If a privately held utility has been granted public utility status by a state, does that give the company the right to enter any property in the state at any time to perform potentially damaging tests and surveys? That's the question being considered by judges in the states of Pennsylvania, Maryland, and Oklahoma recently, courtesy of American Electric Power and its subsidiaries.
This issue has rarely come up in the past because transmission public utilities have been able to propose projects, apply for permits, and even receive approval without creating this kind of pitched battle between the utility and landowners. Utility entry to survey has been voluntary, and landowners who agree have signed survey permission forms releasing the company from liability for incidental land damages. Even when large numbers of landowners refuse permission, such as happened with the AEP's PATH transmission project, the company was still able to pursue its regulatory applications and route planning because the transmission project didn't have a firm "drop dead" date by which it must be constructed.
Now, however, AEP subsidiaries find themselves involved in two projects that do have firm in-service dates. Transource's "Independence Energy Connection" has a June 1, 2020 completion date written into its Designated Entity Agreement with PJM Interconnection. And PSO's Wind Catcher generation and transmission project must be completed by December 31, 2020 in order to qualify for the federal production tax credits that supposedly make it economically beneficial. Both of these projects have self-imposed hard completion dates, therefore AEP wants to get as much pre-construction surveying and engineering done as possible during the permitting phase. It's going to take too long to survey and test after regulatory approval and eminent domain authority is granted for these specific projects. AEP fears it may miss its drop dead dates.
Ya know what, AEP? You're going to miss both these dates anyhow. Landowners who use their land as a source of income have another timetable. These dates were already too ambitious from the start. Transmission never stays on schedule, as you should well know since you like to parade your 16-year timetable to get your Jacksons Ferry-Wyoming project built as some kind of regulatory, and not personal, failure.
AEP subsidiaries claim to have a right under the law (or even by virtue of flimsy precedent), as public utilities, to enter into any property at any time to conduct tests and surveys. If it's that simple, why are you asking courts for injunctions to allow entry? As Judge Richard Renn in York County, PA, opined:
This issue has rarely come up in the past because transmission public utilities have been able to propose projects, apply for permits, and even receive approval without creating this kind of pitched battle between the utility and landowners. Utility entry to survey has been voluntary, and landowners who agree have signed survey permission forms releasing the company from liability for incidental land damages. Even when large numbers of landowners refuse permission, such as happened with the AEP's PATH transmission project, the company was still able to pursue its regulatory applications and route planning because the transmission project didn't have a firm "drop dead" date by which it must be constructed.
Now, however, AEP subsidiaries find themselves involved in two projects that do have firm in-service dates. Transource's "Independence Energy Connection" has a June 1, 2020 completion date written into its Designated Entity Agreement with PJM Interconnection. And PSO's Wind Catcher generation and transmission project must be completed by December 31, 2020 in order to qualify for the federal production tax credits that supposedly make it economically beneficial. Both of these projects have self-imposed hard completion dates, therefore AEP wants to get as much pre-construction surveying and engineering done as possible during the permitting phase. It's going to take too long to survey and test after regulatory approval and eminent domain authority is granted for these specific projects. AEP fears it may miss its drop dead dates.
Ya know what, AEP? You're going to miss both these dates anyhow. Landowners who use their land as a source of income have another timetable. These dates were already too ambitious from the start. Transmission never stays on schedule, as you should well know since you like to parade your 16-year timetable to get your Jacksons Ferry-Wyoming project built as some kind of regulatory, and not personal, failure.
AEP subsidiaries claim to have a right under the law (or even by virtue of flimsy precedent), as public utilities, to enter into any property at any time to conduct tests and surveys. If it's that simple, why are you asking courts for injunctions to allow entry? As Judge Richard Renn in York County, PA, opined:
Plaintiff is quick to claim that it does not need any court order to enter upon the lands because it has that inherent right pursuant to the Eminent Domain Code. (Plaintiff's Brief in Opposition to Defendants' Preliminary Objections ... p. 7.) Yet, Plaintiff is here in Court seeking just that -- a court order permitting it and its agents entry onto lands of Defendants.
