No Power Line, Inc. v. Minnesota Environmental Quality Council

• Citation: 262 N.W.2d 312
• Decision Date: 30 September 1977
• Docket Number: Nos. 48014,48036 and 48043,s. 48014
• Parties: , 8 Envtl. L. Rep. 20,310 NO POWER LINE, INC. (NPL), Save Our Countryside, Inc. (SOC), and Preserve Grant County (PGC), Appellants, v. The MINNESOTA ENVIRONMENTAL QUALITY COUNCIL, Respondent, and NO POWER LINE, INC. (NPL), Save Our Countryside, Inc. (SOC), and Preserve Grant County (PGC), Appellants, and Families Are Concerned Too, Inc., (FACT), Intervenors-Appellants, v. The MINNESOTA ENVIRONMENTAL QUALITY COUNCIL, Respondent, and Virgil Herman FUCHS, Individually, and on behalf of Counties United for Rural Environment, Inc., aka CURE and all other interested parties, petitioners, Appellants, v. The STATE of Minnesota and the Minnesota Environmental Quality Council, an Administrative Agency aka MEQC, Respondents. and Russell SCHMIDT, Individually, and on behalf of CURE, Inc., and all other interested persons similarly situated, Appellants, v. The STATE of Minnesota, The Minnesota Environmental Quality Council, a State Administrative Agency, United Power Association and Cooperative Power Association, Respondents. and COUNTIES UNITED FOR RURAL ENVIRONMENT (CURE), Appellant, v. MINNESOTA ENERGY AGENCY, Respondent, and STATE of Minnesota By FAMILIES ARE CONCERNED TOO, INC., a Minnesota non-profit corporation, (48043), Appellants, and Families Are Concerned Too, Inc., a Minnesota non-profit corporation, in its own name, Appellant, v. UNITED POWER ASSOCIATION, a Minnesota Corporation Association; Cooperative Power Association, a Minnesota Cooperative Association; The Minnesota Environmental Quality Council, an Agency of the State of Minnesota; and the Minnesota Energy Agency, an Agency of the State of Minnesota, Respondents, and In the Matter of the Application by Cooperative Power Association and United Power Association for a Construction Permit for a High Voltage Transmission Line and Associated Facilities. Traverse Air, Inc., Appellant-below.
• Court: Supreme Court of Minnesota (US)

Page 312

262 N.W.2d 312

11 ERC 1001, 8 Envtl. L. Rep. 20,310

NO POWER LINE, INC. (NPL), Save Our Countryside, Inc. (SOC), and Preserve Grant County (PGC), Appellants, v. The MINNESOTA ENVIRONMENTAL QUALITY COUNCIL, Respondent, and NO POWER LINE, INC. (NPL), Save Our Countryside, Inc. (SOC), and Preserve Grant County (PGC), Appellants, and Families Are Concerned Too, Inc., (FACT), Intervenors-Appellants, v. The MINNESOTA ENVIRONMENTAL QUALITY COUNCIL, Respondent, and Virgil Herman FUCHS, Individually, and on behalf of Counties

United for Rural Environment, Inc., aka CURE and all other interested parties, petitioners, Appellants, v. The STATE of Minnesota and the Minnesota Environmental

Quality Council, an Administrative Agency aka

MEQC, Respondents.

and

Russell SCHMIDT, Individually, and on behalf of CURE, Inc.,

and all other interested persons similarly

situated, Appellants, v. The STATE of Minnesota, The Minnesota Environmental Quality

Council, a State Administrative Agency, United

Power Association and Cooperative Power

Association, Respondents.

and

COUNTIES UNITED FOR RURAL ENVIRONMENT (CURE), Appellant, v. MINNESOTA ENERGY AGENCY, Respondent, and STATE of Minnesota By FAMILIES ARE CONCERNED TOO, INC., a

Minnesota non-profit corporation, (48043), Appellants,

and

Families Are Concerned Too, Inc., a Minnesota non-profit

corporation, in its own name, Appellant, v. UNITED POWER ASSOCIATION, a Minnesota Corporation

Association; Cooperative Power Association, a Minnesota

Cooperative Association; The Minnesota Environmental Quality

Council, an Agency of the State of Minnesota; and the

Minnesota Energy Agency, an Agency of the State of

Minnesota, Respondents,

and

In the Matter of the Application by Cooperative Power

Association and United Power Association for a

Construction Permit for a High Voltage

Transmission Line and

Associated Facilities.

Traverse Air, Inc., Appellant-below.

Nos. 48014, 48036 and 48043.

Supreme Court of Minnesota.

Sept. 30, 1977.

Syllabus by the Court

1. Minn.St. 1976, § 116C.67, authorizes the Minnesota Environmental Quality Council to accept jurisdiction over the construction of high-voltage transmission lines when the public utilities involved submit to such jurisdiction, even though the utilities initially claimed successfully that they were not subject to the act because construction had commenced prior to July 1, 1974.

2. The administrative proceedings in this case, which resulted in the designation of a high-voltage transmission line corridor, the designation of a route within that corridor, and the issuance of a construction permit and a certificate of need for the high-voltage transmission line, have not been demonstrated to be contrary to law or lacking in requisite factual support.

3. When the established level of source pollution of ozone which would be caused by the presence of a power line is minimal, the likelihood that this contribution will increase the ambient air levels above permissible maximums is remote, and the continuing authority of the Minnesota Environmental Quality Council to prohibit source emissions is extensive, denial of a construction permit, solely because of violations of ambient air quality standards, would be without reasonable justification.

4. Minnesota statutes requiring that an official record of administrative proceedings be maintained to facilitate judicial review (Minn.St. 15.0418, 15.0424, 116C.06, 116C.60) do not compel reversal of orders of an administrative agency, in the absence of proof of prejudice from the claimed deficiencies of the record.

