We might start seeing a lot more eminent domain cases for transmission projects thanks to the infrastructure bill.
- Nov 19, 2021 6:44 am GMT
U.S. President Joe Biden's infrastructure was a major political win. The importance of him passing it less than one year into his first term cannot be overstated. Such a transformational piece of legislation will take time to start gaining momentum. The clock was ticking, as Democrats find themselves on unstable footing heading into the 2022 midterms, and, separately, if Biden had passed it in his third year and voted out after his fourth, it's possible a president from an opposing party could dismantle it.
In a parallel universe, I see a conservative-led government looking into the details of the bill's transmission programs and freaking out over the reform to eminent domain rules. In the early 2000s, the Federal Energy Regulatory Commission could issue permits to transmission projects with eminent domain authority if the project was planned for a National Interest Corridor. However, a judge struck part of that down in 2009 and ruled a state's denial of a permit would override a federal eminent domain authority. The judge handed the power back to the states, leaving the federal government with few options for pushing projects they wanted without state consent.
Biden's infrastructure bill amends this provision, giving the FERC blatant authority to issue a permit with eminent domain authority for transmission projects in National Interest Corridors after a state has denied the approval of the project permit. Although all of this work will begin with creating National Interest Corridors, of which none. currently exist. The National Law Review defines National Interest Corridors as, in part, "including whether a lack of adequate electricity is imposing economic constraints on a particular region of the country, and non-economic factors such as whether a designation would serve the national interests and whether it would promote energy independence."
With progressive ideas and government overreach such as this in the provision, it would be smart of American liberals to get this package up and running and protect its vulnerability to shifting political winds.
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