Keeping and Breaking Promises for Clean Energy
These are the best of times. These are the worst of times. Take your pick.
On January 18, 2012, the Minnesota Public Utilities Commission unanimously voted to approve power purchase agreements for 30 megawatts of locally-owned wind on the south side of Minnesota’s Buffalo Ridge. Almost nine years ago, in approving an ultra high voltage power line through western Minnesota, the Commission had ordered Xcel Energy to purchase 60 megawatts of locally owned wind power.
The idea was simple. If local rural communities have transmission lines and towers cutting through their farms and homes, they should gain some benefit from potential ownership of clean energy. It may have taken a few years and some interesting negotiations, but in the final analysis my client, Minwind Energy, the Department of Commerce, Xcel Energy and the Commission all agreed. Community Wind South was economical, reasonable and met the requirements of the 2003 Order: Promise kept.
Just a couple weeks later, the Republican Senate took the appalling action of rejecting Public Utilities Commission Chair Ellen Anderson. Apparently, it was irrelevant that she is highly-qualified for the job, knows the applicable law and had run proceedings with sensitivity to citizens and ratepayers as well as conscientious review of the record. It was irrelevant that in more than 220 votes on the Commission, Chair Anderson was in the minority only 6 times. It was even irrelevant that the renewable energy, conservation and energy efficiency legislation that Senator Anderson had authored in the Legislature had enjoyed bi-partisan support and had been signed by a Republican Governor.
Partisanship instead of policy. “Gotcha” instead of governance. Special interests instead of public interest. Bottom line, whether you care about clean energy or clean politics: Promise broken.
Hopeful Sign – MPCA Commissioner Says “Facts” Will Determine Policy
As a frequent skeptic about the capture of regulatory agencies by the regulated parties, I was delighted to learn that Minnesota Pollution Control Agency (MPCA) Commissioner Paul Aasen has been telling agency leadership that facts matter.
In an internal letter in November summarizing progress on strategic goals in 2011, Commissioner Aasen said the following:
“When we can dive in and do the technical work, good things happen. . . So the challenge remains the same, collect the facts, draw the conclusions and then use those facts to inform the public debate. We will have to continue our fact finding and try to add to our ability to inform policy and decisions.”
Commissioner Aasen also cited with approval news coverage of climate change, celebrating the “fact come-back after the past years of often fact-free debate” and that, with the reporting on climate change, “The ‘facts’ won another victory last week.”
Commissioner Aasen closed his letter to MPCA colleagues saying, “Thanks for your hard work gathering the facts. It shows in our strategic review and it will always win out in the end.”
From my perspective as a public interest environmental lawyer, it has often seemed that political pressure and avoidance of conflict with powerful industries has informed Minnesota’s regulatory policy and decisions more than facts. Technical staff have been bypassed or their findings buried in order to meet the demands of regulated parties, which the Agency has mistakenly served as their “customers.” The result has been extensive paperwork justifying continued pollution and avoidance of key issues that degrade natural resources and impair public health.
I am hopeful that Commissioner Aasen’s elevation of the importance of facts signals a change in “business as usual.” If MPCA leaders encourage staff to develop facts about pollution and rigorously apply legal standards, there is a fighting chance that both the facts and the public interest are likely to “win out” in the end.
Midtown Greenway Protected – Historic Ruling to Bury Power Lines
Last week, the Minnesota Public Utilities Commission (MPUC) made a landmark decision to require Xcel Energy to bury new power lines.
In 2009, Xcel Energy proposed to put two “Hiawatha Project” 115 kV high voltage transmission lines on 75- foot poles over the Midtown Greenway in the most densely populated area of the state, the Phillips Neighborhood of South Minneapolis. Sure, the Phillips Neighborhood is more densely populated than downtown Minneapolis and no overhead high voltage lines have been placed in areas of similar density since the 1950′s. Yes, the Midtown Greenway is a treasured biking resource in which local governments have invested $20 million and a redevelopment engine for tens of millions of dollars of private housing and business development. Oh, and did we forget that the Greenway trench, itself, is a nationally listed historic place, which makes it a natural resource that power lines should avoid?
Don’t blame Xcel. This was a case of first impression. The Minnesota Public Utilities Commission had never previously ruled that a power line had to be built underground under state statutes and rules written to protect the environment, public health, and human settlement. The path of least resistance is always to spend less and put high voltage lines overhead.
