State of Minnesota                                                                    Minnesota Environmental

County of St. Louis                                                                   Quality Board

 

MEQB Docket No. MP HVTL-EA-1-99 r

OAH Docket No. 9-2901-12620-2

 

 

In the Matter of Minnesota Power                                             Minnesota Power’s

Application for Exemption for High                                           Post-Hearing Brief

Voltage Transmission Lines and                                               

Associated Substation

 

 

I.                   INTRODUCTION

This case is not properly about whether the Arrowhead line should be built at all, or whether the law should be changed, or whether society could or should find different ways to meet its energy needs. Those questions are all more properly addressed by the legislature (e.g., Tr. 1698, 1703) and go well beyond the lawful scope of this proceeding. (MEQB-7, p. 8 (See Attachment 5).)  This contested case is limited to determining whether the project, as proposed, results in significant negative impacts sufficient to justify consideration of alternate routes in a full-blown routing proceeding.  As with the precedent-setting and substantially-comparable Hilltop case (Attachments 1, 2 and 3), this record ably answers the “threshold question,” (see Attachment 1, p. 5, 23) that this upgrade of a preexisting line, in preexisting corridors, using preexisting rights-of-way poses no “significant” threat to this State.  The Application should be granted pursuant to Minn. Stat. § 116C.57, subd. 5.

This result is hardly surprising given the Minnesota Supreme Court’s “nonproliferation” doctrine. “[T]he MEQC must, as a matter of law, choose a pre-existing route unless there are extremely strong reasons not to do so.” People for Environmental Enlightenment and Responsibility (PEER), Inc. v. Minnesota Environmental Quality Council, 266 N.W.2d 858, 868 (Minn. 1978)(hereinafter “PEER”). This doctrine “minimizes the impact of the new intrusion by limiting its effects to those who are already accustomed to living with an existing route.” Id.

The nonproliferation doctrine is fully applicable to this record and requires that the Application be granted. As recognized in Hilltop (Attachment 1, p. 25), an upgrade of preexisting facilities “will not create significant human and environmental impact primarily because the Applicant’s proposed upgrade would be constructed in almost entirely existing right-of-way which is consistent with the state policy of nonproliferation and use of existing rights of way as determined in the Minnesota Supreme Court in the PEER decision.”  (Id.) Finally, any specific minor impacts from the upgraded facilities can be addressed through the “applicable state rule[s] and any applicable zoning, building and land use rules” (Minn. Stat. § 116C.57, subd. 5), with which Minnesota Power must still comply prior to construction.

II.                BACKGROUND[1]

A.                 The Application.

Minnesota Power submitted its “Application for Exemption, 345-115-kV Transmission Line Rebuild from Arrowhead Substation to the St. Louis River” (hereinafter “Application”) in September, 1999. (MEQB-1.)  The Application seeks authority to upgrade approximately 12 miles of preexisting transmission line within the preexisting corridor, along with associated upgrades to the Arrowhead Substation. (MEQB‑1, p. 1-2.) The Application generally seeks to upgrade existing 115 kV lines to 345/115 kV double-circuit with one segment constructed to 345/230 kV to be operated at 345/115 kV.  Since the upgrade is almost entirely confined to preexisting corridors and rights-of-way, Minnesota Power applied for an “exemption” to the full-blown routing process as authorized by Minn. Stat. § 116C.57, subd. 5 and Minn. R. 4400.3900.[2]

1.                  The Line.

The transmission line upgrade portion of the project consists of three segments. In each segment, the upgrade will replace existing H-fame structures with single-pole Cor-Ten steel structures using a double-circuit design.[3] The new poles will be taller than the current H-Frame structures so as to minimize the need for additional right-of-way. (E.g., Tr. 848.) With one specific exception, the 12-mile route will follow precisely the same right-of-way as the preexisting 115 kV lines.  (MEQB-4, Maps 1‑5, depict the before and after configuration of the subject lines.)  The Application and Mr. Lindholm’s testimony describe in some detail the parameters of the project. (MP-4, p. 6-7.)

In summary, Segment 1 proposes to dismantle 3.2 miles of the Arrowhead-Cloquet 115 kV line (Line No. 22) located on the west side of the existing 200-foot right-of-way.  There are currently three lines in this 200-foot corridor. This segment will be designed for 345/230 kV capacity[4] and will require 20 feet of additional right-of-way on the west side of the corridor to accommodate the added line.  This nominal right-of-way addition totals only 6.84 acres.  (Tr. 1717.)  No homes will be displaced by the wider right-of-way.

Segment 2 is a 6-mile stretch located in a rural area of Midway Township in which Minnesota Power proposes to dismantle the present Arrowhead-Gary 115 kV line (Line No. 131) and replace it entirely in the existing 100-foot-wide right-of-way with the 345/115 kV configuration.  No homes will be displaced and the reduced footprint of the single pole structures will reduce the impact of the line on agricultural uses.  (Tr. 1194.)

Segment 3 is a 2.8-mile stretch in the Gary-New Duluth area in which the existing Arrowhead-Gary 115 kV line (Line No. 131) will be replaced with single-pole 345/115 kV double-circuit structures on the same 100-foot-wide right-of-way with one exception.  Approximately 0.8 mile of Segment 3 will be moved from 95th and 96th Avenues West near homes to a neighboring railroad corridor. Minnesota Power’s reason to go from one corridor to the other here was that area residents requested it and the move allowed blending the line into the preexisting railroad use.  (Tr. 851.)

2.                  The Substation.

The Arrowhead Substation will be upgraded to accommodate the increased voltage levels from the lines. (MEQB-1, p.1; MP-4, p. 6.)  The map shown on MP-25 depicts the substation configuration and the surrounding areas.  Minnesota Power already owns the land for the expanded substation and the substation still sits a considerable distance from homes and businesses.  (MP-23, p. 3; MP-25; Tr. 1619.) The substation upgrade has also been designed so as to remain in compliance with all applicable Minnesota noise standards.  (MEQB-1, p. 13.) In addition, the substation upgrades will include a “phase shifting transformer” at a cost of about $10 million. (Tr. 2179.) This piece of hardware will assist in improving electric system reliability.

B.                 Procedural History.

The Application was filed pursuant to Minn. R. 4400.3900. (MEQB-2.) Affected property owners objected as required by the statute (MEQB-3) and the required notices were issued.  (MEQB-5 and 6.) The Application was accepted as conforming with all procedural requirements and the MEQB held its initial hearing on the matter.

1.                  The Order for Hearing.

At the initial hearing, the North American Water Office (“NAWO”) argued that the Application should be summarily dismissed. NAWO claimed that any project that is “controversial” must necessarily fall outside of the exemption process.  The MEQB rejected this request, declining to graft a “controversy clause” onto the rules.  In its Order for Hearing (MEQB-4; see Attachment 4), the MEQB specifically found “no factual basis has been established on which to consider summarily denying the Exemption Application. Therefore, pursuant to Minn. R.  4400.3900, subp. 3, a public hearing is required.” (MEQB-4, Finding of Fact No. 5, see Attachment 4.) 

2.                  Interventions and Scope Issues.

The MEQB referred this matter to the OAH to conduct an evidentiary hearing. About 20 parties intervened in the ensuing contested case.[5]  Minnesota Power objected to many of these interventions on the grounds that they raised issues arising solely in Canada and Wisconsin, well beyond the proper scope of this proceeding. ALJ Reha partially agreed and struck the Cross Lake First Nation’s intervention as well as those of many of the Wisconsin property owner groups. The Intervenors allowed to remain in the case included: (1) Dairyland (a likely user of the line), (2) Mn-DOC and WPSC (relevant regulatory agencies), (3) NAWO and Clean Water Action Alliance (who ultimately consolidated its intervention with NAWO), (4) Lake Superior Greens (who later withdrew), (5) WOLF, and (6) SOUL.

NAWO challenged ALJ Reha’s Order. Ultimately, the MEQB issued the Scope Order (MEQB-7; see Attachment 5) ruling:

IT IS HEREBY ORDERED, in response to the request certified to the MEQB by the Administrative Law Judge pursuant to Minnesota Rules part 1405.2200, that the hearing shall be limited to impacts from construction or operation of the project facility on human health and the environment experienced in Minnesota;

IT IS FURTHER ORDERED THAT evidence of impacts in Minnesota shall be excluded absent a showing that the impact in Minnesota is directly related to the proposed facility.

(Emphasis added.)   In short, the MEQB agreed that the hearing should only consider (1) negative impacts in Minnesota that are (2) actually caused by the expanded facility.  Alleged impacts in Wisconsin and Canada as well as those not “directly related” to the line were not to be considered.

After the MEQB’s Scope Order, ALJ Nickolai was assigned to conduct the hearing.  New deadlines were imposed for interventions, discovery and the hearing. No new parties intervened and none of the parties who had previously been rejected rejoined the case. Discovery was completed and the hearing was conducted from August 28 through September 9, 2000.  The evidentiary record closed on September 13, 2000, pursuant to Minn. R.  1405.1400.

3.                  The Hearing.

The hearing was conducted in two parts. First, almost seven hours of testimony was received from interested members of the public as well as numerous written comments from the public. (MEQB-8.) These comments presented a wide variety of opinions, both pro and con. Minnesota Power customers (Consolidated Paper and Lakehead Pipeline) testified to the importance of reliable power: “These disruptions can cause a lot of damage as well as take a lot of time to clean up and get the machines back running.” (Pub. Tr. 232.)  Real concern was expressed “if we can’t be assured of a reliable source of electric power.” (Pub. Tr. 201.)  Representatives of the Mid-Continent Area Power Pool (“MAPP”) (Pub. Tr. 189-91) and the American Transmission Company (Pub. Tr. 194-197) agreed that this line addresses a critical shortcoming to the regional system.  Building this line would help “assure reliability in the region.” (Pub. Tr. 189; accord 197.) These entities oversee the interconnected transmission system (MEQB-1, p. 3-5) and they confirmed that this project serves to fix a very serious regional problem.

Despite the Scope Order, many Wisconsin property owners spoke to their concerns about the impacts on Wisconsin property values and other impacts in Wisconsin of the Wisconsin portion of the line.  The Cross Lake First Nation and some of its supporters opposed the line because of concerns arising solely in Manitoba.[6]  (E.g., Pub. Tr. 12-17.)  A few Duluth-area residents testified on all sides of the issue, including Midway Township’s Zoning Commissioner, who testified that Minnesota “Power’s been good about working with us” on neighborhood concerns. (Pub. Tr. 73.)

