Should utility regulators whose political campaigns receive significant contributions from people tied to the development of a planned lignite mine and mine-site power project be required to recuse themselves from voting on the matter?
Two environmental groups in North Dakota said that the answer is clearly yes, and that they plan to file a civil lawsuit in US District Court by late May to compel the US Office of Surface Mining to enforce what the groups say is a federal requirement banning state regulators from accepting campaign contributions from those they regulate.
But Commissioner Kevin Cramer, one of the two North Dakota Public Service Commission members who are the subjects of the planned suit, said that the federal Surface Mining Control and Reclamation Act does not, in fact, ban campaign contributions from coal companies, and instead bans regulators from holding direct or indirect financial interests in coal mines they regulate.
Great Northern Project Development plans to develop a lignite mine and, with Allied Syngas, a mine-site 175-MW integrated gasification combined-cycle project near South Heart, North Dakota. Great Northern is currently seeking PSC approval for the mine, and soon plans to seek approval for the power project as well.
The Dakota Resource Council and the Dacotah chapter of the Sierra Club, both of which oppose the lignite mine and IGCC project, assert that Cramer and Commissioner Brian Kalk should recuse themselves from matters associated with the projects because they received a total of more $16,000 in campaign contributions from Great Northern’s owner, Corbin Robertson, his wife, and others associated with Great Northern.
“We’ve asked [Cramer and Kalk] to recuse themselves, but they’ve refused,” Wayde Schafer, the Sierra Club chapter’s conservation organizer, said in an interview. “Once they refused, we had no choice but to go to court,” he said, noting that the chapter and the the Dakota Resource Council recently provided the US Department of Interior, the Office of Surface Mining and the PSC with 60 days’ notice of their intent to file suit.
Schafer said that the federal surface mining act is clear. It states that regulatory officials and employees that oversee the law at the state level “shall not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan or any other thing of monetary value from a coal company which conducts, or is seeking to conduct, operations or activities that are regulated by the State Regulatory Authority.”
He added, “It’s hard to imagine how you could get a fair, unbiased decision” from commissioners on a project whose owner has made substantial contributions to the commissioners’ campaigns.
In the letter in which the Dakota Resource Council and the Sierra Club provided notice of their suit, they said that the Office of Surface Mining “has allowed North Dakota to implement an improper interpretation of SMCRA conflict of interest provisions …  resulting in improper campaign contributions to Public Service Commissioners Cramer and Kalk.”
The groups added, “Recent events show that North Dakota and NDPSC are improperly interpreting the federal conflict of interest standard, and OSM has failed to enforce a proper interpretation.”
Asked to reply the groups’ charges, Commissioner Cramer said in an email that Dakota Resource Council and the Sierra Club “allege that by my campaign accepting political contributions from people with an ownership and employee relationship in a coal mining company which we have jurisdiction over, a conflict of interest exists. There are several problems with drawing such a conclusion legally and politically.”
First, he said that the groups “made a public spectacle of asking me to recuse myself from a specific case, which hasn’t even been brought before me. They then filed a complaint with the … Office of Surface Mining’s Ethics Office. According to their own letter, the OSM Deputy Ethics Counsel notified their attorney that OSM would not respond to the request. It’s hard to be more dismissive than that.”
Further, said Cramer, the groups “claim political contributions constitute a direct or indirect financial interest in a coal mine. Obviously they do not. Financial interest would be if I was an investor or owner of the company, or at the very least an employee. Clearly I am not. Our state rules are equally clear. There is no case law that even remotely supports the allegations.”
Spokesmen for Great Northern Project Development and Commission Kalk did not reply to requests for comment.
–Housley Carr