The Minnesota Court of Appeals yesterday decided a utilities-regulation case arising on administrative review involving a natural gas resource—a 525 MW natural-gas combined-cycle power plant in Superior, Wisconsin (at the far west end of Lake Superior, across the St. Louis River from Duluth, Minnesota), known as the Nemadji Trail Energy Center (NTEC).
Minnesota Power and a Wisconsin firm, South Shore Energy, LLC, propose to build the plant and to buy (for re-sale) half its power output. Minnesota law requires a permit from the State’s Public Utility Commission under a process governed by a “public interest” standard.
Environmental extremist opponents of the plant challenged the permit application on grounds that investment in renewable energy sources would better serve the public interest than would this fossil fuel project. The Commission conducted hearings and decided the matter in favor of Minnesota Power. An appeal of the Commission’s decision was taken to the Minnesota Court of Appeals and was decided yesterday. A copy of the court’s slip opinion, entered by a unanimous three-judge panel, is attached as a pdf file.
The court held:
The record … supports the conclusion that NTEC serves the public interest better than renewable-resource alternatives. As discussed above, Minnesota Power and the department offered extensive evidence and analyses showing that the transition away from coal and toward intermittent renewable resources impairs reliability and could increase reliance on energy markets, thereby increasing costs. Their analyses also demonstrated that NTEC addresses these concerns, providing a more reliable and lower cost (including environmental costs) source of energy than the equivalent renewable resources.
In short, the court found that, given the current state of the relevant science and technology, generation of power by natural gas provides “a more reliable and lower cost (including environmental costs) source of energy than the equivalent renewable resources.” (Emphasis added.)
The evidence that drove the decision included expert testimony to the effect that “wind and solar capacity does not always translate into available energy because those resources are unpredictable and uncontrollable—the wind is not always blowing, and the sun is not always shining.” The evidence further explored the consequences of those facts about wind and solar sources, including the economic and social injuries inflicted by their unreliability and the environmental damage that can be caused by short-term fixes often needed to replace them during their intermittent periods of insufficiency.
I am dismayed by one thing about the decision. The court that decided it designated it as “non-precedential”, meaning that, under Minnesota’s rules governing civil litigation, the decision may not be cited in other cases in Minnesota. (That doesn’t mean, however, that it cannot be cited and thoroughly discussed outside of Minnesota court documents, such as in newspapers and scholarly literature.)
Rules providing for designation of some decisions, at the discretion of the deciding court, as “non-precedential”, I find particularly annoying. Such rules have proliferated in recent decades among American and other common law court systems.
In my view, a court does not have any particular insight into whether or not its work product has value beyond the four-corners of the case it has decided, or whether or not it deserves broader scrutiny.
The two justifications traditionally offered for such rules have been (a) the decision breaks no new ground and (b) the printed law books are falling off the shelves and printed pages should not be taken up with doctrinal redundancy.
My rejoinders are (a) the deciding court cannot always tell when a nuance in its decision moves the needle of legal doctrine and, besides, it’s often helpful to cite consistency in the interpretation and application of a rule, especially when, at some unknown future time, it is challenged; and (b) more and more law publishing is migrating to digital media, and there is less and less competition for shelf-feet in law libraries.
In any event, yesterday’s Minnesota appellate decision is a triumph for common sense and for science over politics-masquerading-as science.
Joseph A. Morris is a partner at the law firm of Morris & De La Rosa and is the chairman of The Heartland Institute Board of Directors.