Ten days of technical hearings were also conducted in which witnesses provided testimony and exhibits concerning the Application. All witnesses were subject to cross-examination.  Minnesota Power presented the direct testimony of 12 direct witnesses:  Dr. John Moulder (MP‑1), Dr. Hooshang Khosrovani (MP-2), John Blaney (MP-3), Bob Lindholm (MP‑4), Gary Battuello (MP-10), David Van House (MP-17), Ron Gullicks (MP-19), Russ Mattson (MP-20), Brian Asmus (MP-21), John Pechin  (MP-22), Cary Webber (MP-23), Dan Carlson (MP-24).  Minnesota Power’s four rebuttal witnesses were: Patricia Hoben, PhD. (MP‑11), Dan Carlson (MP-28), Dave Van House (MP-29), and Lauren Quam (MP‑30).  NAWO sponsored the testimony of two witnesses:  Dr. Gary Glass (NAWO-21), and George Crocker (NAWO-31). SOUL sponsored two witnesses: Duane Dahlberg (SOUL-2), David Blecker (SOUL-2).[7]

III.             ANALYSIS

The Application seeks approval to upgrade Minnesota Power’s preexisting line along preexisting corridors. As recognized in Hilltop (Attachment 1, p. 23; Attachment 2, p. 5-7; Attachment 3), Minn. Stat. § 116C.57, subd. 5 authorizes projects of this type to be “exempt” from the full-blown routing process under Minn. Stat. § 116C.61.  It should be emphasized that this “exemption” does not, however, eliminate review. To the contrary, Minn. R. 4400.3900 requires precisely the type of probing review that was undertaken in Hilltop and this case designed to answer the “threshold question” whether the more extensive routing process should be required.  (See Attachment 1, p. 23.)  Moreover, even after an exemption is granted, additional regulatory review will occur but will merely be shifted to applicable federal, state and local authorities (e.g., Army Corps, MDNR, MPCA, local zoning). Minnesota Power must comply with “any applicable state rule and any applicable zoning, building and land use rules, regulations and ordinances of any regional, county, local and special purpose government in which the route is proposed.” Minn. Stat.  § 116C.57, subd. 5.  Finally, the statute requires that Minnesota Power abide by any lawful conditions imposed by the MEQB.

A.                 Statutory Framework.

1.                  The PPSA Rules and Cases Allow this Exception Application.

The Power Plant Siting Act ("PPSA") establishes the appropriate environmental review mechanism for transmission lines.  It specifically allows two methods of review depending on the type of project. Minn. Stat. § 116C.57, subd. 5 and Minn. R.  4400.3900 require a slightly less centralized review process for projects like this one which do not create “significant human or environmental impacts.” This level of review is roughly analogous to an environmental assessment worksheet (“EAW”) as has been recognized by the MEQB over the years.  (See Attachment 2, p. 5.) Minn. Stat. § 116C.61 and Minn. R.  4400.1210, on the other hand, impose full routing review, including consideration of alternative routes. This Environmental Impact Statement (“EIS”)-style review is most appropriate for new lines and large projects that involve substantial new corridors and other significant issues.  (See Attachment 1, p. 23; Attachment 2, p. 5‑6.) 

In implementing the statutory exemption process, the MEQB promulgated Minn. R.  4400.3900, which establishes the criteria for answering the threshold question whether “significant” negative impacts are present. This rule requires evaluation of the same considerations listed in Minn. R. 4400.1310 as apply in the full routing process:

A.        effects on human settlement, including but not limited to, displacement, noise, aesthetics, cultural values, recreation, and public services;

B.         effects on public health and safety;

C.        effects on land-based economies, including but not limited to, agriculture, forestry, tourism, and mining;

D.        archaeological and historic resources;

E.         effects on the natural environment;

F.         rare and unique natural resources;

G.                 application of design options which maximize energy efficiencies, mitigate adverse environmental effects, and could accommodate expansion of transmission capacity;

H.        use or paralleling of existing rights-of-way, survey lines, natural division lines, and agricultural field boundaries;

I.          electrical system reliability;

J.          costs of constructing, operating, and maintaining the HVTL which are dependent on design and route; and

K.        adverse human and natural environmental effects which cannot be avoided. 

Minn. R. 4400.3900 also requires that the Application describe the project, provide specified notices and list “governmental permits that may be required.”  Id., subp. 1a(g). Minnesota Power's Application fully complied with these requirements. (See MEQB-2.)  In particular, Minnesota Power identified ten additional federal, state and local approvals that may have to be obtained if the MEQB grants the requested exemption.  Those approvals include an Army Corp. of Engineers permit relating to any wetlands, MDNR approval for the river crossing, MDOT permits, and local conditional use  permits.  (MEQB-1, p. 19.)  These other permits will address many of the same issues that the MEQB would consider if an EIS-style routing application under Minn. Stat. § 116C.61 was required.  These regulatory processes necessarily take place after (not before) this proceeding.  Minn. Stat. § 116C.57, subd. 5.  (E.g., Tr. 298, 305.)

The Hilltop case is instructive in that the EAW-style review process was applied to a proposal that was quite similar and in some ways more extensive than this case.[8] Hilltop involved 15 miles of existing line and a new substation; this case involves only 12 miles and upgrades to an existing substation with virtually no new property needed. Both Hilltop and this case follow the Supreme Court’s nonproliferation doctrine by using preexisting corridors. And like this project, Hilltop included increasing voltage levels of the existing lines. Both this case and Hilltop included a segment upgraded to 230 kV, even though the line could only operate at 115 kV without additional future upgrades not presently contemplated and for which separate permitting would be required.  Finally, as in Hilltop, this Application affirmatively answers the “threshold question” that there is no “need for the more extensive routing process that would include consideration of alternative routes.”  (Attachment 1, p. 23.)

2.                  The Meaning of “Significant” Impacts.

The requirement that the claimed negative impact be “significant” places an important limitation on the types of harm that are important enough to undertake review of alternative routes under Section 116C.61. Under the cases “significant” means material societal harm. It does not include mere incidental or individual impacts, or impacts which can be mitigated.  Nor does it include impacts for which compensation can be provided.

The Hilltop order and the PEER decision along with analogous case law have defined the concept of “significant” in this fashion and applied it to the statutory exemption process.  First, it is beyond legitimate dispute that the statutory term “significant” must be considered in light of the PEER Court’s instruction that the MEQB must “as a matter of law” choose a preexisting route unless there are “extremely strong” reasons not to do so.  PEER, 266 N.W.2d at 868. (Attachment 1, pp. 5, 23-25.)  Under PEER, the impact must be sufficiently significant to create such an “extremely strong” reason to consider alternate routes.

Indeed, the preference for preexisting routes is so strong that the Supreme Court required homeowners to “demonstrate unique irreplaceable characteristics of their homes not reflected in market value which would make their taking non-compensable” in order to show significant harm. Id. at 870 (emphasis added). Only those types of non-compensable harms should be considered in weighing the significance of impacts. See Floodwood-Fine Lakes Citizens Group v. Minnesota Environmental Quality Council, 287 N.W.2d 390, 399 (Minn. 1979); State by Skeie v. Minnkota Power Coop., Inc., 281 N.W.2d. 372, 373-374 (Minn. 1979); No Power Line, Inc. v. Minnesota Environmental Quality Council, 262 N.W.2d 312, 331 (Minn. 1977).

Third, the Hilltop Order follows and applies the PEER limitation. After analyzing the term “significant” for three pages, the Hilltop Order concluded that the upgrade project “will not create significant human or environmental impact primarily because the Applicants’ proposed upgrade would be constructed in an almost entirely existing right-of-way which is consistent with the state policy of nonproliferation … in the PEER decision.” (Attachment 1, p. 25; emphasis added.)

Hilltop also cited Hanly v. Kleindienst, 471 F.2d 823 (2nd Cir. 1972) which defines the term “significant” in a similar fashion. The Hanly court concluded: “Where conduct conforms to existing uses, its adverse consequences will usually be less significant than when it represents a radical change.” Id. at 831 (emphasis added); see also Joseph v. Adams, 467 F.Supp. 141, 152 (E.D.Mich.1978). Both PEER and Hanly “focused on conformity to existing uses as a critical test for meeting environmentally protective policies.” (Attachment 1, p. 23.) And “[w]hether a proposed exemption project has a ‘significant human and environmental impact’ is dependent, in part, upon its compliance with the fundamental policy of nonproliferation.” (Id., citing PEER, 266 N.W.2d at 868.) 

Fourth and finally, the “significant” standard must be substantially more than trivial or individual concerns. Almost every human activity has some kind of adverse impact on a natural resource. But the courts will not construe the term significance “as prohibiting virtually all human enterprise."  State by Schaller v. County of Blue Earth, 563 N.W.2d 260, 265 (Minn. 1997)(quoting Wacouta Township v. Brunkow Hardwood Corp., 510 N.W.2d 27, 30 (Minn.Ct.App. 1993)); see also River Road Alliance, Inc. v. Corps of Engineers of U.S. Army, 764 F.2d 445, 450-51 (7th Cir.1985)("there is a growing awareness that routinely requiring [EIS] would use up resources better spent in careful study of actions likely to harm the environment substantially").

            In State by Schaller, the Minnesota Supreme Court agreed that a significant impact under the environmental laws must “materially adversely affect” specified natural resources to be considered significant. 563 N.W.2d at 266. The Minnesota Supreme Court also recognized that under the environmental laws a project’s opponent carries the burden of proving a prima facie case of significant harm. The Court found that mere speculation or insignificant harms are not sufficient.

B.                 The Burden of Proving Significant Human or Environmental Impacts.

The relevant OAH Rules provide that "any route or site proposer must prove the facts at issue by a preponderance of the evidence, unless the substantive law provides a different burden."  Minn. R.  1405.1700, subp. 7 (emphasis added); accord 1400.7300, subp. 5. In this case, the substantive law does indeed provide a different burden. Minnesota law places the burden squarely on the project’s opponents to present and prove a prima facie case of significant human or environmental impacts. PEER, 266 N.W.2d at 867-68; accord State by Schaller, 563 N.W.2d at 264 (Court confirms that the burden to make a prima facie case of environmental harm rests on the opponents of the activity).

And in light of PEER’s nonproliferation doctrine, the prima facie showing is a very heavy burden because Intervenors must demonstrate the type of “extremely strong reasons” required to justify deviating from the existing corridor.  Indeed, the PEER case is unequivocal: “[T]he MEQC must, as a matter of law, choose a pre-existing route unless there are extremely strong reasons not to do so.”[9]  PEER, 266 N.W.2d at 868.

Moreover, even if the Intervenors could establish a prima facie case that overcomes the State’s nonproliferation policy, Minnesota Power may rebut by showing that the claimed human or environmental impact is not significant.  Id. at 867; accord State by Schaller, 563 N.W.2d at 267; see also Atwell v. Power Auth., 45 N.Y.2d 476, 484 (N.Y. App. Div. 1979)(citing Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc. 435 U.S. 519 (1978)).  This rebuttal can be accomplished:  (1) through testimony and evidence showing that the claimed impacts are not significant; or (2) by affirmatively defending that there are no extremely strong reasons to deviate from the route by demonstrating that: (a) economic impacts are not a proper consideration and (b) the reliability features of the project outweigh the claimed impacts.  PEER, 266 N.W.2d at 867; see Minn. Stat. § 116B.04.  A prima facie case can also be rebutted by demonstrating that the claimed impacts can be mitigated under the regulatory process.  Pope County Mothers v. Minnesota Pollution Control Agency, 594 N.W.2d 233, 273 (Minn. Ct. App. 1999)(to the extent adverse human or environmental impacts can be mitigated in the regulatory process, they are not deemed “significant”); Iron Rangers for Responsible Ridge Action v. Iron Range Resources, 531 N.W.2d 874, 880 (Minn. Ct. App. 1995) (“agency may base determination of no significant impact on fact that mitigation measures keep the impacts below significant level.”).

