ALBANY – New York Regional Interconnect Inc. announced Monday that it has petitioned the state’s top power line authority to make a judgment on the constitutionality of a law that squashes the company’s ability to condemn and take private property, according to a NYRI press release.
NYRI also wants the state Public Service Commission (PSC) to interpret whether or not the law – an amendment to what’s known as the “Transportation Corporation Laws,” which govern utilities – negates the commission’s right to review it.
“NYRI believes in New York State’s regulatory process and only asks that its project be judged by the PSC on its merits,” said NYRI Attorney Len Singer Monday in a prepared statement. “However, we are seeking to determine if the 2006 (Transportation Corporation) law has effectively taken away the PSC’s authority to site this transmission line.”
NYRI is questioning if the PSC can legally and fundamentally approve a power line that can’t be built, or will have difficulty being built, because it doesn’t have access to eminent domain to secure required land rights.
A PSC spokeswoman could not comment Tuesday specifically on the commission’s response to the petition.
“We confirm that we have received it,” said Anne Dalton. “And in due course, we will review the petition.”
A former PSC spokesman, however, said in October 2006 that NYRI’s loss of eminent domain would not impact the PSC’s review of the power line and that it was a hurdle NYRI, if approved, would have to overcome on its own.
“That’s in NYRI’s hands,” said former PSC representative Gary Davidson, in a story published Oct. 23, 2006 in The Evening Sun. “They will have to address that issue.”
Dalton said she could not comment on Davidson’s previous statements.
Without the use of eminent domain, NYRI will have to negotiate all necessary land purchases with individual owners before it can build its line.
Landowners and citizens along the route 190-mile route have come out in opposition to NYRI’s project, saying it will destroy scenic views, hurt the local economy and create public health concerns. According to project plans, 44 miles of the line would run through Chenango County.
NYRI has promised funding totaling $30 million to be spread among the communities that host the line.
Signed into law October 2006 by then Governor George Pataki, the amendment in question was created by a host of anti-NYRI legislators, including senators Tom Libous (R-Binghamton) and Jim Seward (R-Oneonta), and was aimed at specifically taking away the company’s use of eminent domain to secure land required for its proposed route.
NYRI challenged the constitutionality of law in federal court in October, but the lawsuit was thrown out because the defendants – state lawmakers – are immune to prosecution regarding legislation they create.
Now, since the federal judge did not rule against NYRI’s claim that the law is unconstitutional, the Canadian-backed power line developer says that the PSC and other governmental bodies are open to decide if the law is legitimate.
A copy of the petition was not available Tuesday morning.
The PSC has yet to receive a complete permit application from NYRI, who is seeking to build a 190-mile-long transmission line from Utica to Orange County. NYRI’s first application, known as an Article VII, was turned down in July 2006 because it lacked required information in 10 different areas, including proof its line would increase energy reliability.
If the state, because it’s located within a “National Interest Electric Transmission Corridor,” shows it cannot fairly review or approve proposed transmissions projects, the federal government can take over power line authority. However, the federal government, guided by the 2005 Energy Policy Act, can also step in if a project is denied based on its merits.
The eminent domain amendment specifically targets companies that have been denied the request for the early designation of a national interest corridor; that have admitted the project would raise utility rates in other parts of the states; and that have developed a project that is intrastate in scope, such as NYRI’s.
“The petition by NYRI today asks the PSC to clarify whether the Commission continues to hold siting authority for NYRI’s project and to determine whether the granting of a certificate by the PSC would allow NYRI to use eminent domain in those few instances where such use may be necessary,” states the NYRI press release. “NYRI’s petition makes the case that the PSC should rule either that the 2006 TCL Law does not apply to NYRI and its project, or the law is in violation of multiple clauses of the United States Constitution.”