More Information on Suit against Xcel
Q. I remember that the issue of the PUC’s Certificate of Need was been brought up in previous litigations. What happened?
A. The issue of the PUC certificate, but not the EQB requirement, was brought up in the Sunfish Lake Case. Judge Stacey found that the PUC certificate was not required. The following paragraph sets forth the judge’s opinion, the next explains why the judge’s decision was egregiously wrong, and the third shows how the City ignored an opportunity to resist the line.
The judge concluded that Xcel was not required to get a certificate from the PUC. He stated, “Because Xcel had an application for approval of this project before various cities before August 1, 2001, it does not need PUC review at all. See Minn. Stat. Sec. 216B.2421, subd. 6 (Supp. 2001) (section does not apply to any transmission line proposal approved by or pending before a local unit of government, the EQB, or the PUC on August 1, 2002).” The reference is to the following paragraph in the statute: “This section does not apply to any transmission line proposal that has been approved by, or was pending before, a local unit of government, the environmental quality board, or the public utilities commission on August 1, 2001.” (MN Statues Section 216B.2425, Subd 6) [Emphasis added.]
We think the portion of the Stacy decision is defective, and is a prime example of why the City should have appealed it. Note that Stacey was wrong when he referred to Section 216B.2421. [“216B” is the chapter, “2421” is the section of that chapter.] Nothing resembling such language appears in that section, which does not even have the subdivision 6 he cited. Rather, the language appears in an entirely different section, #2425, which provides for a list of potential projects to be maintained by the PUC. The requirements regarding Certificates of Need are addressed in yet another section, #243, which in its own Subdivision 8 lists eight exemptions, none applicable to this line. There are therefore three sections of interest: the one cited by Stacey (#2421), which contains neither the exemption nor discusses the Certificate of Need; the one discussing the Certificate of Need (#243), which contains eight non-relevant exceptions; and the one (#2425) that contains the exemption cited by Stacey. Since the scope of exemption is restricted to the section in which it appears (#2425), it does not apply to the relevant section (#243). The judge made other, lesser errors. The effective date was not August 1, 2002, as cited by the judge, but rather August 1, 2001 and Xcel had applied on that date to only one city, Mendota Heights, and not, as he wrote, to “various cities.”
Q. Has the issue of obtaining the required approvals from the EQB been litigated?
A. No. Although the PUC requirement has been raised in litigation, the entirely separate EQB provision has never been raised. That requirement is covered under a wholly different chapter of the statutes.
Q., Why is it important we act immediately.
A. Xcel has stated it will begin construction in April. Our legal position worsens after construction begins, because Xcel could claim we brought up the issue too late and because any judge would be under psychological pressure to let Xcel continue the work already underway. Therefore, we need to start right away.
Q. What will be the impact on the pending appeals court decision?
A. If we lose the appeals court decision, we will proceed with this case. If we win outright, we would drop this case and would receive a refund of part of the retainer. If we merely gain the right to appeal the Sunfish Lake case, we would have to evaluate whether or not to continue this case, depending upon the outcome. However, the opinion may not come down until April, which would be too late to launch this case.
Q. What will be Xcel’s defense?
A. Xcel has claimed previously the old law applies to this line, rather than the new law with the certificate requirements, because 1) its application pending before Mendota Heights grandfathered the project and 2) the line would only go from Newport to Roger’s Lake in Mendota Heights, a distance of about 8 miles, which is less than the 10 mile minimum required for the PUC portion of the new law to be applicable. We think both defenses are weak. We have discussed above the “grandfathering” issue and noted that the only “grandfathering” provision does not apply to the Certificate of Need nor to the requirements for EQB review. Xcel’s application has referred to having the line go from Newport to Bloomington, a distance of 14.7 miles. There is no evidence it has changed its plans. For example, it refused to remove from its Mendota Heights application a stretch that is on the west side of Roger’s Lake. This stretch would not be needed if the line were to terminate at Rogers Lake. This suggests its application continues to refer to the full 14.7 miles length of the line. Even if the line were less than 10 miles in length, Xcel is still required to obtain the EQB permit, as that chapter of the law is applicable to all lines greater than 100 kV, and contains no limitation on their length..
Q. We have lost cases before both the PUC and the EQB. Even if we prevail here, what reason is there to believe we would win before these agencies?
A. Neither of these old cases is relevant to our current litigation. In 1999, we asked the PUC to remove the present line on the grounds it was dangerous. The PUC treated the matter seriously. While it did not order the line removed, it agreed to set up an interdepartmental task force to examine the issue in detail. (While the task force was formed, it was never active.) This time, the PUC would be examining an entirely different issue: whether the line is needed. So far, over all this time, Xcel has yet to show a need for the line. The best it could do was to get its consultant (the one with the contract to design the line) to say the line might someday be needed. Demand for electricity is falling, not rising. (This is because the vast majority of Xcel’s electricity production is consumed by commerce and industry, not residences, and this demand is falling with the recession.) Therefore, we think Xcel would find it very difficult to justify the need for the line.
In 1999, we also asked the EQB to order an Environmental Impact Statement for this line. By a split decision, it declined. However, under the new law, it is now required to take into account a number of factors favorable to our case when deciding to issue a site certificate. It must recognize the problems with magnetic fields, avoid urban areas, and use highways if possible. (The law is abstracted on the following pages.) We think that the EQB would find it difficult to approve the line in the face of these legislative mandates.
Finally, the science of magnetic fields has changed dramatically since these agencies consider the issue in 1999. Whereas then it was possible to cite studies that failed to find a link between magnetic fields and serious diseases, virtually all studies are now acknowledged by serious senior authorities as identifying such a link.