1.                  Minnesota Power Need Not Prove a Negative.

In assessing Intervenor’s prima facie case and the rebuttal evidence it is necessary to underscore that the legislature did not intend to set up a standard under Minn. Stat. § 116C.57, subd. 5 requiring an applicant to prove a negative fact. Requiring a party to prove the negative is to require proof of the impossible, which would, of course, be an unreasonable and absurd burden.  The MEQB must presume that the legislature did not intend results that are absurd or unreasonable.  Country Joe, Inc. v. City of Eagan, 548 N.W.2d 281, 284 (Minn. Ct. App. 1996), aff’d, 560 N.W.2d 681 (Minn. 1997); Dayton Hudson Corp. v. Johnson, 528 N.W.2d 260, 262 (Minn. Ct. App. 1995)(absurd construction must be avoided).  The only construction avoiding an unreasonable and absurd result is to place the burden on Intervenors to come forward with a prima facie showing that negative impacts in fact exist and that they are significant.  In other words, the well-established prima facie burden is the correct burden under the statute.  Cf. State by Schaller, 563 N.W.2d at 264.

Courts in a variety of other contexts are virtually unanimous in rejecting the logical impossibility of proving a negative. For example, in Mitchell v. Volkswagenwerk, AG, 669 F.2d 1199, 1204 (8th Cir. 1982) (applying Minnesota law), the court held that the law is “not intended to create a rule which requires the plaintiff to assume an impossible burden of proving a negative fact.”  Id. at 1204-05. Likewise, in Arizona Cattle Growers’ Ass’n v. U.S. Fish and Wildlife Service, 63 F. Supp.2d 1034 (D. Ariz. 1998), in challenging a permit under rules to protect endangered species, the federal court found the challenge had the burden of establishing that there were endangered species present. 

Furthermore, for the court to refuse to hold Defendants to this level of proof would be tantamount to requiring the Plaintiffs to prove a negative.  It is neither practical nor just to impose on the Plaintiffs the burden of proving the absence of listed species in the project area.

 Id. at 1044. Finally, the law reflects an “inherent reluctance to place the burden of proving a negative fact on a litigant.”  Chemical Leaman Tank Lines, Inc. v. Aetna Casualty and Surety Co., 177 F.3d 210, 231 (3rd Cir. 1999) (internal citations omitted); see Prescott v. United States, 973 F.2d 696, 702 (9th Cir. 1992)(proving negative averments “would border on the preposterous”)(quoting Stewart v. United States, 199 F.2d 517, 520 (7th Cir. 1952).

2.                  The Precautionary Principle Does Not State the Proper Legal Standard.

Intervenors sponsored testimony and argument on the use of the “precautionary principle” as the standard by which this project should be judged.[10] But this is not the proper legal standard for several reasons.

First, the precautionary principle is just another way of requiring proof of negative facts. The doctrine assumes new technologies are unsafe unless the proponent can prove the negative. “But safety is in essence a negative (i.e., no harm), and proving a negative is, as we know, impossible.” See Daniel Bodansky, The Precautionary Principle in U.S. Environmental Law, in Timothy O’Riordan and James Cameron, editors, Interpreting The Precautionary Principle, (London: Earthscan Publications 1994), p. 223; see also Hafemeister, D., The Imprudence of “Prudent Avoidance,”   Physics and Society, Vol. 24, No. 3, 9-11 (July 1995) (“Prudent avoidance is a delight for plaintiff lawyers since it is essentially a conclusion that the danger is probable.”). 

Second, the plain language of the PPSA precludes decision-making using the precautionary principle. The statutory “significant” requirement creates a qualitative standard which requires the opponent to prove a prima facie case of actual negative impact.   Unsubstantiated or speculative impacts simply cannot be “significant.”  Yet the “precautionary principle” would make them paramount.

Third, the precautionary principle is precluded by cases construing analogous statutes. For example, an EIS cannot be compelled to be prepared "on the basis of speculative factors."  Iron Rangers for Responsible Ridge Action, 531 N.W.2d at 881; see also Reserve Mining v. Herbst, 256 N.W.2d 808, 829-830 (Minn. 1977) (MEPA does not provide absolute guarantees for environmental resources). Moreover, MEPA does not "require that a decision of no significant impact must always be based only on the best available scientific methodology."  Iron Rangers For Responsible Ridge Action, 531 N.W.2d at 881 (citing Greenpeace Action v. Franklin, 982 F.2d 1342, 1351-52 (9th Cir.1992)). Thus, Intervenors' prima facie case may not rest on speculation, mere unfounded worries or the unsubstantiated desire to “take precautions.” See also No Power Line, Inc., 262 N.W.2d at 328 (Court agrees that the likelihood that ozone levels would rise above permissible maximums was too remote to be reasonable). 

Finally, the precautionary principle is simply not the law in Minnesota.  In Reserve Mining Co., supra, 256 N.W.2d at 829-830, the Court stated:

[I]t is significant that none of the provisions in our environmental statutes establishes a standard that guarantees "absolute" safety. Minn. St. 116.01 refers to a 'reasonable' degree of purity of water, air and land resources. Minn. St. 116.06, subd. 3, in defining air pollution, refers to contamination which would interfere "unreasonably" with the enjoyment of life or property. Minn. St. 116B.02, subd. 5, in defining pollution, refers to any conduct which "materially" and adversely affects or is likely to affect the environment. Minn. St. 116D.04, subd. 6, forbids state action which "significantly" affects the quality of the environment.

Id. at 830. The Court’s use of the word ’reasonable’ and ‘significantly” in this context makes it abundantly clear that Minnesota law does not allow use of the “precautionary principle.”

C.                 Intervenors Made No Prima Facie Showing of Significant Negative Impacts.

Proper application of the relevant legal standards compels a finding that no significant negative human or environmental impacts in Minnesota will be caused by the construction or operation of the upgraded facilities.  There was considerable testimony at the public and technical hearings about claimed impacts outside of Minnesota, generalized criticisms of central station power, and impacts that had nothing to do with this project.  Nevertheless, there was no credible evidence presented to support any claim that the project itself would directly cause significant negative impacts in Minnesota. And Minnesota Power’s substantial efforts (as set forth in the Application) to mitigate any minor negative impacts went largely unchallenged.  Minnesota Power’s mitigation efforts coupled with the system reliability improvements flowing from this project easily outweigh any relevant concerns expressed during the hearing.

1.                  No Significant Adverse Impacts from Electrical Phenomena.

The first major category of potential impacts explored at the hearings related to electrical phenomena associated with power lines.  Minnesota Power’s witnesses on this category of issues were: Dr. John Moulder, an internationally renowned expert on the medical literature investigating potential health effects from electrical phenomena; David Van House, who provided data for this issue; and Patricia Hoben, a highly-credible scientist, who ran the Science Advisors to the Minnesota Public Utilities Commission (“PUC”) in its landmark 1998 study which found no “credible scientific evidence” (MP-6, p. 38) to support the claim of adverse health effects from ground currents.  Collectively, this evidence far outweighed any opposing suggestion that electrical phenomena associated with the project would cause significant adverse impacts in Minnesota.

a.                   EMFs Pose no Threat to Human Health or the Environment.

“The current body of evidence does not show that exposure to these [electric and magnetic] fields presents a human-health hazard."  See National Research Council, Possible Health Effects of Exposure To Residential Electric and Magnetic Fields at 2 (1997)(emphasis added)(commissioned by 42 U.S.C. § 13478(a)(1)-(3)). The results of this government-sponsored study alone should close the door on feared health effects from such phenomena. 

Nevertheless, Minnesota Power recognized that unfounded concerns about electrical phenomena persist.  Consequently, Minnesota Power calculated EMF profiles based on the new line’s configuration and compared them to exposures from the existing lines.  (MP-17, p. 3.)  These calculations showed that in all circumstances, the project’s electric field will always fall below the MEQB standard of 8 kV/meter.  (Id. p. 4.)  The magnetic field profiles under various operating conditions are laid out in MP-17, DLV-4, Sheets 1-6.  These profiles are typical for projects of this type and result in magnetic fields which do not significantly depart from the current line, particularly at and beyond the edge of the right-of-way because the fields drop off rapidly from the center line.  (MP-17, p. 5.) And the magnetic field exposures at the edge of the right-of-way are less than experienced by using many common appliances.  (MP-17, DLV-6.)

For example, standing one foot from a copying machine (as a professional print shop employee might do) results in 31 mG exposure (MP-17, DLV-6), while absolute maximum exposure at the closest residence (180 feet from the new line) (Tr. 313) is around 10 mG (see DLV-4, Sheet 2-Segment 1 “Normal Peak” at +240 feet (240-60=180 from the new line)).  This minimal exposure is true even at “post contingency peaks,” (MP-17, DLV-4, Sheet 3) which can only last one-half hour at a time.  (MP-17, p. 5.)   Ten mG exposure is roughly comparable to using a portable space heater.  (MP-17, DLV-6.)  And even more important, the incremental change from the existing line is marginal to non-existent from the edge of the right-of-way.  This is because “magnetic field levels decrease rapidly (inverse square of the distance from source) from the centerline.” (MP‑17, p. 5.)  Thus, as a practical matter there is very little change in magnetic field exposures directly related to the line.

b.                  Dr. Moulder Confirmed No Effects.

Minnesota Power also retained Dr. John Moulder to explain and summarize the research on EMFs and human health.  (MP-1, p. 4.)  Dr. Moulder is a world-renowned scientist and researcher who has made an extensive study of the purported health effects from EMFs.[11] His work is regularly peer-reviewed and his reputation in this area is above reproach.

In addition to the more than 120 publications of his own, Dr. Moulder’s testimony is based on the review and critique of 271 articles, books, research papers and other scholarly works in the field. (MP-1, JEM-2, pp. 38-52.) Based upon his indisputably thorough and unimpeachable review of this vast body of work, Dr. Moulder testified “that there is no consistent scientific evidence that power-frequency electric and magnetic fields of this magnitude produce any adverse effects on human health.”  (MP-1, p. 5.) As Dr. Moulder testified:

In 1995, the scientific community generally had concluded there was no consistent scientific evidence that exposure to power-frequency fields could cause cancer or produce other adverse health effects on human health.  Extensive epidemiological studies, laboratory studies and exposure assessments published since 1995 have reinforced this view.

(Id. p. 5.) 