I represented the Midtown Greenway Coalition, an organization determined to protect both the Greenway and the surrounding neighborhoods. The Coalition intervened and we coached and supported intervention in the MPUC process by five other neighborhood groups. The City of Minneapolis and Hennepin County also intervened to support placing the power lines underground. The Coalition and neighborhood groups participated actively in environmental review and in several weeks of contested case evidentiary hearings. We filed testimony and exhibits and provided information to many citizens in the community who came to public hearings and made comments.
At the end of the Hiawatha Project contested case, Administrative Law Judge Beverly Jones Heydinger made 545 findings of fact, supporting underground Route D on 28th street, concluding:
“Route D will minimize the effects on natural resources, including historic resources, and on persons living and working within the Project Area, and will better serve the public health, safety, and welfare. Route D will not hinder future transit development and will follow an existing transportation right-of-way. Although the cost of Route D is greater than the other alternatives, the factors favoring an underground transmission line in an urban area as densely populated as the Project Area justify the added expense to offset the human and environmental impact of the overhead alternatives.”
The final environmental impact statement (EIS) and Department of Commerce staff concurred with the ALJ recommendatiion:
“Route Alternative D has the least impact on human habitation, aesthetics, cultural values and resources, public infrastructure, transportation, land-based economies, and maximizes the use of existing public right-of-way.”
On January 12, 2012, the Minnesota Public Utilities Commission made the historic decision to require that high voltage power lines be placed underground. This is a victory not only for the Midtown Greenway Coalition and Minneapolis neighborhoods, but for the application of statutes and rules to ensure that energy infrastructure does not impose excessive burdens on communities and valued resources.
State Farm Service Agency Rules in Favor of Organic Farmer
This week, the Minnesota State Farm Service Agency (FSA) ruled in favor of my client, Vance Norgaard, an organic soybean farmer whom a county had proposed to penalize for having “uncontrolled” weeds on his organic farm in 2010. County officials had suggested that penalties were appropriate under the Direct and Counter-cyclical Program (DCP) because Mr. Norgaard had not sprayed his organic crops to eliminate weeds.
The State FSA cited the evidence that there was no impact on neighbors from weeds and that Mr. Norgaard had never received complaints from county weed inspectors after nearly four decades as a certified organic farmer. They also understood that the practices of an organic farm were appropriate and sufficient to control weeds and that, since spraying pesticides is prohibited, the only option to totally eliminate weeds on an organic farm would be to destroy a value-added crop. Here are some key quotes from the FSA decision:
“The weeds were controlled according to the standards in place by Organic Industry. Documents were provided that the organic certifier and two organic farming experts reviewed the record and determined that the weeds were controlled.”
“The yield for your farm was above average for soybeans compared to other organic farms in the state and documentation was provided that showed this. If the weeds were an issue; this yield should have been below the organic industry average for soybeans.”
This recent State FSA decision is a big deal both for Mr. Norgaard and for other organic farmers who wish to qualify for and retain DCP crop support payments. The best part was listening to the State FSA Committee — older farmers with nice suits and rough hands — talk with knowledge and caring about growing good crops using organic practices.
WaterLegacy Ranked #1 Promising Start-Up Protecting Minnesota’s Environment
WaterLegacy, my client and a source of passion and inspiration, has just been chosen Number One in the category of promising Minnesota environmental non-profit start-ups for our work protecting water quality from the risks of sulfide mining.
Philanthropedia, a national group working in partnership with local foundations to help donors give more strategically, reviews and evaluates non-profits. They chose WaterLegacy #1 based on expert recommendations of promising start-up nonprofits working to protect Minnesota’s environment. Here’s the link to the Philanthropedia web page recognizing WaterLegacy: Philanthropedia WaterLegacy Page.
Who, might you ask is WaterLegacy?
WaterLegacy is a grassroots non-profit formed in 2009 to protect Minnesota’s water resources and the communities — human and ecological — that rely on them from the threats posed by sulfide mining. From a couple folks across a kitchen table, WaterLegacy has grown to over 2,000 members, including many who are skilled and active volunteers. Please check out the WaterLegacy web site to learn more about our work. During the past few months, our efforts have been dedicated to preserving and enforcing water quality standards that prevent the destruction of natural wild rice and the contamination of fish with toxic mercury.
A friend once told me, when it is hard to believe that the things we hold dear (fresh water, healthy people, a sustainable natural environment) will be protected in years to come, each of us must just “do hope”. The belief will follow.
