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"This is an early stage request," she told Climate Law Update. She also noted that the action does not approve the project's construction. Some aspects of the law relating to the federal government's authority to address the location of transmission projects have been controversial (see Climate Law Update story here). 

Commissioner Marc Spitzer said the approval of incentives for the PG&E project and a separate effort in the Mid-Atlantic region show the commission is willing to exercise the authority granted to it under the 2005 law.

"Our policies are making a difference – major backbone transmission projects are being proposed and built throughout our nation,” Spitzer said in the commission's statement. 

The commission rejected as premature the utility's request for "construction-work-in-progress" and "return on equity" incentives. Instead, the regulators suggested that PG&E re-submit its request for any additional incentives once it completes studies to determine if it meets FERC standards for infrastructure incentives. Under a prior order approved by the commission, applicants seeking the incentives must show that the proposed facilities either ensure reliability or reduce the cost of delivered power by reducing congestion.

In a separate statement, Commissioner Philip D. Moeller applauded the company for "taking a bold step in leading the effort" to develop the proposed project. He added that "broad regional cooperation is also contemplated" as PG&E proposes to design the project to take advantage of the seasonal demands in the region, where California's demand peaks in the summer, whereas demands in Canada and the Northwest peak in the winter (see text of statement here).

(Transmission lines with Oregon's Mount Hood in background; U.S. Department of Energy photo)

She noted that other questions arise when considering the placement of wind farms and solar power facilities, some in remote and environmentally sensitive areas, such as California’s desert lands:

“Surely there are good places to build these things and bad places to build these things. What’s the right process and what’s the right way to engage people who care about the desert and don’t just see it as deadland to put things on. None of us sees deserts that way any more.”

In her presentation to the conference, which was sponsored by the school’s California Center for Environmental Law and Policy, Carlson also highlighted transmission issues. She focused on the ambitious plans of the Los Angeles Department of Water and Power, the nation’s largest municipally owned utility, to aggressively increase its generation from renewable sources. Goals include boosting to 20 percent the proportion of the utility’s electricity coming from renewables by 2010 – more than doubling the current proportion -- and hitting 35 percent by 2025, she said. California has established its own renewable portfolio standards, which generally apply to private utilities, that are similar (see background here). 

Among the consequences of the Los Angeles utility's action, Carlson noted, was the need to build a lengthy transmission project from the proposed site of some of that new generation (see project description here). That is being opposed by a number of groups, including residents and local officials in areas where the lines will run who will not benefit directly from the power (see opposition group site here). Carlson said the utility also faces other pressures. Those include demands from its own unionized workers that the utility itself own much of the renewable generation. Additionally, the facilities must comply with an array of state and federal environmental laws, legal requirements that themselves provide ample opportunity for lawsuits filed by opponents. The challenges aren't unique to Los Angeles, she said: 

“So the sort of localized environmental clashes or values battles is a problem that is really international in scope and also is really long-term, as opposed to short-term. It raises real problems for not just again LADWP but for any utility that is seeking to shit its energy sources away from conventional sources to renewable sources.”

For another example of the kind of fights that can occur and their potential consequences, the Washington Post recently looked at opposition in the “green” state of Wisconsin over new wind farms planned for offshore waters in the Great Lakes (see story here).

Of course, that might not be the full extent of the societal conflicts that could occur as restrictions on greenhouse gases tighten up. In California and other states, there are movements already underway to reduce the amount of vehicle miles people travel (see Climate Law Update stories here and here). That's an issue that might produce some real backlash in a state that has never meaningfully connected land use and transportation policy, warned  William Fulton, a land-use expert who runs the Solimar Research Group. Fulton predicted that once people realize that reducing “VMT” means driving less, they could respond politically, even launching a new recall campgain similar to the 2003 recall of Gov. Gray Davis. That led to Gov. Arnold Schwarzenegger, the politician perhaps most closely identified with California’s climate change-fighting efforts, getting into office in the first place.

(Photo of Ann Carlson via UCLA School of Law)

According to the two earlier lawsuits, the designation of the Southwest corridor affects an area of 70,000 square miles in California and Arizona, while the Mid-Atlantic region covered by the department’s action includes “broad areas” of eight states and the District of Columbia.

The new move to the 9^th Circuit came after federal officials argued in the Pennsylvania case that such challenges could only be brought in the appeal courts. Although the initial filing in the appeals court did not include details of the plaintiffs’ allegations, a public statement from the organizations involved in the case outlined a number of objections, including the department’s alleged failure to fully consider public comments and alternatives.   

The cases stem from the department’s decision last October to designate the two corridors. The latest lawsuit came shortly after the department earlier this month denied requests to reconsider the order (see DOE press statement here).

Areas within the corridors could be subject to jurisdiction by the Federal Energy Regulatory Commission under the energy policy law, according to energy department documents.

“In practice, this will mean that if an applicant does not receive approval from a state to site a proposed new transmission facility within a national corridor, the applicant may then apply to FERC for a permit and authorization to construct the facility,” the energy department said in an information packet distributed at the time of the October decision. Once granted a permit, a builder could also use the power of eminent domain to acquire property rights for the lines, except if the land is owned by the state or federal governments, the department said.

Opponents of the department’s move saw numerous problems with it. The Pennsylvania lawsuit, charged, for instance:

“As a result of the Order, proposed utility and transmission line projects
within the Corridor will be subject to “fast-track” federal approval, bypassing
state-level processes for locating transmission infrastructure, overriding federal
environmental laws, and enabling federal condemnation of private land and
diversion of public land for new high voltage transmission lines.

By facilitating utility right-of-way creation and transmission line construction without a detailed analysis of the associated environmental impacts and without full consultation with the appropriate resource and land management agencies, DOE’s proposed corridor designation will have avoidable impacts on ecosystems, wildlife habitats and populations, historic resources and water quality.”

Anjali Jaiswal, an attorney for the Natural Resources Defense Council, one of the groups bringing the 9^th Circuit lawsuit, said the case was not about stopping transmission projects:

“We recognize the need for increased investment in transmission solutions across the country. But we need to ensure that these transmission corridor designations take place in compliance with federal environmental law.”

The lead plaintiff in the case was the Wildnerness Society. The California Wilderness Coalition also joined the litigation. 

In its public statement released at the time of the rehearing denial, the energy department said it had “dismissed without merit” challenges raised by those seeking a new look at the decision. It also asserted that a number of federal statutes, including those cited in the lawsuits, were “not applicable” to the decision to designate the corridors. Rather, reviews under those laws would be conducted by FERC before issuing any construction permit.

Julie Ruggiero, a spokeswoman for the energy department, said Wednesday that the designation of the corridors "in and of itself has no environmental impact and instead shines a spotlight on areas of the country that are experiencing congestion and constraint." She said the department had also provided "all interested parties with fair and ample opportunities" to give their views.

Last month, the federal attorneys representing the energy department moved to dismiss the Pennsylvania case, arguing such challenges could only be heard in the court of appeals.

(Photograph of transmission lines in Oregon courtesy Department of Energy)