Energy Bill/Eminent Domain

On Tuesday I posted Provision in Energy Bill Brings Unease in G.O.P. The language in H.R.6 referred to in the article is as follows:

`SEC. 216. SITING OF INTERSTATE ELECTRICAL TRANSMISSION FACILITIES.
`(a) TRANSMISSION STUDIES- Within one year after the enactment of this section, and every 3 years thereafter, the Secretary of Energy shall conduct a study of electric transmission congestion. After considering alternatives and recommendations from interested parties the Secretary shall issue a report, based on such study, which may designate one or more geographic areas experiencing electric energy transmission congestion as `interstate congestion areas'.
`(b) CONSTRUCTION PERMIT- The Commission is authorized, after notice and an opportunity for hearing, to issue permits for the construction or modification of electric transmission facilities in interstate congestion areas designated by the Secretary under subsection (a) if the Commission makes each of the following findings:
`(1) A finding that--
`(A) the State in which the transmission facilities are to be constructed or modified is without authority to approve the siting of the facilities, or
`(B) a State commission or body in the State in which the transmission facilities are to be constructed or modified that has authority to approve the siting of the facilities has withheld approval, conditioned its approval in such a manner that the proposed construction or modification will not significantly reduce transmission congestion in interstate commerce and is otherwise not economically feasible, or delayed final approval for more than one year after the filing of an application seeking approval or one year after the designation of the relevant interstate congestion area, whichever is later.
`(2) A finding that the facilities to be authorized by the permit will be used for the transmission of electric energy in interstate commerce.
`(3) A finding that the proposed construction or modification is consistent with the public interest.
`(4) A finding that the proposed construction or modification will significantly reduce transmission congestion in interstate commerce.
The Commission may include in a permit issued under this section conditions consistent with the public interest.
`(c) PERMIT APPLICATIONS- Permit applications under subsection (b) shall be made in writing to the Commission and verified under oath. The Commission shall issue rules setting forth the form of the application, the information it is to contain, and the manner of service of notice of the permit application upon interested persons.
`(d) COMMENTS- In any proceeding before the Commission under subsection (b), the Commission shall afford each State in which a transmission facility covered by the permit is or will be located, each affected Federal agency and Indian tribe, private property owners, and other interested persons, a reasonable opportunity to present their views and recommendations with respect to the need for and impact of a facility covered by the permit.
`(e) RIGHTS-OF-WAY- In the case of a permit under subsection (b) for electric transmission facilities to be located on property other than property owned by the United States or a State, if the permit holder cannot acquire by contract, or is unable to agree with the owner of the property to the compensation to be paid for, the necessary right-of-way to construct or modify such transmission facilities, the permit holder may acquire the right-of-way by the exercise of the right of eminent domain in the district court of the United States for the district in which the property concerned is located, or in the appropriate court of the State in which the property is located. The practice and procedure in any action or proceeding for that purpose in the district court of the United States shall conform as nearly as may be with the practice and procedure in similar action or proceeding in the courts of the State where the property is situated.
`(f) STATE LAW- Nothing in this section shall preclude any person from constructing any transmission facilities pursuant to State law.
`(g) COMPLIANCE WITH OTHER LAWS- Commission action under this section shall be subject to the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and all other applicable Federal laws.
`(h) COMPENSATION- Any exercise of eminent domain authority pursuant to this section shall be considered a taking of private property for which just compensation is due. Just compensation shall be an amount equal to the full fair market value of the property taken on the date of the exercise of eminent domain authority, except that the compensation shall exceed fair market value if necessary to make the landowner whole for decreases in the value of any portion of the land not subject to eminent domain. Any parcel of land acquired by eminent domain under this subsection shall be transferred back to the owner from whom it was acquired (or his heirs or assigns) if the land is not used for power line construction or modification within a reasonable period of time after the acquisition. Property acquired under this subsection may not be used for any heritage area, recreational trail, or park, or for any other purpose (other than power line construction or modification, and for power line operation and maintenance) without the consent of the owner of the parcel from whom the property was acquired (or his heirs or assigns).
`(i) ERCOT- Nothing in this section shall be construed to authorize any interconnection with any facility owned or operated by an entity referred to in section 212(k)(2)(B).

This language is in the House version, but not in the Senate version, meaning it will be worked out in conference. The conferees are in the process of resolving the differnces between the two legislative bodies as I write this.