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STATE OF |
DISTRICT COURT FOURTH JUDICIAL
DISTRICT |
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Power Line Task Force, Inc., a on its own behalf and on behalf of the State of Plaintiff, v. Northern States Power Company, d/b/a Xcel Energy, a Defendant. |
Case Type: Other Civil Court File No. MC03-003400 PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT |
“No large energy facility shall be sited or
constructed in
--Minn. Stat. §216B.243, subd. 2.
* * * * * * * *
“‘Large energy facility’
means:
...any
high-voltage transmission line with a capacity of 100 kilovolts or more
with more
than ten miles of its length in Minnesota or that crosses a state
line;...”
--
* * * * * * * *
“‘High voltage transmission line’ means
a conductor of electric energy and associated facilities designed for and
capable of operation at a nominal voltage of 100 kilovolts or more. “
--
* * * * * * * *
“No person may construct a high voltage
transmission line without a Route Permit
from the board. A high voltage
transmission line may be constructed only along a route approved by the
[Minnesota Environmental Quality] board...”
--Minn. Stat. §116C.57, subd. 2.
TABLE OF CONTENTS
Page
I. INTRODUCTION...................................................................................... 1
II. COMPLIANCE
WITH REQUIREMENTS OF RULE 115.03(c)............... 2
A. Issues Presented........................................................................... 2
B. Documents That Form the Basis of the
Motion.......................... 3
C. Material Facts That Are Note in Dispute..................................... 3
1. The
PUC Certificate of Need Necessity............................. 3
2. The
3. Prior
Proceedings............................................................... 5
4. The
Current Case............................................................... 8
III. THE
LEGAL STANDARD........................................................................ 9
IV. ARGUMENT............................................................................................ 9
A. Xcel Has Violated MERA.............................................................. 9
B. The New Power Line Would Constitute
Nuisance.................... 13
C. Xcel Has Committed Trespass.................................................... 14
D. Invasion of Privacy Exists Here, Too........................................ 15
E. Summary for Summary Judgment............................................ 16
V. CONCLUSION....................................................................................... 17
I. INTRODUCTION
Northern States Power Company, d/b/a Xcel Energy (hereinafter “Xcel”) plans to build a new, high intensity double-circuit 115 kilovolt (kV) power line covering 14.7 miles through six cities in the southeastern portion of the Twin Cities Metropolitan area, including South St. Paul, West St. Paul, Inver Grove Heights, Sunfish Lake, Mendota Heights, and Bloomington in Hennepin County.
Xcel has obtained zoning approval from the communities, although occasionally after contested legal proceedings.[1] Regardless of zoning issues, and central to the present case, Xcel has never sought or obtained requisite approvals from two state administrative agencies: a Certificate of Need from the Minnesota Public Utilities Commission (“PUC”) and a Route Permit from the Minnesota Environmental Quality Board (“EQB”). Both are statutorily required to construct a power line of greater than 115 kV, especially one exceeding 10 miles in length.
The Power Line Task Force, Inc. (“Task Force”), comprised of concerned citizens of the affected communities, brings this action to enjoin construction of the new transmission line until Xcel has obtained (a) the Certificate of Need from the PUC, which is necessary for construction of any transmission line greater than 100 kV and 10 miles or more in length, and (b) the Route Permit from the EQB, which is required for any power line operated in excess of 100 kV, regardless of length.
This matter is now before the Court on a Motion by the Task Force for Summary Judgment to halt construction of the new transmission line until appropriate certification is obtained from the two administrative agencies.
II.
COMPLIANCE
WITH REQUIREMENTS OF RULE 115.03(c)
Because this is a Motion for Summary Judgment, the Task Force complies with Rule 115.03(c) of the General Rules of Practice for the District Courts as follows:
A. Issues
Presented
1. Is Xcel required to obtain a Certificate
of Need from the PUC before construction of a 115 kV transmission line covering
14.7 miles through the southeast twin cities metropolitan area?
2. Is Xcel required to obtain a Route Permit
from the EQB before construction of a 115 kV transmission line through the
southeast twin cities metropolitan area?
3. Does the construction by Xcel of the 115
kV 14.7 mile long power line without a Certificate of Need from the PUC and a Route
Permit from the EQB constitute:
a. A violation of the
b. Common law nuisance to homeowners;
c. Trespass to private property; and
d. Invasion of the privacy of homeowners.
