# 558  

July 2007




The Energy Bill That Isn't:  Rep. Nick Rahall's Energy Policy Reform and Revitalization Act of 2007


by Peyton Knight

 

It is no secret that congressmen frequently take liberties when assigning their bills attractive names that are not representative of the contents within.  The "Energy Policy Reform and Revitalization Act of 2007" (H.R. 2377), sponsored by Rep. Nick Rahall (D-WV), is such an example of fraudulent advertising.  Though the name implies it is designed to help meet America's growing energy needs, in reality, the bill is little more than an environmentalist wish list.  One provision in the bill would obstruct the delivery of energy to areas of the country in most dire need of energy transmission upgrades by banning vast amounts of land from consideration for federally designated energy corridors.  Another provision would lock up more federal, state and private land for the purpose of helping wildlife cope with "global warming."

Why Energy Corridors are Needed

The 2005 Energy Policy Act directed the Department of Energy (DOE) to study and identify regions of the country where electricity transmission is congested and constrained to the point it is adversely affecting consumers.1  In August 2006, DOE reported that both the Mid-Atlantic and Southwest regions are "critical congestion areas"2 where existing electricity transmission infrastructure is in most need of an upgrade. 

According to DOE, the Mid-Atlantic region's tenuous electricity supply is an especially urgent matter.  Without increased transmission capacity, "reliability violations will occur" in the northern Virginia - Washington, D.C. - Baltimore area by 2011. The same is true for southeastern New York State.  Northern New Jersey and central Pennsylvania would experience similar problems in 2014 and 2019 respectively.3 

According to DOE, "[T]hese types of projections indicate an increasing risk of significant problems - such as involuntary service curtailments and even rolling blackouts."4  As it can take five to 10 years or longer just to clear regulatory hurdles and develop proposals for new transmission facilities,5 time is of the essence.

As DOE warns:

The Mid-Atlantic Critical Congestion Area is home to 55 million people (19 percent of the nation's 2005 population) and is responsible for $2.3 trillion of gross state product (18 percent of the 2005 gross national product). Given the large number of military and other facilities in this area that are extremely important to the national defense and homeland security, as well as the vital importance of this populous area to the nation as an economic center, any deterioration of the electric reliability or economic health of this area would constitute a serious risk to the well-being of the nation.6

The seriousness of the problem prompted DOE to designate two "National Interest Electric Transmission Corridors" in April 2007 for both the Mid-Atlantic region and Southwest region of the country, which is also in need of a critical upgrade.  These National Corridors are geographic, interstate areas where necessary, additional transmission infrastructure could be built to solve the regions' congestion woes.

In practice, National Corridors serve three key purposes.  One:  They identify areas of the country where transmission problems are so urgent, and the affected areas are so vital to the country, that it is in the national interest for utilities and transmission providers to remedy the situation.  Two:  They serve as proposed, broad geographic locations where additional transmission facilities can be constructed, and encourage the identified regions to work together to solve the problem.  And three:  National Corridors clear the way for the Federal Energy Regulatory Commission to permit the construction of a new transmission facility inside the corridor should construction be blocked by a State government.7

As DOE Secretary Samuel Bodman states, these corridors "will help facilitate the infrastructure growth necessary to meet the demands of our growing economy."8  Considering the looming crisis in some regions, they could also help prevent a future disaster.

Rahall Bill Would Obstruct Energy Corridor Designations

The Rahall bill rescinds these proposed electric transmission corridors and seeks to prevent the designation of all future national energy corridors, including those designed to improve delivery of gas and oil, by banning any area within one mile of land that has been designated by federal or state government for "protection of scenic, natural, cultural, or historic resources"9 from consideration in a proposed corridor.  According to Rahall's Natural Resources Committee office, this is meant to protect "special places" that "should not have pipelines running through or wires strung over."10

In practice, it would be difficult to thread a needle without touching any of these banned areas, let alone an electricity transmission or gas line.  This sweeping ban would include every unit of the National Park Service, which comprise more than 83 million acres,11 as well as all 25 million acres in the Bureau of Land Management's National Landscape Conservation System,12 and all land within one mile of these lands.  Add to this myriad other federal and state designated "scenic, natural, cultural, or historic" areas and it becomes virtually impossible to designate an energy corridor anywhere.

As if this was not enough, the Rahall bill would also ban any land considered a "sensitive ecological area, including any area that is designated as critical habitat under the Endangered Species Act of 1973 or otherwise identified as sensitive or crucial habitat, including seasonal habitat, by the United States Fish and Wildlife Service, by a State agency responsible for managing wildlife or wildlife habitat, or in a Federal or State land use plan"13 from consideration in a proposed energy corridor.

The need to upgrade America's energy infrastructure cannot be ignored.  According to the Energy Information Administration's (EIA) 2007 "Annual Energy Outlook," electricity consumption is projected to increase 41 percent from 2005 levels by the year 2030.14  EIA also reports that "all electricity demand regions are expected to need additional, currently unplanned, capacity by 2030."15

While addressing our nation's energy needs is given a backseat in the "Energy Policy Reform and Revitalization Act," another provision in the bill indicates the environmental lobby is driving the bus.

