How Congress could revise BAAJA to lock in progress from Order 1920 and strengthen interregional transmission planning  

The following blog is part of a series examining specific provisions in the Bipartisan American Affordability and Jobs Act (BAAJA). Clean Air Task Force is taking a close look at the bill to identify opportunities to strengthen its provisions, address potential gaps, and improve its effectiveness in meeting the country’s energy needs reliably and affordably.  

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The country needs to build more efficient, cost-effective regional and interregional electric transmission lines to achieve broadly shared economic and emissions reductions goals. We appreciate the bipartisan efforts of the architects of the Bipartisan American Affordability and Jobs Act (BAAJA) to bring much-needed attention to transmission reform.  

BAAJA enters a policy space shaped most recently by Order 1920, FERC’s landmark long-term transmission planning rule, and must be considered in light of that Order.¹ Order 1920 is premised on the theory that, absent clear and specific mandates requiring regional transmission planning that unlocks competition and meets all foreseeable system-wide needs as efficiently as possible, transmission owners—who generally earn guaranteed profits on whatever they build in their own territories—default to short-term, piecemeal, inefficient transmission buildout that maximizes their profits. The pre-Order 1920 status quo failed to deliver high-voltage interstate transmission needed to drive economic growth, failed to achieve emissions reductions, and thwarted competition needed to deliver cost savings to consumers. Because prior FERC rulemakings left too much room for utilities to avoid or minimize compliance, Order 1920 set clear and specific requirements for conducting long-term regional transmission planning, built around common-sense planning principles described further below.  

As with BAAJA’s provision on a Coordinated Planning Process (which we evaluated in our recent blog post), BAAJA’s transmission provisions seek to improve a broken status quo. The bipartisan drafters’ aim is to achieve more efficient and cost-effective regional and interregional transmission planning and buildout across the country—a goal we share. We believe certain modifications are needed to realize those aims. This blog examines the language in BAAJA section 2103, which covers regional and interregional transmission planning, and suggests modest, targeted revisions designed to ensure proper implementation and withstand judicial review in a legal landscape reshaped by recent Supreme Court decisions limiting agency independence and discretion. 

1. BAAJA’s Transmission Planning Requirements

BAAJA’s Section 2103 would amend the Federal Power Act (FPA) to include regional and interregional transmission planning requirements captured in a new section 225.  In the amended draft passed by the Senate on November 9, subsection (c) of this provision requires that within 180 days of enactment, FERC shall, “by rule: 

1. require each transmission planning region to establish a process for planning for regional transmission facilities in accordance with this section;  
2. require neighboring transmission planning regions to jointly establish a process for planning interregional transmission facilities in accordance with this section;  
3. require each transmission planning region to submit to the Commission for approval (A) a regional transmission planning process; and (B) a joint interregional transmission planning process with each of its neighboring transmission planning regions…; and  
4. establish rate treatments for regional and interregional cost allocation.”   

Operative planning requirements for both regional and interregional planning are found in subsection (d), which requires both processes to “contain the following core elements:”  

1. “A common set of input assumptions and models, on a consistent timeline, that: (A) allow for” the identification and selection of specific transmission facilities, for construction or modification, including through the use of advanced transmission conductors; (B) “consider, to the extent reasonable and economical,” modifications that maximize existing transmission infrastructure or rights-of-way; and (C) “consider interactions with” existing transmission plans and planning processes, including BAAJA’s new consolidated planning process; 
2. “A common set of transmission benefits for planning and cost allocation,” including 6 listed benefits; and 
3. “Selection criteria” governing project selection that provide improved reliability, protect or benefit consumers, and are consistent with the public interest. 

Under subsection (e), planning must start within one year of BAAJA’s effective date and be conducted on four-year cycles; transmission plans complying with the rule must be filed within two years of enactment. 

2. Regional Transmission Concerns 

Our question in evaluating new FPA section 225 is how its planning requirements compare to the status quo requirements under existing FERC regulations, primarily those of Order 1920, the implementation of which is just now under way. Our primary concern with new section 225’s requirements is that they are considerably less comprehensive and more permissive than those of Order 1920.  And while the drafters may have intended to require FERC to base its new rule on Order 1920, the language as drafted does not ensure this. But a simple fix would address both concerns. 

Order 1920: Measure Thrice, Build Once 

Because transmission is an expensive and long-lived asset, it should be planned not just for today’s demands but should be sized and placed to meet foreseeable long-term needs.  This ensures that the multi-billion-dollar transmission line meant to last for 50-70 years isn’t already undersized the moment it is built, requiring ratepayers to overpay repeatedly to rebuild the same line or multiple lines, when good planning would have consolidated those needs into one larger, cheaper project. But prior FERC planning requirements under Order 1000 served largely as voluntary guidelines that allowed transmission owners to evade efficient planning.  