Why are you wasting time in court, AEP? Is it because you're really not sure you have such a right? If you have such a right, why is this the first time this issue has come up? And why have you been seeking voluntary permission for decades? If you, indeed, do have such a right, you should have been exercising it for years and not asking landowners to voluntarily sign away their rights.
Judge Renn also took into consideration the nature of the studies and tests, and their specificity to each property. AEP asked for blanket permission to enter and perform any number of invasive tests, at its own discretion, including the right to cut and trim vegetation and drill holes.
Judge Renn also took into consideration the nature of the studies and tests, and their specificity to each property. AEP asked for blanket permission to enter and perform any number of invasive tests, at its own discretion, including the right to cut and trim vegetation and drill holes.
...claiming an immediate need to access Defendants' property for the purpose of obtain[ing] critical information, including various environmental studies, (including, wetland delineations, habitat assessments, and threatened or endangered species surveys), appraisals, geotechnical surveys (including soundings and drillings for testing soil and bedrock, cultural resources surveys, civil surveys (including trimming or cutting vegetation necessary for survey purposes) and all other surveys and tests necessary to properly assess the area, design and construct the proposed electric transmission line ...
(Plaintiff's Motion,~ 22).
From this description, the nature of the proposed intrusion onto Defendants' land appears to be quite extensive, quite possibly resulting in damage to the land. In fact, Defendants acknowledge the possibility of damage by noting in its Motion that it stands ready to pay damages should such occur.
While the law in Pennsylvania states that the utility shall pay for damages, it lacks any specificity to ensure damages are adequately compensated in a timely fashion. Who shall determine the extent and value of the damages? When shall payment be made? What about remediation -- whose responsibility is that? And what happens if the landowner and the utility cannot agree on damages? And what about damages that cannot adequately be compensated, such as the cutting of trees that provide a buffer or serve some other economic or sentimental purpose for landowner? Payment based on their marketability as timber is hardly adequate when the landowner never intended them to be marketable timber. Who determines the value of lost or spoiled crops? What's the value of eradicating invasive plant species that are caused by the utility's entry? What's the value of disturbed top soil or soil compaction and its effect on future crops? It seems that a little more expertise is required here to determine and price damages other than a utility's self-interested determination of immediate, visible damages and their value.
Judge Renn was not inclined to allow the utility to
Judge Renn was not inclined to allow the utility to
disrupt Defendants' peaceful possession and enjoyment of their lands with "soundings and drillings ... [and] trimming or cutting vegetation ... " possibly resulting damages, on the off chance that the power line may, in fact, run over a portion of those lands, with one exception.
That exception being the bog turtle hunts that Transource described with specificity in its motions, because the judge believed them to be non-invasive and unlikely to cause damage.
However, I note that perhaps the turtle hunts may not need to take place on every property. Does every one of the 36 properties in York County contain a wetland suitable for bog turtles? And for the ones that do, is there still enough time to perform the surveys according to the published guidelines? Run, turtles, run!!!
The only thing that Judge Renn didn't deny was the turtle hunts because they were specified as to procedure and he found them to be potentially non-damaging. The rest of AEP's trespassing wish list has been denied until further consideration and possibly a trial. Maybe Transource should have just stuck to the turtle hunts to begin with, and not asked for blanket permission to take over and damage private property?
Because that's what AEP is also asking for in Oklahoma. Blanket permission to perform damaging surveys on an uncertain route for an uncertain project has been recommended for denial by an Oklahoma Corporation Commission judge. And the only thing they rely on there is precedent where a utility was allowed the right of entry for purposes of preparing its filing of an eminent domain suit. AEP claims it is actively constructing a transmission line in Oklahoma and preparing eminent domain suits to acquire land for its project, except that's not even close to true. AEP doesn't even have a certain route yet and the OCC has not determined there is a need for the project or that it will permit the company to charge its costs to ratepayers in the state. Without cost recovery, AEP will not undertake this project. It's all about what might happen and AEP is certainly engaging in a land-damaging fishing expedition of the kind Judge Renn denied in Pennsylvania.
However, I note that perhaps the turtle hunts may not need to take place on every property. Does every one of the 36 properties in York County contain a wetland suitable for bog turtles? And for the ones that do, is there still enough time to perform the surveys according to the published guidelines? Run, turtles, run!!!
