NAWO & ILSR Appeal PUC Order

Filed under:Laws & Rules,Nuts & Bolts — posted by admin on August 26, 2007 @ 5:32 pm

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Color me confused. The PUC’s June 4, 2007, Order needs to be challenged, no doubt about it, and CapX 2020 as a whole needs to be fought with everything we’ve got, but I’m not getting the point here. NAWO and ILSR have appealed that Order.

Appeal – Cover Letter

Appeal – Petition, Statement of Case, Writ

It’s an appeal of:

PUC Order Denying Reconsideration of June 4, 2007 Order

And here’s the June 4, 2007 Order:

Order Designation Applicants and Setting Filing Requirements

For the full docket:

1. Go to www.puc.state.mn.us

2. Go to “eDockets” on L side
3. Go to “Search Documents”

4. Search for Docket “06”-“1115”

Here’s what I don’t get. The first question is a statement of fact(NOT): NAWO claims in the Statement of the Case that it intervened as a party, but a) there haven’t been any Intervention petitions; b) there’s not been a “final decision;” and c) it’s not a contested case yet. The statute says:

14.63 APPLICATION.
Any person aggrieved by a final decision in a contested case is entitled to judicial review of the decision under the provisions of sections 14.63 to 14.68, but nothing in sections 14.63 to 14.68 shall be deemed to prevent resort to other means of review, redress, relief, or trial de novo provided by law. A petition for a writ of certiorari by an aggrieved person for judicial review under sections 14.63 to 14.68 must be filed with the Court of Appeals and served on the agency ot more than 30 days after the party receives the final decision and order of the agency. Sections 572.08 to 572.30 govern judicial review of arbitration awards entered under section 14.57.

The second issue, though, is one that is VERY disturbing. In their statement of the case, the second issue raised is:

Petitioners will also assert that determination of need for the proposed transmission lines is properly situated within the Integrated Resource Planning Process. Minn. Stat. 216B.2422, Subd. 6.

Here’s Subdivision 6:

Subd. 6. Consolidation of resource planning and certificate of need. A utility shall ndicate in its resource plan whether it intends to site or construct a large energy facility. If the utility’s resource plan includes a proposed large energy facility and construction of that facility is likely to begin before the utility files its next resource plan, the commission shall conduct the resource plan proceeding consistent with the requirements of section 216B.243 with respect to the proposed facility. If the commission approves the proposed facility in the resource plan, a separate certificate of need proceeding is not required.

Ja, so???? Well, look at that last sentence:

If the commission approves the proposed facility in the resource plan, a separate certificate of need proceeding is not required.

No Certificate of Need proceeding? Ja, so???? Well, THINK A LITTLE BIT HERE! If it is approved in an IRP, and not through a Certificate of Need review, how are the affected landowners who are subjected to the utility’s transmission proposal notified? How do they learn of the proposal in order to participate? Notice is required, right? Well, NO! Notice is only required where a utility applies for either a Certificate of Need or a Siting Certificate. The requirement of a Notice Plan is in the rules for a Certificate of Need, it is required only of those utilities applying for a Certificate of Need and is NOT required for projects proposed in an Integrated Resource Plan! Once more with feeling — NO NOTICE TO LANDOWNERS REQUIRED IF UNDER IRP — If it is approved under the IRP, and then does not require a Certificate of Need, landowners do not get notice until after the IRP (and the project) is approved, until the utility files its application for Siting. In other words, they don’t get notice until “need” is a done deal, and all that’s left is for Commerce/PUC to determine “where does the transmission line go?” That’s way too late to be able to stop the line, and at that stage, a landowner can only have an impact on the route. At that point, it’s all about siting. It becomes an exercise in fingerpointing, with landowners left with only the “Stick it THERE!” argument.

Here’s the Rule, laying out notice to landowners in Certificate of Need proceeding:

7829.2550 NOTICE PLANS WHEN SEEKING CERTIFICATION OF HIGH-VOLTAGE TRANSMISSION LINES.

Subpart 1. Filings required, service requirements. Three months before filing a certificate of need application for a high-voltage transmission line as defined by Minnesota Statutes, section 216B.2421, the applicant shall file a proposed plan for providing notice to all persons reasonably likely to be affected by the proposed line. Applicants shall serve their proposed plans on the following persons:

A. the department;

B. the Residential and Small Business Utilities Division of the Office of the Attorney General; and

C. all persons on the “General List of Persons Interested in Power Plants and Transmission Lines” maintained under part 7849.5240, subpart 1, item A.

Here’s the notice rule for Siting (moved out of Ch. 4400 when “environmental review” was tossed over to the Dept. of Commerce — another great policy idea found in an Energy “Ominous” Bill), when “need” is determined and all that’s left to decide is where some awfully nasty utility infrastructure will go:

Minn R. 7849.5240

Subp. 2. Notification to persons on general list, to local officials, and to property owners. Within 15 days after submission of an application, the applicant shall mail written notice of the submission to the following people:

A. those persons whose names are on the general list maintained by the PUC for this purpose;

B. each regional development commission, county, incorporated municipality, and township in which any part of the site or route or any alternative is proposed to be located; and

C. each owner whose property is adjacent to any of the proposed sites for a large electric power generating plant or within any of the proposed routes for a high voltage transmission line. For purposes of giving notice under this item, owners are those persons shown on the records of the county auditor or, in any county where tax statements are mailed by the county treasurer, on the records of the county treasurer, or any other list of owners approved by the commission.

They’d get notice, but not until the Siting Application is filed.

The good news is that Phase I landowners have already been notified, though we don’t know if it’s an exhaustive list.  So that’s not an issue with this Phase I application.  But, if they were to prevail, what of the landowners affected by the projects to follow?

Seems to me that NAWO and ILSR have not looked at the impacts of what they’re asking for, at least with regard to notification of landowners. Are NAWO and ILSR really asking that CapX 2020, with over 70,000 affected landowners in Phase I alone, be decided under the Integrated Resource Plan? Do they think that landowners shouldn’t know that the utility’s bulldozer is aimed at them? Have they thought this through?

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image: detail of installation by Bronwyn Lace