Judge Stacey’s Order Annotated.
(Incorrect statements are highlighted in bold and italics. The correct facts are presented in an accompanying footnote.)
STATE OF
File No. C4-02-6854
Northern States Power Company d/b/a Xcel Energy, Petitioner,
v.
City of
The above-entitled matter came before the
Honorable Rex D. Stacey, Judge of District Court, on
Jack Y. Perry and Harold J. Bagley appeared for Xcel Energy.
Clifford M. Greene and William P. Hefner appeared for City of Sunfish Lake.
Christopher T. Johnson appeared on behalf of the Power Line Task Force.
Based on the proceedings, this Court makes the following:
ORDER
1. Pursuant to Rule 24, Minnesota Rules of Civil Procedure, the Power Line Task Force is allowed to intervene in this action.
2. Petitioner's motions for summary judgment with respect to its first and second Causes of Action in the Amended Verified Petition for Alternative Writ of Mandamus are granted and Respondent shall, at its next scheduled City Council Meeting, issue to Petitioner a conditional use permit and minor variance for the upgrading of the existing single circuit 115kV transmission line running through the City of Sunfish Lake.
3. The attached memorandum shall constitute the findings of fact and decision of the Court.
Dated:
BY THE COURT:
Rex D. Stacey
Judge of District Court
MEMORANDUM
Introduction
In addition to having read through voluminous briefs and exhibits, the Court has reviewed the 109 documents totaling more than 2000 pages comprising the administrative record before the City of Sunfish Lake (City). References are made throughout this memorandum to these record documents (RDs) and, occasionally, to stamped numbers and Exhibits. Particular attention has been paid to the transcripts of the meetings of the Sunfish Lake Planning Commission and City Council. This review has led the Court to the inescapable conclusion that despite the very fine efforts of the City Attorney and the Mayor, the City Council failed to do its duty and its denial of an application to upgrade an electric transmission line was unauthorized, unreasonable, arbitrary and capricious.
Petitioner Northern States Power Company,
doing business as Xcel Energy (Xcel), is a
Xcel seeks issuance of an order of mandamus compelling City to 1) approve its conditional use permit (CUP) and minor variance for the proposed upgrade of an existing electric transmission line, 2) pay Xcel its statutorily-prescribed damages, costs and disbursements, 3) reimburse Xcel for its remaining unused escrow deposit, and 4) assume its own fees and costs incurred in reviewing Xcel's requests. Xcel also seeks a judgment declaring City's new setback requirements invalid and inapplicable to Xcel's proposed upgrade. The subject of Xcel's summary judgment motion is 1) above, its application for a CUP and minor variance.
City's cross-motion for summary judgment asks that Xcel's Petition be dismissed with prejudice. City asserts that its denial of Xcel's application for a CUP constitutes an exercise of quasi-judicial authority and that judicial review of a quasi-judicial decision is limited to an evaluation of whether City's actions were based on legally sufficient facts in the record before it. City denies Xcel's claim that denial of the application was so arbitrary and capricious as to constitute a clear abuse of discretion.
This Court has jurisdiction over the
dispute by virtue of Minn. Stat. Sections 462.361, subd.
