Eminent-domain concerns loom over clean energy transition 

Democrats on Capitol Hill are fighting to make it more difficult to seize land for natural gas pipelines. But a climate policy-driven buildout of electricity transmission lines in the near future poses similar challenges.

Frances Koncilja, a former Colorado electricity regulator appointed by now-Sen. John Hickenlooper when he was governor, is sounding the alarm about legislation that proponents say is a lynchpin of the state’s campaign to hit 100 percent renewable energy by 2040.

The bipartisan bill would pave the way for hundreds of miles of new electricity-transmission lines and force utilities in the state to join regional electricity networks.

But Koncilja, who testified against the legislation last week, is focusing on the potential deleterious impacts. She’s concerned that the transmission build-out could spoil the iconic natural beauty of Colorado, the de facto emblem of the U.S. Rocky Mountains. And she’s worried about property rights for state residents. 

“I think it’s of critical importance to decarbonize and reduce our emissions,” she told National Journal. “The politicians who are convinced that the ends justify the means and anything you do to advance decarbonization is okay…yeah, I’m going against them.”

In a blistering op-ed published in Colorado Politics the day before her testimony, Koncilja argued that a transmission authority established by the law would be able to blindside and strongarm residents into seizing their property through eminent domain.

Fresh off passage of the $1.9 trillion American Rescue Plan Act—legislation that garnered no Republican yes votes in either chamber despite vast public support—Democrats in Washington are launching the legislative process for an infrastructure bill this year. Many advocates of serious action to combat climate change say the U.S. will need to dramatically increase the number of transmission lines nationwide to accommodate increased demand spurred by transportation-sector electrification.

And renewable-energy companies will need more lines to send their product to customers many states away. In 2020, solar and wind accounted for less than 11 percent of U.S. electricity generation. President Biden is pledging to put in place policies to hit net-zero power-sector emissions by 2035. 

In order to do that, lawmakers, including House Energy and Commerce Chair Frank Pallone, are pushing legislation that would establish a clean electricity standard that would mandate utility-emissions reductions and create a credit-trading scheme. Some Democrats are calling for a mandatory phase-out of fuel-combustion engines akin to bicameral legislation introduced in the previous Congress that calls for 100 percent zero-emission vehicle sales by 2035. 

The transportation sector emits more greenhouse gases than any other sector, accounting for 28 percent of emissions in 2018, the Environmental Protection Agency says. 

But now, some Democrats are starting to link eminent domain concerns with the anticipated climate policy-driven transmission build-out. 

“If we’re going to do deep decarbonization, I think most smart people have agreed that electrify everything, coupled with decarbonize the electric sector because that seems to be the easiest one conceptually to think about decarbonizing, is a way to get a lot of the low hanging fruit,” Rep. Sean Casten said at a Columbia University event this month.

“If we are going to do that, that means we are changing the geography of where our generation fleet is, moving it proportionately south and west if you just look at where the zero-carbon resources are,” he said. “If we’re moving where the loads are and we’re moving where the generation is, we better be thinking about moving some wires around.”

Casten, a clean-energy entrepreneur before coming to Congress, acknowledged that property rights are going to present some problems for transmission.

“How we think about solving that eminent-domain problem is really thorny,” he said. “But we need to find a way to do that. I don’t have any good answers, but I know where the problem sits.” 

The Fifth Amendment prohibits private property to “be taken for public use, without just compensation.” That language has paved the way for countless instances of forcible government purchase of private property. 

Over the past century, the federal government has often delegated that power to nonfederal government entities and private companies to build electricity sector projects. The Federal Energy Regulatory Commission has broad authority to assert eminent domain based on “public convenience and necessity” language in the Natural Gas Act. In fact, the Biden administration is now backing the PennEast natural-gas pipeline at the Supreme Court, citing eminent domain authorities enshrined in the Constitution.  

Meanwhile, many Democrats on Capitol Hill—and local communities nationwide—are increasingly fighting eminent domain that authorities awarded to natural gas companies. Sen. Ron Wyden is spearheading the Landowner Fairness Act to make it more difficult for natural-gas companies to use eminent domain.

Casten spokesperson Emilia Rowland said he’s “very wary about enshrining rights of local communities to prevent” pipelines and other energy projects because those laws could also “prevent the clean energy infrastructure that we so desperately need from being built.” Casten plans to introduce new transmission legislation in the coming months that could potentially fit into an infrastructure, Rowland said.

The Intergovernmental Panel on Climate Change, a body of the United Nations, says global temperatures need to increase no more than 1.5 degrees Celsius in the coming decades above pre-industrial levels to avoid the most catastrophic climate forecasts. Biden, who rejoined the Paris Agreement climate accord on his first day in office after then-President Trump withdrew the U.S. from the pact, is aiming to announce a new Paris emissions reduction commitment next month. That framework will rely heavily on renewable energy.

A Wyden spokesperson, Nicole L’Esperance, said he’s not currently working on transmission legislation. “But Wyden supports strong public engagement and landowner protections for any federal project,” L’Esperance said.

Others, however, are brainstorming new transmission policy that could find its way into an infrastructure package. David Bookbinder, chief counsel at the Niskanen Center and a veteran of natural-gas-pipeline fights, is supporting the Wyden bill. And he says eminent domain for transmission can be maintained with new congressional directives to ensure transparency and fairness for landowners.

“I am confident that very soon we will see Congress addressing this with federal transmission siting, which will include really precise criteria for what gets permitted under the system and extensive protection for landowners,” Bookbinder said.