Nebraska State Sen. Tom Brewer aims to restrict electric utilities’ eminent domain authority

Source: By Cole Epley, Omaha World Herald • Posted: Friday, February 9, 2018

LINCOLN — State Sen. Tom Brewer said Thursday that his latest proposal in front of a legislative committee isn’t about slowing down Nebraska wind energy development.

Instead, the Gordon legislator’s proposal to restrict Nebraska public power utilities’ eminent domain authority is about protecting private property interests, he said.

As proposed, Brewer’s Legislative Bill 752 would prohibit Nebraska electric utilities from using eminent domain authority to obtain right of way “on behalf of a third party accessing the infrastructure to sell electric energy.” (State law allows private companies to generate electricity in the state only if they use renewable technology like solar panels or, more commonly, wind turbines. Power generated in other ways must be owned by public entities, like the Omaha Public Power District.)

“It prevents private parties from using one of the most powerful tools of government,” Brewer said of the bill. “(Eminent domain) should not be used for private interests or for one group of private citizens to impose their will on another.”

Eminent domain is when the government or a government entity takes private property for public use; the government pays the property owner.
The senator held up the controversial R Project as an example of state-granted eminent domain authority. The 225-mile, high-voltage transmission line is planned to cross portions of the ecologically sensitive Sand Hills and will be built by the Nebraska Public Power District.

As of early January, NPPD had acquired right of way for 131 miles of the route from about 75 percent of landowners in its path.

Eminent domain could be used to secure right of way from holdouts, and Brewer said his concern lies with them. Landowners, he said, should be free to do with their property what they want — but their neighbors shouldn’t be forced to go along with it if they don’t want to.

Advocates for wind energy weren’t buying it.

Eminent domain can also be used on wind energy projects, which require interconnecting transmission lines between electricity-producing turbines and longer-distance transmission lines. Those interconnecting lines can be built by developers, or utilities like NPPD can put them up for developers — and use eminent domain to secure right of way if landowners refuse to sell.

If the bill were to pass, it would restrict the ability of private companies in the state to buy and sell electricity from the 14-state regional wholesale marketplace that includes Nebraska, said David Levy, an Omaha lobbyist representing BHE Wind, Sandhills Energy and Geronimo Energy. BHE Wind is a division of Berkshire Hathaway Energy.

“In other words, (LB 752) would discriminate against private business in favor of government business,” Levy said. Developers have cited friendlier regulations as a main driver of significantly increased wind energy activity in Nebraska in recent years. For comparison, Nebraska wind projects now generate more electricity annually than the Hoover Dam.

Other opponents included the Nebraska Farmers Union and the Wind Coalition. Those organizations and Levy also testified last week to oppose Brewer’s priority bill for the session.

That bill, LB 1054, would change Nebraska’s statutory definition of a privately developed renewable energy generation facility to specifically exclude wind energy developments. Its ultimate goal is to require wind developers to go through a hearing process with the Nebraska Power Review Board in order to approve wind projects in the state.

The Nebraska Power Association, a trade group representing all of the state’s electric companies including NPPD, testified in a neutral capacity for both Brewer bills.
NPPD officials say the R Project transmission line achieves three primary purposes: It reduces congestion of transmission lines at the local level — particularly on lines between western Nebraska and the more populated eastern part of the state, for example; it improves reliability of the broader regional electric grid; and it also opens the door for more development of renewable energy.

It would also help the utility avoid a disaster like the one it skirted during the summer of 2012. That’s when record high temperatures combined with unprecedented electricity demand prompted the consumer-owned utility to choke off power from a couple of north-central Nebraska communities for short periods to prevent a disastrous blackout.

Had the utility experienced any failure of transmission equipment in the zone comprising about 30 counties in the central and north-central portion of the state, “We were at risk of the entire system coming apart,” NPPD Chief Operating Officer Tom Kent said at an industry conference in November.