Legalectric

This says it all!

CONGRATULATIONS TO BLOCK PLAINS & EASTERN!!!

DOE Drops Its Deal With Clean Line; Wind Project Won’t Cross Arkansas

From Alison Milsaps and Dave Ulery, Block Plains and Eastern Clean Line:

To recap the events of recent weeks: Plains & Eastern, Clean Line’s regulatory crown jewel and the only of its projects to be fully (if questionably) permitted, is DEAD in Arkansas. Hallelujah. Don’t take our word for it, though. Let’s look at a little evidence:

Hubris: Clean Line’s Michael Skelly and the End of the Plains and Eastern Project…

You know, I love it when this happens.

• First, “Clean Line” sells the Oklahoma part of the Plains & Eastern Clean Line transmission project to NextEra:

Under the agreement, Clean Line Energy retains project assets east of Oklahoma, and NextEra Energy Resources owns only the project assets in Oklahoma.

Clean Line Energy added that the transaction will continue the project’s forward momentum and install a new sponsor to a transmission solution to the burgeoning wind sector in Oklahoma and the Southwest Power Pool.

A Clean Line Energy spokesperson on Dec. 22 told TransmissionHub of the deal, “We cannot disclose financial information.”

• TVA backs out of Memorandum of Understanding:

Clean Line Energy Partners, a Houston-based developer of five major transmission lines for wind-generated electricity, has dropped its interconnection agreement with TVA for one of its most promising projects after the federal utility declined to buy what Clean Line officials said would be cheaper and cleaner power for TVA…

… But after years of study, TVA said the Clean Line project didn’t make economic sense for the nation’s biggest government-owned utility, since TVA already has enough power-generating capacity and is on path to get more than half of its power from carbon-free sources. TVA President Bill Johnson said the intermittent nature of wind power would require TVA to build other backup power generators, including natural gas plants, that would offset the promised savings from the wind-generated power sources alone.

“We’re looking at a power demand in the future that is flat, or declining slightly, so we don’t anticipate needing major additions to power generation for a decade or more,” Johnson said.

• Clean Line withdraws the project from the MISO interconnection queue;

“We all are wondering at this point” what is going on, said Julie Morton, of Van Buren. “We are disconnected on the western end now. The TVA was going to take 3,500 of the 4,000 megawatts it was going to generate, but now it is disconnected on that end.

“We are stuck in the middle, unplugged at both ends, and the only way out for us is if Clean Line completely implodes, which I think is happening, and the Department of Energy withdraws from the project.”

and now…

• Arkansas delegation says “STOP THIS LINE!“

Using powers contained in the Energy Policy Act of 2005, the department moved the project forward over the objections of Arkansas leaders.

Among other things, the law would enable the use of eminent domain to obtain property from unwilling sellers.

But the participation agreement allows the department to back out of the deal if “the Commencement Date has not occurred by December 31, 2018.”

In the letter, delegation members urged Perry to “pause the Project to either study or terminate its participation before the deadline.”

Since it was unveiled, the power line project has generated controversy.

Arkansas lawmakers ask DOE to block Clean Line transmission project

Don’t know what more we could possibly need to show that this project is O. V. E. R.  I do wonder if the appellate case was dismissed so there would be no precedent, and then, immediately after it was dismissed, all this happens.  Then, if they or someone else wants to try a Section 1222 project, the door remains open????

THE GOOD NEWS:

Here’s the NPR report, as above, the Motion was denied today, without prejudice:

Clean Line Wants Landowners’ Hearing Expedited, Says Delays Imperil $2 Billion Project

Here are the filings leading up to this, from the Eastern Arkansas Federal Court site:

DownwindLLC&GoldenBridgeLLC-v-CleanLine

FirstAmendedComplaint_20-main

FirstAmendedComplaint-Exhibits_20-1

02713946136_DefendantFeds-AnswerAmendedComplaint

02713945742_P&ECL-AnswerAmendedComplaint

02713958575_Order_Schedule 02713961448_

CLEP-Motion_2ndHrgDate

And as above, the simple text denial of that Motion:

YES!!!  On to federal court!!!  I love it when this happens!  Downwind and Golden Bridge have sued the Department of Energy (DOE) and Southwestern Power Administration (SWPA)!  Here’s a copy of the Complaint, give it a read:

Downwind, LLC & GoldenBridge LLC-v-DOE & SWPA – Case 3:16-cv-00207

Here’s the bottom line, what they’re asking for:

It’s focused on the DOE and Clean Line’s most vulnerable issues, those of improper potential use of eminent domain for private purpose and private company, and, as David Ulery says:

“Landowners were never offered an appropriate avenue for due process during the DOE’s review of Clean Line’s application,” he said. “An opportunity to comment is not the same as an opportunity to directly participate in the matter in an official capacity. Review is meaningless if those most affected are not given ample and significant opportunity to engage on a meaningful and substantive level.”

