(concurring specially).
I concur with the majority, but only because I can see no purpose in remand except a delay in construction and higher costs as a result thereof. It is obvious to me that under the existing statutes the state agencies will do no more than conduct hearings and approve the certificate of need and the route already selected.
However, in my opinion, what is wrong with this case is that the state agencies involved have misconstrued their intended role in proceedings of this type. They have played a passive rather than an active role. I perceive the latter being the proper function under the statutory scheme of things.
All of the new laws dealing with the protection of the environment included within Minn.St. c. 116A through 116H, passed in recent years, fundamentally changed the law in this state. Prior to the passage of these laws, holders of eminent domain rights could simply decide to construct new generating and transmission facilities, decide on a route, and go ahead and acquire the rights of way.
With the passage of the environmental policy contained in c. 116, however, the legislature clearly intended to place conditions and limitations on further destruction of the environment. The legislature decided, with the wisdom which must guide the courts, that before generating and transmission facilities could be constructed the need for those facilities and the impact on the environment must be determined.
Prior to the passage of Minn.St. c. 116C, the utilities involved in these proceedings had already decided to participate in the construction of generating facilities in North Dakota and to transmit that power into Minnesota to a predetermined location near Goon Rapids. There was a savings clause in the statute which exempted certain work already commenced. After first applying for the exemption and having it granted, the utilities then elected to drop their claim and voluntarily come under the purview of the new act. At oral argument it was admitted part of the reason was to simplify the procedure in acquiring the entire right of way. The net result is that the utilities used the previous law to foreclose the necessity of establishing need, but applied the new law to acquire the right of way. True, separate proceedings on the question of the need for the facilities were conducted, but they were hastily organized and possible alternative sources of power do not appear to have been seriously considered.
It is apparent from the transcripts of the public hearings held throughout the state in connection with the location of the route *332that the finding of need was a foregone conclusion, as was the location of the generating system in North Dakota, where the transmission line from North Dakota would enter into the state of Minnesota, and finally where the terminating point would be near Coon Rapids.
This raises a very serious question: What should be the proper role of the state agencies empowered to act under this statute? To limit itself to consideration of proposals made by the utilities and any possible counter proposals that might come from the public? Or is it to serve as an independent, impartial arm of all of the citizens of this state to not only take and hear evidence but if necessary to generate evidence of its own.
I cannot envision a governmental agency being effective in protecting the public without having the authority to itself seek out the facts independently. The legislature should address itself to clarifying and strengthening the role of the agencies in this type of proceeding if the intent of the environmental statutes is to be carried out.
I believe it was incumbent upon the agencies to conduct in-depth studies of the environmental impact of the construction of this transmission facility prior to the selection of any corridor or route. Although the agency, under the act as originally passed, was required to set up an inventory of possible corridor routes for transmission lines, it had not done so by the time the application brought by these companies was filed. Accordingly, the board, conducting hearings on selection of a corridor, went ahead before there was even a decision on the need for the facilities. Many members of the public who objected to the facilities being constructed at all were confused by the reversal of the natural order in the decision-making process.
I can fully appreciate the fact that the utilities have an obligation to serve their customers and shareholders, and they conceive their duty is to do it in the most feasible way possible. They made a decision before the act was even passed to construct facilities and transmit power. But when they elected to come under the purview of the act, that act should have been fully implemented. The state agencies should have delved into all alternative sources available, such as solar energy, transmission of fuel for a series of smaller facilities, hydroelectric power, etc. Where is this extra power to go? To existing customers or to new contemplated customers, commercial and industrial, as well as farm and rural households? Could these new users supply their own electrical needs?
Although these were questions that should have been gone into prior to the determination that there was even a need for these facilities, it. would appear that all the parties to this action, including the state agencies, assumed that there was a need for these facilities, the subject of this action, and therefore the question has not been litigated and is not before us.
However, the environmental impact statement which was required prior to the selection of route should have been filed in this case prior to the selection of a corridor. Here the alternatives for a route were greatly narrowed when the state agency allowed the utilities to select the entry point from North Dakota and the terminal point for the transmission of the power. It is entirely possible that if these two points had not been decided upon early in the game, new corridors could have been selected far from the point of actual selection.
The actual environmental impact statement that was filed leaves much to be desired. It appears to have been constructed in great haste and with little study or input on behalf of the citizens of this state on the part of its state agencies.
In the briefs and at oral argument, the Reserve Mining case1 has been cited. I think it has no bearing whatever on these proceedings. In the Reserve case the objective was to get a large existing industrial user to cease using Lake Superior as a dumping ground for tailings and to get them to use an on-land disposal site. There *333was no new construction involved, except in the tailings basin and that site had to be restored to a useful and attractive condition after being abandoned.
A case more in point is County of Freeborn by Tuveson v. Bryson, Minn., 243 N.W.2d 316, 321 (1976), where we said:
“ * * * Indeed, as a political subdivision of the state, the county has a greater duty than does a private individual to see that legislative policy is carried out. * * *
“Times change. Until the Act was passed, the holder of the power of eminent domain had in its hands almost a legislative fiat to construct a highway wherever it wished. In the 1920’s and 1930’s, the state encouraged highway construction to facilitate industrial expansion and transportation of farm products to market. However, a consequence of such construction has been the elimination or impairment of natural resources.”
The state agencies came no where close to studying the environmental impact in this case as they did in the Reserve Mining case. If they had, perhaps a proper solution could have been found that would not have crossed forests and farmlands, but could have more fully utilized existing roads of commerce, such as highways and railroads.
It is noteworthy that after this action was brought the 1977 legislature amended the act to provide that in addition to the previous matters that must be taken into consideration in designating sites and routes, it added three new requirements. They are (L.1977, c. 439, § 10, amending Minn.St. 1976, § 116C.57, subd. 4):
“(8) Evaluation of potential routes which would use or parallel existing railroad and highway rights-of-way;
“(9) Evaluation of governmental survey lines and other natural division lines of agricultural land so as to minimize interference with agricultural operations;
“(10) Evaluation of the future needs for additional high voltage transmission lines in the same general area as any proposed route, and the advisability of ordering the construction of structures capable of expansion in transmission capacity through multiple circuiting or design modifications;”
One point is obvious to me: We cannot stand much more highway and above-ground power line construction without permanently destroying and impairing our environment. The question is where do we stop?
I would hope that this case would make it apparent to the legislature that the statute, as written, is not preventing the continued warping away of our treasured rural environment; that the state agencies must be given a clear mandate to stop the destruction of farm and forest lands; that existing roadways and railroad rights of way must be used wherever possible, even though the resultant cost may be higher in dollars than some other possible route. Because over the long run spending additional money in laying down these new power line routes initially may be cheaper by reason of the fact that there would be continued productive use of these farm and forest lands in perpetuity that otherwise would be taken out of production. Moreover, it seems to me that by requiring these facilities to be located along public highways where everyone can see them, the public itself may be more concerned with limiting their use. When asked at oral argument, counsel for the state admitted that these utilities’ transmission lines are not being constructed along highways, first of all because of a Federal program of preventing their use on interstate highways, and, second, because of the objection of the state highway department to their being “unsightly.” The more the public generally is exposed to what is being done to our environment, the better they will be able to participáte in the decision-making process of determining whether or not they wish to pay the cost — both in dollars and in destruction to the environment — involved in a project such as this.
PETERSON, J., took no part in the consideration or decision of this case.. Reserve Mining Company v. Herbst, Minn., 256 N.W.2d 808 (1977).