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Kate Kahlert
Supervising Attorney
Minnesota Public Utilities Commission
121 7th Place E, Suite 350
St. Paul, Minnesota 55101-2147

RE: Minnesota Public Utilities Commission to Amend Rules Governing Certificates of Need and Site Permits for Large Electric Power Plans and High Voltage Transmission Line, and Notice Plan Filing Requirements

Dear Ms. Kahlert,

While I spoke at the ALJ Hearing, I am submitting my comments with additional concerns I witnessed during the Hearing. The irony of this Hearing being a microcosm of the failures we’ve experienced as “the public” with the PUC was not lost on me. And I am hopeful, after reading this, it will not be lost on you.

As a wheelchair user, I would hope that Judge Kimberly Middendorf would be better suited than most to understand the limitations that our systems create for some, and not others. Our systems are primarily designed for those who are white, housed, educated, and male… not those who are blind, deaf, or without good access to food, mobility, or medical care. Surely she sees more clearly than most, the changes happening? With more access being available today for those, not only in wheelchairs, but also those with other conditions of limitation in this system as it exists? Though injustice continues to abound.

What we need now is a focus on allowing those who are impacted to be able to speak to the things impacting them, which has been lacking for a plethora of reasons, notably, poor communications and practices by our State Agencies and Commissions, and a focused effort, it seems, on not including the voices of citizens.

Just as the State is providing more access to those who’ve been ignored in our day-to-day lives, we Climate Justice Advocates are seeking equal participation in the processes and policy-making as that given to Applicants and others, who find a much friendlier welcome by not only the Public Utilities Committee, but State Agencies across the board.

How many are surprised by the horrific results we’re seeing with water quality degradation, land-use favoring white and privileged places, and an inability to be prepared for the weather chaos – a result of the changes we’re making, often and usually, with regard to energy production?

In the ALJ Hearing, there were three objectives:
•     Does PUC have legal authority?
•     Has PUC fulfilled all relevant legal and procedural requirements?
•     Has NEED FOR and REASONABLENESS been assured? 

I’d answer that they have usurped their legal authority by not including voices they are required to hear, namely the voices from the Tribes of Minnesota. Perhaps the laws are written for them to proceed in all other veins, but this one, they cannot pretend they have heeded legally. And with regard to Need, we might consider the health of the planet as a Reasonable thing to protect? You know, since our very lives depend upon it? Just a thought…

During the ALJ Hearing, Susan Gretz noted, “We had many commenters express concern about the rules not addressing Climate Change, Greenhouse gasses, and environmental justice. The Briefing Papers recommend to the Commissioners, and again, they are the decision-makers, that the rules explicitly require consideration of these factors in several different places. So that is Staff’s recommendation to the Commission.”

She continued, “We also received many comments that the rules do not properly reflect tribal sovereignty and the need to consult with Tribes on these projects. Staff is also recommending in the briefing papers that the Commission be required to maintain a separate list of the eleven federally recognized Tribes … the purpose of this list is to provide notice of applications and to require the Commission to engage with Tribal governments in accordance with its Tribal Engagement and Consultation Policy.”

I’d ask: If the Commissioners haven’t adhered to date… and they have been asked to do so, including in their own policies, then WHY SHOULD WE BELIEVE they will do it if asked again? If having a policy that requires it allows the Commission to IGNORE SAID POLICY, then why should the public have any trust that this quasi-judicial body will be ADHERING to any NEW policy moving forward?

I’d further ask if this is something the Commission is being advised to do NEXT TIME??? Or are they being asked to revisit this decision itself? Are they just going to run with their near decade of work on this and pretend to include some indication of where they felt they DID engage with the Tribes and simply MOVE FORWARD? Or will the process be STOPPED and RE-DONE to INCLUDE the Tribal voice – as required by law and policy?

I ask because this is something we’ve seen over and over in the Line 3 opposition. We ask for consideration and the MPCA, DNR, USACE all say some form of: ‘Ah, Thanks for letting us know you’re interested! Next Time We WILL Consult with you! Pinky Promise!!’


Why should we trust that we will be given even an appearance of consideration?

