It seems that a new corporate front group, the Council of State Governments (an innocuous name that implies that state governments actually control it), is pushing a new transmission industry agenda in state legislatures. Keryn has the complete analysis of this new tactic over at StopPATH WV. Go over to the link and then come back here for my comments below.
As Keryn points out, the transmission industry has had some difficulty using the tools that the Cheney administration gave them in the 2005 Energy Policy Act (also sometimes referred to as the 2005 EPAct or the 2005 Federal Power Act).
- The cost recovery mechanism designed to make the cost of new transmission costs disappear into everyone’s electric bills has been challenged in the US 7th Circuit Court of Appeals, and that case is still pending.
- The US 4th Circuit Court of Appeals also struck down a significant portion of the 2005 EPAct’s draconian provisions to overrule state control of transmission lines.
- The US 9th Circuit Court of Appeals eliminated the process by which the Cheney administration established federal control over states, namely the designation of national impact electric transmission corridors.
- And, of course, the thousands of citizens who have stood up to power companies and merchant transmission hustlers to exert their rights as citizens in both state and federal jurisdictions.
The CSG attack on state sovereignty is designed to sidestep all these obstacles and strip citizens of their due process rights guaranteed by both federal and state constitutions. CSG and transmission developers will use their multi-state compact mechanism to get state legislatures to hand over approval of new transmission projects to completely unaccountable shadow entities that are beyond the reach of guaranteed to citizens of our country.
Here is the current situation in WV. Only the state government has the right to seize private land for public use. There are a few exceptions created by acts of the WV Legislature. One of those exceptions is for new high voltage transmission lines that have been awarded certificates of convenience and necessity in an open case process at the WV Public Service Commission. The US 4th Circuit decision linked to above guarantees that if a state PSC fails to approve a high voltage transmission project, then the project is dead, and there is no way that the federal government can interfere with this decision. The US Supreme Court refused to hear an appeal of this decision, so in WV, which is governed by 4th Circuit decisions, this is the law. Period.
Although the WV Legislature gave high voltage transmission developers the right to seize property under the state eminent domain statutes, property owners and rate payers have extensive rights to intervene in the PSC cases that would grant that right. WV law states that anyone who has a legal interest in a PSC case may intervene in that case, with full rights to introduce evidence, conduct discovery on evidence presented by the power company, cross examine witnesses and fully participate in the case. WV law also allows any individual citizen to intervene in a PSC case without an attorney, as long as the citizen representing his/her self accepts all the responsibilities that come with being a full party to the case.
So while WV does allow the PSC to grant condemnation rights to private companies, there are a number of ways that property owners and rate payers can fully participate in that process. These rights to due process are guaranteed by both the WV constitution and the Constitution of the US.
If the CSG front group can talk (or deceive or bribe) state legislators into passing its multi-state compact law, all of the rights I have just described disappear. In one act, the Legislature would be betraying its solemn duty to protect the rights of citizens to redress and due process. This is serious business.
If you didn’t go to the link above to Keryn’s post, you can do it here.
We have to watch the bills that are being introduced in the WV Legislature this year, and every year, to protect ourselves and our fellow West Virginians from this kind of industry depredation.
Remember when we stopped Gov. Manchin’s attempt to ramrod the PATH line by sneaking in his power line tax bill? Any new “multi-state compact” bill is that kind of threat.
I’ll leave you with one word: Vigilance.