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August 01, 2014
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The ghost of NYRI


REGION — Remember National Interest Electricity Transmission Corridors (NIETC)? Five years ago, when New York Regional Interconnection (NYRI) was trying to build a high-voltage power line through Sullivan County and eight other New York counties, the designation of a particular area as an NIETC opened the door for the possibility of the federal government being able to supersede state governments in some instances on the siting of power lines.

The existence of the NIETCs, which later were called national corridors, sprang from the controversial 2005 Energy Policy Act. On April 26, 2007, the U.S. Department of Energy (DOE) created two national corridors, one in the Southwest and one in the Northeast.

The Northeast corridor covered eight states, including much of New York and Pennsylvania, and at the time was seen to have greatly enhanced the possibility of the NYRI power line becoming a reality in the region.

Politicians on both sides of the political spectrum railed against the corridors, either because they gave the Federal Energy Regulatory Commission (FERC) too much power to ignore possible environmental laws that had been adopted by the states, or because the whole corridor scheme was another instance of the federal government intruding upon states’ rights.

In formulating the national corridors, the U.S. Department of Energy (DOE) undertook a congestion study to determine which areas of the country were in greatest need of such a designation. Now, however, the Ninth Circuit Court of Appeals has ruled that the corridors are defunct because the DOE did not follow the law when it undertook the congestion study. Specifically, the court said that DOE did not adequately consult with the affected states as the study was being prepared.

In a decision handed down on February 1, the court recognized that DOE had invited the states to comment on the study, but that it didn’t go far enough to satisfy the congressional mandate to “consult.” The court wrote, “The record shows that DOE did not extend an invitation to potentially affected states to attend an ‘invitation-only’ workshop on the
Congestion Study that was held in May 2006. Also, DOE did not disclose to the affected states the congestion modeling data it used to conduct the Congestion Study. Furthermore, DOE never extended any invitation to the affected States or their Governors to ‘consult’ on the preparation of the Congestion Study.”

The court also ruled that DOE should have created an environmental impact study, which is required by the 1969 National Environmental Protection Act, which the DOE failed to do. The court, in effect, ordered the DOE to start the process all over again if it wishes to create any NIETC or national corridor.

The NYRI project, which stirred much local concern, was effectively killed in March 2009, when the Federal Energy Regulatory Commission declined a request by NYRI to review the state rules regarding when and how the cost of the proposed power line could be passed on to rate payers.
But, if the project had still been in play, this ruling would have been another major setback, probably delaying construction of the line for years.