A High-Voltage Conflict on Blackacre: Reorienting Utility Easement Rights for Electric Reliability Brian S. Tomasovic*
Introduction...... 2 I. The Need for UVM in the Twenty-First Century...... 5 A. The Basic Justifications for UVM ...... 6 1. Preventing Power Outages ...... 6 2. Preventing Fires ...... 10 3. Public Safety ...... 12 B. Expanding Infrastructure and Growing Risk Exposure ...... 12 C. Modernization of UVM...... 15 D. Objections to UVM ...... 19 1. Community Objections...... 20 2. Property Owner Objections...... 22 3. The Customer Refusal ...... 24 II. Overview of the Regulatory Environment for UVM...... 26 A. Federal Developments ...... 27 B. State Developments...... 31 III. Traditional Easement Rights Approach to Resolving Tree- Owner/Electric Utility Conflicts ...... 32 A. Transmission Easements...... 35 B. Distribution Line Easements ...... 38 IV. Criticism of Traditional Approach Under Today’s Conditions...... 40 A. Utilities: Outdated Easements Complaints...... 40 B. Property Owners: The Takings Complaint...... 42 C. Courts: The Rise of the Jurisdictional and Preemption Defense ....44 V. Recommendation: The Public Nuisance Doctrine Approach ...... 47 A. Public Nuisance Abatement Following a Customer Refusal ...... 48 B. The Abatement of Hazard Trees...... 50 C. Abatement of Incompatible Vegetation ...... 52
* M.A., Energy and Earth Resources, University of Texas, 2010; J.D., Loyola Law School, 2005; Educational speaker at the 2010 National Conference of the Utility Arborist Association; Attorney, Environmental Protection Agency, Region 6. These remarks were written in the author’s private capacity and do not necessarily represent the views of the EPA or the United States. The Author would like to thank Professor Hannah J. Wiseman, University of Tulsa College of Law, and Daniel Raichel for their helpful comments on earlier drafts; Major Karen Riddle for professional guidance; and his wife, Alice, for her support.
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D. Abatement Through Herbicides...... 53 VI. Conclusion...... 55
INTRODUCTION
Trees and above-ground utility lines have had a troubled coexistence for more than a century.1 The first wooden utility poles (once trees themselves) held their wires at heights that invited encroachment from the green branches of their living cousins.2 Naturally, as vegetation grows near or into utility wires in search of sunlight and airspace, it threatens to disrupt utility services— especially the delivery of electricity.3 For the operators who seek to reliably transmit and distribute electricity along overhead wires, vegetation encroachment is a constant and, quite literally, growing threat.4 The electric transmission and distribution industry solution to this threat is conventionally known as Utility Vegetation Management (“UVM”)—a term that integrates long-standing past practices like manual line clearing and tree trimming with relatively new techniques such as the use of herbicides, tree growth stunters,
1. See LOUIS BELL, ELECTRIC POWER TRANSMISSION 468 (3d ed. 1901) (“In a wooded region the only proper plan is to secure right of way broad enough to permit clearing away the trees so that they cannot interfere with the line wires, even were branches to be blown off in a storm.”); see also Henry D. Gerhold, Origins of Urban Forestry, in URBAN AND COMMUNITY FORESTRY IN THE NORTHEAST 1, 12 (John E. Kuser ed., 2007) (“Since the introduction of the telegraph in 1839, and electricity in 1882, pruning for clearance of overhead wires has shaped and often distorted the appearance of nearby trees.”). Additionally, the earliest “electricity” legal treatises invariably addressed damages to trees from overhead utility line construction. See SIMON G. CROSWELL, A TREATISE ON THE LAW RELATING TO ELECTRICITY § 209 (Boston, Little, Brown and Co. 1895); S. WALTER JONES, A TREATISE ON THE LAW OF TELEGRAPH AND TELEPHONE COMPANIES § 126 (2d ed. 1916); JOSEPH A. JOYCE & HOWARD C. JOYCE, A TREATISE ON ELECTRIC LAW § 396 (1900); SEYMOUR D. THOMPSON, THE LAW OF ELECTRICITY § 35 (St. Louis, Central Law Journal Co. 1891). 2. During construction of the nation’s first telegraph line, a forty mile venture between Baltimore and Washington, D.C., Samuel Morse solicited by newspaper advertisement “700 straight and sound chestnut posts with bark on” at lengths of twenty-four and thirty feet. Problems with electrical faulting made burial of the telegraph line impractical. JAMES A. TAYLOR, AM. WOOD-PRESERVERS ASS’N, POLE MAINTENANCE AND ITS EFFECTIVENESS 129 (1978), available at http://www.pmcpole.com/cms/AWPA_poleMaintenance_paper.pdf. 3. See John Goodfellow, Investigating Tree-Caused Faults, TRANSMISSION & DISTRIBUTION WORLD, Nov. 2005, at 8. 4. “Reliability” is a term of art for electricity providers, which refers to both the ability to provide a continuous supply of electricity at the proper voltage and frequency (adequacy) and the ability to withstand sudden, unexpected disturbances (security). See Understanding the Grid: Reliability Terminology, N. AM. ELECTRIC RELIABILITY CORP., http://www.nerc.com/ page.php?cid=1|15|122 (last visited Oct. 6, 2010). 2011] A High-Voltage Conflict on Blackacre 3
and selective vegetation removal and replacement.5 In carrying out UVM, utility companies have long faced the potential of a secondary conflict: legal challenges from the owners or admirers of trees who object to the methods or extent of UVM.6 This kind of legal conflict has endured for more than a century, as the first court cases concerning trees and overhead utilities dealt not with electrical infrastructure as we know it today, but with predecessor technology such as telegraph wires7 and telegraphic fire-alarm systems.8 Later, as early electrical companies earned recognition as public utilities with eminent domain authority, they regularly secured easements, or rights-of-way (“ROWs”),9 to install and maintain overhead lines through private property.10 In
5. See, e.g., Randy Miller, From the Desk of the President: We Are Not Tree Trimmers, TRANSMISSION & DISTRIBUTION WORLD, June 2009, at 4. 6. See, e.g., Scott Grover, FERC Guidance Order Shows Inter-Agency Tension, 23 NAT. RESOURCES & ENV’T 61, 62 (2009) (“[T]he issue of vegetation management has become a source of public and regulatory anxiety as utilities address the requirements being imposed upon them, often to the aesthetic chagrin (and legal response) of property owners.”). The term “utility company” as employed throughout this Article has narrow application to the owners and operators of electric transmission and distribution facilities and may impliedly include the contractor-agents that commonly carry out their UVM work. These terminology conventions are not meant to elide the heterogeneity and complexity of today’s electricity sector, where in fact the “utility company” as defined may not in fact own any electricity generation facilities or may not, in the case of municipal utilities, even technically constitute a company. 7. See, e.g., W. Union Tel. Co. v. Williams, 11 S.E. 106 (Va. 1890) (holding defendant telegraph company liable for removal of trees during line construction, because line construction along a county road constituted a new public use of plaintiff’s land). 8. See Tissot v. Great S. Tel. & Tel. Co., 3 So. 261 (La. 1887) (defendant fire-alarm telegraph company liable for cutting limbs from magnolia tree that projected onto street). Many of these first cases came in the context of overhead line construction, not vegetation maintenance. Still, at least one nineteenth century case explained the special hazard tree branches can pose to electrical wires and vice versa. See Van Siclen v. Jamaica Elec. Light Co., 61 N.Y.S. 210, 212 (App. Div. 1899) (“[T]he wires were required to be so placed as not to come in contact with the trees, for the reason that the effect would be the grounding of the wires, loss of current, creating short circuits, and the killing and destroying, in course of time, of the trees with which they came in conflict.”). 9. Although ROW and easement may have synonymous usage, ROW can carry broader meanings. ROW might abstractly refer to the means of passage for utility services. The term can also refer to the physical siting of transmission lines and the physical extent to which a utility company manages its accompanying corridor. New regulatory uses for the term “right- of-way” suggest these terms will be less interchangeable in the future. See, e.g., N. AM. ELEC. RELIABILITY CORP., TRANSMISSION VEGETATION MANAGEMENT NERC STANDARD FAC-003-2 TECHNICAL REFERENCE 5 (2009) [hereinafter FAC-003-2 TECHNICAL REFERENCE], available at http://www.nerc.com/docs/standards/sar/FAC-003-2_White_Paper_2009Sept9.pdf (defining the term “Active Transmission Line Right-of-Way”). 10. See, e.g., Shasta Power Co. v. Walker, 149 F. 568, 570 (C.C.N.D. Cal. 1906) (recognizing eminent domain for public electric power transmission under early California statute). 4 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 36:1 easement-based disputes over wires and trees, courts have traditionally considered whether the various actions of a utility company performing vegetation management fall within the grant of rights afforded by the idiosyncratic language of a particular easement.11 This Article shows that the number and frequency of conflicts between property owners and electric utility companies are increasing, while the method of legal analysis traditionally employed to resolve those conflicts comes under new stress. As the electrical infrastructure of the United States grows more extensive and intensive,12 vegetation management practices will necessarily also grow in scale and complexity, thereby attracting greater regulatory scrutiny. Recent federal and state vegetation clearance standards are a consequence of new governmental attention to electric reliability, and these regulatory compliance obligations will translate into more aggressive vegetation management practices. However, new UVM practices and uniform conductor-to-vegetation clearance standards may not be compatible with the outdated, narrowly written, and variable grant language of past utility easements. The constraints of easement language may ultimately interfere with regulatory compliance and the utility’s ability to mitigate the special risks posed by vegetation. This Article argues that courts, public utility commissions (“PUCs”), and legislatures should, when possible, avoid easement construction and resolve tree-owner/electric utility conflicts under the framework of the public nuisance abatement doctrine. With this approach, the landowner, the utilities, and electric customers will benefit from a
11. See, e.g., Marshall v. Ga. Power Co., 214 S.E.2d 728, 730 (Ga. Ct. App. 1975) (transmission easement providing fair market value compensation for damages to “growing crops or fruit trees or timber” did not include Christmas trees); Duresa v. Commonwealth Edison Co., 807 N.E.2d 1054 (Ill. App. Ct. 2004) (surveying UVM cases from multiple jurisdictions and observing that the prevailing consideration is whether the conduct falls within or exceeds the scope of an easement based on the specific language of the relevant easement); Biber v. Duquesne Light Co., 344 A.2d 628 (Pa. Super. Ct. 1975) (granting new trial, because trial court failed to submit question to jury on whether the use of chemical defoliants exceeded the terms of the easement). 12. The 1990s alone saw a seven percent increase in miles of high-voltage transmission in the United States. See U.S. Energy Info. Admin., Electricity Transmission Fact Sheet, DEP’T OF ENERGY [hereinafter EIA Transmission Fact Sheet], http://www.eia.doe.gov/cneaf/ electricity/page/fact_sheets/transmission.html (last visited Oct. 16, 2010). Meanwhile, utility companies frequently seek to alleviate increased demand on preexisting lines through upgrades. See, e.g., Voges v. Lower Colo. River Auth., No. 03-97-00561-CV, 1999 Tex. App. LEXIS 857 (Feb. 11, 1999) (examining whether the right to upgrade existed based on easement language and evidence of the parties’ intent). 2011] A High-Voltage Conflict on Blackacre 5 scheme of scientifically-based, standardized, minimal abatement actions against power line-encroaching vegetation. This Article will begin in Part I by providing an introduction to UVM in the twenty-first century, explaining why it is needed, how it is conducted, and why it so frequently draws objections from property owners and communities. Part II will give an overview of the new and changing regulatory environment, which impacts both the manner of UVM and the contours of property rights disputes that follow from it. Part III will describe the typical easements that apply to overhead power lines and explain the traditional easement construction approach courts have used to adjudicate property owner disputes over UVM. Part IV will take a critical look at how the traditional approach creates uncertainty in the present regulatory environment for property owners, utility companies, and courts. As a solution, Part V will argue for adopting the public nuisance doctrine and abatement principles as a framework for resolving these conflicts and meeting new regulatory reliability demands. This solution sharply reorients the legal focus away from the longstanding property rights analysis and offers advantages that bring vital stability to both the law and the electrical grid.
I. THE NEED FOR UVM IN THE TWENTY-FIRST CENTURY
The necessity for UVM arises from two phenomena in perpetual and irreconcilable tension: electricity’s natural tendency to seek the ground and a tree’s predisposition to grow tall and spread its branches.13 Although the scientific basis for this tension has remained constant since the first overhead utility lines were installed more than a century ago, the methods of UVM and the reliability demands for UVM have changed considerably over time. There are three longstanding and basic justifications for UVM—the minimization of electric outages, fire risks, and public hazards14— all of which are explained more fully below. While these
13. Strictly speaking, some trees entirely lack “branches,” but can nonetheless grow tall enough to pose problems for overhead power lines. Branchless palm trees are one example, but consider also the case of the iconic, legally protected saguaro cactus trees of the Arizona desert. After roughly forty years of slow vertical growth beneath 500kV lines in Arizona, the state utility company, with considerable public controversy, found it necessary to remove the encroaching cactus trees. See Ryan Randazzo, Conservationists Decry Elimination of Saguaros by APS, ARIZ. REPUBLIC, Jan. 30, 2009, at B6. 14. See CN UTILITY CONSULTING, LLP, UTILITY VEGETATION MANAGEMENT FINAL REPORT 6 (2004) [hereinafter UVM FINAL REPORT], available at http://www.ferc.gov/industries/ electric/indus-act/reliability/blackout/uvm-final-report.pdf. 6 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 36:1 justifications are sensible for any society using overhead electric infrastructure, power disturbances inarguably have greater impact on a computer-driven twenty-first century society. The United States’ commercial and governmental dependency on ubiquitous electronic technology only strengthens these traditional justifications. At the same time, electric utilities have benefited from technological advances that allow for safe and cost-effective mitigation of threats posed by vegetation.15 However, efforts to protect electrical infrastructure from encroachment by trees often cause conflicts with those property owners and communities who value their trees for various aesthetic, economic, and ecological reasons. As UVM methods have evolved, communities and property owners have correspondingly adjusted their objections.
