Condemning Open Space: Making Way for National Interest Electric Transmission Corridors (or Not)

30 Pages Posted: 24 May 2008  

Nancy A. McLaughlin

University of Utah S.J. Quinney College of Law

Abstract

The Energy Policy Act of 2005 authorizes the Secretary of Energy to "designate any geographic area experiencing electric energy transmission capacity constraints or congestion that adversely affects consumers as a national interest electric transmission corridor." In 2007, the Secretary formally designated the Southwest Area National Corridor (which includes counties in California and Arizona) and the Mid-Atlantic Area National Corridor (which includes counties in Ohio, West Virginia, Pennsylvania, New York, Maryland, and Virginia, as well as all of New Jersey, Delaware, and the District of Columbia). Once the Secretary designates a National Corridor, the Federal Energy Regulatory Commission can issue permits to public utilities authorizing them to exercise the power of eminent domain to acquire rights-of-way to construct electric transmission facilities in the corridor. Questions have been raised in Virginia regarding the extent to which public utilities can exercise this power of eminent domain to condemn land encumbered by conservation easements. Some worry that land encumbered by conservation easements, which by definition is largely undeveloped, will be a natural target for condemnation because of the political difficulties associated with locating steel towers supporting high voltage transmission lines in populated areas. Others believe that encumbering land with a conservation easement can insulate the land from condemnation. This article discusses the extent to which public utilities may or may not have the right under either federal or Virginia law to condemn conservation easements.

Keywords: conservation easement, condemnation, eminent domain, Energy Policy Act, National Interest Electric Transmission Corridor, Virginia Open Space Land Act, electric transmission facilities

JEL Classification: K11, K32, Q15, Q24

Suggested Citation

McLaughlin, Nancy A., Condemning Open Space: Making Way for National Interest Electric Transmission Corridors (or Not). Virginia Environmental Law Journal, Vol. 26, p. 399, 2008. Available at SSRN: https://ssrn.com/abstract=1136982

Nancy A. McLaughlin (Contact Author)

University of Utah S.J. Quinney College of Law ( email )

332 South 1400 East, Rm 101
Salt Lake City, UT 84112-0730
United States
801-581-5944 (Phone)
801-581-6897 (Fax)

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