1, and 586.11. Because the proposed upgrade is located
entirely within
Power Line Task Force, Inc. (PLTF) is an
organization comprised of interested persons and persons living in proximity to
the existing transmission line. Douglas P. Beedon and
Duncan H. Baird live near the transmission line in
With the understanding that they would
rest on the record, the Power Line Task Force, Inc. (PLTF), Douglas P. Beedon and Duncan H. Baird were allowed to intervene in
this action. PLTF President, Roger Conant, and his wife, Ingrid, have a
personal stake in the outcome of this litigation—their home at
On
On
PLTF played an important role in City's
denial of the CUP. But in addition, on
After suffering "chronic information
overload" from "studying this thing intensely for over two
years" (Transcript of February 4, 2002, City Council Meeting, RD 86 at 3),
City denied Xcel's CUP application and request for minor variance by a vote to
4 to 1. The lone dissenter's position is summed up in the following statement,
"I've been trying for three years to come up with good reasons to deny
this thing and I can't." Transcript of
Facts
The underlying
facts are not in dispute.[2]
The question is do the facts relied upon by the City form a rational basis for
denial of the application. This question led the City Attorney to prepare multiple
legal memoranda and two separate and distinct sets of findings for the City
Council—one supporting denial of the application and one
supporting approval of it. RDs 106-108. A
number of public hearings were held and both Xcel and members of the public
were given opportunities to comment on the proposed findings at various
junctures. See, e.g., Xcel's Objections to Draft Planning Commission Denial
dated
Xcel’s transmission system currently
includes a single-circuit 115kV transmission line crossing six communities and
serving the entire Southeast Metro area. The line was constructed in 1923,
before the City was incorporated, before City's zoning code became effective,
and before the homes adjoining the line were built. One of the experts hired to
review the proposed upgrade testified at a public hearing that the line has
"been upgraded before." RD 83 at 50. The existing 14.7-mile line
connects the Red Rock Substation in
The Red Rock to
In order to address these potential overloads on the system, Xcel proposes to upgrade the existing single-circuit 115kV transmission line to a double-circuit 115kV transmission line[3] (Project). Besides addressing reliability, added capacity will help meet expected growth in the electric load over the next decade. RD 1-Z at 2-7. A second circuit line will be added to the existing line and the resulting double-circuit line will be installed on steel monopoles. RDs 1-N & 1-0. The new poles will be located on the centerline of the existing 50-foot wide right-of-way and private easements. No new right-of-way or easement will be required.
The height of the new structures will be between 84 and 100 feet, about 25 feet taller than the existing wooden H-frames. This will allow a vertical orientation of lines as opposed to the present horizontal one, placing the double-circuit line significantly further away from the edge of the easement than the current single-circuit line. RD 1-Z. None of the substations will be expanded. [4] Resolution 02-04, Findings 6-12. A minor variance is sought from City's requirement that the new poles be 60 feet from existing homes and that the conductors be at least 37.5 feet from the homes.
Construction of the Project is planned in
two separate phases. Phase one consists of the 6.36-mile eastern portion of the
line from the Red Rock Substation to the Rogers Lake Substation. There are no
current plans to build phase two running from the Rogers Lake Substation to the
Wilson Substation. David G. Callahan, Team Leader in the Siting and Land Rights
Division of Xcel Energy, told the City Planning Commission on
Zoning approvals for the Project are
required from five of the six communities through which the line runs; City,
Newport, Inver Grove Heights, South St. Paul and Mendota Heights.
As noted above, the Project has been subjected to environmental review by the MEQB and MPUC. The Minnesota Department of Health (MDH) has also reviewed it.[6] A primary issue before these state agencies was EMF impacts. An electric field is the region in which a force exists between two charged particles. Electric fields are found around any source of electric voltage and are expressed in units of kilovolts per meter (kV/m). A magnetic field is the vector quantity that describes the forces of interaction between electric currents and is expressed in milliGauss (mG).Each of these agencies, and the City Council, recognized that the Project will dramatically "reduce" existing EMF levels.[7] RDs 1-Q, 9,13-L, 48 & Resolution 02-04, Findings 27-34. In addition, the City Council concluded that EMF studies have "not yet demonstrated a causal relationship" between EMF levels and "leukemia, lymphomas, nervous system tumors and breast cancer, as well as with various reproductive abnormalities." Resolution 02-04, Finding 60.
In support of their negative declaration
on the need for an EIS, MEQB found that "health effects had not been
conclusively demonstrated by any one study on human beings or animals, nor by
the body of evidence from epidemiology and laboratory studies of animals,
tissues and cells." RD 48, Finding No. 17. MEQB staff conducted a review of recent developments in
scientific literature regarding EMF including the National Research Council and
the National Institute of Environmental Health Sciences reports released in
1999[8]
and concluded that "the current evidence does not indicate that the
electric and magnetic fields expected from transmission lines represent a
potential for significant environmental effect."
The Ramsey County District Court dismissed PLTF's legal challenge to the negative declaration, finding that MEQB's decision was not arbitrary or capricious and that they properly considered the NIEHS study. The Court stated, "[t]he gist of the report is that there is weak scientific evidence suggesting that EMF exposure may pose a leukemia hazard, but that the evidence is not sufficient to require aggressive regulatory concern." RD 13-N. PLTF's motion for a new trial based on "new" EMF studies was denied, the Court finding that "[t]he [new] EMF studies are cumulative with information on the record. None of the information would have likely affected the outcome of the case." RD 13-0. No appeal was filed.
