Appellate Opinion is out!

Filed under:Appeal — posted by admin on June 8, 2010 @ 8:04 am

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:

Hearing Ex. 13, Big Picture MapChallenge 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.

zero comments so far »

Please leave a comment below!

Copy link for RSS feed for comments on this post or for TrackBack URI

Leave a comment

(required)

(required)




image: detail of installation by Bronwyn Lace