All articles by Daniel M. Adamson, Principal, Energy Reg Strategies LLC. 

Letter to the Editor, (co-written with Paul Bledsoe) (May 14, 2023):

“Streamline power line permitting to achieve IRA climate goals”(co-written with Paul Bledsoe) (August 2022), The Hill 

A New Approach to Access Remote Clean Energy (May 2022)

Congressional Action is Required to Access Remote Renewable Power (May 2021)

 ETo the Editor (New York Times, published May 14, 2023):

Re “We Desperately Need a New Electrical Grid. Here’s How to Make It Happen” (editorial, May 7):

Kudos for recognizing that the Federal Energy Regulatory Commission is the agency best equipped to consider and approve proposals to build long-distance interstate electric transmission needed to deliver affordable but remote renewable energy to where it is needed. Otherwise, America will not be able to decarbonize our grid or our economy.

Fortunately, the proposed Streamlining Interstate Transmission of Electricity (SITE) Act would provide F.E.R.C. the authority it needs to help solve this problem.

Since enactment of the Federal Power Act in 1935, states have effectively had veto power over the siting of interstate electricity transmission, resulting in expensive delays of a decade or more for many crucial projects. Most never get built. No surprise, then, that over the last decade America and Canada combined have built just seven gigawatts of large-scale interregional transmission power lines, compared with 44 GW in Europe and 260 GW in China.

F.E.R.C. has decades of experience approving interstate natural gas pipelines. The outcome has been timely construction of a robust interstate gas pipeline system that has produced significant economic benefits for consumers and the nation, while helping gas displace most coal use, a process responsible for nearly three-fifths of U.S. carbon dioxide emissions reductions from 2005 to 2021. And recently, under pressure from the Biden administration, F.E.R.C. has been more responsive to the legitimate needs of states and other stakeholders when siting pipelines.

It’s time that Congress acts to deliver the affordable clean power Americans want and deserve.

Daniel Adamson 
Paul Bledsoe
Mr. Adamson is a principal of Energy Reg Strategies and former Director of the Office of Energy Projects at the Federal Energy Regulatory Commission. Mr. Bledsoe is a strategic adviser for the Progressive Policy Institute and served on the White House Climate Change Task Force under President Bill Clinton.

A New Approach to Access Remote Clean Energy

By Daniel M. Adamson, Principal, Energy Reg Strategies LLC

The dire threat of climate change dictates that the U.S. implement a multiplicity of measures that achieve greenhouse gas reduction goals (GHG). One of the most important steps is to decarbonize the electricity system through the construction of long-distance transmission lines to deliver remote wind and solar power to consumers to replace fossil fuels. To achieve this goal the capacity of the transmission system must at least be doubled or even tripled by 2050 ^[1]https://environmenthalfcentury.princeton.edu/research/2020/big-affordable-effort-needed-america-reach-net-zero-emissions-2050-princeton-study.  The costs of wind and solar have plummeted in recent years, with these two resources the low-cost generation market leader in many areas of the U.S. ^[2]https://www.lazard.com/perspective/levelized-cost-of-energy-levelized-cost-of-storage-and-levelized-cost-of-hydrogen That is good news, but only if the necessary long-distance transmission is built.^[3] One immediate barrier is that the regulatory process for a long-distance multistate line  often takes 10-years or more to get though the regulatory process

A central barrier to the siting approval of interstate transmission is that under the Federal Power Act of 1935, only the states have siting jurisdiction over interstate electric lines. ^[4]FPA § 824. For example, if a long-distance electric transmission line is proposed to go through multiple states, a single state can block the entire project, regardless of project benefits such as reductions in GHG to decarbonize the electric sector.

Evolution of Interstate Electric Transmission Grid

The U.S. electricity system has changed profoundly since Thomas Edison’s Pearl Street generation located in Manhattan went online in 1882. Initially, the system was comprised of individual utilities with power generation located within or near their power system that usually were not interconnected to the grid. For many decades, the U.S. grid system has been comprised of two massive interstate transmission “interconnections” — one in the West and one in the East (except ERCOT Texas). Power is routinely transmitted over multiple regional transmission organizations and other transmission systems hundreds and thousands of miles from where it was generated. Yet we continue to have in place an outmoded provision of federal law that gives states unilateral authority to veto proposed interstate transmission projects regardless of the benefits, including the decarbonization of the electricity system.