To correct this, Order 1920 requires planning to be conducted as follows: First, to identify the scope of future system-wide needs, Order 1920 requires a holistic assessment of all expected changes in demand and supply across the entire transmission system over the next 20 years. Transmission providers must model the impact of seven specific factors that drive supply and demand—including state energy laws, technology trends, planned retirements, interconnection requests, new large loads, and extreme weather. Setting mandatory factors are necessary not just to keep the grid reliable but to ensure that transmission owners can’t favor affiliated generating resources by ignoring transmission needs such as state clean energy requirements. Second, they must forecast needed transmission across a minimum of three different future scenarios. Having multiple possible forecasts is essential to building a resilient energy system prepared not just for next summer’s hottest day but for events that may have low probabilities but carry high risks for the grid, such as extreme weather or cyberattacks. Third, to pick the most efficient solutions, transmission providers must assess and compare the full value of potential transmission projects meeting identified needs over that same 20-year horizon, using a minimum of seven mandatory benefit metrics. And as part of project assessment, planners must assess four different alternative transmission technologies. These requirements are needed to force transmission providers to identify more cost-effective solutions for ratepayers both by squeezing more out of existing assets for very low costs, as well as accurately assessing the value of large regional lines, whose multiple benefits take longer to exceed build costs, but then continue to run for decades. Fourth, planners must identify facilities that efficiently address long-term transmission needs, and project selection must be made using pre-determined, transparent criteria that aim to maximize benefits accounting for costs over time, without overbuilding facilities.  Selected facilities go through a cost allocation process that allows state input on the proposed projects and requires assignment of costs roughly commensurate with benefits, as required under the cost causation principle.   

BAAJA Steps Back 

Despite the existence of Order 1920, BAAJA directs FERC to promulgate a regional transmission rule within 6 months of enactment. But the statutory elements of the required BAAJA regional transmission rule are generally less comprehensive than the overarching requirements of Order 1920, and more akin to the permissive structure of Order 1000. For example, unlike Order 1920, BAAJA does not require that planning be system-wide, holistic, scenario-based, or use a 20-year horizon. No specific factors driving transmission must be assessed, such as state laws, integrated resource plans, or trends in fuels costs and technology. This would allow a return to siloed planning processes that examine only one type of transmission need at a time (e.g., reliability, economic, or policy-driven needs), using single and often inaccurate forecasts, on timeframes too short to accurately reflect the true benefits of regional transmission—as was the case with prior, unsuccessful planning orders.   

While BAAJA generally has fewer requirements than Order 1920, some of them also differ in substance, as detailed further below. Because of these substantive differences, FERC may issue some kind of new rule, which could cause confusion for FERC and transmission planners about whether to move forward with Order 1920 planning or wait for a new rule. While speeding the build-out of transmission to unlock cheaper, cleaner power is a stated goal of BAAJA’s drafters, adding confusion and potential delay to the Order 1920 process that is still getting under way could unwittingly undermine that goal. While FERC could fulfil some of its duties under BAAJA by issuing a rule incorporating Orders 1920, 1920-A, and 1920-B, this provision does not require it to do so, and this or a future FERC could instead issue a new rule that hews more closely to less-robust elements spelled out in new FPA section 225(d).   

Subsection 225(h) does not codify Order 1920 into law 

CATF supports clearly codifying Order 1920’s more comprehensive and stringent mandates into law, which we understand to be the intent of the drafters. But drafter intentions bind neither FERC nor the Courts, especially in light of the Supreme Court’s 2024 Loper Bright decision limiting agency discretion to go beyond the statutory text.² If new FPA section 225 is meant to codify Order 1920 as a mandatory requirement, it needs modification on top of the changes made in the manager’s amendment.  We break down the problem and propose textual fixes. 

As further explained below, proposed subsection 225(h) does not codify mandatory compliance with Order 1920 because it neither limits the scope of compliance to Order 1920 nor prevents FERC from making compliance with Order 1920 optional.  Additionally, its limitations to compliance with existing rules conflicts with statutory requirements that differ from those existing rules.      

In the draft released in early November 2026 with the manager’s amendment, new FPA subsection 225(h) reads: 

“(h) Compliance With This Section—A Commission order or rulemaking regarding transmission planning that is effective as of the date of enactment of this section, including orders published in the Federal Register on April 28, 2025, December 6, 2024, and June 11, 2024, shall constitute compliance with the regional transmission planning and cost allocation requirements of this section and relieves the Commission of the requirements under subsection (c)(1). 