The only thing that Judge Renn didn't deny was the turtle hunts because they were specified as to procedure and he found them to be potentially non-damaging. The rest of AEP's trespassing wish list has been denied until further consideration and possibly a trial. Maybe Transource should have just stuck to the turtle hunts to begin with, and not asked for blanket permission to take over and damage private property?
Because that's what AEP is also asking for in Oklahoma. Blanket permission to perform damaging surveys on an uncertain route for an uncertain project has been recommended for denial by an Oklahoma Corporation Commission judge. And the only thing they rely on there is precedent where a utility was allowed the right of entry for purposes of preparing its filing of an eminent domain suit. AEP claims it is actively constructing a transmission line in Oklahoma and preparing eminent domain suits to acquire land for its project, except that's not even close to true. AEP doesn't even have a certain route yet and the OCC has not determined there is a need for the project or that it will permit the company to charge its costs to ratepayers in the state. Without cost recovery, AEP will not undertake this project. It's all about what might happen and AEP is certainly engaging in a land-damaging fishing expedition of the kind Judge Renn denied in Pennsylvania.
We fully realize that the final route may not be able to be approved absent the studies Plaintiff seeks to undertake. However something more than Plaintiff's mere assertions as to whose lands might be affected is required to satisfy us that Plaintiff is not on the proverbial "fishing expedition." We are mindful of Plaintiff's argument that preventing discovery at this stage of the proceedings makes it difficult for it to obtain final route approval. However, our concern is not with what Plaintiff must do to satisfy the PUC, our concern within the context of this litigation in general, and regarding Plaintiff's discovery request in particular, is to ensure that a party does not suffer from "unreasonable annoyance, embarrassment, oppression, [or] burden" during the discovery process.
My understanding is that Oklahoma doesn't approve transmission routes, so what's the reasoning for doing the surveys at this point in time?
PSO will suffer irreparable harm, damage, and injury unless the acts and conduct of Defendants above complained of are enjoined because further work and construction of the
transmission line cannot continue unless the location and description of the right-of-way easement across the Property owned by the Defendants can be determined.
Who you trying to kid here, AEP? A judge? You know full well that you're not actually constructing anything and are nowhere near filing condemnation actions. That costs money AEP doesn't want to spend until it is guaranteed recovery of its costs to construct this project from ratepayers. And that approval (from four different states no less!) has not happened yet.
And because it just can't help exaggerating and asking for more than it really needs, AEP has requested the Oklahoma judge order landowners to pay for the cost of its overreaching lawsuit. Do you really want to punish landowners that way for resisting you, AEP? You think landowners who won't sign your voluntary permission forms and give up their rights should pay for your overpriced lawyers to sue them? Or did you just add that as an intimidation tactic? Despicable!
While these fights seem very specific to two AEP projects, the effect of them could potentially be broad. Should we upend the current status quo that makes survey permissions voluntary until after utility commission review (at which time the commission can issue an approval contingent upon surveys and tests being performed)? Or should we roll out the red carpet for any utility to enter upon and damage the property of any landowner at any time? Seems to me if it's the latter then new laws and regulations covering this activity are sorely needed because we will all be subject to corporate dictatorship instead of due process. Private property rights shouldn't be set aside in favor of corporate profits.
And because it just can't help exaggerating and asking for more than it really needs, AEP has requested the Oklahoma judge order landowners to pay for the cost of its overreaching lawsuit. Do you really want to punish landowners that way for resisting you, AEP? You think landowners who won't sign your voluntary permission forms and give up their rights should pay for your overpriced lawyers to sue them? Or did you just add that as an intimidation tactic? Despicable!
While these fights seem very specific to two AEP projects, the effect of them could potentially be broad. Should we upend the current status quo that makes survey permissions voluntary until after utility commission review (at which time the commission can issue an approval contingent upon surveys and tests being performed)? Or should we roll out the red carpet for any utility to enter upon and damage the property of any landowner at any time? Seems to me if it's the latter then new laws and regulations covering this activity are sorely needed because we will all be subject to corporate dictatorship instead of due process. Private property rights shouldn't be set aside in favor of corporate profits.
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