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Cross-Sound Blues

Legal challenges continue for the undersea transmission line.

Fortnightly Magazine - February 2004

29, 2003, the CDEP and Gov. Rowland asked the DOE for a "rehearing or stay" of its current emergency order.

The DOE agreed in early September to rehear the matter "for the limited purpose of further consideration." Despite the DOE's offer to reconsider, on Sept. 22 the Connecticut attorney general and the CDEP filed a petition in the U.S. Court of Appeals for the Second Circuit for review of the emergency order, arguing that no emergency exists and that the DOE therefore abused its discretion in issuing the Aug. 28 emergency order. The petition also asserts that the DOE deprived the state of its rights, violating the 10th Amendment of the U.S. Constitution. The Connecticut attorney general and the CDEP have requested that the DOE stay enforcement of its order pending court resolution of the Second Circuit appeal. The DOE has not acted upon that request, and the appeal remains pending.

Legislative Limbo

In late fall 2003, Congress tried to reach agreement on a comprehensive energy bill. The entire discussion of the Cross-Sound cable was contained in one sentence: "Department of Energy Order No. 202-03-2, issued by the Secretary of Energy on Aug. 28, 2003, shall remain in effect unless rescinded by Federal statute." Just before the Thanksgiving recess, efforts to reach agreement stalled for reasons unrelated to the Cross-Sound project, and the bill was tabled until 2004.

At press time, prospects for enactment of energy legislation in 2004, and its possible effect on the project, remained unclear. Meanwhile, the Cross-Sound cable continues transmitting power under the DOE's emergency order, and the legal and political battles continue raging as proponents and opponents wrangle over the facility's ultimate fate.

The circuitous post-installation path to operation of the Cross-Sound cable has included political, legislative, and executive agency consideration on both the federal and state level. The challenges to transmission line infrastructure no longer follow a relatively predictable, linear path of participation in permitting proceedings and appeals from the granting of permits. Instead, the current reality is that political and legislative actions can be more effective in stopping specific projects than challenging the projects' permits on their merits. To counter these actions, the likely responses may aim for legislative or executive results.

The courts could become arbiters of whether legislative or executive agency actions have exceeded their authority, rather than whether an agency has properly applied existing statutory siting and environmental standards. The battle may have changed from substantive issues-does the project provide a public benefit, and is there an environmental effect?-to constitutional issues. If judges allow legislative and executive actions to override siting decisions, the courts could become an attractive forum to stall or block unpopular projects, even if those projects meet the applicable siting criteria.

This strategy may achieve short-term results, but it undercuts the elements of predictability and consistency that promote the development of infrastructure. If permitting agencies diligently review the facts and apply their long-standing criteria in adjudicating a permit application, their findings should not be superseded by actions outside the permitting process.

A Study in States' Rights

The Cross-Sound cable