Arkansas Lawmakers Introduce States’ Rights Bill To Slow DOE’s Eminent Domain Authority

A day after the Department of Energy’s (DOE) comment period ended for the controversial $2.4 billion Clean Line wind-power transmission project, Arkansas’ congressional delegation introduced a states’ rights bill to approve or reject grid transmission projects prior to the federal government’s execution of eminent domain authority.

The legislation, H.R. 3062, directs the U.S. Department of Energy (DOE) to obtain approval from a governor and state public service commission, prior to approval of any federal Section 1222 transmission project and subsequent use of federal eminent domain, as well as the approval of any tribal government for affected lands.

“The responsibility of approving electric transmission lines has historically been reserved for states, but yet again, the federal government has forced its way into a place it does not belong,” said Cong. Steve Womack, R-Rogers, one of the co-sponsors of the bill. “It is our Congressional obligation to protect states and their Tenth Amendment right to maintain ‘powers not delegated to the United States by the Constitution, nor prohibited by it to the States.’”

Congressmen Rick Crawford, R-Jonesboro; French Hill, R-Little Rock; and Bruce Westerman, R-Hot Springs are co-sponsors of the bill with Womack.

In early June, the state’s congressional delegation asked for and received an extension of the comment period for the Clean Line project from June 12 to Monday, July 13. The second part of the Houston-based renewable energy group’s application for the project dealt with the need and feasibility review of the multi-state Plains & Eastern Clean wind development.

Currently, privately-financed Clean Line Energy Partners LLC is seeking regulatory approval from the Energy Department for the $2.4 billion electric transmission line that is expected to deliver up to 3,500 megawatts (MW) of wind power from the Oklahoma Panhandle region to communities in Arkansas, Tennessee and other states in the Mid-South and Southeast.

Tabbed as the “Assuring Private Property Rights Over Vast Access to Land,” or APPROVAL Act, Cong. Westerman said H.R. 3062 ensures the states have the final say on eminent domain issues. “The right to private property is fundamental to a free society,” said the Fourth District congressman. “Unfortunately, the federal government continues to show little respect for this important personal liberty.”

Beside eminent domain protections, the APPROVAL Act also creates safeguards for states, as well as individuals, by requiring these projects – if approved – to be placed on federal land managed by the Bureau of Land Management, the U.S. Forest Service, the Bureau of Reclamation, or the U.S. Army Corps of Engineers whenever possible. A Senate companion bill, S. 485, was introduced by Sens. John Boozman, R-Arkansas, and Tom Cotton, R-Arkansas, in February 2015.

STAKEHOLDER REACTION
On Wednesday, Clean Line officials and one of the numerous groups opposing the project weighed in on the states’ rights legislation now backed by Arkansas’ entire House and Senate delegation.

Clean Line Executive Vice President Mario Hurtado said he understood concerns posed by the federal delegation and said officials from the company have reached out to each lawmaker.

“We will continue to work with state leadership and the people of Arkansas to follow the appropriate processes that ensure a fair hearing for all involved,” said Hurtado, Clean Line co-founder. “Ultimately, the Plains & Eastern Clean Line transmission project will bring hundreds of jobs and over a half billion-dollar investment to the state of Arkansas.”

As in previous interviews and press statements, Hurtado said Clean Line was working with landowners to answer questions and address concerns they have. “This is a pro-jobs, pro-consumer, pro-environment project that is being developed with extensive input from the public, landowners, and their elected representatives,” he said.

However, one of the largest and more vocal organizations opposing the multi-state project, was less than enamored with Clean Line’s response.

“We couldn’t be more grateful to Congressmen Womack, Crawford, Hill, and Westerman. While we agree there are issues with interstate transmission siting, simply asking the Department of Energy to override the state agencies responsible for making those decisions is inappropriate,” said Allison Millsaps, a spokeswoman with the Block Clean Line movement. “Local residents and landowners deserve to have a significant voice on which infrastructure developments are routed through their regions. The ‘public interest’ these projects are supposed to serve includes the interest of the local public.”

Millsaps added that given the project’s lack of demonstrated need, “the opposition has serious concerns about the applicability of Section 1222 and eminent domain for the Plains & Eastern project. It is wonderful to know that our Arkansas delegation has heard us and agrees.”

DOE DIRECTION
Although DOE officials would not speak on the record concerning the project, Talk Business & Politics was referred to the federal agency’s Section 1222 website where the Plains & Eastern proposal is the only application before the DOE.

In considering Clean Line’s applications, the DOE said it will first conduct a review under the National Environmental Policy Act (NEPA), which will consider the impacts of the project on environmental, historic, cultural and socioeconomic resources.

Secondly, the federal agency will conduct due diligence on non-NEPA factors such as the project’s technical and financial feasibility, and whether the project is in the public interest.

In one of the FAQ’s on the DOE’s docket dedicated to the Clean Line application, the agency said it has not made a decision on whether to participate in the proposed project.

“If DOE were to ultimately agree to participate in the proposed project, several conditions would need to be met. One of those conditions is that eminent domain authority would be used only as a last resort after Clean Line’s negotiations in good faith have concluded with all affected landowners,” the DOE stated.

“Any decisions regarding the use of eminent domain must be based on project-specific findings. At this point, there is insufficient information to arrive at any conclusion about applicability to the Plains and Eastern project,” the DOE web site said.