Dear Abby, Dear Abby
Bet you never thought
Telling your lies, that you'd ever be caught;
There is no PUC deadline for eminent domain
The deadline is yours, and your lie is insane.

Many landowners are in the process of negotiating rights of way, and Transource had to meet the PUC deadline for any easement which might require eminent domain, according to Transource spokeswoman Abby Foster.

"Those names may come off as negotiations happen," she said.

Transource will not proceed with eminent domain proceedings until the project is approved, according to Foster.

Landowners should meet with Transource right-of-way agents so they can understand the process and can negotiate the location of the line, she said. 

"They can still say no at the end of the process," she said. "It's up to the landowners whether to sign the documents."

However, given the construction schedule and in-service date for the proposed lEC-East Project, it is necessary for Transource PA to seek Commission approval to exercise the power of eminent domain in order to ensure that the lEC-East Project is constructed and operational by the in-service date.

Miss Abby, Miss Abby, I have a complaint,
The truth is the truth and truth this just ain't
So, listen up, missy, and listen up good
Stop telling your lies and go back to your 'hood.

Except in response to a question from a landowner, Project Representatives will not represent that a relative, neighbor and/or friend supports or opposes the Project, even if it’s true.

All communications and interactions with property owners and occupants must respect the privacy of property owners and other persons.

The details of the negotiations with property owners and occupants are to remain confidential unless allowed by the landowner. Project Representatives will not discuss these details with other property owners or other persons unaffiliated with PSO or the Project.

Project Representatives will not ask relatives, neighbors and/or friends to influence the property owner.

While PSO has the legal right to use court proceedings to obtain land rights for the Project, the Project Representatives should not threaten to call law enforcement officers, obtain court orders, or threaten the use of eminent domain.

Project Representatives will respect all communications from property owners to them – whether in person, by telephone or in writing – in which the property owner indicates that he or she does not want to negotiate or does not want to give permission for surveying or other work on his or her property. Unless specifically authorized by PSO, Project Representatives will not contact the property owner again regarding negotiations or requests for permission to survey.

When asked to leave a property, Property Representatives will promptly leave and not return unless specifically authorized by PSO.

If threatened, Project Representatives will promptly and politely leave the property.

Project Representatives will not give the property owner any legal advice.

Barnes, one of the administrative law judges, said the commission has an interest to "reduce the impact" on landowners, and she’s “hard pressed” to approve the currently proposed project. 

Not only did she mention that some of the existing transmission lines in Franklin and York counties are “underutilized” and “defunct,” but Barnes also emphasized that the cost of the $320 million market efficiency project is concerning.

During a second prehearing conference before the Pennsylvania Public Utility Commission Monday, July 9, a PPL Electric representative said the company's existing infrastructure could accommodate the goal of moving more power from the northern U.S. to the south.

In response to a question, PPL counsel Amy Hirakis told administrative law judges Elizabeth Barnes and Andrew Calvelli "it's feasible to use existing PPL right-of-way and facilities for the market efficiency project identified by the PJM Interconnection."

Joe Nixon, PPL strategic communications manager, also confirmed "our existing transmission lines in the York County area has the capacity to carry additional circuits." 
"PPL proposed an alternative market efficiency project to address the issue identified by PJM, but ours was not the selected solution," Nixon explained. "PJM awarded the project to Transource. We always look at the least impact to landowners in developing solutions."

Plaintiff is quick to claim that it does not need any court order to enter upon the lands because it has that inherent right pursuant to the Eminent Domain Code. (Plaintiff's Brief in Opposition to Defendants' Preliminary Objections ... p. 7.) Yet, Plaintiff is here in Court seeking just that -- a court order permitting it and its agents entry onto lands of Defendants.

