“The group reviewed maps of the proposed corridor network in Arkansas. Comments made during this review are recorded in Attachment D. The following is a brief summary of issues identified by attendees:
• Avoidance of National Wildlife Refuges, State Parks, Natural Areas, and other designated areas;
• Important Birding Areas;
• Migratory bird areas;
• Mushroom collection areas;
• Visual and aesthetic concerns;
• Watershed areas;
• Public sensitivities;
• Forest fragmentation; and,
• Shale gas development.”
(http://www.plainsandeasterncleanline.com/sites/plains_eastern/media/Plains_and_Eastern_Clean_Line_August_2011_1222_update.pdf, starting on Page 33)
Let’s forget the early meetings with county, state, and federal officials/agencies, and Clean Line’s promise of increased property taxes. We’ll forget the ongoing “presentations” to college students and the sponsorship of various events across the state… For the next few minutes, we’ll forget that Clean Line’s latest “outreach” hires include the ex-chief counsel for the governor’s office in Arkansas, a former State Representative of Oklahoma, and the former vice president at the State Chamber in Oklahoma (*cough* lobbyists? *cough, cough*). http://www.plainsandeasterncleanline.com/sites/plains_eastern/media/docs/Plains__Eastern-newsletter-August-2014-WEB.pdf
Let’s forget all of that and consider just two things…
First, for all Clean Line’s “outreach”, there are still Arkansans inside the proposed corridor who have no idea their land could be affected by this line.
Second, Clean Line is actively seeking to obtain the right of eminent domain through the Department of Energy (by way of the Southwestern Power Administration). Yes, they like to call it “federal siting authority”. No, that doesn’t change what it is. Are these two things simple coincidence? I’ll let you decide. But more importantly, why do they matter?
Well, for one thing, Clean Line is a transmission company, not a traditional public utility. Oh, maybe it’s half of one in Oklahoma, but let’s be clear: For all their “rejected without prejudice/the state law wasn’t designed for a project as innovative as ours” talk, Clean Line failed to meet the definition of a public utility in Arkansas. Of course now they’re throwing us a bone by way of a possible converter station somewhere, maybe, between Russellville and Conway… Perhaps to boost their chances for a second go at the Arkansas Public Service Commission? In the meantime, however, they appear to have opted to circumvent state law entirely and have petitioned the Department of Energy for eminent domain authority using section 1222 of the 2005 Energy Act.
You can link to the act here: http://energy.gov/oe/services/electricity-policy-coordination-and-implementation/transmission-planning/section-1222
Or read this: http://stoppathwv.com/1/post/2013/04/us-dept-of-energy-misuses-eminent-domain-authority-for-clean-lines-private-land-grab.html
So why go for the feds? Why not just build P&E as a merchant transmission project? It’s the eminent domain, silly:
DOE and Southwestern understand and agree that their ability to acquire through condemnation proceedings property necessary for the development, construction and operation of the Project is one of the primary reasons for Clean Line’s interest in developing the Project with DOE and Southwestern and through the use of EPAct 2005 section 1222. DOE and Southwestern agree that, if the Secretary of Energy ultimately decides upon the conclusion of such evaluation as DOE and Southwestern deem appropriate that (i) the Project complies with section 1222, and (ii) to participate in the Project’s development pursuant to section 1222, then, DOE and Southwestern will use their condemnation authority as may be necessary and appropriate for the timely, cost-effective and commercially reasonable development, construction and operation of the Project.
(http://www.plainsandeasterncleanline.com/sites/plains_eastern/media/Plains_and_Eastern_Clean_Line_August_2011_1222_update.pdf page 53)
And there it is, right there in the last sentence: “Cost-effective and commercially reasonable development” Ding! Ding! Ding!
Cost-effective? For whom? Commercially reasonable? For whom? Not the landowners who don’t want the project, but have to settle for Clean Line’s “generous” 100% of the market value for the easement. Not for the people who actually get to shoulder the burden of having this project on their property for the rest of their lives.
The “need” for eminent domain in this instance depends on your perspective. Yes, they could do the project without it… No, they probably can’t afford to do three to four major lines at once. Who'll pay for the rush to get as many lines up as quickly as possible? Probably not the profit margin.
The truth is, eminent domain isn’t just about taming the occasional holdout. It’s about cost management for the entire land acquisition process. It’s a big, fat, super discount for companies looking to cash in on “the despotic right”, maintaining as much profit as possible, and it comes on the backs of ordinary people. People most often without the resources to fight back. It’s a gold-plated loaded gun--bad enough when used by actual utilities, but employed by private entities… whew. We’ll ignore all the tempting comments on Plutocracy here because I want to share a quote from a working legal paper I found while fighting a completely different energy easement planned for our land last year:
“The simplest solution to the problems described above is to remove the power of eminent domain from utilities for LIEs. Utilities argue that they need eminent domain power to avoid hold out problems. However, the successful record of utility acquisition of LIEs without the use of eminent domain suggests this is overstated. For example, the LCRA line which crosses Kimble County, Texas en route from the Texas Panhandle to Austin is the second such line to be constructed on that route. The first was built roughly 20 miles to the east by Florida Power & Light (FPL), which does not have the power of eminent domain in Texas. FPL reportedly paid much higher prices for its easements than LCRA (although the exact amounts are protected by contracts prohibiting the landowners from revealing what they were paid). In addition, FPL easements contain significantly different provisions from the LCRA easements. For example, FPL indemnified its servient estate owners.
