Democrat Public Utilities Commission candidate Jeff Barth might have just disqualified himself from CO2 pipeline hearings at the onset of his race
The Democrat Convention this past weekend has provided interesting commentary from the new challenger for the office of Public Utilities Commissioner. The only problem is that the commentary communicates an absolute bias against a matter in front of the PUC coming from someone running to serve on that panel. From this weekend – Keloland 7/10/22
The PUC is considering a state permit for a proposed Summit Carbon Solutions pipeline that would collect carbon dioxide from various ethanol plants in the region and bury the gas in North Dakota.
“The CO2 pipeline, it’s, it’s really a terrible thing,” Barth said. He noted that when Dan Lederman, the South Dakota Republican chairman, first brought the proposal to the Minnehaha County Commission, Barth thought, “Oh okay, what is this?
“And the more I found about it, the more I turned against it. It can explode. It can kill you by asphyxiation. This is going to make a lot of money, for some people, but not that much for anybody in South Dakota. Certainly some of our ethanol plants are excited to have it. But they’ve been operating without this pipeline for thirty years.
And it isn’t just convention-fueled political hyperbole, he’s also put his objections in writing to the commission.
Claiming a pipeline is “a terrible thing” that can “explode” and “kill you by asphyxiation” would appear to be an insurmountable bias, which is particularly troubling for someone running to serve on a quasi-judicial body. If you’re elected to be a fair and impartial judge on utility matters before the commission, how does that work when you are campaigning on being anything but impartial?
It doesn’t. And will automatically invite the state going to court going to court over it – and likely losing.
As explained six years ago in the Argus Leader (10/26/2016), PUC Commissioners are expected to act with much more impartiality:
(Chris) Nelson sees himself as an impartial judge of energy infrastructure projects and proposed energy rate hikes and a champion for extending broadband access to underserved rural populations.
Nelson has declined to take a position on future pipelines, power plants or wind energy projects and says doing so would taint his ability to act as a judge of the facts. Were he to show his hand before a hearing, Nelson said, he’d almost certainly be asked to recuse himself by a permit applicant.
State law expects impartiality from commissioners as they weigh electric rates and energy projects, Nelson said.
“People ask me ‘are you pro-pipeline or anti-pipeline?’ That question is irrelevant,” Nelson said. “We serve in a judicial capacity.”
And in fact, on this project, Commissioner Kristie Fiegen removed herself because the proposed pipelines would cross land owned by her sister-in-law (husband’s sister) and her husband. It wasn’t even a direct conflict, but because it affected a relation, she felt the needs for a palms-up recusal.
The kind of impartiality from Commissioner Nelson and Commissioner Fiegen are what South Dakota voters expect from their Public Utility Commissioner. Not declarations that they are running to oppose specific projects. And here’s where Barth may have inadvertently gotten himself into trouble.
It’s not the first time it’s come up, as back in 1990, Democrat Commissioner Ken Stofferahn got himself drug into court for similar biases when he declared US West Communications were “jackals in lambskins,” and they hauled the PUC into court demanding a recusal because of his bias. They didn’t grant a blanket recusal, but they recognized that you don’t get to be a crusader:
The trial court was correct in the factual findings relating to Stofferahn’s unalterably closed mind, bias and prejudice and the judgment declaring that Stofferahn should be disqualified in cases pending at the time of the entry of the declaratory judgment. This does not mean, however, that Stofferahn cannot or will not adopt a different attitude at some time in the future. This very real possibility was specifically recognized and addressed in the trial court’s memorandum opinion which was made part of the findings of fact and conclusions of law:
Although Commissioner Stofferahn argues he has put aside his prior views and can fairly judge USWC, he has never recanted his views on the competitive status of telecommunication services in this state, an issue critical to the disposition of future deregulation and classification proceedings. Furthermore, it is evident he continues to adhere to that view as he argues to this Court that his statements were justified by his good faith concern to attract public attention to “the dangers of the legislation.”
And..
In summary, we affirm the judgment disqualifying Stofferahn from participating as a member of the PUC where the material facts, law or policy involved in the docket concerns the deregulation or classification of telecommunication services, or involves the determination of the competitive status of telecommunication services of pending dockets, and also affirm the denial of USWC’s request that Stofferahn be disqualified in all future cases where USWC is a party.
The judgment declaring Stofferahn disqualified in all future dockets involving USWC where the material facts, law or policy involved in the docket involves the deregulation or classification of telecommunication services, or involves the determination of the competitive status of telecommunication services of future dockets is reversed.
So there’s a good chance he’s going to be forever disqualified from hearing these matters he’s campaigning on because of his already expressed bias. It won’t be a blanket ban, because at least the 1990 court wouldn’t allow that, but I’m guessing CO2 pipeline owners have a pretty good basis to force the matter to hearing to at least attempt to disqualify him. And there’s a good chance they may win.
While Jeff is entitled to his opinion, he probably should have run for another office if he’s going to be an anti-pipeline crusader. Because his position and anti-pipeline advocacy are incompatible with the job he’s placing his name on the ballot for, and I have no doubt they’ve taken note.
Sioux Falls Democrat Tom Cool, a former journalist who ran for state auditor in 2018, will carry the party’s platform to the November ballot in the race for Secretary of State. He’ll go up against Monae Johnson, the GOP candidate who knocked off incumbent Steve Barnett on a campaign that honed in on Republican disatisfaction of the 2020 presidential election.