Yet, still, I write to you today. Because what else can I do?

We’d like to see changes made with public engagement in our civic processes, a situation which has, via my experience in Minnesota, proven to be DIFFICULT, even in the best of circumstances.

Your own presentation of the Rulemaking Advisory Committee – a point of contention mentioned in many of the public comments shared at the December 6th Hearing – shows no Tribal representation and including mostly monied orgs and those hoping to profit from said rule changes:

Look who is MISSING on the Public Utilities Commission Rulemaking Advisory Committee… and who is included.


And most especially, where are the Tribes whose land upon which Minnesota was founded? They were Excluded from Participation. Never even notified?

The shame of our injustice toward Anishinaabeg continues to present day.

And this lack of public engagement was itself the focus on an audit process, for which we are still awaiting outcomes to provide remedy. I ask again: Is there any real interest in engaging us?

Or is this all simply a smokescreen to pretend our voices matter? Our only option remaining… to MAKE you SLOW DOWN and LISTEN by requesting a public hearing when the PUC wanted to rush these rules through without it? As my good friend from Fond du Lac keeps asking me, “How many times do we have to say ‘No’, huh?”

Bret Eknes, whose presentation was so garbled as to be unintelligible was again an example of how unimportant it appears to be to the PUC for the public to be informed, even during the actual process designed to bring better understanding, the ALJ Hearing.

Utter frustration filled me as I listened to this poorly done response to public concerns. An addition of 150+ pages of information… less than ONE BUSINESS DAY prior to this hearing??? We get a LARGE NEW ADDITION of data from Staff for consideration? {Note: Clearly stating in one instance that this information is “illustrative and not binding.” Well, of course! The PUC can do as it wishes, this seems to further indicate.}

Where were these recommendations during the development process? Why ONLY after dozens and dozens of citizens let the PUC know we’re watching… do we get any response? And perhaps this is just lip service, as this body seems want to do as it wishes… and continues to push the public from their processes, and seemingly from their consideration?

Save Matt perhaps, as one public speaker – Jaci, speaking for many of us – commented on Commissioner Schuerger’s courage to stand for the right decision on the Enbridge Line 3 project – the focus of my comments as it’s been the focus of my life for the last half dozen years. As is obvious in the graph below, Schuerger has been proven right, it seems, as the throughput on the Enbridge lines is on the decline as CJ Advocates suggested it would be. Throughput is not surpassing the capacity Enbridge had with OLD Line 3 in service… when all our forests and wetlands were intact across Northern Minnesota.

FERC Reported Data Q3-2021

So while I hadn’t planned to give comment, as I watched the time remaining in the hearing and knew we must give as much reason for our requests to STOP this rule change, ensure the voice of the Tribes and citizens was heard, and that the urgent factors of our rapidly changing world incorporated, I simply couldn’t NOT give testimony. This is what I shared:

Thank you for providing this venue for participation of the public voice in our state process. I recognize many of the voices speaking today as fellows who have struggled to get State Agencies to hear us, most especially the PUC, which for me has been over the last six years. The concern with the PUC’s seeming unwillingness historically to allow the public to participate in its decision-making was evident throughout the Line 3 hearings and the resulting OLA audit of their public engagement process as mentioned by others.

We all know that Applicants are going to present their projects in the best light and only provide as much information as demanded from them. In the case of the PUC on Line 3, we watched as Enbridge provided a SUPPLY forecast and the PUC inaccurately allowed that to meet their requirement to give Minnesota a DEMAND forecast for their product. As such, we now see a completed tar sands pipeline while we see no real increase in their use of the mainline system for more throughput than was already possible with the current system. So how many trees did Minnesota lose, how many more wetlands were degraded by the PUC’s illegal allowance of this project?

What we see now on the project corridor is a birthing of all the many concerns noted by the Tribes, Environmental Scientists, and Citizen Advocates like me. We now see Enbridge reducing the lifetime for their mainline system to a 2040 end date, notwithstanding their newest line – the Relocated and Expanded Line 3, which they note will have a 30-year lifetime.