S.2651 Streamlining Interstate Transmission of Electricity Act “SITE Act”

Senator Sheldon Whitehouse has introduced legislation to reduce the difficulty of building long distance transmission lines to deliver remote renewable power to consumers. ^[5]Senators Martin Heinrich and John Hickenlooper cosponsored the Whitehouse bill and Representative Mike Quigley introduced the bill in the House.  The SITE Act takes a new approach to the problem of barriers to accessing remote renewables. It differs considerably from the siting authority ”backstop” structure enacted in the Energy Policy Act of 2005 (EPAct 2005). ^[6]The 2005 backstop siting provision has a tortured history. Intense opposition to the DOE National Electric Interstate Transmission Corridors (NIETC) issued in 2006 from states, Members of Congress, … Continue reading

The SITE Act establishes a bright line rule that to apply to FERC for a permit for a proposed interstate transmission project, capacity must be no less than 1000 MW or no less than 500 MW for an upgrade. The 1000 MW threshold is intended to spur a few long-distance interstate transmission project and therefore would have a de minimis effect on state jurisdiction.  It is the opposite of the broad-brush transmission corridors designated by DOE that sparked such vehement opposition to the backstop. One potential way of targeting the application of the SITE Act would be to provide for a limit for how many transmission projects that there could be — one in each transmission system in the eastern, western and Texas interconnections.

The application process and requirements under the SITE Act is similar to the existing FERC processes to site energy infrastructure such as hydropower pursuant to the Federal Power Act andnatural gas pipelines and LNG terminals under the Natural Gas Act (NGA). Unlike the EPAct 2005 backstop siting provision these energy infrastructure projects are not subject to a burdensome two-step regulatory process with DOE identifying a transmission corridor and a second step administered by FERC to consider eligible long distance interstate transmission siting applications process. The FPA/NGA siting approaches have for the most part worked well. To the extent that there have been shortcomings in the treatment of landowners, these are remedied in the SITE Act.

In addition, the SITE Act also accelerates judicial review by eliminating the “rehearing” requirement that provides that a party who seeks judicial review under the FPA (including DOE in this instance) must request rehearing dropping the requirement in the FPA that to obtain judicial review of a final order that a project sponsor request rehearing as a condition of obtaining judicial review in the U.S. Court of Appeals.

The SITE Act also requires that GHG impacts, environmental justice and tribal issues be addressed in the NEPA process. It also includes many provisions to protect the interests of affected landowners that are subject SITE Act. Finally, under the SITE Act FERC eminent domain authority does not apply to state land. This would narrow the reach of the bill due to the abundance of state lands.

State Barriers to Interstate Power Lines

Over the years the impact of the state veto of long-distance interstate transmission lines has been primarily behind the scenes. Prospective transmission developers take their business elsewhere when they learn every state traversed by a proposed interstate line has authority to veto the entire line. The mere fact of the existence of state veto authority often discourages any effort to build an interstate line that involved 2 or more state boundary crossings.

Clean Line /Plains and Eastern/and Grain Belt Express/Invenergy

The experience of Clean Line, a merchant transmission developer, with their Plains and Eastern and Grain Belt Express proposed DC lines is just one example of why the current state authority to veto a proposed DC federal interstate lines is problematic and needs to be reformed. Both projects have been subject to different versions of the death or near death by a thousand regulatory cuts phenomenon. ^[7]For an excellent history of the Clean Line saga see “SUPERPOWER One Man’s Quest to Transform American Energy, By Russell Gold” Senior Energy Reporter, Wall Street Journal  (2019)

Clean Line’s Plains and Eastern project, first announced in 2009, was intended to be a DC line to deliver wind power from the distant and windy Oklahoma Panhandle to the Southeastern market. This is the type of transmission project that can be ideal to deliver remote wind power to load and decarbonize the electricity system. For more than a decade Plains and Eastern has been subjected to a gauntlet of state regulation and institutional barriers in Oklahoma, Arkansas, Indiana, Illinois, and Texas that has made it exceedingly difficult to advance proceed with these projects. In 2021 Next Era purchased the portion of Plains and Eastern that is within Oklahoma.

Another longstanding project originally developed by Clean Line is Grain Belt Express, a merchant high-voltage transmission project which was first announced in 2008 and is still pending approval.  It was as purchased from Clean Line by Invenergy in 2021. It would run 700 miles through Kansas, Missouri, Illinois and Indiana to deliver low-cost wind. It has received state permits for all the states within the route with one exception, Illinois, which Invenergy expects it will receive in 2022. Grain Belt Express is the last of the early group of Clean Line projects standing that resembles what was originally proposed.

