Federal court weighs power line battle

State agency continues public hearings

By FRITZ MAYER

NEW YORK STATE — The question of whether the NYRI power line becomes a reality depends on developments at both the state and federal levels. In recent discussions with lawmakers and residents opposed to the power line project, Dr. Bill Pammer, commissioner of planning and environmental management for Sullivan County, said he was somewhat optimistic about developments at the federal level.

Pammer said that the group Communities Against Regional Interconnect (CARI) in conjunction with other entities, has sued the federal government over the 2005 Energy Policy Act. Specifically, the suit involved the portion of the act that allows the federal government to overrule state governments, in some circumstances, about the placement of power lines.

New York Regional Interconnect, (NYRI) has been seeking for two years to build its power line in New York State. If the state doesn’t grant the company the necessary permits by next August, or denies the application outright, the company can apply to the Federal Energy Regulatory Commission (FERC) for the permits and, according to FERC’s interpretation of the act, FERC can then override the state’s decision.

In oral arguments on September 24, CARI argued before the U.S. Court of Appeals for the Fourth Circuit in Virginia, that such power is a violation of the Tenth Amendment of the U.S. Constitution, which guarantees states’ rights in certain areas.

According to Troy Bystrom, a member of CARI, “The court posed a series of tough questions to FERC, including how the states have any choice but to approve a power line under FERC’s interpretation of the 2005 Energy Policy Act.” CARI also raised other questions involving environmental concerns.

Bystrom said some of the court’s questions indicated that the judges were concerned that FERC’s broad interpretation of the act might mean an intrusion into states’ rights in this matter. But he said the judges also questioned whether a narrower interpretation of the act would frustrate the goals of the law. This indicates that the court could decide on some compromise, such as allowing FERC to step in only when a state fails to act on an application, rather than overturning a state’s rejection of an application or imposing the one-year time limit before which states now must respond to an application or risk FERC’s intervention.

Pammer said this court has traditionally ruled favorably in support of states’ rights, but, of course, it’s uncertain how the court will rule. Pammer added that if the ruling by the court, which is expected to come in December or January 2009, goes against CARI, there will likely not be an appeal and the ruling will mark the end of litigation on that issue.

At the state level in the battle against NYRI, Pammer, on behalf of the county, and CARI held an informational session at the Delaware Youth Center on October 24 to inform residents about how to most effectively give comments at the upcoming hearings of the New York Public Service Commission (PSC).

About 50 residents turned up and discussed issues that would likely have an impact on the hearing judges. Such impacts included the notion that the power line would bring down property values of homes and buildings near the proposed route, that it might adversely impact the health of nearby residents and that various agencies and experts have said the line is not needed.

The PSC is holding a series of nine meetings on the subject, with two scheduled for this area on October 29. Click here for an up-to-date report on the meetings.

The archived meetings can be viewed at www.newyorkadmin.com.