The Iowa Utilities Board (IUB) is responsible for regulating utilities, including electric, gas, and pipelines. Over the years, as the Iowa Chapter has engaged in cases handled by the IUB, it has become obvious that there are serious shortcomings.
The IUB should ensure that the right to due process is protected for all parties involved in IUB proceedings.
The formal IUB hearings are similar to a regular court hearing, but there are some unique features. Some of those features reduce the due process rights of parties appearing before the Board and need to be reformed, including:
- A party is entitled to discovery. The IUB should not arbitrarily limit the data requests that can be served on another party.
- Any party can request an extension of time in order to gather materials related to the issue before the board and to have adequate time to prepare for the proceedings.
- The IUB must rule on discovery issues brought by the parties before the formal hearing. Any ruling must be made such that all of the parties have time to react to the ruling before the formal hearing. That includes giving the parties adequate time to allow review of the discovery materials that were contested. In the case of the Dakota Access pipeline hearing, the IUB ordered Dakota Access to turn over discovery materials to the Sierra Club during the hearing. Then the IUB wanted Sierra Club to use those materials, an inch-thick stack of paper, for questioning the same day they were released. That is absolutely unreasonable.
- All parties have a right to question any individual giving testimony. There should be no prohibition on cross-examination of any witness, including witnesses of other parties even if they nominally are supporting the questioner’s side. During the Dakota Access pipeline case, the parties were prohibited from asking questions of witnesses that were perceived to be on their own side, even though the testimony might not have been completely on an individual’s side. The parties were further restricted by not being allowed to ask follow-up questions. This violated the parties’ due process rights.
All projects that will be built on easements shall have an environmental assessment completed before the formal hearing.
The IUB should require that a utility conduct an environmental assessment before the utility applies for a construction permit. That assessment will be required to review archaeological and biological assets. It should also require an analysis of alternatives to avoid forested areas, wetlands, prairies and other natural areas. Iowa has lost a significant amount of its natural areas. Remaining areas in private hands should not be destroyed.
The Utilities Board should require a consultation with the State Archaeologist’s Office before granting a construction permit.
Indemnity Funds need to be raised beyond $250,000.
For a hazardous liquid pipeline, the state law requires an indemnity fund of $250,000. The IUB can choose to require assurances from the utility that they will cover greater costs in the event of a spill or leak. The utility can voluntarily pledge to cover the costs of cleanup due to spills or leaks. However state law should require a greater indemnity fund. Cleanup costs from leaks can cost millions of dollars. The only way to protect the public is to require the utility to prove that it can cover cleanup costs before the construction permit is granted.
The IUB should ensure that future generations are protected when the Board makes decisions.
The IUB members must take into account in their decision how the proposed project or request will affect future generations. Some of the decisions that the IUB renders will affect people living in Iowa for generations. The decisions need to consider the risks and benefits to those people.
Conclusion
The changes to the laws related to the Iowa Utilities Board jurisdiction, regulations, and authority that are suggested would better protect the public and would ensure that the public is better represented.