So it looks to me like Enbridge and their partners didn’t gain much by their recent machinations. As I spent time watching the entire January 9th Public Utilities Commission Special Meeting, I thought I’d share the details.
Aside: Maybe I should have done a summary earlier, but hopefully it will be helpful to those of you who have not followed these events as closely as some of us locals have done, to see the following.
As you may recall, the entire reason an Environmental Impact Statement (EIS) is being done is due to the suit by Friends of the Headwaters (FOH) that questioned the process the State of Minnesota was using to handle the Applications for Certificate of Need and Route Permits by Enbridge for what they refer to as their Line 3 Replacement (but that is actually a NEW pipeline in a NEW corridor, much of which lies in wetlands and lakes areas previously untouched by Tar Sands pipelines). There is an Administrative Law Judge (ALJ) handling the case for FOH and she will issue a recommendation to the Public Utilities Commission (PUC) on whether or not to allow Enbridge to build this new Line 3 pipeline. MPR did a brief story on this last September. You can read more about the FOH concerns, including lots of reports on the issues here.
Here is some further background (from the briefing papers for the Special Meeting):
On August 29th, the ALJ issued, based on a planned early December PUC decision on the Adequacy of the Final EIS, the following post-hearing briefing schedule:
On 11/1/17, Judge Lipman deemed the FEIS “Adequate” and on 11/22, the ALJ issued a modified hearing schedule as follows:
However, on December 7th, the PUC found that the EIS was “Not Adequate” citing four deficiencies that the Department of Commerce Energy Environmental Review and Analysis unit will need to redress before the EIS can be deemed “Adequate”. As such, the EIS is yet to be a set document and will be updated with information on 1) how far and where an alternate route (SA-04) will need to move to avoid delicate topography along with a revised Environmental-Impact analysis reflecting this new location, 2) clarifications that quantitative representations do not necessarily reflect actual qualitative impacts, 3) identification of which resource impacts are additive (introducing new or additional impacts) beyond those already existing in a corridor, and 4) clarification that a Traditional Cultural Properties Survey is required before the start of any construction (if a permit is granted).
On December 14, Intervening Parties (FOH, Honor The Earth, multiple Tribal Bands, Northern Water Alliance of Minnesota, and Youth Climate Interveners) filed a joint motion to the ALJ requesting an adjustment of the Briefing Schedule pending a PUC determination of Adequacy on the EIS. They argued that until the EIS is deemed Adequare, the Final EIS could change facts underlying issues of central importance in both the Certificate of Need and Route Permit matters making it impossible for them to brief their cases on the issue.
Enbridge, the United Association, the Laborers Council, and the Shippers rejected the need for said motion stating it was am unreasonable attempt at further delay and:
- Neither Minnesota Environmental Policy Act (MEPA) or Minnesota Rules require an “Adequate” EIS prior to post-hearing briefing being submitted to an ALJ.
- The purpose of an EIS is to inform the permitting authority (PUC), not to provide support for intervening parties legal arguments.
On 12/22, the ALJ issued a change in the schedule noting, among other things:
In her extension, she pushed some dates out by a couple weeks and some by a couple months. However, the more extensive pushes appear to be a result of the fact that the Final EIS will not be available for a second determination of Adequacy until the end of February (as they were given 60 days to re-issue an EIS with the above mentioned remedies).
On December 28th, Enbridge et al requested a Joint Motion to Certify the issue – basically asking the PUC to determine if this push of the schedule is justified or not. A special meeting of the PUC was scheduled the next day, for January 9th. This new meeting would require additional resources be used to argue this specific push of dates (again, mostly affected by the EIS requiring revision), thus taking away from resources to address the ALJ decision.
[I guess I shouldn’t be too upset as Enbridge is paying for all this work being done on the EIS and such. Of course, they will likely, should they not be issued their permit, sue the State of Minnesota for all their lost income in the fight that did not allow them to continue building pipelines as they wished.]
So what happened at the January 9th Meeting?
It began with Jim Newberger (District 15B) making a statement on how we need these proceedings to move forward as quickly as possible as Minnesota needs the jobs.
Then opening arguments began, starting with Enbridge and their associates.
