The Express to Where?

A New FEIS Raises Old Questions

Just released is a much-anticipated FEIS from the U.S. Department of Energy (DOE).  It concerns the construction of a 330+ mile interconnection that has been proposed to take electricity from where it is relatively cheap and abundant (Quebec and the rest of eastern Canada) and transmit it to where it is not (New York City).  This has become known as the Champlain-Hudson Power Express (CHPE).  Still to be decided: whether to grant the “Presidential permit” CHPE needs as an international interconnection/energy entanglement.

A number of business concerns are tied into the proposal, technically now being sought by Transmission Developers, Inc. (TDI).  But Hydro Quebec, CSX (a railroad), and Enbridge (which owns and is developing more wind farms in eastern Canada) stand out.  Hydro Quebec owns the generating capacity to be tapped from eastern Canada and sent south.  CSX owns land in much of the route proposed.  And once this line is in place, only its carrying capacity will limit how much electricity can be transferred north-to-south—meaning that other surplus power generated throughout eastern Canada could travel its lines as well.

For Quebec at least (and likely Ontario and the Maritime Provinces if we factor in wind generation), that is a very good thing.  Quebec is presently “awash in electricity” and will be for the foreseeable future.  That drives down prices.

Indeed, a major new hydro proposal is sitting idle in Quebec at the moment (known as the La Romaine), forcing Hydro Quebec to wonder if eastern Canada will ever need its electricity enough to pass a basic cost/benefit test and secure government permission there.

Enter the proposal now sitting before the Obama Administration—with its voluminous EIS.

Basically, TDI is trying to square a circle nobody else has: getting electricity to a bustling market that promises reliable dividends far into the future without being skewered in the environmental conflicts that have arisen out of trying to build the infrastructure such opportunities require.  CHPE’s big idea is to bury its transmission lines instead of bringing them on massive overhead systems—and to bury them in the beds of the publicly owned Lake Champlain, Hudson and Harlem rivers.  CHPE graphic

According to TDI,

[t]he transmission system would consist of one 1,000-MW, high-voltage direct current transmission line and ancillary aboveground facilities (e.g., cooling stations). The transmission line would be a bipole consisting of two transmission cables. A new converter station in Queens, New York, would convert the electrical power from [DC] to [AC] and then interconnect with the New York City electrical grid at two points.

Local opposition to the building of such projects in and about Lake Champlain and the Hudson River has been what one should expect: intense but uneven.

Yes or No? The Two Option Game

Notably, the FEIS analyzes only two possibilities—the same two that were proposed in the Draft EIS of September 2013.

First is the “preferred alternative” of the route as finalized from the DOE listening sessions and hearings begun in 2010.  The route chosen through New York State was selected very carefully and very strategically.  The western shore of Lake Champlain is every bit as ecologically vulnerable as Nebraska’s sand hill region (which is what prompted KXL to reroute their pipeline proposal).  Digging it up to install this transmission system will entail some significant environmental risk.  But of course this system will carry electricity, not dilbit, making the risks of failure less threatening.

The only alternative was a no-action alternative.  No-action alternatives are obligatory under a mountain of case law, the CEQ’s 1978 regulations, and most action agencies’ own rules.

But having an alternatives analysis consisting merely of the proposal/preferred alternative and a no-action alternative raises a red flag—or least a pink one.  Alternatives analysis is the “heart” of an EIS, 40 C.F.R. § 1502.14, something that simply cannot be cursory if the EIS is to cut much ice.  The CEQ rules state that EISs should

[r]igorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated.

Id. at § 1502.14(a).  Those rules also state that agencies should “[i]nclude reasonable alternatives not within the jurisdiction of the lead agency [here, DOE].”  Id. at § 1504(c).  Precedents like NRDC v. Morton, 458 F.2d 827 (D.C. Cir. 1972), and Vermont Yankee make the “rule of reason” the norm here.  But what that “rule” requires has always been a little a murky.