A. The Basic Justifications for UVM The special hazards of electrical currents were known to the earliest linemen who maintained utility lines.16 Those first lines may have sent telegraph messages, carried telephone conversations, or powered electric streetcars. As revolutionary as those uses were for their day, linemen of that time could not possibly have fathomed the multiplicity of end uses that exist today. Nor could they have predicted the tremendous currents that power plants must generate to serve those sophisticated end uses. Early linemen would, however, recognize today’s several, persistent, vegetation- related risks—risks of electrical outages, fires, and human injury. The primary objective of UVM is to mitigate these longstanding risks,17 but these hazards must be understood in the context of our ever-expanding electrical infrastructure and our concurrently increasing risk exposure.18
1. Preventing Power Outages It began with a tree. On August 14, 2003, a massive, unplanned power outage struck the Northeastern United States and Canada,
15. See infra text at notes 84–85. 16. In the 1890s, the occupational death rate for linemen was twice the national average across all industries, and the absence of safety standards helped spur its early labor organization. See Beginnings of Brotherhood, INT’L BROTHERHOOD OF ELECTRICAL WORKERS, http://www.ibew.org/IBEW/history/other/brotherhood.htm (last visited Nov. 3, 2010). 17. See UVM FINAL REPORT, supra note 14, at 6. 18. Note that all of these circumstances sustain the argument that vegetation encroaching on power lines may constitute a public nuisance. See infra Part V. 2011] A High-Voltage Conflict on Blackacre 7
affecting an estimated fifty million people at an estimated cost to the U.S. of between four billion and ten billion dollars.19 The U.S.- Canada Power Outage Task Force found that inadequate tree trimming in Ohio was one of the initial causes of the cascading blackout that ultimately spread through eight states and the province of Ontario.20 As will be discussed in Part II, this event greatly impacted the regulatory environment for electric reliability. Yet, even as the 2003 blackout had great political fallout and drew significant attention to reliability needs,21 electric utilities have long sought to mitigate tree and non-tree related outages.22 Outages and power disturbances cost the United States economy between 119 and 188 billion dollars annually—numbers that alone are sufficient cause for attention.23 It is estimated that nearly all electricity consumers in the United States have experienced outages caused by trees growing into or falling onto overhead power lines.24 Vegetation-related electricity disruption is cited as a primary25—if not the leading26—cause of
19. U.S.-CANADA POWER SYS. OUTAGE TASK FORCE, FINAL REPORT ON THE AUGUST 14, 2003 BLACKOUT IN THE UNITED STATES AND CANADA: CAUSES AND RECOMMENDATIONS 1 (2004) [hereinafter BLACKOUT FINAL REPORT], available at https://reports.energy.gov/ BlackoutFinal-Web.pdf. 20. Id. at 18. 21. The blackout garnered attention not merely for its unprecedented scope but also its timing as public authorities sought to allay widespread initial concerns that the cause of the outage was related to terrorism. As the New York Times reported, the outage widely affected “a city still jittery from the Sept. 11 terror attack.” James Barron, The Blackout of 2003: The Overview; Power Surge Blacks Out Northeast, Hitting Cities in 8 States and Canada; Midday Shutdowns Disrupt Millions, N.Y. TIMES, Aug. 15, 2003, at A1. 22. The electric industry created the National Electric Reliability Council (“NERC”) as a voluntary organization in large response to a 1965 blackout affecting thirty million people. This organization was the predecessor to today’s non-voluntary reliability enforcement agency: the North American Electric Reliability Corporation (also, “NERC”). See Company Overview: History, N. AM. ELECTRIC RELIABILITY CORPORATION, http://www.nerc.com/ page.php?cid=1|7|11 (last visited Nov. 3, 2010). 23. Krish Gomatom & Tom Short, Continuity of Supply, in HANDBOOK ON POWER QUALITY 31, 52 (Angelo Baggini ed., 2008). 24. See UVM FINAL REPORT, supra note 14, at 6. 25. Trees, animals, equipment failures, and lightning are all major sources of service interruptions, but can vary substantially from utility to utility due to diversity of weather and speciation. For example, lightning may commonly disrupt electrical service in Florida, but not on the West Coast. RICHARD E. BROWN, ELECTRIC POWER DISTRIBUTION RELIABILITY 112– 13 (H. Lee Willis et al. eds., 2002). Fortunately, United States utility companies need not contend with the prevalence of the world’s tallest land mammal. See AFRICAN CENTRE FOR ENERGY AND ENV’T, THE MANAGEMENT OF WILDLIFE INTERACTIONS WITH OVERHEAD POWER LINES 53–54 (2003), available at http://www.sapp.co.zw/documents/The%20Management %20of%20Wildlife%20Interactions%20with%20Overhead%20Powerlines.pdf (suggesting “minimum clearances for giraffes”). 8 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 36:1 outages. In a “grow-in” scenario, in which trees grow around and into power lines, line outages may occur as tree contact with wires creates a short-circuit and causes the line’s relays to read a ground fault.27 With higher voltages, a ground fault can occur even without direct physical contact, because of the phenomenon of electric arcing.28 Grow-in system faults are not common on the lowest voltage distribution lines (those that deliver power directly to a customer), particularly when the wires are insulated.29 These lines, however, are especially susceptible to “fall-in” scenarios, where the ultimate disruption stems from physical damage to the equipment by a falling tree or branch.30 Most tree-related outages begin with, and are localized to, distribution systems, but tree contacts have also historically contributed to large-scale transmission outages even prior to the August 2003 blackout.31 For example, the Western Interconnection—the grid that services ten western states in their entirety and parts of several others—experienced two major outages in 1996 caused by tree contacts.32 These two tree contacts with 345kV and 500kV transmission lines created outages for 2.2 million and 7.5 million customers, respectively.33 Such tree-related transmission outages are more likely in summer months, after the period of fastest vegetative growth. In addition, the overhead lines sag lower during the summer as a result of providing greater flow to satisfy increased customer demands to power air conditioning.34
26. See UVM FINAL REPORT, supra note 14, at 6. 27. See BLACKOUT FINAL REPORT, supra note 19, at 59. A ground fault occurs as electricity travels from the power line to the tree rooted to the ground, potentially creating a fire or explosion at the pathway point and potentially damaging the circuit. See, e.g., Aesculusglabra13, Power Surge—Electrical Ground Fault, YOUTUBE (Aug. 18, 2008), http://www .youtube.com/watch?v=zlh1ihUR6xw (a brief videorecording of a ground fault event). 28. See BLACKOUT FINAL REPORT, supra note 19, at 59. In this context, arcing simply refers to the ability of an electric current to use the air as a circuit pathway even though it is ordinarily a poor conductor. 29.See BROWN, supra note 25, at 105. 30. See Goodfellow, supra note 3, at 8. 31. See UVM FINAL REPORT, supra note 14, at 6. 32. The Western Interconnection, a power grid that covers the Western states and extends into Western Canada, is one of three separate power grids in the continental United States. The Western Interconnection, joined by the Eastern Interconnection and the Electric Reliability Council of Texas, is an independently coordinated, synchronous grid. Alternating current (“AC”) power can travel freely within all parts of the Western Interconnect, but not directly into the other asynchronous grids. See EIA Transmission Fact Sheet, supra note 12. 33. See UVM FINAL REPORT, supra note 14, at 6. 34. See BLACKOUT FINAL REPORT, supra note 19, at 61. 2011] A High-Voltage Conflict on Blackacre 9
In these conditions, a tree outage on one transmission line may compound transmission conflicts with vegetation as related lines may respond by carrying more power, causing them to sag even lower and thereby threaten further tree-to-line contacts.35 For utilities, the provision of continuous, reliable electricity is a core customer demand. Even a small interruption in service can cause a loss of data or severely damage the products that commercial customers use.36 In the case of customers with health problems, a loss of service can be life threatening.37 Transmission and distribution utilities seek to mitigate their legal exposure in two main ways. They may seek the benefit of a utility rate tariff from the state or local utility commission, or they may enter into contracts with their customers that contain provisions limiting the utility’s liability when its ordinary negligence contributes to power interruptions.38 In lawsuits and regulatory proceedings, utilities may face accusations that vegetation management was under- funded to increase profits,39 and this threat of liability can serve as a powerful incentive for utilities to commit greater resources to vegetation management.40 In the wake of the 2003 cascading blackout, the utility blamed for contributing to the tree-to-line contacts announced that it was taking “a more aggressive approach” that would focus on cutting trees to the ground rather than trimming them.41 These more aggressive vegetation management plans, however, can prompt accusations that the utility is using the guise of consumer protection to bypass
35. Id. 36. Robert F. Lee & Richard S. Wolowicz, Trees, Utilities, and Municipalities, in URBAN AND COMMUNITY FORESTRY IN THE NORTHEAST 249, 250 (John E. Kuser ed., 2d ed. 2007). 37. For this reason, utilities commonly offer programs that extend special consideration to customers who depend on electric-powered, life-sustaining medical equipment. See, e.g., Freezing Death of Michigan Man, 93, Inside House Sparks Anger; City Utility Cut Power with Limiter, CLEVELAND.COM (Jan. 28, 2009, 7:11 PM), http://www.cleveland.com/nation/index.ssf/ 2009/01/freezing_death_of_michigan_man.html; Health and Safety Programs, FLA. POWER & LIGHT, http://www.fpl.com/community/health_and_safety_programs.shtml (last visited Nov. 15, 2010) (utility FAQ page for its Medical Essential Service Program). 38. See generally Damon P. Frank, Note, The Great Lakes Blackout and Electricity Provider Liability, 10 LAW & BUS. REV. AM. 235, 238–41 (2004) (discussing utility tariffs and contractual clauses as means of limiting liability on behalf of utility companies for blackouts). 39. See, e.g., Tom Beyerlein & John Nolan, Some Criticize DP&L, Say Line Maintenance Was Lacking; Consumer Advocates Allege That Past Cuts in Customer Service and Trimming Crews Made Power Outage Worse, DAYTON DAILY NEWS, Sept. 21, 2008, at A16. 40. See, e.g., FirstEnergy Says Blackout Suits May Hurt Finances, MEGAWATT DAILY, Mar. 17, 2004, at 2. 41. FirstEnergy Under Gun for Nuke Delay, Cutting Trees, MEGAWATT DAILY, Dec. 19, 2003, at 7. 10 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 36:1 landowner concerns and save money, as tree-chopping avoids the cost of future pruning.42 Regardless of the motives at play, financial or otherwise, tree removal mitigates the risk of outages and incrementally reduces the inventory of trees requiring regular attention in future vegetation management cycles.43
2. Preventing Fires UVM is also important for wildland fire prevention, particularly in the Western United States.44 If arcing occurs between a conductor and a tree branch, the branch can ignite, fall to the ground, and start a fire.45 California officials have estimated that between one and three percent of wildland fires in California begin with tree and power line conflicts.46 These fires often cause “significant devastation,” because they typically occur in remote areas with large fuel bases.47 The problem is compounded in areas where heavy winds can contribute to both the initial tree-to-line contact and the rapid spread of a ground-based fire.48 For utilities operating in fire-prone areas, liability concerns are especially pronounced, and utilities have faced administrative, civil, and criminal penalties for shortcomings in vegetation management that have contributed to large-scale wildfires. In 1999, a fire in California began with a ponderosa pine falling onto a 12kV distribution line; ten years later, the utility, Pacific Gas and Electric (“PG&E”), settled claims with the Department of Justice for $14.75 million.49 PG&E has also paid twenty-nine million dollars in
42. See Kantele Franko, Arguments Erupt as Utilities Cut Residential Trees, USA TODAY, July 13, 2008, http://www.usatoday.com/news/nation/2008-07-13-931480169_x.htm. 43. See generally Ward Peterson, Electric Reliability and Outages, TRANSMISSION & DISTRIBUTION WORLD, Nov. 2005, at 12 (emphasizing outage risks posed by trees falling into power lines). 44. See UVM FINAL REPORT, supra note 14, at 7. 45. Id. 46. Id. 47. Id. 48. UVM often requires assessment of “reasonably anticipated tree and conductor movement,” such as may be caused by wind. N. AM. ELECTRIC RELIABILITY CORP., TRANSMISSION VEGETATION MGMT. STANDARD FAC-003-1 2 (2006) [hereinafter FAC-003-1], available at http://www.nerc.com/files/FAC-003-1.pdf. While it is perhaps intuitive that some tree species are sturdier in strong winds than others, a vegetation maintenance strategy also calculates the range of possible conductor positions that could result from winds and other factors that affect sag and sway such as thermal and mechanical loading. See FAC-003-2 TECHNICAL REFERENCE, supra note 9, at 24. 49. Press Release, Lawrence G. Brown, U.S. Attorney for the Eastern District of California, Second Largest Settlement in a Forest Fire Case (July 28, 2009), available at http://www .justice.gov/usao/cae/press_releases/docs/2009/07-28-09PendolaFireSettlement.pdf. 2011] A High-Voltage Conflict on Blackacre 11
regulatory fines for other UVM shortcomings that have resulted in fires,50 and in a landmark 1997 trial following a tree-related fire, convictions on 739 counts of criminal negligence by a county jury.51 Utilities have also faced mass tort lawsuits brought by fire victims alleging negligence per se for failure to maintain clearances between lines and trees.52 Fire hazards are especially high in areas where trees are weakened by drought, disease, or infestation,53 and there are several reasons to conclude that the need for vigilant UVM to mitigate fire risks will be increasingly critical in years to come. Longstanding U.S. forestry practices have already altered the structure and composition of isolated areas, making wildland fires more abundant and dangerous.54 Future climate change may also confound matters further by potentially altering the nature of the fuel base for wildland fires and making the successful implementation of fire suppression strategies all the more challenging.55 Adding to these factors, enormous real estate growth within the wildland/urban interface has placed many more homes in harm’s way.56 These newer public risk factors are calculated to be so grave that at least one utility has sought, unsuccessfully, PUC permission to entirely de-energize problem lines during dangerous weather conditions.57
50. Kenneth Howe & Rebecca Smith, Tree Trimming Pact Lowers PG&E Fine to $29 Million, S.F. CHRON., Apr. 3, 1999, at A11. 51. Jim Doyle, PG&E Guilty in 1994 Sierra Blaze 739 Counts of Negligence for Not Trimming Trees, S.F. CHRON., June 20, 1997, at A1. 52. See, e.g., Debbie Ramsey, Lawsuit Filed Against SDG&E on Behalf of Fire Victims, FALLBROOK BONSALL VILLAGE NEWS, July 3, 2008, http://www.thevillagenews.com/ story/31183/. 53. Bark beetle infestations in California in 2003 led to a declaration of emergency and a PUC resolution that resulted in the removal of 300,000 trees in San Diego County alone. See Fisher v. San Diego Gas & Elec. Co., No. D052336, 2009 WL 1242416, at *4 (Cal. Ct. App. May 7, 2009) (upholding jury findings that the utility was not liable in trespass for removal of bark beetle infested tree, notwithstanding lack of permission and distance from 12kV ROW). 54. See JARED DIAMOND, COLLAPSE 43–47 (2005). 55. See Jamison Colburn, The Fire Next Time: Land Use Planning in the Wildland/Urban Interface, 28 J. LAND RESOURCES & ENVTL. L. 223, 226 (2008) (noting that climate change is a complicating factor for ecosystems already changing through fire suppression and release of uncontrolled species); see also Phillip J. van Mantgem et al., Widespread Increase of Tree Mortality Rates in the Western United States, 323 SCIENCE 521 (2009) (concluding that regional warming and consequent drought stress is likely a driver of rapid and pervasive increases in tree mortality rates in old Western U.S. forest stands). 56. Colburn, supra note 55, at 240. 57. San Diego Gas & Electric recently sought to fully de-energize problem lines during dry, windy conditions. The California PUC rejected their unprecedented plan to shut off power to 60,000 customers as a means of avoiding intensive vegetation management and 12 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 36:1
3. Public Safety The final justification for UVM is ensuring the public safety; specifically, preventing human contact with harmful electrical currents. Fatal accidents can occur when people climb trees or conduct work near power lines.58 Allegations of inadequate tree trimming and resultant high-stakes lawsuits are possible anytime a tree, a downed power line, and a human life are joined in tragic combination.59 Though the public safety hazard is perhaps greatest when a tree or its branches bring an energized line to the ground, the disruption of branches from a ladder falling on a tree or a child climbing a tree could also potentially create a dangerous, even fatal, ground fault.60 In some cases, the failure to clearly separate energized lines from vegetation may prevent the public from seeing and avoiding the hazard.61 Although it may be difficult to account statistically for the fatalities avoided by UVM efforts, vegetation removal undoubtedly has a role in minimizing incidents of death or serious injury.
B. Expanding Infrastructure and Growing Risk Exposure After the Northeast blackout of 2003, Governor Bill Richardson of New Mexico, a former Secretary of Energy, described the United States as “a major superpower with a third-world electrical grid.”62 Putting aside the specific reliability issues that contributed to the
liability for backcountry fires. See Tony Perry, PUC Rejects San Diego Utility Plan to Turn Off Back-Country Power During High Winds, L.A. NOW (Sept. 10, 2009, 11:51 AM), http://latimesblogs.latimes.com/lanow/2009/09/puc-san-diego-utility-fire.html. 58. See UVM FINAL REPORT, supra note 14, at 7. According to the U.S. Bureau of Labor Statistics, 102 occupational fatalities occurred through contact with overhead power lines in 2008. BUREAU OF LABOR STATISTICS, TABLE A-9, FATAL OCCUPATIONAL INJURIES, ALL UNITED STATES (2008), available at http://www.bls.gov/iif/oshwc/cfoi/cftb0240.pdf. 59. For example, both the utility company and its insurer reached settlements totaling $3 million with the estate of a woman killed by a downed power line in her backyard. Commonwealth Edison Co. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 752 N.E.2d 555 (Ill. App. Ct. 2001). 60. This risk may be mitigated to a great extent by the insulation of distribution wires, provided the interference of the tree does not knock down the wires themselves. This risk was probably greater in the early days of electricity. For example, in one century-old case, a young boy lost several fingers from electrical contact during a tree-climbing venture; but those were the days of hemp and cotton yarn insulation, which in this unfortunate case had become ragged and deteriorated. Clements v. Potomac Elec. Power Co., 26 App. D.C. 482 (D.C. Cir. 1906). 61. UVM FINAL REPORT, supra note 14, at 7. 62. Chris Suellontrop, This Was a First World Blackout, SLATE (Aug. 15, 2003, 4:25 PM), http://www.slate.com/id/2087036/. 2011] A High-Voltage Conflict on Blackacre 13 cascading blackout, this criticism ignores the historical and technological evolution of the United States power grid. U.S. power lines are currently carrying more electricity, at higher voltages and over greater distances, to more customers and through more interconnections than at any prior time in history.63 Some parts of this infrastructure have certainly aged and carry electricity near their capacities, but the infrastructure has continuously expanded, improved technologically, and become more sophisticated since its beginnings. The rapid electrification of the United States began in 1882 with the unveiling of Thomas Edison’s Pearl Street Station in New York City, featuring what was then the world’s most powerful generator at 90kW.64 In the decades to follow, larger generation capacity was installed throughout the United States and around the world.65 Advancements in transmission also enabled transport of greater amounts of generated electricity over further distances. In 1896, long-distance “high voltage” alternating current (“AC”) transmission in the United States became a commercial success with 11kV lines carrying hydroelectric power twenty miles from the Niagara River to Buffalo, New York.66 By 1910, 110kV transmission lines were practical, and by 1923, 220kV transmission came online and began to spread.67 Today, high-voltage transmission lines— lines transmitting at 230kV or greater—sprawl over 211,000 miles throughout the three major interconnects of the continental United States.68 Nearly all of these transmission lines are overhead lines due to the cost and technological barriers of placing them
63. See, e.g., EIA, United States Energy History, DEP’T OF ENERGY, http://www.eia.doe.gov/ aer/eh/eh.html (last visited Dec. 31, 2010) (“From 1949 to 2000, while the population of the United States expanded 89 percent, the amount of electricity use grew 1,315 percent.”). 64. FREDERIK NEBEKER, DAWN OF THE ELECTRONIC AGE 90 (2009). 65. For example, average capacity of newly installed generators in Great Britain increased from 500kW in 1895, to 2.5MW in 1905, to 5MW in 1913. Id. As of 2008, electric generation capacity in the United States is greater than twelve million Pearl Street Stations. U.S. ENERGY INFO. ADMIN., EXISTING CAPACITY BY GENERATION SOURCE (2010), available at http://www .eia.doe.gov/cneaf/electricity/epa/epaxlfile1_2.pdf. 66. NEBEKER, supra note 64, at 91–92. 67. Id. at 92. The next standards at 345kV, 500kV, and 765kV were first introduced in 1953, 1964, and 1965, respectively. See U.S. ENERGY INFO. ADMIN., DEP’T OF ENERGY, THE CHANGING STRUCTURE OF THE ELECTRIC POWER INDUSTRY: HISTORICAL CHRONOLOGY OF ENERGY-RELATED MILESTONES, 1800–1994, http://www.eia.doe.gov/cneaf/electricity/page/ electric_kid/append_b.html. 68. Company Overview: Fast Facts, N. AM. ELECTRIC RELIABILITY CORP., http://www.nerc .com/page.php?cid=1|7|10 (last visited Oct. 20, 2010). 14 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 36:1 underground.69 In conjunction with transmission lines, more than five million miles of lower-voltage distribution lines cross all corners of the United States.70 Approximately eighty percent of those distribution wires hang overhead.71 The growth of this infrastructure has continued apace with increases in population and demands for electricity. There was a seven percent expansion of transmission line miles in the 1990s, and there have been continuing average additions of approximately 1000 miles of transmission lines each year.72 More miles of overhead wires means greater opportunity for conflicts with tree owners, but this is only part of the story. The operating voltage73 of a line is the most important factor in determining whether the proximity or encroachment of vegetation could pose a hazard,74 and, with each successive decade, newly installed or upgraded lines are designed to carry progressively higher voltages, thereby increasing the risk of disruptive contact. Additionally, as electricity demand has grown on preexisting lines, those lines have carried higher electrical currents, causing conventional overhead lines to heat up and consequently sag, which can create contacts with underlying trees or even adjacent trees under especially windy conditions.75 In recent years, the problem of power line sagging has increased not only with growing demand for electricity, but also as bulk electricity transmission systems have accommodated electricity trading.76
69. BRADLEY JOHNSON, OUT OF SITE, OUT OF MIND REVISITED: AN UPDATED STUDY ON THE UNDERGROUNDING OF OVERHEAD POWER LINES (2009), available at http://www.eei.org/ ourissues/electricitydistribution/Documents/UndergroundReport.pdf. 70. Id. at 16. 71. Id. 72. EIA Transmission Fact Sheet, supra note 12. The statistics refer merely to the measured lengths of lines at 230kV or greater in service, statistics which might illustrate both new sprawl and coverage or the upgrades of existing lines. 73. Voltage, or electromotive force, is the potential energy source in an electrical circuit. When the circuit is closed, voltage causes current (electrons) to flow in the conductor (wire). See STEVEN W. BLUME, ELECTRIC POWER SYSTEM BASICS FOR THE NONELECTRICAL PROFESSIONAL 5 (2007). Voltage is analogous to water pressure in a pipe; current is the amount flowing. Id. 74. Id. The minimum voltage clearance distances discussed in Part II.A, infra, vary according to voltage and altitude, but overvoltage factors affect these distances more than altitude correction factors. See FAC-003-2 TECHNICAL REFERENCE, supra note 9, at 48. 75. See Willie D. Jones, More Heat, Less Sag, IEEE SPECTRUM, June 2006, at 16, available at http://spectrum.ieee.org/energy/the-grid/more-heat-less-sag. 76. Id. at 18. Competitive markets for wholesale electricity exist today under the regulatory watch of the Federal Energy Regulatory Commission (“FERC”) and are the 2011] A High-Voltage Conflict on Blackacre 15
The electrical infrastructure of the U.S. has thus historically grown in intensity (voltages and currents) and extensity (miles covered). And within its three grids—the Western Interconnect, the Eastern Interconnect, and the Electric Reliability Council of Texas (“ERCOT”)—this infrastructure is highly interconnected.77 All of these factors present greater exposure to risks of both modest localized outages and impactful cascading blackouts with concomitantly large economic losses. This infrastructure, to the extent it relies on overhead power lines, passes through tree country. While the density of nearby trees per mile of overhead transmission varies based on geographic location78 and the established history of vegetation management efforts in a given area, one can conclude without exaggeration that UVM addresses the latent risks posed by hundreds of millions of trees.79 Relative to past decades, the modern UVM industry aims to mitigate risk exposure and prevent electricity losses of unprecedented magnitude.80 Thus, the longstanding justifications for UVM take on new life and importance under the special conditions of the twenty- first century.
