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Carol Overland - Legalectric
Carol A. Overland, Overland Law Office -- Utility Regulatory and Land Use Advocacy
Updated: 1 hour 29 min ago
AAAAAARGH, how did I miss this? Though I couldn’t have afforded to attend…The Sinkhole Conference: Multidisciplinary Conference on Sinkholes and the Engineering and Environmental Impacts of Karst
Friday afternoon is the Karst Field Trip!!!
And it’s in the Post Bulletin too:What you don’t know about sinkholes can hurt you
I’m remembering how important karst was in the nuclear waste mess, because the “alternate waste mandate” required nuclear waste be sited “in Goodhue County” but Goodhue County is 1/2 active karst, and the rest “transition” or “covered” karst. Karst was the major factor that lead to the sites in Florence Township, based on the USGS maps at the time. This map above would rule out Goodhue County!
It’s a conference week! Tuesday and Wednesday, it was an asbestos-like fiber conference about health and environmental impacts. Alan’s interest, and I had piles of work to do, good environment at the EPA library!
Back to work after some “time off” (not really, because campgrounds are not immune from internet access, and an advocate’s work never ends). For the first time, we loaded up the van and headed east, to Wisconsin’s Mirror Lake State Park. I was a little skeptical, given how Walker’s been gutting the state, but it was great! Other than extreme highway noise during the week (which we couldn’t hear Monday night due to the intense rain all night, couple inches at least), it’s an amazing park. The camp sites are huge, and there’s a lot of space and trees between them. We were on a cul de sac, spot 137, which was way up over the lake.
Little Sadie loves to go camping, rather than trudge along on her walks, she perks up and is trotting and sniffing like a pup. And afterwards, does she snore up a storm.
This is the perfect time of year to get out. Weather is cool, no bugs.
And we also took a quick jaunt down to Devil’s Lake State Park, and while the lake is beautiful, the campground is like a bare golf course — I cannot understand why anyone would camp there. Mowed lawn, neighbors are right there, like camping in a big field. EEEEEUW. Here’s the lake, with glacial rock piles along most of the edges:
I find it’s hard to pack up and come back to the unreal world… we seem to stay for an extra day. I remember my father spending the winters planning the summer vacation, and now with the internet, it’s an addicting thing, but the resulting getaway is even better.
Next trip… back to Arkansas via Pere Marquette on the Mississippi? Hell Creek State Park in Montana, a tour of the dams on the plains, via the Black Hills? All of the above!
The 20 mph flashing sign hasn’t been very effective, so we’ve had this serious traffic calming regimen coming up the hill, and yes, people ARE slowing down! Well, it’s either that or break an axle. So they do, and wind around doing the serpentine, one yahoo ran over a barrel and left a big chunk of bumper in the street, DOH! How do you not see an orange barrel with reflective stripes?!?!
Today they’re filling them in, blocking off one lane of road, ratcheting it up to a “traffic stopping regimen” which is great. But when College Ave. is closed for utility tree cutting, and the intersection of Putnam and Pine is tore up to fix the huge cavern under the side walk and equipment lined up along Pine, it’s kinda hard to get from here to there today!
Will the fix the bank over the Great West Wall?
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.
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:
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:
And Certificate of Need draft rules:
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.
Photo – Gretchen Hoffman, Capitol Chat
John Howe has announced he’s running for Congress in Minnesota’s 2nd Congressional District. It’s all over the web. I’d wager a fair amount that John Howe would win the election. The good news is that Drazkowski will not run, Dog help us if he did (though it would get him out of the MN House!). What I know about Howe is that as Mayor of Red Wing, and as our area state Senator, he stood up to Xcel Energy on its Prairie Island uprate and worked to get the full story out, and Xcel Energy did ask that the Certificate of Need be revoked/withdrawn after it was clear that there was no need for the uprate. Howe also returns phone calls, and he’ll stop for a chat at the Farmers Market.
He was working for a bipartisan legislative environmental lobbying/caucus org of some sort, so I hope that he’ll continue with that mindset. But given the MPR blurb below of Howe’s early campaign stop at a Red Wing Tea Party meeting, that gives me the willies, and I do hope he’s not taking that party line. He also says he’ll put in $500k of his own money toward the campaign. If he’s got that kind of money to throw around, and buys in to the “pay to play” notion, that’s a concern. He’s been a moderate, sane voice, and if he continues on in that vein, he’ll win. If not, if he goes off like Republican Presidential candidates these days, well, he’ll have trouble in this swing district.
