with nominal recovery allowed!

I have tried to get copies eFiled of the Sieben and Tuma sheets that have been passed around, struck out.  Ain’t happening.

They’re talking about a “landowner choice” program where landowners have the option of removal of the old Line 3 from their land.  Schuerger is raising issue of need for informed consent.  YES!  So can we hear from intervenors about all this?  Big issue — all of this is proposed to be handled in a Compliance Filing, and there’s no procedural option for anyone to comment on compliance filngs, unless people just jump in and take it upon themselves to file comments — but there’s no suggestion or guarantee that any comments on what Enbridge comes up with, that it will even be considered.

What a mess…  Certificate of Need approved, with directive to adopt the Recommendation of the Administrative Law Judge to the extent that it is consistent with their decision — that’s backwards, putting the cart before the horse.  Are they making such a mess of this so that on appeal the court will throw it out?

Now on to the route permit.

LISTEN HERE: http://minnesotapuc.granicus.com/MediaPlayer.php?event_id=1856

It’s pretty disturbing.  Today started out with the Commission asking Intervenors to pick their least awful route option.  WHAT?!?!  That is NOT how a line is chosen. I think they’re using that to build a “record” (NOT!) for whatever decision they may make.

As the Commission was reminded, the Commission is to choose a route, only AFTER a Certificate of Need is granted, based on the criteria in the statutes and rules.  Commissioner Sieben turned to a pretty manipulative attempt at burden of proof shift, looking for a statement to get them off the hook.  NO!

NO?  That’s correct.  This is the Commission’s job, and if there’s no need, deny the application.  If there’s no acceptable route, deny the application.  The ALJ made a Recommendation, and the Commission has to deal with that.

Then there’s the push about System Alternative SA-04.  That route would go right through my Association of Freeborn County Landowners’ community, and AFCL filed an Exception regarding that SA-04 route:

Fair use – from Enbridge’s Line 3 website

Looks like a lot of folks are angry with Judge O’Reilly’s Enbridge Line 3 decision.

Findings of Fact, Conclusions of Law, and Recommendation

Oh well… she had to make some decision and I think she did an excellent job of weighing all the factors, getting into the details in a very difficult case, and come up with a Recommendation that pisses everyone off!  That’s something that takes a LOT of work and is very hard to do!

Here’s a post on it with an insightful/inciteful framing of the decision and what it means:

Pipeline “poison approvals”: a new trend?

In the press, people are getting wound up.  From MPR:

Dayton: No ‘viable way’ to build new Line 3 pipeline on current route

From the MPR piece: The Leech Lake Band of Ojibwe has denounced the judge’s recommendation, calling it “a clear attack on sovereignty and Tribal communities.”

My take is that O’Reilly laid out the Leech Lake Band’s sovereignty and power and the lay of the land as it exists now — the easements are there now, allowing Enbridge to use the land until 2029.  This recommendation sets the stage for the easement renegotiation in 2029, where the Band has power to say “NO!” and Enbridge is very afraid of that, facing either outright refusal or greatly increased easement payment as the obvious outcome.  This Recommendation, and use of the existing easement gives Leech Lake greater leverage going forward, and might even move those easement negotiations up in time.  If that renegotation is a decade in the future, Enbridge will also by then be operating in a very different world than exists right now, with decreased oil use and demand.  O’Reilly also noted that if a new corridor were used with this, given state non-proliferation, Enbridge would logically seek to use that corridor for all its pipelines going forward.

Along this line (but note that LaDuke, Honor the Earth, is the one quoted, and there are no quotes from Leech Lake or Fond du Lac tribal officials, who should be the ones weighing in here):

Minnesota Pipeline Ruling Could strengthen Tribes’ Legal Case Against Enbridge Line 3

And more, this with quotes from tribal officials:

Major pushback against Line 3 recommendation

In a statement Tuesday, April 24, the Leech Lake Band of Ojibwe described the recommendation as “anti-sovereignty” and said that it “puts undue burden on the Leech Lake Band of Ojibwe to hold the risk of the pipeline replacement and to revoke the permit.”

“The judge has made this horrific recommendation without even holding a single ALJ hearing on the Leech Lake Reservation and gave a recommendation on a route that has not had the same level of environmental review,” wrote Ben Benoit, the band’s environmental director.

Once more with feeling — If you have comments, objections, there’s been a notice issued regarding submission of “Exceptions” which are due May 9, 2018:

20184-142282-01_Exceptions Notice

Look at those nice calm colors that make this look so innocuous… GUESS AGAIN!

The Pennsylvania Public Utilities Commission has ordered the Mariner East Pipeline Project shut down.

