NEW ENERGY, NEW TRANSMISSION AND EMINENT DOMAIN

Will New Power Lines Run Through Your Back Yard?
Coral Davenport, March 7, 2009 (CQ Politics)

SUMMARY
To deliver New Energy to the population centers where it is in demand from the remote locations where it is plentiful and can be readily harvested, thousands of miles of new transmission are planned and much of it will transit private and protected property.

Such wires will surely be delayed significantly by Not-In-My-BackYard (NIMBY) property rights advocates and Build-Absolutley-Nothing-Anywhere-Near-Anything (BANANA) environmental advocates unless there is a federal mandate validating the exercise of rights of eminent domain.

Decisively cutting through the tangle of competing complainants is the only way to overcome bottlenecks created by regulatory controls at the state and local levels. Failing to do so is the main reason today's national grid is a barely manageable patchwork gnarl. Former CIA Director R. James Woolsey recently said it would be impossible to intentionally design a transmission system so fragile and vulnerable.

Senate Bill 539, introduced by Senate Majority Leader Harry Reid (D-Nev), would give the Federal Energy Regulatory Commission (FERC) the power to exercise decisive action in the case of regulatory logjams.

The Senate Energy and Natural Resources Committee, chaired by Senator Jeff Bingaman (D-NM), is working with Senator Reid and preparing the transmission legislation for inclusion into the larger Congressional battle over energy and climate change.

The upgrade-the-grid bill is expected to get significant bipartisan opposition from Senators Jon Cornyn (R-Tex), Bob Casey (D-Penn) and Robert Menendez (D-NJ) and others who will not be opposing new transmission but defending states' rights.

Building transmission for New Energy is more difficult than building other transmission because it requires placing wires not just near demand centers where energy-hungry consumers are used to tolerating such intrusions but in remote, little-trammeled locations where incursions of any kind are not readily tolerated.

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New Energy transmission will also likely cross state borders to deliver a resource drenching one region (examples: Midwestern wind, Southwestern sun, West coast wave energy) to energy-poor population centers in a range of adjacent states. Every county and state border crossed engages a new set of regulators ready to defend their own turf.

The last effort to streamline new transmission showed how controversial such an undertaking can be. National transmission corridors modeled on the Interstate Highway System were mandated by the Energy Policy Act of 2005. The act gave FERC enforcement power. The result was legal gridlock from state and local resistance. In February 2009, the 4th U.S. Circuit Court of Appeals ruled that the federal government had overreached.

The Reid bill makes FERC’s federal authority the law. The bad news: FERC will still meet legal challenges. The good news: State and local authorities are starting to understand they must cooperate on a national project. The National Association of Regulatory Utility Commissioners (NARUC) is reportedly reconsidering its opposition to federal siting authority.

New high-volatage wires will reduce environmental impacts. (click to enlarge)

COMMENTARY
The granting of rights of eminent domain inevitably separates passionately sincere people from treasured places and must be done with reason and respect.

Eminent domain does not specifically address the obstacle of environmental impacts but would facilitate the transit of private property once environmental authorities pronounce new transmission an acceptable intrusion on the landscape.

The fight over the tranmission legislation’s intrusion on property rights is expected to be loud and brutal.

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Texas has avoided the worst of the infighting by pre-identifying renewable energy zones where resources are so plentiful and the opportunity for lucrative return so great that (1) it is worth the effort to settle rights of way and (2) those involved in the struggle stand to profit from reaching a compromise.

With FERC authority and renewable energy zones and the potential for direct or indirect profit from New Energy projects all becoming more common, it is likely a national transmission system will take shape as New Energy capacity achieves critical mass and becomes ready for national distribution.

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QUOTES
- James Rogers, CEO, Duke Energy Corp.: “Renewables without eminent domain will not get to market…”
- Senator John Cornyn (R-Tex): “In my state, private property is sacrosanct…Giving the federal government the right to usurp private property or states’ rights raises some red flags, definitely.”
- Former Governor George E. Pataki (R-NY): “You try to run a wire through a community, that’s one of the most contentious things you can do — especially when you put transmission from one end of a community to another that comes from another state…What we need is a federal permitting process. If it’s left to a state-by-state basis, it’s not going to happen. We have a model with national gas pipelines…[Thwe solution is to give legal authority to FERC]… so that these transmission lines that we all want and need will get built.”

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- Robert J. Thormeyer, spokesman, NARUC: “We see this is something that Congress is clearly moving forward on, so we’re grateful to have a seat at the table, and we’re looking into updating our position…It might be more of a ‘less opposed’ than a ‘support,’ but we expect to work with Senator Reid.”
- Senator Reid: “A massive planning effort will begin in all the interconnection areas of the country to maximize the use of that renewable potential by building new transmission capacity…If that process falters, then the federal government would be given clear authority to keep it going and get that new transmission built on schedule.”