U.S. Senators John Boozman (R-AR) and Tom Cotton (R-AR) today introduced legislation to restore the right of states to approve or disapprove of electric transmission projects before the federal government exercises its power to take private property.

The Assuring Private Property Rights Over Vast Access to Lands (APPROVAL) Act would require that the U.S. Department of Energy (DOE) receive the approval of both the governor and the public service commission of an affected state, before exercising the federal power of eminent domain to acquire property for Section 1222 transmission projects. For projects on tribal lands, DOE would have to receive the approval of the impacted tribal government.

“When a road, pipeline or power line is built the use of eminent domain is sadly unavoidable in some cases,” Boozman said. “However, this difficult decision should not be in the hands of Washington bureaucrats. If a project is not good for Arkansas, our governor or public service commission should have the power to say ‘no.’”

"Arkansans should have a say in any decision that affects our land,” Cotton said. “The APPROVAL act will rightly empower Arkansans and preserve the Founding Fathers vision of states’ rights."

In addition to allowing states the ability to reject the use of federal eminent domain for a project, the Boozman-Cotton legislation would ensure to the extent possible, that approved projects are placed on federal land rather than on private land. Specifically, for approved projects, DOE would be required (to the maximum extent possible) to site projects on existing rights-of-way and federal land managed by: (1) the Bureau of Land Management, (2) the U.S. Forest Service, (3) the Bureau of Reclamation, and (4) the U.S. Army Corps of Engineers.

The decision to permit electric transmission projects has long been the responsibility of the individual state. As noted in a 2011 report from the non-partisan Congressional Research Service, “The location and permitting of facilities used to transmit electricity to residential and commercial customers have been the province of the states (with limited exceptions) for virtually the entire history of the electricity industry.” The report says that state and local governments are “well positioned” to understand the concerns of the area and the factors for making a decision on these projects.

DOE is currently seeking public comments on one proposed Section 1222 project: the Plains & Eastern Clean Line Transmission Project, a high voltage direct current electric transmission system and associated facilities, which (if approved) would cross Arkansas. Interested citizens may provide comments through March 19, 2015, to DOE, either online at: http://www.plainsandeasterneis.com/nepa-process/public-involvement.html; by mail addressed to: Plains & Eastern EIS, 216 16th Street, Suite 1500, Denver, Colorado 80202; via email addressed to [email protected]; or by fax to (303) 295–2818.

The APPROVAL Act has been referred to the Senate Energy and Natural Resources Committee for further review.

In a recent letter to the editor, Ms. Mary Adair Horsechief stated that “a representative of Plains & Eastern Clean Line recently dropped by” her home and he told her she “had no recourse but to let them take our land for their use.” Clean Line takes these assertions seriously and we do not condone or endorse statements like the one Ms. Horsechief claims was made on our behalf. Clean Line is committed to treating every landowner with consideration and respect. We require our representatives to follow a Code of Conduct that can be downloaded from our website. We strive to maintain long-lasting relationships with landowners by working in a respectful and collaborative manner. If you have information on interactions you have had with a Clean Line representative that goes against this code, we would like to know. Please contact us at 1-877-573-2851 or [email protected] and someone will respond to you in a timely fashion.

DOE and Southwestern understand and agree that their ability to acquire through condemnation proceedings property necessary for the development,  construction and operation of the Project is one of the primary reasons for Clean Line’s interest in developing the Project with DOE and Southwestern and through the use of EPAct 2005 section 1222.
DOE and Southwestern agree that, if the Secretary of Energy ultimately decides upon the conclusion of such evaluation as DOE and Southwestern deem appropriate that (i) the Project complies with section 1222, and (ii) to participate in the Project’s development pursuant to section 1222, then, DOE and Southwestern will use their condemnation authority as may be necessary and appropriate for the timely, cost-effective and commercially reasonable development, construction and operation of the Project.

d) Relationship to other laws
Nothing in this section affects any requirement of--
(1) any Federal environmental law, including the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.);
(2) any Federal or State law relating to the siting of energy facilities; or
(3) any existing authorizing statutes.

The Secretary, acting through WAPA or SWPA, or both, may design, develop, construct, operate, maintain, or own, or participate with other entities in designing, developing, constructing, operating, maintaining, or owning, a new electric power transmission facility and related facilities (“Project”) located within any State in which WAPA or SWPA operates if the Secretary, in consultation with the applicable Administrator, determines that the proposed Project--
(1)(A) is located in an area designated under section 216(a) of the Federal Power Act [16 U.S.C. 824p(a)] and will reduce congestion of electric transmission in interstate commerce; or
(B) is necessary to accommodate an actual or projected increase in demand for electric transmission capacity;
(2) is consistent with--
(A) transmission needs identified, in a transmission expansion plan or otherwise, by the appropriate Transmission Organization (as defined in the Federal Power Act [16 U.S.C. 791a et seq.]) if any, or approved regional reliability organization; and
(B) efficient and reliable operation of the transmission grid;
(3) will be operated in conformance with prudent utility practice;
(4) will be operated by, or in conformance with the rules of, the appropriate (A) Transmission Organization, if any, or (B) if such an organization does not exist, regional reliability organization; and
(5) will not duplicate the functions of existing transmission facilities or proposed facilities which are the subject of ongoing or approved siting and related permitting proceedings.

