Clean Line and DOE Crank It Up A Notch

A little birdie told me that the U.S. Department of Energy is shopping for experienced legal counsel from the world of white shoe, D.C. energy firms to "help" them with their statutory review of Section 1222 of the Energy Policy Act and their review of Clean Line's application.

The successful contractor shall:

Provide specialized legal advice and expertise in the following practice areas: corporate;
debt financings, including construction, secured project finance and/or corporate finance; equity finance; project development; public-private partnerships; contracts, including contracts specific to transmission projects such as power purchase agreements
transmission service agreements, and engineering, procurement and construction
contracts; bankruptcy involving energy-related insolvencies; real estate and land use, including multi-state, high-voltage electric transmission infrastructure siting; mortgages
and lending; energy law, focusing on multi-state, high-voltage electric transmission
infrastructure projects; environmental law; procurement, including procurements under the Federal Acquisition Regulations and familiarity with federal-specific contract terms
and concepts (such as “Buy American” provisions, prohibition on binding arbitration,
etc.); federal fiscal law, including the Anti-Deficiency Act; and employment and labor, including the Davis-Bacon Act and project labor agreements.

This work shall be under the supervision of:

Partner – Project Manager. This individual is an expert in project finance and development and related issues with special expertise in multi-state, high voltage electric transmission matters. This individual must have experience representing clients in public private
partnerships.
The Project Manager will have overall responsibility for managing work under the contract and for reporting to the COR. This individual must have the ability to: 1) coordinate and direct work of others
under the contract; 2) efficiently and quickly form and communicate legal opinions and strategies regarding implementation of the Section 1222 program; and 3) represent DOE in negotiations.
This individual must have extensive experience in the practice of law, with at least fifteen years of experience in transmission project finance and development.
This individual should have experience working with organizations within the federal government, and be knowledgeable about the special administrative and public policy responsibilities of such organizations.
Candidate must possess a Juris Doctor Degree from an accredited law school and an active bar membership.

No, you shouldn't all rush to bid.  The response date came and went back at the beginning of June.  Looks like the DOE had this plan in the works much earlier, perhaps when they announced the statutory review period back in April.  How come nobody knew about this?

So, what does this mean?  It means that the DOE is intending to smoke any challenges to its authority from country bumpkins and legal counsel from outside the beltway.  The DC energy legal community is quite adept at creating any reality that its paying client desires.  If you're not one of them, good luck to ya!  Does this mean that challengers to DOE's authority need to secure their own seat inside the DC legal fence?  Probably.  It's going to get complicated.

But what I really want to know is... who's paying for this?  Is Clean Line going to get the bill?  Or, since it's all about making Section 1222 legally bullet-proof, and any utility can technically apply under the statute, will the U.S. taxpayers end up financing it?  How much is this going to cost when these types of lawyers can come with price tags of $1000/hr., not to mention the cost of all their associates and underlings who do the real work.

So, we can probably look forward to some high-level legal buggery, such as use of CITIZENS AND LANDOWNERS AGAINST THE MILES CITY/NEW UNDERWOOD POWERLINE v. DOE, where the 8th Circuit found that the complaint of the landowners and their organization is barred by the doctrine of laches and that, contrary to the contentions of the Commission, the appellees need not obtain a state permit to construct the powerline.  The Court also found that "contrary to the contentions of the Commission, the appellees need not obtain a state permit as required by the South Dakota siting law."  I'm not going to spend any more time analyzing this, other than to mention it's a case that has yet to rear its ugly head in any legal arguments related to Sec. 1222.  Go read it and do your own analysis.

I wonder if DOE's counsel will recognize that under 42 U.S. Code § 7191(b), if the Secretary determines that a substantial issue of fact or law exists or that such rule, regulation, or order is likely to have a substantial impact on the Nation’s economy or large numbers of individuals or businesses, an opportunity for oral presentation of views, data, and arguments shall be provided?  Or would it even matter, since nobody has "made a showing pursuant to paragraph 2" i.e. "Any person, who would be adversely affected by the implementation of any proposed rule, regulation, or order who desires an opportunity for oral presentation of views, data, and arguments, may submit material supporting the existence of such substantial issues or such impact."  Only those inside the federal fence seem to recognize such things...

It's going to get interesting.  Really interesting.

And expensive.  Really, really expensive.

And ugly.  Really, really, really ugly.