How much are conservation groups willing to sacrifice in local impact to make for the possibility of real progress against global climate change?Already this spring, the Fourth Circuit rejected FERC's expansive interpretation of the backstop authority it was granted within "national interest corridors" by the Energy Policy Act of 2005. According to the court in Piedmont v. FERC, an outright denial by state siting authorities does not constitute "withholding approval," the condition that must be met for a year or more to give FERC the power to intervene under EPAct 2005. In essence, the Fourth Circuit's decision amounted to a bright line indication that the Act does not vest FERC with any right to preempt or supersede state siting bodies - even in national interest corridors.
Now comes a challenge to the corridors themselves. Over at NYT/Greenwire, Noelle Straub reports that almost a dozen conservation groups have joined in a suit filed against the federal government in a California US District Court, alleging that the process undertaken to create the corridors violated the administrative requirements of several (mostly environmental protection) statutes.
The complaint goes on to allege that had those processes been undertaken as required by statutes like the National Environmental Policy Act, it would have become evident that the designation of these corridors as the Interior Department proposed would only support the continued proliferation and reliance on coal and other fossil-fueled power, and the designation would not have been carried out because of the environmental hazard that reliance poses.
Whether its legislative, administrative or judicial movement on energy, electric transmission lines remain the sticky wicket.
It is questionable just how badly the plaintiffs want this case to see a courtroom. First, these groups love to team up for this kind of action. Whatever happens, it looks great in an annual report, provides fodder for an email blasts and gets "the base" fired up, and the groups joining as plaintiffs are - almost exclusively - member-driven and member-funded NPOs. Further, Straub quotes one of the lead plaintiff's attorneys (Katie Renshaw representing Earthjustice) saying that they view the suit as an invitation to settlement for the new administration. Filing suit seems like kind of an odd form of invitation given all the ongoing discourse on energy policy, and the fact that there is legislation pending before the Senate that is likely to include major transmission siting provisions that could expand upon even the claim of authority that FERC had shot down in Piedmont.
You also have to question the wisdom of sending this particular "invitation" - to discuss removal of the designation of 6,000 miles of transmission rights-of-way - to an administration that only last week announced the beginning of an expected two-year process that should result in the
designation of more than 675,000 acres of federal land in the western US for solar projects. Granted, solar is renewable, but in spite of whatever Kabuki dance the administration undertakes in "studying" the environmental impacts of the proposal over the next two years, does anyone expect that the result will be anything other than the official designation of whatever lands the administration chooses to set aside for big-time solar development? It begs the question: will Obama's solar plan ultimately face the same legal and political opposition?
Inevitably, it will, from someone. That is symptomatic of the ongoing internecine battle in the environmental community. How much are conservation groups willing to sacrifice in local impact to make for the possibility of real progress against global climate change? If the answer continues to be not enough, will this current wave of activity look any different through the lens of history than say Jimmy Carter's PURPA push after the oil crisis?
Both this suit and Piedmont...cut to the very core of EPAct 2005's purpose regarding transmission: to see to it that high-voltage bulk power lines that are needed for the greater good are not held hostage to local opposition.Whatever the final disposition of the suit, it is just another reminder that whether its legislative, administrative or judicial movement on energy, electric transmission lines remain the sticky wicket. Both this suit and Piedmont challenge the federal government's authority to expedite transmission siting under EPAct 2005. Which is to say that they cut to the very core of the Act's purpose regarding transmission: to see to it that high-voltage bulk power lines that are needed for the greater good are not held hostage to local opposition.
Transmission infrastructure expansion is critical. As the nation's grid exists today, there is inadequate transmission capacity to meet increasing demand. Further, if there is any hope of bringing greater renewable capacity on-line, especially in the quantities that the most aggressive goals contemplate, wholesale transmission expansion will need to take place. Every renewable generating project that is not deployed as a distributed generation asset will need to interconnect. Even T. Boone Pickens cited lack of transmission as one of the chief reasons for abandoning his ambitious Texas-based wind farm proposal.
From the legal perspective, I think the Fourth Circuit had it right. FERC's interpretation of "withholding approval" being synonymous with outright denial was not justified by the language of the statute, the legislative record, or prevailing legal precedent on administrative deference. But, the US District Court here - presuming the Obama administration tries the case and doesn't accept the "invitation" - is faced not only with a much more defensible exercise of agency authority, which it should treat deferentially; but, they (and the appeals courts thereafter) will also be faced with the prudential question of whether the process argument that the plaintiffs make is enough. Even if the groups can show that the process was not followed down to the letter in NEPA, the court must contend with the likelihood that the decision would have been the same. Not only that, but why should a court invalidate an agency decision when the agency is likely to adopt a new and more aggressive policy to preempt the one in question in the near-term.
I may be reading the tea leaves wrong, but I believe that Obama and team are willing to take the hit from the likes of Earthjustice if it means getting needed transmission built and moving a step closer to wider deployment of renewables. After all, where are groups like Earthjustice going to run? To the GOP? Obama has shown his keen understanding (whether it is on Afghanistan, health care, energy, wiretapping and civil liberties or gays in the military/gay marriage) of the fact that he can afford to disappoint the constituency that is to the left of him. Biden and Clinton will have to start to separate themselves from their boss in the mid-term of the second four years as they jockey for the nomination and woo the far left for 2016, but for now it will remain an unguarded flank through 2012 for a reason -- Obama doesn't fear Dennis Kucinich stealing the nomination from the left.
Politics aside, all the executive and legislative action under the sun won't mean a thing if courts invalidate interpretations or processes like those undertaken by the feds in instituting EPAct's corridor creation. Transmission will never get built on a large-scale. And, if every small renewable power project has to take on the protracted fight for their own siting, permits and construction approvals, the projects will never get off of the ground (financially or logistically).
If every small renewable power project has to take on the protracted fight for their own siting, permits and construction approvals, the projects will never get off of the ground.
These groups are entitled to take this course of action. In fact, I suspect that these kinds of cases are existential questions for groups like this now, where a lot of their "base" might see Obama in the White House, progressive action at the state level on renewables, new requirements imposed and initiative taken by utilities, among other things and decide that the check to Earthjustice is not really a necessity this year.
But, much as I have argued against the environmental bias against hydro and nuclear power in past posts on this site and over at the CleanTechies blog, I would say that the suit is myopic. If we are going to solve climate change, it may mean the eradication of local shrew habitats. I am willing to make that trade, and I think it makes me a BETTER environmental advocate. Earthjustice and its co-plaintiffs are not.
Of course, the real question is, what does Barack Obama think?
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