This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
re: Route Permit for Construction of a
Substation and a
High Voltage Transmission Line in Dakota County, Minnesota,
Issued to Great River Energy & Xcel Energy
Filed March 14, 2006
Dan Lipschultz, Michael J. Bradley, Moss & Barnett, 4800 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN 55402-4129 (for respondent Great River Energy)
Agrimonti, Briggs and Morgan, P.A., 2200 IDS Center,
Alina Schwartz, Joel J. Jamnik, Campbell Knutson, P.A., 317 Eagandale Office Center, 1380 Corporate Center Curve, Eagan, MN 55121 (for relator City of Farmington)
Robert J. Hajek, Warchol, Berndt & Hajek, 3433 Broadway Street Northeast, Suite 110, Minneapolis, MN 55413 (for relator 210th Street group)
Wagenius, Public and Human Resources Section, Attorney General’s Office,
Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Huspeni, Judge.*
U N P U B L I S H E D O P I N I O N
On April 30, 2004, Great River Energy (GRE) and Xcel Energy(Xcel) applied to the Minnesota Environmental Quality Board(MEQB) under the alternative permitting process, Minn. Stat. § 116C.575 (2004), for a permit to construct a high-voltage transmission line (HVTL)to connect the Air Lake substation in Lakeville to a proposed Vermillion River substation in Farmington and continue on to the Empire substation in Empire Township.
portion of the HVTL, from the
On May 7, 2004, the MEQB accepted the route-permit application. On May 13, 14, and 15, 2004, GRE and Xcel published notice of the application in the Farmington Independent, the Rosemount Town Pages, and This Week newspapers. The notice told citizens how to get on the MEQB mailing list. On June 3, 2004, notice of a June 24, 2004 public meeting was mailed to individuals on the mailing list. On June 10, 2004, notice of the meeting was published in the Farmington Independent. The public meeting was held on June 24, 2004, and July 9, 2004, was set as the deadline for the public to submit written comments to the MEQB.
After considering the information received at the public meeting and the written comments submitted by the public, the MEQB made its scoping decision on July 23, 2004. The scoping document indicates that MEQB staff members were to perform an environmental assessment for the proposed route and for a number of alternative routes suggested by citizens. The environmental assessment was completed September 27, 2004. On September 28, 2004, notice of an October 11, 2004 public hearing was mailed to those on the mailing list; and on September 30, 2004, notice of the hearing was published in the Farmington Independent.
On October 11,
2004, a public hearing was held before an administrative law judge (ALJ). At the hearing, members of the public testified
regarding their concerns and asked questions of the MEQB staff and GRE
representatives. The ALJ set November 1,
2004, as the deadline for written submissions and November 8, 2004, as the
deadline for responses to the submissions.
On December 13, 2004, the ALJ issued his report and recommendation. After evaluating the alternative routes, the
ALJ recommended proceeding from the
the city’s request that the HVTL not pass through the city center, the ALJ’s
recommended route through the city was modified to run along
At the MEQB
meeting on February 17, 2005, the city and the
The city and the
D E C I S I O N
In a judicial review [of an agency decision in a contested case], the court may affirm the decision of the agency or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the petitioners may have been prejudiced because the administrative finding, inferences, conclusion, or decision are:
(a) in violation of constitutional provisions; or
(b) in excess of the statutory authority or jurisdiction of the agency; or
(c) made upon unlawful procedure; or
(d) affected by other error of law; or
(e) unsupported by substantial evidence in view of the entire record as submitted; or
(f) arbitrary or capricious.
evidence test requires a reviewing court to evaluate the evidence relied upon
by the agency in view of the entire record as submitted. If an administrative agency engages in
reasoned decisionmaking, the court will affirm, even though it may have reached
a different conclusion had it been the factfinder.” Cable
Commc’ns Bd. v. Nor-West Cable Commc’ns P’ship, 356 N.W.2d 658, 668-69 (
Upon review, a
court must exercise judicial restraint, lest it substitute its judgment for
that of the agency.
The city argues that (a) the MEQB’s decision to grant a permit to construct the HVTL along the south route through the city is not supported by substantial evidence; and (b) the MEQB violated due process by failing to adequately notify affected landowners.
