I respectfully dissent from the opinion of the majority insofar as it holds that the MEQB need not reconsider its siting determination for Sherco 3 in light of the facts and circumstances of this case, i. e., where one Certificate of Need was issued for two 800-megawatt plants, where one certificate of site compatibility was granted for 1,600 megawatts of generating capacity, where applicant's energy demand forecast was so far reduced as to result in cancellation of the determination of need for one plant, Sherco 4, and where construction of the other plant, Sherco 3, has been delayed for four years, from 1981 to 1985.
Plaintiffs argue, as the majority has noted, that the MEA's voiding of need certification for Sherco 3 as to timing invalidates the Certificate of Site Compatibility granted by the MEQB for that plant. The majority agrees with the conclusion of the district court that such a result would absurdly extend the language of No Power Line, which held the grant of site designation "contingent upon" the grant of a Certificate of Need. By the same token, however, recognizing the Certificate of Site Compatibility as permanent and inviolate works an equally absurd distortion of the legislature's intent.1 If NSP's need forecast *Page 587 is eventually revised so much that a new generating facility is not necessary until 1990, surely NSP may not continue to rest on the 1975 site designation. The MEA itself, by its order regarding Sherco 4, explicitly recognized that changes in technology, load and waste management policies, and social and political conditions might render the determination of Sherco 4's size and type obsolete. The same observation can be made regarding site designation. The in-service date of Sherco 3 having been extended now until 1985, one year later than the time the MEA director had determined alternative technologies to be unavailable, I conclude that the MEQB erred in refusing to reconsider the site designation made in 1975.
This conclusion is bolstered by the MEA regulations which require that the MEA "recertify" the need for a facility whenever an applicant proposes a reduction of more than 50 megawatts generating capacity. Because only one Certificate of Need was issued for both Sherco 3 and 4, plaintiffs argue that the voiding of the certification for Sherco 4, a reduction of 800 megawatts capacity, required "recertification" of the entire project. Cf. 6 MCAR § 2.0641C. 1 (1978). The MEA in this case has interpreted its regulations to mean that certification of Sherco 3 is not voided except as to timing. Those regulations, as cited above, do, however, suggest that a change as significant as this one, in which an entire plant, with 800 megawatts generating capacity, is decertified, should result in review or reconsideration of such factors as the site of the plant. In People for Environmental Enlightenment andResponsibility (PEER), Inc. v. Minnesota Environmental QualityCouncil, 266 N.W.2d 858 (Minn. 1978), this court held that a PPSA site designation for a high-voltage transmission line that impairs, pollutes, or destroys protected resources cannot be approved, consistent with MEPA, if there is a prudent and feasible alternative available. Here, the MEA's decertification of 800 megawatts of generating capacity for the NSP project might well make other sites feasible and desirable alternatives for a plant half the size of that originally proposed.
Plaintiffs have also challenged the Certificate of Site Compatibility on the ground that the MEQB failed to evaluate feasible and prudent alternatives to the Sherco site, as required by the Minnesota Environmental Policy Act, Minn.Stat. § 116D.04, subd. 6 (1978). The majority holds that the appellants are prevented by laches from attacking the certificate on this basis. If the plaintiffs had done nothing for the four years between 1975 and 1979 I would be more inclined to agree, but this is not the case. The MEQB issued the single Certificate of Site Compatibility on November 10, 1975. It was not until 1976, when Sherco 1 became operational, that farmers and other residents of Sherburne County who now constitute CAPPP became aware of the effects on their land of coal-fired electricity generation. In 1977, while NSP's request was pending for MEQB authorization to begin preliminary construction work on Sherco 3 before the EIS was completed, plaintiff CAPPP was incorporated and retained counsel "to represent it at all levels of the Sherco 3 and 4 proceedings." In June 1977, CAPPP challenged the issuance of limited work authorization by a lawsuit which was expanded in August 1977 to challenge the granting of an interim emission permit. This lawsuit was dismissed without prejudice in November 1977, after NSP had revised its energy demand forecast downward and the MEQB had revoked the limited work authorizations and halted *Page 588 construction. CAPPP responded to MEA's March 23, 1978 order decertifying Sherco 4 by requesting the MEQB to declare the single Certificate of Site Compatibility voided by that order. Receiving no reply, CAPPP brought this lawsuit in December 1978.
