State ex rel. Citizens Against Power Plant Pollution, Inc. v. Minnesota Environmental Quality Board

305 N.W.2d 575, 1981 Minn. LEXIS 1296
CourtSupreme Court of Minnesota
DecidedMay 15, 1981
DocketNo. 50935
StatusPublished

This text of 305 N.W.2d 575 (State ex rel. Citizens Against Power Plant Pollution, Inc. v. Minnesota Environmental Quality Board) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Citizens Against Power Plant Pollution, Inc. v. Minnesota Environmental Quality Board, 305 N.W.2d 575, 1981 Minn. LEXIS 1296 (Mich. 1981).

Opinions

TODD, Justice.

Plaintiffs, Citizens Against Power Plant Pollution, Inc. (CAPPP), a Minnesota nonprofit corporation composed of farmers and other residents of Sherburne County, and its president, Malcolm Olson, brought this action against the Minnesota Environmental Quality Board (MEQB), seeking declaratory and equitable relief under the Minnesota Environmental Rights Act (MERA), Minn.Stat. §§ 116B.01-.13 (1978). Plaintiffs challenged the MEQB’s November 1975 grant to defendant-intervenor Northern States Power Company (NSP) of a Certificate of Site Compatibility, pursuant to the Power Plant Siting Act (PPSA), Minn. Stat. §§ 116C.51-.69 (1978) (amended 1980), for two proposed large electric power generating plants of 800 megawatts each (Sherco 3 and Sherco 4) at a site in Sher-burne County where two other large electric power generating plants (Sherco 1 and Sherco 2) were already in operation.

Plaintiffs alleged, as their first cause of action, that the Certificate of Site Compatibility was invalid because it was issued before NSP had received a Certificate of Need (CON) for Sherco 3 and Sherco 4 from the Minnesota Energy Agency (MEA) pursuant to the Minnesota Energy Agency Act, Minn.Stat. § 116H.13 (1978 & Supp.1979) (amended 1980), or, alternatively, that the Certificate of Site Compatibility became invalid when, in March 1978, the MEA voided the CON as to Sherco 4 and as to the timing of Sherco 3.

As to their second cause of action, plaintiffs alleged that the Certificate of Site Compatibility was invalid because the MEQB had failed to consider the environmental and health effects of siting four power plants at the Sherco site, particularly in light of the threat of an accident at the nuclear power plant operating nearby.

Third, plaintiffs alleged that the Certificate of Site Compatibility was invalid because the MEQB had failed to seek and evaluate feasible and prudent alternatives to the Sherco site. Additionally, plaintiffs [578]*578urged before the district court that the MEQB was without jurisdiction to grant NSP the Certificate of Site Compatibility for the Sherco site because the Minnesota Legislature had designated a site at Henderson, in Sibley County, for NSP’s new generating facilities.

In a comprehensive order and memorandum, the Ramsey County District Court granted summary judgment in favor of defendants on plaintiffs’ first cause of action and on the challenge to the MEQB’s jurisdiction, dismissed the allegations regarding the nuclear hazard as outside the scope of MERA but otherwise remitted the second cause of action to the MEQB for further consideration of the environmental and health effects of Sherco 3, and, finally, dismissed plaintiffs’ third cause of action on the basis of laches. Plaintiffs appeal from all of the district court’s rulings except that remitting the second cause of action. We affirm.

The appeal raises the following issues for our consideration: (1) whether the MEQB was without jurisdiction to grant NSP a Certificate of Site Compatibility for the Sherco site because the legislature exclusively designated a site at Henderson, Minnesota, for this particular electric generating facility; (2) whether plaintiffs’ allegation that the siting of a coal-fired power plant near a nuclear generating facility could have an adverse environmental and reliability impact states a claim under MERA; (3) whether the MEQB erred in refusing to reconsider the Certificate of Site Compatibility for Sherco 3; and (4) whether plaintiffs’ claim that the MEQB failed to consider alternatives to the Sherco site is barred by laches.

These issues are difficult and complex. We recognize, as the trial court did, the hard task of the MEA and the MEQB in balancing, on the one hand, the public need for electric power and, on the other hand, the risks to human life, health, and environment generally from power plants and power lines. To understand the issues and to decide them as best we can, it is necessary to see the case in its factual, chronological setting extending over eight years.

Facts and Procedural History

On April 5, 1972, Governor Wendell Anderson, by executive order, created the Governor’s Environmental Quality Council (GEQC), composed of the Governor, the Directors of the Minnesota Pollution Control Agency (MPCA) and the State Planning Agency, and the Commissioners of Natural Resources and Highways. Eight days later, NSP sought the GEQC’s recommendation regarding the site for a 1,600-megawatt coal-fired electric generating facility to be operating by 1979-80. In May of 1972, the GEQC created a 23-member power plant siting task force and directed it to examine the need for the plant and to make a recommendation regarding siting.

The task force considered 15 potential sites, seven of which were identified in a study prepared by NSP for a private consulting firm and provided by the task force. After public meetings in the site areas and site tours by task force members, the task force issued its report in December 1972, recommending as its first choice a site in Sherburne County, Minnesota, where a 1,360-megawatt NSP facility in two plants, Sherco 1 and 2, was being constructed. The task force recommended that its second choice, a site at Henderson in Sibley County, Minnesota, be utilized if the GEQC established that the Sherburne County site would have substantially greater air quality impact, and recommended as its third choice a site at Jordan in Carver County, Minnesota.

In January 1973, the GEQC met and considered the task force report, a Minnesota State Planning Agency report indicating that the Sherburne County site would have greater air quality impact than the Henderson site, and a letter from the MPCA, also expressing concern about the effect that two additional plants at the Sherco site might have on ambient air quality standards. The GEQC voted four-to-one to recommend the Henderson site for construction of NSP’s next electric generating plant, with the Jordan site as a second [579]*579choice. The GEQC sent its recommendations to NSP by letter of February 1, 1973. On February 6, 1973, NSP indicated that it would begin preparing design and engineering studies to construct its facility at the Henderson site.

On May 23, 1973, the legislature enacted the PPSA, which gave the newly created Minnesota Environmental Quality Council1 authority to “provide for power plant site * * * selection.” Act of May 23, 1973, ch. 591, § 3, 1973 Minn.Laws, 1343, 1344 (current version at Minn.Stat. § 116C.53, subd. 2 (1978)). The PPSA provides that any new electric generating facility may be constructed only on a site designated by the MEQB in accordance with criteria2 which the act required the MEQB to develop with public participation. Minn.Stat. §§ 116-C.53, .55, .57 (1978). No later than one year after a utility requests designation of a site, the MEQB must designate such a site and issue a “Certificate of Site Compatibility,” which constitutes the sole site approval a utility must obtain. Id. §§ 116C.57, ‘ .61. The time for designation “may be extended for six months” by the MEQB “for just cause.” Id. § 116C.57, sub. 1. The legislature adopted the following “savings clause” as part of the PPSA:

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Bluebook (online)
305 N.W.2d 575, 1981 Minn. LEXIS 1296, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-citizens-against-power-plant-pollution-inc-v-minnesota-minn-1981.