Representatives join senators in state’s rights, private property fight 

State’s rights and personal property rights are at that heart of a bill introduced by Arkansas’ congressional delegation to amend a section of the 2005 Energy Policy Act.

The Assuring Private Property Rights Over Vast Access to Land (APPROVAL) Act, submitted by all four of Arkansas’ U.S. representatives this week, follows up one submitted by both Arkansas’ U.S. senators in mid-February to rewrite Section 1222 of the 2005 Energy Policy Act and give more leverage to states faced with new interstate power-line construction.

The bill is largely in reaction to opposition from landowners and county governments in western and central Arkansas and native American tribal governments in Oklahoma to the proposal by Clean Line Energy Partners of Houston to construct a $2 billion, 700-plus-mile, 3,500 megawatt, high-voltage-direct-current power line from Great Plains wind farms to the Tennessee Valley Authority . It’s called the Plains & Eastern Clean Line Transmission Project, and there are four others like it across the country.

There is, however, a big catch with the Plains & Eastern: Due to increases in natural gas production, the TVA’s 2015 Integrated Resource Plan calls only for between 500 and 1,750 megawatts of wind power by the year 2033. The TVA plans to add between 700 and 2,300 megawatts of natural gas power by 2023 and 3,900 and 5,500 megawatts by 2033.

“This is going to be a power line to nowhere, serving no one,” said Julie Morton of Crawford County and the group Arkansas Citizens Against Clean Line Energy. “Even the Obama Administration is being advised that these lines are visual pollution and Clean Line won’t even have a product to sell until after 2030.”

More wind power with the TVA does have a possibility though. The same long-range plan that calls for only 500 to 1,750 megawatts of wind power also says those needs should be “dependent on pricing, performance and integration costs.” And the TVA would “evaluate accelerating wind deliveries into the first 10 years of the plan if operational characteristics and pricing result in lower-cost solutions.”

Clean Line Energy Partners also often comment on the inexpensive cost of wind energy, and the nation’s electrical power grid needs to be updated.

Michael Skelly, president and founder of Clean Line Energy, said Thursday that TVA is just one of several utilities that seeks wind-generated power. One of those is The Southern Company, which provides power to 4.4 million customers in Mississippi, Alabama, Georgia and Florida.

“The market is much larger than TVA,” Skelly said.

Regarding property rights, Clean Line says is takes them “very seriously” and “values one-on-one conversations with landowners to answer questions and address concerns.” Clean Line says it “recognized the concerns” posed by the congressmen and has reached out to their offices.

“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,” a Clean Line Energy Partners news release states.

Since being denied public utility status by the Arkansas Public Service Commission in 2011, Clean Line has followed the federal rule book and looked to the Southwestern Power Administration to become involved in a public-private partnership.

In addition to the lingering possibility of Clean Line gaining eminent domain status under Section 1222 through the Southwestern Power Administration, the most common concern from Arkansas landowners has been over the “visual pollution” of a power line going through their property.

According to the Department of Energy’s recent draft environmental impact study, the HVDC power line would also cross the Mulberry River near its intersection with Interstate 40. The river is in the National Wild and Scenic Rivers System.

The impact study is required by the National Environmental Policy Act and has so far taken three years. The final phases are now being conducted.

Placing the power line underground is cost-prohibitive, Skelly said, because of the amount of insulation that would be required.

“It’s not a question of scientific advancement,” Skelly said. “It’s the raw physics of the insulation required for the line.”

The Ad Valorem Tax Question

Another big concern from landowners has been over a claim by Clean Line that the company would pay over $5 million in annual property taxes to the state’s county governments.

According to Doug Hart, the Southwestern Power Administration’s chief financial officers and director of the Division of Financial Management in Tulsa, the SPA “does not pay federal, state, county or city taxes on any of the facilities” they own.

Skelly said Thursday that the power line company would still pay the taxes.

“We would just pay directly to the county,” Skelly said. “The county doesn’t have to agree to the power line, but we would still pay the taxes.”

Clean Line also states in its news release that the project will bring “hundreds of jobs and over a half-billion dollar investment to the state of Arkansas.”

Regardless, many landowners simply do not want a private company to gain eminent domain and be able to forcefully purchase their property for the project.

U.S. Reps. Steve Womack, Rick Crawford, French Hill and Bruce Westerman introduced H.R. 3062, aka the APPROVAL Act, this week “to require the U.S. Department of Energy (DOE) 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.”

The APPROVAL Act also creates additional protections 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. The Senate companion bill is S. 485.

“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,” Womack said in a news release. “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.’”

Westerman said “the right to private property is fundamental to a free society” and “unfortunately, the federal government continues to show little respect for this important personal liberty.”

Strong support for the APPROVAL Act comes from Westerman, he said, “because it safeguards landowners from the threat of having their property taken through eminent domain.