Kevin Prentice for Laborers Council, Sam Jackson for United Association, Mike Ahern for Shippers, and Eric Swanson for Enbridge.
Eric Swanson began noting the need to get the process back on track. MEPA simply requires an EIS be determined adequate before permits and construction; it is for the use of the permitting authority, not for use by Interveners to prepare legal briefs. He requested parallel progress of permitting during EIS process as the EIS adequacy is NOT required for parties to submit briefs. Delay means continued uncertainty – delayed jobs, economic stimulus, more integrity digs, higher costs. He suggested Initial Briefs and Enbridge Proposed Findings by 1/23/18 (14 days), Reply Briefs and Proposed Findings by 2/23/18, ALJ report by 4/23/18 (typically 2 months), (8 weeks later) PUC hearing by 6/18/18.
Mike Ahern explained that Customers of Enbridge who have agreed to pay for what they ship through the mainline system have already been delayed. They finalized agreements in February 2014 anticipating all approvals by July 2016, at which point the Shippers had a right to cancel their support but waived it due to a need for the project. The effect of delays is further “apportionment” – rationing of pipeline capacity. He noted chronic and frequent level of apportionment in the last few years and noted that apportionment is increasing. He requested a support of the Enbridge dates given today.
Sam Jackson represents welders and pipefitters and noted that delay means jobs, wages, tax revenue, and economic stimulus are all delayed. Additionally, they may be faced with building in a different construction season if the pending delays occur, affecting future projects.
Kevin Prentice representing Laborers said that more than a year ago, the PUC showed deference to the proponents, in giving delays. While respecting the legitimacy of PUC’s decision, if further delays are carried out, it indicates the MN Permitting process is broken.
So, the main message I see in the arguments from the above is this:
Since we all have this money and hope invested, we need to keep moving forward as quickly as possible!
It was time then for opening statements from the Interveners:
Scott Strand for FOH, Sara Van Norman for Fond du Lac Band, Joe Plummer for White Earth, Leili Fatehi for Sierra Club, Brent Mercia (Aquila Sanders-Reed /Sarah Harper) for Youth Climate Interveners, Joe Blackburn for Honor The Earth, and David Zoll for the Mille Lacs Band.
Joe Plummer of Red Lake and White Earth said he was sympathetic to their arguments but excess capacity is currently available. Six pipelines exist and they are looking at building into a new corridor. This REQUIRES extensive environmental surveys. If anything they should be working with the process but instead they filed a motion resulting in a meeting announced on the last day of 2017 with no details of the agenda. There was no way to easily prepare for this meeting. Shippers are focused on exporting refined fuel but there is no need for this in Minnesota. The delays they complain of are the required environmental needs for the project.
Leili Fatehi first took issue with Swanson’s characterization of MEPA. Its purpose is to assure government agencies can look at environment and socio-economic issues AND that the public is apprised of the issues and details. The statute provides for public interest considerations, not only for use of the information by a permitting authority. MEPA is not designed to expedite for economic benefit of private entities, it is to protect the public and give government all needed information. Normal PUC practice is that when parallel proceedings are happening or changes in circumstances (change in inadequacy) exist, schedules can change. Both conditions exist now. When the PUC joined the two items, they noted that the EIS gives parties information needed to proceed. Saying the EIS is solely for the PUC undermines the purpose of the contested case hearing process. It limits the ALJ and parties from having all needed information to proceed. There is a far greater risk to due process than the risk a 3-month delay would bring to Enbridge’s process. [Did I mention how impressed I am with this woman?? I believe I failed to do so in the last PUC blog.]
Sara Van Norman noted that this meeting being on the agenda creates an ongoing impact on being able to respond to the PUC’s other requirements. There was no way to provide written comments in the last week and a half to provide information of the briefing schedule. It was not clear this would even be allowed for discussion, giving no opportunity for analysis. While it is understood that creating due process issues was not the PUC’s intent, she suggested pausing on the briefing schedule and instead reviewing other issues that would give better direction.
