As a follow up to our post here, the Minnesota Court of Appeals issued a decision on August 23 affirming the MPUC’s decisions related to the Nemadji Trail Energy Center natural gas plant (NTEC) that will be constructed in Superior, Wisconsin. Applying a deferential standard of review, the Court analyzed the appeal (on remand
MEPA Review Not Required as Part of Wisconsin Gas Plant Affiliated-Interest Agreements, Says Minnesota Supreme Court
As a follow up to a previous post the Minnesota Supreme Court issued its decision on April 21, 2021, reversing the Minnesota Court of Appeals and remanding the matter for further review. In so doing, the Court concluded that the Minnesota Public Utilities Commission properly concluded that MEPA review was not required.
The Court first…
Minnesota drives forward with EV rules
On December 21, the Minnesota Pollution Control Agency (MPCA) set forth its plans to amend the state’s clean air rules to adopt Low-Emission Vehicles (LEV) and Zero-Emission Vehicles (ZEV) standards, known as the Clean Cars Minnesota rule. As described in MPCA’s Notice of Intent to Adopt Rules with a Hearing, the LEV standard would require automobile manufacturers to deliver for sale in Minnesota only those vehicles that can meet California’s more stringent greenhouse gas and other air pollutant emissions standards. The ZEV standard would further require automobile manufacturers to deliver for sale in Minnesota a certain percentage of vehicles with no tailpipe emissions. Automobile manufacturers could comply with the ZEV standard through the delivery of battery electric vehicles, plug-in hybrid electric vehicles, and hydrogen-fueled vehicles. If approved, the rule would apply to new passenger cars and light trucks beginning in 2024.
The rule’s LEV standard will prohibit motor vehicle manufacturers from exceeding the fleet average non-methane organic gas plus oxides of nitrogen emission values and fleet average greenhouse gas emission values contained in the California Code of Regulations. A vehicle manufacturer will have to submit an annual report to MPCA demonstrating that it did not exceed the fleet average emissions.
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Minnesota Court of Appeals Determines MEPA Review Required for Wisconsin Natural Gas Generating Facility
On December 23, 2019, the Minnesota Court of Appeals reversed and remanded a decision by the Minnesota Public Utilities Commission (the “Commission”) approving affiliated-interest agreements permitting Minnesota Power and its Wisconsin affiliate to move forward with the construction of a large natural gas facility – the Nemadji Trail Energy Center (“NTEC”) – in Superior, Wisconsin (the “Order”). The result of the Order may complicate the already complex issue of state permitting, specifically a state’s ability to regulate activity occurring in another state.
Honor the Earth and certain Clean Energy Organizations sought additional review of the Commission’s order based on concern about the lack of a Commission-ordered environmental assessment worksheet (“EAW”) pursuant to the Minnesota Environmental Policy Act (“MEPA”). During the initial Commission proceeding, Minnesota Power, and indeed the Commission, determined that an EAW was not necessary because (1) MEPA does not apply to the affiliated-interest agreements because NTEC does not meet the definition of “project” under MEPA, and (2) the Commission does not have authority to order an EAW for a project located in Wisconsin. In its Order, the Court of Appeals addresses each point, in turn.
The Order holds that MEPA applies to affiliated-interest agreements. Contrary to the Commission’s interpretation, the Court of Appeals concludes that the NTEC affiliated-interest agreements are “projects” as defined by MEPA. The Court’s definition of “project” is “a definite, site-specific, action that contemplates on-the-ground environmental changes.” The Order notes that the construction and operation of NTEC are definite and site-specific actions that will affect the immediate location as well as the surrounding environment (including Minnesota – 2.5 miles away – and Lake Superior). The Court went on to note that because the construction of NTEC is an environmentally significant event that may not occur without Commission approval of the affiliated-interest agreements, Commission approval of such agreements constitutes indirect governmental action manipulating the environment and triggering MEPA. Therefore, the Court concluded that MEPA “applies to the governmental action of approving the NTEC affiliated-interest agreements.”…
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Interconnection Modernization Underway in Minnesota
In a recent order from the Minnesota Public Utilities Commission (the “Commission”), Minnesota took a big step to update the state’s interconnection process and standard interconnection agreement for distributed energy resources or “DERs.” This ongoing process relates to Minn. Stat. § 216B.1611 which directs the Commission to establish generic standards for utilities’ tariffs that govern…
STAYING LOCAL: FEDERAL COURT AFFIRMS CONSTITUTIONALITY OF MINN. STAT. § 216B.246 AND ADOPTS SUPREME COURT TRACY RULE
On June 21, 2018, the United States District Court, District of Minnesota issued an order and memorandum rejecting a challenge to the constitutionality of Minn. Stat. § 216B.246 and granting defendants’ motions to dismiss. The statute, which was enacted after FERC Order 1000 (and eliminating the federal right of first refusal or “ROFR”), provides incumbent…
MINNESOTA PAVES THE WAY FOR MORE EV TRAFFIC ON THE ROADS
On May 9, 2018 the Minnesota Public Utilities Commission issued an order approving Xcel Energy’s residential electric vehicle (“EV”) pilot program (the “Pilot”), designed as an alternative to Xcel’s existing EV tariff, concluding that the Pilot will “benefit all ratepayers by aiding Xcel in its efforts to integrate EV load as cost-effectively as possible.” A…
MN PUC Establishes New Environmental Costs for Use in All Proceedings
Today, the MN PUC concluded a nearly four-year effort on updating environmental costs established under section 216B.2422 subd. 3 of the Minnesota Statutes. Before getting to the decision, a bit of context.
Under section 216B.2422, the MN PUC is required to, “to the extent practicable, quantify and establish a range of environmental costs…
MPUC Approves Multi-Year Rate Case Settlement, Opens Docket to Develop Performance Metrics
Yesterday, the Minnesota Public Utilities Commission (“MPUC”) approved a settlement between Xcel Energy and various intervening stakeholders, to resolve the revenue requirement issues in Xcel Energy’s pending multi-year rate increase. The MPUC appeared to struggle with accepting the settlement in lieu of the full evidentiary record it is used to on financial issues. Nonetheless, it…
Likely and Potential Impacts of Yesterday’s Energy Independence Executive Order
As a follow up to yesterday’s post, President Trump’s Energy Independence Executive Order (the “Order”) has now been posted on the White House website, a summary of which can be found here. Over the last week, many pundits and industry insiders have speculated on its contents, with many having a fairly clear crystal…