Thanks to the Philanthropedia folks for affirming that WaterLegacy is having an impact in preserving Minnesota’s environment.
One Step Forward – Sulfate Standard Applied to Keetac Mine Expansion
Okay, it took 18 years. From 1973, when Minnesota’s sulfate standard of 10 milligrams per liter was adopted in Rules to protect natural stands of wild rice all the way until October 2011, no water pollution permit for a mine had ever required the mine to comply with this sulfate standard.
Last month, for the first time in Minnesota history, as a result of combined efforts of WaterLegacy, other conservation groups, hundreds of citizen comments and the U.S. EPA, the Minnesota Pollution Control Agency (MPCA) required U.S. Steel to comply with the wild rice sulfate standard as part of its permit to expand the Keetac mine. See the Star Tribune report on Keetac water pollution permit.
- Sulfate pollution WILL BE regulated under the wild rice sulfate standard of 10 mg/L, and U.S. Steel’s Keetac mine is no exception.
- U.S. Steel will be required to return every year to the MPCA Board and publicly report its progress on reducing sulfate pollution to justify the continuation of the permit.
Yes, U.S. Steel still has too long a time for compliance. And yes, there should be tougher limits set for other pollutants in the Keetac wastewater. But, the U.S. EPA helped make the permit enforceable and the MPCA Citizens’ Board required U.S. Steel to come back once a year for an annual check-up on whether they are working to control their pollution, rather than stonewalling. One step forward for the simple proposition that the laws on the books actually apply to mining corporations.
Why, you might ask, has it taken so long to achieve this basic level of enforcement?
Mining corporations are powerful. People who gather rice are not. Fish and waterfowl don’t vote or provide contributions to those who share their views. Water does not protect itself.
So, that is our job.
MPCA Needs to Enforce Mercury and Water Quality Standards
Mining company representatives and state officials insist that sulfide mining can be done safely in Minnesota due to the toughness of Minnesota standards for sulfates (acid mine drainage), toxic mercury and other pollutants.
But, what if the Minnesota Pollution Control Agency (“MPCA”) fails to enforce mercury and water quality standards for mining projects? What protection will Minnesota anglers, hunters, residents and natural resources have against sulfide mining?
In the last few weeks before the state government shut-down, the MPCA proposed two Draft permits that would expand mining without controlling mercury or following Clean Water Act standards:
- One draft permit would allow U.S. Steel’s Keetac taconite mine to expand and increase toxic mercury emissions by 75.5 pounds per year.
- Along with this Keetac permit, the State entered into an agreement with U.S. Steel behind closed doors to remove a requirement that U.S. Steel treat wastewater from its mines to comply with water quality standards.
- Another draft permit for the Aitkin Agri-Peat facility would allow re-opening of a peat mine without any requirement that the mine comply with mercury water quality standards.
- The Aitkin Peat Mine previously had mercury standards and violated them. Getting rid of the mercury permit limit is “backsliding” which is supposed to be prohibited under the Clean Water Act.
To add insult to injury, the MPCA public notices and press releases to the public didn’t use the word “mercury,” let alone mention backsliding in permits. How can citizens comment if they don’t even know what the State is proposing?
On behalf of WaterLegacy, I’ve prepared comments protesting the increase in pollution and the practice of undercutting state standards where mining companies are involved.
• Comments opposing the Minntac Air Emissions permit and over 75 pounds of new mercury air pollution per year are attached here. Comment Keetac Air Permit(6-27-11)
• Comments opposing the backsliding to remove a mercury limit from the Aitkin Agri-Peat permit are attached here.Comment Aitkin Agri-Peat (7-6-11)
If we aren’t outraged, we must not be paying attention. As Molly Ivins once put it, “what you need is sustained outrage. . . there’s far too much unthinking respect given to authority.”
Weakening Environmental Review – A Bad Idea Gone Worse
Yesterday, Governor Mark Dayton signed a one-sided piece of legislation to weaken environmental oversight developed by industry lobbyists without even a pretense of debate on its key provisions.
Major policy changes in this bill, such as allowing project proponents to prepare their own analysis of whether their projects will pollute the environment, were inserted in the bill on the floor of the legislature. What this means is that the only people who could talk were legislators — no members of the public allowed. No father could talk about his children becoming ill as a result of fumes from the hog lagoon next door. No lawyer could explain how the environmental impact statement prepared by a State agency supported a good decision to minimize harm from a project (I’ve got a list of these I could share).
