Commerce’s “Scoping Decision”

Filed under:Uncategorized — posted by admin on March 1, 2008 @ 1:32 pm

 I got a few calls and emails about that Commerce Scoping Decision.

Scope of Environmental Report

I fully agree… it’s a doozy!  I’d not submitted the “No CapX 2020” intervention yet, so that’s what I did — without party status, it’s hard to do anything.

NO CAPX 2020 Petition for Intervention

That done, I spent some time digging in the rules, and waiting to see what turned up in the inbox.  I didn’t have to wait long:

NAWO/ILSR Scoping Clarification & Expansion

Now the statute cited by the ALJ about ALJ jurisdiction seems to be regarding challenge of the ultimate result of the decision, challenging the Environmental Report itself.  Minn. Stat. 116D.04, Subd. 10 and 13.  Read these carefully — do you see anything about an “Environmental Report?”

    Subd. 10. Review. Decisions on the need for an environmental assessment worksheet, the
need for an environmental impact statement and the adequacy of an environmental impact
statement may be reviewed by a declaratory judgment action in the district court of the county
wherein the proposed action, or any part thereof, would be undertaken. Judicial review under this
section shall be initiated within 30 days after the governmental unit makes the decision, and a
bond may be required under section 562.02 unless at the time of hearing on the application
for the bond the plaintiff has shown that the claim has sufficient possibility of success on the
merits to sustain the burden required for the issuance of a temporary restraining order. Nothing
in this section shall be construed to alter the requirements for a temporary restraining order or a
preliminary injunction pursuant to the Minnesota Rules of Civil Procedure for district courts. The
board may initiate judicial review of decisions referred to herein and may intervene as of right in
any proceeding brought under this subdivision.

Subd. 13. Enforcement. This section may be enforced by injunction, action to compel
performance, or other appropriate action in the district court of the county where the violation
takes place. Upon the request of the board or the chair of the board, the attorney general may
bring an action under this subdivision.

But the rules do provide an avenue to challenge the scoping decision, albeit, as the Motion notes, the rules “are a bit garbled.”  Yes, that’s putting it mildly.   But here’s the rule:

Minn. R. 7849.7050
Subp. 8. Notice of decision.

At the time of the commissioner’s decision, the commissioner shall mail the order to those persons who have requested to be notified. Any person may request to bring the matter of what alternatives or impacts to include in the environmental report to the commissioner in accordance with part 4405.0600, subpart 5. Such request shall be filed in writing with the commissioner within ten days of the commissioner’s decision. A request to bring sthe matter to the commission shall not preclude the commissioner from beginning preparation of the environmental report in accordance with the commissioner’s decision.

So here we go… nothing in yet in the way of comments or replies.

UCAN Motion Denied!

Filed under:Uncategorized — posted by admin on @ 1:04 pm

UCAN had filed a Motion regarding notice to landowners:

UCAN Motion to Enforce Citizens’ Due Process Rights

The ALJ sent notice that there were 10 days to respond to the Motion, and this is what came in, from two of the parties:

Commerce Energy Facility Permitting response to UCAN Motion to … to…

Applicants’ Response to UCAN Motion

And here is the ALJ, tossing out the Motion:

ALJ Denial of UCAN Motion 2-28-08

What I found interesting about this Order is the distancing from the Environmental Report, interesting to me because I found the Scoping Decision from the Commissioner of Commerce so egregiously limiting. UCAN was complaining about lack of notice for Commerce’s scoping meetings. Here’s what she said in the Order:

Challenges to the development of the Environmental Report are not within the jurisdiction of the Administrative Law Judge. Any such challenge must be reviewed by a declaratory judgment action in the district court. Although the other parties have not challenged the Administrative Law Judge’s jurisdiction to consider UCAN’s claims, jurisdiction may not be waived.

In the judicial context, “jurisdiction” refers to “[t]he legal power and authority of a court to make a decision.” Subject-matter jurisdiction “involves a court’s authority to decide a particular class of actions and its authority to decide the particular questions before it.” This concept goes to the heart of a court’s legal authority to decide a case, and unlike personal jurisdiction, the court cannot acquire subject-matter jurisdiction “either by waiver or consent.”

The Administrative Law Judge has no role to play in the scoping of the Environmental Report or its development and UCAN’s objections are not properly raised in this proceeding. The Commissioner of Commerce has the authority to develop the Environmental Report and has not requested the assistance of the Administrative Law Judge, nor does the Administrative Law Judge have independent authority to oversee the scoping and preparation of the Report. Once the Report is complete, it must be offered into the record of the certificate of need proceeding. At that point, it will be considered as part of the evidence that contributes to the recommendation concerning the certificate of need. At hearing, the parties are free to argue that the preparation or scope of the report was inadequate, and such evidence may affect the weight that the Report is given. The parties may also argue that the report fails to address the issues identified by the Commissioner of Commerce in the decision issued pursuant to Minn. R. 7849.7050, subp 7, and may assert that the Commission should order the Report to be supplemented. The Administrative Law Judge may address those issues in findings, conclusions and recommendations to the Commission.

She referenced a section of MEPA, Minn. Stat. 116D.04, subs. 10 & 13… So that brings us to the next post…

image: detail of installation by Bronwyn Lace