United States District Court, E.D. Arkansas, Jonesboro Division
Marshall Jr. United States District Judge
years ago, Congress passed and the President signed the
Energy Policy Act of 2005. Public Law 109-58. If you've
gotten a rebate for replacing your hot water heater with a
more efficient one, or gotten a tax credit for buying a
hybrid vehicle, it was thanks to this law. 42 U.S.C. §
15821; 26 U.S.C. § 30B. The statute also addressed
electricity and, in particular, modernizing our nation's
infrastructure for transmitting electricity - the grid. One
provision authorized the United States to use someone
else's money to upgrade or expand the grid. 119 Stat.
952, codified at 42 U.S.C. § 16421.[*]A proposed new transmission
line prompts this case. It pits some affected landowners
against a group of investors and the United States.
Clean Line entities propose to build a high-voltage
direct-current transmission line to bring wind power east
from the Oklahoma and Texas panhandles. The line would be
approximately seven hundred miles long. Some of the
electricity would be available in Oklahoma and Arkansas. This
would happen through converter stations, which would change
the current from direct to alternating. Most of the
electricity, though, would flow through to a converter
station in Tennessee. The dotted line on this map,
DOE0063121, shows the proposal.
six years of study - including public notice and public
comment, but no adversary proceedings - the Department of
Energy decided to participate. Oklahoma and Tennessee,
through their respective regulatory bodies, have approved the
project. Arkansas has not. Early on, Clean Line sought
approval from the Arkansas Public Service Commission, which
denied the request without prejudice. DOE0024855A-0001 to
0012. At that point, the proposal didn't include an
Arkansas converter station, and all the power was just
passing through. The APSC concluded that, in those
circumstances, Clean Line wasn't a public utility under
Arkansas law. The project evolved. Now there's a
converter station planned in Pope County. Although Clean Line
will pay for building everything, the United States will own
all the facilities in Arkansas and get a small share of the
profits from the entire line's capacity. DOE0000183. The
plan is for Clean Line to enter into agreements with the
Southwest Power Pool, the Midcontinent Independent System
Operator, and the Tennessee Valley Authority to coordinate
the line's operation. Clean Line, though, will operate
and maintain all related facilities. In return for doing all
this, Clean Line will own most of the line's capacity and
reap what it hopes will be a profit on an approximately $2.5
groups of Arkansas landowners - Downwind and Golden
Bridge-filed this case to stop the project. (From now on,
when the Court writes Downwind it means both groups.) These
landowners make several claims. They say the United States
has overreached its statutory authority in two ways: the
Arkansas Public Service Commission hasn't approved the
project, and it must; plus the statute doesn't authorize
the United States to take property for the line by
condemnation if a landowner doesn't agree to sell an
easement. Next, the landowners say the Department acted
arbitrarily and capriciously in deciding to participate in
this project. Last, the landowners contend they were due more
process -a hearing with trial-like procedures, what would
have occurred before the APSC if a state-approved utility had
proposed the line. The practical thrust of the
landowners' case is that this project is mostly about
Clean Line making money and very little about the United
States improving the grid. The Court allowed Clean Line to
intervene and be heard. The parties agree that one side or
the other is entitled to judgment as a matter of law.
United States didn't act beyond its statutory power in
approving this project. In the circumstances presented,
Arkansas doesn't get to decide where the transmission
line is located. And the State doesn't have a veto over
whether this line gets built.
1222 authorizes the Department of Energy to build
transmission lines with private money. In doing so, it's
the Department's responsibility to identify grid needs,
develop responsive projects, and decide where to improve
existing lines and put new ones. 42 U.S.C. § 16421(a)
& (b). That's what happened here. The Department
identified a grid shortcoming and, through a deliberative
process, designed a new power line to address it. Clean
Line's dollars will pay for the line. DOE0000176-84;
DOE0000221-30. Nonetheless, as § 1222 contemplates, the
project is the United States' sovereign action. The
Energy Policy Act envisions and authorizes this way of
modernizing our electrical grid. Third-party financing is
what § 1222 is all about.
the United States acts pursuant to its constitutional powers,
a state may not block the action unless Congress has clearly
and unambiguously authorized plenary state regulation.
Hancock v. Train, 426 U.S. 167, 178-79 (1976). The
Supremacy Clause requires nothing less. M'CuZZocfrz;.
Mary/and, 17 U.S. 316, 426-27 (1819). These principles are
common ground among all the parties. Downwind contends,
though, that § 1222 requires the Department to get state
regulatory approval to build this new line. That requirement
would give Arkansas a de facto veto over whether
this transmission line gets built. But there is no waiver of
federal supremacy here. This statute doesn't make
unambiguously clear that the federal government, which is
usually exempt from state control, is subject to that control
when building electrical lines paid for by third parties.
argues that § 1222(d)'s "[relationship to other
laws" provision contains the needed waiver. The statute
says that "[n]othing in this section affects any
requirement of . . . any Federal or State law relating to the
siting of energy facilities[.]" Downwind underlines the
repeated "any/7 It shows, the landowners continue,
Congress7 intention to give state regulators the last word on
siting, the definitive say which states have long had for
most transmission lines. But that word isn't enough.
State control doesn't arise by implication.
