Fred Kessler Comments on FHWA Guidance on Transmission Lines


Fred Kessler was quoted in the Law360 article “Federal Highway Guidance No Power Line Project Panacea(subscription required). The article discusses guidance released by the Federal Highway Administration (FHWA) in April 2021 that encourages state transportation agencies to authorize building transmission lines along existing rights-of-way of highways that are recipients of federal aid. However, the guidance does not outline any legal requirements for doing so. This preserves state discretion to decide on whether to permit co-location of transmission lines in highway rights-of-way under their ownership.

Law360 points out that one of the issues that parties may have to contend with as a result of this guidance is the fact that “using existing rights-of-way can potentially avoid some of the local siting challenges that transmission developers face, and having federal-state support and coordination is a definite plus...[but] the FHWA guidance doesn't provide any shortcuts around the necessary state approvals to site and build new transmission lines.” This means that there will need to be coordinated efforts between state-level Departments of Transportation and Departments of Energy on permitting planning.

According to Law360, the FHWA guidance does acknowledge this issue, stating that “state transportation departments may have to update their utility accommodation policies.”

Commenting on this topic, Fred said, “Updating those policies is just an initial step.” He added, “Transmission developers will have to negotiate a host of issues before getting a state transportation department's blessing to build within a highway right-of-way, from compensation to ways to access the installed power line for safety or maintenance reasons.” He closed by asking, “What parameters, terms and conditions would be placed on the right of entry?"

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