It is safe to say that a “reasonable” alternatives range will be reasonable because it isn’t so constrained as to be rigged and yet isn’t so expansive as to be a sham.  Where any legal boundaries are within that immense spectrum, of course, is hard to say.  Most careful judicial scrutiny here is connected with the agency’s own statement of the action’s “purpose and need.”  Alternatives to be weighed should flow from the underlying motives behind the proposed action, after all.  From the FEIS, DOE says that

[t]he purpose and need for DOE’s action is to decide whether or not to grant a Presidential permit for the proposed CHPE Project.  Applications for Presidential permits are evaluated based on the potential impacts that a proposed project could have on the environment, the operating reliability of the U.S. electric power supply, and any other factors relevant to the public interest.

That arguably does nothing to specify a “purpose” or a “need” for this particular transmission project if by purpose and need one means reason(s) particular to this action.  And DOE seems aware—because they go on to elaborate the “Applicant’s Objectives” in seeking the permit.  Of course, TDI/CHPE’s objectives are as stated above: to import electricity from where its being oversupplied to a market that could certainly use “more” electricity.  This is where it gets interesting, though.  Because CHPE/TDI predict in their application that CHPE-transmitted power would

displace natural gas and oil-fueled sources of electrical generation supplying the [NYC] region. This would result in the potential to reduce regional greenhouse gas (GHG) emissions. Using the initial year of operation of 2018 as an illustration, [New York State authorities] predicted that the proposed CHPE Project would reduce annual emissions of carbon dioxide (CO2) by approximately 1.5 million tons, sulfur dioxide (SO2) by 751 tons, and nitrogen oxides (NOx) by 641 tons.

These are relatively modest GHG abatements, but they beat emissions increases.  Of course missing from the argument is any reference to La Romaine, the proposed dam on one of Quebec’s great rivers currently idled by low electricity prices there.  Should that be considered an off-setting consideration?  If it is built, the La Romaine dam will be in a different country—governed by a wholly different legal system—and so “causation” might be a reason to ignore the scenario.

The applicants also predict that their electricity will improve the reliability of the NYC-area grid. They maintain that the system would enable the management of voltage and power separately, providing what is known as “reactive” power to address demand fluctuations.  Whether that actually works on the system as installed is uncertain, but this may be DOE’s major inducement.  The one thing DOE does add of its own interest in the ‘purpose and need’ discussion is the “congestion” of the NYC-area grid.  Basically: NYC could use more electricity—more supply would presumably cut prices—but getting it there has proven challenging.

The discussion of the “purpose and need” keyed to the applicant’s purposes as opposed to the DOE’s is what unfurls the red (or pink) flag.  Presumably, DOE is balancing the needs of the American people as a whole.  Even as a state-owned utility, the applicant should be concerned with making a profit.  In circumstances like this, there is reason to believe DOE cannot completely ignore the applicant’s purposes.  See, e.g., Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 195-96 (D.C. Cir. 1991); Louisiana Wildlife Federation v. York, 761 F.2d 1044, 1048 (5th Cir. 1985).

But neither can DOE adopt the applicant’s purposes wholesale.  Most Circuits have made that clear.  See, e.g., Simmons v. U.S. Army Corps, 120 F.3d 664, 666-68 (7th Cir. 1997); Colorado Envtl. Coalition v. Dombeck, 185 F.3d 1162, 1174-75 (10th Cir. 1999).  Does an EIS comparing only the no-action to a proposed permit do so?  Under the predictions and estimates CHPE presents to DOE, the question might be better framed like this: if getting Canada’s “clean” power to NYC is a public imperative, why shouldn’t this transmission installation be bigger?  If DOE cannot answer that question without falling back to the applicant’s submissions, it leaves others to wonder whether DOE really know its purposes here.

CHPE has reportedly secured coastal zone and electricity-related permissions from the New York Public Service Commission, New York Department of State and the Federal Energy Regulatory Commission (FERC).

Image: Southern Lake Champlain

I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
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