Brendan T. Cahill

November 28, 2003

I. INTRODUCTION

In an unlikely setting, Long Island Sound has become the most recent battleground in the fight to preserve the regulatory process designed to protect public interest in the face of big energy industry and their energy-starved allies. 

At the heart of this battle is the highly controversial Cross Sound Cable ("Cable"), a 26-mile, high voltage power cable, which connects New England's Independent System Operator ("ISO") in Connecticut with New York's ISO in Long Island.[1]  Although the Cable has not fully complied with Connecticut permit requirements, it is capable of operation in emergencies.[2] 

On August 14, 2003, a massive blackout affected the Northeast and other parts of the U.S. and Canada.  Despite non-compliance with permit regulations, U.S. Secretary of Energy Spencer Abraham ordered activation of the Cable.[3]  Secretary Abraham, acting pursuant to his Federal Power Act authority, activated the Cable for the purpose of alleviating the congestion of energy and to prevent rolling blackouts as electrical service was eventually restored in New York.[4]  On August 28, 2003, although the Emergency Order was set to expire three days later, the Secretary extended the order indefinitely.  The Secretary found the Executive Order to be "necessary and desirable to address effectively the situation that exists in the Northeast[ern] United States."[5] 

The Long Island Power Authority has "leased the entire capacity of the cable for the next 20 years."[6]  Since this time, New York lawmakers, including U.S. Senators Hillary Rodham Clinton and Charles Schumer have urged Secretary Abraham to use his authority to make the Cross Sound Cable Company's ("Cross Sound") operational authorization permanent.[7]  Connecticut lawmakers, along with the Connecticut Department of Environmental Protection ("DEP"), have vigorously opposed this request for permanent authorization.[8]  Leading this fight is Connecticut's Attorney General Richard Blumenthal.[9] 

At stake in this fight is more than just the siphoning of energy away from Connecticut to Long Island.  A decision by Secretary Abrahams to grant Cross Sound a permanent operational authority, despite its permit violations, would set a devastating precedent in the environmental regulatory process.  Not only would the federal government be overriding the legitimate concerns and interests of a state and its citizens, but such a decision would also constitute an unconstitutional infringement on the state's environmental laws and legal rights under state sovereignty.[10]   

II.                BACKGROUND

Connecticut's passionate resistance to the Cable's full operation resonates from legitimate environmental concerns for the Long Island waters.  One concern, for example, is the fact that over the past year "[t]here were about a dozen utility projects proposed" to cross the Sound, "adding new gas, electricity and communication lines between Connecticut and Long Island."[11]  The rapid development of these cross-sound energy lines may create significant environmental effects, including the emissions of heat and magnetic waves that would harm marine life.  Additionally, the laying of cable on the sea floor has the capability to destroy or significantly damage precious and valuable shellfish beds.

Realizing that Connecticut lacked an appropriate comprehensive plan to properly address these new projects,[12] the Connecticut legislative body acted quickly to devise some solution to control the escalating issue.  In fact, shortly after the Cable project received its last two permits allowing underwater construction to begin, "the Connecticut House and Senate passed legislation imposing a one-year moratorium on the construction of electric power lines or natural gas pipelines across Long Island Sound."[13] 

Under this moratorium, no new transmission lines across the sound could be approved until two task forces assess the "present and future potential (environmental) impacts of meeting the region's energy needs."[14]  The task force must be "composed of state and federal environmental and industry representatives."[15]  Specifically, the two task forces are required to focus on a number of areas of concern, including; (1) "exploring approaches to minimize the number of energy crossings required to meet regional energy needs; and (2) evaluating the environmental impacts . . . of those crossings determined to be necessary," and the measures that can be taken to mitigate them.[16]   

Due to the constitutional concerns "of imposing a moratorium on a project that has already received all of the necessary permits," the moratorium did not include the Cable project.[17]  In May 2002, with no more roadblocks in their way, Cross Sound began the process of burying the Cable across the seafloor with the intent of it becoming operational by June 20, 2002.[18]  The project, however, met an unexpected delay when construction crews laying the Cable encountered solid bedrock in seven segments along the burying path.[19]  Unfortunately, this bedrock has frustrated the efforts of Cross Sound from burying the cable to the minimum 48 feet below mean low tide or 6 feet under the Sound floor, whichever is deeper, as required by permits issued by the Army Corps of Engineers ("Corps") and the DEP.[20]  Further "attempts to bury the line have been thwarted by a permit provision prohibiting underwater installation work between May 31 and October 1 in order to protect fisheries resources during the summer season."[21]  Additionally, "the permits granted [to Cross Sound] only allow burial of the cable using pressurized water jet technology [] which now appears to be insufficient" to place the Cable at the required depth.[22] 

