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Sunday, September 27, 2009

From the Comments: Dusty Johnson Lets Me (and Bloggers) Have It

South Dakota Public Utilities Commissioner Dusty Johnson wins promotion from the comments section with this stern chastisement of my political hyperbole. In my Thursday commentary on the PUC's decision to compel TransCanada to give Dakota Rural Action more information on its Keystone XL pipeline plans, I made the following offhanded comment:

Dang—either Dusty Johnson is running for higher office next year, or the PUC is realizing we South Dakotans really do need to make stronger demands of TransCanada to protect our natural resources from the short-term thinking of Big Oil.

Commissioner Johnson checks in to register his displeasure, not so much at the fact that I give him heck even when the PUC does something I like (and he would be entitled to that complaint as well), but that I would accuse him of putting political games above the law:


I'm more than a little disappointed you insinuate my votes on legal matters are based on political calculation, rather than on what the law says.

I haven't given you an reason to think so little of me, you know. We've had an open and honest exchange of ideas when we've spoken. I know it's fun to play politics, but I expected more of you.

The truth is that the PUC has never (when I've been around) ruled that information on decommissioning was inadmissable or wasn't subject to discovery. We've taken that view with Keystone, with windfarms, with natural gas power plants, and with everything else. Additionally, whether or not information is subject to discovery is a technical legal issue. I know it's more fun for bloggers and political operatives to presume that politics is the big engine that powers all decisions made by anyone, anywhere, but that isn't the case.

When the law is on DRA's side (and it was most of the time on Tuesday), they'll win. When it isn't, they'll lose. Pretty simple, actually.

- Dusty Johnson [2009.09.26]

Commissioner Johnson makes a perfectly sensible complaint. He says the same thing that I've said, essentially, about my positions and proposals on the Lake Herman Sanitary District board: that my decisions are strictly in accord with the law and good public policy. I get owly when folks (including my fellow board member Larry Dirks) have imputed selfish motives to my public policy-making actions; Commissioner Johnson's owliness is justified (and he doesn't make a ruckus in the library to do it).

This scolding reminds me of things I've said about Congresswoman Stephanie Herseth Sandlin. I've not been kind to her this summer. I've criticized her for votes that look like they are more in the interest of campaign donors than the general public. She has elsewhere called such accusations "ridiculous."

Are we bloggers too cynical? Are we too quick to ascribe the worst intentions to our elected officials? Are we just playing word games, taking digs to stir controversy where good public servants are just doing their jobs? I welcome further discussion....

By the way, you can get the straight poop on South Dakota energy policy from Commissioner Johnson Tuesday in Mount Blogmore's first ever live chat.


  1. If we take PUC statements at face value, their power is limited to the permitting process. Once the permitting process is over, they become something like a political eunuch or political equivalent of a human appendix.

    The more information they can pull out of the pipeline company the better. One concern the dog and pony show they put on in Winner, SD a few months ago suggested difficulty in the future if problems with the line developed.

    A representative of the pipeline indicated with regard to a question on illegal aliens working on pipeline crews that they those crews were independent contractors.

    So, my question a few days after the meeting of course became, "Who is responsible if a pipeline leaks and pollutes water or destroys other resources if the problem was the result of an independent contractor error...especially if that independent contractor folded up their tents right after the line was completed.

    Disclaimer: A pipeline company rep was interested in using some of my land as a place for a pipeline camp of somekind. He then informed me that some of the powers that be around here presented some irrelevant objections to that. My guess is the real problem was that somebody with more interest wanted to collect that rent for a few years. It will be very interesting to see where that camp ends up and on whose land.

  2. As George McGovern pointed out last Friday night in Rapid City, one party rule has basically created a situation where the president of SDSU can sit ($400K/yr) on Monsanto's board. (Remember SDSU does research that could potentially hurt Monsanto's legendary dirty chemical business.)

    I don't know why Dusty has his panties in a twist, given the realities of how DM&E, Big Stone II, Hyperion, not to mention the many stories we all have heard about friends of the Governor getting special favors, what does he expect?

    When Heidepriem gets elected, I sure hope he does some investigation of what's been going on in the Governor's mansion.

  3. Cori,
    I don,t think cynical is the word I would use to discribe most political bloggers. I think many of those with a wide audience fail to appreciate the influence they have.

    Perhaps these bloggers should develop their blogs more like responsible journalists. Yellow journalism is fine when a newspaper is in its infancy and needs to attract readers, but as it gains readers it also needs to gain respectablity and act in a responsible manner. They should not mix fact, fiction, and emotion.

    No criticism of your blog is intended and I do enjoy reading it. Keep up the good work, but thought maybe I'd answer your question.

    Joseph G Thompson

  4. Thanks, Cory. You didn't have to write this post, and most bloggers wouldn't have.

    The good news is that there will be lots of opportunities for you and others to let me know when I am wrong. I'm wrong more than I like, of course!

    Life would be easier without criticism, but like the Mitchell Daily Republic blog says, "Democracy needs hecklers." You are the rare heckler that is thoughtful and willing to clarify a heckle if you have decided your aim could have been truer. Thanks.


  5. One would have to have ascended into fruit loop heaven not to be skeptical, and, yes cynical, about South Dakota politics (both upper and lower case versions). It is not as if the state has a political history of openness and making decisions that are not influenced by the golden rule--he who has the gold rules.

  6. Kelly Fuller9/28/2009 7:53 AM

    I don't think Cory's post reflects blogger cynicism as much as it does the inherent tension in how the South Dakota PUC is set up.

    In some (many?) other states, Commissioners make the decisions but are not responsible for making sure the proceedings follow the law. That is the job of an administrative law judge.

