Electric transmission lines, eminent domain, and the consequences of vague and broadly worded laws – Part 1

Posted on October 15, 2007

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In 2005, Congress passed the Energy Policy Act of 2005 (referred to as the EPAct from here on), the first attempt in recent history by the federal government to address the generation, transmission, refining, etc. of all types of energy on a national scale. At 551 pages, the EPAct is packed full of good ideas, bad ideas, and ideas that furrow your brow and make you go “hmmmm….”

Title XII, Subtitle B (starting deep in the EPAct, on page 354) contains a significant number of ideas of the third variety. In essence, this subtitle addresses the ability of the federal government to overrule local and state authorities and permit the use of eminent domain for the construction of new electrical power distribution lines as well as incentives to develop and deploy advanced transmission technologies and the methods by which all of this is funded. What follows below is a detailed look at the roughly nine pages that make up the “Transmission Infrastructure Modernization” section of the EPAct.


The Designation of National Interest Electric Transmission Corridors

The U.S. Department of Energy on Tuesday designated nearly all of Southern California, parts of Arizona and much of the northeast as “national interest” energy transmission corridors, an action that allows federal regulators to approve new high-voltage towers and lets private utilities condemn homes and land even if a state agency won’t. (source: LATimes story)

In addition to large blocks of southern California and SW Arizona, this declaration affects the entire mid-Atlantic megalopolis from Washington D.C. up to New York City, including massive portions of New York, Pennsylvania, West Virginia, and the entire states of Delaware, Maryland, and New Jersey. Residents of most of the affected regions and their representatives are understandably unhappy by this turn of events. Here’s a sampling of quotes from local newspapers regarding the news that they’re regions have been declared a “national interest electric transmission corridor” (NEITC).

“People live out here because they don’t want the congestion and the traffic; they’re interested in a different quality of life,” [Danny Sall, 59, a lifelong resident of Pioneertown] said. “Constitutionally I think we should be able to do that without some conglomerate 100 miles away coming in saying, ‘Ha ha, this is for the greater good because we have more heads to count, so we’re taking your land.” (source: LA Times story)

“By creating NIET Corridors, the federal government will be able to usurp states’ rights to regulate what goes on within their boundaries,” [Chris Rossi, co-chairwoman of Stop NYRI, Inc., a group dedicated to stopping a 400 kV transmission line through New York] wrote. “They will be able take your property by eminent domain; destroy recreational, cultural and historic sites throughout New York; and subvert New York state’s progressive energy policies.” (source: Oneonta Daily Star story)

“It’s almost as if the hearings never took place,” said Robert Lazaro, director of communications for the Piedmont Environmental Council, referring to a series of public hearings at which the Energy Department gathered input over its draft corridor, proposed in May. Hundreds of local residents turned out to one of the hearings in South Park in June.

No changes to the draft corridor were made, despite more than 2,000 public comments and letters. (source: Pittsburg Post-Gazette story)

“I am deeply saddened in the department’s decision to go forward with this designation,” [Republican Rep. Frank R. Wolf] said on Tuesday in a press statement. “It makes no sense and has the potential to destroy neighborhoods and desecrate huge swatches of historically significant land.

“The fact that power companies will continue to be able to ignore the need for increased conservation and smart technology remains extremely troublesome. It is almost as if the department didn’t listen to any of the arguments against creating these corridors.” (source: Winchester Star story)

Don Corwin, president of the Halleck Community Association, which is outside of Morgantown, told The Dominion Post of Morgantown on Tuesday, “The Department of Energy, driven by the power-industry lobby, has decided that the property rights of West Virginians should be sacrificed so people in New Jersey can air condition their mansions.”

“Once again, the people of West Virginia are asked to give away more of their rights for out-of-state corporations and get nothing in return,” Corwin told the newspaper. (source: Charleston Daily Mail story)

The quotes above make it obvious that the public didn’t see this coming, even though the applicable language of the EPAct makes it quite clear that such broad designations are possible. What enabled this “abuse” of eminent domain and federal authority is some overly broad and remarkably vague language in the EPAct itself. Section 1221.a.2 (starting on page 354) states:

After considering alternatives and recommendations from interested parties (including an opportunity for comment from affected States), the Secretary shall issue a report, based on the study, which may designate any geographic area experiencing electric energy transmission capacity constraints or congestion that adversely affects consumers as a national interest electric transmission corridor.

“Any geographic area” is broad language, and likely intentionally so. Congress probably didn’t want to restrict the ability of the present or future administrations to ensure that public safety, the economy, national security, etc. didn’t suffer as a result of insufficient transmission line redundancy, reliability, and capacity. And Congress was right to be concerned. The U.S. power grid is both fragile and vulnerable to sabotage, and because electricity transmission lines are often shared across state boundaries and even different regions of the country, the federal government has a vested interest in ensuring that the transmission lines are dependable. After all, when there isn’t enough capacity and redundancy in the system, we can suffer from major regional blackouts like 2003 North American Power Blackout.

