People for Environmental Enlightenment & Responsibility (PEER), Inc. v. Minnesota Environmental Quality Council

• Decision Date: 07 April 1978
• Docket Number: No. 47911,47911
• Citation: 266 N.W.2d 858
• Parties: , 8 Envtl. L. Rep. 20,630 PEOPLE FOR ENVIRONMENTAL ENLIGHTENMENT AND RESPONSIBILITY (PEER), INC., et al., petitioners, Appellants, v. MINNESOTA ENVIRONMENTAL QUALITY COUNCIL, etc., Respondent, Northern States Power Company, Respondent.
• Court: Minnesota Supreme Court

Page 858

266 N.W.2d 858

11 ERC 1481, 8 Envtl. L. Rep. 20,630

PEOPLE FOR ENVIRONMENTAL ENLIGHTENMENT AND RESPONSIBILITY (PEER), INC., et al., petitioners, Appellants, v. MINNESOTA ENVIRONMENTAL QUALITY COUNCIL, etc., Respondent Northern States Power Company, Respondent.

No. 47911.

Supreme Court of Minnesota.

April 7, 1978.

Rehearing Denied May 10, 1978.

Syllabus by the Court

1. Administrative decisions on the routing of high voltage transmission lines are subject to the provisions of the Minnesota Environmental Rights Act (Minn.St. c. 116B) as well as to other applicable environmental legislation.

2. Minnesota's commitment to the principle of nonproliferation, together with the fact that Route 3 is a prudent and feasible alternative to Route 7 whose choice would result in impairment, pollution, or destruction of a lake and woods, both of which are protectible natural resources within the meaning of the Minnesota Environmental Policy Act, ordinarily would compel the Minnesota Environmental Quality Council to choose Route 3, an existing high-voltage-transmission-line route, over Route 7.

3. Since the Power Plant Siting Act, Minn.St. 116C.51 to 116C.69, requires the identification of more than one form of noncompensable intrusion before the balancing process can be utilized, only if homeowners along a proposed route can demonstrate that their homes have unique characteristics for which they cannot be adequately compensated will the taking of their homes be considered noncompensable loss within the meaning of "human impact" intended by the legislature which will permit the agency to balance one route's impact on "human settlement" against the other's impact on protected natural resources in reaching its final decision.

4. The environmental impact statement required by the Minnesota Environmental Policy Act, Minn.St. c. 116D, must provide detailed information on all routes to be evaluated in order for it to play its proper role in the decisionmaking process.

5. In administrative proceedings to establish a route for a high voltage transmission line, the findings of fact must be specific enough to permit judicial review.

6. Persons seeking judicial review of agency decisionmaking may inquire through discovery whether the agency adhered to statutorily defined proceedings and to the rules and regulations promulgated by the agency that enter into the decisionmaking process.

Peter S. Popovich, St. Paul, Broeker, Hartfeldt, Hedges & Grant, Will Hartfeldt, and Eleni P. Skevas, Minneapolis, for appellants.

Warren Spannaus, Atty. Gen., Richard B. Allyn, Sol. Gen., Stephen Shakman, William E. Dorigan and Donald A. Kannas, Sp. Asst. Attys. Gen., St. Paul, for Mn. Env. Qual. Council.

Ralph S. Towler, Minneapolis, for No. St. Power.

Popham, Haik, Schnobrich, Kaufman & Doty, Raymond A. Haik, and Gary R. Macomber, Minneapolis, for NSP & Mn. Power & Light.

Considered and decided by the court en banc.

SHERAN, Chief Justice.

This appeal was taken from a district court judgment affirming the issuance by respondent Minnesota Environmental Quality Council (MEQC) ¹ of a construction permit for a high voltage transmission line (HVTL) between the Twin Cities' metropolitan area and Forbes, Minnesota, pursuant to its authority under the Power Plant Siting Act (PPSA), Minn.St. 116C.51 to 116C.69, and rejecting appellants' challenge to a 5 1/2-mile segment of the proposed route from node 2 to node 8A in Washington County known as Route 7. We remand to the district court to refer the case to the Appellants are a number of individuals and a nonprofit corporation of approximately 65 members, most of whom live on or adjacent to proposed Route 7. At the time it intervened in the administrative proceeding, ² People for Environmental Enlightenment and Responsibility (PEER) was an unincorporated association of approximately 35 members, all of whom would be affected by the existence of an HVTL on proposed Route 7. Prior to its appeal to the district court, PEER became a nonprofit corporation with a membership of 65 whose purposes included protection of the Washington County environment from the proliferation of powerline routes.

MEQC for further proceedings consistent with this opinion.