Determined to make the project operational, Cross Sound stressed that the project was merely delayed and they had five years to complete it.[23]  Connecticut officials, however, immediately made it clear that "any failure to meet the minimum requirements in the Cross Sound permits is intolerable and legally unacceptable."[24]  In August 2002, despite these warnings, Cross Sound eagerly notified the DEP that it would begin transmitting power through the cable, but would continue to find ways to bury the cable to the requisite depth.[25]  Connecticut officials, including the DEP, were outraged by this plan labeling it a "blatant" attempt to "circumvent permit conditions established by federal and state agencies."[26]  In response, the state threatened to "do whatever [it has] to do" to prevent the operation of the Cable until it complies with all permits.[27]  Faced with threats of legal action and fines up to $1000/day if it transmitted power across the Cable, Cross Sound backed down from its earlier position and agreed to work with the DEP and the Corps to comply with the permit requirements.[28]

This compromise, however, did not last long.  In early January 2003, Connecticut environmental officials in agreement with the Corps, released a study finding that Long Island Sound would not be harmed if the Cable was energized.[29]  Despite its failure to comply completely with its permits, Cross Sound sought immediate approval to energize the cable, maintaining that the line presents no safety issue or threat to the environment.[30]  Cross Sound further insisted that it should be allowed to energize the Cable because it has "substantially" complied with the conditions of the permits. [31] Furthermore, they are working in good faith toward attaining full compliance with the burial depth conditions.[32] 

According to the DEP and Connecticut lawmakers, however, "substantial" compliance is not the acceptable standard.  Rather, the DEP found "significant procedural concerns" with allowing the cable to be energized before all permit requirements have been satisfied.[33]  As a result, "the DEP refused to consider Cross Sound's request."[34]  The DEP also explained in its opinion that the moratorium in effect prohibits it "from issuing a final decision on any new application for an individual permit or a certification of permission for Cross Sound Cable."[35]

In late January 2003, Cross Sound responded to this decision by filing a lawsuit in the Connecticut Superior Court.  Cross Sound asserted that the DEP has "misconstrued and misapplied state law, violated Cross Sound's statutory and constitutional rights, and improperly and unnecessarily frustrated the policy determinations and permit approvals of numerous state and federal agencies and organization[s]."[36]  On April 9, 2003, the Connecticut Superior Court denied Cross Sound's suit finding that "whether the moratorium applies to Cross Sound's request or not, the DEP's decision to grant or to deny Cross Sound the [authority to operate] is completely discretionary."[37]  Furthermore, the court found that "although Cross Sound placed a cable beneath Long Island Sound, it has not done so in compliance with the burial depth requirement of its permit.  Therefore, it is not qualified or approved to supply customers . . . ."[38] 

In May of 2003, the Connecticut legislature extended the moratorium on new permits for electric transmission projects underneath the Long Island Sound until June 3, 2004.[39]  Lawmakers said the extension will "allow the state to put plans in place to protect the environment while providing energy needs."[40]  As Representative Robert Duff stated, "it shows [our] commitment to Long Island Sound and that [we'll] do everything to protect our environment."[41]

III.             CURRENT SITUATION    

Almost three months after Secretary Abraham declared an Emergency Order activating the Cable, the line still remains activatedódespite no signs of an "emergency."  Although the Cable has not completely complied with its permits, New York lawmakers and industry leaders are urging Secretary Abraham to grant Cross Sound permanent operational authority.[42]

In advocating for its cause, Cross Sound's Chief Executive Officer Jeffery Donahue submitted that, in the wake of the recent blackout, "Cross Sound Cable has demonstrated that it is an extremely valuable addition to the regional transmission grid . . . [and] the importance of an existing line cannot be overestimated."[43]  Additionally, Cross Sound continues to argue that the Cable "offers Connecticut electricity consumers significant benefitsÖand will save consumers huge costs of transmission congestion."[44] 

