An attorney representing landowners opposing a high voltage transmission line across the Arkansas River Valley argued in federal court Nov. 14 that the U.S. Department of Energy (DOE) is using eminent domain authority solely to allow a Texas partnership to move forward with the controversial $2 billion project.
But DOE, Department of Justice and attorneys representing Houston-based Plains and Eastern Clean Line countered that the Arkansas landowners opposing the Clean Line project cannot sue the DOE until their land is condemned, and the federal law doesn’t allow the Energy Department to cede authority of federal grid infrastructure projects to state control.
Those issues were among a handful of key arguments made during four hours of deliberation before U.S. District Judge D. Price Marshall, Jr. for the Eastern District of Arkansas. Two landowner groups, using the names Golden Bridge LLC and Downwind LLC, brought the case to federal court over a year ago to protect property rights and interests of member landowners along the entire route of the proposed 720-mile project across Arkansas.
In March 2015, 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.
Little Rock attorney Jordan Wimpy, representing more than 100-member landowners along the Arkansas portion of the proposed wind-energy project, 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,” Wimpy argued.
Over the next hour, Judge Marshall peppered Wimpy with several questions concerning the DOE’s authority under Section 1222 to participate in the multistate project.
“The determination by the DOE is that it has statutory right and authority to public use of eminent domain,” Marshall said in one exchange with the local attorney who recently joined the Mitchell Williams Selig Gates & Woodyard law firm.
Eminent domain question
During his hour-long oral briefing before the federal bench, Wimpy spent a considerable amount of time arguing that the DOE’s participation was not aimed at improving the nation’s energy grid, as required by Section 1222.
“(This) otherwise is not a federal project. It is a Clean Line project,” Wimpy argued. “Clean Line owns all the assets, all the benefits, and the federal government is simply participating in the project. It may sound bad, but the plaintiffs believe Clean Line is just buying the DOE’s power of eminent domain. That’s what it looks like on the ground.”
After Wimpy finished his oral arguments, Judge Marshall brought up that same question to the DOE’s lead counsel James DuBois, who is part of the DOJ’s Environment & Natural Resources office in Denver. In one humorous exchange with DuBois, Marshall asked the DOJ attorney if Clean Line was a “quasi-agent” for the federal government.
“Yes. A quasi-agent with a checkbook. That’s the best kind,” DuBois said, adding that Congress intended for Section 1222 to allow the federal government to improve the nation’s energy grid by attracting private investment.
Marshall also asked DuBois if the DOE’s request for proposal to participate in the three-state energy project was the Obama administration’s way of circumventing the will of the state of Arkansas after the plan was reviewed and rejected by the Arkansas Public Service Commission (PSC).
“Was that a workaround based on what happened before at the PSC?” Marshall asked the DOE counsel.
DuBois replied that Clean Line participation in the project was in response to the DOE RFP, adding that states such as Arkansas have no authority over federal energy infrastructure projects unless it is “specifically given” by Congress.
“The statute does not give states veto power over national grid infrastructure projects,” DuBois told Judge Marshall. “The federal government has successfully shifted care of the national grid to private partners by encouraging private investment. That is what the statute is designed to do – using OPM – ‘other people’s money.’”
Wimpy and DuBois also debated whether the wind-energy capacity from the Clean Line project is a necessity for the nation’s electricity grid. Wimpy said the DOE’s own internal studies show that grid operators across the U.S. Southeast have not yet agreed to purchase power from the Texas partnership. But DuBois told Judge Marshall that the DOE’s assumptions were based on longer-term projections.
“All of these studies show a changing grid and a changing demand for power,” he said. “We are looking not just at 2020, but 2030 and 2040 too.”
After DuBois ended his arguments on behalf of Energy Department Secretary Rick Perry and the Southwestern Power Administration, he deferred to DOJ Attorney Reade Wilson to respond to the question of whether the federal government had the authority to condemn private property for the Clean Line project. But Wilson, part of the DOJ’s Washington, D.C.-based Environmental Defense Section, went back-and-forth with Judge Marshall for several minutes arguing that until property was actually condemned by Clean Line, she couldn’t say for certain what steps the DOJ would take to enforce the DOE’s right of acquisition for the three-state project.
“There is no certainty that the government will ever condemn property,” she said. “I can’t speculate what the U.S. Attorney General (Jeff Sessions) would do in this case.”
When pressed by Judge Marshall on what the DOJ would do if the court ruled in Clean Line’s favor, she said “condemnation is the last resort. If it happened, we would contact each landowner and our goal would be to make each of them whole.”
Michael Bailey Heister, a local attorney at Quattlebaum, Grooms & Tull, argued on behalf of Clean Line, echoing many of the same points made by DuBois and Wilson. At the end of the proceedings, Wimpy rebutted some of DuBois’ arguments and reiterated that the DOE-led project gave too much authority to Clean Line, especially on proposed eminent domain proceedings.
‘Not enough’ Department of Energy
“I take it the plaintiffs’ arguments is that there is too much of Clean Line and not enough DOE,” Judge Marshall told Wimpy, bringing laughter from the courtroom.
After the four hours of oral arguments were completed, Judge Marshall said he had planned to rule from the bench, but decided he needed more time to consider complexities of the case.
“This onion has many layers, and the federal layer onion may be the most important,” he said, adding that he would file an order as soon as possible.
The Arkansas landowners have asked Judge Marshall for a summary judgment to halt the project. If the court rules in the DOE’s favor, Clean Line officials have said they plan to begin construction on the project in the second half of 2017 and complete it sometime in 2020.
The line 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 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 and Shelby County, Tenn., will convert DC power back into AC power to be delivered to customers through the power grid, officials said.
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