Pending Legislation
SYNOPSIS OF BILLS INTRODUCED TO
AMEND OR REPEAL ENERGY POLICY ACT
Prepared April 17, 2007
Background
The three bills summarized in the following table all focus on altering section 1221 of the Energy Policy Act (EPAct) as passed in 2005. Each was introduced in February 2007.
As now written, EPAct authorizes FERC (the Federal Energy Regulatory Commission) to assume siting authority on interstate lines which reduce system congestion if:
- the applicant transmission company does not serve customers in the state in which the line is being constructed
- the state does not have the authority to consider interstate benefits of the new line
- the state has withheld approval for more than 12 months of an application in a NIETC area.
Further, the Act charges the Secretary of Energy with ensuring that all applications submitted to FERC will be completed within 1 year. And, if the application is denied by FERC, the applicant may yet appeal to the President for authorization.
The Act also authorizes the use of eminent domain for right of way acquisition when the power company is unable to reach agreement with the property owner.
To address some of the onerous provisions of the legislation of 2005, Congressmen from Virginia and New York introduced a set of bills earlier this year. All three bills sit in committee at the moment.
Bill Number
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829
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810
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809
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Bill Name
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NIETC Clarification Act
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Protecting Communities fr Power Line Abuse Act
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No name
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Sponsors
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Wolf, Arcuri, Davis, Grijalva, Hall, Hinchey, Platts (PA)
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Hinchey, Arcuri, Grijalva,
Hall, McHugh
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Hinchey, Arcuri, Davis, Grijalva, Hall, McHugh, Wolf
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Key
Provisions
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Adds consideration of corridor impact on natural values and special places to the designation process
Prohibits corridor designation from encompassing or from coming within 1 mile of the boundaries of lands on which development is prohibited and /or limited to protect scenic, natural, cultural or historic resources
Directs that all alternative measures to address transmission constraints or congestion be considered prior to corridor designation
FERC backstop siting authority allowed only if state with siting approval authority has: denied siting in a decision involving an abuse of discretion, or unreasonably withheld or delayed a decision for 1 yr
Requires compensation for takings if property values diminish by 10% or more
Require feasibility study of undergrounding
Requires agencies to issue records of decision, ensuring that envl reviews comply with mandates and regulatory requirements
Repeals right to appeal to President for approval
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Repeals authority to acquire right of way through eminent domain, modifying reqs to be in accordance with state law
Repeals provisions re.: (1) mandatory fair market compensation for right of way acquisition, (2) transmission facility modification in accordance with state law, and (3) requirements for coordination of federal authorization, including authorization to file an appeal with the President
Requires comment period of at least one year
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Repeals provisions regarding the siting of interstate electric transmission, including: (1) corridor designation, (2) issuance of permits for construction or modification of such facilities, (3) acquisition of rights of way by eminent domain, and (4) consent of congress to interstate compacts for establishment of regional transmission siting agencies
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The material below was issued by Congressman Wolf’s office re. House Bill 829.
NIETC Clarification Legislation
As the Department of Energy and the Federal Energy Regulatory Commission look to begin implementation of Section 1221 of the Energy Policy Act of 2005, concerns have arisen about usurpation of the state decision making process, overriding of merit based decisions by state siting authorities, destruction of protected lands, promotion of alternative solutions and unjust compensation for landowners adjacent to new transmission lines. This legislation attempts to clarify this section to ensure that each of these concerns is given proper consideration in this process.
Protecting the State Decision-making Process
Section 1221 provides that state entities with authority to site transmission lines can have their jurisdiction to approve or disapprove an application for new transmission lines in the state usurped after one year. Additionally, the FERC can simply override disapproval by the state regardless of how sound the rationale for disapproval might have been. This is unacceptable.
Under this legislation if the state entity denies an applicant, any subsequent application to FERC would first have to prove that the state decision was arbitrary and capricious. Furthermore, if the state goes beyond a year to act, the applicant must show that the state had no valid reason for delaying action.
Saving Protected Lands
In order ensure that lands that have been protected by the federal or state government through conservation easements, ownership and similar preservation initiatives will not be impacted, the legislation prohibits these lands from being included in a NIETC.
Promotion of Alternative Energy Solutions
Currently no assessment of alternative energy solutions is required before action is taken to designate a NIETC. This legislation would require the Department of Energy to consider all alternatives to building new transmission lines before designating a NIETC. Furthermore, the Department of Energy will be required to solicit public comments on the analysis.
Compensation for Adjacent Landowners
Under current law, landowners are compensated only for the portion of their property actually taken for the corridor right-of-way. There is no compensation for any reduction in the value of the remainder of a landowner’s property or for adjacent landowners whose property is devalued. This legislation would allow all landowners who are able to prove a 10 percent diminution in property value because of the construction of the transmission lines a cause of action to recover those damages from the energy company.
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