In cross examining Dr. Moulder, the Intervenors focused primarily on whether he could categorically guarantee the absence of any health effects associated with high voltage power lines.  As any capable and qualified scientist would do, however, Dr. Moulder declined the invitation to make any such categorical statements.  While recognizing that science can never prove the negative (Tr. 80 and 42), Dr. Moulder never deviated from his conclusion that there “is a very good consensus that we have eliminated the possibility that there are large health hazards …” (Tr. 36.)  No prima facie case of harm was established.

c.                   No Significant Impact From Ground Currents.

SOUL sponsored the testimony of Duane Dahlberg, who testified primarily about the possibility that “ground currents” associated with electric distribution systems might cause ill effects. Dahlberg’s testimony, however, was fraught with inconsistencies, filled with unsupported generalities, and used contradictory and undefined concepts.  Ultimately, his speculations provide no basis for concluding that ground currents from this line create any harmful impacts to humans or animals in Minnesota.

(i)                 Dahlberg Admits His Suppositions are Unsupported. 

First, whatever else Dahlberg attempted to say in his testimony, he candidly admits that “[t]he general conclusions of virtually all [studies of the health effects of EM energy] is that there is no scientific evidence that health effects from exposure to EM energies is sufficiently significant to be a cause for concern.”  (SOUL-2, p. 18.)  Moreover, he recognizes that “an assessment of the possible effects of these continuous electric currents in the earth and in bodies of humans and animals has never been undertaken.”  (Id. p. 16.)  Dahlberg confirmed these admissions on cross examination when he recognized that he cannot claim to have studied (much less established) a causal link between adverse health effects and ground currents.  (Tr. 454, 503, 519-20.)  And he recognized that the problems he has seen can be caused by other factors which he has not eliminated. (Tr. 493.)  Finally, Dahlberg admitted that he has not performed any epidemiological studies relating to ground currents. (Tr. 538.)

Collectively, Dahlberg’s admissions render his “conclusions” mere speculation, unsupported by any valid science or data. Even under the liberal admissibility standard of Minn. R. 1405.7300, Dahlberg’s speculations can be given virtually no weight, particularly when compared to the valid scientific conclusions rendered by Minnesota Power’s witnesses. Unsupported subjective opinion is unhelpful speculation under Minn. R. Evid. 702 and can be disregarded.  See Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 155 (Minn. 1982)(“The expert must base his opinion on facts sufficient to form an adequate foundation for an opinion and should not be allowed to speculate.”); see also Goeb v. Tharaldson, 615 N.W.2d 800, 814 (Minn. 2000) (expert testimony can be disregarded when it is not generally accepted by the scientific community and is not scientifically reliable). Dahlberg’s subjective beliefs and unsupported speculations could have been excluded outright as was done by the appellate courts of Indiana and Iowa.  See Indiana Michigan Power Co. v. Runge, 717 N.E.2d 216, 238 (Ind. Ct. App. 1999)(precludes Dahlberg’s testimony relating to EMFs as speculative); Schlader v. Interstate Power Co., 591 N.W.2d 10, 13 (Iowa 1999)(strikes Dahlberg’s unsupported opinions on stray voltage and ground currents on the grounds that such opinions were “bizarre”). At best, Dahlberg’s speculations carry no weight and fail to establish a prima facie case.

(ii)               The Science Advisors Rejected Dahlberg’s Views.

Even though Dahlberg finds peer review to be “very helpful” (Tr. 551) to give credibility to scientific papers, his papers have never been peer reviewed.  (Tr. 472, 497.) And the one extended study (Science Advisors) which did review Dahlberg’s ground current theories, fundamentally rejected them.  (See  MP-5, p. 49; MP-6, p. 38.)  Indeed, the Science Advisors, a blue-ribbon panel appointed by the PUC (without input by the utilities (Tr. 1076)) to research Dahlberg’s suppositions found them to be baseless. After almost five years of work and the expenditure of $1 million (Tr. 1081), the Science Advisors concluded that Dahlberg’s claims were supported by no “credible scientific evidence.”  (MP-6, p. 38; Tr. 491.)

The far-fetched nature of Dahlberg’s speculations was confirmed by Minnesota Power’s rebuttal witness, Patricia Hoben, Ph.D. (MP-11.)  Dr. Hoben, a highly-qualified researcher and respected scientist, acted as the Executive Director and reporter for the Science Advisors.  (Id. p. 3.)  “Since each science advisor was selected as an expert in a narrowly defined discipline, I was expected to be the scientific generalist who could synthesize and present the ‘big picture’ from the multi-disciplinary perspective that was required … .”  (Id. p. 4.)  Through her work, Dr. Hoben became intimately familiar with Dahlberg’s theories.  As outlined on Page 6 of her direct testimony, Dr. Hoben and the Science Advisors found Dahlberg’s theories to be unsupported and scientifically flawed.  Dr. Hoben concluded that Dahlberg’s theories before the Science Advisors and in this case “were essentially advocacy pieces for a particular point of view” that were “not supported by the type of scientific method or controls necessary to demonstrate some type of association … .” (Id. p. 8.) 

Dr. Hoben rebutted Dahlberg’s speculations point by point. (MP-11, p. 6-11.) Dr. Hoben found Dahlberg’s work in this case merely recycled the same arguments that had been thoroughly analyzed and rejected by the Science Advisors.  Dr. Hoben’s testimony was intended simply to set the record straight about Dahlberg’s unsupportable suppositions rather than to advocate for Minnesota Power. Dr. Hoben even declined to be compensated for her testimony to avoid any suggestion of bias. (MP-11, p. 2, 5 and Tr. 1055.)

(iii)             Dahlberg Admits No Connection to Minnesota.

Finally, even if Dahlberg’s speculations can be given any weight at all, his admissions render any conclusions irrelevant to the scope of this proceeding.  Dahlberg admitted that ground currents are a distribution phenomenon.  (Tr. 458.)  None of his testimony relates to whether transmission systems cause any of these problems at all. (Tr. 459.)  Even on redirect examination by his own lawyer, he acknowledged that it would be very difficult to extrapolate from his work on distribution systems to any conclusions at all relating to transmission.  (Tr. 591.)  Indeed, if the transmission system is not a “grounded Y” system (which it is not—see MP-29), it would fundamentally change the amount of currents going into the earth. (Tr. 591.)  Ground currents from this transmission line would be extremely small.  (MP-29.)

Indeed, the record reflects that the transmission poles in this case could act as a conductor to draw ground currents from nearby distribution back out of the earth and to the substation, thereby actually reducing ground currents.  (Tr. 2297.)  Thus, unlike a distribution system (to which Dahlberg testifies), this transmission line will not increase and could actually draw away or reduce grounds currents (Id.)  Finally, Dahlberg admitted that he is aware there will be no distribution feeders off of this line in Minnesota.  (Tr. 551.)  There will be none.  (Tr. 2296.)  With no distribution lines in Minnesota, the entire ground current issue is fundamentally eliminated under the Scope Order because even if a ground current “problem” exists, it will not occur in Minnesota and will not be caused by this line. 

d.                  The Henshaw Hypothesis is Unsupported by the Record.

NAWO sponsored no witnesses on electrical phenomena.  Nonetheless, NAWO attempted to impeach Dr. Moulder by focusing on what has come to be known as the Henshaw hypothesis.[12]  Dr. Moulder, however, specifically addressed the Henshaw hypothesis in his direct testimony.  (MP-1, JEM-2, p. 31.)[13]  Despite close questioning, Dr. Moulder completely debunked the hypothesis. (Tr. 77-78.)

It’s an interesting hypothesis when it was first published, but as pointed out in my report and in some of the critiques, there are internal inconsistencies in the hypothesis.  Second, there is no evidence that it’s actually true.  That is, the original Henshaw hypothesis suggested that radiation would be concentrated under power lines.  People went out and did the measurements.  They didn’t find it.  In addition, the types of cancer that the Henshaw hypothesis would suggest, which principally would be lung cancer, have not, in fact, been found along power lines.

While NAWO continued to sponsor the theme of the Henshaw hypothesis throughout the hearing, NAWO came up with no credible, scientifically-valid evidence rebutting Dr. Moulder’s documented and well-reasoned conclusion.  No prima facie case was presented.

e.                   Electric Sensitivity. 

Finally, Intervenors’ suggestion of a condition called “electric sensitivity” fell flat.  Dr. Moulder testified that there is no medical support for the proposition that such a condition even exists. (Tr. 78-80.) Even Dahlberg could not establish that it exists. He did not define the term (Tr. 508) or provide any scientific evidence supporting it. (Tr. 509.) Most importantly he drew no causal link between this supposed condition and high voltage transmission lines.  (MP-11, p. 14.)  Indeed, Dahlberg admitted that he does not even know if ground currents cause this condition.  (Tr. 509.) Ground currents are “non-ionizing” or of insufficient strength to break chemical bonds. “Only intense shock has sufficient energy to destroy cells.” (SOUL-2, p. 13-14.) And the only example that Dahlberg has of this supposed condition of electric sensitivity is a woman in Wisconsin who suffered from acute electrocution.  (Tr. 608.) This admission was consistent with Dahlberg’s use of research from one area to support totally unrelated conclusions.[14] Obviously, Dahlberg’s inconsistent and out-of-context use of research destroys the credibility of any of his “conclusions.”

2.                  No Adverse Pollution Effects in Minnesota Caused by the Upgrade.

The second category of contested evidence relates to claimed increases in mercury deposition and greenhouse gas pollution if the line is built. Intervenors tried to establish this claim through the testimony of George Crocker and Dr. Gary Glass, both of whom asserted that if lignite coal electric generation in western North Dakota increases, pollution will correspondingly increase.  This testimony, however, is sorely lacking in establishing that this line will cause lignite generation to increase, much less that pollution in Minnesota will increase as a direct result of the line as specifically required by the MEQB’s Scope Order.  (Attachment 5.)

To the contrary, the testimony of John Blaney and Lauren Quam establish that the North Dakota lignite units are generating as much energy as they reasonably can already and there will be no increased emissions directly caused by the construction and operation of this line.  While SOUL’s rebuttal witness, David Blecker, attempted to impeach Mr. Blaney’s analysis, Blecker provided no independent analysis or conclusions of his own from which the ALJ can draw any contrary conclusions.  Thus, the only credible record evidence is that emissions from the lignite plants will not increase and overall emissions may actually decrease by a small amount as a result of reduced line losses directly related to this project. 

a.                   Claimed Pollution Increases in Minnesota are Pure Speculation.

Evidence of speculative or indirect impacts are not properly before the MEQB. The Scope Order expressly excludes “evidence of impacts in Minnesota . . . absent a showing that the impact in Minnesota is directly related to the proposed facility.” (emphasis added) (Attachment 5.) This limitation is consistent with Minnesota law.  In In re Combined Air and Solid Waste Permit, 489 N.W.2d 811, 814 (Minn.Ct.App. 1992), the court held that “generalized concern about the possible environmental effect of a pollutant is insufficient to support denial of a permit.”

Intervenors simply have not established that increased lignite generation will occur or will be caused by this line. To the contrary, the record reflects while this line does enhance regional reliability, it does not directly cause any increased generation.  (Tr. 1908-09.) Rather, any increase in generation will be caused by demand growth, not by this line. (MP-3, p. 6.) That load growth will occur irrespective of whether this line gets built. (Tr. 174, 198.) Thus, there can be no claim that this line will directly cause any increased generation.

