NO Grid North Partners – transmission f/k/a CapX 2020

Wondering how to celebrate Bastille Day this year?  Come on, let’s storm the PUC!

Now’s the time to start figuring out your Public Comments for the PUC on the Brookings routing docket.

CAPX 2020 BROOKINGS ROUTING DOCKET

COMMENTS AND ARGUMENTS ON TUESDAY, JULY 13, 2010

DELIBERATE ON THURSDAY, JULY 15, 2010.

Notice is coming out tomorrow, Bob Cupit was kind enough to let us know that the PUC will hear Public Comments, and also Oral Arguments of the parties (all 2 of us!):

Tuesday, July 13, 2010 @ 9:30 a.m.

Public Utilities Commission

121 – 7th Place East, Large Hearing Room

St. Paul, Minnesota

Here’s a memo from Bob Cupit explaining the process:

PUC – Brookings Scheduling Memo

There are some important rules here to be aware of for those of you PUBLIC COMMENTERS — from the memo:

YOU MUST PREREGISTER TO SPEAK.  Call 651-296-0406 or 800-657-3782 (“Option 1”) or email PublicComments.puc@state.mn.us — tell them your name, phone number, and group affiliation if any.  CONTACT THEM BY JULY 12 @ 9:30 a.m.

• Public comment will be taken in the order in which registration was received.
• Each person will have three to five minutes to speak.
• Persons who wish to speak are encouraged to provide summary positions on the facts in the case record.
• Please note that all comments from previous public hearings are in the official record, presented on pages 1-2 through 155 of the Report of the Administrative Law Judge, and reviewed by the PUC Commissioners prior to the meeting.  Because the hearing record is closed, no new evidence can be accepted.  However, commenters may provide written documentation that supports summary positions.  Nine (9) courtesy copies of any written submissions are encouraged but not required. [NoCapX Comment: BRING COPIES – THIS HELPS THEM FOLLOW YOUR COMMENT!]
• Persons associated with one of the formal parties listed below should expect their positions will be presented during oral argument by the parties.

Get ready… we’ve got about two weeks.

Here’s the ALJ’s Recommendation for a little light reading:

FINAL Recommendation for CapX 2020 Brookings-Hampton route

And don’t forget that the St. Cloud-Monticello routing docket is before the PUC on Thursday, July 8th, at the tail end of the agenda!

ALJ’s Recommendation for St. Cloud to Monticello

Two CapX 2020 transmission-related issues are before the PUC on July 8th, so do mark your calendars!

July 8 PUC Meeting Notice & Agenda

3rd and 8th on the agenda:

The following items will not be heard before 10:30 a.m.

3.     E-002/M-09-1048 Northern States Power Company d/b/a/ Xcel Energy
In the Matter of the Petition of Northern States Power Company, a Minnesota Corporation, for Approval of a Modification to its TCR Tariff, 2010 Project Eligibility, TCR Rate Factors, Continuation of Deferred Accounting and 2009 True-up Report.

8.     E002, ET2/TL-09-246 Northern States Power Company (dba Xcel Energy); Great River Energy
In the Matter of the Application for a Route Permit for the Monticello to St. Cloud 345 kV Transmission Line Project.

Should the Commission find that the Environmental Impact Statement (EIS) and the record adequately address the issues identified in the Scoping Decision?

Should the Commission issue a Route Permit identifying a route and permit conditions for the Monticello to St. Cloud 345 kV Transmission Line? (PUC: DeBIeeckere; OES: Birkholz)

And here’s a powerpoint from January 2005 (it popped up in a Google Alert this morning):

CapX2005co_tf

The last point in this says it all:

… and yours truly too… though the names of NoCapX 2020 and U-CAN were not mentioned.  Probably because those two names say it all!

It’s always about economics, as is CapX:

ICF – MISO Benefits Analysis Study

This is about the capital costs of transmission.  Capital costs of transmission have heretofore (HUMPH!) been paid by those utilities constructing transmission, and then they recover reasonable and prudent expenditures in the rates.  Now they’re wanting to change the rules of the game, have to some extent already — Construction Work In Progress (CWIP) costs are now recoverable (Minn. Stat.216B.16, Subd. 7b).  They want to changes the rules even more, and I can see a few reasons.  First, there is no capital to be building huge infrastructure projects.  The CapX Certificate of Need record reflects that the promoters were looking to Lehman Bros. for money!  That got a snort in the hearing, not reflected in the record.  Second, utilities can recover CWIP, they’re public service corporations, but a transmission only company is not a public service corporation.  Sooooooo, if the CapX utility developers can recover their costs now as “utilities” and what happens when/if they transfer the “transmission assets” over to a transmission only company (which is also now allowed for the first time thanks to that 2005 transmission bill, see Minn. Stat.216B.16, Subd. 7c.)???  And then, the MISO tariff, which needs to be approved by FERC, and which then is probably going to be the subject of a challenge in Federal Court, all that is up in the air!  So, utility transmission promoters and developers don’t want to go beyond dipping their toe in the water, they aren’t about to put their own capital at risk!  It’s so much more fun to screw around with ours!

So, back to the St.PPP article.  The headline of today’s article bothers me because I’d say it’s not so much “sharing the cost of shipping wind energy” as “shifting costs away from transmission owners.”

1. It’s not sharing, it’s a cost shift. The idea is for someone, anyone, other than the project proponents to pay, for someone, anyone, other than those owning the infrastructure to pay.  As for CapX, we don’t even know who the ultimate owner will be, THEY REFUSE TO DISCLOSE;
2. It’s not “shipping,” it’s the construction capital costs at issue. Transmission service cost, “shipping,” is in the tariff, though not in the busbar cost, the cost focus of economic dispatch, and it should be, as should costs for reactive power and line losses, because power is cheap as long as you don’t consider the costs; and
3. It’s not wind, it’s electric generation connecting to the grid, be it wind, coal or whatever! Transmission service providers must be open to all, wind, coal, hydro, nuclear.