B. Documents
That Form The Basis of the Motion
This Motion is based upon the following documents:
1. Affidavit
of
2. Affidavit of Arnulf Svendsen.
C. Material Facts That Are Not In Dispute
1. The
PUC Certificate of Need Necessity
Xcel has had a single circuit 115 kV power line running through the southeast metropolitan area since approximately 1923.[2] A few years ago, it sought to “upgrade” its transmission line by constructing a new 115 kV double circuit line covering 14.7-mile distance from its Red Rock substation in Newport, Minnesota to its Wilson substation in Bloomington. Affidavit of Roger Conant, ¶¶ 8 and 9, Conant Exhibit 3, p. 1. To do so, it needed zoning approvals from local communities, which it has, over time, obtained. In some cases, communities granted conditional use permits (“CUP’s), while other communities denied Xcel’s application and granted CUP’s only after they had went through the court system. In one way or another, Xcel has now obtained zoning approval from all of the affected communities.
In
2001, the Minnesota Legislature enacted an amendment to the Power Line Siting
Act. The measure, which went into effect
on
At an operational level of 115 kV and 14.7 miles in length, the proposed new Xcel power line satisfies both of these requirements. But Xcel has not sought — nor obtained — a Certificate of Need from the PUC. Pursuant to Minn. Stat. §216B.243, subd. 3, the PUC would conduct a hearing to consider several factors that in assessing “need” for the facility, including:
(2) the effect of existing or possible
energy conservation programs ... on long-term energy demand;
(3) the relationship of the proposed
facility to overall state energy needs, ...;
(4) promotional activities that may have
given rise to the demand for this facility;
(5) benefits of this facility, including
its uses to protect or enhance
environmental quality, and to increase reliability of energy supply in
(6) possible alternatives for satisfying
the energy demand or transmission needs including but not limited to potential
for increased efficiency and upgrading of existing energy generation and
transmission facilities, load-management programs, and distributed generation;
2. The
Another statute also enacted in 2001
and effective
Xcel proposed new power line
unquestionably falls within the statutory prohibition because of its 115 kV
intensity. But, as with the Certificate of
Need from the PUC, Xcel has not sought — nor obtained — a Route Permit from the
EQB.
3. Prior
Proceedings.
Xcel submitted an application for a
Conditional Use Permit (“CUP”) from
After
extensive hearings, the Planning Commission unanimously recommended that Xcel’s
application for a CUP be denied. The
City Council agreed. On
Xcel sued the City of Sunfish Lake in
Judge
Rex Stacy granted Summary Judgment to Xcel last spring, and issued a mandamus
order directing that the CUP be granted.
The focus of the Court’s decision with the Sunfish Lake Case was whether
there was adequate evidence that the new power line would cause diminution of
property values or bring about adverse health affects. On both grounds, the
Court disagreed with the City Council, deeming the diminution property values
to be nominal, only about ½ of 1% and dismissing the health concerns expressed
by members of international, national, and local scientists and
physicians. Conant Exhibit 5, pp.
App. 118-120, and App. 120-123.
The Court also reasoned that a Certificate of Need from the PUC was not
needed because Xcel had applied to other communities prior to the August 1,
2001effective date of the statute, and that those prior applications obviated
the need for Xcel to obtain a Certificate
of Need with respect to the Sunfish Lake portion of the project, which was
first applied for on November 13, 2001 – three and one-half months after the
law went into effect. The Court also
indicated that the City could require Xcel to obtain a Certificate of Need as a “condition” of construction following
issuance of a CUP by
The Court did not address any issue regarding a Route Permit from the EQB. That issue was not raised in the City Council proceedings or by Xcel in the litigation. Conant Affidavit, ¶ 17.
Following the trial court’s decision,
the City and Xcel, over objection of the Task Force, entered into a settlement
agreement for the City to grant a CUP to Xcel.
The Court then dismissed the lawsuit with prejudice. Conant Exhibit 6, p. App. 199. The Task Force appealed. On
Thus, no final ruling on the merits has been made regarding the Certificate of Need for the PUC, while the issue of a Route Permit from the EQB has never been addressed or adjudicated at all.
4. The Current Case
The Task Force brought this lawsuit on
The lawsuit does not seek to stop Xcel from constructing the power line, but only to halt the construction until — and unless — Xcel obtains the requisite authorizations from the PUC and EQB as specifically mandated by the Legislature.
The matter is currently before the Court upon a Motion for Summary Judgment by the Task Force on all four claims in the lawsuit. For the reasons set forth below, the Motion should be granted and Xcel prohibited from constructing the new 115 kilovolt power line without seeking and obtaining: a) a Certificate of Need from the PUC, and b) a Route Permit from the EQB.
III.