Brent from Youth Climate Interveners noted that procedurally they agreed with Sara. While expressing that “we are not lawyers”, reading the notice, Enbridge’s request seemed to be not the briefing schedule but whether the ALJ’s decision should be certified. This was not clear to the public or to the YCI. Prentice talked about new procedural hurdles – but this is due process… FOLLOWING THE LAW. Delays are their concern but concerns to water, climate and treaty rights are the concern on this side and more time to assure complete information is not a delay but instead is a more thorough process. Best vehicle for additional information is the Final EIS, which, coming in February is not currently available, but will change the substance of the issue. As intervenors, they should be allowed to respond with all evidence on a given record. Requiring briefings prior to the information is available DOES NOT ALLOW for a complete argument. Matters of consequence and significance need all information to be best decided. MEPA is not just for the government agency but for the public. The public is watching. What do you want the public to see? A PUC being pressured by Enbridge and Shippers (due to their frantic statements on “apportionment”)? Or that the PUC is listening to the public concerns about water and climate issues with this pipeline being constructed and carrying Tar Sands through our state? [I was so impressed with this young man’s presentation that I sent him an email acknowledging the hope he brings me.]
Scott Strand for FOH discussed the practicality. The decision to send back EIS for amendment means we will have more information to consider. The Enbridge schedule would require briefs to already be submitted. If SA-04 is given as a strong alternative, then Enbridge will want to dispute this and will want to supplement their briefing – and we would alternatively. What ALJ has done is allow for more rapid movement because there won’t be re-design after the fact. Given both the parties and the public understanding that this is not a check-the-box process, full consideration needs to be given to this matter.
David Zoll noted three items. 1) The 280-day deadline under MEPA has been satisfied as a decision has been made on the adequacy of the FEIS, though in the negative (12-7-17). 2) MEPA purpose 4410.2000 Subpart 1 https://www.revisor.mn.gov/rules/?id=4410.2000 is to provide info for governmental units… AND OTHER PERSONS having concerns regarding environmental effects. To be useful to intervenors to use in briefings it HAS TO BE AVAILABLE. ALJ Ann O’Reilly is closest to the record and knows what is necessary for a complete report to be made. 3) Discussion regarding timing – three petitions for December order may affect timing; those decisions are still to be made and could change the timeline. There has been a decision made by the ALJ which doesn’t presuppose when other things will be done. It requires only that EIS is DONE and COMPLETE. This means all other issues are irrelevant and won’t require more meetings/decisions/etc. If Enbridge/DOC had done a better job on the FEIS, not preventing information from being included and such, this process would be moving forward. Since this work was not robustly done, it does not mean we should now continue to push forward.
Mr. Blackburn stated that when PUC refers a matter to the contested process, it gives up their ability to control the schedule. If PUC disagrees with ALJ and demands her to change her schedule, it is not lawful as they are not as close to the record as she is. Since the ALJ provides a recommendation to the PUC, her analysis must conclude her decision WITH a complete EIS, otherwise it seems Enbridge is arguing that the EIS is just a box to check, not truly a requirement.
Following a break, Commissioner Lipshultz had a question for Enbridge.
Your idea of delaying the project assumes we will be approving the project. Explain more about why delay is a problem beyond delaying an outcome you can’t predict.
Eric Swanson replied that continued uncertainty and straying from the process set in statute and rule would have effects only if approved. Other impacts he agreed would only be felt if the project is not approved. Commissioner Tuma then asked about where Enbridge was taking the PUC with regard to where they want to come in a decision. He indicated there was no desire to be an arbiter for the ALJ. He noted: It seems that Enbridge is suggesting that the PUC should tell the ALJ what her schedule should be. Back in August 2017, we discussed the schedule and why it was going the way it did. You stated in page 9 of your brief on your understanding of why we were doing what we were doing. The “buffer zone” was allowing the PUC to get an adequate FEIS.
Swanson responded that he understood the schedule was an April 30th date but now “we’re dealing with this NOT being the schedule.” He is sympathetic that the PUC should not get “in the weeds” of dictating to the ALJ; his specific request is to expeditiously certify the order to the commission on whether the schedule change was warranted.
Commissioner Tuma asked for clarification that that he was saying it was unwarranted to link the FEIS with the briefing schedule. Swanson agreed this was his stance.
Commissioner Tuma noted: We decided we are not marrying the process.