Moreover, Intervenors’ attempt to claim this line will cause the lignite units to increase production is pure guesswork. See In re Univ. of Minn. Application for Air Emission Facility Permit, 566 N.W.2d 98, 107 (Minn. Ct. App. 1997) (failure to point out any specific material adverse effect from emissions is fatal). A finding of significance “cannot be compelled … on the basis of speculative factors.”  Iron Rangers for Responsible Ridge Action, 531 N.W.2d at 881. Intervenors have done no analysis to demonstrate whether those lignite units could produce more energy or whether such production is related to this line. It is improper to assess any environmental effects from Intervenors’ claim because there are too many variables and contingencies.  See Olmsted Citizens for a Better Community v. United States, 606 F.Supp. 964, 976 (D.Minn. 1985) (applying Minnesota law) (“the impact on future speculative uses of the site or surrounding area need not be evaluated [under NEPA].”), aff’d 793 F.2d 201 (8th Cir. 1986).

b.                  Line Loss Reductions Directly Relate to the Upgrade.

Minnesota Power was the only party to conduct any analysis of the mercury emissions in Minnesota directly caused by the line.  The only directly-traceable effect caused by the line itself (as opposed to other factors such as load growth or other unrelated construction projects that may or may not occur in the future) is the reduction of line losses.  Line losses will change “[w]hen changes in the transmission system reduce the amount of transmission losses that occur, less power must be generated.  As electric generation levels are reduced, mercury emissions from electric generation sources can also decline.”  (MP-3, p. 4.)  Using modeled system loss reductions developed according to proper engineering methods (id.), Mr. Blaney was able to run a computer simulation in the changes of generation patterns that will directly result from the presence of this line.  He concluded that mercury emissions would decline by a modest 2.4 pounds per year as a direct result of the operation of this line. 

No other party conducted any studies or computer modeling of the emissions directly related to this line. Mr. Blaney conducted a study of load growth and generation patterns based on his projections. (Tr. 156.) His model was constructed using numerous inputs and industry-accepted assumptions. (MP-3, p. 2-3 and Tr. 164-73.) Mr. Blaney’s company is world-renowned in this field and has undertaken many projects of this type, including work for the Federal Government.

(i)                 Blaney’s Conclusions are Unrebutted.

Line loss reductions are the only directly-related impacts in the record. While SOUL attempted to impeach Mr. Blaney’s methodology, SOUL’s witness Blecker (SOUL-3) acknowledged that his former company had been a subcontractor for Mr. Blaney’s company (Tr. 1930), obviously recognizing that Mr. Blaney’s company is a leading player in the field.  Blecker also admitted that he did not perform any independent analysis of his own (Tr. 1935) and that, unlike Mr. Blaney, he had done no analysis of whether generation patterns would shift based as a direct result of the line. (Tr. 1941.) Ultimately, all Blecker could say was, if he had done any analysis he would have done it differently.  But he provided nothing in the record to support any different conclusions. And since Blecker made no attempt to analyze emissions himself, Mr. Blaney’s opinions stand unrebutted.

Finally, Blecker’s criticism of the Arrowhead project is at best curious and certainly not very credible considering his prior testimony in the Chisago project. Blecker testified that Arrowhead was a necessary and viable alternative to improve energy delivery system reliability in the region. 

Q.                And in that prefiled testimony in the Chisago project, do you recall the following question and answer: Is the Arrowhead-Arpin power line a viable alternative to the Chisago project?  Answer: Yes.  The Arrowhead Arpin project is another potential solution to meet the electric need of the greater northwest Wisconsin region and to serve—support bulk power transfers.  This docket has already accumulated a significant amount of information on the Arrowhead option.  The only comment I would add is that assuming that the Arrowhead line would not be owned by NSP or DPC, this project has the added benefit of ameliorating potential market power concerns in a deregulated utility environment.  This is because NSP would not have exclusive control of the Minnesota-Wisconsin transmission interface.  Do you recall giving that testimony?

A.                 That was my testimony.

(Tr. 1961-62.) For Blecker now to suggest that the Arrowhead project is somehow inappropriate defies credibility.

c.                   No Increased Mercury Caused by This Line.

(i)                 The Lignite Plants Will Not Produce More Energy.

NAWO’s claim that mercury would increase as a result of this line is based solely on the premise that the North Dakota lignite plants would increase production and consequently mercury deposition.  Mr. Crocker posits that if those plants’ production increases from their historical 76-82% availability to 100% “capacity factor” it will result in large increases in pollution.  (NAWO-31, p. 5.) This premise, of course, is false and wholly unsupported by the record.  The lignite plants are running flat out now; this line will not increase production from them.  (MP-30 and Tr. 222, 231, 234.) Thus, this line cannot increase lignite-related emissions. 

Mr. Crocker admits that he is not educated or trained in the power delivery business.  (NAWO-31, p 1.) Blecker, likewise, admitted that he had done no analysis of whether the lignite units could produce more energy. (Tr. 1941.) And in order for more lignite generation to be produced significant new transmission in North Dakota would be required. (Tr. 1955.) Intervenors provide no valid basis from which the ALJ could conclude that the lignite plants would actually increase production as a result of this line. 

Mr. Blaney, on the other hand, specifically looked at the question and testified: “I believe those units are currently producing about as much electricity as they can.” (Tr. 231.) This is true whether or not the line is built.  (Id. 231, 234.)  Because the lignite units are some of the lowest-cost generation (MP-30; see Tr. 1952-53) in the region, they have every incentive to maximize production whether or not the line is built.  Those plants will produce as much energy as possible regardless whether this project goes forward.  No prima facie case was established.

(ii)               Dr. Glass’ Testimony is Not Directly Related to the Line.

Dr. Glass’ testimony on mercury deposition changes nothing.  Dr. Glass is a specialist in mercury deposition and the papers he submitted to the record provide interesting background material on the well-recognized health effects of mercury poisoning. Yet, ultimately, his testimony provides no evidence about the effects of this line and does not support a finding of significant environmental effects in Minnesota caused by this line.

First, Dr. Glass made no claim that the lignite units would operate more or less as a result of this upgrade.  He did no study of whether this line would increase coal usage.  He merely asserts that if coal-fired generation is increased, mercury deposition could (but not necessarily would) increase.  Mr. Blaney, on the other hand, did study that question and concluded that this line will not increase coal generation or mercury emissions. (Tr. 222, 226.)

Second, Dr. Glass candidly admitted that he does not have all the information necessary to establish a causal link between increased coal consumption and mercury deposition.  (Tr. 954.)  And the studies to assess cause and effect have not been done.  (Tr. 955.)  Even Dr. Glass’ assertion that an “association” exists is suspect and not adequately tied to the line sufficient to make a causal link.  While Dr. Glass asserted to NAWO that a “correlation” between coal usage generally (NAWO-21 and Tr. 955) and mercury deposition exists, he admitted that his “observation, not a postulation” (Tr. 972) was rejected by his peer reviewers.  While Dr. Glass put a brave face on it, the fact of the matter is his “observation” was rejected and he was told to take it out of his paper because it was not supported by the completed research. (Tr. 1034.) 

Ultimately, Dr. Glass’ “observations” are perhaps interesting, but have little or nothing to do with this power line.  None of the articles or attachments submitted with his testimony (NAWO 11-30) demonstrated any causal link between mercury deposition and this power line.  Thus, Dr. Glass’ testimony falls largely beyond the Scope Order and, in any case, does not support any finding of significant human or environmental impact in Minnesota caused by the line.  No prima facie case has been presented.

3.                  No Significant Adverse Environmental Impacts were Established.

Minnesota Power presented testimony from a variety of witnesses showing the minimal incremental environmental effects associated with this upgrade project.  While the Intervenors cross examined Minnesota Power witnesses for many hours, they ultimately got very little for their effort because the changes resulting from this project have, at most, an insignificant impact on the surrounding areas and the environment as a whole. And with no rebuttal witnesses or affirmative testimony of their own, Intervenors fell far short of establishing a prima facie case.

a.                   Very Little New Right-Of-Way is Needed.

First of all, the overall characteristics of the corridor and substation site will be largely unchanged.  The substation footprint will be modestly expanded from its current configuration.  (Tr. 1619.)  This expansion is needed to house the additional transformers and other equipment that are part of this project.  Significantly, the expansion is entirely on property already owned by Minnesota Power and does not encroach on any other property or easements.  Moreover, the substation expansion will still be a considerable distance from the nearest residence.  (See MP‑25.)

Use of the existing corridor will result in very little change in the land use surrounding the transmission line portion of the project as well.  Vegetation management practices will be the same.  (MP-21; Tr. 1644.)  With two exceptions, the rebuilt line will be entirely within the existing right-of-way and almost no new land will be required. 

The two right-of-way exceptions are de minimis and do not result in “significant” adverse impacts.  For 0.8 miles, the existing line will be dismantled and moved from the east side of 95th and 96th Avenues West to the DM&IR Railroad corridor.  This will move a portion of the line farther away from existing residences and combines the power line usage with the existing railroad usage.  This small move is entirely consistent with PEER’s requirement of nonproliferation. 266 N.W.2d at 868.  In addition, moving this short stretch of line off the existing right-of-way and onto the railroad corridor in order to bring further distance between the line and homes, is exactly the kind of “extremely strong” rationale that justifies deviating from the existing corridor. 

In addition, for the 3.2 mile stretch of Segment 1, an additional 20 feet of right-of-way will be obtained on the west side to supplement the existing corridor.  This modest expansion is very similar to the modest expansion accepted in Hilltop.  It does not create any significant adverse effects. As Mr. Weber testified, effected landowners will be compensated at full fair market value for the easement whether through voluntary acquisition or eminent domain.  (Tr. 1712.)[15]  In any case, no evidence was submitted that any particular non-compensible impact would occur as contemplated by the PEER decision.  See PEER, 266 N.W.2d at 869.

b.                  MP Properly Assessed the Minimal Effects on Wetlands.

MP’s witnesses were cross examined on the potential effect construction of the line could have on wetlands.  First, there is already an access road on the whole stretch of line thereby mitigating any effects.  (Tr. 907.)  And Minnesota Power would take advantage of wintertime construction to minimize any impact to vegetation. (Tr. 1575.) Minnesota Power would utilize reinforced concrete foundations to minimize any ancillary impact to ground water.  Mr. Gullicks (MP-19) expressed the unrebutted opinion that there would be no contamination of the ground water associated with reinforced concrete footings. (Tr. 1541.)  In short, no evidence was produced that wetlands would be impacted in any way beyond the existing use.

c.                   MP Properly Assessed the Minimal Effects of Noise.