And that Marya White, Dept. of Commerce, it’s good a regulator recognizes that the East Coast does not want Midwest transmission (the don’t want it because it’s too costly, doesn’t address East Coast renewable energy development, AND that it’s for COAL!  See DUH… eastern states don’t want our transmission), she’s missing an important aspect of why “a lot of eastern states are not crazy about that.”  There is that teensy matter of the FEDERAL COURT not liking it either, and given that they tossed out the PJM scheme to shift costs to the entire PJM region, MISO had best be very, very careful and not be shifting costs to those who do not benefit, that they very explicitly lay out why they are apportioning as they propose:

Illinois Commerce Commission v. FERC – Aug 6, 2009

This cost shifting is “new.”  They’re trying to do it differently than it was in the days of gas plant proliferation.  Plants like Lakefield Jct. didn’t have any interconnection costs, and then when we got around to the SW MN 345kV line (often falsely called the 825MW wind line) we were at a deficit, and had to put in a lot of infrastructure before even 1MW of ANY generation could be put into the system.  INCLUDING THE LONG PROBLEMATIC FT. CALHOUN INTERFACE IN NEBRASKA!!!  Cost shifting isn’t anything new, but it must be recognized as such to get a handle on what the “problem” is and what will solve it — and more importantly, IF it is a problem that needs solving.

Here’s the article in the St. PPP:

MISO unveiling plans to share costs of shipping wind energy
Cost-sharing plan proposed, but industry advocates say it’s still too expensive

By Leslie Brooks Suzukamo
lsuzukamo@pioneerpress.com
Updated: 06/20/2010 11:33:17 PM CDT

A yearlong, behind-the-scenes struggle among wind developers, utilities and transmission line owners is coming to a head Tuesday. At stake is Minnesota’s and the rest of the Upper Midwest’s aspirations to build a business of exporting wind energy to other parts of the country in the coming decades.

The fight centers on who pays for the construction of costly high-voltage transmission lines expected to carry electricity from isolated wind farms to the Twin Cities, Chicago and points east.

Wind energy advocates who have seen early drafts of the new rules say a plan to require energy generators to pay about 20 percent of the cost of new lines — whether they use wind, coal or any other fuel — is too heavy a burden for their industry.

If the 20 percent share goes through, wind industry advocates say projects may leave the region for other parts of the nation where the costs of new transmission is cheaper.

The defections would slow down efforts to turn the Upper Midwest into a wind energy powerhouse, they say.

Some of the nation’s strongest wind resources are locked in a corridor running from the Dakotas down to Texas, and tapping the excess wind resources can generate sales to eastern states with renewable energy needs but less wind resources. It might also persuade more turbine and blade manufacturers to build facilities here instead of shipping their products from overseas.

The Midwest Independent Transmission System Operator, the
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group that controls the Midwest’s largest power grid, expects to lay out Tuesday a new way to share the costs of the lines throughout its 13-state territory, which stretches roughly from the Dakotas to Ohio and includes Manitoba, Canada. The plan will be unveiled at MISO headquarters in suburban Indianapolis.

Then MISO must submit its new cost-allocation idea to the Federal Energy Regulatory Commission on July 15.

MISO says it’s still considering reducing the 20 percent cost-share on the energy generators. MISO might even spread the entire cost of projects across utilities throughout its entire 13-state area, which would dilute the impact, said Jennifer Curran, executive director of transmission infrastructure strategy for MISO.

Curran said MISO is not responding to complaints solely from the wind industry. Different interest groups have weighed in with some degree of unhappiness, participants agree.

But it is regional wind developers who are threatening to pull proposed projects from the waiting line to get on MISO’s grid if MISO doesn’t make an adjustment, warned Wind on the Wires, a regional wind industry association based in St. Paul.

“They’re going to be voting with their dollars,” Wind on the Wires executive director Beth Soholt said.

“The big enchilada here is to develop much more (wind energy) than is needed here and ship it out,” she added.

MISO said it is trying to figure out an equitable way of paying for these new projects. Under the grid operator’s present rules, roughly 90 percent of the costs would have to be picked up by power generators such as the wind developers, while only 10 percent would be paid by the rest of MISO utilities in its 13-state territory that buy power, Curran said.

That tended to work when projects had strictly local impact, but these new projects tend to cross broad areas, which runs up the cost, observers said.

So MISO staff came up with a classification called the Multi-Value Project that would divide the cost of projects, with generators such as wind, coal and other plants paying roughly 20 percent of the cost and the remaining balance spread out among the utilities buying power in the 13-state MISO territory.

This 20/80 split flips the 90-10 formula, but wind developers say it’s still too expensive.

“Sure, it’s 20 percent, but we ask, 20 percent of what?” Soholt said. High-voltage transmission is so expensive that the 20 percent share adds up to more than wind developers can shoulder, she said.

A prime example could be the $700 million to $725 million Brookings Line proposed in the state’s three-line, $1.7 billion CapX 2020 project spearheaded by Xcel Energy and Great River Energy.

The Brookings Line extends from Brookings, S.D. to Hampton in Dakota County. It is the “poster child” for delivering renewable energy from the Dakotas and the Buffalo Ridge region in Minnesota’s southwest where many wind farms are already located, said Terry Grove, co-executive director for CapX 2020 and Great River Energy’s director of transmission.

There’s no guarantee the Brookings Line would qualify for MISO’s Multi-Value Project classification. But with its emphasis on carrying wind energy and increasing the reliability of the grid, it appears to be just the kind of multiple-purpose project for such a classification.

Great River Energy and Xcel Energy both support the concept of the Multi-Value Project for projects such as Brookings, but they are waiting for MISO to unveil its proposal before saying whether they support the new rules, officials from both utilities said.

State regulators are also watching.

While the Minnesota Public Utilities Commission is taking a wait-and-see approach, another agency, the Minnesota Office of Energy Security, prefers that utilities benefiting the most from the transmission projects pay the greater share for them.

Since a large project such as a Brookings Line could open up renewable energy to eastern states, the burden could migrate into the Rust Belt, said Marya White, manager of energy regulation and planning and energy facilities permitting for the state’s Office of Energy Security.