IS CONSISTENT WITH:  transmission needs identified, in a transmission expansion plan or otherwise, by the appropriate Transmission Organization (as defined in the Federal Power Act [16 U.S.C. 791a et seq.]) if any, or approved regional reliability organization; and (5) will not duplicate the functions of existing transmission facilities or proposed facilities which are the subject of ongoing or approved siting and related permitting proceedings.

Secretary Moniz:

I have now written you in August 2013 and September 2014 regarding the Department of
Energy's (DOE's) consideration for a partnership with Clean Line Energy Partners through the Plains & Eastern transmission line project and have yet to receive a satisfactory answer to my questions.

Since the date of my previous inquiry, I understand that the Draft Environmental Impact Statement (EIS) has been released for public comment, at which point, in accordance with your latest response to my office, "DOE will consider questions such as those raised in [my] letter."  Unfortunately, merely acknowledging this fact does not, in turn, answer the questions raised.

As you know, the path of the proposed transmission line runs directly through the Third District of Arkansas. Therefore, I am extremely concerned about Clean Line's authorization.  Respectfully, I am also very frustrated by one of your Department's disingenuous responses to my letters that identified "public interest" as one of the considerations given to the Clean Line
application. There has been an astounding lack of assurance that my district - and the State of Arkansas- will have any interest in this project at all and no guarantee that Clean Line will supply power to my constituents and my state. I place further emphasis on this concern given the denial of a Certificate of Public Convenience and Necessity from the initial application Clean Line had submitted to the Arkansas Public Service Commission.

Section 1222 of the Energy Policy Act of 2005 has never been invoked for the approval of an
electric power transmission facility. In light of the uncertainty of this process and the Section
1222 application, in addition to a lack of assurance regarding the benefit for the state of Arkansas from such a transmission line, I must again ask the following:

• What guarantee might the citizens of the Third District be afforded when it comes to a
specific energy supply to our state rather than a highway for power to Tennessee?
• How does the Department of Energy determine its authority for partnership with a private entity and the application of supposed rights to eminent domain?
• What factor does the denial of Clean Line as a public utility in the State of Arkansas play
in the final decision by the Department of Energy?

The DOE has been less than forthright in providing answers to the legitimate questions raised regarding Clean Line. Therefore, at this time, I would like to request a formal meeting with you to not only discuss these questions, but also the unacceptable responses that have been sent to both my office and stakeholders within the Third District. I look forward to your prompt reply.

Responsibly developed offshore wind power offers a golden opportunity to meet our coastal energy needs with a clean, local resource that will spur investments in local economies - creating unparalleled job growth and avoiding the need to export hard-earned energy dollars outside the region.

The eminent domain issue has become a key point of contention between Pilgrim and the Sierra Club. An attorney for the Sierra Club has said that Pilgrim has no rights of eminent domain because it is a private company and not formally designated as a utility by the Board of Public Utilities.

On the other side are landowners who see the power lines marching across their land as more big government intrusion into their lifestyles and even interfering with their livelihoods.

Additional arguments against construction of the lines are possible health effects, and the fact that the entities proposing the construction are private companies.

It seems strange an argument against private industry would be made. The United States to a very large degree operates that way. It’s capitalism, right?

Rights of way must be secured for these power line projects private or otherwise, just as any project in the public interest such as a toll road or a railway. Fair market price must be paid for any property taken for rights of way.

(1) fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;

(2) assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings;

(3) attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences;

(4) preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity and variety of individual choice;

(5) achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life’s amenities; and

(6) enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.

Branstad, who appoints the members of the utilities board, warned against "political interference" into the administrative review process by which a pipeline carrying Bakken crude oil and a transmission line transporting wind-generated electricity could be approved.

"It would be mistake to get politics into this," Branstad said. "We should abide by the processes that have been put in place."

the activities associated with the governance of a country or other area, esp. the debate or conflict among individuals or parties having or hoping to achieve power:

Engaging the public:  Candor requires an admission:  The lay citizenry's views do not count as "substantial evidence," required by courts to sustain agency orders.  Does that fact make public hearings (i.e., the non-technical hearings) shams?  If not, then what is the value of public participation?  What are ways to create that value, at reasonable cost?   Traditionally, agencies announced public hearings in the newspaper's "legal notices."  How useful is that approach today?  What are an agency's responsibilities to educate the public and seek its views?