In Re Otter Tail Power Co. Ex Rel. Big Stone II

2008 SD 5, 744 N.W.2d 594, 38 Envtl. L. Rep. (Envtl. Law Inst.) 20026, 2008 S.D. LEXIS 5, 2008 WL 152779
CourtSouth Dakota Supreme Court
DecidedJanuary 16, 2008
Docket24485
StatusPublished
Cited by2 cases

This text of 2008 SD 5 (In Re Otter Tail Power Co. Ex Rel. Big Stone II) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Otter Tail Power Co. Ex Rel. Big Stone II, 2008 SD 5, 744 N.W.2d 594, 38 Envtl. L. Rep. (Envtl. Law Inst.) 20026, 2008 S.D. LEXIS 5, 2008 WL 152779 (S.D. 2008).

Opinion

KONENKAMP, Justice.

[¶ 1.] Otter Tail Power Company, on behalf of several utilities, applied for a permit to construct Big Stone II, a coal-fired energy conversion facility. Certain non-profit environmental organizations intervened to oppose the application. They asserted that the carbon dioxide (C02) emissions from Big Stone II would contribute to global warming, thereby posing a threat of serious environmental injury. The South Dakota Public Utilities Commission (PUC) concluded that although the facility will emit C02, the amount will not pose a threat of serious injury to the environment. It found that C02 emissions are not currently regulated by Congress or South Dakota and that Big Stone II would only increase the national amount of emissions by seven hundredths of one percent. Because the PUC followed existing legal guidelines in approving the permit, and its findings were not clearly erroneous, we uphold its decision.

Background

[¶ 2.] The South Dakota Legislature acknowledged the significant impact energy development has on “the welfare of the population, the environmental quality, the location and growth of industry, and the use of the natural resources of the state.” SDCL 49-^41 B-l. It enacted legislation to “ensure that [energy conversion and transmission] facilities are constructed in an orderly and timely manner so that the energy requirements of the people of the state are fulfilled.” Id. The Legislature deemed it “necessary to ensure that the location, construction, and operation of facilities will produce minimal adverse effects on the environment and upon the citizens of this state by providing that a facility may not be constructed or operated in this state without first obtaining a permit from the [PUC].” Id; SDCL 49-41B-4.

[¶ 3.] A permit application must include:

(1) The name and address of the applicant;
(2) Description of the nature and location of the facility;
(3) Estimated date of commencement of construction and duration of construction;
(4) Estimated number of employees employed at the site of the facility during the construction phase and during the operating life of the facility. Estimates shall include the number of employees who are to be utilized but who do not currently reside within the area to be affected by the facility;
(5) Future additions and modifications to the facility which the applicant may wish to be approved in the permit;
(6) A statement of the reasons for the selection of the proposed location;
(7) Person owning the proposed facility and person managing the proposed facility;
(8) The purpose of the facility;
(9) Estimated consumer demand and estimated future energy needs of those consumers to be directly served by the facility;
*597 (10) The potential short and long range demands on any estimated tax revenues generated by the facility for the extension or expansion of public services within the affected areas;
(11) Environmental studies prepared relative to the facility;
(12) Estimated construction cost of the facility.

SDCL 49-41B-11.

[¶4.] After a request for a permit is filed, the PUC must enlist a local review committee, which “shall meet to assess the extent of the potential social and economic effect to be generated by the proposed facility, to assess the affected area’s capacity to absorb those effects at various stages of construction, and formulate mitigation measures.” SDCL 49-41B-7. This committee issues a final report to the PUC with its findings and “recommendations of the committee as to mitigation measures and minority reports.” SDCL 49-41B-10. The PUC may also “prepare or require the preparation of an environmental impact statement[.]” SDCL 49-41B-21. An applicant is required “to establish that: (1) The proposed facility will comply with all applicable laws and rules; (2) The facility will not pose a threat of serious injury to the environment nor to the social and economic condition of inhabitants or expected inhabitants in the siting area; (3) The facility will not substantially impair the health, safety or welfare of the inhabitants; and (4) The facility will not unduly interfere with the orderly development of the region with due consideration having been given the views of governing bodies of affected local units of government.” SDCL 49-41B-22.

[¶ 5.] On November 8, 2004, in accord with SDCL 49-41B-5, the Otter Tail Corporation, doing business as Otter Tail Power Company, submitted a proposal to the PUC for permission to construct an energy conversion facility. Otter Tail submitted the proposal on behalf of Central Minnesota Municipal Power Agency, Great River Energy, Heartland Consumers Power District, Montana-Dakota Utilities Company, a division of MDU Resources Group, Inc., Southern Minnesota Municipal Power Agency, and Western Minnesota Municipal Power Agency (Applicants). 1 As proposed, the facility would be a 600 megawatt (MW) coal-fired electric generating plant to be located in Grant County, South Dakota, east of Milbank and Northwest of Big Stone. 2 The facility would be named Big Stone II and be situated next to an older facility, Big Stone I.

[¶ 6.] Several organizations sought to intervene: Clean Water Action; South Dakota Chapter Sierra Club; Union of Concerned Scientists; Mary Jo Stueve; Minnesotans for an Energy-Efficient Economy; Izaak Walton League of America, Midwest Office; and Minnesota Center for Environmental Advocacy (In-tervenors). The Intervenors opposed the application on multiple grounds related to the environmental impact of Big Stone II.

*598 The PUC granted intervention to all parties. 3

[¶ 7.] The Applicants’ petition to the PUC triggered SDCL 49-41B-6, and a local review committee was established to prepare a social and economic assessment of Big Stone II.

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Cite This Page — Counsel Stack

Bluebook (online)
2008 SD 5, 744 N.W.2d 594, 38 Envtl. L. Rep. (Envtl. Law Inst.) 20026, 2008 S.D. LEXIS 5, 2008 WL 152779, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-otter-tail-power-co-ex-rel-big-stone-ii-sd-2008.