We shall see…
Here’s the MPR article:Howe enters race for Congress
And on Hubbard’s KSTP:Former Sen. John Howe to Run for Congress
How’s this for an awkward headline from the Red Wing Republican bEagle:Howe will attempt to win congressional seat
Winona Daily News:Howe’s in, Drazkowski’s out in race for open Congress seat
In the STrib and STrib blog:Former GOP state senator joins race to succeed Kline Former state senator enters race for Rep. Kline’s seat, adding to smaller-than-expected field
In the StPPP and StPPP blog:2nd Republican announces bid to replace Rep. John Kline Howe runs for Second District as ‘conservative’ but ‘electable’
I think that last headline pretty much sums it up for CD2!
WHAT!?!?! Yes… Really… after the delightful decision from the Appellate Court requiring an Environmental Impact Statement, telling the Public Utilities Commission that an EIS must be completed before a Certificate of Need can be issue, the Applicants dropped Petition. Read this whale-eye inducing filing from North Dakota Pipeline Company, LLC (a/k/a Enbridge) hot off the press:
Here’s the short version:
Once more with feeling, here’s the Appellate Court’s decision:
And the bottom line:
So from this order of the Appellate Court “to complete an EIS” the Applicant now asks for the “need” docket and “routing” docket to be brought back together and to use the “Comparative Environmental Analysis” that the Appellate Court says isn’t sufficient. Yes, that what they’re saying:
What planet is North Dakota Pipeline Company living on? Earth to Mars!!!!! A “CEA” is not sufficient. MEPA requires an EIS. The court told the Public Utilities Commission to complete an EIS. The Court did NOT say to go ahead with a “CEA.”
It’s fall, the sun is rising on the other side of the house and bluff now, and I’m not ready! Getting out to enjoy fall as much as possible, and then Little Sadie and I are heading to St. Louis soon for BaronFest III (didn’t have one last year). Maybe down to Arkansas to catch fall later! This is the first BaronFest where I don’t have a German Shepherd, and I’m not sure how Little Sadie will fare.
It’s hard to feel motivated to work with all this transmission going up here in Minnesota. Earlier in the summer, we went down through Wabasha, and south of Wabasha where CapX Hampton – La Crosse cuts across the Mississippi River to Alma, through La Crosse and checked out the Briggs Road substation, host to CapX and Badger Coulee transmission, to Cassville and Dubuque and back up further west, a tour of electric infrastructure.
Don’t they have enough? If they’re shutting down this coal plant, why would they need transmission? How about using that capacity… oh, right, they get that 12.38% or thereabouts for building transmission, that’s their primary revenue source these days!
Time for a break…
Until then, I can vicariously enjoy my SiL’s trek along El Camino, and transmission lines too, in Spain. Go, Jeanne, go!!!
Yesterday, the Arkansas Delegation hit Plains & Eastern Clean Line where it counts — a line drive to the Secretary of the DOE with this letter:
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.
Today the Minnesota Court of Appeals finally determined that under the Minnesota Environmental Policy Act, a full Environmental Impact Statement, not the abbreviated “Environmental Report,” is required. I’ve been before the Appellate Court, the Public Utilities Commission, the Administrative Law Judge, in Comments to the Dept. of Commerce, and at the Rulemaking Advisory Committee for Minn. R. ch. 7849 how many times on this?!?!? … sigh… OK, whatever…
Sent this to the PUC’s rulemaking staff because we’ve got to make sure the Certificate of Need rules are in line with this decision:
So back to today’s Appellate decision — I’m glad they’re finally acknowledging this problem. Very, very glad to see this order to remand to the Public Utilities Commission for a full Environmental Impact Statement, as required by the Minnesota Environmental Policy Act.
Here is the decision:
Here’s the meat of it — it’s so simple — why did it take so long?