PLTF sued MPUC to shut down the existing power line because MPUC is responsible for ensuring that"[e]very public utility...furnish safe, adequate, efficient, and reasonable service." Minn. Stat. Sec. 216B.04. In affirming MPUC's decision, the Minnesota Court of Appeals stated, "[MPUC] reasoned that because the National Institute of Environmental Health Sciences had conducted a six-year, $60.5 million study of the issue, [MPUC] could not 'reasonably second-guess' the NIEHS conclusion that presently there was cause only for 'passive' and 'inexpensive' regulatory measures to reduce EMF exposure." PLTF v. MPUC, 2001 WL 481949, at 1.
MDH is
charged with promoting public health by regulating environmental health
hazards. [9]
Minn. Stat. Sec. 144.05, subd. 1(c).
In its
By letters dated
All three
agencies' determinations relied heavily on the NIEHS study. [10]
MDH noted, "[t]he NIEHS believes that the probability that [EMF] exposure
is truly a health hazard is currently small...weak epidemiological associations
and lack of any laboratory support for these associations provide only
marginal, scientific support exposure to this agent is causing any degree of
harm" and "[t]he NIEHS concludes that [EMF] exposure cannot be
recognized as entirely safe because of weak scientific evidence that exposure
may pose a leukemia hazard." MDH concluded, "in
our opinion, this finding is insufficient to warrant aggressive regulatory
concern." However, noting that virtually everyone in the
In March of 2000, resistance to the
Project prompted the Mayors of Sunfish Lake,
PLTF alleges
that the CAI report is biased toward Xcel. At the
The focus of the review by CAI was on 1) the need for the second circuit, 2) potential alternative system improvements rendering the second circuit unnecessary, 3) effects of EMF and audible noise, 4) appropriateness of the tubular steel structure, 5) the economic cost of the project and alternatives, 6) possible alternative routes for the second circuit, and 7) potential impacts to the natural and cultural environment. RD 1-Z at l.
The EIR
concludes that the Project, including the 6.36-mile phase one of the existing
14.7-mile Southeast Metro transmission line, is needed to satisfy Xcel's double
contingency objectives. [16]
The existing line does not meet Xcel's double contingency planning requirements,
and by the summer of 2002, the line will not meet Xcel's single contingency
criterion.
City examined whether Xcel's submissions in support of the application for a CUP addressed the need for only a 6.36-mile transmission line. Xcel's evidence of need was premised on an upgrade running from the Red Rock to the Wilson Substation. RDs 1-Z &. 29. In response to City's request for additional evidence supporting the need for the shortened line, Xcel submitted a report entitled Red Rock-Rogers Lake 115kV Rebuild to Double Circuit: Analysis of "Need" and "Future Line Loading" Issues, RD 22.
Rich Gonzales, a member of Xcel's
Transmission Reliability and Assessment Division, prepared the report and in it
sets forth the actual load level, 506 megawatts, achieved during the summer of
2001.
Recognizing that the Gonzales report
contemplated an upgrade of the entire Red Rock to
Decision
Need for the Project
There are only
two possible transmission line routes through
At no time during the December 12 meeting
was it suggested that denial of the application was an option.
"Denial" was never even mentioned. RD 83. Mayor Tiffany described the
task before the Council as follows: "The purpose of the meeting is, one,
to receive information of 'routes studied in the application and consider
whether any other alternative routes should be studied.' Secondly, determine
which suggested alternatives should be studied. Three, to specify the
information requirements for the alternative, and fourth, a ruling on whether
information requirements are complete...."
In response to a question from
Councilwoman Faris, the City Attorney explained the
workings of Minn. Stat Sec. 15.99, mandating that zoning applications be
approved or denied within 60 days if complete and, "if the application is
not complete, the city has to, within ten days after submission, inform the
applicant that ifs not complete and identify the irregularities or the missing
information."
Minutes of the joint meeting of the City
Council and Planning Commission on
City's zoning
code provides, "[a]ny established use or
building legally existing prior to the establishment of this Ordinance and
which is therein classified as a conditional use may be continued in like
fashion and activity [22]
and shall automatically be considered as having received conditional use
approval." RD 96, Sec. 1202.06. Therefore, Xcel's
75-year-old transmission line has "automatically-received conditional use
approval." By permitting the existing line. City
has, as a matter of law, approved the adverse impacts associated with the line.