But White acknowledges that “a lot of eastern states are not crazy about that.”

Charging only the utilities that benefit from transmission lines is the fairest way to divvy up their costs, even though that may make projects less attractive, said Rochester attorney Carol Overland, who represents two groups of landowners opposed to the Brookings Line.

Spreading the cost of a Brookings Line across the entire MISO territory hides the true costs, she said. “The entire grid isn’t going to benefit from it,” she said.

The Brookings project recently got approval from the Minnesota PUC to push back its start date from 2013 to 2015 because it is waiting to see if MISO’s proposal gets federal approval.

The American Wind Energy Association, the industry’s largest trade group, has no opinion on MISO’s ideas.

But the association endorsed a plan in the neighboring Southwest Power Pool that covers states such as Kansas, Mississippi and New Mexico.

That grid operator does spread out the cost of high-voltage transmission across its entire footprint, and FERC approved that plan last week.

Upper Midwest wind developers have already started to hedge their bets.

Jack Levi, co-founder and co-chairman of National Wind, a development company in Minneapolis, said his company has 2,200 megawatts waiting to connect to the grid in Minnesota, Iowa and South Dakota.
i
But he stopped proposing wind projects in the MISO territory about 18 months ago and instead proposed them for states such as Colorado, Texas and Montana outside MISO.

He moved because if his MISO-bound projects cannot compete with wind energy from other grid operators, he’s afraid utilities will simply buy their wind power elsewhere, like Kansas, for example.

“If MISO doesn’t provide the same level of cost for its electricity as other system operators, MISO will be at a disadvantage,” he said.

Another little birdie told me that there were filings in both the CapX 2020 Certificate of Need docket (06-1115) and the Brookings routing case.   I’d checked yesterday about noon or so, go figure… and I’m not receiving notice of these filings electronically.  Are you?  The system has a problem.

Certificate of  Need(06-1115) – CapX 2020 has requested approval of delay of the in-service date for the Brookings-Hampton transmission line.  To access the entire docket, go to www.puc.state.mn.us, then “Search Documents” and then search for 06-1115.   We had a short hearing after Commerce asked for a variance and additional time for comments and responses.  The PUC agreed, and didn’t deal with other issues — here’s their notice:

Notice – Comment & Reply deadlines

Here’s the upshot:

The exciting news — US Fish & Wildlife Service has now filed additional comments in the Brookings routing docket.  To access the entire docket, go to www.puc.state.mn.us, then “Search Documents” and then search for08-1474.  These just were filed, though the letter is dated last Friday, and they’re pretty direct.  :

USFWS Letter to Great River Energy

And here are the main points (click on the link above if you want a better view):

Is Belle Plaine paying attention?

Today’s PUC meeting was about the narrow issue of whether the PUC should issue a variance from typical deadlines to give parties more time to address the “CapX 2020” applicants’ request for delay of the in-service date for the Brookings line Certificate of Need.  And I mean NARROW, they don’t even want to think about requiring that CapX applicants comply with the Certificate of Need Order Point 4 that they disclose the transmission capacity and ownership and ownership structure for each of the projects.

You can see the meeting here – it’ll be posted soon, I hope, watch how quickly Chair Boyd ducks the capacity and ownership issue:

PUC Agenda Meeting Webcast Archives

Here’s some good news — in the Cannon Falls Beacon, a Letter to the Editor from Dr. Therese Zink:

To the Editor:

Nobody wants the CAPX2020 in their backyard, especially in Goodhue County where many property owners have smaller plots of land, such as mine, which is 20 acres. The 345 kV transmission line with their single shaft steel poles demanding 150 feet right-of-way, spaced 700 to 1000 feet apart, will be an eye sore, magnified when compared to the size of my parcel. What will that do to property values, not to mention aesthetics? We’ve seen reports that the electricity moving through the wires  impacts a farmer’s GPS system and my neighbor’s pacemaker. There are reports of getting shocked if you touch your metal shed. What will it do to electric fences, computers, internet and cell phone service? Not to mention the horses next door, my friend’s organic farm, or her several decade-old sledding hill and reflecting spot that will have  electric wires singing overhead.

The bottom-line is that Xcel Energy has not made its case that the power line is needed. Instead, many factors point the other way. Things have changed since Xcel did its forecasting in 2004-05. There are claims of growing needs in Rochester, of demand for the Elk Run development. There is claim of the  need to expand to assure reliability, and the rural folks can take the headache for the more populated areas, but has Xcel made their case?

According to Rochester Public Utilities’ annual report, demand peaked in 2006 and has fallen since. The same is true of Xcel, our largest utility. As to the reality of Elk Run: “A lot of people outside that group [the Elk Run developers] are watching right now because the project has been in the planning phases for so long that many say they won’t believe the project is real until they see a building.” (Rochester Post Bulletin 4/27/10). Part of the land is in foreclosure. If there is not increasing need and use, then guess whose rates will go up? You got it -you and me.

So…if we aren’t in a big hurry, can we do a better job of planning. I attended the Pine Island information meeting May 5. An astute citizen suggested that we do a better job of planning for the future. Minnesota doesn’t have an energy plan. Xcel, those behind the train that will run between the Twin Cities and Rochester, and those developing wind energy should all get together and do some joint planning so that energy and development targets the area where it’s needed, and the locals don’t get bothered about right of way issues for the different many projects one at a time.  “Can’t we coordinate these developments for the future?”  I thought that was a great idea.

My advice is that CAPX2020 be put on hold until there is a better job of planning for the energy and transportation needs of the future. Last week, CapX 2020 asked for a delay of the Brookings line, which is connected to the Hampton-Alma line through our county. This delay is a signal to pause, to plan. Let’s not carve up Goodhue County yet.

Therese Zink
Zumbrota

It’s in the STrib,  St.PPP and many others too.