Conclusion

The SITE Act is a thoughtful and well-crafted proposal that can, at a minimum, move the transmission siting dialogue from a rehashing the fundamentally flawed backstop siting authority adopted by Congress in the Energy Policy Act of 2005 to provide new solutions.

For a full discussion of the twisted history of the backstop and why we need to try something else please go to my website at www.danmarkadamson.com and click on publications —Congressional Action is Required  to Access Remote Renewable Power, May  18, 2021.

Congressional Action is Required to Access Remote Renewable Power

By Daniel M. Adamson, Principal, Energy Reg Strategies LLC, 5-18-2021

Energy policymakers have long lamented the lack of long-distance high voltage interstate electricity transmission to deliver abundant and untapped wind and solar power resources from remote areas to electricity consumers. This must change for the United States to meet the ambitious greenhouse (GHG) gas reduction goals for the electricity sector that is a key component of our response to climate change. Therefore, Congress should make a concerted effort to fix the backstop siting authority so it can become an important mechanism to enable access to remote wind and solar power.

Introduction

One of the many challenges to siting long distance high voltage interstate electric transmission is that the Federal Power Act of 1935 (FPA) provides that the Federal Energy Regulatory Commission (FERC) has no jurisdiction over the siting of interstate electric transmission lines. Instead, jurisdiction of the siting of interstate electric power lines lies with the states. ^1[8]§ 201 (a). Consequently, if a proposed interstate electric transmission line is in multiple states, a single state along the proposed route can block the entire project regardless of the approval of the other states and without regard for national benefits from the project such as the reduction of GHG emissions. There is no effective legal remedy for this problem.

The siting of interstate natural gas pipelines is handled very differently from electric transmission lines. The authority to site interstate natural gas pipeline facilities is the responsibility of the federal government through FERC pursuant to the Natural Gas Act (NGA). ^[9]Natural Gas Act, 15 U.S.C. § 717f. The Commission’s implementation of its authority regarding the siting of interstate natural gas pipelines has not been perfect.  However, overall, it has been a major success, resulting in a robust interstate natural gas pipeline system that has enabled the creation of a vigorous wholesale natural gas market. The natural gas pipeline system also facilitated the shift to the use of natural gas to generate electricity instead of more costly and environmentally harmful coal generation.

The proposed long-distance high voltage transmission line that has had the most regulatory difficulties in recent years due to state opposition has been the Grain Belt Express Clean Line Project (Clean Line), a merchant high-voltage transmission project which was first announced in 2008 and is still pending approval in at least one state at this writing in May 2021. ^[10]https://grainbeltexpress.com/overview Clean Line would run through Kansas, Missouri, Illinois and Indiana to deliver low-cost wind power generated in Kansas to load, all states where substantial amount of a utility right of way are privately owned by landowners who are often intense opponents of the use of the right of eminent domain. Grain Belt has had to struggled through a dense thicket of opposition from state regulatory commissions, state legislatures and state courts. ^[11]Id. According to Clean Line, it has received state permits from Kansas, Missouri, Indiana but has not received a permit from Illinois. ^[12]Id.

A recent report issued by the Columbia University Center on Global Energy Policy (Columbia) asserts that new long distance high voltage transmission lines are “vital if the United States is to deploy enough renewable generation capacity to decarbonize the power sector…” ^[13]“Building a New Grid Without New Legislation: A Path to Revitalizing Federal Transmission Authorities” (December 2020)” by Avi Zevin, Sam Walsh, Justin Gundlach, and Isabel Carey, hereinafter … Continue reading Columbia suggests that the federal “backstop” electric transmission siting authority enacted in the Energy Policy Act of 2005 (EPAct 2005) be “revitalized’ with changes that can be made under current law.  Unfortunately, the fundamental flaws in the backstop are so severe that it will likely not be possible to revive it, as explained below.  Consequently, it will not be possible for policy makers to rely on the existence of the backstop siting remedy to solve the problem of the lack of transmission capacity to access remote renewable power resources such as wind and solar.