C. Modernization of UVM UVM is one of the largest recurring maintenance expenses for electric utility companies today.81 Annual costs in the United States are estimated to exceed two billion dollars.82 The methods of UVM vary from utility to utility, but a UVM program typically includes
product of restructuring initiatives that began, principally, under FERC Orders 888 and 889 in 1996. See David B. Spence, Can Law Manage Competitive Energy Markets?, 93 CORNELL L. REV. 765, 772–75 (2008). 77. See, e.g., About NERC: Understanding the Grid, NERC, http://www.nerc.com/ page.php?cid=1|15 (last visited Oct. 20, 2010) (describing how “dozens or even hundreds” of generation and transmission assets operating together require authorities to monitor the balance between generation and customer demand and noting that these balancing areas are “connected to each other by ‘tie lines’”). 78. BROWN, supra note 25, at 35. 79. See UVM FINAL REPORT, supra note 14, at 7. 80. Utility industry planners also hope a future “smart grid” could mitigate the scale of outages and concomitant economic losses by having a characteristic ability to “self-heal” and operate more resiliently in the face of a power disturbance event (as may occur in a conflict with vegetation). Smart Grid, U.S. DEP’T OF ENERGY, http://www.oe.energy.gov/smartgrid .htm (last visited Nov. 1, 2010). 81. See UVM FINAL REPORT, supra note 14, at 8; see also Miki Deric & Rick Hollenbaugh, Vegetation Managers Weigh Cost Against Performance, TRANSMISSION & DISTRIBUTION WORLD, Mar. 2003, at 3. 82. BROWN, supra note 25, at 108. 16 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 36:1 not merely the various manual, mechanical, or chemical methods of controlling vegetation near conductors and electric facilities, but also inventorying, research, public education, and dealing with customer conflicts.83 Just as the United States’ electrical infrastructure has grown through technological improvements, the history of tools used for UVM is correspondingly marked by innovation and evolution. Originally, clearances for transmission and distribution lines were maintained manually with cutting tools such as saws and hatchets. Lightweight one-man chainsaws, sophisticated bucket trucks, herbicides, wood chippers, and growth regulators came later as innovations of the 1960s, 1970s, and 1980s.84 Today, helicopters and planes are commonly used to conduct aerial patrols and surveys to assess clearances.85 Looking to the future, utilities with progressive and technically sophisticated vegetation managers will increasingly gather and analyze data from power disturbance events that might identify problematic areas on the lines—particularly problematic tree species, or certain seasonal or weather-related threats. Such data can be valuable for targeting improvements and measuring the utility’s performance in vegetation management. As an example, utilities can cross-reference their vegetation management efforts with reliability indicators, such as the System Average Interruption Frequency Index (“SAIFI”), a metric which divides the total number of customers served by the total number of customer interruptions.86
83. See UVM FINAL REPORT, supra note 14, at 8. 84. See Chris Asplundh, Asplundh Evolutionizes Vegetation Management, TRANSMISSION & DISTRIBUTION WORLD, Mar. 2002, at 54; see also RICHARD J. CAMPANA, ARBORICULTURE: HISTORY AND DEVELOPMENT IN NORTH AMERICA 185–90 (1999) (chronicling the “postwar innovations and mechanization” of Asplundh Tree Expert Co., a globally dominant line clearance contractor); Gary Moll, Branches and Wires: The Conflict Above, in SHADING OUR CITIES: A RESOURCE GUIDE FOR URBAN AND COMMUNITY FORESTS 136 (Gary Moll & Sara Ebenreck eds., 1989). 85. See Dick Pursley & Byron Johnson, Monthly Aerial Patrols Promote Reliability, TRANSMISSION & DISTRIBUTION WORLD, June 2007, at 56. The newest technology combines laser surveying and data collection (known as LiDAR) with computer-based modeling. See Ken Belson, Along 240 Miles of Powerlines, Preparing Every Tower for Winter’s Wrath, N.Y. TIMES, Nov. 10, 2008, at A27; see also GEOFFREY P. KEMPTER, BEST MANAGEMENT PRACTICES: UTILITY PRUNING OF TREES 19 (2004) (“In some areas, saws might even be suspended from helicopters.”); Bryan Hooper & Tom Bailey, Aerial Surveys Calculate Vegetation Growth, TRANSMISSION & DISTRIBUTION WORLD, Oct. 2004, at 10; daveyonce, Helicopter Saw, YOUTUBE (Aug. 6, 2006), http://www.youtube.com/watch?v=KMQgt5YiD0w. 86. Eric Brown & Pete Dominguez, Eliminating Tree Caused Outages, TRANSMISSION & DISTRIBUTION WORLD, June 2008, at 17. 2011] A High-Voltage Conflict on Blackacre 17
There are substantial differences in UVM depending on whether work is performed on high-voltage transmission lines or on local lower-voltage distribution lines. Of the billions of dollars spent on UVM each year, as much as eighty to ninety percent goes to distribution line work.87 Distribution networks are vastly more extensive and “tree-ridden,” and the work requires more attention to public and landowner concerns. Distribution UVM more frequently involves trimming rather than tree removal—which in both the short and long run may be more expensive on a cost-per- tree basis.88 In contrast, transmission line UVM work, which tends to be located in more rural areas with fewer customers and landowners, involves less coordination and lower costs.89 As will be discussed more fully in Part III, modern transmission line easements are also relatively clear in allowing for low-cost UVM tools like mowing, herbicides, and tree removal in lieu of tree- conserving trimming operations.90 Even if more money is expended on distribution UVM, transmission UVM is the focus of continuing study because higher voltages directly correlate with the greater risk of arcing and the potential for massive outages. In the transmission UVM context, utilities want the most effective plan of action for removing trees and preventing them from taking root. Accordingly, some utilities forgo indiscriminate corridor mowing operations in favor of “integrated vegetation management” (“IVM”), which refers to their focused efforts to create a low-growing plant community, encouraging a modicum of habitat diversity while discouraging trees from taking root.91 These tree-resistant plant communities extend the maintenance cycle and also enhance aesthetic and ecological values.92 IVM sometimes also utilizes the “wire-border zone technique.” In this practice—increasingly regarded as a best management practice—a defined wire zone for low-growing plants
87. See UVM FINAL REPORT, supra note 14, at 8. 88. Id. 89. Id. at 9. 90. Id. 91. See Joe McPhail, Wildlife Flourishes Along with Progressive IVM, TRANSMISSION & DISTRIBUTION WORLD, Jan. 2008, at 40. 92. See Randall H. Miller, UAA Helps Utilities Meet NERC Standards, TRANSMISSION & DISTRIBUTION WORLD, July 2007, at 3. Among other things, IVM techniques may provide important wildlife habitats, help prevent soil erosion, and minimize the spread of invasive species. Integrated Vegetation Management (IVM) on Rights-of-Way Fact Sheet, ENVTL. PROTECTION AGENCY, http://www.epa.gov/pesp/htmlpublications/row_fact_sheet.html (last visited Jan. 13, 2011). 18 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 36:1 is created, and further from the wires, a border zone with trees that are small at maturity and tall shrubs.93 Implementation of the wire- border zone technique on transmission pathways frequently entails selective application of herbicides.94 Meanwhile, utilities heavily emphasize public education in carrying out UVM on distribution lines. Some utilities offer tree replacement programs to promote planting the “right tree in the right location.”95 These programs aim to remove fast-growing and taller problem trees in favor of low-growing, compact varieties.96 Tree replacements have also been promoted as pilot projects in some communities, potentially offering long-run financial benefits.97 Replacing problem trees with low-growing trees, such as dogwood, reduces the recurring need and cost for trimming during each UVM maintenance cycle.98 Aside from the obvious benefit of future electric reliability, the replacement may also ultimately provide a healthier tree for the landowner. For those trees that cannot be removed or replaced, whether due to the objections of the landowner or the lack of a replacement program, utilities are primarily left to conduct regular pruning and trimming operations. A frequent point of controversy in modern distribution line work has been the widespread use of directional pruning methods by utility arborists. Since the mid-1980s, most utilities have abandoned pruning methods that shape trees with a
93. Miller, supra note 92 (describing the wire-border zone technique as a “management philosophy” applicable to IVM). By creating a “stepped structure” across the corridor, the transmission facilities benefit from a stabilized adjoining forest stand, where neither falling trees nor vegetation canopy height would imperil the conductors. FRIEDRICH KIESSLING ET AL., OVERHEAD POWER LINES: PLANNING, DESIGN, CONSTRUCTION 717 (2003) (discussing changes in European utility company practices equivalent to the optimization aims of IVM). 94. Jennifer Arkett, Taming of the Shrubs, TRANSMISSION & DISTRIBUTION WORLD, June 2009, at 10. Interestingly, Rachel Carson’s Silent Spring, often remembered as a diatribe against the perils of pesticide usage, had touted the benefits of selective spraying of herbicides in the context of ROW management. RACHEL CARSON, SILENT SPRING 74–75 (40th anniversary ed. 2002) (“Treatment is directed only to trees . . . and the beauty of shrub and fern and wildflower has not been sacrificed.”) 95. Robert F. Lee & Richard S. Wolowicz, Trees, Utilities, and Municipalities, in URBAN AND COMMUNITY FORESTRY IN THE NORTHEAST 249, 257 (John E. Kuser, ed., 2007). 96. Id. 97. Mike Neal, The Right Tree in the Right Place, TRANSMISSION & DISTRIBUTION WORLD, June 2008, at 4; see also Debbie Messina, Near Lines, Short Trees Stand Tall, VIRGINIAN-PILOT, May 2, 2008, at B1. 98. See, e.g., NASHVILLE TREE FOUND., POWERLINE-APPROVED TREES 5, available at http://www.nespower.com/documents/powerlineapprovedtrees.pdf (listing dogwood trees alongside other trees that do not typically grow more than twenty feet tall as “powerline- approved”). 2011] A High-Voltage Conflict on Blackacre 19 uniform, “round-over” shape, because these methods tend to necessitate mid-branch cuts and create quick-growing sucker branches that are prone to grow toward the conductor.99 In contrast, directional pruning entirely removes several major branches growing toward the conductor, leaving a tree looking side-sheared or V-shaped.100 As an end result, the tree appears unsightly and unbalanced, even though utility arborists understand it to be stronger and healthier.101 Many affected property owners are not inclined or well-prepared to appreciate the sound arboricultural basis for this modern pruning method, and its handiwork is often a source of frustration and mistrust. Landowners may perceive aesthetically displeasing large branch removal as the result of laziness or incompetence on the part of the tree-trimming crew, or as a consequence of the utility’s improper desire to reduce costs.102 This appearance of being cheap, quick, and insensitive to aesthetics, however, belies the heightened sensitivity of directional pruning to the health and future survival of the tree.