When it comes to electricity service, we cannot afford to permit NIMBY-ism to result in a blackout that suspends vital services like police and fire dispatch, hospitals, traffic lights, air traffic control, etc. Simply put, some things are simply too important, too much in the “public interest,” to allow one state to hold indefinite veto over the rights of another. The question is where to draw the line – something that our representatives are supposed to figure out for their constituents.

Unfortunately, our legislators approved language that was both broad and vague, a bad combination for any legislation, and the result is a combination that gives the President expansive authority with regard to transmission lines. Let’s look at the language that defines what qualifies as an NIETC:

(4) In determining whether to designate a national interest electric transmission corridor under paragraph (2), the Secretary
may consider whether –
(A) the economic vitality and development of the corridor, or the end markets served by the corridor, may be constrained by lack of adequate or reasonably priced electricity;
(B)(i) economic growth in the corridor, or the end markets served by the corridor, may be jeopardized by reliance on limited sources of energy; and (ii) a diversification of supply is warranted;
(C) the energy independence of the United States would be served by the designation;
(D) the designation would be in the interest of national energy policy; and
(E) the designation would enhance national defense and homeland security.

This means that if the administration determines that economic growth will be slowed by lack of cheap power, then it can overrule local control. If the administration decides that local laws restricting the availability of certain kinds of power (ie only “clean” sources, such as legislated in much of the northeast and mid-Atlantic states) might slow economic growth, local control can be overruled. If the administration decides that U.S. “energy independence,” “national energy policy,” “national defense,” or “homeland security” are at risk due to insufficient transmission lines, then local control can be overruled. And this power is available to to all future administrations as well as the current one.

And we gave such broad authority to the federal government why, exactly? Just because the federal government has an interest in keeping the lights on doesn’t mean they should be given carte blanche to overrule state and local objections to electric transmission lines in large areas. It’s one thing to permit the federal government to exercise eminent domain on a project-by-project basis if a state or local government is being obstructionist – it’s something else entirely to declare three entire states an NIETC.

But given the current administration’s aggressive views on presidential authority, declaring huge swaths of the country as NIETCs should have been expected. After 9/11, Vice President Cheney ordered the arrest of the Lackawanna Six because the FBI couldn’t guarantee him 100% that the Six weren’t a threat. What is there to prevent the present administration, or a future one, from using the same unreasonable 100% criteria? After all, it’s not possible for anyone to guarantee, to 100% certainty, that economic strength and growth will not be jeopardized or constrained by lack of diverse power sources. Because of this, the phrases “economic vitality… may be constrained…” and “economic growth… may be jeopardized…” potentially give the administration massive and unrestrained authority.

The language of the EPAct could give an administration the authority to overrule local control regarding transmission lines nationwide just because every customer doesn’t have the option to buy cheap coal power. And, indeed, many people in the mid-Atlantic states and New England are claiming that this was the Bush Administration’s very goal:

[The newly designated corridors] would also undermine Northeast states’ bid to reduce greenhouse-gas emissions by causing them to rely more on cheaper coal-fired power from the Midwest, rather than cleaner but higher cost electric generators fired by natural gas. (source: Christian Science Monitor story)

According to the White House’s energy page, our National Energy Policy (NEP) is “Reliable, Affordable, Environmentally-Sound Energy.” The Department of Energy’s NEP page starts with the following quote from President Bush: “America must have an energy policy that plans for the future, but meets the needs of today. I believe we can develop our natural resources and protect our environment.” Neither of these NEP statements really summarizes what our national energy policy is, and nor does the Energy Policy Act of 2005. After all, if the EPAct is itself the national energy policy, the circular reasoning could be used to justify literally anything.

Even if we buy that the “reliable, affordable, environmentally-sound energy” sound bite actually is the NEP, how does bypassing New England’s various state laws requiring clean albeit more expensive energy qualify as “environmentally-sound?” More transmission lines will certainly help with the reliability, and it might make the electricity more affordable, but coal is hardly environmentally-sound. At least, many mid-Atlantic and New England states have decided that coal doesn’t meet their collective definition thereof. But if you read deeper into the many articles quoted above, you’ll notice that many of the locals fighting the new transmission lines have experts saying that the transmission line reliability is already good enough.

Finally, it’s unclear how overruling local control enhances our energy independence – unless the federal government has decided to sell our national soul to the coal industry. Put simply, the only local energy sources presently available that might enhance our energy independence is coal. And giving the administration eminent domain authority in order to enhance national defense and homeland security is so broad it’s difficult to know where to start.

Next:
Construction Permitting in National Interest Electric Transmission Corridors
Rights-of-Way, Easements, and Exercising Eminent Domain
;The Way Out – Regional Transmission Siting Agencies; Conclusions

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