THE
LEGAL STANDARD
The
standard for summary judgment is well-established. Under Rule 56.01, Minn. R. Civ.
Procedure, the court may enter summary judgment in whole or in part if there
are no issues of material fact in dispute and the moving party is entitled to
judgment as a matter of law. Rule 56.03,
All
disputed inferences must be resolved in favor of the non-moving party. Fabio v. Bellamy, 504 N.W. 2d 758, 791 (
The
Task Force satisfies this standard. The
record in this case reflects no disputed issue of fact regarding the lack of a Certificate of Need for the PUC by Xcel
and the absence of any Route Permit
from the EQB for this project. It also
shows that the Task Force is entitled to judgment as a matter of law. Therefore, Summary Judgment is appropriate.
IV. ARGUMENT
The
Task Force is entitled to prevail on all four counts in this Complaint.
A.
Xcel
Has Violated MERA
In enacting MERA, the
Legislature stated a broad legislative purpose:
The
legislature finds and declares that each person is entitled by right to the
protection, preservation, and enhancement of air, water, land, and other
natural resources located within the state and that each person has the
responsibility to contribute to the protection, preservation, and enhancement
thereof. The legislature further
declares its policy to create and maintain within the state conditions under
which human beings and nature can exist in productive harmony in order that
present and future generations may enjoy clean air and water, productive land,
and other natural resources with which this state has been endowed. Accordingly,
it is in the public interest to provide an adequate civil remedy to protect
air, water, land and other natural resources located within the state from
pollution, impairment, or destruction.
Minn.
Stat. §116B.01 (emphasis supplied).
The
statute expressly allows, indeed encourages, anyone in
...to
maintain a civil action in the district court for declaratory or equitable
relief in the name of the state of Minnesota against any person, for the protection of the air, water, land,
or other natural resources located within the state, whether publicly or
privately owned, from pollution,
impairment, or destruction;...
MERA
therefore provides a cause of action for citizens in
any
conduct by any person which violates, or is likely to violate, any
environmental...rule,...of the state or any instrumentality, agency, or political subdivision
thereof which was issued prior to the date the alleged violation occurred or is likely to occur or any conduct
which materially adversely affects or is likely to materially adversely affect
the environment.
To
establish a prima facie case, a plaintiff must first identify “the existence of
a protectable natural resource.” White v.
Plaintiff’s second task is to show that the defendant's conduct violates an "environmental quality standard, limitation, rule, order, license, stipulation, agreement, or permit promulgated or issued by" a state regulatory agency. Minn.Stat. § 116B.04. Citizens for a Safe Grant v. Lone Oak Sportsmen’s Club, Inc., 624 N.W.2d 796, 805 (Minn. Ct. App. 2001).[3]
The
desire by Xcel to construct the expanded power line without obtaining a Certificate of Need from the PUC and a Route Permit from the EQB violates the
MERA because it constitutes a failure to comply with an applicable
environmental law or regulation.
·
·
·
Minn. Stat. § 116C.57, subd. 2. “No person may construct a high
voltage transmission line without a Route
Permit from the [Environmental Quality] board. A high voltage
transmission line may be constructed only along a route approved by the
board...
·
Minn.
Rules §4400.0400, subp. 2. “No
person may construct a high voltage transmission line without a Route Permit from the [Environmental
Quality] board. A high voltage
transmission line may be constructed only within a route approved by the
board...” [6]
(EQB Rules).
There is no question that Xcel has failed to obtain, or even apply for, the requisite Certificate of Need and Route Permit. To prevail, Xcel must prove there is "no feasible and prudent alternative” to obtaining the Certificate of Need and Route Permit, “and the conduct at issue is consistent with and reasonably required for promotion of the public health, safety, and welfare." Minn.Stat. § 116B.04. Since Xcel has not even tried to obtain a permit from either agency, it cannot claim there is no practicable “alternative.” Xcel cannot simply ignore the statutory directives and then claim no “alternative” exists to complying with these laws.
The
violation of a law, rule or regulation constitutes a per se violation of MERA and gives rise to appropriate injunctive
relief. Freeborn County by Turveson v. Bryson, 243 N.W.2d 316 (
B. The
New Power Line Would Constitute a Nuisance
Nuisance, the second cause of action
of the Complaint also is established here.