MP demonstrated no significant increase in noise from the line or substation.  Minnesota Power’s witness, David Van House, conducted extensive measurements of the noise levels around the Arrowhead Substation and studied transmission line noise.  (MP-17, p. 2 and 8.)  Minnesota Power also retained Dr. Hooshang Khosrovani of Veneklasen Associates to assist Minnesota Power in analyzing the noise data.  He “performed noise calculations and analysis for estimating the expected noise levels around the Arrowhead substation due to the operation of transformers and impact of proposed additions.”  (MP-2, p. 3.)  The results of the noise tests showed that in all instances, applicable Minnesota noise standards will not be exceeded.  (MP-2, p. 6-7.)  And, the minimal increase in noise levels at or near the substation are so small as to be beneath the human ear’s ability to perceive any difference, particularly since the substation is “in a reasonably noisy area due to the fact that there are a number of roadways around it and they are heavily trucked.” (Tr. 132.)  Dr. Khosrovani’s testimony is unrebutted that “no perceivable changes in the existing noise levels due to the operation of the proposed substation additions are expected.”  (MP-2, p. 7.)  There is no significant noise impact from this project.[16]

Likewise, Minnesota Power demonstrated the upgrade would not cause increased interference with telephone, TV and radio reception.  (Tr. 1477; MP-17, DLV-14 and DLV-15.)  And the line will not affect medical devices such as pacemakers. (MP-29, DLV-21.)

4.                  No Significant Human Impacts were Established.

Intervenors elicited considerable testimony in their unsuccessful attempt to show a variety of negative human impacts from the upgraded facility. Intervenors repeatedly focused on property values and aesthetics. This approach, however, is contrary to the statute and the Scope Order. Indeed, Intervenors’ approach, if followed, would negate the statute because no exemption could ever be granted any time anyone raised any objection to the way this society receives power, whether or not actual impacts of the project itself exist. Neither the statute nor the PEER decision allow such a brittle interpretation of the rules. 

a.                   Minimal Effects on Property Values.

Minnesota Power sponsored the testimony of Gary Battuello, a professional real estate appraiser in Duluth, to assess whether property values would be impacted. Mr. Battuello testified without contradiction:

The added visual presence of the line is a potential negative influence.  An amount of potential property value diminution  cannot really be measured until after the line is in place.  However, it is my opinion that real estate is typically quite resilient to many influences initially deemed as denigrating, such as pipelines, power lines, subsidized housing, group homes, half-way houses or bed and breakfast facilities.  In the mid to long term, say three to five years or beyond, such influences upon property values are quite minimal and, in many cases, not significant enough to be quantified.

(MP-10, p. 3.)  Even after extensive cross examination, Mr. Battuello confirmed “I do not believe that they [the incremental increase in the visibility of this line] will meaningfully influence property values along this route.” (Tr. 811.) 

Indeed, Mr. Battuello testified that a house currently being constructed adjacent to the existing line states a permitted cost of $150,000.  (Tr. 803.)  This amount does not include the value of the real estate and the amount stated in the permit typically represents the floor or lower end of the amount to be spent on a dwelling.  (Tr. 834.)  Obviously, this is no meager dwelling being constructed along the line and it stands as the best evidence that the presence of a power line does not significantly impact market activity in the long term.

In any event, PEER  recognizes that compensable diminution in property values is legally irrelevant to the analysis of power line routing.  PEER, supra, 266 N.W.2d at 869.  Consistent with a long line of eminent domain cases, the PEER court recognized that if a property owner can be compensated for the property being taken, that compensation serves to make the property owner whole. And current law provides a mechanism for property owners who are dissatisfied with the amount of compensation offered by the utility.  If an affected property owner is unhappy with the amount offered, she can force the utility to proceed by eminent domain.  (Tr. 1700-1718.)  Ultimately, the court in an eminent domain proceeding would determine fair market value for the easement and require the utility to pay it (Tr. 1712), whether the court-determined amount was higher or lower than the company’s final offer.  (Tr. 1721.)  State v. Humphrey, supra, 493 N.W.2d at 559.  No property owner adjacent to the line in Minnesota testified that they had some unique or noncompensable property interest.

b.                  No Significant Adverse Aesthetic Impacts.

Moreover, the supposed aesthetic impacts probed in the cross examination failed to meet any reasonable definition of “significant.”  Particularly, in light of PEER’s teaching, an upgrade project using preexisting right-of-way cannot be said to result in significant impacts simply because the poles will be higher.  Both the Second and Seventh Circuits agree:

[a]esthetic objections alone will rarely compel the preparation of an environmental impact statement.  Aesthetic values do not lend themselves to measurement or elaborate analysis.  The necessary judgments are inherently subjective and normally can be made as reliably on the basis of an environmental assessment as on the basis of a much lengthier and costlier environmental impact statement.

Friends of the Ompompanoosuc v. F.E.R.C., 968 F.2d 1549, 1557 (2nd Cir.1992) (quoting River Road Alliance, 764 F.2d at 451).

Ultimately, this whole line of argument revolved around the fact that the single-pole cor-ten structures will be taller than the existing two-pole wooden “H frame” structures. But see Friends of the Ompompanoosuc, 968 F.2d at 1557 (“[a]esthetic objections alone will rarely” be found environmentally significant). In light of the preexisting characteristics of the area, the proposed double-circuit design resulting in minimum right-of-way expansion (Tr. 848), and the PEER Court’s mandate to use preexisting routes whenever possible, the overall impact of going from two shorter poles to one taller pole is at most insignificant and should be considered negligible.  (Tr. 319.) 

Mr. Lindholm testified:

The construction and operation of the proposed 345 kV transmission line rebuild would not have a significant impact on human settlement and aesthetics.  The proposed transmission line route has been used as a transmission right-of-way for approximately 20 years.  The proposed route traverses sparsely populated areas in the city of Hermantown and Midway township.  The proposed route is located to the east of the Gary-New Duluth subdivision of the City of Duluth on industrial property.  An active railroad marshalling yard and vacant industrial land separates the proposed route from the residential development area of Gary-New Duluth. 

(MP-4, p. 15.)  This conclusion is entirely consistent with the analysis and ruling in Hilltop.  (Attachment 1, p. 25.)  This is particularly true where, as here, the reason for using taller poles is to minimize the need for additional right-of-way.  (Tr. 848.) As recognized in Hilltop, this type of mitigation strategy is the best way to minimize impact on residents and to comport with the nonproliferation doctrine.  Finally, in the areas where the poles cross agricultural land, farmers will be happy because the new configuration eliminates the double-pole feature and guy wires relating to corner structures.  (Tr. 1194.) 

(i)                 The View from Local “Landmarks” is Not Materially Impacted.

In an attempt to come up with something “significant” about the taller poles Intervenors questioned Minnesota Power’s witnesses closely about the view of the line from a variety of local “landmarks.” This whole line of questioning fell flat and did not establish a prima facie case of significant impacts.

The line will cross the St. Louis River at the Oliver Bridge, which is adjacent to an industrial area.  (MP-13; See Attachment 6.)  The Oliver Bridge is not a landmark and is actually going to be rebuilt, eliminating any unusual features.  (Tr. 1196.)  Structures will be set back from streams to mitigate any impact.  (Tr. 287.)  The Buffalo House recreation area will not be affected.  (Tr. 1195.)  The park facilities of Fond du Lac Park are a mile and a half away from the line and the adjacent park property is on a major truck route.  (Tr. 1120-22.)  Snowmobiling trails in the area will be unaffected.  (Tr. 1200.) The Munger Trail will not be significantly affected.  The existing line follows the trail for 1000 feet. (Tr. 291.)  This will not change.  While the structures will be taller, the overall impact will not be significantly greater.  (Tr. 319.)  Moreover, the impact would be far less than the significant additional right-of-way that would be needed to use shorter poles. Finally, the neighboring Spirit Mountain ski area will not be impacted at all because the ski slope is facing the wrong way and is too far away to have any influence whatsoever.  (Tr. 1194.) 

The view from the other so-called parks is at most trivial. Merritt, Magney, and Shortline “parks” (MEQB-1, p. 13-14.)(Tr. 1197) are nothing more than pieces of land-locked and abandoned industrial properties.  While they may appear on USGS maps as “parks,” the Duluth Visitors’ Bureau does not even recognize them as parks.  (MP-12.)  These three abandoned pieces of property are not pristine in nature and sit in the middle of an industrial area.  (Tr. 882.)   In any case, Minnesota Power did address them in the Application.  (Tr. 1124, MP-1, p. 14.)   The impact of the line is minimal.

Perhaps, the most revealing exchange relating to the lack of visual impact from this line dealt with Skyline Parkway.  And NAWO-3 (Attachment 8) may be the best evidence that the visual impact of the new line will be at most insignificant and more accurately trivial.  This gravel stretch of road, which is impassible half the year, (Tr. 874) has a dirt turnout with an overlook to the St. Louis River, the Oliver Bridge and the neighboring industrial area. NAWO-3 shows a portion of the viewscape from this dirt road.  The structure shown on NAWO-3 is a small and insignificant part of the picture.  Increasing the height of this structure would have virtually no impact on the overall viewscape.  (Tr. 1183.) 

And, of course, NAWO-3 was artfully cropped to tell only half of the story.  Panning only slightly to the right from NAWO-3 is an industrial area which includes factories and assorted other industrial structures. MP-13 (Attachment 7) provides a far more accurate depiction of the viewshed from the litter-strewn (MP-14) overlook. The same transmission structure as depicted in NAWO 3 is barely visible in conjunction with the surrounding structures.  (Attachment 7.)

(ii)               The Overall Character of the Area does not Change.

Ultimately, the upgrade will have virtually no effect on the overall character of the area.  The area was not pristine before and will not be pristine after. (Tr. 882.)  The general features of the landscape include the “industrialized area of the former USX Steel Mill and the cement plant.”  (Tr. 326.)  A rock quarry and major truck route are also prominent features in this area.  (Tr. 1122.)  Where Minnesota Power could mitigate by moving the line away from homeowners in the Gary-New Duluth area, it did so.  (Tr. 851.) See Pope County Mothers, 594 N.W.2d at 273 (to the extent impacts can be mitigated, they are not deemed significant). In this 0.8-mile segment, Minnesota Power was able to satisfy the concerns of the adjacent homeowners by moving the route from the houses to the neighboring rail yard while not interfering with the railroads’ existing industrial use.  (Tr. 851.) And Minnesota Power further mitigated the impact by using taller poles to avoid using additional right-of-way. (Tr. 848.) See PEER, 266 N.W.2d at 868.

5.                  The Project Enhances System Reliability to Minnesota Residents.

Electric system reliability is one of the factors to be considered when assessing an application of this type.  Minn. R. 4400.1310, subp. 1(I). Minnesota Power sponsored the testimony of Dan Carlson, a registered professional engineer and Minnesota Power’s leading internal expert on transmission planning and regional reliability.  Beyond extensive cross examination of Mr. Carlson’s professional opinion and conclusions, the Intervenors made no attempt to sponsor contrary witnesses who were qualified to dispute Mr. Carlson’s conclusions.[17]

Mr. Carlson’s unrebutted expert testimony was that the upgraded line will increase electric system reliability in the Upper Midwest region.  (MP-24, p. 6; See MEQB-1, p. 4‑5.)  That increased regional reliability will have a direct benefit to Minnesota: by strengthening the Minnesota/Wisconsin interface, the risk of blackouts in Minnesota is reduced. 

a.                   The Interface is Indisputably Weak.

