Electric Transmission Concerns – CAEPLA Leads the Way

June 2015

For more than 12 years, the Canadian Association of Energy and Pipeline Landowner Associations (CAEPLA) has actively promoted the responsible development of Canadian oil and gas pipelines and has assisted in the organization of landowner associations to address environmental, liability, operational interference and safety concerns with the large, multi-national companies who own and operate these pipelines. With the development of new green energy sources and new electric transmission facilities to supply this green energy to the grid, CAEPLA is now engaged in the similar organization of landowner associations to address comparable issues arising from this new hydro transmission development. What are these issues and how are they being addressed?

CAEPLA and member landowner associations in Alberta have recently concluded settlements with two major Alberta electric transmission companies on a number of current projects which address landowner concerns related to the construction and operation of electric transmission facilities. Included in these settlements are provisions to limit land rights surrendered by landowners and reduce impacts on their continuing agricultural operations; measures to minimize construction impacts, remediate affected lands and fairly compensate landowners for residual damages; and protocols to reduce future operational interference and annually compensate for operational impacts.

With respect to the surrender of land rights, newly negotiated right-of-way agreements are now project specific and restrict a company’s rights to a defined easement with off-easement access only in emergency situations or to remove operational hazards. The companies are required to consult with landowners on structure locations to minimize landowner inconvenience and interference with agricultural operations with the companies obligated to compensate the landowner for additional costs incurred as a result of the transmission facilities. Landowners are to have free access and use of the easement lands subject only to the company’s right to restrict such use upon receiving notice from the landowner if the intended use interferes with the company’s operations. The company is required to compensate the landowner for all loss or damage resulting from the company’s operations and the company must indemnify the landowner with respect to third party claims. On abandonment of its facilities, the company is required to remove both above and below ground structures, at least to a minimum specified depth, and to restore the lands to equivalent capability.

Construction requirements include the survey and staking of all easement, access and temporary use lands; unfrozen stripping and separate storage of topsoil and subsoils; wind and water erosion control; and wet soil shutdown restrictions to reduce compaction. The company is required to restore pre-existing grade, drainage and fences; implement measures to prevent the spread of weeds and post-construction weed control; and resolve post-construction compaction and reduced productivity. These Alberta settlements include provision for an independent construction monitor to assist landowners in identifying and resolving construction related concerns as well as a landowner/company joint committee to also assist in the resolution of construction related disputes. The company must test and monitor well water quantity and quality. Safety requirements include fire suppression measures, EMF monitoring and tower and line identification markers.

To the extent that construction damages cannot be prevented or mitigated, and recognizing continuing operational interference, these settlements include provisions to compensate landowners for their surrendered land rights, construction related disturbance and crop loss, and annual payments to address surface facility interference. Permanent land rights are compensated at market value with temporary land rights compensated at 50%. Construction disturbance and production loss is paid in advance based on agreed values with additional damages payable post-construction. These settlements also include substantial payments to landowners to recognize the advantages to the company of achieving an early resolution of these issues.

It is the shared expectation of CAEPLA and its member landowner associations and the electric transmission companies that these settlements will provide a model for future projects and resolution of similar landowner concerns. Since the expansion of electric transmission facilities wherever located will have similar landowner impacts, CAEPLA is hopeful that these settlements will also assist landowners elsewhere in Canada dealing with different companies in resolving their concerns.

Author

Paul practises mainly in the areas of environmental law, energy law, and commercial litigation. He is author of "Civil Procedure in Practice" and a regular contributor of articles to various journals. Paul is certified by the Law Society as a Specialist in Civil Litigation. More →