United States: DOE Participation In Plains & Eastern Clean Line Could Open Doors For Other Transmission Projects

Last Updated: March 31 2016
Article by Thomas J. Dougherty

On March 25, 2016, the U.S. Department of Energy ("DOE") announced that it will participate in the Plains & Eastern Clean Line transmission project (the "Project") proposed by Clean Line Energy Partners LLC ("Clean Line").  DOE's decision is based on its evaluation of the Project under the authority granted in Section 1222 of the Energy Policy Act of 2005 ("EPAct 2005").  While there are many hurdles that remain to be overcome before the Project becomes a reality, DOE's decision may offer other interstate electric transmission project proponents reason to be optimistic.

Energy Policy Act of 2005, Section 1222

At over 1,000 pages in length, EPAct 2005 represented a comprehensive attempt to address a number of energy challenges facing the nation.  From tax credits to energy efficiency to the start and end dates for daylight savings time, EPAct 2005 addressed numerous aspects of overall U.S. energy policy, including the nation's electric transmission system.  Section 1221 of the Act authorized the designation of national interest electric transmission corridors, a step that was originally perceived as a means to advance transmission projects encountering state regulatory obstacles but which has proved problematic and largely ineffectual; Section 1223 encouraged the development and deployment of advanced transmission system technologies; and Section 1222 authorized DOE to participate directly in transmission projects under certain circumstances.

Section 1222 authorizes the Secretary of Energy, acting through the Western Area Power Administration ("WAPA") or the Southwestern Power Administration ("SWPA"), to "design, develop, construct, operate, maintain, or own, or participate with other entities in designing, developing, constructing, operating, maintaining, or owning, an electric power transmission facility and related facilities" needed to upgrade existing transmission facilities owned by SWPA or WAPA or in connection with new facilities located in any state in which SWPA or WAPA operates.

The exercise of such authority requires a finding that the project meets certain statutorily prescribed conditions.  In the case of new facilities, the findings include: the project is necessary to accommodate a projected increase in demand for electric transmission capacity; the project is consistent with transmission needs identified by the appropriate regional transmission organization and with the efficient and reliable operation of the transmission grid; the project will be operated in conformance with prudent utility practice and with the rules of the relevant transmission organization; and the project will not duplicate the functions of existing or proposed facilities.

If these findings are made, "the Secretary may accept and use funds contributed by another entity for the purpose of carrying out the [p]roject."  Accordingly, Section 1222 provides a funding mechanism and comprehensive authority for DOE participation in or ownership of qualifying transmission projects.

Plains & Eastern Clean Line

In June, 2010, DOE issued a request for proposals for qualifying projects under Section 1222.  In July, 2010, Clean Line submitted a proposal, which was subsequently amended in December, 2014, for what is now known as the Plains & Eastern Clean Line transmission project.  The Project includes a single 720 mile long, 600 kV, overhead, high voltage direct current ("HVDC") transmission line and related facilities extending from western Oklahoma and the northern Texas panhandle, through Arkansas, to a substation in Tennessee, with a capacity of 4,000 MW.

In addition to finding that the Section 1222 conditions were satisfied and completing a Final Environmental Impact Statement, DOE also found that the Project is in the public interest, will facilitate the reliable delivery of renewable energy, the benefits of the Project outweigh the impacts in each of the states in which it will be located, and the Project is technically and financially viable.  A detailed discussion of the Project and its evaluation under Section 1222 is contained in DOE's Summary of Findings.

DOE's and Clean Line's respective roles and responsibilities in the Project are detailed in their March 25, 2016 Participation Agreement. Clean Line has primary responsibility for acquisition of all Project real property interests and, subject to oversight by a joint Coordinating Committee, is responsible for all Project development, construction, and operations and maintenance activities.  DOE, acting through SWPA, will be conditionally responsible for certain Project tasks, including acquisition of rights-of-way, provided that the Project meets certain commercial and technical milestones such as execution of transmission service agreements, confirmed interconnection rights, and financing commitments.  SWPA will also oversee the Project's conformance with environmental and cultural resource obligations as well as FERC and NERC regulatory compliance.  Other key provisions of the Agreement include DOE ownership of all Project facilities located in Arkansas, and a mandate that Clean Line use commercially reasonable efforts to use at least 75% of the Project's capacity for the transmission of renewable energy resources.  The Participation Agreement is structured to ensure that Clean Line is responsible for all Project costs and the federal government is indemnified and held harmless from all liabilities associated with the Project.

Opportunities for Other Transmission Projects?

While the Plains & Eastern transmission project remains a long way from actual operation, DOE's decision to participate in the Project suggests possible cause for optimism on the part of other interstate transmission project developers.  Part of the motivation for Clean Line's proposal to obtain DOE participation under Section 1222 was to address difficulties encountered obtaining state regulatory approvals, notably in Arkansas where Clean Line could not obtain a Certificate of Convenience and Necessity because it did not qualify as a "public utility" in that state.  Given that "public utility" status may also be a prerequisite to condemnation authority under state law, the possible exercise of DOE's eminent domain authority to obtain needed property rights is a potential additional benefit.  DOE's Findings in connection with the Project also make clear that it "need not obtain a certificate from a public utility commission for a transmission project under section 1222 before taking an action, such as construction, that if done by a private party would require a certificate under state law."  These and other aspects of DOE's Findings and the Participation Agreement suggest opportunities for public-private collaboration to advance other interstate transmission projects.

It is unclear whether DOE will be open to participation in other Section 1222 transmission projects.  (Section 1222 contains a limitation on the funds DOE may accept for fiscal years 2006 through 2015.)  However, as explained in DOE's Findings, the authority contained in Section 1222 is similar to Congress's 1984 authorization for DOE's participation in the Path 15 Upgrade Project in the Pacific Northwest and California.  Taken together, these two examples of DOE participation in transmission projects, indicate that there may be opportunities for future collaboration on interstate transmission projects intended to increase transmission capacity and to facilitate interregional delivery of renewable resources.  This may be of particular interest to project developers located in wind and solar resource rich regions of the upper Great Plains, the Rocky Mountains, and the desert southwest where WAPA operates.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Thomas J. Dougherty
Similar Articles
Relevancy Powered by MondaqAI
Troutman Sanders LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Troutman Sanders LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions