Led by Louisiana Attorney General Jeff Landry, 18 Republican state Attorneys General (AGs) wrote a letter on September 26 raising three objections to Sen. Joe Manchin’s (D-WV) proposed permitting bill. Their primary complaint is that the bill eliminated state immunity from federal eminent domain for transmission projects, thus allowing developers to “take” and then build on state land if the state refused to sell.
There are compelling reasons for not allowing eminent domain to be used against state property and for Republicans to insist on improvements in federal eminent domain authority for energy siting. Still, these AGs make a series of baseless arguments that we shouldn’t overlook.
First, they complain that “this provision would allow private companies to take over state park property.” In fact, some of these very states already allow transmission developers to take state property. In Texas, for instance, transmission developers can take land owned by any state agency, including–per the AGs’ concern for state parkland–land owned by the Texas Parks and Wildlife Department. See Oncor Elec. Delivery Co. LLC v. Dallas Area Rapid Transit, 369 S.W.3d 845, 849–50 (Tex. 2012). What’s more, the AGs’ objection that the bill “would also permit FERC to authorize massive takings of private lands for such projects” is an odd non-sequitur since every state allows private land to be taken for transmission projects.
The AGs also bemoan that FERC could authorize taking state land “to build new transmission facilities deemed necessary to connect to solar or wind farms.” Tellingly, they don’t complain about taking land for transmission to connect to gas or coal plants, suggesting that the AGs’ objection is actually to wind and solar power. It comes as no surprise that the letter’s primary author is the Attorney General of Louisiana, the second largest gas-producing state, and is signed by the AGs from three of the other top five gas-producing states: Texas (#1), West Virginia (#4), and Oklahoma (#5).
Renewable power indeed seems to be the letter’s primary concern. The signatories also complain that the bill would authorize FERC to replace “the American farmer with federally-facilitated solar farms.” This is incorrect; the bill authorizes eminent domain for transmission lines, not solar farms. And while those transmission lines might make it easier for farmers to lease their land for solar panels, any such lease would be entirely voluntary.
They do acknowledge that the federal Natural Gas Act authorizes eminent domain over state property for pipelines, and then unsuccessfully try to explain why eminent domain for transmission is somehow different: the NGA “contains no express prohibition on the object of companies’ exercise of eminent domain, but the [Federal Power Act] does. Asymmetrically removing the protection of state sovereignty from the FPA departs (with no explanation) from the careful choices that Congress originally made in providing that protection.”
First, if there is any issue of “symmetry” the proposed transmission eminent domain authority creates it by aligning this part of the Federal Power Act not only with the NGA, but also with the FPA’s existing authority to take state property for hydroelectric facilities. Second, when Congress first authorized (and then amended) federal transmission siting authority (in the Energy Policy Act of 2005 and the 2021 Infrastructure and Investment Jobs Act) it didn’t explain why it forbade the taking of state property (as is par for the course with statutes).
Most importantly, the concern expressed for the sanctity of state property is at odds with their previous reticence on this issue. When the Supreme Court was asked to decide whether the Natural Gas Act allowed the taking of state property, 19 states submitted an amicus brief in support of New Jersey (whose property was at stake). But only one of the 18 AGs now protesting the very idea of taking state property for transmission lines signed it (Virginia), which was under the previous (Democratic) Virginia AG.
What’s more, the U.S. has far more miles of interstate natural gas pipelines than interstate, high-voltage transmission – perhaps more than twice as much.1 The AGs’ position therefore appears to be that taking state property for relatively rare interstate high-voltage transmission is a terrible idea that “would eviscerate state sovereignty– yet taking state property for far more common interstate natural gas pipelines is perfectly acceptable.
There are certainly good reasons to not authorize eminent domain for use against state property, especially in light of a bill expanding federal transmission siting authority (which may be exactly why Congress did not do so when it started down this road in 2005). Even so, the reasons the AGs offer in this letter simply do not hold up to closer scrutiny.
- According to the Energy Information Administration, there were 217,000 miles of interstate natural gas pipelines in 2008 (the most recent year for which we could find total mileage), and that was before the fracking boom which increased U.S. natural gas production from 21 tcf in 2008 to 37 tcf in 2022, a 76% increase. Assuming the interstate pipeline system increased proportionally, then there would be 382,000 miles of such pipeline by 2022. In contrast, there are only 160,000 miles of high-voltage transmission lines, and only a fraction of these are interstate, the only type that would be able to use federal eminent domain in the proposed permitting bill.