Backstop Background

The backstop was the product of an effort by Congress in 2005 to address the difficulties of obtaining siting approval for electric transmission needed to address transmission congestion.  It largely preserved state authority over interstate transmission with a few narrow exceptions that authorized FERC in conjunction with DOE to approve siting applications for certain proposed interstate transmission.  However, the backstop provision did not work as intended.  Not one application for backstop approval has ever been filed. Instead, the backstop provision has been essentially dormant since 2007 following stiff opposition to DOE’s designation of National Interest Electric Transmission Corridors (National Corridors) from states, environmental groups and others.

In fact, the ruling in the U.S. Court of Appeals for the 4th Circuit in Piedmont Environmental Council v. Federal Energy Regulatory Commission 558 F3d.304 (2009) ^[14]Hereinafter cited as Piedmont. decision gutting FERC authority to override denial by a state decision to reject an application under the statute in 2009 was just an additional nail in the coffin of the backstop. DOE had already ceased implementation two years prior to Piedmont. The coup de grasse to the backstop occurred in 2011 when the 9th Circuit vacated the National Corridors on the grounds that DOE had not engaged in sufficient consultation with affected states and others.

Backstop Structure

The backstop largely preserved state authority over the siting of interstate lines but provided a limited opportunity for FERC to serve as the federal “backstop” for interstate electric transmission. However, the scope and viability of the backstop was severely curtailed in a 2009 decision by the U.S Court of Appeals Fourth Circuit as well as the inability of the DOE to effectively implement the backstop. DOE implementation of the backstop stalled in the face of a firestorm of opposition from states, environmental groups to the National Interest Electric Transmission Corridors (National Corridors) issued by DOE in 2007 as required by the backstop statute.

Section 216 of the FPA divides implementation between the FERC and the DOE.  The DOE’s role is to designate National Corridors 1 year following enactment and, every three years thereafter. ^[15]§ 216(a). The FERC backstop permitting authority only applies if the proposed interstate transmission line is within a National Corridor. ^[16]§ 216 (a)(2).

DOE, in “consultation with affected States” is directed to conduct a study of electric transmission congestion. ^[17]§ 216(a). Following consideration of alternatives and recommendations from interested parties, including affected States, the Secretary shall issue a report, based on the study “…which may designate any geographic area experiencing electric energy transmission capacity constraints or congestion that adversely affects consumers as a national interest electric transmission corridor.” ^[18]Id.

The Commission is authorized in section 216(b) to issue construction permits, after notice and an opportunity for hearing, for the construction or modification of electric transmission facilities in a National Corridor if the “Commission finds that the state where the facilities are to be located does not have authority to approve the siting of the facilities” or is unable to consider the interstate benefits expected or is a “transmitting utility” that does not qualify because the applicant does not serve end use customers in the state.” ^[19]§ 216 (b).

Furthermore, the Commission may issue construction permits if “a state has withheld” approval for more than 1 year following the filing of an application or “conditioned its approval in such a manner that the proposed construction or modification will not reduce transmission congestion in interstate commerce or is not economically feasible.” ^[20]§ 216(b) For a construction permit to issue the proposed transmission facilities must be “consistent with the public interest” significantly reduce transmission congestion in interstate commerce … Continue reading

FERC Rulemaking to Implement Backstop

On June 26, 2006, the Commission issued a Notice of Proposed Rulemaking (NOPR) to implement the backstop siting authority. ^[21]Notice of Proposed Rulemaking 71 FR 36258 (June 26,2006); FERC Stats & Regs ¶ 32,605 (2006) A final rule was issued on December 1, 2006. ^[22]https://www.energy.gov/articles/doe-and-ferc-joint-public-statement-back-stop-siting Regulations for Filing Applications for Permits to Site Interstate Electric Transmission Facilities, Order No. … Continue reading

The final rule contains extensive discussions of the key issue disputed by the parties, the meaning of the words in section 216(b)(1)(C) that provide that the backstop authority applies when a state has “withheld approval” for more than one year. ^[23]Order No. 689 FERC explains:

The statute does not explicitly define the full range of State actions that are deemed to be withholding approval. Nonetheless, to promote regulatory certainty, we believe it is our responsibility to interpret the statutory language in this proceeding and to give all parties notice    of such interpretation. To this end, we believe that a reasonable interpretation of the language in the context of the legislation supports a finding that withholding approval includes denial of an application. ^[24]Id.

