Harvard paper urges states to ease restrictions on out-of-state developers

Source: Colin Sullivan, E&E reporter • Posted: Wednesday, May 6, 2015

Public utility and property laws historically aimed at protecting in-state interests should be tweaked to help facilitate electric transmission construction, according to a policy paper released yesterday by the Harvard Law School’s Environmental Policy Initiative.

The paper, set to be published in the Minnesota Law Review, looks at how each state in the United States controls the process for approving and siting power lines within its borders. It argues that a single state can often halt a multi-state project with this authority.

A number of problems are evident in this arrangement, the paper said, among them: Out-of-state companies are prohibited from using eminent domain authority; regulators tend to narrowly frame a line’s benefits when determining need; and eminent domain is limited to projects that meet a tight definition of public use.

The paper goes on to describe “regulatory holdouts” that may benefit state property interests but impair the broader ability to build power infrastructure.

“Many of these policies and procedures … can inhibit the development of energy infrastructure and violate the dormant Commerce Clause,” said the paper, written by Alexandra Klass and Jim Rossi for the Harvard initiative.

The authors recommend three fixes: Siting laws should allow out-of-state transmission companies to apply for siting certificates and eminent domain authority; siting proceedings should allow regulators to account for the regional benefits of a project; and laws providing eminent domain should permit projects that prove regional benefits.

Click here to view the paper.