David Zoll then explained that a decision on adequacy was to be done prior to the briefings being due. However, he had no recollection of what we would do if adequacy was decided in the negative.
Commissioner Lange asked Enbridge (from page 9 comments – not sure what they kept referencing with this “page 9” deal…) about Enbridge and Co-petitioners discussion of the schedule. A Waiver granted by Enbridge comports with orders. Originally, there was a February ALJ decision due but the ALJ extended by a month to report by March. Enbridge is now proposing to give the ALJ an additional 24 days. One could argue that the PUC should go to the 3/30 date, no ambiguity of this, no waivering. Why is 4/23 appropriate?
Swanson said they were “Just trying to react to the reality on the ground.” The ALJ told everyone to keep working but she did indefinitely extend the briefing schedule 10 days before briefings were due. They took that information and decided a schedule that will work. Enbridge is “Not in a hurry.”
Commissioner Lipshultz then asked Zoll: There has never been an adequacy determination on an FEIS prior to the judge giving a report. What’s different here?
Zoll noted it was Practice, not Precedent (which is binding). The EIS being is prepared to the 4410 rules. As noted at the August Meeting: Decision depends in part on an EIS, in it’s final form, available for the parties, for us to have a reliable record. Can’t get around staging this in a way that has an EIS available for the parties to refer to in their testimony. (12-21-15) This is the PUC comment. The EIS is not a formality, it is a basis for the arguments to be made before the Commission. There would be sufficient time to use this EIS before the PUC. A policy decision for this to be available is UNCHANGED.
Commissioner Lipshultz noted the debate was DEIS vs. FEIS available prior to testimony, Not Adequacy. Inadequacy was defined as narrow and the full EIS is pretty complete. What do you need more than what you have? With 1 year of investigation, 3 rounds of testimony, 12 days of evidentiary hearings – what are you lacking?
Zoll: We do have a voluminous EIS – tons of data – but it lacks synthesis and analysis in order for them to make arguments. Fails to acknowledge difference between existing pipeline corridors and siting a pipeline in a greenfield. NOT AVAILABLE in CURRENT FEIS. The EIS is not there only to collect info but to also SYNTHESIZE this information. This is what parties and public are entitled to in order to make their decisions and arguments. This is a matter of months. Need to get this right and right the first time.
Lipshultz: You identify one inadequacy – to distinguish between greenfield and non-greenfield routes. When you file your briefs, you know this. Write the brief to address that the EIS understates the impact to greenfields, with more information to come.
Zoll: Cannot argue precisely the extent to which these are understated and why a route alternative is preferable to the applicant’s preferred route. Could leave it for gaps to be completed later but this is not the correct approach. Can argue what we THINK the information will say but no reason to prevent parties from having actual data.
Tuma directed Zoll to “Bring your witnesses on the greenfield issue. The DOC / FEIS is not your witness.”
Zoll: The EIS does not make the decision but it is required to have all the data and analysis available. The EIS is still a moving target. If it’s important for this information to be available to the parties per 4410.2000 and the December comment from PUC; it should be available.
There was more back and forth about the fact that the PUC did not want to “direct” the ALJ. And finally, a Motion:
Request the ALJ to issue report by 4/23/18 and adjust her schedule to accommodate this date.
The ALJ can determine dates for filing briefs. This 4/23 date allows more time for brief completion, and allows more time between initial and reply briefs. There is no harm to parties with a 4/23 ALJ Report. It gives the ALJ 60 days to come to her decision which, considering the scope of the issue, is necessary.
It would seem that if they are sincere about wanting a thorough and well-considered recommendation from the ALJ, that they will want to assure she and all parties have the full and complete EIS and enough time for a thorough review of the facts. Unless they’ve already decided the final decision and this is merely a box-checking process. If they are willing to dismiss the ALJ on a decision about the dates in the schedule, are they going to be just as willing to ignore her final decision if it says to NOT permit the pipeline application?
Commissioner Seben noted this was a “Fair hearing” with allowance of all to be heard, which follows due process. She admonished that… Indicating there is corruption undermines the process.
Unless the PUC process IS corrupt… in which case, we are merely making it evident with a full review of the details. And that IS in the public’s best interest.