Federal court strikes down landowners’ complaint against $2 billion Clean Line wind project

U.S. District Judge D. Price Marshall Jr. delivered an early Christmas present to Houston-based Plains and Eastern Clean Line on Thursday (Dec. 21) by striking down a complaint by Arkansas landowners that a $2 billion wind-power, high-voltage transmission across the state went beyond legal authority of federal law and deprived them of due process.

Just more than a year ago, two landowner groups, using the names Golden Bridge LLC and Downwind LLC, brought the case to federal court to protect property rights and interests of member landowners along the entire route of a proposed 720-mile project across the heart of Arkansas, including several pristine streams and watersheds.

In March 2015, then-Department of Energy (DOE) Secretary Ernest Moniz used “Section 1222” of the 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.

In his 18-page order late Thursday afternoon, Marshall’s decision largely focused on several key arguments made by the landowners’ during the federal hearing in Little Rock on Nov. 14. The arguments included DOE’s statutory authority to participate in the project, the federal government’s condemnation process, the administration procedures for evaluation Section 1222 projects and due process.

PROJECT CASTS A SHADOW
In each of the issues, Marshall summarized the DOE acted within its authority on each matter. For example, the U.S. District Judge wrote that although there has been “much process” about the proposed transmission line, “the United States hasn’t deprived the landowners of due process.”

“There’s no question that this project casts a shadow on their land. But this happens whenever a state plans a highway or a city starts annexing territory,” Marshall wrote of the landowners’ central argument. “The landowners say their peaceful use and free enjoyment of their property is under attack. Folks from Clean Line are knocking on doors and asking to buy easements. But those visits don’t prevent landowners from using and enjoying their property, albeit with some uncertainty.”

Marshall continued: “The landowners retain the right to exclude. Some have allowed Clean Line in to appraise the land. Others have not. The landowners who’ve not allowed Clean Line on their premises say they’re at risk of low appraisals, but there’s no record evidence of that danger.”

At last month’s hearing, Little Rock attorney Jordan Wimpy, representing more than 100-member landowners along the Arkansas portion of the proposed wind-energy project, was peppered with several questions by Judge Marshall on the due process argument. The local attorney kicked off oral arguments by stating the public-private partnership between the DOE and Clean Line went beyond the legal authority of federal law, was not necessary to meet energy demand, and did not afford the plaintiffs due process.

“The plaintiffs don’t have to sit around and wait on what to do. The determination is now. The injury is now,” argued Wimpy, who was unavailable for comment late Thursday afternoon.

Marshall also opined in his order that procedural requirements for informal agency action by the DOE are minimal, noting “the law doesn’t require courtroom-like procedures.” The federal judge for the Eastern District of Arkansas added that Energy Department officials held 15 public hearings in Oklahoma, Arkansas, Texas and Tennessee on the project and received more than 700 comments in the DOE docket, including many from Downwind members.

“The Department considered those comments.  And while it is too much to hope that everyone will agree with this Court’s decision, perhaps everyone will acknowledge that they have been fully heard here,” Marshall wrote. “If there are condemnation actions, this Court or another one will see that the law is followed in those circumstances. In sum, notwithstanding the shadow necessarily created by any public work like this project, the landowners have not been deprived of due process.”

In denying the “due process’ argument and upholding the DOE and Clean Line’s cross motions for summary judgment, Marshall also dismissed without prejudice the landowners’ other condemnation-related claims.

CLEAN LINE APPLAUDS DECISION
In response to Marshall’s decision, Clean Line offered the following statement Thursday afternoon:

“We applaud the decision by the United States District Court in the Eastern District of Arkansas to uphold the use of Section 1222 of the Energy Policy Act of 2005 for the Plains & Eastern Clean Line,” said Clean Line Executive Vice President Mario Hurtado. “This critical decision confirms the strong legal basis for the Department of Energy’s decision to participate in the Plains & Eastern project and keeps the door open for future infrastructure projects and the use of Section 1222.”

Clean Line officials did not immediately respond to a query from Talk Business & Politics concerning the Texas partnerships plan to begin construction on the project. In federal court filings earlier this year, Clean Line officials said they planned to begin construction on the project in the second half of 2017 and complete it sometime in 2020.

However, in recent regulatory filings before the Oklahoma Corporation Commission, Hurtado testifies in hearings on the $4 billion Wind Catcher renewable project in the Oklahoma Panhandle that Clean Line expected to begin construction on the project in early 2018. The Wind Catcher project is headed by Ohio-based utility giant AEP and its sibling utility companies PSO in Oklahoma and SWEPCO in Arkansas and Louisiana.

Under its controversial plans, Clean Line’s hopes to deliver wind-energy from the Oklahoma Panhandle across the Sooner State on high-voltage power lines that enter Arkansas in Crawford County north of Van Buren, and exit the state through Mississippi County north of Memphis into Tennessee. When completed, the three-state project is expected to deliver wind-powered electricity to 160,000 Arkansas homes annually, company officials said.

Once 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.

Beside the landowners, Arkansas’ congressional delegation has also attempted to halt and slow down one of the nation’s largest renewable energy infrastructure in U.S. history. Three months ago, all six of Arkansas’ Republican congressmen and senators followed up on earlier plans to ask DOE Secretary Rick Perry to end the agency’s participation in the controversial Clean Line project.

Just after Perry was appointed to the DOE post in March, the Arkansas delegation sent a letter to the former Texas governor reinforcing its opposition to the project by repeating the assertion the project approved without state or local input reflected “vast overreach” by the Obama administration.