Well, that was a waste of time.
A couple weeks ago, I wrote a letter to North Dakota Public Service Commissioner Julie Fedorchak, and sent copies to her fellow commissioners Randy Christmann and Brian Kroshus, asking them to assume jurisdiction over the Davis Refinery project being proposed for construction beside Theodore Roosevelt National Park.
I also wrote here asking my friends and readers to send letters. Those of you who wrote likely got the same letter back I did, from a PSC staff member, which said, in part, “It is important to note that because this is a formal case before the commission, both written and verbal comments submitted to the commission, including comments made at public input sessions, are not part of the formal evidentiary record on which the decision must be based. However, the comments that are not part of the formal record may form the basis for investigation resulting in testimony that becomes part of the formal record.”
Yeah, right. The operative word there is “may.” The staffer left out the words “or may not.” Which was the case, it turns out. We were all just ignored.
Which led to Wednesday’s “surprise” decision by the PSC to formally dismiss the complaint filed by the Dakota Resource Council (DRC) and the Environmental Law and Policy Center (ELPC), asking the PSC to conduct a formal site review of the refinery site before the refinery is built.
I say “surprise” because no one knew the commission was going to make a decision on that case until just before the meeting. I checked the meeting agenda on the PSC website first thing Wednesday morning and there was no mention of a discussion of the refinery on the agenda.
But my friends at ELPC told me they got an e-mail 20 minutes before the meeting saying it was going to be added to the end of the agenda. Now, there’s some question about whether the PSC was in violation of the state’s open meetings law by adding the item to the agenda at the last minute, long after the notice of the meeting and agenda had been published. I hope the ELPC and DRC’s attorneys will follow up on that.
In any case, what the PSC did was pretty cagey (a friend of mine used the word “chickenshit”). This is one of the most controversial (and important, I think) issues to come before the commission in a long time, and to sneak it onto the agenda when no one is looking is government at its worst, not only because they capitulated to a sleazy company, but because they kept it secret from the public, the people they work for.
Especially when Commissioner Fedorchak said at Wednesday’s meeting (I listened to the audio recording of the meeting yesterday—I know, I know, I need to get a life) that it was pretty obvious to her that Meridian Energy, the refinery’s owners, had purposely set the level of production at one per cent below the threshold required for a site evaluation.
In her long, rambling statement after she made the motion to dismiss the complaint, she pointed out that Meridian had set its production level at 49,500 barrels per day (bpd), just below the threshold of 50,000 bpd which would have required a site evaluation. “All indications suggest that the company is developing plans to avoid the additional regulatory scrutiny required of a siting permit,” she said. Well, duh.
It seems to me the commission itself was trying to avoid public scrutiny by leaving the item off the agenda until the last minute. Even if they weren’t technically in violation of the open meetings law—I hope somebody asks the Attorney General that question—it’s a bad way to run a government body. In North Dakota, we have the best open meetings and open records laws in the country, thanks to the actions of former Senator S.F. “Buckshot” Hoffner and the North Dakota Legislature back in the 1970s. I can’t think of a single instance since then when our state government officials made such a critical decision under the cover of darkness.
Not to put too fine a point on it, but Attorney General Wayne Stenehjem has addressed this very subject at least three times in formal opinions, and included references to those opinions in his “North Dakota Open Meetings Manual,” where he wrote:
“A written notice of each public meeting must be prepared containing the date, time, and location of the meeting, the general subject matter of any executive sessions expected to be held during the meeting,164 and, if practicable, the topics to be considered or agenda. This “if practicable” language has been interpreted to require the governing body to include in its notice a list of all topics the governing body expects to discuss at the time the notice is prepared.” (emphasis mine)
So now the lawyers for the environmental groups are checking that out, and seeing what implications it may have, and then deciding on next steps. I can’t imagine this challenge ends here. The next step is a courtroom. I hope.