It's not unusual for Congress to run roughshod over states and localities in passing major legislation. But when a single provision in a bill hits states and localities hard twice, that's worth some attention.
So it is with a provision in the Energy Policy Act of 2005, a sweeping law written to address concerns about the country's insatiable appetite for energy. The law contained a section that has hit home to many state and local government interests only in the past year or so, but clearly has the potential to do two damaging things: It could create a dangerous precedent for federal preemption of state and local land use regulatory power, and it could work against state and local efforts to develop smarter, more conservation-minded and carbon-cutting approaches to energy use.
The provision extends to the U.S. Energy Department the authority to designate "national interest electric transmission corridors" -- long, thick swaths that cut across jurisdictional boundaries, through cities, towns and counties, past one state border and into the next, representing the path of above-ground transmission lines that the department deems critical to continuous power flow.
The argument for giving the feds this authority was the traditional one used by regulated industries: that dealing with multiple state or local agencies could make it hard to act on pressing energy needs in a timely way.
When the provision passed, most observers assumed that states would have considerable say in the routing of the corridors. Now, however, the Energy Department asserts that it can draw the lines without any state or local input at all, and then bypass state or federal environmental review.
Besides the physical intrusion, critics of the provision argue that designating such massive rights of way will serve to skew the energy market toward aging Midwestern coal-fired facilities by, in essence, greasing approval of the infrastructure that supports them.
That's a dubious proposition at a time when many states and localities are vowing to curtail energy consumption and support the development of alternative sources. "We call the transmission lines 'coal by wire,'" says Liese Dart, of the Piedmont Environmental Council, which has filed suit in federal court challenging both the Energy Department's assertion of preemption powers and the claim to immunity from other federal environmental laws.
There were concerns expressed by state and local government groups while the bill was being marked up in 2005. But the opponents couldn't muster the clout to overcome utilities' support for the provision.
Now, however, that abstraction has become a hard reality, and state and local officials are up in arms over what they see as fairly brutal efforts to shove controversial power-line projects down their throats in the name of delivering dirty power.
The trigger for the escalating fight was the Department of Energy's designation last year of two corridors -- one in the Southwest and one spanning the Mid-Atlantic region. Of the two, the Mid-Atlantic corridor has galvanized the most significant opposition, largely because of its scope. It is a serpentine monster covering 116,000 square miles from Ohio to Virginia.
In response to the designation, Virginia Governor Tim Kaine stated his hope that the federal government would "honor the historic and traditional right of the state to make these decisions." But hope and tradition are unlikely to be enough. In order to force the feds to honor historic rights, 15 state attorneys general have filed amicus briefs in support of the Piedmont Environmental Council's legal challenge.
While there is now growing sentiment in Congress to revisit the corridor provision -- especially among delegations from the affected states -- the Piedmont lawsuit will be a case worth tracking. That's true not only because of the pre-emption precedent but also because the new corridors could send a strong message regarding the direction of U.S. energy policy and the role that states and localities will have in shaping it in the coming years.