Department of Energy Moves Forward With First-Of-Its-Kind Exercise of Authority While Bill to Protect Property Owners Remains Pending

Last year, Representative Steve Womack (R-AR) and Senator John Boozman (R-AR) proposed matching versions of the Assuring Private Property Rights Over Vast Access to Land Act (the “APPROVAL Act”) in the House and Senate. The APPROVAL Act would limit the U.S. Department of Energy’s authority under Section 1222 of the Energy Policy Act of 2005 by requiring approval from a state’s governor and public service commission for any Section 1222 energy transmission project before the federal government may use the power of eminent domain to take private property.

While the APPROVAL Act would have impact nationwide, Representative Womack and Senator Boozman proposed the legislation in direct response to the Department of Energy’s announcement of a plan to partner with a private company, Clean Line Energy, to route a new interstate transmission line through Arkansas. The Arkansas Public Utility Commission had previously denied Clean Line Energy’s request for approval for the line, finding that the project did not serve the best interests of the State.

As a result, the Department of Energy’s attempt to use Section 1222, in the words of Representative Womack, “potentially usurp[s] the state’s role, ignoring the lack of necessity for transmission in the region, and setting a dangerous precedent for the future of federal authority.”

Department of Energy Moves Forward with the Plains & Eastern Clean Line Project

While the APPROVAL Act remains pending in Congress, the Department of Energy is moving forward with the Clean Line Energy partnership. On March 25, 2016, it announced that it would use its authority under Section 1222 to undertake the “Plains & Eastern Clean Line Project” and construct a new transmission line that will stretch from Oklahoma to Tennessee, through Arkansas. This is the first ever exercise of the Department of Energy’s authority under Section 1222.

Arkansas Delegation to Challenge the Department of Energy’s Exercise of Authority Under Section 1222

With the Plains & Eastern Clean Line Project expected rely upon the federal government’s power of eminent domain, members of the Arkansas Congressional delegation are continuing to push back against the Department of Energy’s plan. In a joint statement released on March 25, they stated, “We now will begin the process of careful review over [the Department of Energy’s] decision . . .. Section 1222 of the Energy Policy Act of 2005 establishes specific conditions that must be met before this authority is used, and we expect the Department to release all details of their review so that our staff and Congressional investigators will be able to continue the process of oversight.”

The statement continued, “It is our firm belief that the [Department of Energy] has overstepped its bounds, and reversing this decision through the passage of the APPROVAL Act remains a top priority.”

Is Your Property in the Path of the Plains & Eastern Clean Line Project? An Eminent Domain Attorney With Owners’ Counsel of America Can Help

If you have received a condemnation notice related to the Plains & Eastern Clean Line Project, an eminent domain attorney with Owners’ Counsel of America (OCA) can help you fight to protect your private property. To schedule a consultation, call us at (877) 367-6963 or locate an OCA attorney in your state today.

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