5. The claims of appellant landowners that administrative proceedings were made fatally defective by the absence of indispensable parties and the participation as a witness of one who had past connections with one of the parties are held to be without merit.

6. The authority to regulate high-voltage transmission lines delegated to the Minnesota Environmental Quality Council and the Minnesota Energy Agency does not offend constitutional limitations upon the delegation of legislative authority merely because the legislature has not required that a specific finding be made on the probable cost of a proposed project.

7. The Minnesota Supreme Court has inherent power to order a stay of proceedings before it without the necessity of a supersedeas bond, but the authority should be exercised sparingly and only if its use is in the public interest because of the unique circumstances of a particular case.

8. When land is taken for public use, the damage award should be subjected to close judicial scrutiny to assure compliance with Minn.Const. art. 13, § 4, which provides that "a fair and equitable compensation shall be paid for land and for the damages arising from taking it."

George Duranske, Bemidji, for appellants.

David A. Grant and Eleni P. Skevas, Minneapolis, for FACT.

Norton M. Hatlie, Navarre, for Virgil Fuchs et al.

Warren Spannaus, Atty. Gen., Stephen Shakman, Donald A. Kannas and William E. Dorigan, Sp. Asst. Attys. Gen., St. Paul, for State et al.

Dwight Wagenius, Sp. Asst. Atty. Gen., St. Paul, for Minn. Energy Agency.

Roger Miller, South St. Paul, for United Power Assn.

John Drawz, Minneapolis, for Cooperative Power Assn.

Roger Nierengarten, St. Cloud, Lindquist & Vennum, Edward J. Parker, Minneapolis, for intervening farmers in Traverse and Grant Counties.

Thomas C. Athens, Wheaton, for Traverse Air, Inc.

Considered and decided by the court en banc.

SHERAN, Chief Justice.

Appellants ¹ appeal from the final orders of a specially appointed three-judge district court panel ² composed of Judge Ronald E. Hachey of St. Paul, Judge Charles W. Kennedy of Wadena, and Judge Thomas J. Stahler of Morris affirming decisions of the Minnesota Environmental Quality Council (MEQC) ³ and the Minnesota Energy Agency (MEA) approving the joint construction by Cooperative Power Association (CPA) and United Power Association (UPA) of a high-voltage transmission line (HVTL) from the North Dakota border to Coon Rapids, Minnesota. The panel held that MEQC's designation of a corridor for the HVTL, ⁴ the later designation of a route within that corridor, ⁵ and the issuance of a construction permit ⁶ as well as MEA's grant of a certificate of need ⁷ for the HVTL were "proper and substantially supported by evidence in the record." The panel rejected the claim that MEQC and MEA had violated the Minnesota Environmental Policy Act (MEPA) ⁸ and denied appellants' requests to introduce additional testimony and to remand the proceedings to MEQC and MEA. As part of its orders the panel also issued a 10-day stay which was extended by this court until August 25, 1977, the day on which oral arguments were to be presented to the supreme court sitting en banc.

Appellants are a number of farmer-citizen organizations formed over the past few years in response to the proposal by CPA/UPA to construct a HVTL across this part of Minnesota. No Power Line, Inc. (NPL), Save Our Countryside, Inc. (SOC), and Families Are Concerned Too, Inc. (FACT) are Minnesota nonprofit corporations with a joint membership of over 200 citizens residing primarily in Grant, Douglas, and Pope Counties. Preserve Grant County (PGC) is a noncorporate association with approximately 40 members, most of whom reside in Grant County. Most of the members of these organizations allegedly are landowners who own property in the corridor designated for the proposed HVTL. During the pendency of the administrative hearings, NPL was a member of Counties United for Rural Environment (CURE), which participated through counsel in all the proceedings, but NPL has partially separated itself from CURE for purposes of this appeal. The members of FACT include many current and former members of the other organizations, and, although FACT was incorporated just prior to the consolidation of the appeals to the district court panel, its members allegedly participated in the various public hearings held throughout the affected counties through which the HVTL is routed.

Respondents CPA and UPA are wholesale suppliers of electric power and energy. CPA is composed of 19 rural cooperatives and UPA of 15; together they provide service to approximately 250,000 accounts in Minnesota and to three Wisconsin counties. In 1973, they agreed to construct an electric generating plant and conversion facility ⁹ in North Dakota, approximately 427 miles (of which about 172 miles will lie in Minnesota) of 400 Kilovolt (kv) dc HVTL from the Coal Creek Station in North Dakota to a conversion facility in Wright County, and approximately 28 miles of 345 kv ac double circuit HVTL from there to a CPA/UPA facility in Coon Rapids, Anoka County.

Prior to May 24, 1973, the effective date of the Power Plant Siting Act (PPSA), ¹⁰ the location and construction of electrical transmission lines were not regulated on a statewide basis. Instead, a public utility that wished to construct a power line had to secure permits from the local authorities of the counties and municipalities through which it proposed to locate its facilities. In an attempt to ensure that the future development of power generating plants and high-voltage transmission lines in the state would proceed in an orderly and rational fashion ¹¹ and to guarantee wide-ranging, continuous public participation, ¹² the legislature passed the PPSA. The legislature included a savings clause which exempted from the operation of the act those

" * * * high voltage transmission lines, the construction of which will commence prior to July 1, 1974; provided * * * that within 90 days following the date of enactment, the affected utility shall file with the council a written statement identifying such transmission lines, their planned location, and the estimated date for commencement of construction." ¹³

CPA and UPA initially availed themselves of the savings clause. On August 22, 1973, they notified MEQC by letter that they planned to construct...