Democratic and Republican lawmakers and state legislators last week hurled a series of attacks at provisions in the Energy Policy Act of 2005 (EPAct) that they say allow federal regulators to usurp state authority over the siting and construction of electric transmission lines.

The law allows the Federal Energy Regulatory Commission to act on a utility’s application to build a new transmission line if a state has withheld approval of a permit for one year or more. It further gives FERC the authority to grant eminent domain to acquire land to construct a new power line, a power that traditionally has been held solely by state and local governments, lawmakers said.

EPAct has created a “sense of disempowerment” with respect to state authority over transmission, said New York state Assemblyman Paul Tonko during a hearing conducted by a House Oversight and Government Reform subcommittee last Wednesday on federal electric transmission corridors.

He called for a “reversal” of the EPAct provisions that permit FERC to decide the fate of transmission line projects. Noting that the law’s language has eroded state and local authority over transmission, Tonko said “the time to repeal these provisions is now.”

Pennsylvania Rep. Bill DeWeese, majority leader of the state House, echoed that sentiment. “I don’t want it [FERC] to impose its long arm and will into our backyards,” he told the Domestic Policy Subcommittee.

“Pennsylvania and the Pennsylvania Public Utilities Commission should make these decisions,” not federal regulators, he said. The EPAct provisions “should be repealed post haste,” DeWeese noted.

Rep. Henry Waxman (D-CA), chairman of the full Oversight and Reform Committee, said he was concerned that the EPAct language has “trampled” on the separation of federal and state powers. There “simply [is] no way for a removed federal agency to be a substitute” for local and state authorities, agreed Rep. Christopher Murphy (D-CT). Republican Reps. Tom Davis of Virginia and Darrell Issa of California raised similar concerns.

EPAct required the Department of Energy (DOE) to consult with affected states while conducting a transmission congestion study, which it released in August 2006. The study was the first step in a process to designate national interest electric transmission corridors, where new transmission facilities could be sited.

“DOE never contacted any Maine regulator in conducting…the study,” said Kurt Adams, chairman of the Maine Public Utilities Commission. In fact, he noted that the department never contacted a single regulator or state governor in New England while it was carrying out the study. As a result, Adams called the DOE congestion study “fundamentally [and] legally flawed.”

Paul Koonce, CEO of Dominion Energy, was the sole supporter of the EPAct provisions at the hearing. The company believes there was a real need for the EPAct language in the wake of the 2003 power blackout, when the nation realized the need to improve the electric grid’s reliability, he said.

“Dominion has stated repeatedly that we intend to use our state siting process,” but the company also recognizes the role of DOE and FERC in ensuring the grid’s reliability, Koonce told House lawmakers.

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