FERC Proposes to Implement Expanded Transmission Siting Authority

On December 15, 2022, the Federal Vitality Regulatory Fee (“FERC”) issued a discover of proposed rulemaking wherein the Fee proposes to implement its newly clarified authority underneath the 2021 Infrastructure Funding and Jobs Act (“IIJA”) to concern permits if a state denies an applicant’s request to website transmission services in a chosen Nationwide Curiosity Electrical Transmission Hall (“Nationwide Hall”).

Such change has potential—in sure instances—to tilt the steadiness of transmission allowing authority towards FERC and away from the states (the place such authority historically has been held), accelerating much-needed siting of interstate transmission initiatives.  Though no Nationwide Hall designations are at present in impact, the Inflation Discount Act gives $2 billion for loans to assist electrical transmission traces in Nationwide Corridors.  And the Division of Vitality, which makes Nationwide Hall designations, has stated that it intends to supply a course of to designate such corridors on a route-specific, applicant-driven foundation to deal with roadblocks as they come up.  Whether or not that course of will probably be profitable—thus permitting FERC to train its expanded allowing authority—stays to be seen.

Background

In 2005, the Vitality Coverage Act offered FERC authority to concern permits for development or modification of electrical transmission services in Nationwide Corridors—i.e., geographic areas designated as transmission-constrained or congested—if an applicant was unable to acquire a state allow for sure particular causes.

These causes included when a state “withheld approval” of the services for multiple yr after the appliance was filed or the Nationwide Hall was designated, whichever was later.  FERC Order No. 689 had interpreted this to incorporate any motion that resulted in an applicant not receiving state approval inside one yr, together with a state’s specific denial of an software.  However a 2009 determination of the Fourth Circuit struck down that interpretation.  That call—together with a 2011 determination of the Ninth Circuit vacating the one two Nationwide Hall designations—introduced FERC’s transmission allowing exercise to a halt.

Quick ahead to 2021: the IIJA amended numerous elements of the Vitality Coverage Act, together with by eradicating the phrase “withheld approval” and expressly offering that FERC’s energy to approve siting of transmission services in Nationwide Corridors consists of when a state has denied an software.

Proposed Rulemaking

FERC, amongst different issues, proposes to:

• Implement FERC’s authority to concern a allow upon a state’s specific denial of an software to website transmission services in a Nationwide Hall. As already offered underneath the Vitality Coverage Act, FERC may additionally concern a allow if a state fails to behave on an software or “has conditioned its approval in such a way that the proposed development or modification is not going to considerably scale back transmission capability constraints or congestion in interstate commerce or isn’t economically possible.”
• Take away the prevailing one-year delay following the submission of a state software earlier than FERC’s pre-filling course of can begin. This might enable simultaneous processing of state functions and FERC pre-filing proceedings, such that FERC may concern permits extra shortly following a state’s determination (or lack thereof).
• Set up a brand new Applicant Code of Conduct. The IIJA amended the circumstances for a allow holder to amass obligatory rights-of-way by eminent area, requiring a willpower that the allow holder has demonstrated good-faith efforts to have interaction with landowners early within the allowing course of.  FERC proposes to permit an applicant to make such exhibiting by complying with a code of conduct in its communications with affected landowners.  Candidates would, for instance, have to maintain information of communications, preserve truthfulness and respect in communications, get hold of permission to enter property, and supply landowners with copies of value determinations.
• Require further public engagement and environmental evaluation filings. Candidates must file an Environmental Justice Public Engagement Plan as a part of their already required Challenge Participation Plan, in addition to numerous further filings as a part of their Nationwide Environmental Coverage Act evaluation, together with an Air High quality and Environmental Noise Useful resource Report, a Tribal Assets Report, and an Environmental Justice Report.

Conclusion

As we’ve beforehand reported, growth of interstate transmission infrastructure is without doubt one of the best challenges dealing with nationwide decarbonization and is a key merchandise on FERC’s agenda.  This most up-to-date proposed rulemaking holds promise to speed up the siting of such initiatives by increasing FERC’s capability to step in the place states reject, delay, or hinder interstate transmission growth.

Feedback on the discover will probably be due 90 days after publication within the Federal Register.