(a) Substantial evidence
Minn. Stat. § 116C.57 (2004), which governs the HVTL route-permitting process, identifies factors that the MEQB is to consider when permitting a route. Minn. Stat. § 116C.57, subd. 4 (2004), states:
The board’s site and route permit determinations must be guided by the state’s goals to conserve resources, minimize environmental impacts, minimize human settlement and other land use conflicts, and ensure the state’s electric energy security through efficient, cost-effective power supply and electric transmission infrastructure. To facilitate the study, research, evaluation and designation of sites and routes, the board shall be guided by, but not limited to, the following considerations:
(1) Evaluation of research and investigations relating to the effects on land, water and air resources of large electric power generating plants and high voltage transmission lines, and the effects of water and air discharges and electric and magnetic fields resulting from such facilities on public health and welfare, vegetation, animals, materials and aesthetic values, including baseline studies, predictive modeling, and evaluation of new or improved methods for minimizing adverse impacts of water and air discharges and other matters pertaining to the effects of power plants on the water and air environment;
(2) Environmental evaluation of sites and routes proposed for future development and expansion and their relationship to the land, water, air and human resources of the state;
(3) Evaluation of the effects of new electric power generation and transmission technologies and systems related to power plants designed to minimize adverse environmental effects;
(4) Evaluation of the potential for beneficial uses of waste energy from proposed large electric power generating plants;
(5) Analysis of the direct and indirect economic impact of proposed sites and routes including, but not limited to, productive agricultural land lost or impaired;
(6) Evaluation of adverse direct and indirect environmental effects that cannot be avoided should the proposed site and route be accepted;
(7) Evaluation of alternatives to the applicant’s proposed site or route proposed pursuant to subdivisions 1 and 2;
(8) Evaluation of potential routes that would use or parallel existing railroad and highway rights-of-way;
(9) Evaluation of governmental survey lines and other natural division lines of agricultural land so as to minimize interference with agricultural operations;
(10) Evaluation of the future needs for additional high voltage transmission lines in the same general area as any proposed route, and the advisability of ordering the construction of structures capable of expansion in transmission capacity through multiple circuiting or design modifications;
(11) Evaluation of irreversible and irretrievable commitments of resources should the proposed site or route be approved; and
(12) When appropriate, consideration of problems raised by other state and federal agencies and local entities.
R. 4400.3150 (2005) also identifies factors that the MEQB is to consider when
permitting an HVTL route.
In determining whether to issue a permit for a large electric power generating plant or a high voltage transmission line, the board shall consider the following:
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. effects on archaeological and historic resources;
E. effects on the natural environment, including effects on air and water quality resources and flora and fauna;
F. effects on rare and unique natural resources;
G. application of design options that maximize energy efficiencies, mitigate adverse environmental effects, and could accommodate expansion of transmission or generating capacity;
H. use or paralleling of existing rights-of-way, survey lines, natural division lines, and agricultural field boundaries;
J. use of existing transportation, pipeline, and electrical transmission systems or rights-of-way;
K. electrical system reliability;
L. costs of constructing, operating, and maintaining the facility which are dependent on design and route;
M. adverse human and natural environmental effects which cannot be avoided; and
N. irreversible and irretrievable commitments of resources.
permit-application process, landowners north of the city opposed the route originally
proposed in the application (the north route) and the city opposed the
alternative route through
evidence means “(1) such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion; (2) more than a scintilla of evidence; (3)
more than some evidence; (4) more than any evidence; or (5) evidence considered
in its entirety.”
city first alleges that the MEQB failed to properly consider the effects on
land, water, and air resources as evidenced by the massive tree removal that
will occur in
With respect to
the city’s argument that the south route does not follow a pre-existing route,
it is true that the Minnesota Supreme Court has concluded “that in order to
make the route-selection process comport with Minnesota’s commitment to the
principle of nonproliferation, the [Minnesota Environmental Quality Council] must, as
a matter of law, choose a pre-existing route unless there are extremely strong
reasons not to do so.” People for Envtl. Enlightenment &
Responsibility (PEER), Inc. v.