Click the story to get to the STrib site and leave a comment or two:

Appeals court lets big power-line project move ahead

By JENNIFER BJORHUS, Star Tribune

The state Court of Appeals on Tuesday upheld regulators’ approval of the $1.7 billion CapX2020 power-line project, shooting down citizen complaints that the enormous project is unnecessary and would harm the environment.

The decision was a big loss for the United Citizens Action Network, NoCapX2020 and Citizens Energy Task Force, who were challenging the Minnesota Public Utilities Commission’s 2009 approval of the major transmission buildout. The groups argued that since energy demand has been declining the expensive new power lines aren’t needed. They also argued that regulators didn’t adequately address the impacts on wildlife in certain areas such as the Upper Mississippi River National Wildlife and Fish Refuge, which one of the lines will cross as it goes to Wisconsin.

The Court of Appeals concluded in its 13-page decision that the state Public Utilities Commission didn’t err, and deferred to the PUC’s decisions.

Terry Grove, co-executive director of CapX2020 and manager of transmission for Maple Grove-based Great River Energy, said he was pleased.

“We regard that as a very definitive decision,” Grove said.

Carol Overland, a lawyer for United Citizens Action Network and NoCapX2020, vowed to keep fighting.

“We’re sharpening the toes of lizard cowboy boots,” she said. “We are not giving up.”

Construction of the network of high-voltage transmission lines is to begin this fall. One leg of the project, a 240-mile section running from Brookings, S.D., through prime wind power country to Hampton, Minn., has been delayed due to issues around the tariff for billing the construction costs to users.

Altogether, CapX2020 will add 700 miles of overhead powerlines across Minnesota, touching North Dakota, South Dakota and Wisconsin. The project is backed by a group of utilities led by Xcel Energy Co. in Minneapolis, and Maple Grove-based Great River Energy.

And here’s St.PPP — gee, how’d that duplicate comment get in there?  Anyway, click on the story below to get directly to their site to leave a comment:

Minnesota Court of Appeals upholds approval of CapX 2020 transmission lines

By Leslie Brooks Suzukamo

The Minnesota Court of Appeals today upheld approval of a $1.7 billion project to build three high-voltage transmission lines across the state.

Opponents of the project failed to show the Minnesota Public Utilities Commission acted improperly when it granted a certificate of need to the project in April last year, the court said in a decision released this morning.

The opponents, who included landowners near the proposed line routes, had argued the high-voltage lines are not needed because electricity demand had dropped in recent years and that proper environmental reviews were not done. A group of regional utilities led by Xcel Energy and Great River Energy say the lines are necessary to stabilize the grid and deliver more wind energy from the Dakotas and western Minnesota to meet the state’s renewable energy mandates.

One of the lines, which runs from Brookings, S.D. to the town of Hampton in southern Dakota County, has been delayed. The CapX 2020 utilities say they need to push back the start date from 2013 to 2015 because they are waiting for approval of a new tariff that will determine how the cost of the line will be shared among power generators, line owners, utilities and other entities.

And MPR:

Appeals court: Big transmission line project may go forward

by Elizabeth Dunbar, Minnesota Public Radio

June 8, 2010

St. Paul, Minn. — The Minnesota Court of Appeals ruled Tuesday that a transmission line project in central and western Minnesota may go forward.

The CapX2020 project would build three 345-kV transmission lines across Minnesota that would connect to the Dakotas and Wisconsin. Eleven utilities, including Xcel Energy and Great River Energy, are building the 600 miles of lines to upgrade and expand the electric transmission grid.

Three groups — the Citizens Energy Task Force, No aCapX2020 and the United Citizens Action Network — appealed a decision by the state Public Utilities Commission to grant certificates of need for the lines.

The groups argued that the lines weren’t needed and that one of the lines along the Mississippi River would disturb migratory birds and other wildlife.

But the three-judge appeals panel said the Minnesota Public Utilities Commission followed state law in scrutinizing the project and making sure it is needed to meet future energy transmission demand.

“Although the relators (the groups challenging the commission’s decision) have pointed to legitimate areas of environmental concern, after a review of the record, we are unable to conclude that the relators have shown that MPUC violated the law, acted beyond its authority, or made any arbitrary or capricious determination,” the judges wrote.

PROJECT FACES SOME UNCERTAINTY

Despite the appeals court’s ruling, one of the CapX2020 transmission lines has been delayed because of uncertainty surrounding how the building costs will be allocated.

The utilities building the lines recently asked the Public Utilities Commission to allow for a delay in the Brookings line, which will run from near Brookings, S.D., to Hampton, Minn., located south of the Twin Cities. Slated completion for that line is now 2015, which is more than a year later that the utilities had originally planned.

The reason for the delay is the uncertainty surrounding who will pay the project costs and how.

The PUC will decide Thursday whether to give itself more than the 45-day limit for approving the utilities’ delay of the Brookings line. Specific route permits for the lines also need to be approved.

But the utilities said last month that they expect all three of the lines to be completed in 2015.

“We are moving ahead,” said Terry Grove, transmission director with Great River Energy and co-executive director of CapX2020. “We’re trying to do so very prudently and not put any customers at risk for additional costs.”

Paula Maccabee, an attorney representing the Citizens Energy Task Force, said the group will continue to oppose the lines. While the appeals court decision was disappointing, she said there are other opportunities for concerned citizens to challenge the project.

Maccabee noted that a federal environmental review process is under way for the line running from Hampton to La Crosse, Wis., and the route permits for the three lines are not yet approved. She also said the delay in the Brookings line should lead state regulators to question the overall project.

“(It) demonstrates that there are certain underlying weaknesses in the vision that they put forth for these very large transmission projects,” Maccabee said.

And:

Court upholds plans for $2B transmission line

Well this sucks — we lose on every count…

Here it is, read it for yourself:

Appellate Decision

NoCapX 2020 and United Citizen Action Network are weighing appeal on the narrow issue of the standard of review for an Offer of Proof.