Currently, there is only one major (200 kV or above) power line connecting the interface between Minnesota and Wisconsin.  (MP-26.) This King-Eau Claire-Arpin line is heavily loaded and is hard to control as a result of it being the “weak link” in the regional grid.  (MP-24, p. 6.)  This weak link manifests itself in overloaded lines, inadequate voltage support, forced curtailments of energy deliveries, and the risk of regional grid failure.  (MEQB-1, p. 4-5.; see also MP-24, p. 6.)  Exhibit MP-26 (see Attachment 6) visually depicts that the King-Eau Claire-Arpin line is the only east-west connection and also shows how the presence of the Arrowhead-Weston line will double the connections on the interface.  It is obvious that doubling the interface will increase system security.  (Tr. 2066 and 2115.)

There are many reasons why adding this second line to the interface improves regional reliability and, consequently, creates a benefit directly to Minnesotans.  The security aspect of reliability provides that the grid should have the ability “to withstand sudden disturbances such as electric short circuits or unanticipated loss of system elements.”  (Tr. 1876.)  With only one line, the Minnesota portion of the grid does not have an adequate ability to withstand unexpected disturbances and the loss of system elements. (Tr. 2029.)  Mr. Carlson testified extensively about the risk of regional blackouts as the underlying motivator for constructing this line.  (E.g., Tr. 1876.) 

And this risk of regional blackouts is no mere theoretical exercise.  There was considerable testimony regarding the June 25, 1998 event in which the King-Eau Claire-Arpin line tripped out, thereby causing four paper mills in Minnesota to shut down, actual blackout conditions in the region and nearly causing a catastrophic failure of the entire regional grid.  (MP-24, pp. 5-10.) This incident is a good “example that there is a weakness in the regional grid, and ... what the consequences of failure of this interface are to the region.”  (Tr. 1849.)  Another example of system-wide disturbances that could be alleviated by the Arrowhead-Weston line is described in MP-27.  (See also MEQB-1, p. 5-6, 8.)

The reliability issue is of real importance to Minnesotans.  Because the electric grid is interconnected, when any system element fails (whether or not in Minnesota), power is automatically rerouted to the other system elements. “The electric system is quite unlike a—a pipeline system in that for a natural gas system or an oil system, you—you can valve off where you want the flows to go.  The electric system is not like that.”  (Tr. 2045-46.)  The electric system is like a “pond” in that all of the electrons enter the system and move throughout the pond according to the laws of physics.  (Id.)  “[I]f a transmission line comes out of service: The resulting flows will just shift according to the—the laws of physics.  They’re not, you know, being controlled on—on a line-by-line basis.”  (Id.) Thus, it is imperative to have sufficient transmission capacity to accept automatically-increased flows if a line goes out – this is what is meant by the “security” aspect of reliability (Tr. 1875-76) and this is one way in which this proposed line increases reliability.

Thus, for example, if you have a system that has one big line and enough little lines, failure of the big line will automatically redistribute the energy to the little lines according to the laws of physics.  This will not result in a catastrophic situation because there is enough collective capacity in the little lines to accept the rerouted power.  But, of course, the real world is not perfectly in sync like that example.  (Tr. 2185-86.)  If you have a system that has one big line and some but not enough little lines and the big line fails, the automatic rerouting will overload the little lines.  If left unchecked, this could result in a cascading overload and blackout of the entire system.  That is what happened to cause the 1965 Eastern seaboard blackout.  (Tr. 2187.)  And it is what almost happened in Minnesota on June 25, 1998. (Id.) Reducing this type of blackout risk will directly benefit Minnesotans.

This is also why having extra power plants in Wisconsin will not solve this problem. (Tr. 2190-99.) Idle generation will never be able to get on line quickly enough to alleviate a major transmission system event because these events must be dealt with in seconds and sometimes fractions of seconds, not the minutes or more it would take to start a power plant. (Id.; Tr. 2107.) Even if the plant was in “spinning reserve” mode, it could not begin generating quickly enough to achieve the reliability improvements this line will serve. (Tr. 2198.)

b.                  Other “Projects” are Not Part of this Application.

The Intervenors attempted to attack the regional reliability benefit by suggesting this line would not serve its intended purpose without significant additional projects which are not being undertaken as part of this Application.  This argument, however, finds no support in the record.

(i)                 This Upgrade is a Stand-Alone Project.

On June 14, 1999, the Wisconsin Reliability Assessment Organization (“WRAO”) issued its report on transmission system reinforcement in Wisconsin.  (DOC-3.)  The WRAO mission was to develop transmission plans that “would increase Wisconsin’s electrical transfer capability to 2,000 megawatts from both the west and the south and 3,000 megawatts simultaneously.” (DOC-3, p. 3.)  The WRAO “concluded that Plan 3j (Arrowhead-Weston 345 kV) is the best plan” for achieving these goals.  (Id., p. 4.)  The WRAO report concluded that in order to achieve these benefits, Plan 3j “must be constructed in its entirety.”  (Id.)  Intervenors pointed out that Plan 3j includes other smaller projects, most of which would be built in Wisconsin (Tr. 1790) and over which Minnesota Power has no control.  (Tr. 2073.)

None of this has anything to do with whether the line itself (as proposed in this Application and without the other Plan 3j upgrades) enhances security reliability (Tr. 1875-76) in the transmission grid.  In fact, Mr. Carlson’s unrebutted testimony is that “the Arrowhead-Weston line would still accomplish the objectives of the regional reliability issues by itself without need for all of those associated upgrades.” (Tr. 2157.) The fact that Wisconsin may not reap all of the benefits of Plan 3j (Tr. 2074) has nothing to do with the reliability benefits to Minnesotans from the line itself.  (Tr. 2057-58.) 

(ii)               There are No Other Related Projects Currently Planned.

Nor is the Arrowhead-Weston power line and substation project a portion of a larger Minnesota Power project beyond what is already contained in this Application. To the contrary, this line and substation upgrade is a stand-alone project as proposed that is not dependent on the occurrence of any other projects or upgrades.

The upgrade of the line to Hilltop at 230kV (with operation at 115 kV) was already part of this Application.  (Tr. 2087.) This Application expressly includes the request that Segment 1 of the line be approved at 230 kV to be operated at 115 kV.  (MEQB-1, p. 2; Tr. 295 and 315.) There has been no secret about this aspect of the project as it is stated in the Application and discussed in the testimony and this is entirely consistent with the approvals granted in the Hilltop case.  (Tr. 1484.)

And there are no other undisclosed projects. Mr. Carlson who heads the transmission performance department at Minnesota Power is the person who would know about it if the company was planning any concurrent or related projects. He categorically testified that there are none. (Tr. 2089.) If other projects are pursued in the future, they will done on their own merit at that time pursuant to required regulatory approvals.

Mr. Carlson noted that Minnesota Power has a staff of at least a dozen employees who work in the transmission studies area.  These people study many types of upgrades and potential projects.  The fact that something is being studied or contemplated does not mean that the decisions have been made to go forward with it.  (Tr. 2090.)  See also Minnesota Public Interest Research Group v. Butz, 541 F.2d 1292, 1306 (8th Cir. 1976) (independent projects are not connected). Indeed, Minnesota Power has not decided whether or not to undertake any other projects. (Tr. 2088-89.) See 541 F.2d at 1306; see also Wetlands Action Network v. United States Army Corps of Engineers, 222 F.3d 1105, 1119 (9th Cir. 2000)(lack of commitment dispositive that projects not connected).

6.                  Speculations about Societal Change do Not Enhance Delivery System Reliability.

NAWO presented testimony of Mr. Crocker’s largely for the proposition that society should move away from central station power and that fuel cells, dispersed generation, wind and solar energy should be encouraged.  Mr. Crocker’s testimony is flawed as NAWO’s desired changes in law are beyond the scope of this proceeding and current technologies cannot displace the reliability enhancements this line will create.

a.                   Legislative Actions are Beyond the Scope of Hearing.

First, the scope of this hearing (as set forth in the Scope Order) is whether this project will cause significant human or environmental impacts in the State of Minnesota. It is not whether the project should be built at all or whether it satisfies NAWO’s preferred energy strategy.  The scope of this hearing, therefore, does not properly include a debate about whether society could find a different way to deliver energy to consumers.  See Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766 (1983)(agencies are not to address societal issues under NEPA); Olmsted Citizens for a Better Community, 793 F.2d 201, 204 (8th Cir. 1986)(applying Metropolitan Edison rule). In Metropolitan Edison Co., the Court stressed that environmental laws do not allow agencies to address societal issues.  Those laws instead protect human health and welfare only through the means of protecting the physical environment.  460 U.S. at 772-74.  It is not a court’s purview to rule based on fear or broad societal concerns.

Mr. Crocker’s testimony, however, is filled with precisely this type of rhetoric.  He denigrates central station power and advocates for new and different ways to accomplish energy delivery goals.  (NAWO-31, p. 8.)  For example, Mr. Crocker testifies at length about the alternate energy supply sources for his home.  (Id., p. 11-15.)  While Mr. Crocker’s solar power and off peak battery charging configuration is interesting and creative, it has nothing to do with whether this power line will cause significant human or environmental impacts.

NAWO’s arguments as to what the rules should be cannot override a decision based on the rules as they exist today. To do otherwise would violate the intent of the legislature and be contrary to the proper scope of this hearing. The Eighth Circuit addressed this type of issue in Olmsted Citizens for a Better Community, 793 F.2d at 204. In that case, the project’s opponents claimed increases in crime and slowing of neighborhood development as reasons to deny the project. In rejecting the claim, the Court, found those impacts were not associated with “any physical changes connected with the conversion but from the social changes reflected in the nature of the use of the facility and in the types of people will be present.”  Id. at 205; see also Como-Falcon Community Coalition v. United States Dep’t of Labor, 609 F.2d 342, 345-46 (8th Cir. 1979)(societal concerns not within provisions of NEPA). As a result, Mr. Crocker’s testimony must be given little or no weight.

b.                  The Exemption Process is Not Limited by Controversy.

Likewise, mere opposition to the line is not listed as a consideration under either the statute or rules to deny the Application. The MEQB declined the invitation to graft a “controversy clause” onto its rules in its Order for Hearing. (Attachment 4.) The MEQB confirmed this decision by its Scope Order. (Attachment 5.) 