D. Objections to UVM As suggested above, the methods and extent of UVM frequently conflict with the wishes of landowners or community tree advocates. However, these parties usually oppose UVM for somewhat different reasons. Community groups oppose the methods of UVM largely for aesthetic and environmental reasons, whereas homeowner objections tend to be more specialized and directly connected to property rights and appraisals. Recognizing the inevitability of these objections, utilities generally proceed with caution and give advance notice of UVM operations to communities and landowners, even when they have no legal obligation to do so.103 Promoting knowledge about utility line
99. Lew Rubin, Why Directional Pruning Works—And Why Customers Hate It, ELEC. WORLD, Nov.–Dec. 1999, at 31. 100. Id. 101. Directional pruning near utility lines is endorsed by the International Society of Arboriculture as well as in the tree care operations manual known as ANSI A300, a product of the American National Standards Institute. Id. 102. See Arguments Erupt as Utilities Cut Down Trees, MSNBC.COM (Jul. 13, 2005, 5:12 PM), http://www.msnbc.msn.com/id/25664094/. 103. See, e.g., Lee & Wolowicz, supra note 95, at 256–60 (“Utility arborists are always searching for a soapbox from which to disseminate line clearance information to the public.”). 20 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 36:1
clearance practices within communities helps to eliminate conflicts that may arise when a utility maintenance cycle calls for community-scale trimming or, more narrowly, when vegetation encroachments on a particular property demand more immediate attention.104
1. Community Objections Utility line clearance is a high-profile activity in dense communities with overhead power lines. Local newspapers around the country follow a predictable template in reporting tree- trimming controversies: an eye-catching headline, a dramatic before-and-after description of the local tree, and finally, some choice words from angered community residents alongside a company line from the utility spokesperson.105 In one colorful, common refrain, angered residents will accuse their utilities of “butchering” trees.106 One activist went so far as to contact media and city officials to complain of “tree terrorism.”107 Communities have long valued trees as part of their infrastructure. As early as 1635, the “Towne of Boston” enacted a law protecting shade trees, and planted what was perhaps the continent’s first public shade tree in 1646.108 This protectiveness of trees continued undiminished into the electrical age when overhead lines began to take residence in tree-space.109 Reported
104. See generally Anne Beard, Face-to-Face Contact, TRANSMISSION & DISTRIBUTION WORLD: VEGETATION MGMT., June 2010, at 14–17. Many utilities host informational sections on their public websites or prepare print materials designed to educate the public on their UVM efforts. See, e.g., AEP OHIO, UNDERSTANDING LINE CLEARING EFFORTS, available at https://www.aepohio.com/global/utilities/lib/docs/info/treetrimming/MiniTreeBrochure Ohio.pdf (utility brochure on distribution UVM). 105. See, e.g., Jim DeBrosse, Homeowners Say DP&L Crews Are Killing the Scenery, DAYTON DAILY NEWS, July 10, 2009, at A4. 106. See, e.g., Robin Foster, Residents Fear Trees Will Be Butchered by Trimming, HOUSTON CHRON., June 4, 2009, at 3. 107. Amy Smith, Enviro Activist Jones Takes on Austin Energy ‘Tree Butchers,’ AUSTIN CHRON., June 27, 2003, http://www.austinchronicle.com/gyrobase/Issue/story?oid=oid:165622. 108. Henry D. Gerhold, Origins of Urban Forestry, in URBAN AND COMMUNITY FORESTRY IN THE NORTHEAST 1, 15 (John E. Kuser ed., 2d ed. 2007). 109. Indeed, the emotional rhetoric of “butchery” is apparently as old as electrical infrastructure itself. See WILLIAM SOLOTAROFF, SHADE TREES IN TOWNS AND CITIES 146–48 (1911) (accusing “ruthless linemen” of butchery, “wanton destruction,” and facilitating “evil”); see also JOHN DAVEY, THE TREE DOCTOR: THE CARE OF TREE AND PLANTS 24 (1907) (referencing utility workers as “tree-butchers”). John Davey’s family company—“at first reluctant”—later became “the first of the national tree companies to clear lines for the utility industry in 1922.” RICHARD J. CAMPANA, ARBORICULTURE: HISTORY AND DEVELOPMENT IN NORTH AMERICA 297 (1999). 2011] A High-Voltage Conflict on Blackacre 21 decisions indicate, perhaps not surprisingly, that communities were not pleased to accommodate utility lines at the expense of their shade trees. Emblematic of these sentiments, a utility worker faced criminal prosecution in 1908 for damaging a shade tree when he trimmed branches that had created ground faults with an uninsulated telephone wire.110 While air conditioning in most homes and cars has perhaps eroded the public’s conception of a “shade” tree, a 1986 survey of U.S. cities found that sixty-eight percent had municipal shade tree ordinances.111 Community trees can attain protected status as matters of historical preservation,112 and long-lived trees of significant stature can become symbols of community character and pride.113 Further, communities understand that trees bring many benefits to urban settings, such as increased property values, potential energy savings by providing shelter or shade to homes, or tangible ecological benefits such as pollution remediation.114 Studies have even documented that human exposure to tree scenery can reduce stress and promote shorter hospital stays.115 Communities also generally understand that their quality of life hinges on a reliable supply of electricity, but utilities still struggle to communicate the extent of the need for UVM. For example, even as a community member could easily conceptualize the need for a minimum clearance to avoid the immediate risk of tree-to-line contacts, that same community member might not understand that the clearance to be achieved at the time of the trimming must account for future growth, conductor movement, and other factors
110. State v. Graeme, 108 S.W. 1131 (Mo. Ct. App. 1908) (holding that telephone company was without authority to mutilate or damage the trees for the accommodation of its line, but reversing the utility worker’s misdemeanor conviction for inadequate instructions on whether he acted with malice). 111. See Gerhold, supra note 108, at 16. 112. For example, under a 1993 “Heritage Tree Ordinance” in Portland, Oregon, the city council confers protected status on “trees that—because of their age, size, type, historical association or horticultural value—are of special importance to the City.” See Heritage Trees of Portland, PORTLAND PARKS & RECREATION, CITY OF PORTLAND, http://www.portlandonline .com/PARKS/index.cfm?c=40280 (last visited Jan. 1, 2011). 113. A utility company needing to perform UVM work in some neighborhoods can therefore be seen as insensitive to community history and morale. For example, and perhaps not surprisingly, a neighborhood association whose logo features a robustly crowned oak tree voiced newsworthy opposition to local tree trimming efforts. See Kathy Steele, Many No Longer Have It Made in the Shade, TAMPA TRIB., Sept. 23, 2009, at 16. 114. See generally, Sarah Ebenreck, The Value of Trees, in SHADING OUR CITIES, supra note 84, at 49. 115. Id. at 54. 22 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 36:1 that are not readily apparent. Opposition to UVM cycle work can organize quickly, so some utilities have learned to convene community meetings and meet with city planners proactively,116 lest community opposition frustrate or entirely halt planned UVM, as sometimes occurs. Community and neighborhood complaints to county commissioners can delay tree-trimming operations while aggrieved citizens lobby local government to change utility policy.117 Whether a community experiences conflicts between trees and utility lines in the first place frequently hinges on community planning. Newer suburbs and central city areas commonly place distribution lines underground, eliminating the conflict altogether. Relocating long-established overhead infrastructure in older communities, however, can be impractical and cost millions of dollars per mile.118 Poor planning in some cities has literally laid the roots for future conflict. In the 1930s, for example, large trees such as sycamores, ashes, oaks, and maples were commonly planted on city streets, but these classic American shade trees are also classic examples of “wrong tree, wrong place.”119 One arborist describes extant sycamores from this era as “veterans of a war with utilities that has lasted for decades and left many wounded beyond repair.”120 In some cases, utilities themselves are also responsible for future conflicts, having acquiesced in the planting and sustained growth of adjacent border trees as visual buffers, only to later encounter resistance to their removal when they finally pose a danger or when the utility seeks to “reclaim” the right-of-way.121 It is most frustrating for the utility arborists when homeowners plant trees near utility lines with distorted expectations of regular, free pruning by utilities.
2. Property Owner Objections Community objections to UVM may resonate with the
116. See Lee & Wolowicz, supra note 95, at 256–57. 117. See, e.g., Cathy Zollo, FPL Defends Need to Give Lines a Wide Berth, SARASOTA HERALD TRIB., Oct. 27, 2008, at BN1. 118. Mark Janick, Going Underground, ELECTRICAL WORLD, Nov. 2000, at 20. 119. See Moll, supra note 84, at 136–41. 120. Id. 121. See, e.g., Naomi Klouda, Owner Stumped by Tree Cutting, HOMER TRIB., Dec. 16, 2009, http://homertribune.com/2009/12/owner-stumped-by-tree-cutting (describing loss of “visual buffer” trees due to UVM). Reclaiming a right-of-way refers to the elimination of obstructions caused by overgrowth or neglect, and these operations may use heavy machines that are non-selective and not attuned to sensitive sites. See FAC-003-2 TECHNICAL REFERENCE, supra note 9, at 14. 2011] A High-Voltage Conflict on Blackacre 23 homeowner, but the homeowner may also have a uniquely personal or economic connection to a tree in need of trimming or removal. With each passing cycle of UVM, local press accounts around the country chronicle the objections of homeowners. Elimination of privacy,122 loss of shade,123 and decreases in property values124 are common causes for complaint.125 The removal or heavy trimming of a shade-providing tree, for example, can plausibly harm other landscaping in a yard with plantings calculated to thrive in the shade. Generally, trees are seen as adding value and attractiveness to property, while a highly visible overhead utility line is thought to reduce value.126 Removal of a tree that acts as a visual buffer for a nearby above-ground power line may therefore be a double loss, both aesthetic and economic. Additionally, some homeowners have significant emotional attachments to trees on their property. A tree may embody the pride of home ownership or evoke fond memories of childhood or loved ones, especially in cases where the owner or a relative of the owner has planted the tree and watched it thrive. In one striking example that gave rise to a recent lawsuit, a woman in Troy, Michigan, returned from vacation to find that her cherished maple tree had been demolished. She had planted the tree with her son fourteen years prior, and her son died soon after the planting. In relaying her anguish to the press, she said, “It’s not a tree to me. It’s my son.”127 Indeed, some trees may be considered simply irreplaceable. Another emotional source of objection is the visceral defense of private property itself. Not uncommonly, landowners view their right to property as sacrosanct, inviolate, and constitutionally guaranteed. Despite a utility’s ownership of an easement expressly
122. See, e.g., Paula J. Owen, Homeowner Feeling Exposed as Unitil Buzzes Through Trees, TELEGRAM & GAZETTE, Sept. 10, 2009, at B1. 123. See, e.g., Jim DeBrosse, DP&L’s Tree Trimming Riles Residents, DAYTON DAILY NEWS, July 10, 2009, at A1. 124. See, e.g., Connie Mabin, FirstEnergy’s Tree Policy Not Welcomed by Some Residents, WKYC.COM, Aug. 6, 2004, http://www.wkyc.com/news/news_article.aspx?storyid=21676. 125. A New York state senator’s office recently took dozens of UVM complaints from constituents; their concerns included noise, light pollution, wind damage, erosion, flooding, and the encroachment of invasive plants on soil once claimed by native hardwoods. Elizabeth Stanton, Power Lines Replace Pines as Tree Cuts Wreck Westchester Views, BLOOMBERG, Mar. 31, 2010, http://www.bloomberg.com/apps/news?pid=newsarchive&sid=akVyGl1vEcgs. 126. Id. (reporting that a landowner estimates “350 fresh tree stumps behind her family’s century-old farmhouse . . . hacked as much as $1 million off its value”). 127. Troy Woman Sues After Cherished Tree Trimmed, ASSOCIATED PRESS STATE & LOCAL WIRE, May 9, 2009. 24 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 36:1 permitting performance of UVM work, landowners may have a countervailing impulse to protect their property by demanding notice, limiting access, or otherwise dictating the terms of that work. In some cases, property owners have posted signs warning UVM personnel to stay off their land.128 Even for utility work not associated with vegetation removal, such as equipment inspections and other well-intentioned activities, a landowner may hold a narrow view of the utility easement holder’s rights to enter the land.129 The electric utilities industry has a relatively negative public image,130 and the degree of governmental involvement in validating the actions and profits of a utility only complicates that image. Supreme Court Justice Anthony Kennedy opened his majority opinion in Lawrence v. Texas by noting, “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition, the State is not omnipresent in the home.”131 While utilities that perform UVM and operate within the bounds of their easements do not act in a manner tantamount to an unconstitutional government intrusion, they must still contend with the fact that people disfavor intrusions on their property, generally, and unaesthetic UVM results, particularly.
3. The Customer Refusal The objections of a landowner or a community can effectively halt UVM. A customer “refusal” is UVM industry parlance for cases where the desired vegetation management plan is obstructed by a property owner.132 According to one approximation, “1–3% of all
128. Kantele Franko, Controversies Take Root as Utilities Cut Trees, THE FREE LIBRARY, July 13, 2008, http://www.thefreelibrary.com/Arguments+erupt+as+utilities+cut+residential+trees- a01611580740. 129. In a 2001 New York case, a transmission operator obtained an incidental takings permit from the United States Fish and Wildlife Service because its transmission lines passed through habitat for the endangered Karner Blue Butterfly. To effect its compliance with the mandates of the permit, the utility company commissioned a study from a local college of environmental science, prompting a property owner to sue after observing researchers on the land erecting “project habitat” signs. See McNeary v. Niagara Mohawk Power Corp., 728 N.Y.S.2d 840 (App. Div. 2001). This case is interesting because it represents a property owner objection to some of the habitat promotion activities associated with integrated vegetation management. 130. See Jeffery M. Jones, Several Industries Take Big Image Hit This Year, GALLUP, Aug. 14, 2008, available at http://www.gallup.com/poll/109468/several-industries-take-big-image-hit- this-year.aspx. 131. Lawrence v. Texas, 539 U.S. 558, 562 (2003). 132. See Paula Conner, When No Doesn’t Cut It, TRANSMISSION & DISTRIBUTION WORLD: VEGETATION MGMT., June 2005, at 10. 2011] A High-Voltage Conflict on Blackacre 25 property owners who are notified of pending UVM work on their property initially refuse to allow the utility the right or access to perform the work.”133 Most of these initial refusals can be resolved through subsequent discussions, negotiations, or examination of the easement terms, but some refusals are persistent and create a public danger. If a utility manages one million trees in its transmission corridors, which is not uncommon, and faces customer refusals on one-half percent of the trees, that utility company could conceivably face unmanaged, unpredictable risks from 5000 trees.134 Customer refusals are characteristically different in the transmission and distribution contexts. With transmission line UVM, customer refusals are relative rarities due to the isolation of transmission lines and, as will be discussed in Part II, the utilities’ advantage of broadly-worded and well-documented easement rights. While the most pressing obstacles in the transmission line context are still the regulatory hurdles presented by federal, state, tribal, and local land management agencies,135 private property owners can sometimes hinder UVM by imposing limits on the use of herbicides and tree removals.136 On the same day as the 2003 cascading blackout, an unrelated tree-to-line contact occurred in Indiana on land where the property owner had a temporary injunction blocking tree removals and herbicide application under the 345kV lines crossing his property.137 Even though the earliest transmission ROWs were constructed with grants establishing some rights to vegetation removal, early grants did not foresee that the use of herbicides would come to be a favored tool of vegetation management under high-voltage transmission lines.138 In contrast, customer refusals along distribution lines more
133. UVM FINAL REPORT, supra note 14, at 18. 134. Id. Pacific Gas & Electric, one of the largest utility companies in the U.S., reportedly experienced greater than 10,000 customer refusals in the span of six years. See Conner, supra note 132. 135. UVM FINAL REPORT, supra note 14, at 15. 136. Id. at 18. 137. Id. 138. In Biber v. Duquesne Light Co., 344 A.2d 628 (Pa. Super. Ct. 1975), the electric utility had previously maintained the right-of-way with manual labor, but in a later cycle a contractor used a chemical defoliant, which the appellants alleged had ruined their organic farming operation within the easement. On some of Duke Energy’s transmission ROWs, they distribute customer refusal forms for herbicide applications. See, e.g., DUKE ENERGY, CUSTOMER REFUSAL FORM FOR HERBICIDE APPLICATIONS (2007), available at http://townhall .townofchapelhill.org/agendas/2008/01/14/5c/additional_info-5c-wall_row_refusal.pdf. 26 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 36:1 typically stem from objections to pruning practices or to a utility’s request to remove a particular tree growing underneath or adjacent to overhead power lines.139 Documented easement rights for distribution lines are not always available or, as will be discussed further in Part III, may be defectively unclear or outdated. Accordingly, utility workers or contract workers tread with caution in the face of customer opposition, often postponing UVM to undertake customer relations diplomacy.140 Utilities, like any reasonable business, prefer to avoid lawsuits and aim to reduce physical confrontations posed to their workers and contractors. Generally, this translates into a preference for landowner education and, where necessary, offers of appropriate replacement trees or token compensation when easement rights are less than clear.141 The negotiated resolution to a customer refusal, however, may not always lead to the best result for electric reliability or for the tree. In some cases, customers might allow trimming but refuse recommended tree removal, even when removal may be the only way to prevent a towering tree from making contact with the lines during high winds.142 The important conclusion is that customer refusals may interfere with UVM notwithstanding any legal determination on the easement-based property rights of either the utility or the landowner.
II. OVERVIEW OF THE REGULATORY ENVIRONMENT FOR UVM
Utility companies are not averse to standards and regulations that can aid them in publicly explaining their duties to conduct vegetation management. Prior to the cascading blackout of 2003, a landowner who called a utility company to complain about over- trimming may have been told about Occupational Safety and Health Administration (“OSHA”) safety regulations or fire safety
139. See UVM FINAL REPORT, supra note 14, at 8–9. 140. See, e.g., Suzanne Curley, The Branch Manager, NEWSDAY, Mar. 14, 1999, at G12 (profiling customer relations approaches of Long Island utility). “In required sensitivity- training classes, crew members are told that when the going gets rough, they themselves should get going rather than engage in a confrontation.” Id. 141. See, e.g., Seth Slabaugh, Muncie Tree-Removal Program Raises Ire, STAR PRESS (Muncie, Ind.), June 25, 2009 (describing how a utility offered a landowner compensation to pay for replacement trees). 142. One amateur video-recorded instance of tree-to-line contact has become an Internet sensation, certainly for the town of Bellingham, Wash., which experienced the outage and heard the explosion. See Jacquee816, Original! Bellingham Carolina & Grant St Tree Fire Explosion, YOUTUBE (Oct. 3, 2009), http://www.youtube.com/watch?v=kVXi_0H_ZzM. 2011] A High-Voltage Conflict on Blackacre 27 codes. A utility would also probably have referenced National Electric Safety Code Rule 218 (“Rule 218”) as the guideline that governed UVM.143 The rule, adopted by most state utility commissions at that time, stated in relevant part:
Trees that may interfere with ungrounded supply conductors should be trimmed or removed. Note: Normal tree growth, the combined movement of trees and conductors under adverse weather conditions, voltage, and sagging of conductors at elevated temperatures are among the factors to be considered in determining the extent of trimming required.144
This may loosely be termed a “standard,” albeit a wholly subjective one. Two utilities operating in the same geographic area might apply Rule 218 differently, or ignore it altogether, and the rule was never interpreted as requiring mandatory clearances.145 To the extent Rule 218 actually impacted UVM, it has been overshadowed by a new post-blackout regulatory environment— one that increasingly regulates UVM at the federal and state levels. Most significantly, these regulatory developments have ushered in mandatory clearance standards for the transmission industry.