I do not find, on the above record, that plaintiffs were sleeping on their rights. Nor am I persuaded that defendants have made the clear showing of prejudice to the public interest required to bar an action to protect the environment on the basis of laches. See Arlington Coalition on Transportation v.Volpe, 458 F.2d 1323, 1329-30 (4th Cir. 1972). Furthermore, it is not clear from this record that the MEQB made an independent evaluation of the GEQC record concerning alternatives before considering only the Henderson and Sherco sites. See Muehringv. School District No. 31 of Stearns County, 224 Minn. 432,436, 28 N.W.2d 655 (1947) (agency granted decision-making authority may not ordinarily delegate that power to the public or to private individuals). I am constrained to note, in addition, that, although the MEQB is required to consider alternatives to the proposed site when it renders a decision on an application for site designation, as the regulatory process was administered by the MEQB in this case, an Environmental Impact Statement was not prepared regarding the proposed generating facilities until after a Certificate of Site Compatibility was granted. That timing for the preparation of an Environmental Impact Statement appears to be inimical to the purpose of the Minnesota Environmental Policy Act, which provides:
116D.04 ENVIRONMENTAL IMPACT STATEMENTS. Subdivision 1. Where there is potential for significant environmental effects resulting from any major governmental action or from any major private action of more than local significance, such action shall be preceded by a detailed statement prepared by the responsible agency or, where no governmental permit is required, by the responsible person, on:
* * * * * *
Subd. 4. Prior to the preparation of a final environmental statement, the person responsible for the statement shall consult with and request the comments of every governmental office which has jurisdiction by law or special expertise with respect to any environmental effect involved. Copies of the drafts of such statements and the comments and views of the appropriate offices shall be made available to the board and the public. The final detailed environmental impact statement and the comments received thereon shall precede final decisions on the proposed action and shall accompany the proposal through an administrative review process.
Minn.Stat. § 116D.04, subd. 1, 4 (1978) (emphasis added). This court has previously indicated that MEPA and the Power Plant Siting Act should be construed harmoniously. See Floodwood-FineLakes Citizens Group v. Minnesota Environmental QualityCouncil, 287 N.W.2d 390, 397 (Minn. 1979); People forEnvironmental Enlightenment and Responsibility (PEER), Inc. v.Minnesota Environmental Quality Council, 266 N.W.2d 858, 865 (Minn. 1978); No Power Line, Inc. v. Minnesota EnvironmentalQuality Council, 262 N.W.2d 312, 323 (Minn. 1977). Further, the Power Plant Siting Act by its own terms requires the MEQB to comply with MEPA in siting decisions:
Within a year after the board's acceptance of a utility's application, the board shall decide in accordance with the criteria specified in section 116C.55, subdivision 2, the responsibilities, procedures and considerations specified in section 116C.57, subdivision 4, and the considerations in chapter 116D which proposed site is to be designated.
Minn.Stat. § 116C.57, subd. 1 (1978) (emphasis added).
In No Power Line, Inc., the MEQB also failed to prepare an Environmental Impact Statement before the corridor was selected. We stated:
262 N.W.2d at 325. In that case we concluded that the MEQC's failure to require an Environmental Impact Statement at the corridor-selection stage of the proceedings was not reversible error, although to have required an EIS would have been preferable, because (1) the law gave MEQC discretion to decide when an EIS was required; (2) no statute specifically requires that the EIS be prepared at the corridor-selection stage; (3) an EIS was, in fact prepared and available to guide the MEQB when the specific route was selected; and (4) the court was convinced that the MEQB did consider factors which the PPSA required it to evaluate. Some of these considerations are present in the case before us; but the seemingly crucial one — the fact that the MEQB did have an EIS before it when it made a specific site determination — is not.Appellants argue that it was reversible error for the MEQC not to require an EIS *Page 589 at the corridor-selection stage of the proceedings. Since the designation of a corridor was a "major governmental action" with "potential for significant environmental effects," and since this was the last discretionary stage in the proceedings, the lack of an EIS violated both the spirit and the letter of MEPA.
In this case, no Environmental Impact Statement was prepared before the Sherco site was selected. Thus, the MEQB did not even substantially comply with one important purpose of MEPA: to insure that state decisions be preceded by a thorough consideration of environmental factors. If the standard practice of the MEQB is to perform environmental review after the key decisions concerning the siting of power facilities have already been made, the EIS would be a rather useless gesture.
Because, in this case, no real consideration of alternatives was made, and for the reasons set out above, the MEQB should reconsider its siting determination in the context of the environmental review which has already been ordered by the district court.
PETERSON, J., took no part in the consideration or decision of this case.
The "non-proliferation policy" identified in PEER cannot be strictly applied to power plant siting consistent with the terms of the Energy Act, whose purpose is "to encourage thrift in the use of energy, and to maximize use of energy-efficient systems * * *." Minn.Stat. § 116H.01 (1978). The PPSA itself requires that, in making site decisions, the MEQB must consider new technologies which will minimize adverse environmental effects and possible beneficial uses of waste energy. Minn.Stat. § 116C.57, subd. 4(3), (4) (1978). Furthermore, MEQB rules encourage siting decisions which "permit significant conservation of energy or utilization of by-products" and "minimize the distance to large load centers." 6 MCAR § 3.074H. 1. j., k. These statutes and regulations require the MEQB to consider the possibility that alternative plant locations may be capable of more efficient utilization of waste heat, for example, or minimize the distance over which the generated power must be transmitted.
Furthermore, the Environmental Impact Statement prepared by the MPCA regarding the Sherco power plants makes clear that ambient air quality levels will be significantly affected if Sherco 3 and 4 are constructed where two coal-burning generating plants are already in operation. Concentrated burning of large amounts of Western coal in multiple facilities at a single location contributes to air pollution and adverse human health effects. For these reasons, the siting of power lines cannot strictly control power plant siting determinations.