Federal trial over Clean Line wind project set to begin; $2 billion project still on go, officials say

A long-awaited trial on the fate of the controversial $2 billion Plains and Eastern Clean Line wind energy project will begin Tuesday when oral arguments are held in U.S. District Court in Little Rock.

The case will pit a group of landowners, using the names Golden Bridge LLC and Downwind LLC, against the U.S. Department of Energy (DOE) and the Houston-based Clean Line partnership that plans to build a high-voltage energy transmission line from the Oklahoma Panhandle across the heart of Arkansas into eastern Tennessee.

The two landowner groups, which were formed last year to protect property rights and interests of member landowners along the entire route of the proposed 720-mile project across Arkansas, had originally filed a complaint with the DOE regarding its approval and participation in the proposed project in March 2015. At the time, then DOE Secretary Ernest Moniz used “Section 1222” of the Congressionally-approved 2005 Energy Policy Act to green light the project that Clean Line officials say will deliver 4,000 megawatts of low-cost wind power from Oklahoma’s Panhandle region to utilities and customers in Tennessee, Arkansas, and other markets in the Mid-South and Southeast.

On Monday, after U.S. District Judge D. Price Marshall Jr. for the Eastern District of Arkansas in Jonesboro moved the trial’s venue to federal court in Little Rock, Clean Line officials said prep work for the project continued even after the federal lawsuit was filed in August 2016.

“Clean Line Energy continues development and pre-construction activities on the Plains & Eastern Clean Line and is advancing commercial discussions,” Clean Line Executive Vice President of development Mario Hurtado said in a statement to Talk Business & Politics. “We remain confident in the (DOE’s) decision to participate in the project and the process that led to that conclusion. Clean Line will review any decision from the court when it is issued.”

The two landowner groups are represented by Jordan Wimpy, an attorney with Mitchell, Williams, Selig, Gates & Woodyard in Little Rock The legal complaint, first filed in August 2016 in U.S. District Court 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. Originally, Wimpy said the landowners’ groups were 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 DOE first approved the project more than 2-1/2 years ago even though Arkansas’ entire congressional delegation protested, calling the wind-powered development “unprecedented executive overreach” by the Obama administration. DOE Secretary Moniz said at the time 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.”

To date, the Trump administration under DOE Secretary Rick Perry has not given any indication it will go against President Obama’s support of the wind-energy development. In March and then again in September, Arkansas’ entire congressional delegation asked Perry to end the federal Energy Department’s participation in the controversial multistate project.

However, in recent court filings with the federal court, DOE attorneys seem intent on arguing in favor of the project. On Oct. 19, in fact, Perry in his official capacity as Energy Secretary filed a motion only to divide time for oral arguments between the DOE’s legal staff and the Department of Justice’s attorneys.

The court filings states that since Downwind and Golden Bridge’s complaint challenges the DOE’s authority to condemn property for the project, the DOJ attorneys “will be best-positioned to address the condemnation process, including due process afforded landowners, and answer the Court’s questions regarding federal eminent domain law and procedures.”

Going back to when the project was first announced nearly seven years ago, Arkansas’ entire congressional delegation has backed the Arkansas landowners in seeking to halt the Clean Line project. U.S. Sens. John Boozman, R-Ark., Tom Cotton, R-Ark., U.S. Reps. Rick Crawford, R-Jonesboro, French Hill, R-Little Rock, Steve Womack, R-Rogers and Bruce Westerman, R-Hot Springs, have not only supported legislation to slow the project, but first asked then-DOE Secretary Moniz in June 2015 to extend the comment period for the need and feasibility review for the $2 billion energy development.

Shortly after President Donald Trump took office earlier this year, the Arkansas delegation sent a letter to the former Texas governor reinforcing their opposition to the project by repeating the assertion the project approved without state or local input reflected “vast overreach” by the Obama administration.

If completed, the Clean Line project will deliver electricity from the Oklahoma panhandle and will enter Arkansas in Crawford County north of Van Buren and travel below Alma and Dyer before dissecting Mulberry to follow a line with Interstate 40 through most of Franklin County. From there, the transmission 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.

Once the project is operational, a power station in the Oklahoma Panhandle will convert the incoming alternating current (AC) power generated by new wind farms into direct current (DC) power. The converter stations in Pope County, Ark., and Shelby County, Tenn., will convert DC power back into AC power to be delivered to customers through the power grid, officials said.

In court filings earlier this year, Clean Line officials asked U.S. Judge Marshall to expedite court hearings, saying the controversial development is “time sensitive” and that legal delays could imperil the project’s financing and three-year construction schedule. Clean Line officials have said they hope to begin construction on the project in the second half of 2017 and complete it sometime in 2020.