A. Federal Developments Congress took swift action to study and attempt to eliminate the grid management shortcomings that contributed to the 2003 cascading blackout.146 The primary solution took form in the Energy Policy Act of 2005 with the authorization for a new “electric reliability organization” responsible for creating and enforcing mandatory reliability standards.147 Shortly thereafter, the North
143. See UVM FINAL REPORT, supra note 14, at 9–10. In Segraves v. Consolidated Electric Cooperative, 891 S.W.2d 168, 171–72 (Mo. Ct. App. 1995), the court held that Rule 218 did not give the utility company the authority to remove trees when removal was unnecessary and trimming was an option. 144. UVM FINAL REPORT, supra note 14, at 10. 145. Id. 146. The day after the blackout, the U.S. President and Canadian Prime Minister directed the establishment of an investigatory U.S.-Canada Power System Outage Task Force. BLACKOUT FINAL REPORT, supra note 19, at 1. House and Senate committees and subcommittees began to receive initial testimony on the blackout the following month. See Power Blackout, FED. ENERGY REGULATORY COMM’N, http://www.ferc.gov/industries/electric/ indus-act/reliability/blackout.asp (last visited Nov. 2, 2010). 147. 16 U.S.C. § 824o (2006); see also U.S. Electricity Industry Enforces Mandatory Reliability Standards, TRANSMISSION & DISTRIBUTION WORLD, July 2007, at 12. FERC approved the application of the North American Electric Reliability Council to serve as this electric 28 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 36:1
American Electric Reliability Corporation (“NERC”)—formerly a voluntary industry organization—assumed watchdog responsibility under the Federal Energy Regulatory Commission (“FERC”) for federal enforcement of reliability standards, which include mandatory vegetation clearance standards.148 The clearance standards, known collectively as FAC-003-1,149 apply to transmission lines rated at 200kV and higher, as well as any lower-voltage lines designated as critical to reliability by regional reliability organizations that report to NERC.150 FAC-003-1 also sets minimum clearance distances as “no less than those set forth in the Institute of Electrical and Electronics Engineers (IEEE) Standard 516- 2003 . . . and as specified in its Section 4.2.2.3, Minimum Air Insulation Distances without Tools in the Air Gap.”151 In contrast to Rule 218, this standard provides fixed numerical clearance distances, specifying that transmission lines at a given elevation and a given voltage shall not be encroached by vegetation within a given distance. Currently, FAC-003-1 is under revision and may be supplanted by FAC-003-2,152 which proposes a different set of minimum vegetation clearance standards derived through what is known as the Gallet Equation.153 The equation assumes that trees constitute
reliability organization on July 20, 2006. Id. 148. See Oren Dorell, Utilities Trim Trees Near Power Lines or Risk Being Fined ‘Serious Money’; Fines Can Go as High as $1M a Day, USA TODAY, Aug. 12, 2008, at A4 (discussing the increased enforcement and fining of utilities by NERC for noncompliance with mandatory tree trimming provisions). 149. The “FAC” designation signifies its categorization under standards dealing with “Facilities Design, Connections and Maintenance.” See Reliability Standards, N. AM. ELEC. RELIABILITY CORP., http://www.nerc.com/page.php?cid=2|20 (last visited Nov. 2, 2010). 150. NERC’s Transmission Vegetation Management Program Standard, TRANSMISSION & DISTRIBUTION WORLD, Nov. 2006, at 2. FERC rulemaking recently expanded the jurisdictional reach of NERC oversight through Order 743 issued November 18, 2010, however, the agency pointedly reassured one commenter that “any revised bulk electric system definition” would change the pre-established thresholds for enforcement of the standard for vegetation management. 151. FAC-003-1, supra note 48, at 2. 152. FAC-003-2 did not pass a vote among stakeholders on July 19, 2010. See Ballot Results, N. AM. ELEC. RELIABILITY CORP., http://www.nerc.com/docs/standards/sar/2007-07_In- ballot_Results_2010July20.pdf (last visited Nov. 2, 2010). However, the draft standard will be revised and recirculated for a future vote. 153. FAC-003-2 TECHNICAL REFERENCE, supra note 9, at 42. The reason for the desired shift to Gallet Equation distances is that the IEEE established distances were “safety clearances developed under laboratory conditions” and therefore not ideally applied to field conditions. See NERC VEGETATION MGMT. STANDARD DRAFTING TEAM, COMMENT FORM— TRANSMISSION VEGETATION MANAGEMENT STANDARD FAC-003-2 4 (2008), available at http:// www.nerc.com/docs/standards/sar/Comment_Form_FAC-003-2_VMSDT_27Oct08.doc. 2011] A High-Voltage Conflict on Blackacre 29 large objects near high-voltage lines and computes the risk of arcing (or, in the roughly equivalent, highly technical language of the draft standard, the “critical flashover voltage of various air gap geometries”).154 Because air can insulate against flashover,155 transmission lines in thin-aired higher altitudes require greater clearances (thin air provides less insulation), according to both the Gallet Equation used in FAC-003-2 and the IEEE Standard of FAC-003-1.156 FAC- 003-1 also requires utilities to determine and document the clearance distances to be achieved at the time of UVM work, and to formulate clearance distances that account for local conditions and the expected time frame in which future UVM work will be conducted.157 Transmission line operators are also expected to document their efforts and report their own shortcomings, including outages that may have been preventable by vigilant vegetation removal.158 In June 2008, NERC issued its first penalties for noncompliance with its vegetation clearance standard—two fines totaling $255,000.159 That summer, a NERC director of compliance emphasized the regulatory focus on safety and reliability, adding, “We’re not concerned about the health of trees or aesthetics.”160 While utility arborists may protest this word choice because UVM generally does concern itself with the health of trees,161 the aggressive stance of NERC allows for more assertive UVM on the part of utilities. To effectuate compliance, some utilities now
154. FAC-003-2 TECHNICAL REFERENCE, supra note 9, at 43. 155. Flashover is defined as an “electrical discharge through air around or over the surface of insulation.” FAC-003-1, supra note 48, at 2. 156. FAC-003-1, supra note 48, at 2; FAC-003-2 TECHNICAL REFERENCE, supra note 9, at 43. 157. FAC-003-1, supra note 48, at 1–2. 158. See id. at 3. Vegetation related outages (excluding those caused by “natural disasters” or “human or animal activity”) are to be categorically reported as grow-ins, fall-ins from vegetation in the ROW, and fall-ins from vegetation outside the ROW. Id. 159. Dorell, supra note 148, at A4; see also NERC Reports, Fines Some Reliability Violators, MEGAWATT DAILY, June 5, 2008, at 1. Fine revenues are directed to the general budgets of regional reliability organizations. See FERC Wants More from NERC Reports, MEGAWATT DAILY, July 7, 2008, at 11. 160. Dorell, supra note 148, at A4. 161. For example, as previously stated, directional pruning methods are designed to support the long-term health and survival of the trees. See supra text accompanying notes 99– 102. Unhealthy trees are a threat to reliability. See supra text accompanying note 53. A string of mild winters in British Columbia led to widespread infestation of the mountain pine beetle, necessitating abatement of 1.5 million hazard trees along power line corridors. See Jeff Connors & Brian Fisher, Dead Trees Threaten BC Hydro Power Lines, TRANSMISSION & DISTRIBUTION WORLD, July 2007, at 8. 30 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 36:1 choose to remove rather than trim trees, angering local landowners.162 Other utilities have followed suit and have reasserted easement rights with tree removals even on sub- transmission lines below the 200kV threshold.163 As noted by energy attorney Scott Grover, “FERC recently found itself forced to post a Vegetation Management FAQ document, in which it attempted to create some distance between itself and public angst [about aggressive changes in UVM practices] by highlighting the vegetation management practices that were not under its jurisdiction.”164 Nonetheless, the new enforcement culture of NERC, fostered under the penalty review authority of FERC, likely contributes to aggressive UVM practices on lower voltage lines. Utility workers might now justify more robust UVM policies as products of federal requirements.165 FAC-003-1 has caused utilities to devote greater attention and resources to UVM and how they document it. Some utilities have purchased new technology to establish tree inventories, monitor vegetation issues, and digitally organize maintenance records to facilitate reporting and responses to investigatory requests from the regional reliability entities subordinate to NERC.166 These upgrades open the door to advanced system data analysis of problem areas on the circuits.167 The multi-billion dollar UVM industry is thus undergoing unprecedented modernization and preparing itself for the long-term realities and exigencies of regulatory oversight.
162. See Klouda, supra note 121. Whether or not these actions accord with best management practices cannot be answered in the abstract. Reclaiming a right-of-way, see supra note 121, necessarily admits of neglectful past management, but it may be necessary to make way for introduction of compatible replacement vegetation and IVM. 163. See, e.g., Chris Rickert, Trimming Required, Desired?; Property Owners are Upset that American Transmission Co. is Cutting Trees, but the Company Says it Must Protect the Lines, WIS. ST. J., Oct. 16, 2009, at A1. 164. Scott Grover, FERC Guidance Order Shows Inter-Agency Tension, 23 NAT. RESOURCES & ENV’T 61, 62 (2009). FERC’s vegetation management FAQ can be found at http://www .ferc.gov/industries/electric/indus-act/reliability/blackout/vm-faq.pdf. 165. According to several news reports around the country, it appears homeowners have been falsely informed that “new” federal rules govern the UVM practices on lower-voltage distribution lines. See, e.g., Rickert, supra note 163. 166. Paul Hurysz, Jr. & Jon Crider, Technology Advances Vegetation Management, TRANSMISSION & DISTRIBUTION WORLD, Oct. 2009, at 48. Documentation on compliance with all reliability standards, including FAC-003-1, is also needed for readiness and compliance audits. See Cristin Lyons et al., NERC Standard and Standards Compliance: Still a Work in Progress?, ELECTRICITY J., April 2008, at 29. 167. See Ward Peterson, Electric Reliability and Outages, TRANSMISSION & DISTRIBUTION WORLD, Nov. 2005, at 12. 2011] A High-Voltage Conflict on Blackacre 31
B. State Developments The impact of new federal UVM oversight has yet to fully reverberate at the state level. FERC’s authority to regulate rates extends to “wholesale” transmission of electricity on interstate lines with higher operating voltages, but states still largely maintain traditional regulatory authority over public utilities.168 When state PUCs set rates for retail sales of electricity or otherwise place demands on the retail market for electricity, they also impose obligations that utilities provide reliable service.169 Vegetation management expenses have always been reviewable by state authorities as operating costs recoverable in the administratively established rates charged to electricity consumers,170 but vegetation management can also be directly regulated under the obligation of utilities to provide a reliable supply of electricity within the state. Despite traditional state regulation in this area, the new federal reliability enforcement regime may affect electricity distribution on lower voltage lines. Gallet’s Equation calculates clearance distances equally well for transmission lines with voltages below 200kV—that is, the sub-transmission lines generally not under the enforcement purview of NERC or its regional reliability organization. For example, clearance distance tables in FAC-003-2 compute a minimal distance of 0.82 feet for 69kV lines at sea level.171 State PUCs might justifiably adopt this science-based distance as a mandated clearance and require self-reporting of outages related to failures to attain the clearance. Currently, Oregon and California are the only states to mandate minimum clearances.172 In fact, California led the country on vegetation clearance standards by establishing an “18-inch rule” in 1997—a rule requiring eighteen inches of clearance between conductors and vegetation at all times.173 One California utility, PG&E, reported that it was necessary to triple the vegetation budget to shorten
168. See Spence, supra note 76, at 769. 169. See id. 170. See OFFICE OF LEGISLATIVE RESEARCH, CONN. GEN. ASSEMBLY, 96-R-1452, UTILITY TREE TRIMMING POLICIES IN NEIGHBORING STATES (1996). 171. FAC-003-2 TECHNICAL REFERENCE, supra note 9, at 47. 172. Stephen Cieslewicz & Will Porter, CN Util. Consulting, Inc., National Surveys of Laws and Regulations Pertaining to Utility Vegetation Management (UVM), UTIL. ARBORIST ASS’N, http://www.utilityarborist.org/images/Training/Laws_and_Regs.pdf (last visited Jan. 1, 2011). 173. See CAL. PUB. UTIL. COMM’N, GENERAL ORDER NO. 95 RULE 35 (2006), http://docs.cpuc.ca.gov/published/graphics/52593.pdf. 32 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 36:1 maintenance cycles and achieve compliance.174 Even in the absence of mandatory clearance standards, state utility commissions are increasingly focusing on reliability as a performance consideration and scrutinizing UVM as a utility business practice.175 For example, less than a year after the 2003 blackout, the Oklahoma Corporation Commission created stricter reliability standards that addressed vegetation management.176 Many other state utility commissions require annual UVM reports, have adopted mandatory UVM cycles, or approve UVM plans and subject them to audits.177 In response to the escalating pressure, utility companies are starting to use “increased vegetation management” as a basis to request rate increases.178 Even if such rate increase requests are denied, states will want to ensure that utilities with inflexible UVM budgets are not over-allocating their financial resources to transmission line work to meet federal mandates while harming reliability at the distribution level.
III. TRADITIONAL EASEMENT RIGHTS APPROACH TO RESOLVING TREE-OWNER/ELECTRIC UTILITY CONFLICTS
The previous Parts of this Article have provided context for conflicts between tree owners and electric utilities. As stated at the outset, these disputes can give rise to lawsuits. Courts conventionally resolve these lawsuits by examining an express grant of easement, that is, a written grant that defines the purpose of the easement and the terms under which the land is burdened.179 Even
174. Jeffrey Butler, Thriving in a Compliance-Driven Environment, TRANSMISSION & DISTRIBUTION WORLD, June 2005, at 8. 175. Cieslewicz & Porter, supra note 172, at 4. 176. Okla. Regulators Approve Stricter Reliability Standards, MEGAWATT DAILY, Mar. 26, 2004, at 3. 177. Cieslewicz & Porter, supra note 172, at 4. 178. See Kelly Harrington, Texas Approves Base Rate Increase for SWEPCO, SNL ELECTRIC UTILITY REPORT, Apr. 26, 2010. 179. See, e.g., Sharkey v. Barron Elec. Coop., 516 N.W.2d 22 (Wis. Ct. App. 1994) (holding that easement language permitted cutting vegetation to keep it clear of the electric lines, but did not permit “hydro-axing” of all vegetation in the easement). But see Terry v. Hancock- Wood Elec. Coop., 2009-Ohio-4925, No. E-08-060, 2009 WL 2986389 (Ohio Ct. App. Sept. 18, 2009), at ¶ 39 (no express easement, however, utility had the right to conduct vegetation management under a line clearance provision in the electric cooperative member application); Motes v. PacifiCorp, 217 P.3d 1072, 1076–78 (Or. Ct. App. 2009) (no express easement, however, the utility acquired a prescriptive easement which included the right to conduct vegetation management). In contrast to the rights commonly established by easement or contract in the United States, utility companies in England may install overhead lines under what is known as the “wayleave” system, which may allow for payment of annual 2011] A High-Voltage Conflict on Blackacre 33
the earliest electric utility easements featured applicable grant language that dealt generally with the need for maintenance of the power lines and specifically addressed the need to take some form of action to manage trees and other vegetation.180 Surprisingly, although lawsuits have long centered on how to interpret the language in utility easements, no previous scholarship has given this type of conveyance much discussion, much less identified the interpretive challenges specific to such easements.181 A utility company may initially acquire its easement through a negotiated agreement with the landowner or, where an agreement cannot be reached, through condemnation proceedings under the utility’s eminent domain power.182 Utilities are particularly likely to hold these easements for transmission lines and sub-transmission lines that leave larger infrastructural footprints.183 By contrast, lower-voltage distribution poles situated in residential areas are often part of a city’s public right-of-way, in which case, fee simple title in the underlying land frequently does not rest with the adjacent landowner.184 Interpretation of utility easements is complicated by the fact that there are many different kinds of right-of-way easements and great
rents and compensation. See BRIAN WAREING, WOOD POLE OVERHEAD LINES 10–13 (A.T. Johns & D.F. Warne eds., 2005). 180. See, e.g., LOUIS E. CLARK, JR. & F.H. TREADWAY, JR., IMPACT OF ELECTRIC POWER TRANSMISSION LINE EASEMENTS ON REAL ESTATE VALUES 28–33 (1972) (reprinting terms of 1929 transmission easement). 181. This observation contrasts quite starkly with scholarship on long-running issues in the interpretation of conveyances for oil and gas development. See, e.g., David E. Pierce, Interpreting Oil and Gas Instruments, 1 TEX. J. OIL, GAS, & ENERGY L. 1 (2006). However, recommendations for improvements in interpretation jurisprudence in that arena—that is, to the extent entrenchments of precedent are avoidable—would not further the objectives of UVM. Vegetation clearance standards and unambiguous best management practices may govern the appropriateness of modern UVM actions, but those practices may have no realistic connection to what parties intended or understood in originally granting the easement. 182. See, e.g., Tex. Pub. Utils. Co. v. Bass, 297 S.W. 301 (Tex. Civ. App. 1927) (determining damages stemming from a condemnation proceeding initiated by a utility company against landowners for an easement for a transmission line). 183. See, e.g., PUB. SERV. COMM’N OF WIS., RIGHT-OF-WAY AND EASEMENTS FOR ELECTRIC FACILITY CONSTRUCTION (2009), available at http://psc.wi.gov/thelibrary/publications/ electric/electric02.pdf (explaining that “[l]arger projects require a certificate of public convenience and necessity,” which is ordinarily a precursor to the utility seeking to purchase easements primarily by negotiation and secondarily by use of the state statutory right of eminent domain.”). 184. See Johnson v. City of Chattanooga, 191 S.W.2d 175, 176 (Tenn. 1945) (holding that shade tree owner could not recover damages because city had right to install electric power lines on sidewalk pursuant to transportation easement and could trim adjacent shade trees). 34 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 36:1
variations in the language used to authorize vegetation removal. Utility easements can vary depending on their age, their location, the utility company, and the type of transmission or distribution lines that were planned for the property. They may also vary depending on how the easement rights were originally acquired.185 A utility might secure broader easement language and greater rights by negotiating and purchasing those rights directly from a landowner, as compared with holdout cases, where the landowner is represented by counsel, or cases involving contested condemnation proceedings.186 On the other hand, in a negotiated easement, the utility company may consent to narrower easement language. For example, a utility company may agree to accommodate the landowner who contemplates raising crops beneath the transmission lines, even providing compensation for any damage to crops.187 The negotiator for the utility company may decide that acceding to such catered terms is preferable to the trouble or expense of more protracted proceedings, even though such terms may prove to be problematic in a future dispute. Despite the lack of uniform terms, utility easements almost invariably contain provisions that expressly confer to the utility the right to conduct some form of vegetation management. Some provisions are drafted in a way that seeks to precisely define the methods and extent of UVM activities allowed,188 while other
185. The fact that a utility company has statutory eminent domain authority or a “certificate of convenience and necessity” from FERC or a state agency that would trigger that authority does not necessarily obviate a requirement for the utility to at least make an offer to purchase the easement before filing a condemnation suit. See, e.g., Tex. Prop. Code Ann. § 21.012 (West 2010). Whether a utility’s purchase offer must be fair in terms of price or must limit itself only to the property rights obtainable by eminent domain is also quite controversial. See generally Hubenak v. San Jacinto Gas Transmission Co., 141 S.W.3d 172 (Tex. 2004) (holding that a gas utility condemnor could commence a condemnation suit, notwithstanding landowner allegations that the condemnor sought extra properties and failed to negotiate in “good faith”). 186. In Florida Power Corp. v. Griffin, 144 So.2d 104 (Fla. Dist. Ct. App. 1962), the utility secured a right-of-way 100 feet in width, but was prevented from acquiring the perpetual right to remove “danger trees” outside that easement. See also Ark. Power & Light Co. v. Potlatch Forest, Inc., 707 S.W.2d 317, 320 (Ark. 1986) (holding, under Arkansas law, that condemnation of a danger tree area was not permissible). As discussed in Part IV, infra, provisions to remove danger trees were standard for easements obtained for transmission projects, including those proceeding under federal authority. See CLARK & TREADWAY, supra note 180, at 28. 187. See Marshall v. Ga. Power Co., 214 S.E.2d 728 (Ga. Ct. App. 1975) (transmission easement providing fair market value compensation for damages to “growing crops or fruit trees or timber” did not include Christmas trees). 188. Notwithstanding the fact that litigation ensued over alleged ambiguities in the 2011] A High-Voltage Conflict on Blackacre 35 provisions couch the rights of the utility company in vague or discretionary language. This may represent carelessness, or perhaps an attempt to afford the utility greater flexibility.189 Transmission and distribution easements are characteristically distinct in the manner in which these rights are defined, and they merit separate discussion.
