Legalectric

Hot off the press,here at the Plains & Eastern EIS site!

Appendix Q contains the Comments and responses to those Comments:

EIS-0486: Final Environmental Impact Statement (Volume VII)

EIS-0486: Final Environmental Impact Statement (Volume VIII, File 1)

EIS-0486: Final Environmental Impact Statement (Volume VIII, File 2)

Here’s a very problematic statement from the intro letter:

Based on the information presented in the Final EIS, DOE has identified participation in the Project as its preferred alternative in the Final EIS.

Why?  Most improper in that the EIS is not supposed about a “preferred alternative,” which goes too far towards bias of a supposedly neutral party.  It’s pretty basic — the purpose of an EIS is to inform the record, and the decision makers, of the IMPACTS.  It is not a decisional document, it is not the basis for a recommendation.  Add to that the lack of a thorough evaluation of need, which, particularly in this case, is to be the deciding factor.  A project of this magnitude doesn’t go forward just because, or because the developers want it.  That’s not enough.  It’s about need.  If you search the Table of Contents, there is only one mention of “need” in the intro, talking about the “need” for an EIS, and there is one section in the text, entitled “Department of Energy Purpose and Need.”  There doesn’t seem to be any evaluation of need for the P-R-O-J-E-C-T!

Here ’tis:

Final Environmental Impact Statement (EIS) for the Plains & Eastern Clean Line Transmission Project

And HERE’S a nearly verbatim cut and paste of their email, release of yet another FEIS from the Department of Energy:

Plains & Eastern EIS You are receiving this email because you signed up to receive information and updates about the Plains & Eastern EIS. Thank you for your interest in this project. The Final Environmental Impact Statement for the Plains & Eastern Clean Line Transmission Project is now available The Final Environmental Impact Statement (DOE/EIS–0486; Final EIS) is available on the project website at http://www.plainsandeasterneis.com/interactive-map/maps-and-documents.html and on the DOE National Environmental Policy Act (NEPA) website at http://energy.gov/nepa/environmental-impact-statements-eis. DOE has not made a decision regarding the proposed Plains & Eastern Clean Line Transmission Project. DOE is the lead federal agency for the preparation of the Final EIS, which examines the potential environmental impacts from the Applicant Proposed Project and the range of reasonable alternatives. The Applicant is Clean Line Energy Partners LLC of Houston, Texas, the parent company of Plains and Eastern Clean Line LLC and Plains and Eastern Clean Line Oklahoma LLC (collectively referred to as Clean Line or the Applicant). The Final EIS considers comments submitted on the Draft EIS, including those submitted during the public comment period that began on December 19, 2014, and ended on April 20, 2015. Late comments have been considered to the extent practicable. During the comment period, DOE held 15 public hearings in Oklahoma, Texas, Arkansas, and Tennessee. Approximately 950 comment documents were received from individuals, interested groups, tribal governments, and federal, state, and local agencies. In addition to numerous comments that provided a statement of general opposition or support, the primary topics raised include, but are not limited to: concern about electric and magnetic fields from the transmission line; concern about reductions in property value; concern about impacts to agricultural resources such as crop production, irrigation, and aerial spraying; concern about the use of eminent domain; and concern about visual impacts from the transmission line. A Comment Response Document, included as Appendix Q of the Final EIS, contains the comments received on the Draft EIS and DOE’s responses to these comments. Parallel with the NEPA process, DOE is evaluating Clean Line’s application under Section 1222 of the Energy Policy Act of 2005. This non-NEPA evaluation includes, but is not limited to, reviewing the application against statutory criteria and other factors listed in the 2010 request for proposals (75 Federal Register 32940). An outcome of this evaluation could be a Participation Agreement between Clean Line and DOE, which would define under what conditions DOE would participate with Clean Line and, if applicable, would include any stipulations or requirements that resulted from this environmental review under NEPA. The DOE Office of Electricity Delivery and Energy Reliability website (http://www.energy.gov/oe/services/electricity-policy-coordination-and-implementation/transmission-planning/section-1222-0) provides more information about the Section 1222 evaluation. If DOE decides to participate in the proposed Project, it will publish a Record of Decision no sooner than 30 days after publication of the U.S. Environmental Protection Agency’s (EPA) Notice of Availability in the Federal Register. Copies of the Final EIS and supporting documents are available for inspection at public reading rooms. Have questions? Email us at info@PlainsandEasternEIS.com

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.

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.

My clients have a tendency to hang around like bad habits — once awake to utility schemes, they take a bite and won’t let go.  I’ve been blessed with an active bunch, and today I woke up to another example.  Nancy “BOOM!” Prehn is one of my faves, she lives on top of the only natural gas underground storage dome in Minnesota, under about 10 square miles north of Waseca.  She singlehandedly got an EAW on how the gas company was handling water.  At the time, they were releasing water from wells onto their fields, and it wasn’t helping the corn and beans any.  Turns out it wasn’t seriously polluted, and the gas company had to build a water treatment facility and storage tanks at each well to contain the water, and then suck it out, bring it over to HQ and run it through the treatment system before releasing it.