Hancock, 426 U.S. at 180-81. And the Court of
Appeals has concluded, in strikingly similar circumstances,
that even specific language "requiring] compliance with
[s]tate standards" doesn't mean the Department must
"obtain a state siting certificate" for a
new line. Citizens & Landowners Against the Miles
City/New Underwood Powerline v. Secretary, United States
Department of Energy, 683 F.2d 1171, 1179 (8th Cir.
1982). Just as South Dakota regulators did not have the final
say over the route of the federal transmission line between
Miles City, Montana and New Underwood, South Dakota, Arkansas
regulators do not have that power over this line.
there's a better reading of § 1222(d). It preserves
the regulatory status quo. The Energy Policy Act doesn't
disturb current law; the Department can't preempt-and
energy actors can't ignore - the many existing state
regulations about transmission lines and facilities. Nowhere
in the status quo, however, is federal action about those
lines and facilities subject to state approval. Miles
City, 683 F.2d at 1181. Section 1222 doesn't change
that. In fact, the statute makes clear, by authorizing the
Department to build interstate transmission lines with the
help of non-federal funding, that the federal government can
take on a larger role in electrical transmission.
the Energy Policy Act authorizes the United States to acquire
needed easements by condemnation is a vexed question.
There's a tension in the government's arguments here.
On the one hand, to forestall a decision on the deep issue,
the government deploys just about every justiciability
doctrine known to our law- standing, exhaustion, ripeness.
The Department argues several points hard: the landowners
haven't really been injured yet; it's uncertain
whether any property will actually be condemned; and the
landowners can assert the United States7 lack of statutory
authority to condemn later in any condemnation action that
may occur. On the other hand, the government says the power
to condemn is essential to this project, necessarily implied
in § 1222's grant of authority to develop and own
transmission lines and facilities.
the tension between these arguments, the government's
embedded concern about an advisory opinion is solid. This
Court may not decide a dispute that isn't ripe. An
available alternative remedy usually signals a premature
claim. This is true in general, National Park Hospitality
Association v. Department of the Interior, 538 U.S. 803,
807-08 (2003), and for an Administrative Procedure Act claim
in particular. 5 U.S.C. § 704. Here, there is an
alternative remedy. Any landowner who doesn't convey an
easement will have the opportunity to contest any resulting
condemnation. United States v. Herring, 750 F.2d
669, 674 (8th Cir. 1984). The landowner will be free to argue
then against statutory authorization, public necessity, and
public use. Ibid. That opportunity makes any
decision about condemnation now advisory. The parties'
cases make this point from another direction. Every one of
these precedents is a condemnation action. E.g., Albert
Hanson Lumber Company v. United States, 261 U.S. 581
(1923); Barnidge v. United States, 101 F.2d 295 (8th
Cir. 1939); Poison Logging Company v. United States,
160 F.2d 712 (9th Cir. 1947); United States v. 14.02
Acres of Land More or Less in Fresno County, 547 F.3d
943 (9th Cir. 2008). The landowners will have their day in
court on these issues if and when the injury - having their
property taken-has actually occurred.
Downwind's reliance on the Supreme Court's recent
Hawkes decision nor its eloquent invocation of all
the uncertainties now facing the landowners changes the
analysis. The Department's decision to participate in the
Clean Line project lacks the jurisdictional immediacy of the
"your property is a wetland" determination in
United States Army Corps of Engineers v. Hawkes
Company, 136 S.Ct. 1807 (2016). That determination
affected a particular landowner's legal rights instantly;
it changed the applicable law. 136 S.Ct. at 1811-13. Here,
the Department's decision raises the prospect of eminent
domain later. This surely casts a shadow. As frustrating as
that shadow is, uncertainty isn't injury-in-fact.
Friends of the Earth, Inc. v. Laidlaw Environmental
Services (IOC), Inc., 528 U.S. 167, 180-81 (2000). The
law requires concrete injury, actual or imminent.
Ibid. While the landowners have a strong imminence
argument that condemnation of some parcels in the
several-hundred-mile path across Arkansas is a near
certainty, it's unclear at this point exactly which
parcel or parcels might be taken. As far as the Court can
see, for example, no Downwind or Golden Bridge member has
filed an "I'll never sell" affidavit. No.
63-1; No. 73-1; No. 73-2. And it is clear, on the other
hand, that any landowner who wants to challenge the United
States' statutory authority to condemn property for this
particular transmission line can do so later.
Department of Energy acted reasonably and carefully, not
arbitrarily and capriciously, in deciding to participate in
this project. The law asks "if the agency has relied on
factors which Congress has not intended it to consider,
entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs
counter to the evidence before the agency, or is so
implausible that it could not be ascribed to a difference in
view or the product of agency expertise." Motor
Vehicle Manufacturers Association of the United States, Inc.
v. State Farm Mutual Automobile Insurance Company, 463
U.S. 29, 43 (1983); see also Lion Oil Company v.
Environmental Protection Agency, 792 F.3d 978, 982 (8th
Cir. 2015). The Department didn't fall foul along any of
prescribed five criteria for evaluating § 1222 projects.
• Necessity - the project must be needed to accommodate
actual or projected demand for electric transmission
• Consistency - the project must be consistent with
transmission needs identified by an appropriate entity, as
well as with ...