This type of “controversy test” has also been rejected in analogous contexts.  See, e.g., River Road Alliance, Inc., 764 F.2d at 451; see also Friends of the Ompompanoosuc, 968 F.2d at 1558 (“The fact that there was public opposition ... cannot tip the balance.”)(quoting River Road Alliance, 764 F.2d at 451).  The mere fact that there is public opposition to the proposed facility cannot compel the preparation of an environmental impact statement.  “That would be the environmental counterpart to the “heckler’s veto” of First Amendment law.” Id.; see also Town of Orangetown v. Gorsuch, 718 F.2d 29, 39 (2nd Cir. 1983) (allowing public opposition to compel an environmental impact statement would “surrender the determination to opponents of a[n] . . . action no matter whether [the project is] major or not, nor how insignificant its environmental effects might be.”)(citations omitted); Trisko v. City of Waite Park, 566 N.W.2d 349, 354-55 (Minn. Ct. App. 1997) (“A municipality must base the denial of a conditional use permit on ‘something more than neighborhood opposition and expression of concern for public safety.’”)(citation omitted).  The rationale of these cases precisely fits this case as well.

c.                   Need is not a Consideration.

Of course, much of NAWO’s opposition rests on the premise that this line is not “needed” because the future may bring new ways to deliver energy. The MEQB’s charter expressly excludes a needs analysis. See Minn. R. 4400.1210, subp. 2(B)(the MEQB “must not consider need for the project …”)(emphasis added). And the Scope Order recognizes that need is not a consideration when it limits its focus on the impacts if the line is built and does not include reviewing whether the line should be built. While the ALJ may consider “electric system reliability,” (Minn. R.  4400.1310, subp. 1(I)) that consideration does not allow this case to turn into a proxy for assessing the need for the project. And it does not reverse the specific admonition that the MEQB “must not consider need.”  Minn. R.  4400.1210, subp. 2(B). (See, Tr. 1852-57.)

d.                  Reliability Benefits Cannot be Delayed.

Even more fundamentally, NAWO’s claim that this line is not “needed” and its desire to change the way society receives energy defies the unrebutted evidence that the Minnesota-Wisconsin interface is seriously unstable. (MEQB-1, p. 5-9; MP-24, p. 4-6.) Mr. Carlson’s unrebutted testimony is that when blackouts occur, bad things happen to people. (Tr. 2060.) While black-outs are obviously unusual events, when they occur they can be catastrophic, resulting in the deaths of many people as has resulted in past blackouts.  (Tr. 2061.)

The 1965 East Coast situation is particularly instructive.  (Tr. 2187.)  Some lines in the Ontario system tripped out resulting in power being automatically rerouted.  This caused the additional lines to overload and they tripped and the result cascaded into a major blackout with catastrophic results.  (Tr. 2187.)  In the aftermath of that outage, the industry got together and developed the interconnected grid with its reliability requirements to minimize the likelihood of events like that ever happening again.  (Tr. 2187.)  Unfortunately, events like June 25, 1998 show that catastrophic failures can still happen. (MP-24, p. 10.)  This line would improve the security of the regional transmission system.  Minnesota Power should be allowed to minimize this risk under existing law, using current technology.

 

IV.              CONCLUSION

The project does not create any significant human or environmental impacts in Minnesota directly caused by the line.  To the contrary, the impacts of this upgrade project are minimal, particularly considering it follows a preexisting corridor.  In light of the Supreme Court’s nonproliferation doctrine, this Application should be granted and Minnesota Power allowed to move forward to seek all of the other permits and approvals that are necessary to begin construction.

BRIGGS AND MORGAN, P.A.

 

 

By: ________________________________

            Michael C. Krikava (#182679)

2400 IDS Center

80 South Eighth Street

Minneapolis, Minnesota  55402

(612) 334-8566

 

and

 

MINNESOTA POWER, INC.

Deborah A. Amberg, Senior Attorney

30 West Superior Street

Duluth, Minnesota  55802

(218) 723-3930

 

 

ATTORNEYS FOR MINNESOTA POWER, INC.


[1] References to the technical hearing are designated (“Tr.”) and the public hearing (“Pub. Tr.”). References to the testimony and exhibits are designated by their exhibit number and page number. Attachments hereto are: (1) Findings of Fact, Conclusions and Recommendation, Docket MP-1990-EA1 (Feb. 5, 1991)(hereinafter “Hilltop”);  (2) EQB Staff’s Post Public Hearing Memorandum [in Hilltop], Docket No. MP-1990-EA1 (Jan. 16, 1991); (3) Order, Docket No. MP-199-EA1 (Feb. 21, 1991) (granting Hilltop Exemption); (4) Findings of Fact, Conclusions and Order for Public Hearing, Docket No. MP HVTL-EA-1-1999r (Nov. 18, 1999) (“Order for Hearing”); (5) Order on Scope, Docket No. MP HVTL-EA-1-1999r (May 3, 2000) (“Scope Order”); (6) Exhibit MP-26; (7) Exhibit MP-13; (8) Exhibit NAWO-3; (9) Exhibit MP-16; and (10) Exhibit MP-4, REL-16.

[2] As was recognized in Hilltop, the “exemption” process results in serious and probing review of the project.  This process, however, is much better suited to this type of upgrade project which follows preexisting corridors, rather than the full-blown routing process which is better suited to review projects involving new corridors.  (Attachment 1, p. 25.)

[3] MEQB-1, Appendix E depicts the single pole style. MP-16 is a photograph of a Cor-Ten steel single pole structure in context.  (Attachment 9.)  The H Frame structures are shown, for example, in MP-4, REL-16.  (Attachment 10.)

[4] The 230 kV circuit will, however, not be capable of operating at 230 kV without additional upgrades, none of which are currently being contemplated and which would need to be separately permitted. (Tr. 315, 1484, 2171.) This line will be operated at 115 kV and will serve as a segment of the existing Arrowhead-Hibbard line (Line No. 70).  This portion of the upgrade is consistent with the authority previously granted in Hilltop to upgrade a portion of Line No. 70 to 230 kV.

[5] These included:  Dairyland Power Cooperative (“Dairyland”), the Minnesota Department of Commerce (“Mn-DOC”) and the Wisconsin Public Service Commission (“WPSC”), NAWO, Clean Water Action of Minnesota, the Pimicikamak Cree First Nation from Cross Lake in Northern Manitoba (hereinafter the “Cross Lake First Nation”), and many Wisconsin-based individuals and organizations, including Lake Superior Greens (“LSG”), the World Organization for Landowner Freedom (“WOLF”) and Save Our Unique Lands (“SOUL”).

[6] While all considerations in Manitoba go well beyond the Scope Order, it should be noted that the Cross Lake First Nation’s point of view was disputed and opposed by two other neighboring First Nations (Split Lake and Nelson House).  They both urged the ALJ to leave concerns over Manitoba to the proper Canadian authorities.  (Pub. Tr. 18-21 and 40-49.)  The Manitoba Hydro Electric Board echoed this view in its September 13, 2000 letter to the ALJ.

[7] In addition, SOUL attempted to sponsor the testimony of Jan Jubon to discuss the commercial potential of fiber optic communications.  Minnesota Power’s relevance and scope objections to this testimony were sustained and this testimony was not received.  (Tr. 2242.)

[8] The Hilltop case was “important for precedential purposes” as it granted the exemption even though it “involve[d] a more extensive proposal than previous exemptions ….” (Attachment 1, p. 5.) In advocating in favor of granting the Hilltop exemption, MEQB’s counsel at the time, Assistant Attorney General Eldon Kaul, cautioned that “[t]his exemption case is the first to be decided by EQB after a public hearing and it involves a somewhat more extensive proposal than previous exemptions, thus making this case important for precedential purposes.”  (Attachment 2; pp. 2-3.) The precedent that was subsequently set was to recognize that upgrade projects of this type which follow preexisting corridors are precisely the type of projects for which the exemption process was intended.

[9] The Hilltop order is consistent with PEER and State by Schaller. While finding the applicant has the ultimate burden of proof, (Attachment 1, p. 4.) the Hilltop order clearly analyzed this burden in light of PEER and the high threshold of significance that arises out of the nonproliferation doctrine.  Moreover, the Hilltop Order’s conclusion of no significant impacts “primarily because” (id., p. 25) of PEER acknowledges the requirement that the project’s opponents must establish a prima facie case of significant harm in order to defeat the project. 

[10] The 1998 Wingspread Statement on the Precautionary Principle (SOUL-2, p. 26) defines the principle this way:  “When an activity raises threats of harm to the environment or human health, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically.” (Id.)

[11] Dr. Moulder holds advanced degrees from Yale, has worked in this field extensively for the past 20 years and has advised both state and federal governments.  (Id.) He served as a formal external reviewer of the National Research Council report which concluded that “the results of the EMF-RAPID Program do not support the contention that the use of electricity poses a major unrecognized public-health danger.  (Id. p. 3-4.) 

[12] The Henshaw hypothesis postulates that airborne particles could be attracted to strong electric field sources and that increased concentrations of such particles in the vicinity of a power line could increase health risks to people living in the vicinity.  (MP-1, JEM-2, p. 31.) Of course, NAWO ignored the fact that in all cases the electric field from the line will be well below the 8 kV/meter standard used by the MEQB.

[13]  His critique analyzed a dozen scholarly works on the subject (Id., p. 50-51), including several articles that specifically critique the Henshaw hypothesis.  NAWO showed Dr. Moulder only two of the 12 articles about the Henshaw hypothesis that Dr. Moulder had studied and ignored those studies that found the hypothesis to be flawed.  (NAWO-1 and NAWO-2.)

[14] Most notably, Dr. Dahlberg relied on the 1989 Hooshmand article in discussing the possible effects of ground currents.  Yet, Dahlberg admitted that the Hooshmand article deals only with the effects of electrocution (Tr. 507) while ground currents are so weak they constitute “non-ionizing” radiation, or radiation which is not even strong enough to break chemical bonds within cells.  (SOUL-2, p. 13-14.)

[15] Mr. Weber’s testimony comports with Minnesota law.  Where a taking of property occurs, Minnesota applies the “before and after” rule to determine the measure of just compensation. State by Humphrey v. Strom, 493 N.W.2d 554, 558 (Minn. 1992).  “[T]he measure of damages is the difference between the fair market value of the entire piece of property immediately before the taking and the fair market value of the remainder of the property after the taking.”  Id. “[E]vidence of diminution in value of only the real estate is relevant.”  Id. at 559 (citations omitted).  The property owner is entitled to nothing more because, under this rule, “depreciation of the fair market value operates as the limit of the owner’s recovery.” Id. Thus, “[d]amages for lost profits, goodwill or income, for instance, are too speculative to be considered … .” Id.

[16] To be sure, Intervenors attempted to test these conclusions.  They questioned whether Minnesota Power properly calibrated the meters from which much of the data was collected.  However, Minnesota Power’s unrebutted testimony is that Mr. Van House was scrupulous in following the measurement procedures provided by his expert and by the MPCA. (MP-18, p. 12; Tr. 1474-75.)

[17] To be sure, Mr. Crocker’s direct testimony attempts to suggest that the presence of this line will actually decrease reliability. (NAWO-31, p. 8.)  Of course, Mr. Crocker candidly admitted that he has no qualifications or training in the power delivery business (Id., p. 1.) and his speculations were fully rebutted by Mr. Carlson’s rebuttal testimony.  ( MP-28.)