A. Transmission Easements The design features of transmission lines are different from those of distribution lines. Whereas distribution lines are erected on steel or treated wood utility poles, transmission lines generally are taller and erected on steel structures, usually a lattice tower, also called an electricity pylon. Transmission lines are larger and more dangerous, and by their very nature require broader easements that allow not only for the trimming and cutting of trees, but also for their wholesale removal.190 As the transmission industry spread across the United States, easement grants became standardized in one important respect: for each type of transmission line (in voltage) and type of tower structure planned, there are clear zones of transmission line activity, such as 50, 75, or 100 feet in width.191 In contrast to the modern standard system, the prototypical transmission line easement from 1929 gave no width, but provided the “right to fell or trim any trees, or brush, and remove same . . . along [the] line . . . whenever or wherever . . . necessary . . . to erect, construct,
provision that follows, its drafter at least attempted to outline the spectrum of allowed UVM activities: “The Cooperative shall have the right to clear the right-of-way of all obstructions, to cut and trim trees within the right-of-way or chemically treat trees or shrubbery with herbicides and to cut down from time to time all dead, weak, leaning, or dangerous trees that are tall enough to strike the wires in falling.” Parks v. DeWitt Cnty. Elec. Coop., 962 S.W.2d 707, 711 (Tex. App. 1998), rev’d, 1 S.W.3d 96 (Tex. 1999) (quoting from 1988 easement). 189. An example of vague, discretionary language follows: “The Grantee shall at all times have the right to control, cut, trim and remove trees, limbs and brush which in its opinion may interfere with the exercise of its rights hereunder or endanger said facilities.” See Larew v. Monongahela Power Co., 487 S.E.2d 348, 351 (W. Va. 1997) (quoting from 1975 “distribution” easement). To note the vagueness of the provision is not to suggest a court would necessarily find it to be ambiguous, allowing for the admission of extrinsic or parol evidence. 190. See, e.g., Duke Energy Corp. v. Malcolm, 630 S.E.2d 693 (N.C. Ct. App. 2006) (holding that easement terms permitted utility to demand that right-of-way be kept clear of all structures and trees even when there is no interference with the ability to transmit electricity). 191. See CLARK & TREADWAY, supra note 180, at 28–31. 36 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 36:1 operate and maintain . . . [the] lines clear and free from obstructions.”192 Later transmission line easements would have the essential elements of a deed, including the description of the property conveyed in terms of width, if not also the metes and bounds or a survey description.193 The language of a typical transmission line easement granted to the United States instructively illustrates the contours of a present- day easement holder’s rights to remove vegetation. Generally, the easement includes the “perpetual right to . . . clear said right of way and keep the same clear of brush, trees, buildings and fire hazards; to destroy or otherwise dispose of such trees and brush; and to remove, destroy, or otherwise dispose of danger trees, if any, located beyond the limits of said right of way.”194 This easement is distinguishable from most distribution line easements because of two distinctive provisions: the “clear or remove” provision and the “hazard tree” provision. Even when both of these provisions are present in a transmission easement, however, they do not always preclude legal disputes between a landowner and the easement- holding utility company. The “clear or remove” provision can be expressed in a variety of ways, but the basic purpose is to empower the utility company to clear and remove vegetation and physical obstructions, including structures, in proximity to the transmission lines. Under high- voltage lines, the actual extent of this work is relatively clear if the utility regularly mows or practices UVM in the transmission corridor. However, in cases where a utility seeks to reclaim an overgrown and long obstructed right-of-way, landowners may argue that the provision should be read narrowly in light of past practices or equitable factors.195 The “clear or remove” provision might be weakened if it invokes lesser actions (e.g., “clear or remove or trim”) that could limit the discretion of the company or invite the
192. Id. at 28. 193. Early electric utility easements, in particular, might also only detail the width of the corridor without determining where construction will take place—thereby establishing a so- called “floating easement.” See Los Angeles v. Howard, 53 Cal. Rptr. 274 (Dist. Ct. App. 1966). Construction of transmission facilities will physically establish, for perpetuity, exactly where the strip of land crosses the property. See id. 194. CLARK & TREADWAY, supra note 180, at 29. 195. The parol evidence rule would bar the admission of most extrinsic evidence for an unambiguous easement. Moreover, if a landowner alleges the easement had been altered by a “gentlemen’s agreement” not to trim certain trees, the utility company can likely raise a defense under the statute of frauds. See Larew v. Monongahela Power Co., 487 S.E.2d 348, 351 (W. Va. 1997). 2011] A High-Voltage Conflict on Blackacre 37 application of a reasonableness analysis. A “clear or remove” provision might also restrict removable vegetation to plants that “may interfere” with transmission structures.196 Such language might tempt an owner to litigate the scope of the easement, perhaps arguing that clear-cutting or application of herbicides is not permitted.197 The “hazard tree” or “danger tree” provision recognizes the threat of taller trees outside of the easement falling onto the transmission lines or supporting structures.198 The strength of the provision depends on how, if at all, the easement defines a danger tree. The strongest sort of provision defines the term danger tree to mean any or all trees that could strike a transmission line structure or come within a specified distance of a conductor if it were to fall in the direction of a transmission line.199 A well-drafted example follows: “[A danger tree is] any tree in the proximity of a transmission line, which if felled, or upon falling, could fall within five feet of any conductor or other facility included within such transmission line.”200 Provisions for higher-voltage lines often have larger clearance distances and might protect, for example, against trees that would fall “within [ten] feet.”201 Under this sort of provision, the utility company has the unchecked discretion to remove the tree, even if otherwise healthy. It bears noting, however, that a landowner might attempt to top it or trim it beforehand so as to remove it from the definition. More stringent provisions might also permit removal of collateral trees in order to access danger trees or provide escape routes.202
196. See Beaumont v. FirstEnergy Corp., 2004-Ohio-5295, 2004 Ohio App. LEXIS 4780 (Ct. App. Sept. 30, 2004), at ¶ 22 (“[T]he wording of [may and interfere] readily indicates that the right to remove was meant to apply to trees which could ultimately interfere with, or pose a future threat to, the operation of the power lines.”). 197. See Kell v. Appalachian Power Co., 289 S.E.2d 450 (W. Va. 1982) (easement allowing utility company to “remove” trees did not permit aerial broadcast spraying of herbicides). 198. See Pryde v. Delmarva Power & Light Co., No.06C-12-195 PLA, 2009 Del. Super. LEXIS 44, at *12 (Super. Ct. Feb. 17, 2009) (“Utility easements often include . . . provisions permitting the removal of so-called ‘hazard trees’ from portions of a grantor’s property adjacent to the easement”). 199. See, e.g., Evans v. Tenn. Valley Auth., No. 90-5058, 1991 U.S. App. LEXIS 353, at *2 (6th Cir. Jan. 8, 1991) (providing example of easement where trees that could fall within ten feet of a conductor are removable danger trees). 200. See Fla. Power Corp. v. Griffin, 144 So.2d 104, 104 (Fla. Dist. Ct. App. 1962). 201. See CLARK & TREADWAY, supra note 180, at 30. 202. Although Lacy v. Alabama Power Co., 779 So.2d 1184 (Ala. 2000), held that a landowner could not obtain compensation for removal of collateral trees and other property damage incident to the removal of a hazard tree, transmission easements would generally be wise to address this contingency and expressly state whether damages are cognizable. 38 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 36:1
A narrower “danger tree” provision only defines danger trees as dead, weak, or dying trees, or trees that otherwise pose a unique risk to the infrastructure.203 Here, the landowner has more room to dispute the removal of a live tree or the reasonableness of any determination that the tree constitutes a danger, notwithstanding the tree’s hypothetical ability to fall into transmission facilities. In the absence of any hazard tree provision, a utility’s right to remove trees that may fall into the wires is also unpreserved, or at least questionable, under the conventional easement construction approach.204
B. Distribution Line Easements In contrast to transmission line easements, distribution line easements generally do not feature a “clear or remove” provision and infrequently contain “danger tree” provisions. Instead, the rights of the utility to conduct UVM are typically circumscribed by some form of “cut and trim” provision.205 In isolation, and according to plain language, the utility’s express authority to trim does not encompass the power to cut down or remove trees altogether.206 However, as stated above, the word “trim” is usually accompanied by the word “cut” and additional language that may lead to disagreement about the permissible extent to which a utility may conduct UVM activities. An argument for more aggressive UVM practices would advocate that “cut” implies “cut down,” allowing for tree removal or clear-cutting.
203. A 1990 transmission easement grants the right to remove trees, which, in the opinion of the transmission operator, “are or may be a hazard,” but states that trees valuable for wood or timber remain the grantor’s property. See Anderson v. Transmission Agency of N. Cal., No. 2:08-cv-1785-GEB-KJ, 2008 U.S. Dist. LEXIS 95468, at *3 (E.D. Cal. Nov. 21, 2008). 204. See Coos Cnty. Sheep Co. v. United States, 331 F.2d 456 (9th Cir. 1964) (holding condemnation award was necessary for removal of live trees that were hazardous only in the sense they could hypothetically fall into the wires; preexisting deed of easement had no “danger tree” component). 205. See, e.g., Polk-Burnett Elec. Coop. v. Pavlicek, 2003 WI App 111, ¶ 2, 2003 WL 1702482 (Wis. Ct. App. Apr. 1, 2003) (quoting 1945 easement affording right to “cut and trim trees and shrubbery to the extent necessary to keep them clear of said electric line or system . . .”). 206. See Duresa v. Commonwealth Edison Co., 807 N.E.2d 1054, 1063 (Ill. App. Ct. 2004) (easement providing only the “right to trim” trees “limited defendant’s authority to trimming of trees and bushes only”). But see Miller Lagro v. N. States Power Co., 582 N.W.2d 550, 553 (Minn. 1998) (holding that local ordinance granting utility authority to “trim” trees on public property included the authority to cut down and remove trees if reasonable and necessary to maintain power lines). 2011] A High-Voltage Conflict on Blackacre 39
Perhaps not surprisingly, different courts have arrived at different, even conflicting, conclusions in interpreting cut and trim provisions. A court might support an interpretation that allows aggressive UVM or it might strictly construe the easement to permit the greatest possible use of the property by its owner. In 1950, the Kansas Supreme Court held that an easement to “cut and trim trees to the extent necessary to keep them clear of [the] electric line or system” would not absolve the utility company from the obligation to pay damages for the unnecessary destruction of trees.207 Meanwhile, the Texas Supreme Court, construing a modern but roughly equivalent easement, held that an easement provision to “cut and trim trees within the right-of-way” permitted the removal of trees,208 even though the property owners in that case made a reasonable argument that the easement unambiguously forbade cutting trees down entirely.209 Courts considering virtually identical “cut and trim” language—“the right to cut and trim trees to keep them clear of [the] electric line or system”210—have also reached opposite conclusions as to whether cutting down trees is authorized.211 These conflicting outcomes illustrate the manner in which the easement construction approach frustrates uniform UVM and creates continuing legal conflicts with unpredictable results. Even if a particular method of vegetation removal is unambiguously permitted under an easement, new interpretive problems begin when courts consider whether the actions of a utility company are reviewable on grounds of reasonableness or necessity. The law of
207. See Mall v. C. & W. Rural Elec. Co-op. Ass’n, 213 P.2d 993, 994 (Kan. 1950). In examining the 1938 easement (which also had a danger tree clause), the Kansas court wrote, “we have some difficulty in gleaming [sic] from the provisions of the easement authority to fell and destroy trees unless they are dead, weak, leaning or dangerous trees that might strike the wires in falling.” Id. at 997. 208. See Dewitt Cnty. Elec. Coop. v. Parks, 1 S.W.3d 96 (Tex. 1999) (holding that a separate clause allowing removal of “obstructions” authorized tree removal in the right-of- way). 209. Id. 210. Murphy v. Fannin Cnty. Elec. Coop., 957 S.W.2d 900, 903 (Tex. App. 1997); see Polk- Burnett Elec. Coop. v. Pavlicek, 2003 WI App 111, ¶ 11, 2003 WL 1702482 (Wis. Ct. App. Apr. 1, 2003). 211. Compare Polk-Burnett Elec. Coop. v. Pavlicek, 2003 WI App 111, ¶ 11, 2003 WL 1702482 (Wis. Ct. App. Apr. 1, 2003) (“Clear-cutting is a permissible option for the Co-op under the easement.”), with Murphy v. Fannin Cnty. Elec. Coop., 957 S.W.2d at 907 (“[A]n easement controlled the Co-op’s rights to cut trees and limited those rights to allow cutting only when certain conditions were present.”). See also McGuire v. Cent. La. Elec. Co., 337 So.2d 1070, 1071 (La. 1976) (utility company liable for cutting down trees). 40 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 36:1 easements, if not the language of the easement itself, invites a factfinder to decide whether a utility was reasonable in exercising the rights granted by the easement.212 Even when a utility company obtains apparently favorable easement language, matters are not always quickly settled in the utility’s favor in subsequent litigation. Consider the following vegetation maintenance provision: “The Grantee [Monongahela] shall at all times have the right to control, cut, trim and remove trees, limbs and brush which in its opinion may interfere with the exercise of its rights hereunder or endanger said facilities.”213 Although this language appears to give the utility company the unfettered discretion to decide what vegetation in its opinion “may interfere” with its operations, the West Virginia Supreme Court reversed a summary judgment in favor of the utility, deciding that a jury should determine the reasonableness of that opinion.214
IV. CRITICISM OF TRADITIONAL APPROACH UNDER TODAY’S CONDITIONS
There are significant problems with the traditional easement construction approach, and these problems are not merely one- sided. The easement approach creates tension between modern reliability demands and the expectations of each of the players involved: the utility companies, the property owners, and the court system.
A. Utilities: Outdated Easements Complaints Utilities become frustrated with the use of easement construction to resolve disputes with landowners because they are forced to deal with non-uniform and sometimes outdated easements. Furthermore, the new federal vegetation clearance standards would at least on their face perpetuate this status quo. FAC-003-1 implicitly buttresses the rights of fee simple owners to oppose
212. See, e.g., Murphy v. Fannin Cnty. Elec. Coop, 957 S.W.2d at 906 (reversing jury finding in favor of utility company, because it was “clear” that the utility company “went beyond the terms of the easement”). 213. See Larew v. Monongahela Power Co., 487 S.E.2d 348, 351 (W. Va. 1997) (emphasis added). 214. Id.; see also Near v. Dep’t of Energy, 259 F. Supp. 2d 1055 (E.D. Cal. 2003) (holding that a provision allowing removal of vegetation “considered by the United States to be dangerous” created a discretionary power subject to the state’s implied covenant of good faith and fair dealing). 2011] A High-Voltage Conflict on Blackacre 41
efforts toward compliance that conflict with the easement by acknowledging that compliance is not always immediately possible.215 No court cases have arisen where a utility has asserted the right to maintain NERC clearance standards on private land in spite of limitations rooted in the language of an individual easement. However, such questions are sure to arise. Meanwhile, many transmission and distribution line easements were drafted in the days before modern UVM practices became predominant (e.g., the use of herbicides, the adoption of directional pruning methods, the concept of “wrong tree, wrong place,” or the wire- border zone technique).216 Difficulties with easements are as numerous as the easements themselves. In some cases, where utilities have condemned or acquired broad swaths of an area to install power lines, they may hold uniform easements and can more easily apply uniform tools for vegetation management.217 In other cases, their rights may be
215. The language of the standard is, however, almost euphemistic on this point. “Each Transmission Owner shall develop mitigation measures to achieve sufficient clearances for the protection of the transmission facilities when it identifies locations on the ROW where the Transmission Owner is restricted from attaining the clearances . . . .” FAC-003-1, supra note 48, at 2. The California vegetation clearances standards are similarly deferential to the easement-based opposition of landowners: “Rule 35 requirements do not apply where the utility has made a ‘good faith’ effort to obtain permission to trim or remove vegetation but permission was refused or unobtainable.” CAL. PUB. UTILS. COMM’N, RULES FOR OVERHEAD ELECTRIC LINE CONSTRUCTION, GENERAL ORDER NO. 95 III-19 ¶2 (2006), available at http://docs.cpuc.ca.gov/published/graphics/52593.pdf. 216. Consider, for example, an easement form once used by Southern California Edison, which conferred “the right to trim or top and to keep trimmed or topped any and all trees.” CLARK & TREADWAY, supra note 180, at 33. To a modern utility arborist these easement terms are glaringly obsolete. Topping—indiscriminately stubbing the entire crown of the tree—is “discredited” and “considered unacceptable because it severely damages trees and encourages rapid re-growth.” GEOFFREY P. KEMPTER, BEST MANAGEMENT PRACTICES: UTILITY PRUNING OF TREES 12–14 (2004). 217. For example, a transmission corridor with wires supported by pylons requires a greater degree of centralized planning and construction. To the extent the utility company established the lines with easements targeting consistency in widths between 100 and 200 feet, the corridor is amenable to aerial surveys. The width of transmission easements is more likely to vary based on “structure placement and other engineering considerations,” than landowner preferences. See LCRA and CREZ FAQ, LOWER COLORADO RIVER AUTHORITY, http://www.lcra.org/energy/trans/crez/faq.html (last visited Nov. 13, 2010). However, interstate transmission lines may have different easement characteristics based on the substantive property laws and eminent domain procedures of the states. This is true even taking account of FERC’s new role in siting interstate facilities located in designated “national interest electric transmission corridors.” See 16 U.S.C. § 824p (2006) (indicating that eminent domain proceedings in federal courts “shall conform as nearly as practicable to the practice and procedure in a similar action or proceeding in the courts of the State in which the property is located.”). 42 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 36:1 so disparate that the utility cannot keep track of them or efficiently perform their work.218 In any case, while work crews may be advised by a utility arborist, they do not bring along a copy of the easement with them, or an attorney or jury to consult on the reasonableness of the actions they choose to undertake.219 Contractors may assume that an easement (somewhere) supports their actions and therefore choose not to consult with a landowner. Thus, the utility company may need to base its position on the meaning of a vegetation removal provision on an apparent post hoc rationalization.220 On the other hand, when faced with a confrontational landowner, utility workers may initially defer to the customer who refuses to allow work, avoiding serious examination of the easement rights to save the time and expense of a legal battle, but incurring the risk of future potential outages. The easement construction approach costs utilities and their ratepayers significant resources because it forces them to operate within and negotiate around these uncertainties.
