Pickens Plan & Energy Policy Act Challenged By Earthjustice Suit


Even as the irrepressible T. Boone Pickens had to scrap his “Pickens Plan” on Tuesday, in part due to a paucity of transmission capacity, last week brought another hurdle for the chances of building out the transmission infrastructure that Pickens and the country will need to bring more renewable power on-line. Why am I not surprised that we are not all rowing in the same direction here?

Earthjustice and a dozen other environmental groups filed suit against the feds on Tuesday, challenging the designation of the national interest corridors called for in the Energy Policy Act of 2005.

Readers who are really dialed-in to the latest in transmission litigation will remember that the Fourth Circuit already gave FERC (Federal Energy Regulatory Commission) a slap on the wrist this spring and limited the powers the feds could claim to site lines in the corridors in the face of local denials. This suit challenges the whole designation process and is another attempt to chip away at more federal control over siting transmission.

The cause of action is based on the violation of the administrative process that is required by NEPA (National Environmental Policy Act) and other (most environmental protection) statutes. Earthjustice and the co-plaintiffs claim that had the feds undertaken these notice and comment and other requirements, they would have recognized that the corridors declared would only serve to facilitate coal and other fossil-fueled power sources to proliferate in the West. As such, the lines would not have been environmentally defensible.

Earthjustice’s attorney says that they don’t necessarily see the suit as a legal action against the new Obama administration, but instead hope it is taken as an “invitation” to sit down and discuss the transmission issues. Politically, I have to question the strategy since there is plenty of opportunity for discourse on these issues right now as it is with the Senate taking up the climate change bill.

Also, I return to what I believe to be the fundamental question right now in climate change politics: how much are conservationists willing to surrender in local impact in exchange for real action on global climate change? A big picture approach is essential, which is why I think that this Earthjustice suit is both bad environmental advocacy and a bad political miscalculation.

For the legal geeks and political wonks out there, cruise on over and check my post at EnergyWorks for all the gory details on where I think this suit fits within the emerging legal context and how the Democratic politics plays out.

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