PUC orders Sunoco pipeline shutdown after sinkholes expose bare pipe near Exton

Here’s the project site:

Pipeline Information Center

And PA site:

Mariner East II – PA DEP – PA.gov

And a photo of the sinkhole site, right in the middle of a neighborhood:

NPR Photo -linked – fair use

And another:

PA Environmental Daily Blog – fair use

And it’s “Energy Transfer Partners” on this one:

Mariner East 1 natural gast pipeline was temporarily idled due to sinkholes near work on Mariner East 2 – Pittsburgh Business Times

Tuesday was the Annual Hearing for the Power Plant Siting Act.  I’ve been fighting off this sickness that Alan’s had for a week now, and not quite feeling right, more like life inside a pillow, everything’s rather dampened.  But I slogged out into the world, and raised a few of the recurring points, issues with the Power Plant Siting Act, particularly public participation issues common not just to the Power Plant Siting Act (Minn. Stat. Ch. 216E ), but also to wind siting dockets under Minn. St. Ch. 216F, and pipeline routing dockets under Minn. St. Ch. 216G.

Here’s how to submit comments, deadline January 20, 2017:

Until this year, the Power Plant Siting Act Annual Hearing has included a review, rundown, listing, of all the projects approved by the Commission, including wind and pipelines, and this was anticipated at this hearing per the notice:

The full Notice:

16-0433 Notice of the Power Plant Siting Act Annual Hearing

HOWEVER… that report, “Projects Reviewed” section D, “Electric Facilities Not Subject to Power Plant Siting Act, did not occur.  I’d guess in large part it was due to the many issues raised by those intervening and participating, or attempting to participate, in wind siting dockets who have appeared at PPSA Annual Hearings over the years.  And I’m sure they did not want input from those participating and intervening in pipeline dockets, we’ve seen how Enbridge cancelled their “public informational meetings” up north after having to face the public and their legitimate issues the day before in Bemidji.  Alan Mitchell, formerly EQB PPSA staff, and now working for Enbridge, was there, so this was on Enbridge’s radar, but of course, that Alan didn’t have any comments for the record (I do wish I remembered more about the pipeline rules rewrite that he worked on during his time at the EQB, I think somewhere around 2002-2004?).

The ALJ is to write a summary of the Comments, both at the meeting, and those filed afterwards, and then?  What happens?  Experience says “not much.”  PUC staff responded to the “What happens” question saying that things that don’t require statutory changes or rulemaking, that those are things they want to impliment, to change, to improve, and to the extend that we can, we implement.  So he said.  When the report comes from the ALJ, they review it, they’ll have the transcript from this meeting, and will go over it.

There was a pretty crowded room, better attendance than for the last couple of years, with two new members of the public speaking up.  John Munter, who has been very active in opposition to the Sandpiper and now the Line 3 “replacement” pipeline issues, spoke about the difficulties of participating in the dockets, the difficult to untangle web of “need” and “route” dockets, and of the many pipeline projects ongoing.  Tina Carey spoke of the issues she and her neighborhood encountered during construction of the massive “largest in Minnesota” solar project that went up across the street, and that the complaint process was insufficient and ineffective, and the neighborhood’s complaints were disregarded.  Cynthia Warzecha, of the DNR, gave a solid synopsis of DNR activities in PPSA dockets, and I’ll note that the DNR and DOT have really gotten into the groove of reviewing projects and providing material and substantive comments for consideration, in the EIS and in the route or siting docket (and also in environmental review in Certificate of Need dockets).  Kristen Eide-Tollefson spoke as an individual with a 20 year history as a participant in routing and siting dockets, and noted for the record this legislative prelude to the transfer of environmental review from the EQB to the Dept. of Commerce:

2005 Session — Chapter 97, Article 3, lays out the purpose for transfer from EQB to PUC and DOC, of responsibilities for Siting, Routing and Environmental Review.

Environmental Review. Sec. 17. To ensure greater public participation in energy infrastructure approval proceedings and to better integrate and align state energy and environmental policy goals with economic decisions involving large energy infrastructure, all responsibilities, as defined in Minnesota Statutes, section 15.039, subdivision 1, held by the Environmental Quality Board relating to power plant siting and routing under Minnesota Statutes, sections 116C.51 to 116C.69; wind energy conversion systems under Minnesota Statutes, sections 116C.691 to 116C.697; pipelines under Minnesota Statutes, chapter 116I; and rules associated with those sections are transferred to the Public Utilities Commission under Minnesota Statutes, section 15.039, except that the responsibilities of the Environmental Quality Board under Minnesota Statutes, section 116C.83, subdivision 6, and Minnesota Rules, parts 4400.1700, 4400.2750, and 4410.7010 to 4410.7070, are transferred to the commissioner of the Department of Commerce. The power plant siting staff of the Environmental Quality Board are transferred to the Department of Commerce. The department’s budget shall be adjusted to reflect the transfer.