A careful review of the text is necessary to determine how FERC commissioners could pursue a rulemaking, and how reviewing courts might interpret this subsection.  There are two issues with the structure that are likely to present problems with its enforcement.  

First, the scope of subsection (h) is unbounded, unclear, and does not explicitly reference or limit compliance to Order 1920.  Rather, it states: “A Commission order or rulemaking regarding transmission planning that is effective as of the date of enactment of this section, including orders published in the Federal Register on April 28, 2025, December 6, 2024, and June 11, 2024, shall constitute compliance … and relieves the Commission of the requirements under subsection (c)(1).”  While these dates correspond to the publication of Orders 1920, 1920-A and 1920-B in the Federal Register, the provision neither specifically mentions the relevant orders, nor limits compliance with BAAJA planning requirements to Order 1920.  Under this language, FERC or transmission planners could plausibly point to compliance with prior orders already deemed to be ineffective, such as Order 1000.  And while subsection (h) states that compliance with existing orders “relieves the Commission” of its drafting requirements under subsection (c)(1), it does not prohibit FERC from issuing a new rule that allows transmission owners to choose to comply with regional transmission planning via less stringent orders.   

The key word to guide interpretation of this subsection is “including.”  This word creates inclusive rather than exclusive language.  In other words, compliance with Order 1920 counts, but it is not the only way for FERC or transmission owners to comply. The Supreme Court, in conducting statutory interpretation, has said of the term, “including” or “includes”: “the verb ‘includes’ instead of ‘means…’ is significant because it makes clear that the examples enumerated in the text are intended to be illustrative, not exhaustive.” Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 162 (2012) (emphasis added). In writing statutes post Loper Bright, when federal courts will not defer to reasonable agency interpretations of statutes, likely court interpretations of statutory text hold more importance. 

Thus, the inclusive list of dates in the statute illustrates a set of orders that could be used by FERC or transmission owners to comply with the requirements of new FPA section 225. As a result, this rule does not prohibit FERC from issuing a rule now or in the future that effectively makes the more stringent requirements of Order 1920 optional instead of mandatory—especially since the proposed statutory requirements are themselves highly flexible.  

Second, subsection (h) ties compliance with its statutory requirements to existing rules, which presents additional problems.   

While BAAJA directs FERC to promulgate a regional transmission rule that differs from Order 1920 in many respects (as explained above), BAAJA also requires FERC to incorporate into the new planning rule certain elements that are not currently part of Order 1920 (or other potentially qualifying existing orders). For example, new section 225: (1) directs FERC to apply its transmission planning and cost allocation rules to Power Marketing Administrations such as Bonneville Power Administration;³ (2) has a different set of required benefits such that FERC may need to clarify or expand Order 1920’s benefits list;⁴ (3) adds an element not explicitly required by Order 1920, requiring transmission providers to consider modifications that maximize existing infrastructure to the extent reasonable and economical; (4) shortens the planning cycle from five years to four;⁵ and requires consideration of the new consolidated planning process set forth in section 2106 of BAAJA.⁶  These new requirements, not present in previous planning rules, mean that FERC may issue a new rule to comply with these statutory directives.  However, section 225(h) then states that compliance with any existing order (which do not include such requirements) constitutes compliance with the statute, an outcome that creates nonsensical results.  

At the point where we are asking these questions, it means the statute is not clear, and this likely leaves the meaning in the hands of the courts, creating a risk that the Court will view this as a mistake that Congress would have to fix. See Lamie v. U.S. Tr., 540 U.S. 526, 542 (2004) (cleaned up) (“If Congress enacted into law something different from what it intended, then it should amend the statute to conform it to its intent. It is beyond our province to rescue Congress from its drafting errors, and to provide for what we might think … is the preferred result.”)  

In sum, if FERC fills in gaps as its drafters intend, the planning provisions of BAAJA may ultimately reaffirm Order 1920. But the statute as written provides textual escape hatches for FERC and transmission providers to avoid the most critical elements of sound transmission planning and too much uncertainty about how reviewing courts will interpret its requirements. Congress should not leave sound regional transmission planning up to the interpretive discretion of other branches: it needs to speak clearly. 

