So Allegheny provided information about their right of way clearing on their Web site. This information was found under “Frequently Asked Questions” specifically designed to “inform” land owners. On that Web site, Allegheny told land owners that “woody vegetation” would be “removed” “from the full width of the right-of-way.” Why would Allegheny do this on their Web site?
Because Allegheny wanted the information for land owners to conform with what land owners would actually see on their land when Supreme Industries was finished clearing the TrAIL right of way.
Why didn’t Allegheny put on their Web site the same information that they provided to the WV PSC to get their certificate of necessity approved? I don’t know the answer to that one, but I don’t think honesty and transparency had much to do with it.
Why did Allegheny, in its application for its TrAIL CoN (certificate of necessity), state that it would be leaving low growing woody shrubs on the right of way and leaving 100′ wide buffer zones along all creeks and streams?
Because of the highlighted clause below in the part of the West Virginia Code which defines the standards the PSC must use in awarding a CoN for high voltage transmission lines, that is Chapter 24-2-11a –
(d) …the commission may approve the application if it finds that the proposed transmission line:
(1) Will economically, adequately and reliably contribute to meeting the present and anticipated requirements for electric power of the customers served by the applicant or is necessary and desirable for present and anticipated reliability of service for electric power for its service area or region;
(2) Will be in the best interest of West Virginia customers and its citizens; and [This clause is the result of our SB614 victory last year.]
(3) Will result in an acceptable balance between reasonable power needs and reasonable environmental factors.
In its final order approving the CoN for TrAIL, the Commissioners, including sitting Commissioner McKinney, rejected the Sierra Club’s claim that “indirect” environmental factors had to be considered under WV law. The Commissioners specifically excluded indirect factors and stated clearly that only direct factors growing out of the clearing, construction and maintenance of the line itself could be used in this statutory balancing requirement.
Intervenors in the TrAIL case put considerable pressure on Allegheny, the CAD and the PSC to insure that the streams and ecosystems of our state be protected and preserved throughout the construction of the new transmission line. TrAIL passes through many pristine forest ecosystems and traverses many native trout streams, as well as the headwaters of the Potomac River.
It was clear to Allegheny that they would not be able to meet the environmental balancing test unless they produced an initial clearing plan that included significant environmental protections. Hence the commitment to no Class 1 clearing in the entire WV segment of TrAIL. Hence the commitment to locate transmission towers away from streams. Hence the commitment to creating 100′ buffer zones around all streams that preserved woody brush and low growing trees along those streams.
Allegheny agreed to all these requirements and accepted their inclusion in the PSC’s final order. If the power company had not agreed, it would not have gotten a certificate of necessity. If it didn’t have a CoN, it could not use the legal force of the state government to seize private land for its own use through eminent domain. No CoN, no eminent domain.
By agreeing to these requirements on clearing, Allegheny was also agreeing that these environmental restrictions were “reasonable” under the WV statute.
Again, we have to wonder why Allegheny didn’t want private land owners to find out all of the clearing requirements they had agreed to in the PSC order. Why didn’t those restrictions appear on the FAQ page for land owners on the TrAIL Web site?
Of course, my previous post reveals the biggest question of all. Why did Allegheny tell the WV PSC that it had clearing standards that met the PSC’s requirements and then violate every single standard when they actually cleared the rights of way?
Did they think no one would notice?
This is a defining moment for the WV PSC. The Commissioners have a duty to follow Chapter 24-2-11a and insure that the companies that are given certificates of need meet the requirements of their orders. The “reasonable environmental factors” part of the statute is relatively new. Allegheny has now forced the Commission’s hand by so flagrantly violating commitments they made to the Commission in exchange for receiving a license to force land owners to give up their land for TrAIL.
This TrAIL Complaint case will define the meaning of the “reasonable environmental factors” phrase in the statute for decades to come.