This morning, over our coffee and toast, we gave yesterday’s MPSC order approving Enbridge’s phase two application a thorough reading. Ordinarily, these things are, you won’t be surprised to learn, rather dry documents. But we have to say, this one is slightly less dry– mostly that’s because it adopts such a nasty and frankly unprofessional tone. To our ear, it’s as if somebody over there at the MPSC has taken offense that anyone would dare to try and raise any pesky questions that go beyond the extraordinarily narrow framework created by Enbridge and all-too-willingly adopted by ALJ Theresa Sheets (this particular point is the topic of the upcoming next installment of our latest series). The order doesn’t just disagree with the intervenors in the case; it practically scolds them for taking up the commission’s time.
After a lengthy presentation of the sequence of events in the hearing and the positions of the parties (Enbridge and the intervenors), the commissioners’ ruling begins with this cheap shot:
Many cases litigated before this Commission involve matters that are arguably close calls. This case is not one of them. Whereas the evidentiary presentations by Enbridge and the Staff were thorough and complete as discussed above, the evidentiary presentations of the pipeline’s opponents were virtually nonexistent. This introductory observation is critical because the Commission is required to base its findings on record evidence.
Now, we weren’t aware that there was a margin of victory in these things (perhaps the commission should have provided the final score!) and the purpose of this opening statement is far from clear. Its claim to the contrary, this “observation” is hardly “critical.” At best it’s gratuitous, it nearly gloats, and appears designed to do little more than rub the intervenors’ noses in the ruling.
As for the notion that “the evidentiary presentations of Enbridge and the Staff were thorough and complete,” this is absurd on its face. Sure, Enbridge presented a lot of evidence. But the Staff? As we demonstrated last week, their witness Travis Warner hardly did anything at all. Making a phone call to the Marathon refinery, looking over Enbridge-supplied maps, admitting to only having reviewed PHMSA standards “very generally” (“I’m not extremely familiar with them,” Warner stated in the record), and “rel[ying] on Enbridge’s opinion” for his own assessments hardly constitutes a “thorough and complete” presentation of evidence. Despite this, astonishingly, the rulings states (presumably with a straight face) that “The Commission finds that, in light of the Staff’s expertise, the Staff’s testimony is entitled to significant weight…” Honestly, just read Warner’s testimony and read our discussion of it. Does anybody seriously believe he brought to bear some kind of weighty expertise on this matter?!
Finally, it’s cruelly ironic to assert that the “evidentiary presentation of the pipeline’s opponents were virtually non-existent” when so much of the evidence those “opponents” tried to introduce was ruled inadmissible by Judge Sheets: the NTSB report, the matter of the state Constitution, the testimony and exhibits by Deborah Hense, to offer just a few examples.
But that’s not the worst of it. The order is especially (and needlessly) snide towards Steven Fischer. We suspect this is because he is not an attorney by profession and the MPSC’s general attitude with regard to ordinary landowners is to treat them as mere annoyances (about which, more below). This is what the order has to say about Fischer:
In reaching its determination on the public need issue, the Commission finds that it is appropriate to discount the positions taken by Mr. Fischer and the Landowner Intervenors regarding the proofs. Mr. Fischer’s arguments are mostly generalizations based not on record evidence, but on his own suppositions. As pointed out by Enbridge, such arguments are wholly inappropriate because both the Commission’s Rules of Practice and Procedure16 and the Michigan Administrative Procedures Act17 require the Commission’s decisions to be based on record evidence. Mr. Fischer offers none to support his positions.
Obviously, it is the Commission’s prerogative to disagree with Steven Fischer, but as a PUBLIC commission, it seems to us their statement of that disagreement could at least show him the respect due to someone who has worked exceedingly hard on behalf of the public. The Commission could find his arguments ultimately unpersuasive (even we didn’t always find them entirely persuasive), but still recognize that they were an important– even vital– part of process. Instead, what we have here is more nose-rubbing.
One final example of the needlessly unprofessional tone of the order, this one tucked into a footnote addressing the matter of the NTSB report:
It is abundantly clear that while the Landowner Intervenors made lofty claims of the need to review the NTSB Report so as to “present those expert witnesses on behalf of the landowners that would be very highly qualified to speak on the subject and would give your Honor, you know, both sides of the story so you can make as informed decision as possible,” [2 Tr 116] and that they demanded and received additional time to do so, in the end the Landowner Intervenors failed to submit admissible testimony from a single witness, expert or otherwise. Accordingly, the Commission finds that the NTSB Report constitutes nothing more than a red herring in this proceeding.
First, it is once again gratuitous to take such a mocking attitude (ie, “Landowner Intervenors made lofty claims”), which does little more than show a type of contempt toward landowners. Secondly, what sort of admissible testimony could the intervenors possibly have been able to produce when the subject upon which they would have been called to testify (the NTSB report) was ruled inadmissible in the proceedings? And thirdly, the statement that “the NTSB Report constitutes nothing more than a red herring in this proceeding” can only be taken as a deliberate insult, since it accuses the intervenors of some kind of cynical ploy to lead the proceedings astray (either that, or the Commission doesn’t understand what the red herring metaphor means). When the plain fact of the matter is that without Marshall– and that’s what the NTSB report is about–there would be no application U-17020 upon which the Michigan Public Service Commission could issue such a snotty, supercilious ruling in the first place.
We always knew the Commission would approve Enbridge’s application; we just didn’t know they would be so churlish about it.