When I wrote the previous post this morning, I had not read yesterday’s article in the New York Times by Peter Behr. The article, titled Industry Hears Details of New FERC Energy Strategy, is a pretty good summary of what I have been writing about on The Power Line for the last few weeks. Mr. Behr also gives a pretty fair presentation of the arguments against FERC Chairman Wellinghoff’s agenda. And a big thank you to the New York Times editors for not assigning this important story to Matthew Wald.
There is one character in this little drama who stands out – former Cheney-appointed FERC Chairman Joseph Kelliher. Mr. Kelliher, true to the revolving door practices that seem to govern federal regulation in the US at this time, is now the chief lobbyist for a company called NextEra, the largest developer of land based wind farms. Mr. Kelliher was “put in place” by the electrical industry to head FERC when they thought they could ram dozens of long distance, high voltage transmission lines through state siting processes using their new 2005 Energy Policy Act clubs.
Opposition from power companies, state governments, citizens and federal judges refined the Energy Policy Act process and a number of new transmission projects were built. Mr. Kelliher and his successor at FERC, Mr. Wellinghoff, apparently don’t believe that the democratic processes that define the United States of America are doing enough to help their friends in the electrical industry build new power lines.
Mr. Kelliher, as the NYT article describes, initiated the current FERC push from outside the agency as an industry lobbyist, and Mr. Wellinghoff has joined in this industry initiative. Neither of them has articulated a clear argument as to why we need to dispense with a democratic process that is clearly working.
Mr. Behr notes some of the illogical and contradictory arguments that Kelliher and Wellinghoff have presented. He points to the East Virginia Piedmont Environmental Council’s case this way:
[In] Piedmont Environmental Council v. FERC, the 4th Circuit struck down FERC’s position that the 2005 act allowed it to intervene if state authorities had not approved a project after one year. The court said FERC’s authority only covered situations where state regulators took no action at all. If a state rejected a project, FERC could not use its standby authority, the court said.
The Piedmont decision in 2009 may have helped slow down state reviews of new power lines by seemingly removing the pressure of FERC’s backstop authority, according to a draft analysis of the strategy by NextEra.
The FERC staff comments adopt NextEra’s view that the 4th Circuit’s decision is not the law of the land. “[I]t can be correctly noted that the effect of the Piedmont case is limited to the Fourth Circuit, and that other courts might reach a different result,” the FERC draft said. By taking that course, FERC may prompt new lawsuits in other circuits that might go FERC’s way and lead a favorable resolution in the U.S. Supreme Court, some industry participants said.
So Kelliher and Wellinghoff both insist, rightly, that the PEC 4th Circuit decision is only confined to projects in the 4th Circuit, and doesn’t affect any other transmission projects in the US. If this decision is challenged at some point (in 2010, the US Supreme Court refused to hear an appeal of the decision), then the 4th Circuit decision could be overturned.
Again, where is the problem? If the 4th Circuit decision only applies to a few states in the Mid-Atlantic region, then it is not affecting any other transmission projects. So there is no problem on a national level that needs to be resolved here.
Why short-circuit a democratic process that has stood our country in good stead for more than 200 years? Unless you want to serve as the transmission line industry’s ramrod to build unneeded power lines before they can be accurately evaluated.