There are easy fixes 

The most direct way to achieve the economic, affordability, and emissions reduction benefits of improved transmission planning is not to require a separate, new FERC regional transmission rulemaking. Instead, BAAJA could directly require all subject transmission providers to conduct regional transmission planning and cost allocation in compliance with Order 1920.  This would clearly codify Order 1920, bypassing the need for FERC to do anything and limiting the ability of future administrations or courts to weaken its requirements.  Like BAAJA’s proposed structure, however, it would lock in compliance to an existing rule. 

Alternatively, FERC’s rulemaking authority under new FPA section 225 could be written to unambiguously require Order 1920 as a floor and not a ceiling, which could be achieved through simple language in either subsection (c) or (h) such as:  

“The regional transmission planning and cost allocation rulemaking under Sections (c)(1), (c)(3)(A), and (c)(4) shall incorporate, at a minimum, the requirements of Orders 1920, 1920-A, and 1920-B as set forth in 89 Fed. Reg. 49,280 (June 11, 2024), 89 Fed. Reg. 97,174 (Dec. 6, 2024), and 90 Fed. Reg. 17,692 (Apr. 28, 2025).”  

Such language would allow FERC to address BAAJA’s new requirements and continue to strengthen Order 1920, while preventing any future rollback of its core requirements. 

3. Interregional transmission

Alongside a new regional planning rule, new FPA section 225 also directs FERC to issue an interregional planning rule. A strong interregional planning rule is much needed. But the permissive language of section 225’s interregional transmission planning requirements do not do enough to expand beyond the existing requirements of Order 1000 and Order 1920.  Incumbent transmission providers have strong economic incentives to avoid efficient interregional buildout and have a long history of successfully taking advantage of permissive, non-mandatory language. And unlike regional planning requirements, FERC doesn’t have a better existing rule to reference, so the agency may be more likely to stick to statutory requirements, especially in light of the tight implementation deadline. BAAJA should be amended to address these concerns and strengthen the interregional planning requirements. 

Many of section 225’s interregional planning elements are already required under Order 1000, part of the status quo that has failed to deliver the system of high-voltage interregional transmission required for the growing U.S. economy. For example, Order 1000 requires “the development and implementation of procedures for neighboring public utility transmission providers to identify and jointly evaluate transmission facilities that are proposed to be located in both regions.”⁷ That is, Order 1000 requires transmission providers to develop procedures for interregional planning. And these procedures must “identify possible interregional transmission facilities that may more efficiently or cost-effectively address the individual needs identified in their respective local and regional transmission planning processes.”⁸ But Order 1000 does not: have firm requirements on what any of these procedures must entail, require interregionally-focused transmission planning, or require selection of interregional projects identified in the coordination process. In practice, this has meant that interregional planning rarely occurs, and even when interregional needs are identified, planning regions fail to address them. 

Order 1920 included improvements to Order 1000’s interregional coordination requirements that, once implemented (compliance plans are just now being filed), are in many ways comparable to BAAJA’s interregional planning provisions. Under Order 1920’s revised interregional transmission coordination procedures, transmission providers must share information generated as part of their regional transmission planning process with neighboring regions, including identified transmission needs and potential facilities to meet those needs, as well as the identification and joint evaluation of interregional transmission facilities that may be more efficient or cost-effective in meeting such needs.⁹  By requiring neighboring regions to share transmission needs and potential projects developed under the same core minimum requirements for holistic, scenario-based planning, Order 1920 puts regions on more common ground to identify transmission needs that may be more efficiently addressed through interregional projects.  

As with regional transmission, BAAJA’s interregional provisions should be assessed within the context of these existing requirements. 

What does new FPA section 225 say about interregional transmission? 

The operative requirement of subsection 225(c) is for FERC to require transmission providers to “establish a process for planning interregional transmission.”  But it does not explain how any planning must be conducted, nor does BAAJA require that any interregional facilities be built if planning determines such lines to be efficient and cost-effective.   

Recall that Order 1000 already requires transmission providers to develop and implement procedures for interregional planning. It is not clear how BAAJA’s requirements have more teeth than Order 1000: requiring a “process for planning interregional transmission” (BAAJA’s plain text) is synonymous with requiring “procedures for neighboring public utility transmission providers to identify and jointly evaluate transmission facilities that are proposed to be located in both regions” (Order 1000’s plain text). Without clearer requirements governing the planning process, there is little assurance that BAAJA’s interregional planning provision would produce better outcomes than similar requirements under Order 1000.  