Rahall Bill Would Create Wildlife Corridors

A separate provision in the Rahall bill would establish a "national strategy for assisting wildlife populations and their habitats in adapting to the impacts of global warming."16  Specifically, this would require the identification of all "species likely to be adversely affected by global warming" and require that these species' habitat or "potential habitat" be protected, acquired or restored to help them "build resilience to global warming."  In addition, "habitat linkages" would be created to "facilitate the ability of wildlife to move within a landscape in response to the effects of global warming."17  

A more reckless policy is difficult to imagine.  This is a virtual blank check for the federal government to arbitrarily acquire private property and restrict property rights.  A good indicator of the severe regulatory burden likely to result from such a broad species protection policy is the current burden associated with the Endangered Species Act (ESA).

Government often takes restrictive measures against property owners when implementing the ESA.  As Jonathan Adler, director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law, writes:

Under the ESA, individual Americans have been prevented from building homes, plowing fields, cutting trees, clearing brush and repairing fences--all on private land. The federal government has even barred private landowners from clearing firebreaks to protect their homes from fire hazards.18

In fact, the Rahall bill's species protection provision has the potential to be even worse than the ESA.  The scientific data used to justify protecting a species under the ESA has oftentimes been lacking19 and the cause of controversy.20  For instance, the Preble's Meadow Jumping Mouse continues to receive protection under the ESA despite a 2005 U.S. Interior department proposal to remove the mouse from the list in light of evidence that the Preble's Mouse is not taxonomically distinguishable from another, more common species of mouse.21  As a result, 31,000 acres in Colorado and Wyoming remain subject to ESA restrictions22 that have prevented property owners from using their land.23 

The science surrounding the hypothetical threat that "global warming" poses to a species is likely to be even less certain and more controversial considering global warming theory itself is hypothetical.  Regulators need only claim that a species is "likely to be adversely affected by global warming" to justify acquiring property or property rights to protect that species, even if the species is abundant and thriving. 

Public access to federal lands would also be jeopardized by a provision in the Rahall bill that mandates "climate change adaptation strategies for wildlife and its habitat" be incorporated into the management plans of all federal lands administered by the Department of Interior and the Forest Service.24  For example, under the ESA, all federal agencies, including the National Park Service, are required to avoid any actions that might disturb endangered species' habitat.25  Last year, public access to a portion of Channel Islands National Park was temporarily closed to accommodate a breeding population of ESA-protected pelicans.26  Similar restrictions on public land could occur under the Rahall bill under the pretense of protecting species and habitat for "climate change adaptation."

Considering all of this, it is not surprising the Rahall "energy bill" is receiving high praise from groups such as Defenders of Wildlife27 and the Natural Resources Defense Council, the latter of which approves of 95 percent of the bill's contents.28  Both groups have consistently promoted rigid enforcement of the ESA and have opposed reform efforts designed to help alleviate the ESA's burden on landowners. 

The "wildlife and global warming" provision in the Rahall bill would also be a formidable weapon in environmentalists' already extensive legal arsenal.  Environmental organizations have demonstrated an enthusiasm for filing lawsuits under federal species protection laws that have resulted in stymied public works projects and have even restricted military training operations.  For example, a coalition of environmental groups sued government to restrict the amount of dammed water flowing into the Missouri River, ostensibly to protect endangered birds and fish, causing economic hardship in the region.29  The Natural Resources Defense Council has sued under the ESA to protect species' habitat at the expense of military training operations at Camp Pendleton and Miramar Marine bases in California.30

Conclusion

Despite its name, the Energy Policy Reform and Revitalization Act would obstruct vital energy infrastructure improvements needed to address America's rapidly growing energy needs.  It would also spawn the creation of an expansive new wildlife and species protection program, predicated on the hypothetical threat of global warming, which would result in increased federal land acquisition and infringements upon property rights. 


# # #

Peyton Knight is director of environmental and regulatory affairs for the National Center for Public Policy Research.


Webmaster note: An earlier version of this paper was inadvertently posted online at this url.  It has been removed.  This is the correct version.



Footnotes:

1 Energy Policy Act of 2005, Sec. 1221(a)(2), available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_public_laws&docid=f:publ058.109 as of July 3, 2007.

2 U.S. Department of Energy, "National Electric Transmission Congestion Study," Executive Summary, August, 2006, page 4, available for download at http://nietc.anl.gov/congestionstudy/index.cfm as of July 3, 2007.

3 U.S. Department of Energy, "Draft National Corridor Designations:  Key Findings and Conclusions," April 26, 2007, page 3, available at http://nietc.anl.gov/documents/docs/FindingsAndConclusions.pdf as of July 3, 2007.

4 U.S. Department of Energy, "Remarks as Prepared for Energy Secretary Samuel Bodman - First Annual GridWeek Conference," April 26, 2007, available for download at http://nietc.anl.gov/documents/index.cfm as of July 3, 2007.

5 U.S. Department of Energy, "Draft National Corridor Designations:  Key Findings and Conclusions," April 26, 2007, page 2, available at http://nietc.anl.gov/documents/docs/FindingsAndConclusions.pdf as of July 3, 2007.