Action injurious to health, or indecent or offensive to the senses, or
an obstruction to the free use of property, so as to interfere with the
comfortable enjoyment of life or property, is a nuisance. Minn. Stat. §561.01; Schmidt v. Village of Mapleview, 196 N.W.2d 626 (
In this case, the power line would run
within 50 feet of at least 208 homes in the five communities east of the
A nuisance may be enjoined in order to
protect the health, safety, and well-being of the public. See
C. Xcel Has Committed Trespass
Trespass, the third cause of action
also exists here. Trespass consists of
unauthorized entry on another person’s property without consent. Special
Force Ministries v. WCCO Television,
584 NW. 2d 789, 792 (Minn. App. 1998); rev. denied (Minn. Dec. 15, 1998); Citizens for a Safe Grant, supra. at
805. Absent approval from the PUC
and the EQB, Xcel lacks authority to expand the power line on private
property. Although it has existing
easements for the existing limited power line, dating back to 1923, not all of
the easements allow Xcel to cross property in order to access its
easement. Conant Affidavit, ¶ 27. Xcel is not entitled to enter property
and expand its power line without appropriate regulatory approval. Holmberg
v. Bergin, 172 N.W.2d 739 (
Xcel’s construction will require entering properties owned by Task Force members to erect new, substantially taller towers, without the PUC or EQB approval. This unauthorized action constitutes trespass. Therefore, Summary Judgment should be entered on this claim, too. Injunctive relief is appropriate to redress or prevent a trespass act. The appropriate relief, as with the other causes of action, is to enjoin Xcel from committing trespass unless and until it obtains proper regulatory approval from the two administrative bodies.
D. Invasion of Privacy Exists Here, Too
Invasion of privacy, as alleged in
Count IV, also exists here. As declared
by the Supreme Court in Lake v. Wal-Mart
Stores, Inc., 582 N.W.2d 231 (
Xcel
would be intruding upon the privacy of the homeowners of
Breach of privacy is subject to
injunctive relief.
E. Summary
for Summary Judgment
In sum, all four of the claims in this lawsuit warrant Summary Judgment in favor of the Task Force. The failure to obtain a Certificate of Need from the PUC and a Route Permit from the EQB, or either one of them for that matter, violates MERA; constitutes a nuisance; is a trespass; and is an invasion of privacy. The appropriate remedy is to enjoin Xcel from constructing the new power line until, and unless, Xcel obtains the requisite Certificate of Need from the PUC and a Route Permit from the EQB.
Even if one of the administrative approvals is not needed, either the Certificate of Need from the PUC or the Route Permit from the EQB, Xcel still would be liable for all of the causes of action in the Complaint. Since both a Certificate of Need and a Route Permit is needed, even if Xcel were to be exempted, or to obtain, one of the authorizations, one authorization would not cure the absence of the other required authorization. Therefore, without either a Certificate of Need from the PUC or a Route Permit from the EQB, Xcel is liable, as a matter of law, on all four counts of the Complaint.
V. CONCLUSION
For the above reason, the Motion for Summary Judgment by Plaintiff Power Line Task Force, Inc. should be granted and Defendant Xcel enjoined from constructing the new power line without obtaining a Certificate of Need from the Public Utilities Commission and a Route Permit from the Environmental Quality Board.
Dated: April ____, 2003
By: _______________________________
Marshall H. Tanick (108303)
1700
Pillsbury Center South
(612)
339-4295
ATTORNEYS FOR PLAINTIFF
POWER
LINE TASK FORCE, INC.
312114
[1] See, Northern States Power Co. v. City of Mendota
Heights, 646 N.W.2d 919 (Minn. Ct. App. 2002); Northern States Power Co. v. City of Sunfish Lake,
2003 Minn. App. LEXIS 406. (Minn. Ct. App.,
[2] Xcel Energy is the trade name of Northern States Power Company.
[3]
Plaintiff also may fulfill the White test for a prima facie case by
showing that the defendant has caused or is "likely to cause the
pollution, impairment, or destruction of the air, water, land or other natural
resources," Minn. Stat. § 116B.04, regardless of whether Xcel’s conduct
violates any existing law or regulation.
[4]
[5]
[6]
[7]
In addition to the threat to natural resources, health concerns regarding the
new 115 kV, 14.7 mile transmission line are real and substantial. A recent study by the California Department
of Health conclusively reflects extreme health hazards of a new power
line. According to the study, the EMF that
will be generated from the power line could have a 50-90% likelihood of causing
diseases (depending on the disease), including increased likelihood of child
leukemia, ameotrophic lateral sclerosis (ALS or Lou Gehrig’s Disease),
neurological disorders, breast cancer, and miscarriages, among other
afflictions, especially among those already susceptible to those diseases. Conant Affidavit, ¶¶ 26 and 28 and Conant Exhibit 8, pp. 11-12.
At least 10 of the