From our appellate brief:

NoCapX 2020 submitted an Offer of Proof, which is part of the record of this administrative case. Minn. Stat. §14.62. The standard of review for evidentiary issues, such as this Offer of Proof, is abuse of discretion. See Peterson v. BASF Corp.,  711 N.W. 2d 470, 482-483 (Minn. 2006). “Weight and credit to be accorded conflicting evidence … must be determined by a finder of fact.” See Laska v. Anoka County, 696 N.W. 2d 133, 140 (Minn. Ct. App. 2005).  The standard for review is whether newly discovered evidence would be admissible in the original hearing and whether it would be likely to have an effect on the decision. See Blake v. Denelsbeck, 170 N.W. 2d 337, 340 (Minn. 1969); Turner v. Suggs, 653 N.W. 2d 458, 467 (Minn. App. 2002); Disch v. Helary, 382 N.W. 2d 916, 918 (Minn. App. 1986).

The standard they used is in the first paragraph of the “newly discovered evidence” section:

An administrative agency’s decision may be found to have been arbitrary or capricious if the agency “entirely failed to consider an important aspect of the issue . . . [or] offered an explanation that conflicts with the evidence.” Rostamkhani v. City of St. Paul, 645 N.W.2d 479, 484 (Minn. App. 2002).

Hmmmmmmmmmm, that’s different…

And yet tomorrow, the Certificate of Need is at issue at the PUC with the CapX2020 requested Brookings delay — as if we need more proof that this is NOT needed… years they want to delay, so where’s the need?

My take?  What the court says they are expecting is that we have an expert witness, affidavits with forecasts, and that the utilities’ own SEC filings aren’t sufficient (noting that they ignored Xcel’s own filings and earnings call transcripts).

So, whatever… the PUC will be making a decision on this Xcel-rate-recovery-based Brookings delay Thursday, and there’s that pending issue of a NoCapX 2020 & U-CAN Motion for Order to Show Cause that they should deal with, and the plot thickens.

Back to the Opinion of the Appellate Court — here’s the medium version of the Appellate Opinion:

“Allegedly” New Evidence

Nothing at all about the SEC evidence, the only thing they considered was the Wall Street Journal article… EH??? HUH??? SAY WHAT??

Thus, MPUC did not abuse its discretion by declining to reopen the case to receive this type of general evidence.
Finally, we note that legitimate challenges to the construction of future power lines embraced by the Vision Plan are not foreclosed by MPUC’s decision relating to the three power lines at issue now.

Legitimate challenges… well, I sure feel better reading that…

Connected Projects

… sigh… throughout the proceeding, it was stated over and over and over that this was just Minnesota, there were no plans for ND and WI and the minute the record is closed, they announce… TA-DAAAAAA, ND and WI, which we knew all along, which was in the application over and over and the court says:

Because we may consider only the case before us, even though it may be part of a larger project, we can address only the three projects that are the subject of this appeal.

Talk about compartmentalization… the map was in their application, the chart was in their application:

Challenge of Environmental Review (at very beginning)

Again, the big issue is deference to the agency:

Although the relators have pointed to legitimate areas of environmental concern, after a review of the record, we are unable to conclude that the relators have shown that MPUC violated the law, acted beyond its authority, or made any arbitrary or capricious determination. Furthermore, the relators have failed to demonstrate that we may properly ignore the principle of deference that we are bound by law to follow in our review. Thus, we offer brief analyses of the relators’ primary arguments.

Environmental Report

To address this contention, we note first that an environmental report at the need stage, although important, does not address the site-specific environmental details that will necessarily be addressed in route-permit proceedings. Thus, it appears that what the relators claim to be insufficiencies in the environmental report are not insufficiencies for a need-stage report but rather are matters required to be addressed in significant analytical detail at the permit stage. Secondly, as to the relators’ contention that the applicants supplied the information for the report and the department failed to verify the information independently, the relators have failed to show any impropriety in that process or any support for the implication that independent verification would have revealed something other than what the report disclosed. Although we acknowledge that sometimes independent verification of alleged facts can be critical, experts in a particular field undoubtedly, and necessarily, possess a base of knowledge from which they can distinguish matters that are inherently plausible and probable from those that are suspect or possibly biased. Once again, we defer to the expertise of the involved agencies, absent a specific showing as to why such deference is not appropriate. Mere implication is not such a showing.

So we have to appeal each and every routing EIS… great… I’m ready… the Brookings one is a good one to start with.  But that independent verification is not necessary?  If MOES can’t tell the difference between 3,300+ amps, twice that for double circuit, and EIS estimates of EMF based on under 200 amps to 1,000 with the average in 700 amp range, right…

And then this, about linking state and federal review:

The relators’ final argument with regard to the environmental report is that, when there is going to be federal environmental review, including an environmental impact statement (EIS), there is an expectation that state and federal review will be done as a joint effort, and that was not done here. The relators rely on the rule, which states that “[i]f a federal EIS will be or has been prepared for a project,” the state shall use such draft if “the federal EIS addresses the scoped issues and satisfies the standards.” Minn. R. 4410.3900, subp. 3 (2009). However, no federal report has yet been prepared, and the rule also indicates that “[g]overnmental units shall cooperate with federal agencies to the fullest extent possible to reduce duplication” between Minnesota statutes and the National Environmental Policy Act. Id., subp. 1.

The department considered this rule, but ultimately determined that it was not possible to associate the state environmental review with the federal environmental review due to timing and relevance. Further, the department acknowledges that if the circumstances were to change, “when any route applications are filed, the [d]epartment would pursue all opportunities to coordinate the EIS reviews in those proceedings with any relevant federal agency reviews.” It appears that federal agency coordination occurs most appropriately at the permit stage. The department’s efforts were adequate under this rule.

(emphasis added)

PURSUE ALL OPPORTUNITIES?!  THEY STATED THAT IN THE BRIEF AND AT THE VERY SAME TIME THEY WERE SAYING IN THE HAMPTON-ALMA/LaCROSSE ROUTING PROCEEDING THAT THEY WOULD NOT WORK WITH RURAL UTILITIES SERVICE ON EIS!  Pursue all opportunities… give me a break…

Challenge of Environmental Review

Again, the big issue is deference to the agency:

Although the relators have pointed to legitimate areas of environmental concern, after a review of the record, we are unable to conclude that the relators have shown that MPUC violated the law, acted beyond its authority, or made any arbitrary or capricious determination. Furthermore, the relators have failed to demonstrate that we may properly ignore the principle of deference that we are bound by law to follow in our review.

