ALBANY – New York Regional Interconnect claims it won’t need to force people from their homes and businesses in order to build its power line, according to a petition it filed Monday with the state’s highest utility authority.
But NYRI still needs the use of eminent domain to take land at fair market value, otherwise its project, if approved, wouldn’t be economically feasible, company officials say.
“The real issue is not about condemning buildings, which wouldn’t be necessary, although the popular misconception is that homes would be condemned,” said NYRI spokesperson David Kalson Thursday. “The real issue is about putting lines over farm lands and such. NYRI doesn’t anticipate having to take down any houses or buildings.”
Citing a series of legal precedents, NYRI is petitioning the state Public Service Commission to clarify if a law aimed at blocking the company’s use of eminent domain does in fact do so, and whether or not it is constitutional.
NYRI’s other contention: The law negates the commission’s authority to review and permit its power line.
“Without the use of eminent domain, any certificate approved by the commission would result in a project that is not economically feasible,” the petition states, providing examples where commission officials in the past have ruled that eminent domain is a necessary component of its citing process.
If the PSC does not rule in NYRI’s favor, Kalson said the company may seek approval with the federal government since most of New York state is part of a new “National Interest Electric Transmission Corridor.”
“That’s one option,” Kalson said, referring to the state’s corridor status, which allows the feds to take over a power line review inside it. “As you know, the Federal Energy Policy Act of 2005 became law to address the very serious threat to our national security that unreasonably long delays by states could create.”  
Eminent Domain – the power to take land at fair market value without negotiations – has historically been a right used by governments and utilities to condemn private property in the interest of “public good.” In New York state, companies or entities have to negotiate with landowners first before using that right.
NYRI is a private company backed by Canadian investors seeking to build a power line from Utica to Orange County that would relieve energy troubles downstate, it says. It’s route would split 44 miles and six townships in Chenango County.
One state legislator that crafted the law in question, who admits it was meant as a roadblock for the controversial project, says this most recent attempt to overturn it is another example of NYRI using its financial means to drown out wide public and political opposition upstate.
“This is a project no one wants,” said Senator Tom Libous (R-Binghamton) Thursday from Albany. “They (NYRI) keep coming back, and they obviously have a lot of money. They can take that large sum of money to hire high priced lawyers that will argue any case and try to dispel what we have done.”
Prior to the law’s passage in October 2006, NYRI had the right to use eminent domain under what’s called the state’s “Transportation Corporation” laws.
In February, NYRI filed a lawsuit against state legislators challenging the amendment to the Transportation law, signed by former Gov. George Pataki, but it was thrown out by a federal judge in October because lawmakers are immune from such litigation.
Now, the 150-page petition filed Monday claims that what Libous and his colleagues in the Legislature did isn’t even applicable to NYRI as written, and even if it were, would violate several of its constitutional rights, including equal protection under the law and due process. Amongst the arguments on technical grounds, NYRI attorneys say the law serves no clear purpose other than to “punish” the power line developer because it is “unpopular,” a violation of its constitutional rights, the document claims.
Others have questioned the law’s validity, including state officials with the PSC and Department of State who say its terminology was incorrect, adding that they disapproved of the law since it came before there was a decision made on NYRI’s project.
“The Article VII process (PSC power line review) ... should move forward before the state prejudges the need for the facility and establishes a barrier to its construction, to make possible a determination regarding the state need for the facility,” states an August 2006 letter from PSC Attorney Dawn Jablonski Ryman to then Governor George Pataki’s office.
The law prevents any “merchant transmission company” that meets all three criteria: It commences and ends within the state; it has testified that its project will raise utility rates in other parts of the state; and it has applied for but did not receive early designation as an national interest corridor.
Using lengthy examples and legal terminology, NYRI claims it does not meet any of those three criteria.
Libous says the law is a good one with “teeth,” and that greed will be the only thing that could overturn it.
“It’s troublesome, but sometimes in this country greedy people with money win,” he said. “Hopefully its not the case with this.”
The PSC “is still reviewing the petition,” spokesman James Denn said Thursday. “No decision has been made.”
As for NYRI’s claim that it won’t condemn homes; it needs rights to 1/8 of a mile wide – 663 feet – of land on either side of its proposed power line, according to its permit application. Some homes, like those in Woods Corners in Norwich, rest only 50 or 60 feet from where the line would go.