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Eminent domain battle looms over Transource project

Jana Benscoter
York Dispatch
Sean High said Transource Energy must either go before the Orphans' Courts in Franklin and York counties, or get a court-ordered exception to Act 45 for its 133 filed eminent domain applications. (Submitted)
  • Stock and Leader Attorney Ross McGinnis, an affected landowner, said the Orphans’ Court step “muddies the waters."
  • Transource spokeswoman Abby Foster had no comment as to how Transource plans to proceed with Act 45.

Transource Energy must seek eminent domain approval from Franklin and York counties Orphans’ Courts or pursue a court-ordered exception for an overhead power line project, Penn State Agricultural and Shale Law staff attorney Sean High said.  

Administrative Law Judges Elizabeth Barnes and Andrew Calvelli decided to apply the Orphans’ Court requirement in Act 45, a new law that limits eminent domain for permanently preserved land, he explained.

High is an expert on agricultural law who attended public meetings late last year and answered questions for concerned landowners.

Normally, a utility could seek and receive eminent domain from the state Public Utility Commission, but Act 45, which was signed into law on June 22, adds new layers of approval, he said.

PJM Interconnection, the regional transmission grid operator, hired Transource to design and construct the overhead power line, called the Independence Energy Connection project. 

If the $320 million project is approved by the Public Utility Commission, Transource needs to acquire landowners' easements in order to construct it. 

“It is for the courts to determine the intent of the legislature in amending (eminent domain) and to determine whether this ... project falls under" an Orphans' Court exception, according to the July 30 order.  

Attorney Ross McGinnis addresses administrative law judges during a prehearing conference regarding Transource applications Monday, July 9, 2018, at the Commonwealth Keystone Building in the Pennsylvania State Capitol Complex in Harrisburg. Transource Energy is asking the state to consolidate its two applications into one case in order to receive approval to construct new overhead power lines in Franklin and York counties. Bill Kalina photo

Stock and Leader attorney Ross McGinnis, an affected landowner, said the Orphans’ Court step “muddies the waters." 

No matter what, McGinnis predicted at a July prehearing conference, the 133 eminent domain applications Transource filed May 15 with the PUC will go before the Pennsylvania Supreme Court.

“The eminent domain procedure, this is going to have an enormous impact, and no matter how it is resolved, it’s going to take a long time to do that,” he said. “There are existing rights-of-ways, existing facilities that can be used, and all of that could and would be avoided.”

More:PUC hearing raises questions about power line project in York, Franklin counties

More:Landowners will fight Transource at state level, not county

Forty of the applications were to acquire rights of way and easements across lands owned in York County and 93 applications were to acquire rights of way and easements across lands owned in Franklin County, according to the PUC.

Administrative law judges Elizabeth Barnes and Andrew Calvelli confer during a prehearing conference regarding Transource Energy powerline applications Monday, July 9, 2018, at the Commonwealth Keystone Building in the Pennsylvania State Capitol Complex in Harrisburg. Transource Energy is asking the state to consolidate its two applications into one case in order to receive approval to construct new overhead power lines in Franklin and York counties. Bill Kalina photo

“Transource PA strives to balance the need for infrastructure and disturbance with land use, including conservation easements,” Transource spokeswoman Abby Foster said. “We continue to look for opportunities to work with landowners to reduce impacts and secure needed easements for the project.”

Foster had no comment as to how Transource plans to proceed with Act 45.

Transource must show that eminent domain “is necessary or proper for service, accommodation, convenience or safety of the public to support the taking” of property owners’ lands, according to the order. 

Transource Energy's proposed power line would run 16 miles from Lower Chanceford Township in York County to northern Maryland. (Photo courtesy of Transource)

Landowners who were served eminent domain applications and have not yet testified at a public input hearing can do so on the following dates: 

Franklin County: 1 and 6 p.m. Tuesday, Sept. 18, New Franklin Volunteer Fire Department Social Hall, 3444 Wayne Road, Chambersburg           

York County: 1 and 6 p.m. Thursday, Sept. 20, Airville Volunteer Fire Department, 3576 Delta Road, Airville