On December 15, 2022, the Federal Vitality Regulatory Fee (FERC) issued a Discover of Proposed Rulemaking looking for to revise its rules governing the siting of interstate electrical transmission strains. The NOPR implements congressional directives included within the Infrastructure Funding and Jobs Act (IIJA) of 2021. The IIJA directed FERC to concern a rule establishing the way during which FERC would concern a allow for development or modification of a transmission line positioned in a Nationwide Curiosity Electrical Transmission Hall (Nationwide Hall) designated by the Division of Vitality. Importantly, FERC’s authority beneath the IIJA to concern such a allow is proscribed to conditions the place a state has both (1) denied or (2) did not act in a well timed method on an applicant’s request to web site transmission amenities positioned in a Nationwide Hall.
Whereas it’s welcome information for FERC to offer an extra avenue for transmission growth in Nationwide Corridors, together with for service provider high-voltage direct present (MHVDC) strains, sure parts of the proposal could show onerous for builders, and the departure of FERC Chairman Richard Glick leaves the way forward for the rulemaking in query.
FERC Asserts Authority; Establishes Simultaneous Processing of Functions
Whereas FERC has lengthy had the ability to allow interstate pipelines beneath the Pure Gasoline Act of 1938, it has not had corresponding authority over electrical transmission. The dearth of federal authority over interstate transmission has been a big obstacle to the development of recent transmission strains. Many proposed interstate transmission initiatives have failed regardless of substantial funding attributable to an incapacity to acquire a allow from one of many states alongside the route. It has been a selected problem for long-haul transmission strains traversing a number of states, as state utility commissions have in some instances been reluctant to grant permits or wanted condemnation authority for transmission initiatives that primarily serve technology and cargo positioned in different states.
The NOPR clarifies the expanded siting authority granted to FERC within the IIJA by expressly stating that the Fee could concern a allow for the development or modification of electrical transmission amenities in Nationwide Corridors if a state has denied an utility to web site transmission amenities. It additionally proposes to eradicate the one-year delay following the submittal of a state utility earlier than FERC’s necessary pre-filing course of could begin. As an alternative, the NOPR proposes to permit the simultaneous processing of state purposes and FERC pre-filing proceedings. This alteration will enable candidates to concurrently pursue approval earlier than a state and FERC with the intention to reduce delays within the occasion the state denies the appliance. Nonetheless, in a nod to the state’s position and curiosity in any such challenge, the NOPR proposes to determine a 90-day window for the state to offer feedback on any side of the pre-filing course of, together with any data submitted by the applicant.
Applicant Code of Conduct for Dealings with Landowners
The IIJA required the Fee to find out that an applicant “has made good religion efforts to have interaction with landowners and different stakeholders early within the relevant allowing course of” as a precondition to the allow holder buying the mandatory right-of-way by eminent area. The NOPR proposes an Applicant Code of Conduct that features explicit recordkeeping and information-sharing necessities for engagement with affected landowners, in addition to extra common prohibitions in opposition to sure misconduct in such engagement. Dedication to the Applicant Code of Conduct is voluntary but when the applicant doesn’t comply, it should present data relating to its chosen various technique of demonstrating that it meets the great religion efforts customary.
New Environmental Stories – Environmental Justice, Tribal, Air High quality/Noise
The NOPR would add three new useful resource reviews to the pre-filing course of for the FERC utility: an Environmental Justice Useful resource Report, a Tribal Sources Report, and an Air High quality and Environmental Noise Useful resource Report. These new useful resource reviews replicate the Biden Administration’s concentrate on fairness and inclusion and environmental points within the power transition.
FERC Seeks Touch upon the NOPR
Feedback are due 90 days from publication of the NOPR within the Federal Register (mid-March 2023). FERC will then decide whether or not to take additional motion on the proposal. Notably, Thursday’s assembly at FERC marked the final for present Chairman Richard Glick as his time period expires on the finish of the yr. His re-nomination had been blocked by Senator Joe Manchin, prompting Chairman Glick to step down from the Fee. Beginning January 1, 2023, FERC can have a 2-2 Democratic/Republican cut up which can stall efforts to maneuver the NOPR, and plenty of different orders of enterprise at FERC, ahead. Each Republican commissioners (James Danly and Mark Christie) wrote concurring opinions to the NOPR, vital of FERC’s efforts to achieve past the intent of the IIJA. Thus, there’s some query whether or not FERC will transfer ahead with the NOPR after the remark interval expires.
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