by Christine Condon from marylandmatters.org
The contentious debate over a 67-mile power transmission line proposed for Central Maryland reached a Baltimore courtroom on Monday, with three hours of arguments on eminent domain.
PSEG, the New Jersey-based power company building the line, sued more than 100 landowners along the proposed route of the Maryland Piedmont Reliability Project, who it said were refusing access to company representatives for environmental surveys.
The company asked U.S. District Adam Abelson to issue an order allowing it to conduct the surveys — including boundary studies, wetland delineations and forest evaluations — where property owners had refused.
It has said that it needs the surveys for its proceeding before the Maryland Public Service Commission, which will determine whether the construction of the line — planned to run through parts of Baltimore, Carroll and Frederick counties — can go forward.
But the property owners, represented by five different attorneys Monday, argue that the company can’t exercise eminent domain rights until it has earned its certificate from the PSC, and that entering properties for surveys constitutes a “taking” under eminent domain law.
Kurt Fischer, an attorney representing PSEG, said that “narrow” interpretation of the law would set the power line up for failure from the start.
“It simply is untenable to try to say that all these conditions have to be satisfied before you can take surveys,” Fischer said.
Fischer said the company has authority for the land surveys because it has secured a “designated entity agreement” with the Federal Energy Regulatory Commission, making it an entity that could conceivably earn the power of eminent domain from the Maryland PSC. Therefore, state law entitles it to complete the survey work.
But the landowners’ attorneys pointed to a provision in state law granting survey access to corporations “having the power of eminent domain.”
“‘Having the power’ means you have it right now,” said David Wyand, an attorney representing dozens of landowners.
He argued that in order to gain access to the properties to survey ahead of the PSC’s decision, the company would need to go to the Maryland General Assembly for a law change.
“They don’t want to go to the legislature for a fix,” Wyand said. “This should be a political solution — not a court solution.”
There could be more lawsuits to come. Fischer said that the 117 landowners named in the suit were “prioritized” because their properties likely host “flora and fauna” that can only be studied at particular times. But other landowners have refused access, and they could also face similar legal action, he said.
At times, Monday’s arguments also reached beyond eminent domain and into the state’s complex energy picture.
Attorneys for the landowners argued that there is wiggle room in a directive from the regional transmission grid, calling for the power line to be in service by June 2027, in part because the grid has reached agreement to keep two Maryland coal-fired power plants running through May 2029, meaning power needs will be met until then.
“The predictions about disaster are not reality,” said Harris Eisenstein, who represents the same set of landowners as Wyand.
Because the deadline can be adjusted, the power company failed to show that it would suffer irreparable harm if it didn’t get the order from the judge. If the project has to be scrapped for reasons outside PSEG’s control, the company can also recoup its costs by appealing to the Federal Energy Regulatory Commission, Eisenstein argued.
“They have an economic safety net,” Eisenstein said.
But PSEG attorneys said reimbursement isn’t a guarantee. FERC can determine that costs weren’t “prudent,” and nix repayment. The agency also only reimburses 50% of any costs incurred by developers before it approves a start theto project, said PSEG attorney Kenneth Thompson.
“There’s a guaranteed loss here,” Thompson said.
The order proposed by PSEG didn’t set many limitations on its access to properties, allowing any access up until the Public Service Commission issues its ruling, so long as the company gives 24 hours notice.
At least one respondent took issue with that proposal Monday. Attorney Jennifer Wazenski was representing the owners of River Valley Ranch, a youth camp and retreat center that hosts “the most vulnerable children” for activities including horseback riding, she said. The owners would take issue with characterizing “any entry by strangers as non-invasive,” Wazenski said.
But PSEG attorney Emily Wilson said the order is “a proposed order for a reason” and told Abelson that the company would be amenable to the court requiring a conference between attorneys to find acceptable times for surveys.
“It is not the company’s intention to have unfettered access to these properties,” Wilson said.
Wilson that the assessments mostly involve surveyors walking around the properties with tablets in hand, taking note of particular features. For the wetlands surveys, surveyors would take soil samples about 4 inches into the ground, before returning the sampled material “immediately.”
The surveys will take “in the space of hours,” Wilson said, rather than “days and days.”
If there were damage associated with the surveys, the landowners could seek relief in court, but Thompson said PSEG would endeavor to remedy the problem so that landowners wouldn’t have to take that step.
“They want a good relationship with these folks. They don’t want to be in a World War III fight,” Thompson said.
Attorneys for the landowners have asked Abelson to dismiss the case altogether. Barring that, he ought to allow three to four months of discovery, followed by an evidentiary hearing in the fall, Eisenstein said.
“That’s what this case deserves,” Eisenstein said. “It’s an important case.”
Discovery would let the landowner’s attorneys take depositions from key personnel at PSEG, they said, to answer “unanswered questions” about the line’s route, and whether PSEG would face an “irreparable harm” if it did not get the surveys completed.
Otherwise, Abelson would be granting a preliminary injunction that would essentially decide the entire case right at the beginning, Eisenstein said.
“The toothpaste is out of the tube,” Eisenstein said. “That’s the end of the case.”
