A Welcome Change to the Process for Energy Developments

The process by which energy projects are permitted in North Dakota is important and should improve following the 2019 Legislative Session.  Energy projects often fall within the North Dakota Public Service Commission’s authority, whether it’s a gas-plant, a refinery (Davis), a pipeline (DAPL), a transmission line, or a windfarm.  North Dakota places the responsibility for evaluating and siting those facilities with the Public Service Commission (PSC), which is guided by North Dakota law.

In evaluating projects, the PSC is required to seek comments from a host (27) of state and federal agencies. Rightfully so.  The PSC doesn’t have a staff of historians, geologists, engineers, biologists, or wildlife management experts.  So, comments from other “experts” is useful.  But, to be fair to the PSC (the public and the applicant) comments shouldn’t be dropped at the PSC hours before a public hearing. That doesn’t allow the Commissioners to study the comments, the public to consider them, or the applicant to respond in a thoughtful and well considered manner.  So, the PSC is left with a challenge of what to do with “expert” comments from agencies, they haven’t had a chance to question, and PSC staff hasn’t had time to consider the conclusions of these “experts” or the scientific basis, bias, or perspective upon which the comments are made.  (Clearly, protecting a resource is a different mission than encouraging resource development, or promoting economic opportunities for the people of North Dakota.)  

This problem was evident at a recent Burke County wind project under consideration by the PSC. Comments objecting to the windfarm were delivered to the PSC and recorded at 5:00 pm, the evening before a public hearing scheduled for the next morning.  There was no real opportunity for PSC staff, elected officials, the applicant or members of the public to consider the letter or probe the science, factual data or conclusions it contained—a bad public process.  (Even more troubling was that the opponents to the project had a copy of the letter and appeared to tailor accordingly, their comments at the hearing.)

This should not happen again, as a result of the 2019 Legislative Session.  HB 1383, approved by the Legislature requires an agency who objects to a project, to submit comments to the PSC at least 30 days prior to the hearing.  That period will give everyone, including the PSC, the applicant and the public, time to thoughtfully consider and evaluate the nature of the comments, the scientific data,if any and the weight to be given to comments from other agencies.  The American judicial system has been designed and is premised on the view that transparency and disclosure will reveal the truth and that justice will be served as a result.  Our energy development process should follow the same view.  Having agencies submit comments, well in advance of a public hearing will help move the process in that direction.