Respondents in this action include the MEQC, which issued the construction permit, and Northern States Power Company (NSP) and Minnesota Power & Light Company (MP&L), ³ two Minnesota corporations. NSP and MP&L are investor-owned utilities. They jointly sought permission from the MEQC to construct this HVTL, and they will share in the ownership and responsibility for it and associated facilities.

On January 20, 1975, pursuant to § 116C.57, NSP and MP&L jointly applied to the MEQC for a corridor designation and a certificate of corridor compatability for a single-circuit 500-kV HVTL from just south of Cromwell, in Carlton County, to a proposed substation in Chisago County and for a double-circuit 345-kV HVTL from the Chisago City substation to the Twin Cities' metropolitan area. The entire project planned by the applicants is greater than the requested HVTL and envisions the eventual construction of an HVTL system north to the Canadian border. The purpose of the larger project is to permit the sale of electricity between Manitoba Hydro, a Canadian utility, and NSP and between MP&L and NSP. The MEQC appointed a hearing examiner who held four public hearings on the application, and on July 18, 1975, it accepted his findings of fact, conclusions and recommendations and issued a certificate of corridor compatability.

On February 10, 1976, pursuant to § 116C.57, subd. 2, the MEQC received an application from NSP and MP&L for the selection of a specific route within the designated corridor and for the issuance of a construction permit. The MEQC then established a Citizen's Route Evaluation Committee and ordered its Power Plant Siting Staff to prepare a draft environmental impact statement (EIS).

In the southern portion of the corridor in which the 345-kV HVTL was to be constructed, the applicants expressed their preference for Route 3 and also suggested four alternative segments. They favored Route 3 because it contained an existing HVTL, on the theory that it is less environmentally damaging to construct transmission lines in close proximity than to spread them out over the entire landscape.

On the basis of their application, a draft EIS was written sometime prior to April 2, 1976. The review period for this draft was between April 2, 1976, and May 17, 1976, after which the EIS was evaluated in light of whatever citizen input had occurred. On June 10, 1976, the final EIS was sent to the MEQC.

Simultaneously with the drafting and review of the EIS, the Citizen's Route Evaluation Committee held hearings on proposed routes. On April 13, 1976, it reported to the MEQC and recommended the addition of Routes 6 and 7 for consideration at the public hearings to be conducted by the hearing examiner, William Seltzer. The MEQC added Route 7 to the five proposed The public hearings on the candidate routes began on April 15, 1976. Six hearings were held in the 4 counties that would be affected by the double-circuit 345-kV HVTL. It quickly became apparent that three routes Route 1, the freeway route; Route 3, the 230-kV route; and Route 7, the airport route were the most viable alternatives, and the majority of the evidence submitted concerned them. Route 3 was the route preferred by the utilities and by PEER, the Siting Staff of the MEQC recommended Route 7, while the Citizen's Route Evaluation Committee made a split recommendation in which both Route 1 and Route 7 received 5 first-preference votes. The record of the public hearings was closed on June 23, 1976, and on July 12, 1976, the hearing examiner submitted his findings of fact, conclusions and recommendations. After stressing the subjective nature of the route-evaluation process and the need to balance "the interests of those directly impacted, the interest of the body politic in the protection and preservation of the environment and other natural resources, the efficient use of resources while * * * insuring that electric energy needs are met and fulfilled in an orderly and timely fashion," all of which was adopted verbatim by the MEQC, ⁵ the hearing examiner recommended the selection of Route 7 rather than the existing powerline corridor known as Route 3 or the existing powerline and transportation corridor known as Route 1.

by the utilities. The additional route, however, was not evaluated in the draft EIS. ⁴

On August 4, 1976, PEER served each MEQC member with a pleading in intervention alleging that construction of the proposed HVTL along Route 7 would impair, pollute, and destroy Long Lake, a 49-acre lake that is used by persons for recreation and by wild ducks and other waterfowl as a natural flyway and brood area, as well as a 130-acre virgin oak woods containing some trees thought to be over 100 years old, both of which are natural resources protected by the Minnesota Environmental Rights Act (MERA), Minn.St. c. 116B. At its meeting of the same date, the MEQC permitted representatives of citizens groups to give limited testimony concerning the routes under consideration. Although Messrs. Herbst, Marzitelli, and Ohman expressed their concern over the proliferation of routes which would result from the MEQC's acceptance of the hearing examiner's recommendation and suggested that such proliferation was inconsistent with long-term land use planning, the MEQC voted 7 to 3 to adopt the hearing examiner's report.

On October 1, 1976, PEER appealed the MEQC decision to district court pursuant to Minn.St. 116B.09, subd. 3, and 116C.65, alleging the same impairment, pollution, and destruction of natural resources that it had delineated in its pleading in intervention. After receiving written briefs and hearing oral arguments, the court affirmed the MEQC decision to permit construction along Route 7 on...