Website Policy

The MSBA ENRE Website is provided as a service to Section members and is devoted to updating the membership of the MSBA ENRE Section on developments and issues in environmental, natural resources and energy law.  The Section does not advocate any particular point of view with respect to environmental, natural resources or energy policy. All contributors to the website are expected to disclose any personal or professional involvement that the contributor has in connection with the subject of his or her submission.  The Section reserves the right to edit or reject any submission.

Pace-of-TMDL Litigation Is Back: Judges in Two District Courts Have Endorsed Using Constructive Submission Doctrine on Individual Water Segments

By James Meinert


The Clean Water Act (“CWA”) has significant teeth for requiring point source polluters to monitor and reduce pollution from their facilities. If a state fails to operate a stringent enough point source permitting program, the federal government steps in and does it for them. In contrast, reducing nonpoint sources of pollution relies on state-initiated watershed planning activities, which are only implemented by voluntary best management practices encouraged along by federal grant funding. If a state makes little progress on the initial watershed pollution assessment activities, the U.S. Environmental Protection Agency (“EPA”) generally cannot step in and operate the program for them. Similarly, the CWA’s citizen suit provision gives individuals and environmental groups significant power to challenge point source polluters, but for nonpoint sources of pollution, citizens can generally only bring judicial review at a few sparse checkpoints where EPA has a non-discretionary duty to review state activity submitted to the agency. If a state structures its activities to delay, or even avoid, hitting these checkpoints for submitting work to EPA, nonpoint source pollution can go unaddressed for decades. For a few years a novel legal theory called “constructive submission doctrine” spurred nonpoint source regulatory activities across the country. That theory fizzled out 20 years ago, but now its back! Read more..


Water Conservation Law and Technology Reform
By Charlie Nelson
May 27, 2016

Water is one of the most abundant and useful resources the earth has, and for these same
reasons, it is one of the most polluted. Water is, by nature, a strong solvent characterized by its
ability to dissolve and disperse other substances. This characteristic makes water vital to many
industrial applications, agricultural applications, and, of course, life. Given the solvent
characteristic of water, any pollution introduced into a body of water is exacerbated by the water
itself. In other words, water serves as a vehicle for quick and effective contamination. Since
water is so important to all living things on this planet, efforts to conserve our water resources
are of utmost importance. Addressing water pollution requires both legal force and the
technology required to implement. Read more..

Drawing More Than Oil from the Bakken Formation: Sandpiper Pipeline Draws Attention to Certificate of Need Rules and Intervenors’ “Practically Impossible” Burden of Proof
By Sara L. Fechtelkotter

The Sandpiper pipeline is a hotly debated light crude oil pipeline project slated to go through northern Minnesota. Despite the controversy, the Minnesota Public Utility Commission (PUC) conditionally granted a certificate of need (CN) for the Sandpiper pipeline by a unanimous vote. The public, however, did not unanimously accept the PUC’s decision. The following day an estimated 5,000 people marched through downtown Saint Paul protesting the pipeline.2 Many protesters vehemently oppose construction of any new oil transportation infrastructure, not just the Sandpiper pipeline, due to climate change concerns. Bill McKibben, founder of the climate action group, participated in the protest and “call[ed] Minnesota ‘ground zero’ of the climate fight.”3 Some commentators argue that this type of extremism explains “why Sandpiper Pipeline opponents lost big.”4. Read more.

Solar Energy Development on Contaminated Land in
Minnesota: Opportunities & Challenges
By Danielle Meinhardt

The U.S. Environmental Protection Agency (EPA) created the program “RE-Powering America’s Land” to encourage the development of renewable energy on land that is currently or was formerly contaminated.[1] This paper discusses the arguments for locating renewable energy on contaminated lands, focusing on solar energy. It lists sites in Minnesota where contaminated land is already supporting solar power generation. The paper also describes barriers to solar development on contaminated land, and reviews some of the technical methods that can help developers overcome those barriers.  Read more.

[1] RE-Powering America’s Land: Siting Renewable Energy on Potentially Contaminated Lands, Landfills, and Mine Sites, U.S. Envtl. Prot. Agency, (last visited May 14, 2015).

By Sam Andre

Like most Americans, every month I receive an electric bill. My bill contains traditional electric bill information, including the amount owed and the payment deadline. However, recently the utility added to these figures a comparison of my energy use to that of my neighbors. This information, laying innocuously on the edge of my bill, reflects an important step towards energy efficiency: the use of smart meter data. Whether experiencing a long winter necessitating the high use of heat and light, or utilizing old and inefficient appliances until able to afford a new set, as an electric customer I may face high and unforeseeable electricity costs. Yet, with granular smart meter data in hand, I hold a helpful tool for making efficient energy decisions and subsequently reducing my energy costs.[1].  Read more.

[1] The Benefits of Smart Meters, Cal. P.U.C., (last modified Mar. 3, 2010) (“Allows customers to make informed decisions by providing highly detailed information about electricity usage and costs. Armed with a better understanding of their energy use, consumers can make informed decisions on how to optimize their electricity consumption and reduce their bills.”).


Update on North Dakota v. Heydinger
By Jimmy Greenlatt

In 2007 Minnesota passed the Next Generation Energy Act (NGEA), which mandated that no person could construct a new “large energy facility” in Minnesota that would contribute to statewide power sector carbon dioxide emissions, and that no person could import or agree to import power from a new large energy facility outside the state that would contribute to statewide power sector carbon dioxide emissions.  The statute also provided that no person could enter into a “new long-term power purchase agreement that would increase statewide power sector carbon dioxide emissions” without offsetting those emissions to the satisfaction of the Minnesota Public Utilities Commission (PUC).  The NGEA, with specific exceptions, effectively banned the construction of new coal power plants within the state as well the import of electricity from coal power plants in other states. This legislation, meant to curb greenhouse gas emissions and increase energy production from renewable sources, is not unique to Minnesota—twenty-nine states have enacted similar renewable energy legislation.  Like many of those statutes, the NGEA was soon challenged as regulating out-of-state commerce and thus violating the Dormant Commerce Clause.  Click here to read more.

Enbridge Pipeline Update
By Jimmy Greenblatt

On June 7, 2013, Enbridge Pipelines (North Dakota) LLC (“Enbridge”) submitted an initial filing notice to the PUC for its proposed construction of a new 612-mile crude oil pipeline,
299 miles of which would traverse northern Minnesota.[1] On November 8, 2013, Enbridge filed plans with the PUC for the proposed $2.6 billion Sandpiper pipeline.[2] The pipeline would stretch from south of Tioga, North Dakota (Beaver Lodge Station) across northern Minnesota, following a proposed route that passes near the Mississippi River headwaters before entering Wisconsin where the oil will be sent from Superior to Canada.[3]      

Click here to read more.


PUC Rejects Value of Solar for Community Solar Gardens
By Jimmy Greenblatt 
In 1981 Minnesota became the first state to adopt a net metering policy for solar energy.
[1] Last year Minnesota upheld its position as a solar innovator when it became the first state to adopt a state-wide value of solar (VOS) policy.[2] VOS in Minnesota supplants net metering, a method whereby solar customers get bill credits for surplus power they produce, often at current retail rates. The move from net metering to VOS was opposed by Xcel Energy,  Click here to read more.

[1]Dan Haugen, Minnesota to ask: What is the value of solar power? Midwest Energy News (June 10, 2013),

[2] VOS has previously been used at the municipal utility level. Id. 

[1] Enbridge Pipelines LLC Completeness of Applications for Certificate of Need and Route

Permit Application, Minnesota Public Utilities Commission, Docket No. CN 13-473, PPL 13-

474 (February 11, 2014).

[2] Associated Press, Enbridge Files Plan for $2.6 Billion Pipeline from North Dakota to

Wisconsin, FuelFix (Nov. 10, 2013),

[3] David Shaffer, Enbridge Submits Plan for Crude Oil Pipeline Across Minnesota, Star Tribune (Nov. 11, 2013),

EPA Satisfied with Latest Supreme Court Ruling
By Jimmy Greenblatt

In a recent Supreme Court case reviewing EPA greenhouse-gas regulations, Utility Air Regulatory Group v. E.P.A., a divided Court upheld one EPA rule while striking down another - a move seen by many as giving each side a victory.[1] The EPA, however, sees the case as a “resounding win” for the agency.[2] Remarkably, the EPA believes that their biggest victory came before the case even went to trial.[3] How can this be?  Click here to read more.

[1] See Rita Ann Cicero, Supreme Court Lets EPA Regulate Greenhouse Gases, With Limits, 34 Westlaw J. Envtl. (2014). Some sources went even further, one calling the case a “. . . . [T]riumph for statutory interpretation, separation of powers, and common sense . . . . sharply limiting the EPA’s discretion.” Jonathan Keim, Utility Air Regulatory Group v. EPA: Separation of Powers in the Balance, Nat’l Rev. Online (July 18, 2014),

[2] Avi Garbow, Another Favorable Opinion from the Supreme Court, EPA Connect Blog (July 16, 2014, 1:55 PM),

[3] Id.

Update on Geronimo Energy’s $250 Million Aurora Solar Plan
By Jimmy Greenblatt

On April 15, 2013, Geronimo Energy submitted a distributed solar energy proposal (pursuant to Minn. Stat. § 216B.222) to provide up to 100 megawatts of solar energy with the goal of meeting a part of Xcel Energy’s capacity and energy needs between 2017 and 2019.[1] Geronimo proposed to provide 72 MW of accredited capacity to help Xcel meet its non-wind variable generation resource peak capacity obligations within the Midwest Independent System Operator’s (MISO) Planning Reserve Sharing Pool.[2] On December 31, 2013, state Administrative Law Judge Eric Lipman supported Geronimo Energy’s proposal when he recommended that the Minnesota Public Utilities Commission approve the $250 million project.[3] Judge Lipman found solar generation to be a better investment than natural gas for Xcel, the first time in the U.S. that a court or administrative law judge has officially determined unsubsidized solar energy to be a better option than natural gas for ratepayers.[4]   Click here to read more. 

[1] Solar Plan Ok’d by MN Public Utilities Comm., Chisago County Press (April 3, 2014, 6:00 PM CST),

[2] Adam Belz, Largest-Ever Minnesota Solar Project Gets Tentative Legislator Approval, Star Tribune (March 28, 2014, 5:44 AM),

[1] Geronimo Energy’s Distributed Solar Energy Proposal, In the Matter of the Petition of Northern States Power Company to Initiate a Competitive Resources Acquisition Process, Docket No. E002/CN-12-1240, April 15, 2013.

[2] Id.

[3] David Shaffer, State, Power Companies Attack Solar Energy Plan, Star Tribune, January 22, 2014.

[4] Lucy Woods, Solar Beats Natural Gas in Landmark US Judicial Ruling, PVTECH (January 3, 2014),


There’s Sand in Them Thar Hills: Minnesota Races to Regulate Frac Sand Mining
By Jeremy Greenhouse and Susan Wiens 
Published in the April 2014 issue of Bench & Bar

“Not all that tempts your wand’ring eyes And heedless hearts, is lawful prize; Nor all that glisters, gold.”1   The silica or “frac” sand boom in Minnesota appeared to have all the makings of a modern gold rush: extensive sand supplies, rabid demand, national media coverage, speculators offering to pay multiple times market value for […]


Controversy Over $250 Million Solar Energy Plan
By Elizabeth Henley

On April 15, 2013, Geronimo Energy submitted a distributed solar energy proposal (pursuant to Minn. Stat. § 216B.222) to provide up to 100 megawatts of solar energy with the goal of meeting a part of Xcel Energy’s capacity and energy needs between 2017 and 2019.  Geronimo’s proposal is to construct and operate 2 to 10 MW distributed solar energy facilities on 31 sites located adjacent to either distribution or transmission substations throughout Xcel’s Upper Midwest Service Territory.  The proposal’s in-service date is December 2016, which would make capacity available for Xcel’s peak demand during summer 2017.  Geronimo also mentioned its willingness to bring portions of the proposed 100 MW online as early as 2014 and 2015, subject to demand.  The project will provide 72 MW of accredited capacity to help Xcel meet its non-wind variable generation resource peak capacity obligations within the Midwest Independent System Operator’s (MISO) Planning Reserve Sharing Pool.  Additionally, the project will provide about 200,000 MWh of energy during its first year, 70 percent of which will be produced during peak use hours and 100 percent between 5 AM and 9 PM CST.  Click here to read more.

The Proposed Enbridge Pipeline
By Elizabeth Henley

On June 7, 2013, Enbridge Pipelines (North Dakota) LLC (EPND) submitted an initial filing notice to the PUC for its proposed construction of a new 612-mile crude oil pipeline, 299 miles of which would traverse northern Minnesota. On November 8, 2013, Enbridge filed plans with the PUC for the proposed $2.6 billion Sandpiper pipeline. The pipeline would stretch from south of Tioga, North Dakota (Beaver Lodge Station) across northern Minnesota, following a proposed route that passes near the Mississippi River headwaters before entering Wisconsin where the oil will be sent from Superior to Canada. Click here to read more.

Soil vapor migration in Minnesota Brownfields
By John Ryan

Imagine, for a moment, you own a real estate development firm. Your company specializes in flipping neighborhood-killing contaminated properties nobody else will touch. You’ve just completed a voluntary cleanup of a property laced with volatile organic compounds in the soils and groundwater. The remediation process took years – from identifying the contaminants, to hashing out cleanup options with the Minnesota Pollution Control Agency (MPCA), to excavation and treatment of the soils. Plus, you’ll spend much of the next decade in court seeking cleanup costs from a responsible party that fights all its legal battles by attrition. Click here to read more.

Using the Common Law to Fill a Regulatory Void: Can Common Law Remedies be Used Against Hydraulic Fracking Entities? 
By Tim Gorde

Hydraulic fracturing (also knowing as fracing or fracking) has led to a new energy boom across many different areas of our country.1 Fracking is a process in which a well is drilled, cased in concrete and cement, then fluids are pumped into the ground under pressure creating fractures through which natural gas or oil can flow into the well.2 It is crucial to domestic oil production; approximately thirty-five to forty percent of oil reserves would be unrecoverable without the use of fracking.3 Yet, the process is not without controversy, as people fear that fracking could be leading to groundwater contamination4 and even micro-earthquakes. Click here to read more.

A Taking of What? How Extending Nollan and Dolan to Monetary Exactions will have a Significant Impact on the Effectiveness of Minnesota’s Wetland Conservation Act
By Tom Burman

The abundance and diversity of Minnesota’s wetlands are virtually unmatched by any other state.1 The economic and ecological benefits of these wetlands range from providing critical wildlife habitat and natural flood prevention2 to playing a unique cultural role.3 However, only fifty percent of Minnesota’s original wetlands remain.4 To stop this depreciation, the legislature enacted the Wetland Conservation Act of 1991 (“WCA”), calling for a “no net loss in the quantity, quality, and biological diversity of Minnesota’s existing wetlands.” Click here to read more.

Environmental Response Fund Restored 
By Chuck Salter

A tiny tax that has created more than $1 billion in private redevelopment died at the end of last year but was resuscitated through the efforts of Hennepin and Ramsey Counties and partners interested in economic and community development.

The Minnesota Legislature reinstated the Environmental Response Fund (ERF) before it adjourned in May. Hennepin and Ramsey Counties used the fund for more than 10 years to clean up hazardous waste sites, but the law expired December 31, 2012.  The new law keeps the fund going through 2028.

“This was a great effort for a great cause,” Hennepin County Attorney Mike Freeman said. “Cleaning up pollution to allow future development is really important for our communities. This very small fee helps fund important efforts to reuse critical land. Great work legislators and advocates!”

The fund is unique to Ramsey and Hennepin Counties and is funded by a small tax on property transactions. The counties collect both a mortgage registry and a deed tax of 1/100th of 1 percent each or $20 for every $100,000 of any property sold in those counties.  Click here to read more.

Minnesota’s Solar Energy Mandate
By Alex Moss

On May 23, 2013, Governor Mark Dayton signed into law the Solar Energy Jobs Act, which will increase the state’s solar generation significantly in the next decade, as part of a large omnibus economic development bill.  The energy mandate includes a 1.5 percent by 2025 solar electricity standard for all investor-owned public utilities.  Act of May 23, 2013, ch. 85, art. 10, § 216B.1691 (2013).  A non-mandatory solar energy goal of 10 percent by 2030 is also outlined in the bill.  Id.  The new mandate is imposed on top of the 25 percent by 2025 renewable energy standard passed in 2007.  Click here to read more.