Interstate Power Co., Inc. v.
City's zoning code also sets form the
process to be followed in reviewing a CUP application to upgrade a transmission
line 60 feet or more in height. Step 1 requires City to conduct a
"completeness" review of the application, including whether the
application contains "[d]ocumentation
demonstrating the need" for the project. Id; Sec. 1224.05(A)-(D).
Step 2 requires the City Council to decide within "30 days following
receipt of the application...whether any other alternative routes should be
studied," including the "no-build alternative" and "[a]n
alternative which places the line underground."
City's own process reinforces the illegality of prohibiting the upgrade. Upon a showing of a demonstrated need for new or modified overhead transmission lines, Sections 124.05(F) and (I) only authorize City to select preferred alternative routes through its borders, not to deny the line altogether. And by denying the application, City reversed its prior rejection of the "no-build" alternative set forth in Sec. 1224.05(B)(3).
City denial of the CUP on the ground that
need for the Project has not been shown was arbitrary and capricious. Virtually no one testified before any responsible
governmental body to a lack of need for the Project. [23]
The vote to deny the application reflects the City Council's will, not its
judgment, and is an invalid basis for denial. Markwardt v. State, 254 N.W.2d 371,
374 (
Impact on Property Values
The EIR commissioned by the Steering Committee included a study prepared by Collier Towle Real Estate of Minneapolis designed to determine the effect of the Project on neighboring property values. RD 13-C. Collier Towle conducted a paired sales analysis comparing the sale price of Twin Cities' metro area properties along two different transmission lines to the sale price of comparable properties not located near a line. One of the transmission lines was a single-circuit 115kV line on wooden H-frame poles while the other was double-circuit line on steel monopoles. More than 400 sales transactions over a period of the past eight years were analyzed; 49 of them involved sales of property along the two transmission lines. Id, at 1. The analysis demonstrated that houses selling along an existing line took only 5.5 days longer to sell and sold for only about .5% less than houses located away from a line. It also demonstrated that the conversion of an 115kV line from a single to a double-circuit had a nominal negative impact on property value of only about 1%, well within the tolerance for errors in surveys of this type. Id at 8.
In order to counter the information offered by Collier Towle, PLTF members submitted three letters from metro area realtors to the Planning Commission and City Council. [24] RD 55. The first is a letter from Mary Gallivan of Edina Realty to "Mr. and Mrs. Roger Conant" in which she describes a "beautiful half-million-dollar home in the metro area" that has been "earmarked "unsalable'" due to its proximity to "huge electrical transmission lines." The second, a letter addressed "Dear Ingrid and Roger Conant" from Sally Bradford of Coldwell Banker Burnett, quotes prospective buyers of property located near "[h]igh power lines" as follows, "Those power lines represent a risk I am not willing to take with my family."' The third is a two-sentence letter "To Whom it May Concern" from Ginger Overby, also of Edina Realty. In her opinion, "high wires going over and near residential property do reduce the value of the home and property."
None of these
people appeared before City at any of the public meetings [25]
and no support of any kind is attached to their testimonials. Based on the
absence in the record of any proof of the agents' appraisal qualifications,
this "testimony" should not have been given much weight. See Reuther v. State, 455 N.W.2d 475, 477 (
City's denial of the CUP on grounds of property value diminution was arbitrary and capricious. The three homes in City located within 50 feet of the line were purchased or built along the existing single-circuit line with the property value impact from the line fully integrated into the price. Therefore, the only property value impact at issue is the incremental impact, if any, caused by adding the second circuit to the existing line. It was unreasonable for City to ignore City Collier Towle's uncontroverted expert opinion, especially in light of the fact that City selected them to prepare it.[26]
EMF Concerns
City indicated at the May 13 hearing that its denial of the CUP was based, primarily, on health concerns related to EMF exposure. CAI calculated the EMF levels resulting from double-circuiting the line and concluded that EMF would be reduced. RD 1-Z at 5. City adopted CAI’s findings of substantial reductions in both fields. Resolution 02-04 at Findings 23-34. PLTF countered these findings with other studies, primarily a April 2001 report of the California EMF Program (RD 28) and with the testimony of Dr. Magda Havas of Trent University (Pre-filed testimony of Dr. Magda Havas, RD 26-D; Steering Committee Hearing Transcript, RD 26-N, pp. 21-49) and Dr. Martin Blank of Columbia (Pre-filed Testimony of Dr. Martin Blank, RD 26-B; Steering Committee Hearing Transcript, RD 26-N, pp. 49-61).