Other changes in the environmental assessment roll back bill (HF1/SF42) now signed into law include: changing the law so that a State agency (the IRRRB) can spend public money on a project before an investigation is done to see if it would cause irreparable harm to the environment, allowing projects to begin construction before they receive permits and reducing citizen access to the courts to challenge a poor quality job conducting environmental review.
Let’s start calling policies by their proper names. The GOP’s recent gift to polluters is not a “permit-streamlining” bill, but a weakening of public and citizen oversight to protect Minnesota’s clean air, clean water and other natural resources from the short-sighted demands of corporate self-interest. This new law further increases the leverage of the powerful and reduces the likelihood of negotiation and influence to reach outcomes that are beneficial for both private investors and the community as a whole.
Weakening environmental oversight is not a “good idea gone bad,” but a “bad idea gone worse.”
Rather than genuflect to the inevitability of power, we need leaders in government and the non-profit sector to have the courage to look out for the long-term public interest and stand their ground.
PolyMet Mine – Spotlight Shed on Risks
For the past six weeks, WaterLegacy has been investigating the financial capacity of the PolyMet corporation, the company proposing Minnesota’s first sulfide mine, and track record of its significant financial backer, Glencore International AG (Glencore).
We learned that PolyMet openly admits it has neither assets nor insurance to cover potential liabilities for environmental pollution associated with open pit sulfide mining. Glencore, the privately held Swiss company backing the PolyMet project, has $5.3 billion in profits and a turnover of $116.5 billion.
However, Glencore has been rated by European NGOs as the “Worst Corporation of the Year.” Globally. Quite a distinction. Its global track record includes pollution at mine operations for copper in Africa and coal in South America, union busting, job shedding when prices fluctuate and stripping a French subsidiary of funds, leaving a $400 unfunded pollution clean-up liability at a copper processing facility. See WaterLegacy’s PolyMet & Glencore Report for more detailed information. WaterLegacyPolyMetGlencoreReport(3-11)
In light of WaterLegacy’s Report, the Star Tribune asked Minnesota State agencies how they intended to make sure that there was adequate financial assurance for the proposed PolyMet sulfide mine. Interestingly, although the U. S. EPA compliance division told PolyMet and the agencies last February that detailed financial investigation should be part of PolyMet’s environmental review, state agencies are now suggesting that they might put off financial assurance analysis until the permitting process, long after alternatives for mining and water quality treatment are determined. See Star Tribune, Copper Mine Risks Highlighted (March 1, 2011) .StarTribune, “Copper Mine’s Risks Spotlighted.”
Even if the thought of destroying a thousand acres of wetlands for an open pit mine doesn’t bother you and you are not dismayed by the vision of 375,000,000 tons of waste rock (see MDNR Slides of Tailings and Waste Rock) making sure that the company profiting from the mine pays to prevent violation of water quality standards seems pretty fundamental. If PolyMet and its backers don’t provide financial assurance to clean up their pollution, you can be sure that all of us will end up picking up the tab.
Same Old Revolving Door for Industry Lobbying
Surprise. Brad Moore, the former commissioner of the Minnesota Pollution Control Agency (MPCA) has been officially hired as a lobbyist for the PolyMet Mining Company. Between his stint at the MPCA and his current sinecure, Moore worked in a governmental affairs job for Barr Engineering, the consulting firm pushing for approval of the PolyMet copper sulfide mine. [Note: Barr Engineering prepared the environmental impact statement for the PolyMet project given a failing grade by the U.S. Environmental Protection Agency earlier this year. EPAGivesPolyMetEISFailingGrade(Commentary)] In each of his three recent jobs Moore has served to promote the interests of the PolyMet Mining Company.
The most obvious concern is that this “revolving door” may encourage government officials to support the interests of their future employers, rather than the interests of the public and future generations. More profoundly, the question must be raised whether Moore’s various pro-industry jobs are merely lateral moves within a unitary enterprise.
Benito Mussolini, the Italian fascist leader of the mid-20th century explained, “Fascism should more appropriately be called Corporatism because it is a merger of state and corporate power.”
Democracy is the brave thought that government represents people who may not have access to power (or the offer of remunerative jobs). Environmentalism is the even braver thought that regulators are hired not to issue permits sanctioning the destruction of natural resources, but to counterbalance corporate power and protect clean water, clean air and the legacy of generations.
Hope is the blade of grass between cinder blocks. We must hope that this Administration will be different.