NorthWestern's proposal has reopened debate about corporate use of eminent domain to condemn the property of unwilling landowners and energized the argument over whether transmission lines are best sited on public or private land. These days, it's all framed against the backdrop of renewable energy development.
Similar conflicts -- spawned by the nation's first major transmission build-out since the 1980s -- are popping up across the West, where much of the nation's wind energy lies untapped, waiting for construction of a grid that can get it to market.
Western Grid Group, a policy advocacy outfit formed to facilitate wind energy transmission, identifies 20 major interstate transmission lines on Western drawing boards. WestConnect, a regional transmission planning organization, reports that more than $20 billion worth of projects are in some stage of development in nine Western states, including the High Plains Express from Wyoming to Arizona, the Centennial West Clean Line from New Mexico to Southern California, and the TransWest Express between Wyoming and southern Nevada.
One already under construction was just stopped in its tracks by a Montana landowner. The 214-mile, 230-kV Montana Alberta Tie Ltd., or MATL, aims to cross northern Montana to connect substations in Lethbridge, Alberta, and Great Falls, Mont. MATL's developers -- a Canadian company and its U.S. subsidiary -- want to go through Shirley Salois' land, near Cut Bank, where the family says there are wetlands and historic teepee rings that they want to protect. MATL sued Salois in state court, seeking to condemn an easement through her land. District Court Judge Laurie McKinnon sided with Salois in December, ruling that Montana's eminent domain laws give no specific authority to companies building "merchant lines." (Merchant lines, built and operated independent of the power generation that feeds them, are a new enterprise in Montana, allowed by the Legislature's deregulation of many aspects of energy in 1997, long after Montana's eminent domain laws were written.)
Bozeman attorney Hertha Lund, another property-rights stalwart, represented the Salois family, arguing, among other things, that MATL hadn't adequately complied with Montana's Major Facilities Siting Act -- another law more typically used by environmentalists to ward off industrial impacts. "I'm making their arguments," says Lund. "It's a scary day when I have to use the environmental statutes to protect property rights."
The judge's ruling could prevent NorthWestern Energy from using eminent domain against uncooperative landowners. And according to NorthWestern lobbyist John Fitzpatrick, "If a utility does not have access to such authority ... it will be impossible for us to build utility infrastructure."
Montana Republicans are torn, with their pro-development and personal-liberty platforms colliding in this legislative session, which runs until April. Billings Republican Rep. Ken Peterson is pushing a bill that would retroactively extend eminent domain authority to merchant lines, effectively voiding the ruling and holding the gate wide open for MSTI. Meanwhile, Republican Rep. Kelly Flynn -- representing Townsend, where NorthWestern wants to build a substation on at least 50 acres at MSTI's head -- is pushing a bill to require projects to demonstrate 90-percent approval from affected landowners before condemnation authority kicks in.
In heavily Republican Wyoming, eminent domain has long been a sore spot; it's been exploited for coalbed methane development for years. Now, Wyoming ranks No. 1 in the West for wind resources and faces the prospect of a spaghetti network of feeder lines bringing dozens of proposed windfarms online. Last year, then-Gov. Dave Freudenthal, a Democrat, persuaded the Legislature to impose a one-year moratorium on using eminent domain for small feeder-line transmission, so the Legislature could fine-tune state laws. Lawmakers seem likely to extend the moratorium for another two years, as interest groups argue over what to do.
Freudenthal also urged the federal government to be more cooperative in siting transmission lines on federal land. He noted controversial plans to route a portion of the Gateway West Transmission Line (a 1,150-mile project of Rocky Mountain Power and Idaho Power) through scenic private land instead of federal land.