Testimony from Drs. Havas
and Blank support locating transmission lines at a sufficient distance to
reduce human exposures to below 4mG in order to minimize potential adverse
health effects of EMF. Dr. Havas cites three
potential sources of EMF within the home: appliances, indoor wiring and outdoor
wiring. She opines, "[t]o protect the most vulnerable individuals in our
population, namely children under the age of 14, magnetic fields need to be
kept below 2mG, especially in the bedroom." RD 26-D at
8. She cites clocks, radios, electric heaters
and baby monitors as potential sources of dangerous levels of EMFs but the levels generated by these appliances are not
given.
The report presented to the City Council by PLTF was commissioned by the California Public Utilities Commission and consists of a review by three scientists from the California Department of Health Services [29]of the literature regarding possible health effects of EMF from power lines, wiring in buildings, certain jobs and appliances.
The three reviewers agree that statistical studies in the human population suggest there might be a problem with EMF while studies in animals do not.[30] They agree that "it is 'more than 50% possible’ that EMFs at home or work could cause a very small increased lifetime risk of childhood leukemia, adult brain cancer, and amyotrophic lateral sclerosis" and "a 5-10% added risk of miscarriage." They also agree that "it is ‘10-50% possible' that residential or occupational EMFs could be responsible for a small increased lifetime risk of male breast cancer, childhood brain cancer, suicide, Alzheimer’s disease, or sudden cardiac death" and "adult leukemia or female breast cancer." Furthermore, they agree that "it is 'very unlikely (2-10% possible) but not impossible’ that residential or occupational EMFs could be responsible for even a small fraction of birth defects, low birth weight, neonatal deaths, or cancer generally." [31] In each such case, they agree, "there is a chance that EMFs have no effect at all." Id at l.
The reviewers
compared the size of possible risks from EMFs to that
of chemical and physical agents now being regulated and concluded, "[w]ith the exception of miscarriage, the added risk (if any)
of even a highly EMF-exposed individual getting any of these rare diseases
would be such that the vast majority of highly exposed individuals (95%-99.9%)
would not get them. Calculations suggest that the fraction of all cases of
these conditions for which EMF might be responsible would be very low."[32]
Despite having found that EMF levels at
the edge of Xcel's 50-foot easement would be dramatically reduced by the
upgrade (Resolution 02-04, Findings 27-34), City found that levels would not be
as low as 4mG, the point City determined to be the maximum allowable exposure
to EMF (Id; Findings 59-60). One can only assume that City relied on the
testimony of Drs. Havas and Blank in reaching this
conclusion. But consistent with the state federal agency determinations
described above. City's zoning code only allows it to require that Xcel take
"reasonable and prudent measures" to mitigate EMF levels. RD 96, Sec.
1224.05(L)(6)-(7). City did not amend this limitation
through its required 16-step process for doing so.
City further found that its 4mG exposure
standard could be met at between '75 to 100 feet" from the line
(Resolution 02-04, Findings 61-62), but it elected not to impose such a
condition for fear that MPUC would require City to pay the increased costs
incurred.
City's denial of the CUP on grounds of
the potential harmful effects of EMFs was arbitrary
and capricious. On March 7, 2002, City Councilman Stoddart
attended a Mendota Heights Council Meeting and stated, "I don't know if
[EMF] causes any damage...but if we deny [the CUP], we've bought a year or two
years...[m]aybe it's the
chicken's way out, but I bought all my neighbors and all my friends another
year or two to see if something comes to the surface." Petitioner's
Exhibit 41 at 18. Councilman Stoddart had
"over 1,500 pages of things mailed to me and delivered to my door."
Certificate of Need
City also found that "Xcel is
premature in applying for conditional use in
"Certificates of Need" are
required for the construction of 100+ kV lines of over 10 miles in length.
