U.S. Sens. John Boozman and Tom Cotton, both Arkansas Republicans, introduced federal legislation Thursday to "restore the right of states" to approve or disapprove of electric transmission projects before the federal government exercises its power to take private property.

U.S. Sens. John Boozman and Tom Cotton, both Arkansas Republicans, introduced federal legislation Thursday to "restore the right of states" to approve or disapprove of electric transmission projects before the federal government exercises its power to take private property.

The Assuring Private Property Rights Over Vast Access to Lands (APPROVAL) Act would require that the U.S. Department of Energy receive the approval of both the governor and the public service commission of an affected state before exercising the federal power of eminent domain to acquire property for Section 1222 transmission projects, according to a news release from the senators’ offices.

"When a road, pipeline or power line is built the use of eminent domain is sadly unavoidable in some cases," Boozman said in the news release. "However, this difficult decision should not be in the hands of Washington bureaucrats. If a project is not good for Arkansas, our governor or public service commission should have the power to say ‘no.’"

The proposed legislation, which has been referred to the Senate Energy and Natural Resources Committee for further review, is a reaction largely prompted by the proposed Plains & Eastern Clean Line project, a 700-plus-mile high-voltage, direct-current transmission line from the wind farms of west Oklahoma to the Tennessee Valley Authority in Memphis.

The Arkansas Public Service Commission denied Clean Line Energy public utility status in 2011.

Houston-based Clean Line Energy has worked for the past five years on a proposal. The project includes a 500-megawatt substation in central Arkansas. Many public meetings have been held for input from landowners.

Michael Skelly, president of Clean Line Energy, said Thursday he recognized the comments the senators have made and the company is working through the federal process as currently stated.

"If the process changes we will work through those processes," Skelly said. "We believe in the merits of the project, to bring manufacturing jobs to Arkansas, and low-cost energy to the state. We’re following all of the steps required and ultimately the decision makers will decide."

Skelly commented on the "very extensive" federal draft environmental impact study the company completed over several years. The study from the DOE was released in December and has been on view for public comment online and several public meetings.

The DOE will hold a public meeting at the Fort Smith Convention Center, Exhibit Hall A, 5-8 p.m. Wednesday Feb. 18 as part of an independent review of the proposed Plains & Eastern Clean Line.

According to the senators’ news release, a 2011 report from the non-partisan Congressional Research Service notes, "The location and permitting of facilities used to transmit electricity to residential and commercial customers have been the province of the states (with limited exceptions) for virtually the entire history of the electricity industry."

The report adds that state and local governments are "well positioned" to understand the concerns of the area and the factors for making a decision on these projects.

"Ultimately, the Plains & Eastern Clean Line transmission project will bring hundreds of jobs and over a half billion-dollar investment to the state of Arkansas. Clean Line will pay counties hosting the line over five million dollars annually in ad valorem revenues that will benefit local community services," a Clean Line Energy news release states.

National Forests, Tribal Lands

For projects on tribal lands, the Arkansas senators want the DOE to also receive the approval of the impacted tribal government. The Cherokee Nation voted against the Plains & Eastern Clean Line project in mid-January.

The Boozman-Cotton legislation also would ensure, to the extent possible, that approved projects are placed on federal land rather than on private land. Federal lands would include that managed by the Bureau of Land Management, the U.S. Forest Service, the Bureau of Reclamation and the Army Corps of Engineers.

Mario Hurtado, co-founder and executive vice president of development for Clean Line Energy, said the DOE’s draft environmental impact study showed that going through the Ozark National Forest in Arkansas would not be feasible because of the amount of timber to be cut down, grade of slope, and lack of access roads. The amount of adjoining private land was also estimated to be nearly half what would be needed going through the forest, as well.

"The impact would be far greater if it was put in the national forest," Hurtado said.

Hurtado also said Thursday that the company takes property rights of landowners "very seriously" and they are "continually addressing landowners one-on-one to get feedback."

"The routes are in draft form for a reason," Hurtado said. "We want to have the most minimal impact. The input of landowners is absolutely critical and the more information and feedback we get the better we can do that."

Eminent Domain

Hurtado and Skelly have said that eminent domain is a "last resort" option only. The company states in its 2010 proposal that it meets the test for federal eminent domain through Section 1222 of the 2005 Energy Policy Act if it partners with the Southwestern Power Administration. Clean Line has not officially partnered with Southwestern Power Administration, Hurtado said recently.

"Arkansans should have a say in any decision that affects our land," Cotton said in the release. "The APPROVAL Act will rightly empower Arkansans and preserve the Founding Fathers vision of states’ rights."

Arkansas’ Fourth District U.S. Rep. Bruce Westerman said in an emailed statement that he has heard from a number of Arkansans regarding the Clean Line Energy project and he has reservations about the Clean Line project.

"As a property owner, I know the hard work and resources required to not only own land, but to work it," Westerman said. "I understand the concerns that the Clean Line Energy could infringe on property rights, which could lead to complicated eminent domain and other private land ownership issues."

The proposed route of the line would "dissect" Mulberry in eastern Crawford County, according to Mulberry Mary Gary D. Baxter. The mayor said in an emailed statement he was "very grateful" to Boozman and Cotton for introducing the bill.

Public Reaction

Joel Dyer, a landowner in eastern Crawford County, said the APPROVAL Act was a "much needed response to the intended abuse of federal eminent domain for the proposed Plains and Eastern transmission line."

"This proposed transmission line is completely unnecessary," Dyer wrote in an email.

Alison Millsaps of Dover stated at the Block Plains & Eastern Clean Line Group in Pope, Johnson, Newton and Conway Counties Facebook page that she and others were not opposed to sustainable energy, but felt they had been "left out of a process" and "the Public Service Commission had been circumvented."

Cynthia Callahan also explained at the group’s Facebook page that the Energy Policy Act of 2005 was a law that "repealed the Public Utilities Holding Company Act of 1935 enacted under President Franklin D. Roosevelt to protect citizens from the same type of schemes Clean Line has proposed."

Interested citizens may provide comments through March 19 to DOE, either online at PlainsandEasternEIS.com; by mail at Plains & Eastern EIS, 216 16th Street, Suite 1500, Denver, CO 80202; by email addressed to comments@PlainsandEasternEIS.com; or by fax to (303) 295–2818. A copy of the EIS is available at PlainsandEasternEIS.com

The APPROVAL Act has been referred to the Senate Energy and Natural Resources Committee for further review.