In particular, the “elements” BAAJA requires in these processes are too permissive to ensure needed change given transmission owners’ continued economic incentives to avoid building interregional transmission that would reduce costs for ratepayers. For example, BAAJA requires “a common set of input assumptions and models on a consistent timeline that … allow for joint identification and selection of specific interregional transmission facilities.” BAAJA does not specify what those inputs must entail or how they must be studied. As any common inputs can allow for joint identification and selection of transmission projects, BAAJA’s text does not exceed the requirements of existing Orders 1000 and 1920. The same provision states that joint identification and selection can be “including through the use of advanced transmission conductors.” While this provision allows for advanced transmission technologies to be identified and selected, Order 1920 found that, absent a specific mandate to assess advanced transmission technologies as part of the planning process, such projects (which are often cheap and easier to build) will be ignored.¹⁰  

And while BAAJA does require that there be a common set of minimum benefits, it does not say how they must be applied. Moreover, as mentioned above, BAAJA’s planning provisions lack critical requirements for identifying holistic transmission needs and efficient solutions: a minimum 20-year planning horizon, consideration of reasonably foreseeable factors driving transmission needs across the entire system, such as state energy laws or large load demands; and evaluation of solutions against all transmission needs at once, instead of in separate silos. Clear mandates using the same core planning framework of Order 1920 are critical to achieve BAAJA’s goal of building interregional transmission. 

Congress can modify this provision to ensure cost-effective interregional planning happens 

First and foremost, while the Manager’s Amendment now requires that interregional planning be conducted, new FPA section 225 should include essential requirements for how to conduct that planning, without which the resulting plans are unlikely to meet long-term future needs or identify efficient, cost-effective solutions.  Specifically, planning must:  

• Be based on a minimum 20-year outlook; 

• Identify systemic transmission needs by conducting scenario-based analyses across multiple future scenarios that each incorporates the seven mandatory factors of Order 1920 along with relevant factors specific to interregional needs; 

• Evaluate potential transmission projects addressing the identified needs holistically (i.e., projects that would meet reliability, economic, and policy needs at once) and determine efficient and cost-effective solutions by assessing all foreseeable benefits proposed projects could provide (including a mandatory minimum set of benefits);  

• Require assessment of low-cost solutions such as alternative transmission technologies and improved joint operating agreements; 

• Use project selection criteria that are transparent, not unduly discriminatory, and aim to maximize cost-effectiveness; and 

• Include input from relevant state entities and other key stakeholders on scenario planning, project selection, and cost allocation. 

In addition to these factors, because interregional transmission is such a critical asset for the nation’s grid––not just for maintaining reliability during extreme weather, but also in meeting new demand from large loads, increasing access to cheap power, and helping maximize stability across a diverse array of resources—Congress should strongly consider requiring FERC to set minimum levels of interregional transfer capacity between regions that reflect meeting holistic transmission needs. Such a mandate would ensure not only that good projects get planned but that they get built. Together, these requirements would build on the positive aspects of Order 1920 and Order 1000 and bring interregional planning closer to the modern, efficient system that our economy requires. 

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Order 1000 taught us that words matter. Transmission providers have economic incentives to build inefficient, piecemeal, costly transmission—and that patchwork has burdened the American economy and cost American ratepayers for decades. BAAJA’s drafters seek to move beyond the outdated planning modalities that have constrained transmission in the past. To do that successfully, BAAJA must place firm, clear, prescriptive requirements on transmission providers—or risk a repeat of past failed attempts at transmission reform. We commend the BAAJA transmission provisions for tackling this issue proactively and productively. But we suggest drafters further strengthen the transmission provisions, through less permissive and more comprehensive terms that clearly mandate planning practices that will actually identify and select the most efficient and cost-effective projects. Doing so will increase reliability while lowering electricity costs across the country. 

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¹ See Building for the Future Through Electric Regional Transmission Planning and Cost Allocation, Order No. 1920, 187 FERC ¶ 61,068 (2024), 89 Fed. Reg. 49,280 (June 11, 2024), as amended by Order No. 1920-A, 189 FERC ¶ 61,126 (2024), 89 Fed. Reg. 97,174 (Dec. 6, 2024). For a helpful explainer of the rule, see FERC, Explainer on the Transmission Planning and Cost Allocation Final Rule at: https://www.ferc.gov/explainer-transmission-planning-and-cost-allocation-final-rule#_ftn1.   

² Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024). 

³ New FPA § 225(b)(2)(A). 

⁴ Id. § 225(d)(2). 

⁵ Id. § 225(d)(1)(B). 

⁶ Id. § 225(d)(1)(C). 

⁷ Order 1000 P 345. 

⁸ Order 1000, P 393. 

⁹ Order 1920 P 1751. 

¹⁰ Order 1920 P 1194.