The Department of Commerce’s Energy Facility Permitting has responded to UCAN’s Motion to Enforce Citizens’ Due Process Rights. It’s hilarious watching them try to respond to some of the same issues that I’ve been raising — at some point, with all these complaints about process and notice, sometime soon that 100th monkey has just got to jump out of its swing and declare “YES, they’ve got a point!

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

Here are some of the more hilarious highlights:

UCAN’s arguments demonstrate a fundamental misunderstanding of the Minnesota Rules governing the environmental review of an application for a Certificate of Need. For the reasons explained below, UCAN’s motions should be denied.

Commerce cites the entire notice rule, which includes this subpart:

F. those persons who own property adjacent to any site or within any route
identified by the applicant as a preferred location for the project or as a site or
route under serious consideration by the applicant if such sites or routes are
known to the applicant.

and then goes on to say that:

UCAN argues that the Commissioner’s notice falls short of legal requirements because it was not
sent to all of the approximately 73,000 “landowners and residents reasonably likely to be
affected by the proposed transmission line.” UCAN recognizes that subpart 1(F), specifically
relating to the potentially affected landowners that UCAN believes must receive notice of the
Department’s scoping meetings, does not come into play in this matter because no routes or sites
have been officially identified. Yet UCAN would have the ALJ require the Department to send
notice to these same landowners pursuant to subpart 1(D) (emphasized in the above quotation).
The Department’s EFP Staff believes this is an incorrect interpretation of the rule.

uh-huh… the corridors are identified sufficiently to send out notices to the 73,000 landowners of the public informational meetings, so shouldn’t those 73,000 landowners also get notice of the Certificate of Need proceeding? If they’re not part of the CoN hearings, then they have no input into need, and if it should be deemed “needed,” then they can only intervene in the “where will we put it” siting docket, which is too late to be meaningful.

… and that argument ends with this choice snippet:

In this case where the list of potentially affected landowners is voluminous, such a requirement as UCAN suggests is not only unnecessary, but would be extremely burdensome for the Department in terms of cost for postage and staff resources to prepare such mailings.

Ummmmm… Commerce’s EFP assesses the utility for costs,”EXTREMELY BURDENSOME FOR THE DEPARTMENT?” And what of the burden on landowners, who will lose their land for this nonsense? We can see where the Gov’s agency puts its priorities.

Arguing against UCAN’s complaint about publication of notice in newspapers, Commerce says:

The second argument about inadequate publication made by UCAN is that a low turnout
at the public meetings compared to the number of persons potentially affected means that the
notice provided was insufficient. This argument is also without merit. The Department’s EFP
staff estimates conservatively that over 500 persons attended these meetings. Moreover, persons
who attended and provided comments indicated by the nature of their comments that they knew
this proceeding related only to the Certificate of Need and not the route permitting process.
When the Applicants’ route applications are filed, it is reasonable to expect that many more
landowners will see a reason to participate, but at this point there is no indication that all
properties have even been identified by the Applicants. However, blaming low turnout on the
“Department’s defiance of Minnesota’s notice laws” is not only unfair, but is entirely wrong.

As one who attended most of the meetings, which were VERY poorly attended, I think that their lack of publicity IS a problem, and I think that the low attendance is indeed indicative of insufficient publication.

And countering UCAN’s complaint that the scheduling is around the holidays when it’s inconvenient, and where the rule says it must be convenient, Commerce argues:

UCAN alleges that the Department EFP Staff purposely designed the meeting schedules
to effect its strategy to deliberately minimize the public’s ability to participate. Specifically,
UCAN alleges that holding the meetings in the weeks before the Christmas holiday is one of the
“inconveniences that were designed into these meeting schedules.” There is simply no basis for
this charge. These are the sort of spurious allegations that are easy to make and impossible to
defend. The Department follows the rules for environmental review as consistently and correctly
as possible and encourages public participation.

Seems to me that Commerce did the same thing with public hearings for Mesaba, several people commented that the DEIS Comment hearings were also just before the holidays, and not as many people showed up as had previously. However, it is noteworthy that for all of the public meetings for CapX, they WERE held in heated rooms, unlike the Mesaba hearing in Hoyt Lake, where everyone was in coats and mittens, shivering, and where AlanMuller said on the record:

MR. MULLER: My name is Alan Muller. Before I
begin, I’d like to note that Mr. Micheletti is wearing
gloves, representatives of the Department of Commerce
are wearing gloves. Many people in the room are
wearing gloves and overcoats. I don’t know if the
rules of the Office of Administrative Hearings call for
holding public hearings in heated facilities, but that
might be something to consider in the future.

JUDGE MIHALCHICK: Nobody is suffering more
than I am.

There was a modern heated building across the highway, but noooo, we’re in the gym next to the hockey arena, where if the heat blowers were on, we couldn’t hear, so they turned the blowers off. Yes, perhaps we should be grateful that they held the CapX public meetings in heated rooms…

Here’s the UCAN Motion:

UCAN Motion to Enforce Citizens’ Due Process Rights

Here’s the judge’s Notice, dated February 6, 2008, giving 10 WORKING days “from the date of receipt” which I presume is the receipt of the Notice, and given the holiday Monday, well, I’d say that those 10 working days are up on Thursday, eh? You do the math, check my work:

Notice of time to respond to UCAN Motion

So, are there other responses out there that haven’t been emailed around?  Yup, here’s the Applicants’ via Mike Krikava:

Applicants’ Response to UCAN Motion

Applicants’ Response – Aff of Carlsgaard

Applicants’ Response – Aff of Carlsgaard Exhibit 1

Applicants’ Response – Aff of Carlsgaard Exhibit 2