    South Dakota's system does not use administrative law judges. Instead, Commissioners do double duty. Since these Commissioners are elected and their party affiliations are known, they are inherently political. Hence, a conflict.

    Likewise, the PUC staff does double duty. They remark in hearings that their job is to represent the public interest. However, their job is also to keep the PUC from getting sued. Sometimes those two things may be in conflict. Some (many?) other states solve this by having some PUC staff that keep the proceedings runinng and others in a separate department or a separate agency that look out for the public interest.

    States that do this differently than South Dakota include Iowa and Minnesota.

  7. Kelly,

    You are right that each state sets up their utility commission a little differently, but I don't think SD is as different as you might think.

    A few thoughts:
    1. Inherently Political -- Politics is a part of every commission. Those that aren't directly elected are appointed by a governor (or the legislature). It seems to me that those are often more political folks, not less. In some states, governors will simply remove a commissioner that no longer tows the line. In those instances, states just have one defacto utility commissioner (the governor).

    2. Admin Law Judge -- Every utility commissioner in every state is in reality an administrative law judge. We all make decisions, issue orders, and have those orders subject to appeal to a higher court. Many states have attorneys whose job title is ALJ. They run the hearings and rule on preliminary legal matters. In technical hearings, we do the same thing in SD, but use our general counsel, rather than anyone with an ALJ title.

    3. Staff division of labor -- Staff at the SDPUC also have a variety of roles, and those that are on the commission side may not discuss any specifics of the case with those on the staff side. We just have a small office (smallest PUC and affiliated offices in the country), so those divisions aren't are noticeable on an org chart.


  8. Kelly Fuller9/28/2009 12:20 PM

    Thank you Commissioner Johnson, I appreciate you taking the time to comment. I get the Commission's agenda and ruling emails and can guess what the Commission's workload must be like.

    As someone who has closely observed state PUC or utility board energy proceedings in three other states, two of them midwestern, I can say that South Dakota feels considerably different.

    It's different, for instance, to have an Administrative Law Judge issue a report recommending a decision based on the law that is very different than the final commission vote. Sometimes those differences are very instructive. Perhaps that has happened during your tenure on the proceedings you've referred to as technical. I don't know.

    I've seen similar instructive differences between what PUC staff (or in the case of Iowa, state Attorney General's staff) reconmmend and how the Commissioners ultimately vote. Again, you may have experienced that during your tenure, but I have not yet observed it here.

    As you mention, South Dakota has a very small PUC. Given the size of the energy infrastructure projects that have been proposed in South Dakota the last few years and what appears from PUC emails to be a large telecommunications workload, I think it's a legitimate question whether that small size currently serves the state's citizens well. It's not one I to which I know the answer.

  9. Dusty Johnson9/28/2009 8:37 PM


    Excellent points, and I think you are largely correct in how you describe things.

    An important point . . . the processes in most other states are adversarial. In SD, we are collaborative. The ALJ doesn't often issue decisions that differ from what SD Commissioners think, because we are sitting right there and can engage the ALJ and the parties directly. The rulings on technical matters happen right there and then, while everyone has an opportunity to comment. In too many other states, the ALJs handle all of the direct evidence and argument . . . the Commissioners just read a draft opinion and transcripts after the fact. They don't even usually ask questions directly of the parties. We do.

    Similarly, I think our decisions are rarely appealled because when we rule against parties (and in big cases, someone always loses), they feel like they were listened to and had a fair shot. More over, because all parties (even decision makers) were at the table, decisions get much closer to "yes."

    Evidence of this abounds . . . in the last decade, the SDPUC has had nearly every possible partisan split, from all GOP to all Dem, from liberal to conservative, from outsider to insider, from expert to layperson. Despite that, 95% of our important decisions have been unanimous. That is because we work so hard to craft a decision that has widespread value, rather than forcing tough votes or casting dissenting votes to score points, as they do in Congress and in other PUCs.

    If you listen to Tuesday's audio of our decision on discovery for the Keystone XL pipeline, you'll see that even though both parties are obviously emotionally invested in the issue, most of the decisions are reached by consensus. Commissioners are able to prod, poke, and plead parties into dropping their negotiation posture and doing the right thing. An ALJ can't do that effectively. If you ask both DRA and the applicant, I would guess they'd say they feel they were treated fairly. For that to happen in such a high-profile case, and with parties so clearly apart on the major issues, means we are doing something right, I think.

    Finally, our deliberations and debates happen in public, because commissioners are right there. In other states, they are removed from the process, and much of the deal cutting is done by staff of the commissioners -- no one ever gets to hear those conversations. The conversations they do hear are for show. When was the last time you heard an oral argument at the FCC? Never, because they don't actually have any.

    There are strengths to the more complex processes other states use, but I like ours.

    Dusty Johnson

  10. Kelly Fuller9/29/2009 7:33 AM

    Commissioner Johnson, thank you again for taking the time to continue a conversation.

    There is much I could say, but now that you've mentioned the Keystone XL proceeding specifically rather than continuing strictly in general terms, I have to take off my private citizen of South Dakota hat and put on my work hat. That severely limits what I can say. For readers who don't know, I work for Plains Justice, which is providing legal representation for Dakota Rural Action in the Keystone XL proceedings over which Commissioner Johnson is currently presiding.

    I listened live to the discovery hearing last week -- Commmissioner, you may remember that you and I briefly spoke over the conference call line. There is a world of things I could say about the hearing, but again, as someone who works for an organization providing legal representation for one of the proceeding's parties, prudence dictates that I do not.


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