Here the MPUC deviated from its usual practice and chose to conduct the certificate of need proceedings prior to the routing permit proceedings. As a result, the MEPA-compliant environmental review associated with the routing permit would not occur until after a decision was made on the certificate of need. Neither party challenges the underlying decision to bifurcate the proceedings, but FOH argues that making a decision on the certificate of need in the absence of an EIS violates MEPA. The MPUC and NDPC contend that requiring an EIS at the certificate of need stage is inconsistent with the EQB’s longstanding determination that the alternative environmental review conducted as part of the routing permit proceedings satisfies MEPA. We agree with FOH, and see this as a simple question of statutory interpretation that requires us to examine the plain meaning of two MEPA provisions.
Relying on subdivision 2b, FOH contends that the issuance of a certificate of need constitutes a “final governmental decision” to grant a permit, and as such is prohibited until an EIS has been completed. We agree. For purposes of MEPA, the definition of permit includes a “certificate, or other entitlement for use or permission to act that may be granted or issued by a governmental unit.” Minn. R. 4410.0200, subp. 58 (2013) (emphasis added). This unambiguous definition encompasses a certificate of need. All parties also agree that once the MPUC decides to grant a certificate of need, its decision regarding the issuance of that specific permit is final. Therefore, based on the plain language of subdivision 2b, the MPUC’s issuance of a certificate of need constitutes a final governmental decision that is prohibited until the required environmental review is completed.
We are also not convinced that an EIS is not required before a certificate of need may be issued simply because the EQB has approved the environmental assessment associated with the routing permit process as an adequate alternative to a formal EIS. While the substance of this alternative review process may be equivalent to an EIS, its approval as an alternative by the EQB says nothing about when a final governmental decision to grant a permit may or may not be made in the absence of an EIS, which is specifically addressed by subdivisions 2a and 2b. Minn. Stat. § 116D.04, subds. 2a, 2b. We also note that the legislature could have clearly stated that a certificate of need for a large oil pipeline was excluded from the environmental review requirements of MEPA, but it declined to do so. See Minn. Stat. § 116D.04, subd. 2a(a) (authorizing EQB to establish categories of action for which an EIS is mandatory and identifying certain actions for which an environmental assessment worksheet or EIS shall not be required). As a result, in the absence of a statutory exclusion or an explicit statement by the EQB that the approved routing permit application process supplants the need for environmental review at the certificate of need stage, subdivisions 2a and 2b must control our determination of whether environmental review is required. The unambiguous language of those provisions mandates that in a situation such as this, when the MEPA-compliant environmental review would not occur until after a certificate of need was issued, an EIS must be completed as part of the certificate of need proceedings.
Finally, we point out that requiring an EIS during the initial certificate of need proceedings affirms the emphasis MEPA places on conducting environmental review early on in the decision-making process. Specifically, MEPA states that, “[t]o ensure its use in the decision-making process, the environmental impact statement shall be prepared as early as practical in the formulation of an action.” Id., subd. 2a. This emphasis on timing is also consistent with the way federal courts have applied the National Environmental Policy Act (NEPA), which we may look to for guidance when interpreting MEPA. See Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 468 (Minn. 2002). The United States Supreme Court has explained that the early-stage environmental review similarly required by NEPA is critical because it “ensures that that important [environmental] effects will not be overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S. Ct. 1835, 1845 (1989)
In this case, the completion of an EIS at the certificate of need stage satisfies the imperative identified above by ensuring decision-makers are fully informed regarding the environmental consequences of the pipeline, before determining whether there is a need for it. Moreover, completion of an EIS at the initial certificate of need stage seems particularly critical here because once a need is determined, the focus will inevitably turn to where the pipeline should go, as opposed to whether it should be built at all. We acknowledge that the MPUC did order a high level environmental review to be considered during the certificate of need proceedings. But as the MPUC noted, this review was not meant to serve as a substitute for the more rigorous and detailed review needed to satisfy MEPA, and it cannot take the place of a formal EIS now. Accordingly, we conclude the MPUC erred by not completing an EIS at the certificate of need stage as MEPA requires.
Many thanks to the “little birdie” who brought this decades old report to my attention:
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:
- 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.
- The formal public notice mechanisms may be inadequate to ensure timely notice and meaningful participation in rulemaking; and
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?
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.
- 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.
- 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;
- “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;
- 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
… and …
- 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.