Clean Line and the DOE were asked, demanded, expected, to provide due process, and nope, nada, not the most basic opportunities to participate.  Seems they’ve never heard of due process — how dare they!  From June, 2015, here are multiple filings demanding due process:

BLOCK Plains & Eastern Clean Line docket filings

Here’s the first of articles to appear about the federal suit:

Opponents sue to block Clean Line project

By John LyonArkansas News Bureaujlyon@arkansasnews.com

LITTLE ROCK — Opponents of a planned transmission line across Arkansas and parts of Oklahoma and Tennessee said Friday they have filed a federal lawsuit objecting to the U.S. Department of Energy’s participation in the project.

Golden Bridge and Downwind, two organizations representing landowners who oppose the Plains & Eastern Clean Line project, said they filed the suit in U.S. District Court in Little Rock. The suit was not available on the court’s website Monday evening, and the groups did not immediately provide a copy to the Arkansas News Bureau.

According to a news release, the suit challenges the legality of the Department of Energy’s decision to participate in the project under Section 1222 of the Energy Policy Act, which allows the agency to partner with private companies on some energy infrastructure projects.

“While understanding the importance of infrastructure in the production, transmission and distribution of electrical energy, the landowner-managed organization is concerned with the federal government’s legal authority, and the scope and manner of its proposed participation in transmission projects pursuant to Section 1222,” Downwind said in the release.

“There are lingering doubts about the substance and merits of the department’s determination in this project, with particular concern relating to the potential use of federal eminent domain to condemn private property for the benefit of a private, for-profit company,” the organization said.

The suit also alleges that landowners should have had more ability to participate in the department’s review of the application for the project by Clean Line Energy Partners of Houston, according to Dave Ulery of Golden Bridge.

“Landowners were never offered an appropriate avenue for due process during the DOE’s review of Clean Line’s application,” he said. “An opportunity to comment is not the same as an opportunity to directly participate in the matter in an official capacity. Review is meaningless if those most affected are not given ample and significant opportunity to engage on a meaningful and substantive level.”

Clean Line Energy Partners Executive Vice President Mario Hurtado said Monday he had not seen the suit and could not comment on it specifically.

Hurtado said in a statement, “It’s no secret that the United States suffers from an infrastructure deficit and that we must push through gridlock to move the country forward. Unfortunately, it is not uncommon to see legal complaints filed against the most important infrastructure projects. In order to modernize the grid, enable the delivery of low-cost energy, create new jobs and enhance our energy security, the private and public sectors must come together to bring new infrastructure projects to fruition.”

The $2 billion transmission line is expected to transmit 4,000 megawatts of wind energy from the Oklahoma panhandle to distribution centers in Arkansas and Tennessee, with Arkansas receiving 500 megawatts of that energy. Arkansas’ congressional delegation opposes the project, and Rep. Steve Womack, R-Rogers, has filed a bill to kill it.

Womack’s bill cleared the House Natural Resources Committee in June.

Here’s their press release:

Clean_Line_Energy_ROD_National_Press_Release

And here is the full “Record of Decision” of DOE:

• Clean Line ROD FINAL 3-25-16
• Secretarial Determination re CL Project 3-25-16
• Summary of Findings Plains Eastern Clean Line Project 3-25-2016 FINAL
• Clean Line – Participation Agreement – EXECUTED VERSION (dated March 25…

There’s a lot to read here, and I’m just starting.  The primary question I have is what exactly it means that the DOE will “participate” and what that decision confers on the project proponents.  Much of that is in the “Participation Agreement” of which there were drafts, this is the “Executed Version” that has conditions that CLEP must meet.  Section 1222 is a financing provision, and having worked on a couple of projects that are USDA RUS funded, how do they get from financial wheeler-dealering to the idea that DOE participation could circumvent state jurisdiction and powers?

The entire Arkansas delegation has come out strongly against it, slamming the DOE decision.  Now how about they introduce a bill to repeal Section 1222?  That ought to take care of it!