Kansas organizations lobby to restrain use of eminent domain on solar, wind projects

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Sierra Club seeks balance of property rights, renewable energy quest

TOPEKA — Renewable energy pessimist Virginia Crossland-Macha urged a special legislative committee to build support for changing Kansas law to tip the scale in favor of property owners opposed to development of wind and solar generation projects and electricity transmission lines.

Crossland-Macha, who leads Stand For The Land Kansas, focused much of her ire on NextEra Energy and NextEra Energy Transmission, which in May received a siting permit from the Kansas Corporation Commission to establish an 83-mile, 345-kilovolt transmission line in eastern Kansas. She joined prominent organizations, including Kansas Farm Bureau and Kansas Livestock Association, to advocate for refinement of eminent domain law related to utility developers.

“Farmers are struggling to keep the farm going as the green utilities expand their footprint across Kansas using eminent domain as a weapon,” she said. “Freedom in Kansas is in peril. Kansas families are frightened as they see their individual rights being questioned. Taking property away by eminent domain has people worried.”

Crossland-Macha, a former Kansas Republican Party officer, was founder of Kansas Senior Consumer Alliance, a 2014 group that campaigned against applying renwable energy standards to Kansas utilities.

The NextEra transmission line would cut across Coffey, Anderson, Allen, Bourbon and Crawford counties and connect Wolf Creek nuclear power plant in Kansas to a Blackberry substation in Missouri for delivery of electricity to consumers. The KCC granted NextEra, which champions the idea of decarbonizing the U.S. energy system, status as a transmission public utility as it worked to build and operate the $85 million line.

Matt Pawlowski, vice president of NextEra Energy Transmission, said integration of new electric generation and transmission systems was a core challenge in U.S. energy development.

“Without a proper generation interconnection process,” Pawlowski said, “new generation cannot interconnect to the grid and will not be able to provide low cost and reliable power to its customers.”

The Legislature’s committee on energy and utilities convened last week for two days of discussion in preparation for start of the 2024 session in January. In addition to industry and regulatory witnesses, the committee considered eminent domain in context of transmission lines through the lens of the Kansas chapter of the Sierra Club, the Nature Conservancy of Kansas, KFB, KLA and Crossland-Macha.

The complexity of setting boundaries for public utilities, private companies and government entities was demonstrated by the frequency “eminent domain” appeared in state statute. The words show up in 212 places.

 Kansas Sierra Club lobbyist Zack Pistora recommended the Kansas Legislature balance the need for restraining use of eminent domain for energy development projects with the necessity of speeding construction of a renewable energy generation and power transmission system. (Tim Carpenter/Kansas Reflector)

Other perspectives

Zack Pistora, lobbyist with the Sierra Club in Kansas, said the nonpartisan, nonprofit organization supported large-scale transmission infrastructure and responsibly sited renewable power plants. The organization also opposed projects in which the environment was unnecessarily destroyed or developers took advantage of communities, he said.

“It is our view that transmission can be done in a way that benefits all customers, public health, the environment and the Kansas economy,” he said.

Pistora, who said eminent domain should be a tool of last resort, said Kansas had to upgrade electricity transmission to make better use of low-cost energy sources. He said the U.S. energy production was diversifying rapidly to meet policy requirements, consumer demand and to maintain reliability.

Visual impacts alone were rarely sufficient reason for the Sierra Club to oppose transmission needed to carry renewable energy to markets, he said.

He said decisions about transmission investments in Kansas required open public dialogue and community planning.

“Public engagement and transparent, long term planning are important to win trust and credibility on major energy projects,” Pistora said. “Environmental justice must be considered and impacts on local diverse communities’ social, economic and other realms must be understood and mitigated to ensure fair treatment. Local communities should be part of the discussion so that local benefits and impacts can be understood by all.”

Ben Postlethwait, state director of The Nature Conservancy, said there were tools available to guide states when siting energy facilities.

Postlethwait, who previous worked for Evergy, said a mapping system introduced in 2015 in Kansas and now used in 19 states highlighed areas of high impact, such as migratory corridors, water assets and sensitive ecosystems. The analytical tool revealed low-impact areas more suitable to energy development. In Kansas, he said, there 9.7 million acres of land suitable for renewable projects.

“There’s plent of good area to site renewable assets,” he said. “From using the tool in my old work with the energy industry, it was nice to have a tool that would tell you where to go — not just where you can’t.”

 Jackie Garagiola, associate general counsel at the Kansas Livestock Association, said lawmakers should forbid the undermining of property rights through use of eminent domain for benefit of private energy companies unless development provided direct public benefit to Kansas ratepayers. (Tim Carpenter/Kansas Reflector)

And, the final word

Claudia Hissong, state policy director for Kansas Farm Bureau, said the organization opposed use of eminent domain for acquisition of land rights for solar, wind and hydrogen projects and facilities. Eminent domain shouldn’t be available to transmission lines unless projects provided substantial energy or economic benefits in Kansas, she said.

Hissong said farmers and ranchers recognized importance of eminent domain for public purposes. Without eminent domain authority, she said, it wouldn’t be possible to develop a network of roads and utilities.

“It should not be lost on policymakers that the eminent domain power ultimately gives the government the power to take one person’s property and give it to another entity for a public purpose,” she said.

She said KFB would welcome a state law requiring payment of reasonable legal fees to people who owned property to be condemned. This could balance negotiations with developers tempted to offer less than fair market value to landowners unable to hire an attorney to work on negotiations, she said.

Hissong said an idea working through KFB’s policy process would mandate owners of property taken through eminent domain be compensated at a rate greater than fair market value.

Kansas Livestock Association called for repeal of any Kansas law allowing a private company to deploy eminent domain as a means to gain access to private property to boost profit margins. However, KLA said companies or cooperatives providing energy resources to Kansas ratepayers should be exempt.

“While building a for-profit interstate transmission line is a legitimate business, if such a project does not provide a public benefit to Kansas ratepayers, this business’ interests should not be allowed to trump the property rights of Kansans,” said Jackie Garagiola, associate general counsel at KLA.

She said landowners frequently complained about the short distance between homes and transmission lines. The Legislature should establish setback requirements from habitable structures and livestock facilities, she said.

“As our members can attest, these structures are a significant impediment to the use and enjoyment of their private property,” Garagiola said.

Kansas Reflector is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Kansas Reflector maintains editorial independence. Contact Editor Sherman Smith for questions: info@kansasreflector.com. Follow Kansas Reflector on Facebook and Twitter.

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