Legislative Auditor Report: PUC has done “poor job” in public engagement

Winona LaDuke: ‘PUC has a systemic blind spot in dealing with Native tribes’

Sierra Club: ‘A bad process leads to bad outcomes’

PUC: ‘Improved public engagement is a priority’

The Minnesota Office of Legislative Auditor released a report today critical of the Minnesota Public Utilities Commission (PUC) and its public engagement process. The PUC has done a “poor job” in helping the public engage in its complex review process, it said. Specifically, the PUC was “not adequately prepared” for engaging the public during the controversial Enbridge Line 3 pipeline hearings.

The report makes a number of recommendations, such as directing PUC leadership “to provide more oversight of the agency’s public participation processes” and to “better prepare for cases with significant public interest.” (Summary here.)

The 98-page report disappoints in one aspect: It fails to clearly call out that, at least in the case of the Line 3 hearings, the PUC’s public engagement failures focused on Line 3 opponents. The report doesn’t explicitly name staff bias as a problem that needs addressing, and it does.

File photo: Water Protectors turned their backs to the PUC, with messages pinned to their shirts.

The PUC regulates telecommunications and electric and natural gas utilities in Minnesota. It also reviews utility infrastructure proposals, such as Enbridge Line 3. Last year, the Minnesota Legislative Audit Commission selected the PUC’s public engagement process for a program audit, in part because of the public criticism the Commission received during its Line 3 hearings.

To be fair, the Auditor’s office said from the beginning that this review was about PUC’s public engagement in general, not about rehashing the Line 3 decision. Further, the Office was in a difficult position. Those opposed to Line 3 will challenge the PUC’s decisions in court, making the Auditor’s report a potential legal exhibit in the case.

The report includes 15 recommendations. Among them, they say the PUC should:

  • Regularly consult with each tribe.
  • Make its planning meetings more accessible and transparent to the public and ensure that its meeting notices comply with state law.
  • Include more and better information on its website to facilitate public participation.
  • Provide better information to the public about how its staff can support public participation.
  • Provide clearer guidance to staff about their responsibilities to ensure consistent treatment of the public.
A Block (Line 3) Party in front of the PUC offices showed strong opposition to the project.

In a 2018 blog — PUC staff oversteps authority, shows bias towards Line 3 resisters — Healing Minnesota Stories listed some of the PUC’s problematic treatment of Line 3 opponents.

The Auditor’s report backs up some of the complaints. On page 77, the report summarizes how PUC staff arbitrarily enforced ever-changing rules, and even asked police to evict people opposed to Line 3 for a perceived minor infraction.

The incident occurred in June 2018, during packed PUC hearings on Line 3. Some people had to watch remotely in overflow rooms. PUC staff instituted a ticketing system to allow people access to the main hearing room.

The PUC’s executive secretary told staff if they had any safety-related concerns that they should inform law enforcement. There was no guidance on on evicting participants.

PUC staff directed police to remove two individuals from the building, a Sierra Club staff member and an MN350 staff member. PUC staff acted on what it perceived to be ticket-rule violations, which shouldn’t have justified such drastic action.

Both of the evicted individuals were active participants in the process and shouldn’t have been removed. They weren’t even in the meeting, they were outside in the hallway.

One of the removed individuals had been listed in PUC files as a party representative for the intervenor, Northern Water Alliance of Minnesota, and had been granted a party badge. The other was also a party representative—the primary organizational contact for the outside counsel hired by the Sierra Club, another intervenor.

Staff alleged that the party representatives who were removed violated PUC’s ticket procedures because they were holding more than one ticket at a time. The individuals dispute this claim; they also say they were not told why they were removed. Regardless, as we noted earlier, the rule that staff allege was violated was not stated in any notice and did not relate to safety….

Prior to a PUC hearing, Winona LaDuke shows an invoice from the Creator to Enbridge for Line 3’s climate damage.

In another incident, PUC staff made up rules to limit the participation of Line 3 opponents who were an official part of the process. According to the report:

One of the parties, the Youth Climate Intervenors, was an unaffiliated group of 13 persons under the age of 25. The group was not represented by an attorney and had no paid staff. Rather, members of the group divvied up the responsibilities of intervening amongst themselves, with each becoming an expert on specific topics. They also recruited ten expert witnesses to volunteer their time. Because the group of 23 was allotted only five tickets, one of its leaders told us the group had to guess which issues the commissioners might discuss on a given day, and allot their tickets accordingly.

The report fails to mention a couple of key points. First, even if the other Youth Climate Intervenors got general admission tickets and were in the hearing room,  PUC staff wouldn’t let them testify. Most significantly, it was arbitrary. The PUC has no rule or law to justify the five-person restriction. Andy Pearson, an organizer with MN350, said the five-person rule doesn’t exist in law, was not disclosed in advance, and the PUC “never provided legal justification.”

Also missing from the report was an incident where a PUC staff member tried to bar Winona LaDuke of Honor the Earth from entering the main hearing room, even though her organization was a recognized intervenor. PUC staff said the room already was full. Sen. Patricia Torres Ray witnessed the incident and intervened to get LaDuke into the main hearing room.

These three examples all show bias, even hostility, towards people and groups opposed to Line 3. There’s no indication that similar bias was shown to intervenors, or members of the public, who attended in support of Line 3.

Winona LaDuke, co-founder and Executive Director of Honor the Earth, issued a statement today, saying: “The PUC has a systemic blind spot in dealing with Native tribes, especially around energy issues … We hope the PUC will adhere to much needed recommendations made by the state auditor.”

Sierra Club North Star Chapter Director Margaret Levin issued a statement today about the PUC report:

“A bad process leads to bad outcomes. It has long been clear that the PUC’s approval of Line 3 was based on faulty scientific analysis, and today’s report confirms that it was based on a faulty public process as well. This is just further evidence that this pipeline never should have been approved, and it is critical that Governor Walz do everything in his power to stop it once and for all.”

PUC Chair Katie Seiben

PUC provides a response to the Auditor’s findings in a report appendix. It said that earlier this year, the Commission “adopted a Tribal Engagement and Consultation Policy and appointed a tribal liaison to improve communication with tribal governments.”

It concludes:

More importantly, the Commission’s leadership has committed to providing more oversight of public participation in general, and particularly for cases that have a significant level of public interest. Leadership at the agency has changed significantly in recent years, including a new Commission Chair, a new Executive Secretary, a new General Counsel, a new Business Unit Manager, and, as noted above, shortly a new Assistant Executive Secretary. Improved public engagement is a priority for the new leadership team, and this report provides some important recommendations to incorporate into our ongoing efforts.

 

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