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
Andrew Moratzka focuses on litigation of various utility- and energy-related issues. Drew represents iron mines, paper companies, refineries, steel manufacturers and other large industrial customers in electric and gas rate cases and various regulatory matters at the state and federal level. He also represents independent power producers. In these roles, Drew regularly appears before state public utilities commissions and administrative law judges. Drew also has experience arguing energy-related and bankruptcy-related issues at the appellate level. Given his background, clients also retain Drew for utility contract negotiations and to consult on various legislative matters. Drew is a past chair of the firm’s Energy Development practice group.
Click here for Andrew Moratzka's full bio.
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 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.”…
Continue Reading Minnesota Court of Appeals Determines MEPA Review Required for Wisconsin Natural Gas Generating Facility
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…
Brief Overview of President Trump’s Energy Independence Executive Order
Section 1 of the Order sets forth various policy objectives, many of which (e.g., clean, reliable, affordable, safe energy) are goals that should garner bi-partisan support. How these policies are interpreted by the various heads of agencies will be one factor guiding America’s energy future. Another policy factor may be critical, contained in section 1(d), that “all agencies should take appropriate actions to promote clean air and clean water for the American people, while also respecting the proper roles of Congress and the States concerning these matters in our constitutional republic.” This interplay between various states’ initiatives (and those states’ renewable portfolio standards) and the direction in the Order may impact the overall direction and tone set in the Order.
Continue Reading Brief Overview of President Trump’s Energy Independence Executive Order
President Trump Holds Press Conference and Signs Energy Independence Executive Order
President Trump and four executives of his administration held a press conference this afternoon in the Environmental Protection Agency’s (“EPA’s”) Map Room. Rick Perry (Secretary of Energy), Ryan Zinke (Secretary of Interior), Scott Pruitt (EPA Administrator), and Vice President Michael Pence provided opening remarks, flanked by coal mining representatives. Secretary Perry started by noting it…