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A High-Voltage Conflict on Blackacre: Reorienting Utility Easement Rights for Electric Reliability Brian S

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A High-Voltage Conflict on Blackacre: Reorienting Utility Easement Rights for Electric Reliability Brian S 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 Criticism of Traditional Approach Under Today’s Conditions...........40 A. Utilities: Outdated Easements Complaints........................................40 B. Property Owners: The Takings Complaint........................................42 C. Courts: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. 1 2 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 36:1 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.
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