Minn. Stat. Sections 216B.2421, subd. 2(3) & 216B.243, subd. 4 (Supp. 2001). The requirement to obtain a certificate of
need was one of a package of statutory revisions affecting the siting and
construction of transmission lines. These statutory provisions became effective
for certificates of need "applied for on or after
Even if Xcel were required to obtain a certificate of need from MPUC, City could not require Xcel to obtain the certificate before applying for a CUP. Minn. Stat. Sec. 216B.243, subd. 4 (Supp. 2001) states: "[a]ny person proposing to construct a large energy facility shall apply for a certificate of need prior to [1] applying for a site or route permit under sections 116C.51 to 116C.69 or [2] construction of the facility." Xcel is, therefore, free to obtain siting review and approval before it obtains a certificate of need so long as it does not begin "construction of the facility." The most City could do was to condition its approval on Xcel obtaining any and all authorizations required by law. To deny the CUP on this ground was arbitrary and capricious. See Trisko, 566 N.W.2d at 357 (it is arbitrary to deny a use where conditions can be imposed that make the use acceptable).
Conclusion
As a "public utility," Xcel has
a statutory duty to provide service to all customers within its assigned
geographic service areas.
Minnesota Courts recognize the important
role municipalities play in the placement of transmission lines within their
communities. In NSP v. Oakdale, the Court of Appeals found that Minn. Stat.
Sec. 216B.36 conferred specific authority "to cities to regulate utility
line placement." 588 N.W.2d 534, 539 (Minn. Ct. App.
1999). But while City may regulate the installation of transmission
lines, it may not prohibit them. See 1 Robert M. Anderson, Anderson's American
Law of Zoning, Sec. 12.33 (4th ed. 1995) (excluding or unreasonably confining
transmission lines is not reasonably related to public health, safety or
welfare and is not within the police power); Hubbard Broadcasting, Inc. v. City
of Afton, 323 N.W.2d 757, 764 (Minn. 1982) (noting condemnation power of
utilities overrides local zoning); Town of Oronoco v. City of Rochester, 293
Minn. 468, 471,197 N.W.2d 426,429 (1972) (holding that
balancing-of-public-interests test applies to resolve conflicts between the
police power and the right of eminent domain). In this case, City rejected
routing the line anywhere else in
RDS
[1] The
PLTF has been opposing the upgrade for three years, as made clear by the
Opinion’s next sentence, which begins, “On
[2] The 36 footnotes address facts that are in dispute. Some of these disputed facts are key to the judge’s decision. The PLTF tried to get the correct facts before the judge. Communicating through his clerk, the judge first agreed to accept a memorandum on disputed facts from the PLTF and then changed his mind, stating that he would not accept such a memorandum.
[3] This is one of the facts that are in dispute. We do not see this as an upgrade. The proposed second line will serve a different set of substations than is served by the present line. The present line would be dismantled in its entirety and replaced by totally new physical structures. We therefore contend that Xcel is proposing to install a new line on the existing right-of-way. This difference impacts upon the zoning issues.
[4]
In fact, The Roger’s
[5] Xcel had not discussed phase one before December 2001. The reference is probably to 2002.
6 This statement is totally wrong. None of the named agencies has reviewed the project. The MEQB reviewed the issue of whether it should order an EIS for the project. It did not review the project. The MPUC reviewed whether the present line should be removed. It did not consider Xcel’s proposal. The MDH has no legal role with respect to the project and never addressed the proposal, except in Commissioner Malcolm’s 1999 letter in which she expressed concern about the potential health impacts of the proposed new line.
[7]
It was generally agreed that, initially, the magnetic fields would be reduced
somewhat. However, it was equally agreed that within the expected
lifetime of the project, the fields would return to, or exceed, the present
levels. However, those estimates were computed under the assumption the
loads on the line would be balanced. We learned at the
[8] The MEQB staff did not review “recent developments.” The review was conducted three years ago. In the intervening years, the conclusions of the studies relied upon by the staff have been reversed by the studies’ authors and others. Specifically, the lead researcher of the NRC study, Martha Linet, now reports the study’s data should have found a relationship between EMF and cancer. Daniel Wartenberg, who led the research review of the NIEHS report, has recently published several journal articles on the relationship between EMF and cancer, which he characterizes as “robust,” and not spurious.
[9] That is not a correct description of the MDH’s responsibilities. The statute does not confer upon the department a broad-scale authority to regulate hazards. Section 144.05 says the MDH “shall be responsible for the development and maintenance of an organized system of programs and services for protecting, maintaining, and improving the health of the citizens.” “Regulating environmental health hazards is therefore limited to activities within the “organized system of programs and services.” In short, the department has no role in the placement of transmission lines (other than the Commissioner’s role as a member of the MEQB).