B. Property Owners: The Takings Complaint Property owners involved in vegetation removal disputes can be similarly dissatisfied with the easement construction approach. This method of resolution leaves them at the mercy of easement language that can be difficult to locate and, if located, difficult to interpret. Several factors contribute to problems with easement interpretation. First, the easement—even if the language is deemed “unambiguous” so that a Court declines to consider extrinsic evidence—may be poorly drafted in the sense that it fails to facilitate nonjudicial resolution.221 Second, when courts look to
218. For example, one utility spokesperson stated that the “average range of . . . distribution facilities in a subdivision would fall between 10 and 20 feet.” See Allison Bath, Homeowner Sees More than Red After Tree-Trimming, SHREVEPORT TIMES, http://www .shreveporttimes.com/article/99999999/SPECIALPROJECTS01/907060326/-1/WEEKIN PHOTOGALLERIES (last visited Dec. 30, 2010). 219. A journalist investigating a homeowner’s complaint of utility tree-trimming recently tried to determine what the easement stated and was informed by a spokesperson that “[t]he details on specific properties as you requested would require a review of all records by counsel or our right-of-way department . . . .” Id. 220. As one appellate court noted, a utility company witness testified he did not read the “property easements prior to ordering the easement cleared.” Nonetheless, he later testified to a self-serving interpretation of the easement’s terms. See Murphy v. Fannin County Elec. Coop., 957 S.W.2d 900, 905 (Tex. App. 1997). 221. For example, even an easement from 1988—modern enough to expressly empower herbicide applications—required final interpretation before a state supreme court. Dewitt 2011] A High-Voltage Conflict on Blackacre 43 the terms of an easement, they are not compelled to survey other cases to promote consistency in results.222 Finally, an easement that invites a standard of reasonableness or a question of fact as to whether vegetation poses some risk to the conductors may serve as a basis for protracted litigation and unpredictable jury determinations. For example, most utility arborists would provide expert testimony that directional pruning methods are reasonable, but an aggrieved property owner may locate an arborist who could contrarily testify that directional pruning is unnecessary or that it makes the tree unbalanced and weak, thereby creating even greater danger. The litigation process may ultimately resolve any vegetation removal dispute, but it affords little sense of vindication and few answers to the landowner seeking recognition of a property rights violation. The easement rights approach may also cultivate unnecessarily high stakes for legal disputes. Frequently, the legal complaint against excessive UVM is predicated not merely on trespass or negligence grounds, but also on grounds that the utility’s actions constitute a taking under some provision of a state constitution or under the Federal Constitution.223 The Takings Clause of the Fifth Amendment to the Federal Constitution provides that “private property [shall not] be taken for public use, without just compensation.”224 In this context, an action seeking redress for the unconstitutional taking of a tree would be characterized as an inverse condemnation.225 The “takings” question is distinct from an inquiry into whether a utility has overburdened a preexisting easement, and the two issues are usually addressed separately in court.226 The constitutional
Cnty. Elec. Coop. v. Parks, 1 S.W.3d 96, 105 (Tex. 1999) (reversing intermediate appellate ruling that the “cut and trim” provision was ambiguous). 222. When the language of an easement is clear, “it controls.” Duresa v. Commonwealth Edison Co., 807 N.E.2d 1054, 1063 (Ill. App. Ct. 2004). With generally different wording, different parties and facts, and different jurisdictions, the resolution of vegetation removal disputes, as a practical matter, will not turn on what other courts have decided. 223. A complaint in this form is also particularly likely, as it argues for vindication of a right that may permit recovery of attorney’s fees. See, e.g., CAL. CIV. PROC. CODE § 1036 (2009); see also 42 U.S.C. § 1988c (2000). 224. U.S. CONST. amend. V. 225. As explained by the Supreme Court, “[t]he phrase ‘inverse condemnation’ appears to be one that was coined simply as a shorthand description of the manner in which a landowner recovers just compensation for a taking of his property when condemnation proceedings have not been instituted.” United States v. Clarke, 445 U.S. 253, 257 (1980). 226. See Passariello v. Conn. Light & Power Co., No. X06CV075005753S, 2009 Conn. Super. LEXIS 880 (Super. Ct. Mar. 31, 2009) (dismissing complaint of inverse condemnation 44 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 36:1 takings argument is more difficult to establish and could well be undermined by the existence of an easement.227 From the perspective of a landowner, however, any UVM performed in excess of easement stipulations interferes with the private use of property. Furthermore, when such interference comes in the form of a physical invasion of property, it may constitute a “per se” taking that requires compensation.228 As stated in United States v. Causby— the case first recognizing that burdens imposed by government airports on adjacent landowners may present constitutional questions—“if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere. Otherwise buildings could not be erected, trees could not be planted, and even fences could not be run.”229 Under the easement construction approach, landowners argue that vegetation management practices are public uses interfering with the private right in land and that utilities should avoid trees already planted.
C. Courts: The Rise of the Jurisdictional and Preemption Defense The easement construction approach also creates frustration for courts that preside over vegetation removal disputes. Although trees can have economic value and are subject to appraisal, the realistic damages from these lawsuits are relatively small.230 Tree disputes between neighbors infrequently end up in court because the common law provides self-help remedies for tree encroachments from neighboring property and, in any case, under state constitution, but denying partial summary judgment on trespass and easement overburdening complaints for utility’s actions in upgrading lines). 227. Id. at *10–11 (“Although the plaintiffs’ argument is very creative, it is nevertheless misplaced. The facts of this case do not involve a governmental body seizing a portion of the plaintiffs’ property and establishing an easement. The facts here involve an alleged excessive or burdensome use of an existing easement.”). 228. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 433 (1982); cf. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1016 (1992) (defining a taking when a regulation deprives an owner of “all economically viable use”). 229. United States v. Causby, 328 U.S. 256, 264 (1946). Causby is the historic basis for what are known as avigation easements that are prevalent near many airports. These easements authorize significant noise disruptions and, in some cases, tree trimming to create appropriate safety clearances for takeoff and landing. See also Ventres v. Goodspeed Airport, LLC, 881 A.2d 937, 949 (Conn. 2005) (discussing how “clearance easements” may accompany “avigation easements”). 230. But see Gandy v. Asplundh Tree Expert Co., No. D043307, 2005 Cal. App. Unpub. LEXIS 9605 (Ct. App. Oct. 20, 2005) (UVM lawsuit where damages awarded to plaintiff golf course were reversed, but were initially assessed at $475,000 and trebled to $1,425,000). 2011] A High-Voltage Conflict on Blackacre 45 amounts in controversy would fall below the threshold for courts of general jurisdiction.231 Most tree disputes in a UVM context, however, cannot be effectively resolved in small claims court.232 Today, as UVM becomes a matter of greater regulatory oversight, courts are more likely to doubt whether they should continue to hear such cases. Although state PUCs have secured broad legislative mandates to regulate the rates and services connected to the provision of electricity, and public utilities argue that the authority of the public utility commission precludes property rights lawsuits, the courts still do recognize some of these private actions.233 To the extent that community objections translate into local government controls on tree trimming operations, there are indications that utilities can avoid controls by arguing preemption.234 At least in some states, courts are giving more jurisdictional authority to a state’s public utility commission,235 and more than ever before, utilities can argue that vegetation management practices are within the purview of those agencies that regulate reliability issues.236 In a recent landmark Pennsylvania case, the court held that a local shade tree ordinance was void as applied to a public utility and preempted by the authority of the public utility commission.237 This strategy, however, mainly applies to utilities’ ordinance-based disputes with municipalities. A more significant, albeit legally problematic, prize for the utilities is the judicial acknowledgement of a new jurisdictional defense recognizing the exclusive province of the state public utility commission over private landowner disputes.
231. See, e.g., Melnick v. C.S.X. Corp., 540 A.2d 1133, 1138 (Md. 1988) (“[T]o grant a landowner a cause of action every time tree branches, leaves, vines, shrubs, etc. encroach upon or fall on his property from his neighbor’s property, might well spawn innumerable and vexatious lawsuits.”). 232. Small claims courts may not have the authority to appropriately issue injunctions or resolve questions concerning underlying property rights. Attorney involvement on behalf of the landowner also makes this avenue of recourse highly unlikely. 233. See Pub. Serv. Co. of Colo. v. Van Wyk, 27 P.3d 377 (Colo. 2001) (holding that trespass and nuisance actions concerning utility line upgrades were not preempted because PUC lacked authority to adjudicate private property rights). 234. See PECO Energy Co. v. Twp. of Upper Dublin, 922 A.2d 996 (Pa. Commw. Ct. 2007). 235. See Anthony M. Hoover, Note, Pennsylvania Power Co. v. Township of Pine: Leaving Local Municipalities a Voice in Public Utility Litigation, 18 WIDENER L.J. 751, 752 (2009). 236. See id.; see also Corrigan v. Illuminating Co., 910 N.E.2d 1009, 1013 (Ohio 2009) (holding that a tree dispute fell within the exclusive jurisdiction of the public utility commission). 237. PECO Energy Co. v. Twp. of Upper Dublin, 922 A.2d at 996. 46 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 36:1
The Ohio Supreme Court recently adopted this sort of jurisdictional defense in Corrigan v. Illuminating Co.238 In Corrigan, the easement provided the authority “to cut and remove any trees, shrubs or other obstructions upon the above described property which may interfere or threaten to interfere with the construction, operation, and maintenance of said transmission lines.”239 The utility company had argued that neither its historic practices nor the easement language prevented a change in policy from trimming trees to removing them altogether.240 The court reasoned that the resolution of the issue was within the exclusive jurisdiction of the public utility commission because the vegetation management plan was subject to regulation and the utility commission had the requisite administrative expertise.241 After Corrigan, tree-dispute cases in Ohio are likely to be characterized not as easement-based disputes, but instead as challenges to utility company policy and “service-related issues” belonging exclusively before the state public utility commission.242 As Ohio was the epicenter of the 2003 blackout, it is unsurprising that it should also be the epicenter for lawsuits over utility vegetation removal. The same jurisdictional defense approved in Corrigan was adopted by two separate California trial courts in rulings that are currently under appellate review.243 The trend raises the concern that PUCs are in no way equipped to construe easements or adjudicate property rights, and that these commissions may lack the statutory authority to award damages.244 Punting tree-related
238. Corrigan v. Illuminating Co., 910 N.E.2d at 1013 (“The company’s decision to remove a tree is governed by its vegetation-management plan, which is regulated by PUCO. Therefore, we conclude that PUCO’s administrative expertise is required to resolve the issue of whether removal of a tree is reasonable . . . . Vegetation management is necessary to maintain safe and reliable electrical service . . . . [W]e determine that this case falls within the exclusive jurisdiction of PUCO.”). 239. Corrigan v. Illuminating Co., 910 N.E.2d at 1013. 240. Id. 241. Id. at 1013–14. 242. Schad v. Ohio Edison Co., 2010-Ohio-585, No. 09-COA-024, 2010 Ohio App. LEXIS 472 (Ct. App. Feb. 18, 2010) (affirming summary judgment dismissal of lawsuit over removal of bushes); see also Wimmer Family Trust v. FirstEnergy Corp., 123 Ohio St. 3d 144, 2009- Ohio-4304, 914 N.E. 2d 1036 (vacating and remanding lower court judgment for decision in light of Corrigan); Delost v. FirstEnergy Corp., 123 Ohio St. 3d 113, 2008-Ohio-1329, 914 N.E.2d 392 (affirming application of Corrigan). 243. See Sarale v. Pac. Gas & Elec. Co., 117 Cal. Rptr. 3d 24 (Ct. App. 2010), appeal docketed, No. S188401 (Cal. Nov. 23, 2010). 244. See Corrigan v. Illuminating Co., 910 N.E.2d at 1015 (O’Donnell, J., dissenting) (“In my view . . . the central issue . . . is whether their maple tree ‘may interfere or threaten to interfere’ with the transmission line. This requires interpretation and application of the 2011] A High-Voltage Conflict on Blackacre 47 disputes to an administrative agency may have the advantage of eliminating a barrage of lawsuits that require intensive examination of easement language, but there is no guarantee that the easement construction approach, when undertaken by agencies, can be faithfully or adequately followed to protect the rights of the parties. The agency’s own bias in favor of electric reliability may override any consideration of conventionally understood property rights. A successor lawsuit to Corrigan has already argued that the decision infringes on the state constitutional guarantee of open access to the courts.245 For lack of an established means of redress or resolution before PUCs, these decisions may actually create, rather than quell, future litigation.
V. RECOMMENDATION: THE PUBLIC NUISANCE DOCTRINE APPROACH
In the long history of disputes between utility companies and tree owners, courts have apparently never turned to the question of whether a tree, by its shape, health, or proximity to power lines, constitutes a public nuisance.246 A public nuisance is an unreasonable interference with a right common to the general public.247 To argue that this definition applies to trees in the context of maintaining a reliable electrical infrastructure is not to suggest utilities should have the unilateral authority to conduct vegetation removal however they please, or that easement provisions should be rendered entirely irrelevant. Instead, four concrete problem areas lend themselves to resolution under the doctrine: 1) customer refusals, 2) abatement of hazard trees, 3) abatement of “incompatible” vegetation, and 4) questions over the
terms of the easement . . . . The PUCO has no special expertise with respect to the determination of rights under an easement, and thus it does not have exclusive jurisdiction here.”). 245. Schad v. Ohio Edison Co., 2010 Ohio App. LEXIS 472 at *8 n.1. 246. But cf. Childers v. N.Y. Power and Light Corp., 89 N.Y.S.2d 11 (App. Div. 1949) (sustaining a defense to trespass action for damages to a shade tree under the principle of private nuisance). In early cases, the utility companies themselves were more likely to face accusations that their presence constituted a nuisance. A 1903 decision records the following excerpt from a letter written by the mayor of Wichita to his police chief: “The rapid increase of poles and wires in the streets and alleys are [sic] a menace to the city on account of fire, especially in the business portion, and in the residence portion are an annoyance to our citizens on account of the ruthless cutting of shade trees to make room for them, and are generally a public nuisance, which you are directed to abate to the fullest extent authorized by the city ordinances.” Old Colony Trust Co. v. City of Wichita, 123 F. 762, 778 (C.C.D. Kan. 1903). 247. See RESTATEMENT (SECOND) OF TORTS § 821B(1) (1979). 48 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 36:1 permissibility of herbicide applications. To the extent the public nuisance doctrine applies to these issues, the inspection of the vegetation management terms of an underlying easement may be unnecessary. Additionally, the abatement of public nuisances under the “police power” requires no compensation as may be necessary when a utility company “takes” under a power of eminent domain.248 Therefore, if transmission or distribution lines are in service, preexisting, and lawfully situated, takings arguments by the landowner will not prevail against a valid defense or affirmative authority to abate under the public nuisance doctrine.
