The Trojan Horse of Electric Power Transmission Line Siting Authority

Article excerpt

  I. INTRODUCTION
 II. THE PROBLEM WITH THE STATUS QUO OF STATE TRANSMISSION SITING LAWS
     A. Need Determinations
     B. Environmental Concerns
     C. Market and Environmental Trends Challenging the Status Quo of
        State Transmission Siting Laws
        1. Developments in Wholesale Power Markets
        2. Heightened Attention to Climate Change
III. THE MOVEMENT TO EXPAND FEDERAL AUTHORITY OVER
     TRANSMISSION LINE SITING
     A. Existing Federal Law
     B. Proposed Reforms
 IV. THE TROJAN HORSE OF TRANSMISSION LINE SITING AUTHORITY
     A. Weakening Political Accountability
     B. Undermining Climate Change Goals
        1. Overreliance on Transmission
        2. The Need for Carbon Neutral Transmission Pricing
  V. CONCLUSION

I. INTRODUCTION

Heightened attention to climate change has highlighted the need for substantial growth in new, non-fossil fuel sources of electric power generation. It is well recognized that a growth in renewable resources of electricity, such as wind turbines, biomass, and large-scale solar, will be a major component of any solution to the greenhouse gas problem. (1) One barrier, however, is the relative isolation of many of the nation's renewable energy resource riches; many opportunities for large-scale development of renewable energy resources are located in areas that are geographically remote and distant from large metropolitan areas in which the demand for electricity is greatest. (2) Existing transmission infrastructure is not adequate to accommodate new renewable resources in many parts of the United States, and existing efforts to expand transmission are also not sufficient. (3)

For these reasons, the Obama Administration and leaders in Congress have given new attention to expanding transmission infrastructure for purposes of serving a new phase of development of renewable power sources. (4) A common metaphor used to describe such proposals is to invoke the comparison to a superhighway road transportation system, such as the interstate highway system that was financed and built by the federal government in the twentieth century. (5) With the interstate highway system, at the outset federal regulators had a clear sense of where highways would be located and could exercise the power of eminent domain where necessary to acquire the property rights to build them. (6) In a similar manner, most attention in the debates over building transmission lines has focused on the issue of the legal authority for siting transmissions. (7) The determination of siting--or the location of a line and its approval, including eminent domain authority--remains largely within the hands of state regulators. (8) Major bills pending in Congress would increase federal and regional power to preempt states in siting transmission lines. (9) To date, the largest debate surrounding these proposals is between federal authorities, who see a need for expanding federal power to preempt states, and state and local officials, who wish to preserve their historical role in siting transmission lines. (10)

In this Article, I recognize the inadequacy of existing state law, but take a skeptical approach to expanding federal siting jurisdiction as a solution to the problem and argue that the over-attention to transmission line siting authority is a bit of a Trojan horse in the climate change debate. Specifically, because existing state laws ignore the more difficult issues of how the costs and benefits of transmission are balanced in the interstate market, and how new transmission will be paid for, siting jurisdiction alone will not remove barriers to transmission infrastructure and may present some hidden problems of its own. The Article proceeds in three parts. Part II discusses how state siting statutes can serve as a barrier to siting new transmission lines for wholesale power markets and renewable sources, and discusses the need for some legal solution to this problem. …