There is some evidence that the process by which risks are imposed affects risk perception which also suggests that eminent domain is particularly inappropriate for LIEs, as determining reasonable compensation is particularly difficult in such instances.
As Dent and Sims conclude in their study of risk perception involved in wind energy and cell phone towers:
Professionals working in the field of value impacts of facilities such as HVOTLs, cell towers and wind turbines need to appreciate that those opposing any particular technologies, or specific sites, are not necessarily acting irrationally. Nor can their actions be categorized simply as NIMBYism (not in my back yard). There are often more complex issues surrounding such opposition such as power relations, democracy, personal histories, etc.
Most importantly, terminating utilities’ eminent domain powers would not end the creation of LIEs but instead require condemning entities to negotiate with landowners for easements. If particular features of LIEs led to landowners insisting on greater compensation, utilities would be incentivized to develop means of abating the problems. If negotiations resulted in higher costs for utilities, this would lead to more accurate social cost pricing of transmission – a feature, not a bug. Indeed, forcing utilities to pay the full cost of building transmission lines would create incentives to adopt innovative technologies and pricing formulas that could reduce the need for additional transmission lines.”
(Morris, Brandys & Barron, Involuntary Cotenants: Eminent Domain and Energy & Communications Infrastructure Growth, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2380159, page 40)
(Do we get into the use of existing easements and public lands for public good here? Or the Champlain Hudson Line that will run not only underground, but also through portions of existing railroad easements. Wait! Wasn’t Clean Line likening energy transmission to railroads on its website not that long ago? Kismet!!! But for now, let’s just keep going.)
So what does this potential partnership between Clean Line and the DoE mean for us little people? It means taking these kinds of decisions further out of the general public’s hands and placing them ever more firmly in those of D.C. and the private entities that feed off the rich buffet of government employees, trained and groomed at taxpayer expense, who leave public service to bring their expertise and connections to the private sector. It means that the average American, in spite of working hard and paying their taxes, may no longer be able to trust that the federal government will protect their right to property over the proposed projects of venture capitalists. It means the DoE not only takes a mistress, but puts her up in an apartment at the Ritz.
Now, before I’m accused of misunderstanding the antiquated state of our electric grid, the history of eminent domain in our country, of putting the needs of the few before the “needs” of the many, being a climate change denier, etc… Let me say that our grid is in dire straits, eminent domain has gotten away from us as a country (Kelo v. New London was a bad call, sorry), you can’t be NIMBY when you’re AIMBY (Already In My Backyard-my family’s land has multiple easements, as do many families in the corridor), the needs of the many need to be addressed in a way that is fair and equitable for everyone. Finally, I not only believe in climate change, I think it’s the most dangerous issue of our time and, likely my children’s time as well.
If it’s true that we are at the beginning of a new golden age of transmission and energy production, then for the love of all we have stood for together as a country, let’s do it the right way. Let’s not promote the transmission equivalent of urban sprawl. Let’s not force people to sacrifice their land to a company that, to the best of my knowledge, hasn’t built a shed, much less the largest transmission line in the country. One that peddles electricity from wind farms that, to the best of my knowledge, haven’t been built yet. That has, to the best of my knowledge, no committed, contracted consumer base in Tennessee or elsewhere. That, in my opinion, dangles the “jobs/taxes” carrot in a desperately impoverished state to encourage people to ignore the potential abuse of the rights of fellow residents. That prides themselves on their innovative method for pricing easements and then uses the same old tired methods of land acquisition (As Michael Skelly said in his TED Talk, before discussing the plethora of experienced right-of-way agents available in Texas, infrastructure challenges are “a question of brawn.” Listen at 13min 41 sec: https://www.youtube.com/watch?v=icgEphbS8zE ). A company that somehow, though it’s been three years since those “pre-design” meetings, still has potentially affected landowners in the proposed corridors who are unaware their intentions.
Before I go, I want to give a friend the final word. The other day he noticed that Clean Line was a sponsor for the 2014 ARvets “Salute” Gala. Unfortunately, his comment on the website was taken down: http://arvets.org/frontpage/sponsors-offer-support-for-2014-salute-gala/#comment-19970. Luckily, he shared his thoughts with me:
"It's ironic that Clean Line would be a sponsor of an event that honors vets. Ironic because they plan to use federal eminent domain to take land from a World War II combat vet. That vet is my father, Jake Dyer. He served in the Navy in the Pacific theater of operations. One of his duties was gunner on amphibious assault landing craft.
The insidious thing about Clean Line is their use of money to worm their way into influence in Arkansas. This event is a case in point."
Happy Friday.
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