Long Island Power Authority has been quick to agree, arguing that the Cable "has been improperly prevented from operating" continuously.  This "could mean the difference between service and blackouts on Long Island, Southwestern Connecticut and the entire region."[45]  In support of this assertion, Long Island Power Authority proudly announced on September 4, 2003 that it could ease the congestion of power in southwestern Connecticut by wheeling about 100 megawatts of power "from New England to Long Island and back to southwestern Connecticut through the cable."[46]

However, Connecticut remains steadfast in its position.  In response to these recent arguments, Connecticut's Attorney General's Office released a recent study that shows that the Cable would actually "add $36 million a year to the electric bills of Connecticut consumers if it remains on."[47]  The study found that when the power is turned on "[i]t depletes [Connecticut's] supply, compelling use of less efficient, more expensive plants at higher prices for all [] consumers."[48]  Furthermore, the study found that the depletion in supply "reduce[s] the stability of the state's power supply."[49]

On August 29, 2003, Connecticut's Attorney General Blumenthal and the DEP filed a request for "rehearing or stay" of the Emergency Order.[50]  On September 26, 2003, Secretary Abraham agreed to rehear his Emergency Order "for the limited purpose of further consideration," and invited the submission of "additional comments, information or analysis on the operation of and/or effect" of the Order.[51]  The Secretary, however, denied the request for a stay, finding that the parties have offered "little or no explanation or legal argument why they believe issuance of a stay is appropriate as a matter of fact or law."[52]  Comments for the rehearing were due on October 27, 2003, while comments for the stay are due November 3, 2003.[53]  Meanwhile, the Cable remains activated. 

IV.              CONCLUSION      

Regardless of the benefits that Long Island or Connecticut would receive, Cross Sound is still in violation of the permits issued to it by the State.  While it is true that Federal concerns permissibly trump state rights in a genuine emergency, once the emergency is over, state rights and the legitimate concerns of their citizens must prevail.  Not only is Connecticut legitimately concerned about the conservation and protection of Long Island Sound, but it also legitimately concerned about the integrity of its procedural devices designed to ensure the health and safety of its citizens living both on the Sound and across the state. 

Permit requirements are essential to ensure the health and safety of Connecticut's citizens.  These permits require full compliance.  If Secretary Abraham agrees with New York lawmakers and the Long Island Power Authority, he will severely undermine the authority of the DEP and the interests and concerns of Connecticut's citizens.  This intrusion will devastate state rights.  If Secretary Abraham respects the legitimate concerns of the State of Connecticut, he must order the immediate deactivation of the cable.  In addition, Cross Sound must fully comply with its permit requirements.  Anything short of compliance would be an insult to the citizen's of Connecticut. 

[1] Cross-Sound Cable Project Dealt Back-To-Back Blows By Connecticut's Superior Court and State Legislature, Foster Electric Rep. No. 302, Apr. 16, 2003, available at 2003 WL 11915335.

[2] Secretary Of Energy Spencer Abraham Orders Cross Sound Cable Co. to Energize Its Transmission Line Across Long Island Sound, Foster Electric Rep. No. 2401, Aug. 21, 2002, available at 2002 WL 6859490.

[3] See Press Release, Department of Energy, Department of Energy Issues Emergency Order to Restore Power Federal Response To Thursday's Blackout (Aug. 15, 2003) available at http://energy.gov/engine/content.do?PUBLIC_ID=13992&BT_CODE=PR_PRESSRELEASE (last visited Nov. 7, 2003).

[4] Exec. Order No. 202-03-2, 10 C.F.R. § 205.371 (2003), reprinted in 16 U.S.C. § 824a(c) (2003).

[5] Exec. Order No. 202-03-2, 10 C.F.R. § 205.371 (2003), reprinted in 16 U.S.C. § 824a(c) (2003).

[6] Tom McGinty, Owners of Sound Power Line Sue Conn., Newsday, Jan. 30, 2003, available at 2003 WL 3286854 (last visited Oct. 27, 2003). 

[7] DOE Agrees To Rehear Order Authorizing Operation of Cross-Sound Cable, Foster Electric Rep. No. 325, Oct. 1, 2003, available at 2003 WL 11915566 (last visited Oct. 27, 2003).  

[8] Id.

[9] Cross-Sound Cable Project Hits Additional Snag, Foster Electric Rep. No. 262, June 26, 2002, available at 2002 WL 6859334 (last visited Oct. 27, 2003).  