A. Public Nuisance Abatement Following a Customer Refusal The threshold step in applying the public nuisance doctrine should be the recognition that a reliable supply of electricity is a right common to the public. To date, no courts appear to have made this seemingly straightforward determination. In a modern context, public access to reliable electric supplies has equal, if not greater, importance as traditionally contemplated public rights to use an unpolluted public bathing beach, to fish from an unpolluted stream, or to travel on an unobstructed public highway.249 That most electrical infrastructure is maintained and regulated as a public service on land that is government-owned or expressly acquired for public use only underscores that actions taken to ensure reliability are for the benefit of the greater public. After recognizing reliable access to electricity as “a right common to the general public,” the question becomes whether the encroachment of vegetation or the keeping of hazardous adjacent trees constitutes an “unreasonable interference” with that right.250 Such interference may be unreasonable if it “involves a significant interference with the public health, the public safety, the public
248. See Kelo v. City of New London, 545 U.S. 469, 519 (2005) (explaining that noncompensation for police power actions is in “sharp contrast to the takings power, which has always required compensation . . . . The question whether the State can take property using the power of eminent domain is therefore distinct from the question whether it can regulate property pursuant to the police power.”). In an analogous 1928 case, the state was not required to pay compensation for ordering the destruction of privately-owned cedar trees that were capable of spreading disease to nearby apple orchards. Miller v. Schoene, 276 U.S. 272, 277 (1928). “Where the public interest is involved preferment of that interest over the property interest of the individual, to the extent even of its destruction, is one of the distinguishing characteristics of every exercise of the police power which affects property.” Id. at 279–80. 249. See RESTATEMENT (SECOND) OF TORTS § 821B cmt. g (1979). 250. Id. § 821B(1). 2011] A High-Voltage Conflict on Blackacre 49 peace, the public comfort, or the public convenience.”251 Additionally, the interference may be unreasonable in circumstances where it is proscribed by statute, ordinance, or administrative regulation.252 The traditional common law of public nuisance recognized that “any condition on abutting land which involves an unreasonable risk of harm to travelers in a public highway is normally a public nuisance.”253 In this historic context, trees have been a long-recognized danger and a potential source of liability for landowners.254 Although much newer than the first public highways, transmission and distribution lines share similar qualities and deserve similar protection. They deliver the electricity that powers commercial activities and connects neighborhoods to greater communities—channeling a highly significant lifeblood to modern cities and towns, just as public highways have done for many years. Trees that imperil power lines create hazards for the nearby public and threaten to harm vulnerable electricity consumers, and can therefore be conceptually equated to the trees that imperil safe and convenient travel on public highways. In adjudicating a public nuisance case, even the threat of harm is actionable; harm in progress is not required for an abatement action.255 While hazard trees and “incompatible vegetation” are conceptually different, they both might benefit from the same legal procedures for abatement. Abatement without the legal procedures implicit in an abatement order issued by a court or local government is also possible, but it is considered a “summary and drastic remedy” where the abating official is generally not protected in the case of a mistaken belief in the existence of a public nuisance.256 Accordingly, the abatement of hazard trees and incompatible vegetation should begin with a statute or regulation that recognizes the authority of a certified utility arborist or accompanying government arborist to issue an abatement order when he or she determines vegetation to constitute a public nuisance.257 In the event of a customer refusal, the official would then have the discretion to issue a citation that explains the
251. Id. § 821B(2)(a). 252. See id. § 821B(2)(b). 253. Id. § 368 cmt. d (1965). 254. See id. § 840 cmt. c (1979). 255. See Connecticut v. Am. Elec. Power Co., 582 F.3d 309, 357 (2d Cir. 2009). 256. RESTATEMENT (SECOND) OF TORTS § 202 cmt. e (1965). 257. See id. §§ 202, 821C(2)(b) (1979). 50 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 36:1 landowner’s right to appear in an administrative or low-level judicial proceeding to determine whether the hazard tree or incompatible vegetation actually constitutes a public nuisance subject to abatement. Ultimately, a landowner who receives a citation can still choose to litigate his interests, but the proceeding would be governed by objective, administrative criteria (dispensing with uncertainties perpetuated by easement language), consequently encouraging fewer ill-founded customer refusals.
B. The Abatement of Hazard Trees Hazardous trees may sit on a landowner’s property outside the bounds of any applicable easement and therefore beyond the reach of any vegetation management rights afforded to the utility. If, however, the tree is dead, dying, weak, or otherwise dangerous to the transmission lines (e.g., the underlying soil is unstable due to erosion), then a utility should be empowered to abate in order to safeguard the grid without a prolonged legal battle. An abatement order process offers greater efficiency than examination of the easement, because the foremost inquiry is whether the tree actually presents a hazard to the conductors, not whether the verbiage of the easement authorizes the removal of the particular hazard. This would be especially helpful in cases where an easement lacks a danger tree provision altogether. The proposal of a right to order removal of hazardous vegetation from private lands under the public nuisance doctrine has precedent in other contexts. For example, some statutes declare black currant bushes or barberry bushes to be public nuisances, because they harbor parasites which might be destructive to grain or timber.258 Large-scale removal of hazardous trees has also been justified as a matter of “public necessity”—that is, to avert an imminent public disaster.259 In 2003, emergency conditions created by bark beetle infestations prompted the California PUC to issue a resolution directing utilities “to mitigate the increased fire hazard by removing dead, dying or diseased trees that could impact their
258. See, e.g., Westchester, Ill., Code § 7.08.080 (2010), available at http:// www.westchester-il.org/library/villagecode/level2/T7_C7.08.html#T7_C7.08_7.08.080 (local ordinance declaring barberry bushes to be nuisances subject to removal on notice). 259. See RESTATEMENT (SECOND) OF TORTS § 196 (1965). There may be areas where the privilege of public necessity overlaps with the privilege to abate a public nuisance. Consider the legitimacy of a public official’s order for the destruction of trees or buildings in the path of a conflagration. Id. cmt. g. 2011] A High-Voltage Conflict on Blackacre 51 transmission and distribution lines within their rights of way.”260 In subsequent litigation over the removal of a landowner’s tree outside the easement, a jury found that the actions of the utility were lawful.261 Although that case was not expressly adjudicated under a claim of a public nuisance abatement privilege, it illustrates precisely when public officials should have the discretion to acquire an abatement order preemptively: when a tree threatens a recognized common right to reliable electricity. Another California case concerning tree removals illustrates a possible working approach for a utility’s right of removal in the context of nuisance abatement for an entirely different benefit. Echevarrieta v. City of Rancho Palos Verdes involved the constitutionality of an ordinance that authorized the trimming and removal of trees on private land which impaired views of neighboring landowners.262 The ordinance “prohibit[ed] residents of the City from significantly impairing a view by permitting foliage to grow in excess of certain height limitations,” and provided the procedures by which abatement permits could be obtained by any person suffering from an impaired view.263 It required that “the person whose view is impaired must first attempt to informally resolve the matter . . . and if that fails, may apply for a ‘view restoration permit.’”264 If the permit was granted and ordered the trimming or replacement of any foliage, the applicant bore those costs.265 The court held that the ordinance did not compel a physical invasion of property (so as to be an unconstitutional “per se” taking) because it was the landowner’s “refusal to comply with [the resolution] . . . after ample notice and opportunity to correct, that [occasioned] the threat of the City’s entry onto the property.”266 Although this case likewise did not directly implicate the public nuisance doctrine, public utilities could benefit from a legislatively created analogue that gives them similar discretion to secure the
260. See Fisher v. San Diego Gas & Elec. Co., 2009 Cal. App. Unpub. LEXIS 3561 (Ct. App. May 7, 2009). 261. Id. On appeal, the landowner’s attorney argued that a special jury instruction created confusion as to whether SDG&E had the authority to cut down trees not actually located within a utility easement, but the court held the issue had been waived for lack of an objection. 262. 103 Cal. Rptr. 2d 165 (Ct. App. 2001). 263. Id. at 167. 264. Id. 265. Id. at 171. 266. Id. 52 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 36:1 removal and replacement of hazard trees. An analogous “hazard tree ordinance” could be upheld under the authority of general police powers, but the greater degree of governmental interest in ensuring public safety, comfort, and convenience only bolsters the lawfulness of the proposal. In recognizing that a utility company has lawfully exercised a privilege to abate a public nuisance in compliance with legislated law or common law,267 the question of what an easement says is appropriately marginalized, while the right of the utility company to take reasonable actions to prevent harm to the public is appropriately reinforced.
C. Abatement of Incompatible Vegetation By the same token, but perhaps more controversially, public utilities should be empowered to abate “incompatible” vegetation underneath lawfully situated power lines. Incompatible vegetation is another way of saying “wrong tree in the wrong place.” A tree might be actively incompatible in the sense that it already requires regular attention each vegetation management cycle, or a tree might be potentially incompatible by virtue of its future potential to grow to eventually require regular trimming or removal. In either instance, a utility should generally have the discretion to pursue abatement actions that would allow it to remove incompatible vegetation notwithstanding the prohibitive or unclear terms in any underlying easement. Courts have previously upheld the right to remove incompatible vegetation as permitted by the terms of an easement.268 That right should also be protected under the public nuisance doctrine. The argument for the application of public nuisance doctrine in cases of actively incompatible vegetation is strong. Vegetation that requires regular trimming may pose a threat of fall-ins following storms or grow-ins between UVM cycles and could thereby constitute a significant interference with public safety, comfort, and
267. See RESTATEMENT (SECOND) OF TORTS §§ 202, 203 (1965) (describing the common law rules on abatement of public nuisance). 268. See Beaumont v. FirstEnergy Corp., 2004-Ohio-5295, No. 2004-G-2573, 2004 WL 2804801, at ¶33 (Ohio Ct. App. Sept. 30, 2004) (describing “incompatible trees” as “trees that could pose an objective threat to the proper maintenance and operation of the towers and lines”); see also Wimmer Family Trust v. FirstEnergy Corp., 2008-Ohio-6870, No. 08CA009392, 2008 WL 5387640, at ¶14 (Ct. App. 2008) (citing testimony that incompatible vegetation is “any vegetation that at maturity has the potential to grow into or get near th[e] transmission line and cause an outage”), vacated, 123 Ohio St. 3d 144, 2009-Ohio-4304, 914 N.E. 2d 1036. 2011] A High-Voltage Conflict on Blackacre 53 convenience. The argument for the abatement of potentially incompatible vegetation—the tiny sequoia sapling with a distribution line hanging forty feet overhead—is perhaps more difficult. Because the public nuisance doctrine provides that abatement must occur “at a reasonable time and in a reasonable manner,”269 a landowner would argue that, for such a young tree, trimming in lieu of removal is the only reasonable course of action, and historically, utilities have acceded to that argument.270 On the other hand, a requirement for future, regular trimming is a public inconvenience insofar as ratepayers bear the costs of UVM, increasing biomass removal costs, and the potential risks posed by having the wrong tree in the wrong place. Accordingly, legislatures should empower PUCs to prohibit the planting of trees or shrubbery that attain a mature height greater than, for example, fifteen feet underneath overhead conductors, providing that taller trees and identifiably taller-growing trees would be subject to removal on notice. In the words of the Supreme Court, such a land use restriction could signify the “State’s use of its ‘police powers’ to enjoin a property owner from activities akin to public nuisances.”271 Utilities can always seek consent or consult the easement to determine whether they have a summary right to prevent incompatible vegetation, but if that right is lacking or unclear, then, as with the proposal for hazard trees, they should be permitted to issue a preventative administrative order. The rule of reasonableness that governs the doctrine should encourage utilities to plant compatible replacement vegetation. In practical effect, this would create a legal procedure that permits utilities to promote planting the “right tree in the right place” on a non-voluntary basis.
D. Abatement Through Herbicides Notwithstanding the fact that traditional easements do not include utilities’ rights to apply herbicides, legislatures and PUCs should consider expressly authorizing the selective application of herbicides to trees within transmission corridors. The governmental interest in promoting IVM for economic, ecological,
269. RESTATEMENT (SECOND) OF TORTS § 821 (1979). Ideally, the abatement suits proposed in this section would proceed administratively so as to benefit from administrative expertise while avoiding the costs, delays, and complications associated with civil litigation. 270. Hence, they were willing to acquire easements that spoke only of trimming, not removing, trees. CLARK & TREADWAY, supra note 180, at 33. 271. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1022 (1992). 54 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 36:1 and aesthetic reasons might justify the authorization of such applications, irrespective of easement language. Selective application of herbicides could be promoted by statute or regulation as a reasonable, perhaps even necessary, means of achieving wire-border zone methods of IVM where technically appropriate. The reasonableness of herbicide use has already been at issue in some judicial contexts. In Gallagher v. Grant-Lafayette Electric Cooperative, a Wisconsin court considered whether a utility easement completely lacking vegetation management provisions would permit the use of herbicides.272 The court held that it was up to the factfinder to determine whether the use of herbicides fell within the implicit right of the utility to take those steps reasonably necessary to prevent interference with its wires.273 This case illustrates yet another curious consequence of the easement construction approach: often, easements without textual vegetation management provisions, such as easements created by prescription, may in fact permit utilities to more flexibly conduct vegetation management. Case by case determination, however, especially in the context of easement construction, produces inconsistent results. This uncertainty regarding herbicides as a vegetation removal tool can best be eliminated by a uniform legislative rule. For example, a legislature could implement best management practices by finding that the growth of woody plants in transmission corridors constitutes a nuisance, thereby authorizing the selective application of herbicide as a means of abatement.274 On the other hand, statutes or regulations that ban the use of herbicides by utility companies could similarly eliminate uncertainty by rendering interpretive problems irrelevant. Public authorities should not merely assume greater leadership to define what interferes in a public right—here, the “nuisance” of woody plants
272. Gallagher v. Grant-Lafayette Elec. Coop., 2001 WI App 276, 637 N.W.2d 80 (Wis. Ct. App. 2001). In Gallagher, the court held that the easement was created by the sparse terms of the electric cooperative membership application. More typically, courts review such membership agreements as a basis for contractual authority and regard easement creation as a separate matter. See Singleton v. Haywood Elec. Membership Corp., 588 S.E.2d 871, 876 (N.C. 2003). 273. Id. 274. Such authorization is decidedly more modest than wide-scale aerial pesticide spraying that has also passed constitutional muster. See Farmers Ins. Exch. v. California, 221 Cal. Rptr. 225 (Ct. App. 1985). 2011] A High-Voltage Conflict on Blackacre 55 in transmission corridors—but also to sanction control and removal tools as reasonable and legally appropriate. The laws of electricity cannot change, nor can the language of preexisting easements (except by renegotiation or by condemnation proceedings), but the legal recognition that hazard vegetation interferes with the public interest can and should take hold.275
VI. CONCLUSION
Although the application of the public nuisance doctrine in the vegetation removal context may strike some as too attenuated, when it comes to electric grid reliability, the application of the doctrine is both reasonable and necessary to safeguard the operation of the country’s electric grid system. The scope, manner, and frequency of UVM are matters of vital concern to safety, prosperity, and security from power disturbances. The permissibility of UVM actions should be determined through thoughtful consideration of science, public policy, and contemporary statutory law—not through the outdated, uncertain terms of an easement or the stalemates brought about by customer refusals. NERC’s recent vegetation management standards are a sign of growing sophistication in the science of electric reliability. This science gives legislatures and PUCs an opening to utilize their public police power to implement best management practices. Specifically, the vegetation clearance standards promulgated by NERC or state authorities should not be limited by the vegetation- removal rights language of easements. The calculated dangers of encroachment understood through the Gallet Equation should trump those outdated considerations. Moreover, the fact that a tree canopy will potentially and predictably reach conductors— whether by estimated growth rates or by its curve in falling— presents a threat to the reliability of electricity supplies that can be managed by the reasoned exercise of authority to mitigate those threats. Except in relatively rare cases where a landowner alleges the utility has no property interest or is seeking to move or upgrade
275. Frustratingly, very seldom do court opinions on UVM think to mention the voltage, the height of the wires, or the location, size, and speciation of the trees and shrubbery at issue. Whether or not the actions of a utility are reasonably necessary is a direct function of those facts and circumstances. 56 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 36:1 transmission facilities in contravention of easement terms, mere customer refusal issues should be amenable to resolution through the public nuisance doctrine. One of many possible legislative solutions is to refer such disputes for technical resolution before administrative law judges. Those administrative determinations, following review by the PUC, could be subject to limited review by an independent state court. Additionally, a federal call for implementation of the public nuisance doctrine on behalf of UVM might entail an expanded role for regional reliability organizations in resolving these disputes. Regulators must first understand, however, that their calls for reliability realistically can only be carried out with sufficient financial resources and legal authority. Even if new legislation is necessary to provide legal mechanisms for abating hazardous vegetation, such initiatives likely already satisfy the mission statements of most PUCs as protectors of reliability. It is also within the role of public authorities to proactively facilitate the use of best management practices in partnership with utilities.276 In jurisdictions that are slow to adopt formal regimes to integrate public nuisance abatement procedures into UVM practices, a utility company in a tree lawsuit may nonetheless benefit from arguing that “common law” privileges to protect a public right apply to the dispute in a primary way and that the language of the easement should be secondary.277 It is important to note that a transition to use of the public nuisance doctrine in settling UVM disputes is not tantamount to the eradication of all plant life under those easements. The wire- border zone technique, “right tree, right place” replacement programs, and directional pruning all reflect an improving understanding that vegetation and overhead conductors can and
276. One noteworthy measure of progress in this area, at least in minimizing obstacles to UVM on federal lands, is a 2006 Memorandum of Understanding between the Edison Electric Institute, federal land management agencies, and EPA to concurrently promote compliance with NERC standards, IVM where appropriate, BMPs, and better cooperation among all stakeholders. See MEMORANDUM OF UNDERSTANDING AMONG THE EDISON ELECTRIC INSTITUTE AND THE U.S. DEPARTMENT OF AGRICULTURE FOREST SERVICE AND THE U.S. DEPARTMENT OF THE INTERIOR BUREAU OF LAND MANAGEMENT FISH AND WILDLIFE SERVICE NATIONAL PARK SERVICE AND THE U.S. ENVIRONMENTAL PROTECTION AGENCY (2006), available at http://www.eei.org/ourissues/TheEnvironment/Land/Documents/EEI_MOU_FINAL_5- 25-06.pdf. 277. This defensive strategy is perhaps ironic given that six of the largest utility companies in the United States have a defensive role in a lawsuit seeking public nuisance abatement of their greenhouse gas emissions. See Connecticut v. Am. Elec. Power Co., 582 F.3d 309, 314 (2d Cir. 2009), cert. granted, 2010 WL 4922905 (Dec. 6, 2010). 2011] A High-Voltage Conflict on Blackacre 57 should coexist—just at the appropriate distances. The default approach of easement interpretation is ill-suited to determining and maintaining those distances, especially in the context of modern reliability demands and the burgeoning regulatory environment. Greater regulatory scrutiny fosters more assertive practices on the part of utilities, which in turn leads to greater public scrutiny and lament among landowners, highlighting what has become an imperfect, unpredictable, and inefficient approach to adjudication of vegetation removal disputes. With the promotion and reasonable application of the public nuisance doctrine, the obstacles to UVM and its best management practices can be removed to promote a more stable legal regime and a more stable electricity system in the United States.