GRRRRRRRRR, OK, fine, we can ramp it up… Brookings routing is a good place to start…

Interference with Fish & Wildlife Refuge

… The ALJ found that no party demonstrated a more reasonable and prudent alternative to the applicants’ proposal.

Because MPUC considered the impact that CapX2020 would have on wildlife and fish refugees, we must defer to its decision.

Upsized Alternative

Although there must be a need shown before MPUC may approve a project, there is no requirement that the need be imminent. Because certificates of need are granted based on future forecasts, it is within MPUC’s authority to approve an upsized alternative when there is a foreseeable need to do so.

Oh my… foreseeable need…

+++++++++++++++++++++++++++++++++

Defer, defer, defer, defer, defer, defer…

OK, time to hunker down and get ready for the next round.   That’s Thursday, just two days from now:

On June 10, 2010, at 9:30 a.m., FIRST ON THE AGENDA, CapX 2020’s Certificate of Need is on the agenda at the Public Utilities Commission.

Thursday, June 10, 2010 at 9:30 a.m.

Public Utilities Commission

121 – 7th Place East

3rd Floor – Large Hearing Room

St. Paul, Minnesota

The PUC will meet to address whether there will be a variance to the 45 day rule which requires that a decision be made within 45 days of a Notice that the inservice date for a project is delayed.

If you can’t be there, but want to catch the show, go to PUC June 10th Agenda page and click the blue “Watch Webcast” button.

A little birdie… well… a BIG birdie, told me that the Appellate Court was due to release the CapX 2020 Certificate of Need opinion tomorrow.  Oh, OK, drop te other appeal I’m working on today and hoof it over to the Post Office, and sure enough, there’s the notice.

TOMORROW – 10:00 a.m. we’ll know, just in time for Thursday’s meeting at the PUC!

On June 10, 2010, at 9:30 a.m., FIRST ON THE AGENDA, CapX 2020’s Certificate of Need is on the agenda at the Public Utilities Commission.

Thursday, June 10, 2010 at 9:30 a.m.

Public Utilities Commission

121 – 7th Place East

3rd Floor – Large Hearing Room

St. Paul, Minnesota

The PUC will meet to address whether there will be a variance to the 45 day rule which requires that a decision be made within 45 days of a Notice that the inservice date for a project is delayed.

If you can’t be there, but want to catch the show, go to PUC June 10th Agenda page and click the blue “Watch Webcast” button.

For the full Certificate of Need docket filings, go to www.puc.state.mn.us and click “Search Documents” and search for 06-1115.

Staff Briefing Papers are now posted:

Staff Briefing Papers – June 10 PUC Meeting

Here’s the CapX 2020 Notice of Delay:

CapX Notice of Delay for Brookings In-Service Date

Here’s our response:

NoCapX 2020 & U-CAN Motion for Order to Show Cause

NoCapX & U-CAN Comment and Request for Hearing

And others:

MOES Comments

CETF – Comment Brookings CoN Delay & Request for Hearing

NAWO Comment

And NoCapX and U-CAN also filed these in various dockets in response to their announcement of delay:

NoCapX 2020 & U-CAN Comments – Rate Recovery Docket

In response to: Xcel’s Request for Reconsideration or Clarification (!)

NoCapX 2020 & U-CAN Motion for Order to Show Cause – Brookings & Hampton-Alma/LaX Routing Dockets

And because Xcel blames FERC: Motion to Intervene Out-of-Time – NoCapX & U-CAN

For NoCapX and U-CAN, the bottom line is, why should they get anything whatsoever out of the PUC, be it approval of a delayed in-service date, or cost recovery, when they have not complied with the PUC’s order to disclose the transmission capacity of each project, and the ownership of each and ownership structure?  EH?

That was Charlie the “faciliator” shussssshing me yesterday at the “Citizen Advisory Task Force” meeting in Plainview.  Again…

… and I said I would not leave, he again asked me to leave,  and I wrote down Alan’s phone number on the pile-o-papers of the landowner sitting next to me and said “no, I won’t leave” and restrained myself as best I could, which was very hard, VERY hard.  He said he’d go to the Police across the hall, and I said “Go ahead.”  It’s absurd.  Well, my thoughts on this aren’t even printable… He then stopped the meeting for a break, and came over and was not interested in engaging in a conversation, he was all about forcing me to shut up, telling me how many task forces he’s run (all run wrong, I presume), that the way for the public to participate is through MOES, that this meeting is for Task Force members (and if they need information that you’re not providing, GIGO, eh?  Can’t have people knowing the critical information, can you).  He wanted me to promise to shut up, but II wouldn’t make that promise because ya never know when the fount of information will need to burst forth!  So he goes out the door in a huff, presumably to the police to turn on the video?, maybe he just hid in the bathroom for a while.  If he’s a “facilitator” and chose that approach rather than, “Oh, that’s right, Task Force members should know that _____” which would have been a lot quicker and effective on a couple of fronts, 20 seconds and move on to something else,  instead he has chosen to be oppositional every time this has come up, that says a lot.

What’s the deal?  Why so oppositional?  Is it a control issue or was it that he did not want information about Rural Utilities Service consideration of three river crossing locations known by members of the Task Force?

Since 1995, I’ve been working along-side of Citizen Advisory Task Forces, clients have been members, I’ve Petitioned for them more times than I can count, and I have been to way too many Citizen Advisory Task Force meetings than I care to remember.  And the way they are being set-up (apt word) and run is misfeasance and malfeasance.  People appointed to be on these Task Forces have no idea of the purpose, history or importance of Task Forces, and have no idea how MOES is misshaping this process.  It’s all in MOES interpretation of the rules, and that’s a hard one to get at.  But I’m putting together the background info to show how Task Forces have morphed over the years because I am sick to death of the way these “Task Forces” are manipulated, uninformed, deviated from their charge.

