And in the damned if you do and damned if you don't world of Wind Catcher, AEP subsidiaries once again find themselves snared in a trap of their own creation.
This story in TulsaWorld hits the highlights of a battle taking place between PSO and landowners in Creek County, Oklahoma. PSO finds itself in a big, big hurry to build its Wind Catcher project so it can collect tax credits financed by U.S. taxpayers. AEP tries to pretend this project was a last minute great deal and there is incredible urgency to it. Except the hurry is all AEP's creation as well. AEP wants state regulatory commissions to hurry up and issue an order allowing the company to collect the $4.5B cost of the project from ratepayers in four states, plus interest over 60 years. And AEP wants landowners to hurry up and let them start building this project before there's any commitment to finish it. Why should landowners have their property permanently altered for tests and surveys on a project AEP may yet abandon? AEP has said that without full cost recovery for its project that it will not move forward. It will not build Wind Catcher if it has to pay for the project itself. Add to that the fact that there is no transmission permitting and siting in Oklahoma. A utility must merely be for "public use" to wield the power of eminent domain in Oklahoma.
In Creek County, PSO believes its Wind Catcher facility is a transmission line for public use and therefore the company possesses eminent domain authority that allows it to perform tests and surveys on pretty much any property in the state, even if the subject property is never used for a transmission route. Landowners have objected and refused to sign AEP's survey permission forms. AEP has interpreted a failure to sign a permission form as a refusal to allow surveyors on the property and has filed numerous petitions requesting local district courts issue an injunction preventing the landowner from interfering with surveying and testing. I think it would be pretty impossible for a judge to order a landowner to sign a permission form. The most a judge could do is order a landowner not to interfere... which they really weren't doing in the first place.
Guess what, AEP? Lack of planning on your part does NOT constitute an emergency on the part of landowners. Your big push to build as much of this project as possible before a state regulatory commission tells you "no" has gotten you into some trouble. In fact, your whole scheme for Wind Catcher has cornered you into a most impossible Catch-22 situation.
Oklahoma statute allows a utility to request a ruling from the Oklahoma Corporation Commission that it may recover the costs of a proposed generator from ratepayers. In that spirit, AEP asked the OCC to approve cost recovery of its purchase of a wind farm and a generation tie line. AEP has insisted over and over at the OCC that its 360-mile electric line is part of its wind farm generator. It can only be a generator if OCC allows AEP to recover costs in rates. There is no pre-approval for cost recovery of a transmission line. Therefore, AEP says the line is part of its generator so it can recover costs.
Oklahoma statute also allows a utility furnishing power to utilize eminent domain authority in order to do so. But the same statute prohibits the use of eminent domain to build wind turbines on private property. To get around this, AEP has called its generation tie line a transmission line in its eminent domain petitions.
If it's a transmission line, no cost allocation to ratepayers.
If it's a generation tie line, no eminent domain.
What will it be, AEP? It can't be both. Either it's a transmission line subject to eminent domain, or it's a generation tie line subject to pre-approval of cost recovery.
And that's sort of the starring argument in this landowner brief on one of AEP's injunction filings in Creek County. But there's a lot more to love in this brief because the question of naming AEP's electric line isn't exactly simple. If it's a transmission line, it's subject to open access under federal regulations. That means any other electric utility can request service on the line and AEP must supply it, even if that means upsizing the line to serve other customers. But if it's a generation tie line, it essentially becomes AEP's private transmission line and it can refuse service to other utilities. This brief likens a generation tie line to a private driveway. It would not be possible for a property owner to exercise eminent domain on private property to build a driveway for his own private use.
You're caught, AEP, caught in a trap of your own making. Who is responsible for not thinking this through? It's so simple, I can't believe AEP brain-farted this badly.
What AEP didn't count on was smart landowners capable of fighting back. Perhaps AEP thought filing for injunctions against landowners would scare landowners and make them give in. In some instances, it looks like that was the case. Except a higher number of landowners refused to knuckle under and sign the permission form. This group has attempted to represent themselves in district courts, with varying levels of success.
This story in TulsaWorld hits the highlights of a battle taking place between PSO and landowners in Creek County, Oklahoma. PSO finds itself in a big, big hurry to build its Wind Catcher project so it can collect tax credits financed by U.S. taxpayers. AEP tries to pretend this project was a last minute great deal and there is incredible urgency to it. Except the hurry is all AEP's creation as well. AEP wants state regulatory commissions to hurry up and issue an order allowing the company to collect the $4.5B cost of the project from ratepayers in four states, plus interest over 60 years. And AEP wants landowners to hurry up and let them start building this project before there's any commitment to finish it. Why should landowners have their property permanently altered for tests and surveys on a project AEP may yet abandon? AEP has said that without full cost recovery for its project that it will not move forward. It will not build Wind Catcher if it has to pay for the project itself. Add to that the fact that there is no transmission permitting and siting in Oklahoma. A utility must merely be for "public use" to wield the power of eminent domain in Oklahoma.