So there might be consideration in the rule changes that eventually arise from this process to include some actions to hold Applicants accountable for their inaccurately or incompletely presented project details. This could give Minnesota more control over Applicants who are found to not have studied the environment in which they are looking to build… to a degree that would protect Minnesotans. In addition, it could include mitigation/amendments that might be considered as we face faster and faster changes to our climate with more and more extreme weather.

The comment by Kevin Pranis of LIUNA noted issues with “getting steel in the ground”. Yet, this is exactly the problem we had on the Line 3 project – where steel was pounded into the ground in violation of their construction permit, breaching an aquifer that continues to spill water into the environment threatening the biodiversity and the fen in Clearbrook.

Favoring the Applicant and their narrative IS NOT PROTECTING OUR ENVIRONMENT. We know from the experience with Enbridge and the PUC that the Applicant was consistently, and to the detriment of the state, given priority consideration with few challenges made to the Applicant regarding the very real concerns put forward by both the Tribes and Environmental Justice Advocates.

We now see in our environment with both the frac-outs into the Mississippi River at BOTH crossings as well as the aquifer breach in Clearbrook. It is clear that the Tribal Representatives, Scientists and Environmental Advocates were right about the risks to our land, air and water, yet we were not heeded by the PUC, as documented in the OLA report of their org and public engagement.

I’d ask for a TRUE assessment of the climate impacts and with a full and early inclusion of the Native Peoples of this land as their voices are critical to protecting our land, air and water. Thank you for your consideration.

After I spoke and comments were getting close to closing, my friend from Fond du Lac was working to be heard. We were grateful that the PUC allowed her comment. However, as she was known to be the last comment, and we’d heard throughout the hearing of the Native voice going unheeded being against the rule of law (Article VI of the Constitution) and Treaty obligations, and we had TWO HOURS REMAINING for the Hearing… still we listened to her be rushed from the stage so the hearing could end early.

Again I ask, does our shame know no bounds?

The new Netlfix movie, Don’t Look Up speaks to the inability of humanity to heed the voice of truth… our inability to face our own demise. Perhaps the PUC is simply a microcosm of what we’re seeing in the larger world. It would be nice to see a turning point here in Minnesota, as we stop the madness inflicted upon us by the corporate and monied interests and instead listen to the planet on which we depend… for all. We’re just about to run out of hopium that the powers that be will make decisions that favor humankind over dollars, the safety of our home over a few pieces of gold.

Please prove me wrong.

Please give hope that we will see a re-do of these rules, incorporating the voices that spoke out during the ALJ Hearing.

Please give reason for us to maintain expectation that our Commissions and Agencies are beginning to comprehend the need to LISTEN to the PEOPLE, incorporate the voices and minds of Minnesotans who care, and find a way forward that works for all, not just Applicants and those hoping to profit financially.

Thank you for your consideration.

Jami Gaither

1/3/22 Update:

I had written to Kate Kahlert hoping to see where we could view all the public comments, and mostly to assure my comments were visible as a friend recently had her comments kept hidden from the public by an agency… Here’s Kate’s response.

Hi Jami, thank you for you reaching out.
The Commission to decided to withdraw the proposed rule and to not go forward with the proposed rule changes. As a result, there are no open comment periods. If you want to see comments in the record, you can view them in the Commission’s electronic filing system using this link: https://www.edockets.state.mn.us/EFiling/edockets/searchDocuments.do?method=showeDocketsSearch&showEdocket=true
I hope this is helpful, but please let me know if you need anything else.
Thank you,

1/3/22 Response on seeking to view public comments on this Rule Change Proposal (Link modified)

So, did we win? The PUC doesn’t say WHY they withdrew their proposal… though I’m guessing it’s because…



Doesn’t say why… but they did pull them. Apparently before I sent my comments, though I got no notice?

1/4/22 Update: This from a friend:

In a 5-0 decision they voted to withdraw the rule completely and indicated that they do not intend to call for a rulemaking to fix the identified issues that the rulemaking was meant to correct (including the fact that the rules have been inconsistent with state statute since at least 2005) nor address any of the issues the commenters raised. This was in line with what PUC staff recommended in their briefing papers.

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