[10] Press Release, Connecticut Attorney General's Office, Attorney General Seeks Revocation Of Order Allowing Operation Of Cross-Sound Cable (Aug. 18, 2003) available at http://www.cslib.org/attnygenl/press/2003/enviss/abrahamrelease.htm (last visited Oct. 27, 2003). 

[11] Tobin A. Coleman, House Extends Freeze On Sound Cables, Stamford Advocate, May 15, 2003, available at 2003 WL 8614127 (last visited Oct. 23, 2003).

[12] See Tobin A. Coleman, supra note 11. 

[13] Cross-Sound Cable Project Hits Additional Snag, supra note 9. 

[14] Id. 

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] New York Senator Asks Energy Secretary Abraham to Once Again Order Cross Sound to Energize Its Transmission Line Across Long Island Sound, Foster Electric Rep. No. 303, Apr. 23, 2003, available at 2003 WL 11915344 (last visited Oct. 27, 2003).

[21] Cross-Sound Sues the Connecticut DEP After the Regulator Again Refuses to Allow It to Energize Its Underwater Cable, Foster Electric Rep. No. 292, Feb. 5, 2003, available at 2003 WL 11915152 (last visited Oct. 27, 2003).

[22] Id.

[23] Cross-Sound Cable Project Hits Additional Snag, supra note 9. 

[24] Id.  

[25] Operators Aim to Turn on Cross Sound Cable, State Officials Object to Plan, Power Markets Week, July 29, 2002, available at 2002 WL 23835299 (last visited Oct. 27, 2003). 

[26] Id.

[27] Id. 

[28] Cross-Sound Cable Co. Decides to Hold Off Energizing Underwater Transmission Line Between Connecticut and Long Island, Foster Electric Rep. No. 268, Aug. 7, 2002, available at 2002 WL 6859422 (last visited Oct. 27, 2003). 

[29] McGinty, supra note 12. 

[30] Cross-Sound Sues the Connecticut DEP After the Regulator Again Refuses to Allow It to Energize Its Underwater Cable, supra note 21.

[31] McGinty, supra note 12. 

[32] Cross-Sound Sues the Connecticut DEP After the Regulator Again Refuses to Allow It to Energize Its Underwater Cable, supra note 21.

[33] Cross-Sound Cable Project Dealt Back-To-Back Blows by Connecticut's Superior Court and State Legislature, supra note 1.

[34] Id. 

[35] Cross-Sound Sues the Connecticut DEP After The Regulator Again Refuses To Allow It To Energize Its Underwater Cable, supra note 21; See also Cross-Sound Cable Project Dealt Back-To-Back Blows by Connecticut's Superior Court and State Legislature, supra note 1.

[36] Id.

[37] Cross-Sound Cable Project Dealt Back-To-Back Blows By Connecticut's Superior Court and State Legislature, supra note 2. 

[38] Id.  

[39] Connecticut Extends Project Ban, Natural Gas Week, June 2, 2003, available at 2003 WL 64742798.

[40] Coleman, supra note 11 (last visited Oct. 27, 2003).

[41] Id.  

[42] DOE Agrees to Rehear Order Authorizing Operation of Cross-Sound Cable, supra note 7. 

[43] Abraham Says Cross Sound Cable to Remain Operational Until Northeast Emergency Passes, Inside F.E.R.C., Sept. 1, 2003, available at 2003 WL 11145366 (Oct. 27, 2003). 

[44] Connecticut Extends Project Ban, supra note 39. 

[45] Secretary of Energy Spencer Abraham Orders Cross Sound Cable Co. to Energize Its Transmission Line Across Long Island Sound, supra note 2.

[46] Cross Sound Cable Eases Congestion, Natural Gas Week, Sept. 5, 2003, available at 2003 WL 64743220 (Oct. 23, 2003). 

[47] Press Release, Connecticut Attorney General's Office, Attorney General's Report Shows That Operation of Cross-Sound Cable Would Cost Connecticut Consumers $36 Million a Year (Sept. 16, 2003) available at http://www.cslib.org/attnygenl/press/2003/coniss/crosssound36m.htm (last visited Oct. 27, 2003).

[48] Id.

[49] Id.

[50] Press Release, U.S. Dept. of Energy, Department of Energy Issues Order on Cross Sound Cable, (Sept. 26, 2003) available at http://www.energy.gov (last visited Oct. 27, 2003).

[51] Id.

[52] Id.

[53] Id.