In Creek County, PSO believes its Wind Catcher facility is a transmission line for public use and therefore the company possesses eminent domain authority that allows it to perform tests and surveys on pretty much any property in the state, even if the subject property is never used for a transmission route. Landowners have objected and refused to sign AEP's survey permission forms. AEP has interpreted a failure to sign a permission form as a refusal to allow surveyors on the property and has filed numerous petitions requesting local district courts issue an injunction preventing the landowner from interfering with surveying and testing. I think it would be pretty impossible for a judge to order a landowner to sign a permission form. The most a judge could do is order a landowner not to interfere... which they really weren't doing in the first place.
Guess what, AEP? Lack of planning on your part does NOT constitute an emergency on the part of landowners. Your big push to build as much of this project as possible before a state regulatory commission tells you "no" has gotten you into some trouble. In fact, your whole scheme for Wind Catcher has cornered you into a most impossible Catch-22 situation.
Oklahoma statute allows a utility to request a ruling from the Oklahoma Corporation Commission that it may recover the costs of a proposed generator from ratepayers. In that spirit, AEP asked the OCC to approve cost recovery of its purchase of a wind farm and a generation tie line. AEP has insisted over and over at the OCC that its 360-mile electric line is part of its wind farm generator. It can only be a generator if OCC allows AEP to recover costs in rates. There is no pre-approval for cost recovery of a transmission line. Therefore, AEP says the line is part of its generator so it can recover costs.
Oklahoma statute also allows a utility furnishing power to utilize eminent domain authority in order to do so. But the same statute prohibits the use of eminent domain to build wind turbines on private property. To get around this, AEP has called its generation tie line a transmission line in its eminent domain petitions.
If it's a transmission line, no cost allocation to ratepayers.
If it's a generation tie line, no eminent domain.
What will it be, AEP? It can't be both. Either it's a transmission line subject to eminent domain, or it's a generation tie line subject to pre-approval of cost recovery.
And that's sort of the starring argument in this landowner brief on one of AEP's injunction filings in Creek County. But there's a lot more to love in this brief because the question of naming AEP's electric line isn't exactly simple. If it's a transmission line, it's subject to open access under federal regulations. That means any other electric utility can request service on the line and AEP must supply it, even if that means upsizing the line to serve other customers. But if it's a generation tie line, it essentially becomes AEP's private transmission line and it can refuse service to other utilities. This brief likens a generation tie line to a private driveway. It would not be possible for a property owner to exercise eminent domain on private property to build a driveway for his own private use.
You're caught, AEP, caught in a trap of your own making. Who is responsible for not thinking this through? It's so simple, I can't believe AEP brain-farted this badly.
What AEP didn't count on was smart landowners capable of fighting back. Perhaps AEP thought filing for injunctions against landowners would scare landowners and make them give in. In some instances, it looks like that was the case. Except a higher number of landowners refused to knuckle under and sign the permission form. This group has attempted to represent themselves in district courts, with varying levels of success.
PSO succeeded in obtaining injunctions in other counties against pro se landowners without the resources or ability to question PSO's contradictory characterization of the Gen-Tie as both a transmission line (for eminent domain purposes) and not a transmission line (for Commission preapproval purposes). That duplicity should stop here.
-And "here" apparently is the doorstep of a lawyer who isn't fooled by AEP's bluster and scare tactics. Not only that, this smart landowner hired GableGotwals' Graydon D. Luthey, Jr. to represent him in Creek County District Court. Mr. Luthey is the lawyer who reduced AEP's witness to a puddle of stuttering bad grammar during recent cross examination at the OCC. Mr. Luthey is one heck of a lawyer. Bravo!
And that's what happens when AEP draws a line on a map for a new electric line route. It's sort of like tossing dice, or dealing cards. Will AEP route its line through the property of someone it wishes it hadn't? Someone with the expertise and knowledge to fight back? It happens nearly every time.
And that's how bad transmission (or generation?) line proposals die.
AEP didn't think this whole thing through. Wind Catcher cannot be built as proposed.
And that's what happens when AEP draws a line on a map for a new electric line route. It's sort of like tossing dice, or dealing cards. Will AEP route its line through the property of someone it wishes it hadn't? Someone with the expertise and knowledge to fight back? It happens nearly every time.
And that's how bad transmission (or generation?) line proposals die.
AEP didn't think this whole thing through. Wind Catcher cannot be built as proposed.
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