...claiming an immediate need to access Defendants' property for the purpose of obtain[ing] critical information, including various environmental studies, (including, wetland delineations, habitat assessments, and threatened or endangered species surveys), appraisals, geotechnical surveys (including soundings and drillings for testing soil and bedrock, cultural resources surveys, civil surveys (including trimming or cutting vegetation necessary for survey purposes) and all other surveys and tests necessary to properly assess the area, design and construct the proposed electric transmission line ...
(Plaintiff's Motion,~ 22).

From this description, the nature of the proposed intrusion onto Defendants' land appears to be quite extensive, quite possibly resulting in damage to the land. In fact, Defendants acknowledge the possibility of damage by noting in its Motion that it stands ready to pay damages should such occur.

disrupt Defendants' peaceful possession and enjoyment of their lands with "soundings and drillings ... [and] trimming or cutting vegetation ... " possibly resulting damages, on the off chance that the power line may, in fact, run over a portion of those lands, with one exception.

We fully realize that the final route may not be able to be approved absent the studies Plaintiff seeks to undertake. However something more than Plaintiff's mere assertions as to whose lands might be affected is required to satisfy us that Plaintiff is not on the proverbial "fishing expedition." We are mindful of Plaintiff's argument that preventing discovery at this stage of the proceedings makes it difficult for it to obtain final route approval. However, our concern is not with what Plaintiff must do to satisfy the PUC, our concern within the context of this litigation in general, and regarding Plaintiff's discovery request in particular, is to ensure that a party does not suffer from "unreasonable annoyance, embarrassment, oppression, [or] burden" during the discovery process.

PSO will suffer irreparable harm, damage, and injury unless the acts and conduct of Defendants above complained of are enjoined because further work and construction of the
transmission line cannot continue unless the location and description of the right-of-way easement across the Property owned by the Defendants can be determined.

AEP also did not want to discuss specific eminent domain cases. However, AEP spokesperson Melissa McHenry specified that as of this past spring, the company had more than 3,200 easements on projects, including more than 903 miles of transmission line. Out of the 3,200 easements, only 41, or 1.28%, required eminent domain filings, she said. In some of those cases, eminent domain was necessary “because the land was without clear title, and, therefore, condemnation by publication was necessary,” she said.

According to McHenry, when AEP constructs or upgrades a transmission line that requires the use of a landowner’s property, easement negotiations begin with property owners after state regulators have approved the project. The negotiations are based on the fair market value of the property needed for the ROW, she said. Appraisals and market data studies are conducted to determine market values and a basis for acquisition negotiations. Negotiations will continue “as long as practical” to reach a voluntary agreement.

If it becomes clear that a voluntary agreement between AEP and the property owner cannot be reached and other viable alternatives do not exist, the company will then exercise the right to eminent domain to secure required easements.

...the new results are a clear sign that Americans support cleaner, renewable power and that it has carried over to the distribution of that power through their own backyard.

High-voltage transmission lines generate some of the most adamant NIMBY (Not In My Back Yard) opposition in the country. That such a large percentage of people are willing to allow green lines in their community says a lot about the awareness and importance of renewable energy and climate change issues in addition to the education efforts undertaken by the renewable energy industry.

Polling indicates the public’s feelings about a number of various topics on any given day. But it can also be misleading if viewed out of context — especially when it comes to land use issues.

How is it, for example, that most Americans support wind energy in general, but emotive opponents can block transmission lines delivery wind energy or wind farms in some local communities?

So, the jury’s in, right? Everyone loves renewable energy projects. But wait.

But the emotional opposition appears to fly in the face of surveys and polls showing national support for clean energy generation and transmission. What’s going on? Do these polls and surveys lack credibility? No. In fact, they are spot-on in terms of reflecting how Americans feel about renewable generation and distribution projects and how they may positively impact our communities given the perceived global threats of climate change, greenhouse gases and negative impact to wildlife over time. Today, based on a solid campaign by climate change advocates, the renewable energy industry, the current Obama administration and constant media pounding, the threat to our economy and the environment posed by carbon-emitting generation sources is very real and frankly easy to grasp. The arguments have been made and, let’s face it, many Americans are buying in.

