Tanick Analysis of Requirement to Obtain Certificate of Need

As you know, Xcel Energy has announced its intention to begin construction soon in Sunfish Lake and Mendota Heights of its planned new double circuit, 115kV, 14.6 mile transmission line. This new line would be located on the site of its present single-circuit 115kV line that runs from the Stockyards substation in South St. Paul through the Rogers Lake substation in Mendota Heights, terminating at the Wilson substation in Bloomington.

The two 115kV circuits are to be placed on new pylons. One circuit will replace the existing circuit. In addition, a new, longer circuit will begin at the Red Rock substation in Newport and extend to the Rogers Lake substation and thence on to Wilson.

Under the law that was applicable in 1999 when Xcel first announced its plans, transmission line siting decisions were subject to local community control. Accordingly, in the fall of that year, Xcel applied to Mendota Heights for the necessary permissions. In 2000, it similarly applied to South St. Paul and then to Bloomington for the requisite permissions in September 2000.

The regulatory framework changed on August 1, 2001. As of that date, no application had been made to Sunfish Lake. South St. Paul had rejected Xcel’s application, Mendota Heights had yet to rule, and Bloomington had approved a small part of the Phase I application. There had been minimal or no construction of the planned line.

The Minnesota law went into effect on August 1, 2001. It defines a “large energy facility” as “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.” Minn. Stat. § 216B.2421 subd. 2(3). The measure specifies: “No large energy facility shall be sited or constructed in Minnesota without the issuance of a certificate of need by the commission,” referring

to the Public Utilities Commission [emphasis supplied]. Minn. Stat. § 216B.243 Subd. 2. The certificate must be obtained through an application and hearing process delineated in the statute.

Significantly, the Act has no provision for “grandfathering’ lines that were planned, but yet to be constructed as of its effective date or any other applicable exemptions or exclusions. Therefore, construction cannot legally proceed on this line until Xcel as applied for, and the PUC has issued, a certificate of need. Nevertheless, subsequent to the August 1, 2001 deadline, Xcel has conducted preliminary construction on this line in the cities of South St. Paul and Inver Grove Heights, and now has announced plans to initiate such construction in Sunfish Lake.

The legislature recently reaffirmed its clear and unmistakable intention not to provide for “grandfathering” of planned lines under the Act. The State House of Representatives incorporated grandfathering language into its version of the 2002 Technical Corrections Bill for large energy facilities. The Senate did not adopt comparable language in its version of the bill. In Conference Committee, the Senate conferees objected to the language. As a result, the House language incorporating “grandfathering” was deleted in Conference Committee and does not appear in the bill that was signed into law.

Accordingly, there is no grandfathering provision applicable to this proposed line. Xcel’s failure to apply for, or receive from the PUC the mandated certificate of need means any construction on this new line would be in violation of the law.

It is my view, therefore, that action can and should be taken to prevent any siting or construction of this new transmission line until and unless PUC certification is sought and received, as required by Minn. Stat. § 216B.243.

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