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 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.”
Renewable Energy Trending in State Legislative Sessions
State legislatures across the country have been active this spring debating ambitious new targets and renewable energy market reforms, following the successful passage of multiple renewable energy mandates in certain states. Last year California passed SB 100, which sets the target of 100% carbon-free electricity by 2045. At least other three states—Hawaii, New Mexico, and Washington—have also adopted 100% renewable energy targets and, according to Inside Climate News, several other states debated 100% renewable energy legislation this spring including Minnesota, Illinois, Nevada, Maine, and Massachusetts.
Like other states adopting renewable energy mandates, the Washington legislature specifically concluded “that Washington must address the impacts of climate change by leading the transition to a clean energy economy … by transforming its energy supply.” To support this goal, the Act mandates 100% renewable electricity generation by 2045. To help achieve this, section six of the Washington law mandates that utilities must file a
“four-year clean energy implementation plan” by 2022 and every four years after that. Each action plan must include “specific actions to be taken by investor-owned utility[ies] over the next four years … that demonstrate progress toward meeting the standards … of [the] act.” By requiring the utilities to provide relatively frequent updates, the Washington legislature appears to indicate a desire for strong oversight of the transition to 100% renewable electricity generation.
In other states, such as Minnesota, 100% carbon-free targets were the subject of substantial attention and debate but were not ultimately adopted. The Minnesota legislature ultimately passed a jobs and energy omnibus bill in a special session this year with more limited ambition—including provisions for energy storage pilot programs, which will allow public utilities to pursue and recover costs for such programs. The pilot program petitions, at a minimum, must provide: (1) the storage technology utilized; (2) the energy storage capacity and the duration of the output at the capacity; (3) the proposed location; (4) the cost of purchase and installation; (5) the interplay between the storage facility and existing distributed generation resources; and (6) the overall goals of the project.
Continue Reading Renewable Energy Trending in State Legislative Sessions
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