Meeting U.S. climate, energy, and electrification goals through 2050 could require tripling the capacity of today’s long-distance electricity transmission network. This level of deployment means that wires must be planned, permitted, approved, and constructed at historically unprecedented rates to bring clean electricity to homes and businesses nationwide. But today, we are trending in the opposite direction – there has been a steady decrease in transmission investment over the last decade, while hundreds of gigawatts of clean energy projects wait longer than ever before to interconnect to the grid.
Building a transmission line within one state can be difficult enough, but additional challenges arise when transmission developers plan to build across state borders. States, as well as local and tribal governments, may have differing permitting and review processes, siting requirements, and community dynamics that developers must navigate. In some states, regulators may be able to block or delay transmission projects that do not provide specifically-defined benefits or meet specifically-defined needs that are set by the state. If one state says “no” to an interstate transmission line, then the line must be rerouted, leaving completion of the project at risk.
Fortunately, Congress recognized this barrier to interstate transmission. Nearly two decades ago in the Energy Policy Act of 2005 (EPAct 2005), Congress established a “backstop authority” for interstate transmission at the Federal Energy Regulatory Commissions (FERC). These provisions were recently updated in the Infrastructure Investment and Jobs Act (IIJA) to correct some deficiencies in the original legislation. That update offers FERC a unique opportunity to dust off this approach and implement it to build the interstate transmission lines we need.
What is the FERC “backstop” authority, and where does it stand today?
In EPAct 2005, Congress enacted Section 216 of the Federal Power Act (FPA), which authorized FERC to approve the construction or modification of interstate electric transmission facilities if those facilities were located in “National Interest Electric Transmission Corridors” (NIETC) designated by the U.S. Department of Energy (DOE). Essentially, this gave FERC “backstop” siting authority, or the ability to step in to issue construction permits in corridors where the transmission line would, by DOE’s estimation, alleviate electricity limitations, congestion, or other constraints negatively impacting electricity consumers and communities. Due to a series of judicial challenges and decisions, however, not a single transmission project has benefited from this policy and FERC has not attempted to use its backstop siting authority since 2011.
Over a decade later, the backstop siting authority is again front and center in the national conversation. When it passed the IIJA in 2021, Congress revisited the planning and backstop siting provisions to clarify and expand FERC’s authority to permit a transmission project in a NIETC (1) that a state has denied, (2) where the state has not made a decision on an application after one year, or (3) where the state has added conditions to the project’s approval that render the project uneconomical or unhelpful in alleviating congestion. FERC may also give developers eminent domain authority if it determines the developer made “good faith” efforts in engaging with relevant stakeholders early in the permitting timeline.
First step in backstop permitting implementation: Notice of Proposed Rulemaking
Earlier this year, FERC proposed a rule to revise its regulations governing applications for electric transmission facility permits to ensure consistency with the IIJA amendments, to update regulatory requirements, and to make the permit approval process more efficient. These regulations include proposed updates to how FERC implements the National Environmental Policy Act (NEPA), a landmark environmental protection law.
CATF supports FERC efforts to streamline and maintain environmental reviews and promote climate and environmental justice goals
CATF offered comments supporting FERC’s changes to the federal transmission permitting process that would remove unnecessary delays, streamline environmental reviews without weakening them, and assure early and meaningful stakeholder engagement in both processes. CATF responded to the FERC Notice of Proposed Rulemaking (NOPR) with three key areas of support and recommendation.
- Start federal permit pre-filing and state permit filing timelines in NIETCs simultaneously to reduce delays. In Order 689, FERC proposed that the federal construction permit filing process for transmission projects in a designated NIETC could begin once per year had passed since the filing of a state application, or a year after the corridor’s designation as a NIETC. CATF supports removing unnecessary year-long delays in siting and permitting transmission in NIETCs as DOE considers these corridors critical to relieving capacity constraints and congestion and enabling a more clean, affordable, reliable, and resilient energy transition. Therefore, CATF supports FERC’s proposal in the NOPR that the federal and state filing processes can begin simultaneously.
- Add clarity around stakeholder community engagement in Project Participation Plans as part of the pre-filing process. Applicants are required by FERC’s FPA regulations to develop “Project Participation Plans,” or plans for stakeholder participation and engagement in the early stages of project permitting. FERC proposed revising its definition of a “stakeholder” to ensure all interested parties are properly covered by the term. CATF supports FERC’s proposal to specify its definition of a “stakeholder” and to explicitly identify environmental justice communities as stakeholders. Research shows that early and meaningful community outreach and engagement can reduce the likelihood of project delays.
- Adopt NEPA regulations for efficient and informed reviews of transmission construction project permits. FERC should structure NEPA reviews for permit applications to avoid unnecessary redundancy while still conducting a thorough analysis of environmental impacts. CATF supports FERC’s adoption of NEPA regulations that include discussion of mitigation measures and analyses of environmental justice and air quality impacts. CATF also recommends FERC adopt regulations to streamline the NEPA review of interstate transmission applications by adopting existing environmental reviews and implementing best practices for “tiering,” in which broader NEPA reviews are conducted and then referenced in subsequent narrower analyses to avoid rework. Tiering can help FERC focus on issues “ripe for decision” and exclude already decided issues from consideration.
FERC’s backstop siting authority and DOE NIETC designations go hand-in-hand – the backstop authority is meant to move forward transmission projects in designated National Interest Electricity Transmission Corridors for the benefit of the nation’s energy system and its electricity consumers. DOE has also recently released a Request for Information seeking responses to questions about how these national interest corridors should be designated and selected, with comments due at the end of July. CATF will be offering DOE our comments on the NIETC designation process.
Building sufficient transmission in the right places to deliver clean energy to consumers is a critical piece of addressing and alleviating the historically significant climate impacts of U.S. electricity production. These dual initiatives at FERC and DOE can help pave the way for a more rapid build out of interstate transmission lines that maintains robust environmental protections and stakeholder engagement, particularly for environmental justice communities.