Following the issuance of the final rule four petitioners requested rehearing, Piedmont, the Public Service Commission of the State of New York (NYPSC), the Minnesota Public Utilities Commission (Minnesota PUC) and the Communities Against Regional Interconnect (CARI). Petitioners argued that FERC had erred in holding  that the phrase “withheld approval of an application for more than on than 1 year “ includes a denial” and further erred by violating NEPA by issuing  a final rule without preparing  an environmental assessments  or an environmental impact statement. “The Commission issued an order on May 17, 2007 denying rehearing. ^[25]Id. The Commission stated that it “continue[d] to believe that a reasonable interpretation of the language support[ed] its earlier conclusion. ^[26]Id.

The Commission did not grant rehearing on any of the errors alleged by Piedmont and others. ^[27]Regulations for Filing Applications for Permits to Site Interstate Electric Transmission Facilities, Order No 689, 119 FERC ¶61,154 (2007). However, Commissioner Suedeen Kelly filed a spirited dissent on the meaning of the phrase “withheld approval.” ^[28]119 FERC ¶61,154 (2007) Commissioner Kelly dissent. She stated that the “majority’s finding that “withheld approval for more than one year” includes a state’s lawful denial of a permit flies in the face of the plain language of section 216 of EPAct ^[29]Id.

Litigation in U.S. Court of Appeals

Opponents to the backstop sought judicial review of the FERC rule. The electric transmission backstop authority saga continued with the filing by Piedmont Environmental Council of a petition for judicial review in the 4^th Circuit, New York Public Service Commission (NYPSC) filing in the Second Circuit and in the D.C. Circuit by Minnesota PUC and CARI. ^[30]Piedmont 558 F3d. 304 at 312. The petitions were transferred to the Fourth Circuit and consolidated with the Piedmont petition. The Piedmont majority rejected FERC’s conclusion that the phrase “withheld approval of an application for more than on than 1 year “includes a denial of a proposed interstate electric transmission line. ^[31]Id.at 313. This ruling gutted the backstop. The court majority explained:

We have analyzed the phrase “withheld approval for more than 1 year.” Read by itself, the phrase does not include the outright denial of a permit application within the one-year deadline. We have also considered the phrase in the context of the entire statutory provision in which it appears. A reading of the entire provision reveals that Congress intended to act in a measured way and     conferred authority on FERC only when a state commission is unable to act on a permit application in a national interest corridor, fails to act in a timely manner, or acts inappropriately by granting a permit with project killing conditions. The broader context of § 216(b) thus confirms that the meaning of “withheld approval for more than 1 year” is plain: it means that action on a permit application has been held back continuously for more than one year. The continuous act of withholding approval does not include the final administrative act of denying a permit.  Because Congress’s intent is clear, our review under Chevron proceeds no further. For these reasons, we reverse FERC’s interpretation of the phrase “withheld approval for more than 1 year.”^[32]Id. at 315”

In dissent, Judge Traxler reached the opposite conclusion. ^[33]Id. at 322 He wrote that “the reasons are numerous for concluding that § 824p(b)(1)(C)(i) plainly has the meaning that FERC adopted. Only FERC’s interpretation gives Congress’s words their common meaning, and only FERC’s interpretation makes sense in the context in which the language is used and in the context of the statute as a whole. Indeed, the plain meaning is also the one indicated in the applicable legislative history. Finally, even assuming arguendo that the statute’s meaning were not plain, I would conclude that FERC’s interpretation was reasonable at the very least” and should be upheld. ^[34]Id.

The section 216 backstop was also subject to judicial review in the 9th Circuit in California Wilderness Coalition v. Department of Energy, 631 F.3d 1072 (2011). In 2007 DOE designated the Mid-Atlantic Area National Corridor and the Southwest Area National Corridor. ^[35]Department of Energy, “National Electric Transmission Congestion Report” 72 Federal Register 56992 (October 5, 2007). In 2009 the California Wilderness Coalition and others challenged the National Corridor designations in the 9th Cir. U.S. Court of Appeals. Petitioners argued that the DOE had erred by not engaging in sufficient “consultation” with “ affected states.”  as required by the statute. ^[36]California Wilderness Coalition v. FERC, 631 F3d 1072, 1080 (2011). The court rejected DOE’s claim that it had met its responsibility for state consultation. The court vacated both corridor designations.