6 Ibid, pp. 3-4.

7 U.S. Department of Energy, "Frequently Asked Questions," Office of Electricity Delivery and Energy Reliability, available at http://nietc.anl.gov/faq/index.cfm as of July 3, 2007.

8 U.S. Department of Energy, "DOE Issues Two Draft National Interest Electric Transmission Corridor Designations," Press Release, April 26, 2007, available at http://www.energy.gov/news/4997.htm as of July 3, 2007.

9 U.S. Rep. Nick Rahall (D-WV), "Amendment in the Nature of a Substitute to H.R. 2377," Sec. 103(b)(2)(B)(i), page 6.

10 Committee on Natural Resources, "Committee Strikes Responsible Balance on Energy Reform and Revitalization Legislation," June 13, 2007, available at http://resourcescommittee.house.gov/News/PRArticle.aspx?NewsID=102 as of July 3, 2007.

11 National Parks Conservation Association, "About National Parks," available at http://www.npca.org/explore_the_parks/park_system/ as of July 3, 2007.

12 U.S. Bureau of Land Management, "National Landscape Conservation System," available at http://www.blm.gov/wo/st/en/prog/blm_special_areas.1.html as of July 3, 2007.

13 U.S. Rep. Nick Rahall (D-WV), "Amendment in the Nature of a Substitute to H.R. 2377," Sec. 103(b)(2)(B)(ii), pp 6-7.

14 Energy Information Administration, "Annual Energy Outlook 2007 with Projections to 2030," Report #: DOE/EIA-0383(2007), February, 2007, available at http://www.eia.doe.gov/oiaf/aeo/electricity.html as of July 3, 2007.

15 Ibid.

16 U.S. Rep. Nick Rahall (D-WV), "Amendment in the Nature of a Substitute to H.R. 2377," Sec. 454(a)(1), page 80.

17 Ibid, Sec. 453(2), page 79.

18 Alexander F. Annett, "Reforming the Endangered Species Act to Protect Species and Property Rights," The Heritage Foundation, Backgrounder #1234, November 13, 1998, available at http://www.heritage.org/Research/EnergyandEnvironment/BG1234.cfm as of July 3, 2007.

19 Ibid.

20 Sen. Craig Thomas, Sen. Mike Enzi, Rep. Barbara Cubin, "Wyoming Delegation Applauds Decision to Begin De-listing of Preble's Mouse," Wyoming Delegation, Press Release, March 24, 2004, available at http://www.senate.gov/~enzi/preble3.htm as of July 3, 2007.

21 Jared Miller, "State Sues to Delist Mouse," Casper Star-Tribune, February 1, 2007, available at http://casperstartribune.net/articles/2007/02/01/news/wyoming/2a34708d3664a2fa87257273000226c6.txt as of July 3, 2007.

22 Ibid.

23 The National Center for Public Policy Research, "Possibly Non-Existent Mouse Shatters Family's Dreams," Shattered Dreams: One Hundred Stories of Government Abuse, Fifth Edition, Copyright 2007, page 44, available at http://www.nationalcenter.org/ShatteredDreams.html as of July 3, 2007.

24 U.S. Rep. Nick Rahall (D-WV), "Amendment in the Nature of a Substitute to H.R. 2377," Sec. 454(b)(1)(G), pp. 81-82.

25 U.S. Fish and Wildlife Service, "Endangered Species and the National Park Service," Endangered Species Bulletin, Vol. XXVII, No. 1, January/February, 2002, page 4,  available for download at http://www.nature.nps.gov/biology/endangeredspecies/ as of July 3, 2007.

26 National Park Service, "Santa Barbara Island Closed to Protect Pelicans," February 14, 2006, available at http://www.nps.gov/chis/parknews/santa-barbara-island-closed-to-protect-pelicans.htm as of July 3, 2007.

27 Defenders of Wildlife, "Defenders Applauds Committee Support of Chairman Rahall's Energy and Global Warming Bill," June 13, 2007, available at http://www.defenders.org/releases/pr2007/pr061307.html as of July 3, 2007.

28 Ian Talley, "US Chamber Joins Growing Clamor Against Rahall Energy Bill," Dow Jones Newswire, June 5, 2007, available at http://www.streetinsider.com/Basic+Content/US+Chamber+Joins+Growing+Clamor+Against+Rahall+Energy+Bill/2422270.html as of July 3, 2007.

29 Center for Environmental and Regulatory Affairs, "Missouri River Plan Hurts Local Residents, Environment," Shattered Dreams: One Hundred Stories of Government Abuse, Fifth Edition, The National Center for Public Policy Research, Copyright 2007, page 42, available for download at http://www.nationalcenter.org/ShatteredDreams.html as of July 3, 2007.

30 Sandra I. Erwin, "Pentagon Lobbies for Environmental Legal Relief," National Defense magazine, April, 2003, available at http://www.nationaldefensemagazine.org/issues/2003/apr/Pentagon_Lobbies.htm as of July 3, 2007.



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