Landowner rights groups take legal action to halt $2 billion Clean Line project

by Wesley Brown ([email protected]) 286 views 

Two landowner groups along the proposed $2 billion Plains & Clean Line project filed a legal complaint Monday (Aug. 15) against the U.S. Department of Energy (DOE) and the Southwestern Power Administration over the use of federal eminent domain powers in Arkansas to benefit a Texas for-profit venture group.

Golden Bridge LLC and Downwind LLC, two groups formed last year to protect property rights and interests of member landowners along the entire route of the proposed 700-mile project, filed the complaint against the two federal agencies regarding their approval and participation in the proposed project in late March.

“Landowners were never offered an appropriate avenue for due process during the DOE’s review of Clean Line’s application,” said Dave Ulery of Golden Bridge formed in September 2015. “An opportunity to comment is not the same as an opportunity to directly participate in the matter in an official capacity. Review is meaningless if those most affected are not given ample and significant opportunity to engage on a meaningful and substantive level.”

The two landowner groups are represented by Jordan Wimpy, an attorney with Gill Ragon Owen in Little Rock. The legal complaint, filed in the U.S. District Court for the Eastern District of Arkansas in Jonesboro, raises concerns regarding the legality of the DOE’s decision to participate in the project using Section 1222 of the Energy Policy Act.

Wimpy said the landowners groups are not pursuing damages, but remained “concerned with the scope of DOE’s proposed legal authority, and the agency’s rationale and explanation in support of its decision.”

“The Plaintiffs are therefore seeking all appropriate declaratory and injunctive relief, and requesting the that the Court set aside DOE’s decision and determinations,” Wimpy said.

The U.S. Energy Department first approved the project March 25 even though Arkansas’ entire congressional delegation protested, calling the wind-powered development “unprecedented executive overreach” by the Obama administration. Energy Department Secretary Ernest Moniz said at the time that the project to be built by Houston-based Clean Line Energy Partners would deliver wind and other clean-produced energy to more than 1.5 million homes in the mid-South and southeast U.S.

“Moving remote and plentiful power to areas where electricity is in high demand is essential for building the grid of the future,” Moniz said. “Building modern transmission that delivers renewable energy to more homes and businesses will create jobs, cut carbon emissions, and enhance the reliability of our grid.”

Late Monday evening, Clean Line officials said they had not seen the legal complaint against the DOE regarding their project and would not be able to provide specific comment. However, a Clean Line executive reiterated the company’s ongoing refrain that the Houston-based venture group has already invested nearly $100 million of private capital to develop the project and anticipates making more than $30 million in payments to Arkansas landowners for easements and upfront transmission structure payments.

In addition, Clean Line will pay Arkansas counties that host the electric transmission project a total of approximately $140 million in voluntary payments over the first 40 years of operation, which will support local schools, fire departments and other community services.

“It’s no secret that the United States suffers from an infrastructure deficit and that we must push through gridlock to move the country forward. Unfortunately, it is not uncommon to see legal complaints filed against the most important infrastructure projects,” said Mario Hurtado, Clean Line’s executive vice president of development. “In order to modernize the grid, enable the delivery of low-cost energy, create new jobs and enhance our energy security, the private and public sectors must come together to bring new infrastructure projects to fruition.”

Hurtado, who recently told Talk Business & Politics that the multibillion dollar project is expected to get underway in early 2017, added: “The Plains & Eastern Clean Line is the largest clean energy transmission project in America and is moving full steam ahead.”

The Plains & Eastern Clean Line is an approximately 700-mile-long direct current transmission line to deliver electricity from the Oklahoma panhandle to Arkansas, Tennessee and other states in the mid-South and southeast. In Arkansas, the 200-foot right-of-way enters in Crawford County north of Van Buren and travels below Alma and Dyer before dissecting Mulberry to follow a line with Interstate 40 through most of Franklin County.

From there, the line travels through Johnson County, Pope County, northern Conway County, southern Van Buren County, southern Cleburne County, White County, Jackson County, Poinsett County, Cross County, and exiting Arkansas through Mississippi County north of Memphis. The line will also run through parts of Oklahoma and Tennessee. (Link here for details maps and route information.)

The Clean Line decision marks the first use of Congressional authority conferred to the DOE under Section 1222 of the Energy Policy Act of 2005. The intent was to allow the department greater flexibility in modernization energy transmission lines. The high voltage direct current (HVDC) electric transmission line was approved by the Energy Department despite being denied a Certificate of Public Convenience and Necessity from state regulators.

Section 1222 gives Moniz the authority to “design, develop, construct, operate, own or participate with other entities in designing, developing, constructing, operating, maintaining or owning transmission projects.”

Arkansas’ congressional delegation has countered that the decision regarding electric transmissions should be “appropriately left to elected officials at the state and local level, where they have resided for generations.” The delegation has lobbied Moniz to reject the plan, and in September asked the Secretary to address their concerns about the federal government’s possible unprecedented partnership with a third party to construct an electrical transmission project through Arkansas. That was followed by a Dec. 10 meeting between the delegation and Moniz.

In late June, a U.S. House committee approved the Assuring Private Property Rights Over Vast Access to Land, or APPROVAL Act introduced by U.S. Rep. Steve Womack, R-Rogers, with the support of the entire Arkansas delegation.

The retroactive legislation, if approved by Congress and signed by the president, directs the Energy Department to obtain approval from a governor and state public service commission, prior to approval of any Section 1222 transmission project and subsequent use of federal eminent domain, as well as the approval of any tribal government for affected lands.

Womack’s legislation moved out of the House Committee on Natural Resources by a vote of 19-11, mostly along party lines. Since then, the full House has not taken up the bill and there has been no other action on the legislation.