Garbage Burning in Minnesota Gaining Steam?
By Samuel Johnson

In downtown Minneapolis, in the shadow of Target Field, sits the Hennepin Energy Recovery Center (HERC). HERC is a cornerstone piece of Minnesota’s plan to reduce landfill use as the state continues its quest to find greener solutions to its environmental problems. HERC burns approximately 365,000 tons of garbage a year, or just over one-third of Hennepin County’s total garbage production. See Hennepin County, The Hennepin County Energy Recovery Center: A Waste-to-Energy Facility, available at Hennepin County currently operates HERC at 90% of capacity, but wants to increase capacity to 100% in order to take an additional 40,000 tons of garbage out of the waste stream each year. This plan has met with resistance from the Minneapolis City Council. See Rochelle Olson, Hennepin County: Standoff over trash burner’s capacity is rubbish, Star Tribune (Mar. 15, 2013). This article will address the concerns of the Minneapolis City Council (MCC), the Hennepin County Board (HCB), and the Minnesota Pollution Control Agency (MPCA) as it relates to Minnesota’s legislative goal of pursuing green energy and reducing reliance on landfills to dispose of our waste. Click here to read more.

Frac Sand Mining Moratorium Update April 2013
By Samuel Johnson

An article posted to this website in 2012 provides background material about frac sand in Minnesota and Wisconsin as well as information about moratoriums approved by governmental bodies in both states. This update shows the current status of the moratoriums as of January 2013. Notations in bold reflect changes that have occurred between September 2012 and January 2013. Click here to read more.

Forest Roads and Clean Water Act Update
By Professor Jay O’Laughlin

The Clean Water Act (CWA) mandates that the discharge of any pollutant by any person is unlawful, except in compliance with other provisions of the statute. The CWA provides the National Pollutant Discharge Elimination System (NPDES) permit program for pollutants discharged from a “point source”—defined as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel [etc.] from which pollutants are or may be discharged.” Litigation by the Northwest Environmental Defense Center (NEDC) challenged the longstanding U.S. Environmental Protection Agency (EPA) position that most silvicultural activities, including forest roads, are nonpoint sources and thus exempt from NPDES permit requirements. Click here to read more.

The Coal War Rages On
By Samuel Johnson 

While North Dakota and Minnesota enjoy many cultural similarities and are generally amicable neighbors, the fight over clean and renewable energy—particularly the burning of lignite coal—is increasingly becoming a source of friction between the two states. See generally Patrick Zomer, The Carbon Border War: Minnesota, North Dakota, and the Dormant Commerce Clause, 8 U. St. Thomas. L.J. 60 (2010). North Dakota has one of the country’s largest reserves of lignite coal, a younger form of coal than bituminous and anthracite coal which, because it has not completely transformed from peat to a mature coal, has a higher sulfur content and, thus, is a greater polluter than other types of coal. Since it is inefficient to transport lignite coal long distances, it is commonly burned close to the mine, usually as a source of fuel to generate electricity. Click here to read more.

Goodhue Wind Project Update
By Samuel Johnson

In the continuing saga of the Goodhue Wind Project, the Court of Appeals handed the developers a significant victory on June 25, when they upheld the decision of the Minnesota Public Utilities Commission (MEPC) to disregard Goodhue County’s setback requirements. In re AWA Goodhue Wind, LLC, No. A11-2229, 2012 WL 2369004 (Minn. Ct. App. June 25, 2012). Goodhue County had passed an ordinance requiring a 10 rotor-diameter (RD) setback distance. The rotors in question have a diameter of 271 feet. This would mean a setback distance of 2,710 feet, or just over half-a-mile. This setback distance far exceeds the 6-RD setback distance traditionally required of developers. Click here to read more.


Climate Change and the Common Law: Who’s to Pay for Global Warming?
By Jeremy Greenhouse
Published in the February 2011 Issue of Bench & Bar

Four cases invoking the public nuisance standard, including one now before the Supreme Court, seek to hold corporations responsible for damages due to their greenhouse gas emissions. Minnesotans are among the defendants and Minnesota law may offer plaintiffs alternative causes of action. With congressional efforts to address climate change at a standstill and greenhouse gas […]