LaCrosse Project Task Force Charge

Deviated from the charge?  Yes.  That’s why the Task Forces revolted in the Brookings routing docket, and they refused to vote, because of the way they were pushed into voting on segments one by one.  Pushed by Charlie, and they pushed back.  Here, there was also significant deviation from the charge, in that after issues were raised, they were to narrow down the list of issues at the second meeting to the ones they identified as most important.  HUH?  The charge is to raise issues, not to limit them:

OES herein charges the ATF members to:
1. Assist in determining specific impacts and issues of local concern that should be assessed
in the EIS by adding detail to the draft Scoping Document;
2. Assist in determining potential route alternatives that should be assessed in the EIS.

This statement from the MOES Notice is also direct quote of the PUC Order.  I missed the second meeting in Cannon Falls, but at the Plainview one, there was objection to limiting these impacts and issues, objection to picking some and leaving out the rest.  GOOD!  Each and every concern raised that they think should be addressed SHOULD go forward to be addressed in the EIS.

Restraint — in a format like this where I see it’s not handled right — for me that’s the hardest part, because when important things are not known to a group, when they’re asking questions and not getting full answers, particularly at a public meeting, at a Citizen Advisory Task Force meeting, there is information they need.  They need it now.  They don’t need it later, they don’t need it in an email, or searching around on the web, they need it when they are talking about it.

Day before yesterday, it was a case of a circular discussion of Hwy. 52 interchanges, and the Task Force members were asking questions about the DOT’s policies and routing through and around existing and planned interchanges, and THE TASK FORCE MEMBERS DIDN’T HAVE THE DOT COMMENTS.  I raised the question, “Do Task Force members have the DOT comment?” while waving my copy in the air, and I was shusssssshed by Charlie, the “facilitator,” but Matt Langan wisely offered to copy mine and give it to the members, who all clearly needed it, and deserved to have the most recent information.  Yesterday, a similar discussion occurred, and the Thursday group had not been provided with the DOT comments.  Why are they withjolding information?

Day before yesterday, the fact of the Stanton airport was raised, and that line shouldn’t have even been drawn on the map because the airport right there renders it infeasible, so why waste anyone and everyone’s time on it?  But apparently the Task Force members didn’t know about it, those who proposed it, or those “facilitating,” and it was drawn as a route.  WTF?  And then Xcel’s Tom Hillstrom states that it’s a PRIVATE airport, and it’s not, it’s a PUBLIC airport.  This is the sort of information that they need to have.  There is no excuse for “facilitating” this ignorance.  It took me about 30 seconds to find the FAA database, and about 15-20 to play with it and format it a little and voila, here it is:

Minnesota Airport Database – Searchable

So why don’t they get that information???

And when a Task Force member who could not attend the prior two meetings and so ended up in the audience, why was he shussssshed when he offered relevant commentary about a historical area, why was that information not welcomed?!?!  To borrow a “land-use” phrase, “How dense can we be?”

The issues with Task Forces have been a problem since the 2001 legislative changes, and it continues, specifically:

• MOES does not give sufficient credence to the term “public participation,” which is one primary purpose of Task Forces.  Participation in Task Forces is a bare minimum of public participation, not an upper bound.
• MOES is resistant to Task  Forces.  They will sometimes acquiesce to one, like their pre-arranged ONE for Dakota County area in the Brookings routing proceeding, and the pre-arranged ONE for Pine Island area in the Hampton-Alma routing proceeding.   We had to fight for more than one Task Force for Brookings and Hampton-Alma, despite the long length of the route.   MOES did not want one for Chisago, it wasn’t Xcel objecting but MOES!!!   THERE WAS NO TASK FORCE FOR THE MINN-CAN PIPELINE – CAN YOU BELIEVE IT?
• Because of MOES reticence, it’s usually up to someone, often moi, to Petition the PUC for Task Forces.  I’ve done this over and over, to the point that each time it’s necessary, I’m getting more and more pissed, and citing more and more examples of the problems in the Petition.
• Despite getting a PUC Order for two or more Task Forces, MOES refused to set one up for the Marshall area, despite requests, claiming they weren’t enough and the right kind of requests.  had they notified people in the Marshall area of a need for more requests, those requests would have come in.
• There is not enough time allotted to get CATF members appointed, for example, it can take a City a number of weeks if they need to have a public meeting to appoint a representative, and sometimes it’s all happening in too fast a time frame.  For the Chisago Project III, there was just six days!
• NO REGULAR CITIZENS ARE APPOINTED to the CITIZEN Advisory Task Forces.  For example, two Task Forces for Hampton-Alma with ONE exception, a person representing a group along a particular route, and no individuals in either.
• No groups like Cannon River Watershed Partnership or Zumbro Watershed Partnership are invited or present.  EH?
• The Task Force members are notified that they have been selected, and for some reason, that notification does not come with a copy of the application!  The first meeting, they arrive and are provided some materials, but THEY ARE NOT GIVEN A COPY OF THE APPLICATION!  The applicants will gladly give them one if they ask, but they have to ask and have to KNOW to ask.   How do you know what issues to raise, what impacts may be, what alternatives there may be, if you don’t know what is being proposed?  How do you know what’s being proposed if you don’t have a copy of the application?
• MOES contracted facilitator focuses on “Land-Use” and states that’s why only “Land-Use Professionals” (yes, that’s a repeated direct quote) are on the Task Force.  He says he’s facilitated 12-13 of these and that’s how it is, therefore that’s the right approach.  SAY WHAT?!?!?!  MOES and its contractor are determining the charge and steering Task Force work in a way that is inconsistent with the PUC’s Order.
• The public is not allowed to speak at Task Force meetings, and there is no designated public comment period at any time during Task Force meetings.  How is this “public participation?”
• Agency people should be brought in to inform the Task Force of agency policies, i.e., DOT, DNR, Fish & Wildlife, FAA, so that Task Force discussions of alternatives and review of applicant proposed routes can be informed, substantive and relevant.
• The maps they were looking at did not have all features identified.  Even some features that were identified were ignored, i.e., when talking about pros and cons of routes in the Cannon Falls area, NO ONE MENTIONED THE CANNON RIVER — NOT EVEN ONCE!
• The legislatively mandated “sunset” of Task Forces means they end wen the Scoping Decision is issued (mandated after the spectacular performance of the Florence Township and Chisago I Task Forces!), however, Task Forces may expressly continue as a workgroup, there was some discussion of that at one of the recent PUC meetings addressing Task Forces, and if they want to continue to meet, they can.  DESPITE THIS, THE PLAINVIEW TASK FORCE, WAS TOLD THAT NO, THEY CANNOT CONTINUE MEETING.  MOES is deciding to present that the Task Force ends, period.
• Task Force Reports are now written by agency staff, they used to be written by the self-elected Chair and members of the Task Force.  The statute and rules are silent as to who writes the report — and it is MOES that determines that MOES shall write the report.
• The Brookings Task Force Reports (2) were NOT entered into the record by MOES — they were entered by yours truly after learning that MOES had not entered them.
• Comments about the Task Force problems filtered into the ALJ’s Recommendation for the CapX St. Cloud-Monticello route:

Task Force Process

108. The ALJ received comments from Sherburne County, the City of Becker, Becker Township, Clear Lake Township and Haven Township expressing disappointment with the Task Force process and lack of notice provided to local governmental units on the east side of the Mississippi River. State Senator Lisa Fobbe commented on behalf of her constituents in Sherburne County that the decision by the Advisory Task Force to consider Route D was made without involvement from the residents of Sherburne County.

109. Clear Lake Township commented that no representative of any governmental body in Sherburne County participated in the EIS scoping process before or after the identification of four proposed alternate routes located in Sherburne County.  Clear Lake Township believes the Advisory Task Force did not comply with Minn. Stat. § 216E.08, which requires public participation in the EIS preparation process. ALJ’s Recommendation for St. Cloud to Monticello p. 21.

• From Chisago III, A View From The Ground: Alternative Routes & Least Environmental Cost Considerations for the Proposed Chisago Electric Transmission Line Project , here’s the introduction to the Task Force Report:

A. CHARGE

In the Public Utilities Commission Order “accepting route permit application as complete, authorizing selection of Public Advisor, and combining environmental review and public hearing with Certificate of Need application,” dated February 12, 2007, the Commission authorized “the Department of Energy Facilities Permitting staff to establish an advisory task force and develop a proposed structure for the task force.”

The Department developed a candidate application form and presented the proposed structure and charge for the advisory task force at a Public Meeting in Lindstrom, Minnesota on February 27, 2007. A six (6) day deadline for submitting applications for membership on the task force was announced. Predictably, the short time frame ruled out the possibility of appointments from most affected governments because they do not meet frequently enough to respond to such an unreasonable deadline. According to the Project Manager, only one of the nine affected local governments responded. One affected local government, Chisago City, was not notified of either the applications or the task force opportunity, yet has since become involved in the process.

Subsequently, representatives from two affected cities and several other citizens did submit candidate applications to the Public Advisor by the March 5, 2007 cut off. The Department declined task force member requests and a request from the City of Lindstrom to extend the deadline for submission of task force applications and on March 9 declined to establish a formal advisory task force, citing Minnesota Statute 218E.08, supd 1.

The Commission authorization to establish a task force was then replaced by Commerce with an informal advisory task force process led by the Project Manager. The advisory task force had a membership of sixteen (16) representatives and met three times as a group to discuss scoping, alternate route designations and environmental and safety issues that should be addressed in the Environmental Assessment (EA). The advisory group met March 19, 23 and 26 at the Lindstrom City Hall and individual ‘homework’ assignments were completed by members between meetings.

The advisory task force included eight staff or elected official representatives from Chisago City, the City of Lindstrom, Center City, Shafer Township and Chisago County. The advisory group also included at least one representative of East Central RDC, Chisago Lakes School District, Concerned River Valley Citizens and St. Croix Scenic Coalition. Depending on how you count, four or five listed members of the advisory task force were citizens who represented themselves. Additionally, another eight or ten community leaders attended the meetings, participated in discussions and made recommendations to the group. The advisory task force was given only nine work days within which to initiate its work at the first meeting, draft and review recommendations and submit its recommendations to the Project Manager.

The impossibly rushed participation schedule was presented to affected local governments as a fait accompli and this has led Chisago community leaders to conclude the spirit and intent of the Power Plant Siting Act to “provide for broad spectrum citizen participation as a principle of operation” was not intended in the above described process. To this point, agencies entrusted with protecting a fair public process have failed themselves…and the public. The City of Lindstrom has filed a Motion for Extension of Task Force and, in the alternative, Certification to the Commission. We hope for a late rally that will overcome the initial failures of process.

The public, in this case represented by advisory task force members, did participate in good faith to conclude prescribed work on time and bring forward recommendations. They represent a public perspective of what should be the overriding ‘charge’ directed to all parties to protect the public interest.

DO THE WORDS OF THE CHISAGO TASK FORCE SOUND FAMILIAR?!?!? Special thanks to Kristen Eide-Tollefson for reminding me of this intro.  And that triggered some memories… would you believe that when we got to the Chisago hearing, months after the Task Force Report was issued, the very last day we learned to our astonishment and consternation that the Appendices to the Task Force had been omitted from the record?  MOES did not include them.  That included a flyover video,  obtained with tremendous effort; the Chisago I Task Force Report (so as not to have to reinvent the wheel for the same project 10 years later):

Expanding Horizons – Chisago I Task Force Report 1997

Expanding Horizons – Appendices – Chisago I

And some other examples, there are so many, and I haven’t the stomach for it right now.  Some more history, in this post:

Citizen Advisory Task Forces through time…