Student Post: Which administrative hearing is this again? The multiple layers of administrative law applicable to siting electric facilities.

Our casebook authors note that there are dormant commerce clause issues possible with the siting of power facilities.[1]  While this could be an obstacle to deal with, my experience from watching the live testimony on the siting of a new transmission line from Center, North Dakota to Grand Forks, North Dakota.[2]  North Dakota’s definitions of who can petition for a siting are not as restrictive as the example cited by our casebook authors.  A “‘[u]tility’ means any person engaged in and controlling the generation, manufacture, refinement, or transmission of” anything related to energy.[3]  For this statute, a “‘[p]erson’ includes any individual, firm, association, partnership, cooperative, corporation, limited liability company, or any department, agency, or instrumentality of a state or of the federal government, or any subdivision thereof.”[4]

The Dormant Commerce Clause is the least of the worries of a utility seeking to have either generation or transmission facilities sited in North Dakota.  The web of jurisdictional approvals required became apparent in the first 30 minutes of testimony at the hearing held in Baker court room today.  For the proposed transmission line the testimony revealed that the applicant, in this case Minnkota Power Cooperative, Inc., has had to coordinate with the U.S. Fish and Wildlife Service, the Federal Aviation Administration (FAA), and the Western Area Power Association (a federal agency).  Looking at the list of filed documents in the PSC’s docket reveals that even North Dakota agencies have weighed in on the proposed sites, including the Department of Health,[5] the State Historical Society,[6] and the State School Trust Land Department.[7]  In addition, each county, and some townships, along the proposed route must approve the site.  Many of these counties and townships do not even have a procedure for obtaining such approval.

Given the myriad governmental agencies and subdivisions that go into approving siting of a transmission facility it is a wonder that any transmission facility can be approved.  While all this work may be attractive for lawyers that want to practice in this area, the issue of parochialism that the casebook authors warn about seems to be a real concern.[8]  While the Federal Energy Regulatory Commission can provide a back-stop for siting transmission, the problem with upgrading the nation’s electricity grid will still be slow and cumbersome given all of the governmental entities that currently touch any proposed plan.

An example brought up on cross examination at this morning’s hearing is illustrative: the Western Area Power Association (WAPA) is currently upgrading a transmission line near the Grand Forks International Airport to comply with North American Electric Reliability Corporation (NERC) reliability standards.[9]  Part of the hold-up in the WAPA approval is gaining approval from the FAA.  The height of the proposed Minnkota line in the same area is dependent on the WAPA line, and as such the Minnkota line cannot be approved by the FAA yet either.  This is just part of the reason that this case has already had its time horizon broadened from a two year plan into a five year plan.  The construction has not delayed anything but just getting the plan in place is adding significant time delays.  When we include in the above alphabet soup NIMBY – which several landowners have raised[10] – it becomes clear that siting energy facilities is anything but easy.

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[1] Pages 892-93.

[2] N.D. Public service Comm’n, Case PU-09-670, available at http://www.psc.nd.gov/database/docket_view_list.php?s_dept=PU&s_year_case=09&s_seq_num=670&s_company_name=Minnkota+Power+Cooperative%2C+Inc.&docket_viewPage=2

[3] N.D. Cent. Code § 49-22-03(13).

[4] § 49-22-03(8).

[5] http://www.psc.nd.gov/database/documents/09-0670/126-010.pdf

[6] http://www.psc.nd.gov/database/documents/09-0670/128-010.pdf

[7] http://www.psc.nd.gov/database/documents/09-0670/106-010.pdf

[8] See page 893.

[9] NERC is the standard setting body for reliability in the United States as chosen by FERC.  http://www.nerc.com/

[10] See case 09-PU-670, docket ##22-33, 34-39 (landowners objecting to original hearing date because it is during spring planting season and they could not attend to voice objection to site of the line on lands they farm).