Nancy has a way of being ahead of the curve, and when she starts digging, look out.  Now she’s working on tax credits for those with utility infrastructure on their land, like a natural gas dome!  It’s needed for gas and oil pipelines too!

Here’s what she found today, from the 1979 legislative session, check Article 2, Section 20, a tax credit for landowners living under transmission lines — how did I not know this?

And it’s still law today:

Minn. Stat. 273.42

How much is this tax credit?  Well, it’s complicated… and there’s a ceiling, see the statute for specifics:

The amount of credit for which the property qualifies shall not exceed 20 percent of the total gross tax on the parcel prior to deduction of the state paid agricultural credit…

It was enacted during the last transmission build-out, circa 1979, and has been changed many times over the years:

PJM’s Plan for Delaware

Sure hope so — they’ve got it coming.  Cost apportionment is a big issue, and for PJM, well, they’d taken their cost apportionment dream to FERC, got the FERC rubber stamp, but it seems they’ve not done a good job of it, according to the Federal Court — that’s old news:

Illinois Commerce Commission v. FERC August 6, 2009

Fast forward to today — turns out Delaware’s Gov. Markell is objecting to costs assessed to Delaware ratepayers, (though I’m not seeing any objection to the project itself coming out of Delaware).  DOH!  He’d better, this project does nothing for Delaware.

Here’s the PJM Planning doc that tells all:

PJM White Paper Artificial Island Project

Note on the first page the statement of need, of why this project is wanted — this is really important:

PJM specified that solution proposals must improve stability margins, reduce Artificial Island MVAR output requirements and address high voltage reliability issues.

So let me get this straight — they’re having stability and reliability issues and PSEG wants to reduce Artificial Island MVAR output requirements, and want to charge Delaware ratepayers for this?  PUH-LEEZE… This is a benefit to PSEG, not Delmarva…

And look what our big-coal friends at ODEC have to say:

ODEC letter regarding Artificial Island 7-29-2015

This project taps into the new line that was built not long ago:

Delaware has no regulation of transmission need or siting — so utilities can pretty much do whatever they want.  Further, it’s a FERC tariff, so the state doesn’t have anything to say about it going into the rates, and cost apportionment.  Great, just great.  So now Markell is objecting?  It’s a little late…

Delaware needs legislation — legislation like a “Power Plant Siting Act” and a legislative requirement of a need determination for whatever infrastructure they think they want.  They need legislation specifying that only Delaware utilities can own and operate transmission in Delaware (see House Bill 387 from the 2014 session).  Here’s what House Bill 387 would have done (It would have been an effective good start, protective of Delaware!), establish that a utility wanting to construct and operate transmission demonstrate NEED!  Here’s the wording, though it would require quite a bit more, and some solid rules, to be effective:

(5)Public utility electric transmission service providers must have a certificate of public convenience and necessity for the construction and operation of any new electric transmission lines operating at 100KV or greater and located in the State or offshore waters and integrated with the State electric transmission grid.In granting such certificate, the Commission shall consider:

a.the need for the proposed transmission line;

b.the impact on the reliability of the transmission grid

c.the long term viability of the public utility proposing the line;

d.the technical engineering and operating expertise of the public utility;

e.the technology and design proposed for the new transmission line; and

f.the economic and safety impact of the proposed transmission line.

Here’s the report about this PJM approval from Jeff Montgomery, News Journal:

Disputed cost-shares remain in plan for new power line

Note this snippet:

PJM officials said regional and federal rules and precedents obliged the organization to assign 99.99 percent of costs to Delmarva’s transmission zone, mostly in Delaware and Maryland.

The total includes the cost of a $146 million power line installation under the Delaware River and $68 million worth of transformer and substation work by Public Service Electric and Gas at the Artificial Island nuclear complex along the Delaware River southeast of Port Penn.

The Delaware Public Service Commission estimated that transmission costs would increase by about 25 percent in Delaware because of the plan.

“For the average residential consumer, monthly electric bills could increase by several dollars. For the average business, the increase may be more significant,” Markell said in his objection. “Some of our heaviest users could see increases of hundreds of thousands of dollars.”

And here’s the schedule for this project going forward from the PJM Board meeting yesterday:

Seems there’s an opportunity before the FERC ALJ.  But before then?  What is Delaware going to do?  Well, take a look at what Illinois did when it didn’t appreciate the FERC Cost Apportionment scheme — they sued FERC and won, based on the notion that if they weren’t benefitting, they shouldn’t be the ones paying:

Illinois Commerce Commission v. FERC August 6, 2009

The FERC Cost Apportionment scheme was remanded, and it’s in settlement negotiations right now.  What is Delaware doing in that docket?  To review the public postings, go HERE and search for FERC Docket EL05-121.  The next settlement conference is Thursday, August 6, 2015, starting at 10:15 a.m. in a hearing room at FERC HQ.  Delaware is represented in this, at least there are Delaware PSC staff listed on the service list, Janis Dillard, John Farber, and Robert Howatt.  So what are they doing about this cost apportionment scheme?  Seems this settlement conference is just the place for raising a stink about the PJM cost apportionment scheme, to raise issues of “benefits” and “cause cost, pay” arguments.  Are they showing up and speaking up for Delaware?