Letter to the Governor on Pipeline Provisions in Energy Omnibus

May 12, 2017

Dear Governor Dayton and Lieutenant Governor Smith,

We, the undersigned organizations, respectfully request you veto any version of the Jobs and Energy Omnibus bill that contains provisions

• removing pipelines from the current Public Utilities Commission (PUC) Certificate of Need (CON) process (including a newly defined category, replacement pipelines) (lines 189.32-190.2 and 190.11-190.13 in CCRSF1937) or
• exempting certain pipeline alternate routes (in PUC language – “system alternatives”) from environmental review (lines 195.11-195.15)

As you know, citizens and tribal nations are actively engaged in the process of determining the need and route for future pipeline projects proposed for Minnesota. The undersigned are united in their beliefs of protecting our remaining clean water, indigenous and treaty rights, protection of wild rice beds, the right to full and informed consent, the recognition of the lack of corridor analysis in the past, fact based scientific decision making, protection of MEPA, and /or the urgency of climate change. We are determined to have a full and fair process in assessing the need for this and all future pipelines. The granting of eminent domain must require the justification of a genuine public need, not a need for additional corporate profit.

We recognize the important role you play in this intense legislative process and the sheer number of objectionable provisions contained in these omnibus bills. We appreciate and are grateful for your statements to actively block the greenlighting of the Line 3 project and to resist weakening of the independent oversight of the PUC. We request you veto SF1937, and any subsequent Jobs and Energy Omnibus bills that contain either of these two pipeline provisions.

On the first provision – removing pipelines from PUC Certificate of Need process.

Article 10, Section 26, lines 189.32-190.2 and lines 190.11-190.13.

Current PUC rules that guide the Certificate of Need process at the Commission (7853.0130) are not ideal; they are weak, industry biased and based on an underlying electrical facility statute, not a pipeline statute (§ 216B.243). A stronger statute was deleted years ago, and the remaining language is ambiguous.

However, the current PUC rules, based on the electrical statute, do provide for independent oversight of some factors, including;
• the applicant’s demand forecast;
• existing and efficient use of pipeline availability;
• reasonable alternatives; and
• environmental impacts and consequences given the state and region’s energy needs.

While a new rigorous pipeline statute is needed in Minnesota, these PUC rules are the only process we currently have to provide independent oversight of pipelines.

A strengthening of pipeline oversight occurred in August, 2015, when Friends of the Headwaters, with an amicus brief by the Carlton Co. Land Stewards, unanimously won their case at the Minnesota Court of Appeals. The Minnesota Supreme Court declined to hear the appeal. As a result, an Environmental Impact Statement for a crude oil pipeline is being written. We are awaiting the Draft EIS from the Department of Commerce (DOC) on May 15.

The Omnibus Energy bill provisions removing pipelines from the CON process would entangle this EIS process and the Department of Commerce in a political battle and subject Enbridge and the PUC to MEPA litigation challenges. Changing the current process at this point will involve more delay and cut off public input. Removing the CON requirement for pipelines does not remove the routing permit requirement. Line 3 is currently under contested case review at the Office of Administrative Hearings (OAH). If these policy provisions become law, the unwinding of the process at the OAH back to the PUC would take months and be vulnerable to litigation. This would have the potential to tie the whole process up for another year, effectively subverting the very goal of the authors. All scenarios would involve uncertainty and delays.

On the second provision – certain routes exempted from environmental review

Article 10, Section 38,

For the first time, Minnesota has a chance to evaluate a best corridor for steel pipelines with an expected life of 50 or more years. A lot of leaks can occur over this timeframe. If Minnesota needs a new pipeline corridor, then we need independent, scientific analysis to identify a corridor in the state. This provision would prevent this thoughtful process and establish a bad precedent. There are other pipelines, older than Enbridge’s Line 3, which will also likely be requesting replacement in the future.

There are many existing pipeline corridors already in our state. MEPA demands we consider connected and related actions, such as the origin and ultimate destination for the oil or gas. If we allow this policy provision to become law, our goal of assuring the least impactful, readily accessible, environmentally just corridor is lost

Thank you for the opportunity to document our very serious concerns with these provisions

Sincerely,

Steve Morse
Minnesota Environmental Partnership