RICHMOND, Va. – Opponents of a high-voltage electric transmission line which could bisect seven Chenango County townships along its 190-mile proposed route are celebrating a recent federal appeals court ruling.
The decision, issued this week by the US Fourth Circuit Court of Appeals, states that the Federal Energy Regulatory Commission does not have the authority to intercede when a state commission denies a permit for a proposed energy project.
“This is a big win,” said Chenango County Director of Planning Donna M. Jones, who acts as the local representative for Communities Against Regional Interconnect. CARI, a coalition of seven upstate counties and 5 community interest groups formed to fight the project, was a petitioner in the case, along with the New York State Public Service Commission.
The central issue in the petition was FERC’s interpretation of the Federal Power Act, which allows the agency to override a state commission’s decision in order to approve projects located in designated national interest energy transmission corridors.
According to the statute, FERC has the authority to override a state’s authority to issue permits for construction only under specific circumstances, one of which is if the state has “withheld approval for more than one year after the filing of an application.” FERC’s interpretation of this phrase has expanded it’s meaning to include not only instances when approval has been withheld, but also when the state agency has denied a permit.
The Fourth Circuit Court decision reversed this interpretation.
“The Commission’s reading would mean that Congress has told state commissions that they will lose jurisdiction unless they approve every permit application in a national interest corridor,” stated the ruling, written by Judge M. Blane Michaels.
“Under such a reading it would be futile for a state commission to deny a permit based on traditional considerations like cost and benefit, land use and environmental impacts, and health and safety. It would be futile, in other words, for a commission to do its normal work,” continued Michaels.
For New Yorkers, this may mean an assurance that FERC will not be able to step in to approve the New York Regional Interconnect project if it is denied by the PSC. The Article VII application for the proposed transmission line is currently before the state agency for review.
“In many respects we’re gratified,” said Norwich resident and STOP NYRI activist Christine Brunner. But she and others acknowledge that the fight isn’t over yet.
“Even though this ruling narrows the threat that NYRI could easily turn to FERC to gain approval for its power line, it remains that all efforts must continue toward a denial of their proposal by the PSC,” Brunner explained.
Anne Dalton, public affairs officer for the PSC, declined to comment on the appeals court’s decision, saying only that “its impacts are under review” by the agency.
NYRI, however, has other ideas. While they support the appeals court decision, they are raising questions about the date from when the 12-month clock started ticking.
“The 4th Circuit decision holds that the FERC cannot exercise siting jurisdiction if a state siting authority denies an application within a year after the application is filed. If a state denial comes more than a year after an application is filed, then the FERC would have jurisdiction,” stated Len Singer, NYRI’s general counsel.
“NYRI’s application was filed February 20, 2008 so if a denial were to occur by the NY PSC after February 20, 2009 it would be subject to FERC jurisdiction under the Court’s decision,” he continued. “NYRI believes that if the project is judged on its merits by an independent, objective siting authority, it will find that the project is in the public interest.”
Despite NYRI’s claim, STOP NYRI co-chair Eve Ann Schwartz, maintains that the federal appeals court decision is a victory for her organization and all opponents of the transmission line.
“I think they are trying to play games,” Schwartz said, calling NYRI’s latest statement a “cry of desperation.”