in-the-matter-of-the-application-of-north-dakota-pipeline-company-llc-for-a ( 2015 )

OFFICE OF
STATE OF MINNESOTA APPELLATE COURTS
IN COURT OF APPEALS SEP 3 0 2015
FILED
In the Matter of the Application of
North Dakota Pipeline Company LLC ORDER
for a Certificate of Need for the Sandpiper
Pipeline Project in Minnesota. #A15-0016
In the Matter of the Application of
North Dakota Pipeline Company LLC
for a Pipeline Routing Permit for the
Sandpiper Pipeline Project in Minnesota.
Considered and decided by Rodenberg, Presiding Judge; Cleary, Judge; and
Klaphake, Judge.*
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. We filed our opinion in this matter on September 14, 2015. Respo~dent
Minnesota Public Utilities Commission made a motion to clarify the final sentence of the
opm10n.
2. No petition for rehearing is allowed in this court. Minn. R. Civ. App.
P. 140.01. The syllabus and the body of the opinion accurately describe the procedural
posture of the case and this court's holding. But we have concluded that it is appropriate
to modify the language of the concluding sentence of the opinion.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
IT IS HEREBY ORDERED: The attached page is substituted for page 11 of the
opinion filed on September 14, 2015.
Dated: 9/Jtfl/(
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underestimated only to be discovered after resources have been committed or the die
otherwise cast." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109
S. Ct. 1835, 1845 (1989).
In this case, the completion of an EIS at the certificate of need stage satisfies the
imperative identified above by ensuring decision-makers are fully informed regarding the
environmental consequences of the pipeline, before determining whether there is a need
for it. Moreover, completion of an EIS at the initial certificate of need stage seems
particularly critical here because once a need is determined, the focus will inevitably turn
to where the pipeline should go, as opposed to whether it should be built at all. We
acknowledge that the MPUC did order a high level environmental review to be
considered during the certificate of need proceedings. But as the MPUC noted, this
review was not meant to serve as a substitute for the more rigorous and detailed review
needed to satisfy MEPA, and it cannot take the place of a formal EIS now. Accordingly,
we conclude the MPUC erred by not completing an EIS at the certificate of need stage as
MEPA requires.
DECISION
Where routing permit proceedings follow certificate of need proceedings, MEPA
requires that an EIS must be completed before a final decision is made on issuing a
certificate of need. Therefore, we reverse and remand to the MPUC to complete an EIS
before a final decision is made to grant or deny a certificate of need.
Reversed and remanded.
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