Backstop Flaws

The cumbersome corridor designation approach adds no discernible value to the backstop. Instead, it is an anchor rather than a sail to the siting effort because it adds many additional steps that consume valuable time and money and increase the vulnerability to legal challenge. The statute creates a bifurcated regulatory process with DOE corridor designation and a FERC process to consider an application for backstop siting that is within a National Corridor. Elimination of the two-agency process would enable potential permit applicants seeking siting approval to go right to the FERC pre-filing process with their interstate electric transmission proposal, rather than having to go to both DOE and FERC, something that could take months, if not years, or more.

Under both the NGA and FPA infrastructure project proponents file applications for infrastructure siting to FERC without getting prior approval from DOE. ^[37]15 U.S.C. 717f , 16 U.S.C. 797. One of the many benefits of a case specific process is that focus on specific projects facilitates in-depth review of proposed infrastructure projects that have a reasonable chance of being built. This is much more constructive than speculation that virtually every spot within a broad-brushed National Corridor is at great risk of the construction of a major interstate electric transmission line.  This dynamic was very evident in the intense opposition to the two National Corridors.

The existing corridor process is also problematic because the agency charged by statute with the decision to designate National Corridors regarding congestion, DOE, has limited resources regarding transmission congestion and other issues.  This has been the case for decades. The author has had the privilege of working at DOE on electricity matters and does not question the quality of DOE staff and managers. The author also worked at FERC as the Director of the Office of Energy Projects and in the Office of General Counsel.  The Commission simply has multiple orders of magnitude more biologists, engineers, geologists, archeologists, lawyers and other resources than DOE to administer a transmission backup siting authority. Further, the problem of transmission congestion is a key challenge that FERC grapples with every day due to its responsibility to police wholesale gas and electricity energy markets and maintain the reliability of the interstate electric transmission system in conjunction with NERC.

DOE implementation of the backstop stalled in the face of a firestorm of opposition from states, environmental groups and others to the National Interest Electric Transmission Corridors (National Corridors) issued by DOE in 2007 as required by the backstop statute. Nor did DOE subsequently implement the requirement to develop and issue a new corridor designation every three years, as required by Section 216.[1] Therefore, new corridor designations were due in 2009, 2012, 2015, 2018 and thereafter.  DOE issued only one other congestion study report in 2015 that concluded there was not a basis for designation of new transmission corridors. DOE then issued a report in 2020 that concluded that the 2015 study did not “provide a basis for designation” of a National Corridor in 2020.

In addition, no backstop application was filed at FERC during the time period of more than 2 years when a final FERC rule implementing the backstop was issued and the decision in Piedmont in 2009 that gutted the backstop.  Only Southern California Edison (SCE), requested the initiation of the pre-application process that is a prerequisite under FERC rules to filing an application.  SCE submitted a pre-filing request (SCE) on May 16, 2008. ^[38]Southern California Edison Co. Docket No. PT08-1-000. (May 18, 2009). It concerned the Arizona portion of the proposed Devers Palo Verde 2 transmission line. About a year later SCE withdrew their prefiling request on May 18, 2009.  SCE explained that the impetus for their withdrawal was that an updated economic analysis of the line indicated that it was not economic.

The California Wilderness Coalition vs. Department of Energy decision in 2011 was another nail in the coffin of the already dormant backstop because DOE did not issue a revised corridor designation that addressed the errors found by the court ^[39]Hereinafter referred to as California Wilderness.. The reluctance of DOE to revisit corridor designations was due in part to the barrage of criticism that DOE had drawn the corridors far too broadly, and thus was attempting to usurp state authority. The intensity of opposition to the backstop was on full display in April 2007 in the House of Representatives in a hearing held by the Committee on Oversight Subcommittee on Domestic Policy. ^[40]National Interstate Electric Transmission Corridors,” Hearing Before the Subcommittee on Domestic Policy of the Committee on Oversight and Reform of the United States House of Representatives 110th … Continue reading

Every one of the nine of the nine Members of Congress that spoke did so in opposition to the backstop, including 3 Republicans. The eastern Mid-Atlantic National Corridor issued in 2007 includes the entire states of New Jersey and Delaware as well as parts of Pennsylvania, Maryland, Virginia, West Virginia and Ohio.[34] This broad-brush approach to National Corridors stoked the anxiety of the states and others that the backstop was intended to broadly preempt states.

Columbia Recommendations to Revitalize Backstop  

Columbia makes four separate recommendations regarding how the Section 216 backstop can be revived from its long dormant state through administrative means. This is a tall order as there is little to revive after 16 years have passed since enactment in 2005 with nothing to show for it.  Indeed, the main result of the backstop was to create a create an anti-transmission political firestorm in the large areas of the Northeast and Southwest that were within a National Corridor that led DOE to abandon the entire effort.