But it’s easy to support a wind energy project without a real wind turbine or transmission line literally staring you in the face. That’s where rational thinking ends and passionate “defense of the community” (or defense of the children for that matter) campaigns begin.

...shop for a home in a community of interest and share the rumor of a new 765 kV transmission line going across the property down the road, in front of the view of the mountain range. What’s the survey say then? Chances are you may not find majority support, even from residents who responded in the poll you fielded yesterday.

Perhaps at best, polling identifies the size of the silent majority you have on your side when they are under no local threat of changing their daily lives. Winning hearts and minds in a poll won’t necessarily win you a permit at town hall.

Renewable energy is great in our public opinion, just not when it gets in the way of our personal point of view.

Grant authority to obtain rights-of­ way for electricity transmission lines with the goal of creating a reliable na­tional transmission grid. Similar au­thority already exists for natural gas pipelines and highways.

And both that morning equally lay
In leaves no step had trodden black.
Oh, I kept the first for another day!
Yet knowing how way leads on to way,
I doubted if I should ever come back.

I shall be telling this with a sigh
Somewhere ages and ages hence:
Two roads diverged in a wood, and I--
I took the one less traveled by,
And that has made all the difference.

The order of the Commission is hereby reversed and remanded where it granted a
nonpublic utility company the authority to construct and manage an electrical transmission line project under the Act's expedited review process without the requisite
finding that the applicant was a public utility.

Pursuant to section 8-406.1, the section utilized by GBX in the instant case, "[a]
public utility may apply for a certificate of public convenience and necessity pursuant to
this Section for the construction of any new high voltage electric service line and related
facilities (Project)."

Section 3-105 of the Act defines a "public utility" as follows:
"[E]very corporation, company, limited liability company, association, joint stock company or association, firm, partnership or individual, their lessees, trustees, or receivers appointed by any court whatsoever that owns, controls, operates or manages, within this State, directly or indirectly, for public use, any plant,
equipment or property used or to be used for or in connection with, or owns or controls any franchise, license, permit or right to engage in ***

We note, however, that the definition of "public utility" was recently clarified by the Illinois Supreme Court in Illinois Landowners Alliance, NFP v. Illinois Commerce Comm'n, 2017 IL 121302. In Illinois Landowners Alliance, NFP, our supreme court determined that when the Commission grants a company a certificate of public convenience and necessity under section 8-406 of the Act, the "central question remains: Does it even qualify as a public utility under Illinois law so as to be eligible for such a certificate under section 8-406 of the Public Utilities Act?"

Our supreme court determined that Rock Island, a new entrant, was required to present ownership of utility infrastructure assets to qualify as a public utility, as defined in section 3-105, in order to obtain a certificate of public convenience and necessity under section 8-406 of the Act. Id. ¶ 48. In order to qualify as a public utility, our supreme court concluded that "the company must also own, control, operate , or manage, within this State, directly or indirectly, a plant, equipment, or property used or to be used for or in connection with (or must own or control any franchise, license, permit, or right to engage in) the production, transmission, sale, etc. of one of the specified commodities or services." Id. ¶ 39. The supreme court noted that the statute is phrased in the present tense because it requires that a company must own, control, operate, or manage, within the state, a plant, equipment, property, franchise, etc. at the time it seeks certification by the Commission.

The supreme court reasoned that when the General Assembly repealed the prior language in section 3-105 of the Act, which defined a public utility as "every corporation *** that now or hereafter *** may own, control, operate or manage" specific plants, equipment, or property (Ill. Rev. Stat. 1965, ch. 1112/3, ¶ 10.3), it intended, as the court
must presume, to speak only to ownership in the present tense when it eliminated the words "that now or hereafter *** may." Id. ¶ 42. As a result, the court determined that courts must read the statute as "evincing an intention by the legislature to limit the definition of 'public utility' to situations where the subject entity meets the ownership test
at the present time."

