JIM FUGLIE: View From The Prairie — Don’t Do It, Julie; Don’t Back Down

A letter to North Dakota Public Service Commissioner Julie Fedorchak.

Don’t do it.

Don’t just blindly accept the recommendation of an administrative law judge to reject the idea that you could assume jurisdiction over the Davis Refinery, which Meridian Energy wants to build three miles from Theodore Roosevelt National Park.

That judge based his recommendation on a strict reading of the law. That’s what judges do. Or at least what they are supposed to do. That strict reading says if a refinery is going to process 50,000 barrels of oil per day, you and your fellow North Dakota Public Service Commissioners have jurisdiction over it and can undertake a site review to determine if that is really a good place to build a refinery. Based on that, you said at the PSC meeting the other day that because the Davis refinery was 500 barrels — 1 percent — under that threshold, you did not believe you could assume jurisdiction.

You said the law, passed by our Legislature, is pretty clear. Yes, it said in the bill passed years ago that 50,000 was the magic number, and that law is still in effect, although your chairman and fellow commissioner, Randy Christmann, has said that maybe it is time to take another look at that. I can also tell you (although you already know this) that there are legislators ready to get rid of that arbitrary threshold in the next legislative session.

But I am pretty sure that no one thought for a minute that some sleazy California refinery company would come into our state and propose to build a refinery that they say will process 49,500 barrels of oil, just 1 percent below that threshold, to avoid giving you jurisdiction over where they put their refinery.

No one believed that a refinery company would be so blatant as to propose a refinery processing 99 percent of that amount, especially right beside our greatest state treasure, Theodore Roosevelt National Park.

Julie, we both know that, except on paper, there’s virtually no difference between 49,500 barrels and 50,000 barrels. There’s no difference in the air pollution that could affect the national park’s Class I Air Quality Standard. There’s no difference in the steam and smoke plume that will rise over the park. There’s no difference in the visual disturbance to the countryside at the entrance to the park. There’s no difference in the truck traffic in and out of the refinery day and night, kicking up storms of dust that will settle on the park and disturbing the herds of wild horses and buffalo that occasionally roam the east end of the park. There’s no difference in the millions of gallons of water that will come out of the ground for the refining process or the millions of gallons of polluted waste water which will go back down in the ground once it is used.

The difference between 49,500 and 50,000 is semantics, Julie, and you know that. My friend, Bill Kingsbury, put it this way: “What if the operator gets up to go to the can and an extra 501 barrels slip through there? Who’s gonna know?”

Bill’s exactly right. If they were building a 30,000- or 40,000-barrel refinery, there’s some room for slippage, and there could even be a significant difference in those things I mentioned earlier — although the gate of a national park is still a lousy place to build a refinery.

From what I saw at the meeting the other day, you’ve got a couple of pretty good lawyers working for you who could make that case to a real judge, in a court of law. That administrative law judge who gave you his recommendation is just one man giving you his opinion. But judges differ, and opinions differ. You know that old saying about opinions — everybody’s got one. That’s why the legal process is set up the way it is and why we have appeals courts and why those appeals courts overturn other judges’ opinions all the time.

So don’t do it, Julie. Don’t cave in on this one. This is too important. Don’t let your legacy on the North Dakota Public Service Commission be this: “She’s the commissioner who let a greedy bunch of Californians put that refinery beside Theodore Roosevelt National Park.”

You and I heard your fellow commissioners the other day say they weren’t sure about this. We heard Chairman Christmann say he’s “keeping his options open.” We heard Commissioner Brian Kroshus say he “wants to do more research.”

I’ve been around western North Dakota a long time, Julie. I’ve seen a lot of energy companies come and go.  Most of them come here from somewhere else, like Meridian has, and most of them have one thing in common: They’ll push our North Dakota regulators and regulations right to the very limits of the law, with little or no regard for what’s good for anything except the bottom line — profits for their companies.

Way too many times I’ve seen those regulators roll over, in the name of economic development, and I understand that. I don’t always like it, but I understand it.

Here’s my advice in this case: Take ‘em on. Assume jurisdiction. Tell them they’re not going to build a refinery there until your staff has done a thorough site review to determine if it is a good idea to do that.

Sure, they’re going to challenge you. They’re going to take you to court. In almost every court case, there are good guys and bad guys. In this case, you’re the good guys. And a lot of the time the good guys win.

Today, I went back and took a look at the section of state law that more than any other defines the real need and purpose for the North Dakota Public Service Commission, section 49-22.1-02 of the North Dakota Century Code. It says:

“The legislative assembly finds the construction of energy conversion facilities and transmission facilities affects the environment and the welfare of the citizens of this state. It is necessary to ensure the location, construction, and operation of energy conversion facilities and transmission facilities will produce minimal adverse effects on the environment and the welfare of the citizens of this state by prohibiting energy conversion facilities and transmission facilities from being located, constructed, or operated within this state without a certificate of site compatibility or a route permit acquired under this chapter. The policy of this state is to site energy conversion facilities and to route transmission facilities in an orderly manner compatible with environmental preservation and the efficient use of resources. Sites and routes must be selected to minimize adverse human and environmental impact while ensuring continuing system reliability and integrity and fulfilling energy needs in an orderly and timely fashion.”

Theodore Roosevelt, the great conservation president for whom our national park is named, would have liked that section of our law. Roosevelt believed in the “wise use” of our resources. Surely he would have approved using our oil and of an oil refinery located pretty near the source of that oil. But the president who set aside millions of acres of the most treasured lands in our country for the benefit to wildlife and the enjoyment of all our citizens would be pretty disappointed if this refinery was allowed to go forward without every possible effort being made to find a better place for it than beside a national park — especially one named for him.

Please do all you can, Julie, to protect our national park. Don’t back down. Bully!


Jim Fuglie

Cc: Brian Kroshus, Randy Christmann

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