The city’s argument regarding the effects on human settlement is based on the number of people that the city claims will be affected by the south route. But this argument was countered by two property owners along the north route who indicated their intentions to convert their land to residential developments and argued that the north route would have a large impact on those developments. And although one of the landowners later indicated that he did not intend to develop the land, the land is being used for agricultural purposes, and Minn. Stat. § 116C.57, subd. 4(5), (9), requires the MEQB to consider the direct and indirect economic impact of productive agricultural land lost or impaired and evaluate governmental survey lines and other natural division lines of agricultural land to minimize interference with agricultural operations.
The city’s final argument is that the cost analysis that the MEQB relied on was not supported by substantial evidence. But several cost analyses were introduced into the record, and there is no evidence that the MEQB failed to consider any of them. If the MEQB found one cost analysis more credible than another, this court must defer to that determination. See Cooper, 455 N.W.2d at 83-84 (explaining that this court must defer to fact-finder’s credibility determination). It is true that GRE’s cost estimates changed from early estimates that indicated that the north route was less expensive, to later estimates that indicated that the south route was less expensive, which, the city suggests, indicates that GRE amended its cost estimates at the last minute to support the south route. But the evidence that the city cites to support this inference was available to the MEQB, and the MEQB could evaluate GRE’s estimates knowing that the estimates had changed during the proceeding. The mere fact that the estimates changed is not a sufficient basis for this court to conclude that the MEQB could not find the estimates credible.
In this case, one route was not obviously superior to the others. As the city’s representative stated:
[W]hen [the ALJ] issued his opinion he made a reference in his memorandum to the fact that as far as the two routes through the city are concerned there was not one route that was clearly superior to another. It wasn’t a 90/10, an 80/20 type of decision. It was probably more like a 51/49.
. . . [T]here is no substantially superior considerations related to either route.
The record demonstrates that after considering the relevant factors, the MEQB engaged in reasoned decisionmaking and determined that the south route was preferable to the north route. The MEQB also articulated rational connections between the information presented to it, the facts it found based on that information, and its decision.
(b) Due process
The city argues that the issuance of the permit violates due process because certain affected residents along Pine Street were not notified or afforded an opportunity to be heard before the segment on Pine Street was added to the route and because the updated cost estimates were issued too late in the process to give the city adequate time to respond.
§ 116C.57, subd. 2b (2004), contains specific requirements for who must
receive notice of a route-permit application, when they must receive notice,
and the form of the notice. The statute
requires that notice of the application be published in a legal newspaper of
general circulation and that notice be mailed to municipalities along the
route, property owners whose property is along the route, and to those persons
who have requested to be placed on a list maintained by the MEQB.
The record demonstrates that at each stage of the proceeding, notice was mailed and published as required under the statute, and the city has not identified any person who was entitled to receive notice that did not receive notice or produced evidence that the MEQB did not make a bona fide attempt to comply with the statutory notice requirements. Finally, the city’s argument regarding lack of time to respond to the updated cost estimates is not persuasive. The city was involved at every stage of the proceeding and disputed the updated cost estimates. The city has not established any due-process violation.
Citing Johnson v. Comm’r of Health, 671 N.W.2d 921 (Minn. App. 2003), the 210th Street group argues that the MEQB
failed to provide evidence that it considered all of the statutory factors that
it was required to consider with respect to the permit application. In Johnson,
this court explained that when an agency is required to consider statutory
factors when making a decision, the agency is “obliged not only to consider the
statutory factors but to indicate that they [have] been considered.” 671 N.W.2d at 923. This court noted in Johnson that there was no evidence that the agency considered
information pertaining to five of eight applicable statutory factors and
concluded that it could not sustain the agency’s decision “[a]bsent written
findings and reasons, and provided only with a conclusory explanation of the
application of three of the eight factors.”
The MEQB’s decision is
significantly different from the agency decision in Johnson. With a minor
amendment, the MEQB adopted the ALJ’s summary of evidence, which quotes both
Minn. Stat. § 116C.57, subd. 4, and
The extensive record demonstrates that the MEQB thoroughly considered all proposed routes and all applicable statutory and rule factors and made a reasoned decision that is supported by an articulated, rational connection between the facts found and the choice made.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
When the MEQB was created by statute in 1973, the
agency was named the Minnesota Environmental Quality Council. In 1975, the legislature changed the name of
the agency to the Minnesota Environmental Quality Board. People
for Envtl. Enlightenment & Responsibility, (PEER) Inc. v.