[10] The NIEHS study was completed three years ago and the research upon which it relied was completed at least four years ago. Since then, the research results upon which it relied have been reversed. Accordingly, previous reliance upon the NIEHS study does not mean that current reliance is appropriate.
[11] The judge fails to note the record shows that the MDH has only once addressed the proposed project, and, at that time, it expressed specific concern over this project because of its unique characteristics (Malcolm’s 1999 letter to the MEQB).
[12] The judge fails to provide support for this statement, which I believe is incorrect. The MEQB chose not to appoint itself the Responsible Government Unit. Therefore, its negative declaration applied only to itself. It had no impact on other government units.
[13] Again, the judge provides no support for this statement. The cities could have, I believe, ordered an EIS if they were so inclined. Instead, they agreed to Xcel’s proposal to do an EIR.
[14] CAI is independent only from the Committee. It is not independent of Xcel. In fact, it is highly dependent upon Xcel. CAI is deeply intertwined with Xcel. It was selected by Xcel, was paid by Xcel, reported to Xcel, has a financial stake in the outcome of these proceedings, was separately retained by Xcel both before and after conducting its analysis, and has continuously and actively supported Xcel’s positions.
[15] Mayor Tiffany has no authority to speak for the other members of the Steering Committee. If asked, one or more other members of the committee would state they believe CAI was biased. Furthermore, the PLTF allegations were not baseless, but rest upon the fact that, as enumerated above, CAI is dependent upon Xcel in many ways. Any reasonable person, presented with that fact situation, would agree a presumption of bias exists. Furthermore, the volume of “objective measurable data” has been rendered worthless by Xcel’s decision to truncate the proposed line.
[16] That statement is egregiously wrong in all respects. First of all, there was no EIR conclusion. There was no EIR report. The CAI report did not represent the conclusions of the mayor’s committee, which in fact did not reach any conclusions. Rather, it was no more than part of the record, along with the statements developed by the PLTF experts. Secondly, the CAI report did not conclude that the SE Metro line is needed. CAI was specifically instructed to produce no conclusions. Rather, it developed data that suggested that, by a rather slim margin, the cost-benefit ratio was better for the proposed line than it was for the alternative proposals. However, there was no mention of the 6.36 mile segment because Xcel had yet to split its proposal. Furthermore, the analysis conducted by CAI technically could not apply to the 6.36 segment standing alone since it was based upon a projected load from Bloomington, which would not be served by the segment.
[17] The current 506 megawatt and projected 511 megawatt load do not refer to the proposed line, but to a projected load for the whole south metro area, including Bloomington, South St. Paul, and stretching down to Red Wing. The proposed segment would serve virtually none of this area, as demonstrated by Dave Shafer’s subsequently quoted statement, which makes no pretense at suggesting the proposed segment would alleviate any overloading in the south metro area. CAI never analyzed the proposed segment separately from the originally proposed line. Nor did CAI suggest the projected overload was worse on the originally proposed line than elsewhere in the system. Furthermore, the loss of the proposed line would not uniquely impact the “Red Rock-Roger’s Lake area” since the proposed line does not serve a substation that supplies the eastern portion of the area. Additionally, there is no single contingency issue as defined here, as all of the substations served by the proposed segment are also served by a minimum of two other transmission lines. (Single versus double contingency refers to a far more complex pattern of outages than implied by the loss of the present line.)
[18] Even if Xcel’s self-serving analysis were applied to the SE Metro line, it would make no sense, since the Rogers Lake substation is served by five separate transmission lines, and therefore there is no need that growth be confined to the SE Metro line. Furthermore, Xcel’s data showed that, in fact, there was no growth in demand in the south metro area over the five year period immediately preceding the initial submission of its application.
[19] We use the Dave Shafer quote as evidence of bias. No serious person should take it seriously, as his sentence means absolutely nothing. Its logic could be used to justify virtually any human activity.
[20] This is egregiously wrong, and is part of the information we would have provided to the judge had we been afforded the opportunity. The record shows there is a third possible route, one that satisfies most concerns. It is along I494. This route was never actively considered because CAI and Xcel erroneously maintained MNDOT would not permit it.
