Energy Department Trumps States' Rights
Part 2 of A Series
As discussed in Fallout from the Energy Policy Act of 2005 Part I of a Series, the United States federal government is taking a more and more integral role in the distribution and transmission of electricity and in the energy sector throughout the U.S.
And such is the result of both federal regulations and laws mandating the deregulation of public utilities as well as the repeal of the Public Utilities Holding Company Act (PUHCA) of 1935, as mandated in the Energy Policy Act of 2005 (EPAct 2005). It will prove to have profound impacts on the future of not only the fiscal health of public utilities but the oversight of their maintenance and the future construction of transmission lines.
This Part II continuing report, on the exploration of EPAct 2005, will focus upon a section of the law which has not been clearly articulated for the American people by either the Department of Energy (DOE) or members of either the U.S. House of Representatives or the U.S. Senate.
Yet, this complex and important body of law represents but an ad hoc and unilateral takeover of not only the direction of energy policy but the very delivery system which Americans rely upon in order to live.
EPAct 2005 sets forth specific mandates whose ramifications are unprecedented with respect to U.S. energy law, states’ constitutional rights and sovereignty, as well as interstate commerce. Specifically, Section 1221 of EPAct 2005 updates Section 216 of the Federal Power Act (FPA).
It provides for, among other things, the requirement of a National Electric Transmission Congestion Study, first completed in August 2006, a year after enactment of EPAct 2005. Such a Congestion Study will then be repeated every 3 years thereafter.
And it is the National Transmission Congestion Study which paved the way for the mandated National Interest Electric Transmission Corridors (NIETC).
According to Section 1221(a) of EPAct 2005 (Section 326 of FPA, 16 U.S.C. Section 824p) the Secretary of Energy may designate “any geographic area experiencing electric energy transmission capacity constraints or congestion that adversely affects consumers as a national interest electric transmission corridor.”
And the DOE then proposed as a direct result of the study two transmission corridors which consist of the Mid-Atlantic Area National Corridor and the Southwest Area National Corridor. The draft NIETC was issued in April 2007 and finalized in October 2007 by the DOE.
Why you may not be aware of such transmission corridors and their intended purpose can be answered simply because the public and consumers of public utilities were given little or no notice of opportunities to weigh in and attend very limited public hearings, abruptly announced in May 2007 by the DOE to take place in the very same month. That gave little time for proper public notice for participation by residents, lawmakers, ratepayers and consumer advocates, to name but a few.
Even more disconcerting is that the DOE claims that EPAct 2005 does not require it to hold any public hearings regarding the NIETC. And in spite of over 2000 written comments and reports submitted to the DOE by state governors, U.S. state and federal elected representatives, consumer advocacy organizations, and environmental and historic preservation organizations, which all protested such corridors because of the lack of public input, the DOE would have none of it.
Instead, the DOE made no changes or acted upon any of the recommendations it received on its draft proposal by finalizing the NIETC in October 2007, as originally drafted.
In terms of the enormous implications in the construct of the Mid-Atlantic Area National Corridor, on paper at least, there now exists an exact list of those states which are encompassed by it and will be impacted in a variety of ways; legislatively, constitutionally, economically, environmentally and historically.
Following is a list of those states and counties designated in the Mid-Atlantic Area National Corridor: the entireties of New Jersey, Delaware, and Washington, D.C.; 22 of 24 counties in Maryland and all of Baltimore City, MD; 47 of 62 counties of New York; 7 of 88 counties of Ohio; 52 of 67 counties of PA; 15 of 95 counties and 7of 39 independent cities of Virginia; 42 of 55 counties of West Virginia.
By contrast, the Southwest Area National Corridor includes 7 of 58 counties of California and 3 of 15 counties of Arizona, albeit the most heavily populated areas of these states.