At the Fourth Annual Liskow & Lewis Energy Law Lecture, Professor Jim Rossi of Vanderbilt Law delivered a presentation entitled “Federalism Battles in Energy Transportation.” To illustrate these conflicts in energy transportation, Professor Rossi used two transportation examples that differ in geography, product transported, governing body historically responsible for regulation, and often in public perception. Despite these differences, both means of transportation face legal hurdles that require consideration of federalism principles. The examples include the Constitution Pipeline, a natural gas pipeline segment connecting Pennsylvania to New York, and the Plains & Eastern Clean Line Project, a direct current transmission line transporting wind energy from Oklahoma, Kansas, and Texas to Tennessee, Arkansas, and the rest of the south and southeast.
Natural gas pipelines have historically been governed by federal law since the passing of the Natural Gas Act of 1938. The Constitution Pipeline was granted federal permits. However, such a line still requires state Water Quality Certification under the Clean Water Act § 401. States typically waive this requirement. However, the State of New York is now holding up the process by refusing to issue this certification. This tension between the federal and state authority is currently being litigated in the Second Circuit and the federal district court in New York.
The routing, approval and eminent domain authority for new interstate electrical transmission lines, like those at issue in the Plains & Eastern Clean Line Project, are historically regulated by states rather than the federal government. The state regulators in Oklahoma and Tennessee approved the line, but Arkansas regulators denied approval in 2011 on grounds that only public utilities can obtain siting approval. The effect of Arkansas’s denial is a hold on the entire line that Oklahoma and Tennessee have approved. The Department of Energy (“DOE”) and the Federal Energy Regulatory Commission (“FERC”) do have authority, however, under EPAct 2005 §§ 1221 and 1222 to override state action for electric transmission lines. Further, DOE has the authority to participate in the building of a transmission line through partnering with a private entity, subject to conditions laid out in SWPA and WAPA. Under this authority granted to it and for the first time in its history, DOE has agreed to partner with a private entity for the building of this transmission line. DOE will exercise its federal eminent domain authority to acquire the necessary land rights, making state permits unnecessary. DOE is, in effect, overruling Arkansas’ permit denial.
After presenting these conflicts, Professor Rossi engaged the audience in discussions about the need for future collaboration between the federal and state authorities and the impact of the new administration on these battles. The topics presented by Professor Rossi are covered in more depth in his forthcoming article, Reconstituting Federalism Battles in Energy Transportation, 41 HARVARD ENVIRONMENTAL LAW REVIEW __ (forthcoming 2017) (with Alexandra B. Klass).
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