[21]
There is I494, which is a pre-existing route within the meaning of the cited
PEER decision. The CAI report also showed that there were numerous
solutions to the alleged capacity problem that did entail going through
[22] This does not mean the new line benefits from the grandfathering of the old line. The key word here is “like.” The amount of “activity” (as measured by current) would double under the line, and the doubling of the circuits could be construed as not continuing in like fashion.
[23] The PLTF testified at length on the lack of need for the project before all the planning commissions and city councils. We showed that Xcel’s need analysis relied upon assumptions of use in Lone Oak that are no longer valid (as shown in CAI’s table 3.1). We analyzed Xcel’s projections and showed they had shown no growth in area energy consumption in recent years. We supplemented that analysis with two reports from the energy consultant, MSB Associates.
[24] Importantly, we additionally submitted a statement from Capital Appraisals, Inc., which maintains the database which Colliers Towle used to generate its report. This statement lists the ways that Colliers Towle misused the database and concludes that the adverse impacts upon property values are underestimated.
[25] Nor did Colliers Towle. However, Cathy DeCoursey, also a real estate agent and a member of the planning commission, did submit a letter and stated at the Commission hearing that she thought the proposed line would result in a significant adverse impact on property values.
[26] The Collier Towle opinion was criticized by Capital Appraisals, which is particularly authoritative. The City did not select Collier Towle. Rather, CAI selected the firm, which was compensated by Xcel.
[27] This totally mischaracterizes the science and the thrust of her testimony. While computation of average exposures can be complex when dealing with weak point sources such as enumerated, as the field dissipates rapidly with distance, they are not unduly complex when dealing with strong sources such as power lines, as the field dissipates much more slowly. She emphasized repeatedly the special dangers of transmission power lines.
[28] Martin Blank did far more than rely on the NIEHS study. He analyzed in great detail how magnetic fields cause cells to issue “stress proteins.” He therefore demonstrated that magnetic fields have a profound microbiological impact upon the human body.
[29]
This is not a report of the three unnamed scientists who authored it.
This draft report is attributed to
[30] The conclusion is incorrect with respect to animal studies. The results are summarized on the Report’s page 64. The animal studies showing an impact at low EMF levels that “increase our confidence in a causal association.” A separate review of those studies that address animal pathologies lead the authors to conclude their “confidence in the alternative hypothesis [i.e., for a causal relationship] is increased a little.”
[31] This quote is probably irrelevant to the Opinion. The quote is not saying that it is unlikely that EMF cause disease. Rather it is saying that EMF’s impact is likely to be confined to specific diseases. Therefore, it suggests that, while EMF probably cause spontaneous abortions, EMF do not seem to cause birth defects. Similarly, while EMF cause certain cancers (like brain tumors), they are unlikely to cause such other cancers as, say, liver cancer
[32] This misleads the reader and is irrelevant to the Opinion. The fact the fraction is low does not mean it is not important. The relevant analysis is found on page 16 of the California EMF Project report. Referring to the impacted diseases, the report concludes “if one were certain that the epidemiological associations were causal [which the report thinks is likely-ed.] the population burden of mortality would be more than that from many currently regulated environmental agents. If one were to adjust these numbers by one’s degree of confidence in causality, [the result]...is still not trivial in the regulatory framework.”
[33]
This is another egregiously incorrect statement. The city determined no such
thing. The cited findings merely report upon CAI’s
example. The example overstates amount of any possible reduction in
magnetic fields as the assumed currents in the present line substantially
exceed the actual maximum currents. The assumed currents in the proposed
line are less than the expected currents. Furthermore, the example
assumes the load would be balanced, which Xcel told us at the
[34] The poll did not address and the finding did not describe funding alternative routes. Rather, the poll asked about working to oppose the proposal. Finding 42 reads, “The March 2000 questionnaire asked whether residents would be willing to assume an annual financial commitment to actively work to oppose or change Xcel’s transmission line proposal. Of the 103 respondents, 57 stated they would be willing to make a commitment of five years; of these, 34 would agree to an annual commitment of more than $500.” The poll said nothing about favoring or not favoring a proposal to finance an alterative.
[35] This language does not appear in Sec. 216B.2421. Similar language does appear in Sec. 216B.2425, which discusses the PUC maintenance of a list of certified high-voltage transmission line projects. Neither Section 216B.2421 nor Section 216B.2425 addresses the PUC’s issuing of Certificates of Need. In this context, this is an important error.
[36] This is not a condemnation proceeding.