NYRI lawsuit dismissal could force power line to seek approval in Washington
CHENANGO COUNTY – Unless overturned, the dismissal Friday of a lawsuit filed by NYRI challenging what it claims is an unfair state law could ultimately force the company to take its proposal to the federal government if it wants the $1.6 billion power line to get built in New York.
As of last month, the Federal Energy Regulatory Commission (FERC) can now take over a power line review in New York if the state denies a project like the New York Regional Interconnection.
But FERC can also override state authority if the project is approved in Albany, but done in a way that makes its construction “not economically feasible.”
The state review has not occurred.
However, as it stands, NYRI, if granted a permit, would not have the power to take private property using eminent domain; creating a situation that company officials have said would make it economically impossible for the Canadian-backed developer to construct the line under state law, but not, possibly, under federal.
NYRI’s previously legal right to eminent domain was taken away from the company in October 2006 when Gov. George Pataki signed into a law an amendment created by anti-NYRI politicians. The amendment’s sponsors say the move was specifically aimed at derailing the power line, and not other transmission companies.
A lawsuit filed by NYRI in federal court in February challenging the eminent domain revision was dismissed Friday on what appears to be technical grounds that prevent lawmakers from being sued pertaining to state legislation.
It is not known if NYRI will appeal the court’s decision. Company representatives did not return messages seeking comment.
When asked if upholding the state’s denial of NYRI’s eminent domain authority was grounds for a FERC review, a department spokeswoman said each application would be looked at on a “case by case basis.”
“We are very specific in our citing rules,” said spokeswoman Barbara Connors in a phone interview Monday.
According to those rules, power line companies cannot seek a federal review unless:
• A decision on its project has been withheld for a year.
• It has been denied at the state, within or not within a year of officially starting a state process.
• The project has been approved, but done in a way that makes its construction impossible or unfeasible.
Approved or denied in New York, NYRI’s case looks like it will be settled in Washington, one anti-NYRI legal representative says, where the company can obtain federal eminent domain rights.
“It’s in some ways a confirmation for those who’ve expected the game would get played out on the federal field,” said John Kluscik, the attorney representing Communities Against Regional Interconnect, an eight county alliance of power line opponents made up of local leaders and citizens.
NYRI’s has not filed a complete permit application or undergone a review with the New York state Public Service Commission, and the required one-year clock has not started, based on FERC and PSC guidelines.
“They have to go through the entire state process,” said Connors. “That year would have had to have elapsed before they can come to us.”
Guided by the 2005 Energy Policy Act, FERC was granted jurisdiction in 10 states, including New York, that were designated in two “National Interest Electric Transmission Corridors.” The corridor policy is meant to fast-track lagging power line and energy upgrades in what federal energy experts claim are the most “critical” problem areas in the U.S.
As of last month, the Federal Energy Regulatory Commission (FERC) can now take over a power line review in New York if the state denies a project like the New York Regional Interconnection.
But FERC can also override state authority if the project is approved in Albany, but done in a way that makes its construction “not economically feasible.”
The state review has not occurred.
However, as it stands, NYRI, if granted a permit, would not have the power to take private property using eminent domain; creating a situation that company officials have said would make it economically impossible for the Canadian-backed developer to construct the line under state law, but not, possibly, under federal.
NYRI’s previously legal right to eminent domain was taken away from the company in October 2006 when Gov. George Pataki signed into a law an amendment created by anti-NYRI politicians. The amendment’s sponsors say the move was specifically aimed at derailing the power line, and not other transmission companies.
A lawsuit filed by NYRI in federal court in February challenging the eminent domain revision was dismissed Friday on what appears to be technical grounds that prevent lawmakers from being sued pertaining to state legislation.
It is not known if NYRI will appeal the court’s decision. Company representatives did not return messages seeking comment.
When asked if upholding the state’s denial of NYRI’s eminent domain authority was grounds for a FERC review, a department spokeswoman said each application would be looked at on a “case by case basis.”
“We are very specific in our citing rules,” said spokeswoman Barbara Connors in a phone interview Monday.
According to those rules, power line companies cannot seek a federal review unless:
• A decision on its project has been withheld for a year.
• It has been denied at the state, within or not within a year of officially starting a state process.
• The project has been approved, but done in a way that makes its construction impossible or unfeasible.
Approved or denied in New York, NYRI’s case looks like it will be settled in Washington, one anti-NYRI legal representative says, where the company can obtain federal eminent domain rights.
“It’s in some ways a confirmation for those who’ve expected the game would get played out on the federal field,” said John Kluscik, the attorney representing Communities Against Regional Interconnect, an eight county alliance of power line opponents made up of local leaders and citizens.
NYRI’s has not filed a complete permit application or undergone a review with the New York state Public Service Commission, and the required one-year clock has not started, based on FERC and PSC guidelines.
“They have to go through the entire state process,” said Connors. “That year would have had to have elapsed before they can come to us.”
Guided by the 2005 Energy Policy Act, FERC was granted jurisdiction in 10 states, including New York, that were designated in two “National Interest Electric Transmission Corridors.” The corridor policy is meant to fast-track lagging power line and energy upgrades in what federal energy experts claim are the most “critical” problem areas in the U.S.
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