Here, GBX similarly fails to establish that it was a public utility at the time it filed its application with the Commission. It is undisputed that GBX does not presently, or at
the time it filed its disputed application with the Commission, own, control, manage, or operate any plant, equipment, or property in Illinois used or to be used for or in connection with the production, transmission, sale, etc. of one of the specified commodities or services. Accordingly, GBX did not meet the definition of a "public utility" under section 3-105 of the Act at the time it filed its application with the
Commission.

...we are not persuaded that the legislature intended for the expedited review process to be an available avenue for nonpublic utility entities. The Commission's conclusion that any nonpublic utility may apply to be a public utility under section 8-406.1 ignores the express language set out in section 8-406.1(a). Significantly, section 8-406.1 of the Act clearly and unambiguously reads that "[a] public utility may apply for a certificate of public convenience and necessity pursuant to this Section ***."  As such, our interpretation of section 8-406.1 requires that the applicant must meet the definition of a public utility. In order to obtain status as a public utility, the applicant must meet the ownership test at the time of application, the same prerequisite in section 8-406, and the Commission must make this finding before issuance of a certificate. Here, GBX holds an option to purchase property that would serve as the site to place equipment for the proposed project. "[H]aving an option to buy something is not the same as owning or even controlling it," and an option agreement "does not involve the transfer or [sic] property or an interest therein." Illinois Landowners Alliance, NFP

The supreme court noted, however, that the Act does not prohibit new entrants from commencing development as a purely private project before applying to become a public utility in Illinois:
"Once their projects are further underway and they have obtained the ownership, management, or control of utility-related property or equipment required to qualify as public utilities, they may then seek certification to operate as public utilities if they wish to conduct their business in a way that would make them subject to the Public Utilities Act's regulatory framework."

As a result, the Commission must find that an entity is a public utility at the time of application in order to utilize the expedited review process in section 8-406.1 of the Act.
Unable to meet the requisite ownership test, GBX is not a public utility under section 3-105 of the Act, but rather an entity with a purely private project that does not require the
Commission's authority to proceed.

The Republican Party’s current infrastructure spending bill is missing one item: a provision establishing federal siting authority for electric transmission lines. Oddly, this idea has few champions in Congress and only tepid support from environmental groups.

Problematically, the best locations for wind and solar power plants are far from population centers—in the windy central plains or the sunny southwestern deserts.

More than ever, consumers want green power.

Conservatives claim that federal transmission siting authority would threaten state sovereignty or landowner property rights, but those claims ring hollow. Why are those values worth protecting against transmission lines but not against natural gas pipelines?

Defendants will suffer no damage as a consequence of granting immediate possession, because any damage to the land will be remedied by the payment of money, per the statute.

Transource appreciates that many landowners have granted them access to conduct surveys, Foster said. 
​
"Transource and its representatives are committed to treating landowners and their properties with respect," Foster said. "While reaching a voluntary agreement with property owners is a high priority, it is imperative for Transource to continue through the phases of the project as the company seeks regulatory approvals. The approval of this filing will allow Transource to proceed with field work for those landowners who have not yet granted the company access.”

Transource PA will not be able to begin construction in time to allow the Project to be completed to meet the in-service date set by PJM.  If Transource PA misses the PJM-mandated in-service date, the public will suffer irreparable harm in the form of continued electric gridlock, and delay or ultimate failure  of the project.  Furthermore, Transource P A will suffer irreparable harm as Transource Energy has invested considerable time and money in attempting to obtain access rights to the route.

In fact, Transource PA has invested more than $6.0 million to date in siting, design and engineering. The foregoing harms would also result if Transource PA's access is obstructed by Landowners, or other unauthorized and untrained third parties who are present on the Property in the vicinity of the work corridor at the invitation of Landowners

Accordingly, this Court may issue an Order, granting this petition and authorizing Transource MD to enter onto the Subject Property to conduct surveys, and obtain information in connection with the acquisition and project, without the need for a hearing prior to the issuance of the Order.