Columbia recommends that FERC issue a “revised rulemaking” to better explain the meaning of the phrase “withheld approval”, so it encompasses denial of a transmission application by a state. It would be helpful if judicial review of this aspect of the backstop could be obtained in the D.C Circuit or elsewhere to reverse Piedmont.  However, it could be years until judicial review occurred, if ever. Moreover, there is no guarantee that the outcome of judicial review would be helpful.  In addition, reversing Piedmont would not solve all the other problems with the backstop.

Columbia’s recommendation that DOE designate National Corridors on a project specific basis rather than drawing the corridors with an overly broad brush as DOE did previously, has considerable merit as policy.  The broad-brush approach has the effect of needlessly stoking opposition in exceptionally large areas including places where it is quite unlikely to be built. However, a project specific approach may be beyond the authority of DOE and FERC under FPA section 216. The National Corridor process is the foundation that the backstop is built on.

The designation of corridors on a project specific basis differs from the plain language of section 216(a) which is premised on the National Corridor designation process moving along based on congestion studies, a report based on such studies and corridors designations, not based on a specific project. It is likely that administrative changes would be challenged in the U.S. Court of Appeals,

The suggestion by Columbia that DOE consider delegating its authority to designate National Corridors for FERC to administer DOES also has merit.  FERC has the resources and expertise to implement the corridor designation as part of a consolidated backstop program and DOE does not.   The final FERC rule regarding implementation of the backstop explained that DOE had delegated to FERC the responsibilities of carrying out the lead agency and coordination responsibilities in the final rule implementing the backstop. ^[41]Order No. 689 However, there is no guarantee that DOE would agree to further delegate its authority to FERC.  In fact, when then FERC Chairman Jon Wellinghoff made a request to the Department of Energy that the backstop be further delegated to FERC during the Obama administration, then Secretary Chu turned him down. ^[42]https://www.energy.gov/articles/doe-and-ferc-joint-public-statement-back-stop-siting Regulations for Filing Applications for Permits to Site Interstate Electric Transmission Facilities, Order No. … Continue reading

FERC is also better equipped than DOE regarding lead agency functions and coordination as it has played that role within its own jurisdiction for the consideration of interstate natural gas pipelines, LNG terminals and hydropower the two delegations from DOE to FERC would mean that FERC would be able to completely administer the entire section 216 provision.  Unfortunately, the impact of this one change would not be worth pursuing on its own because of the other flaws in backstop that must be remedied for a workable structure to emerge.

Columbia also suggests that FERC urge developers to apply for siting of projects in states do not have such authority.  For example, some states bar the siting of transmission if the applicant does not have a state retail franchise. Columbia’s proposal has merit with the caveat that project developers should mull over the pros and cons of litigation adverse to a state in a “hometown” forum where you might, as an outsider, be pushing uphill. It might be prudent to make an initial effort to work collaboratively with state regulatory Commissions and utilities before going the litigation route.

Columbia’s final recommendation is that DOE should “marshal…staff time and political capital” toward revitalizing the backstop. Unfortunately, the many flaws in the backstop process suggest that DOE devote their scarce resources and political capital to initiatives that are much more likely to succeed.

Conclusion

In sum, the administrative changes proposed by Columbia are not likely to transform the backstop process into an effective means of lessening the difficulty of siting interstate electric transmission facilities.  It would not be a good use of the time and resources of the new Administration and FERC to attempt to revitalize the backstop law under current law. In addition, the record of DOE implementation of the backstop, or lack thereof, as well as the losses in the U.S. Court of Appeals in the 4th and 9th Circuits make a compelling case that it would be unwise to attempt to reform the backstop administratively.

This leads to the question, if the backstop is not revitalized under current law what should be done to address the barriers to siting long distance high voltage interstate transmission lines that deliver power from remote areas to load?   In light of the importance of achieving GHG gas reductions as part of the effort to solve the existential threat of climate change it would be a mistake to simply continue to be satisfied with the status quo without an effective backstop.

Some may say that any effort to preempt states regarding interstate transmission siting is a political “third rail” that must be avoided at all costs.  But remember that the supporters of the backstop enacted in 2005 thought they had provided for backstop authority that narrowly preempted state siting authority. In addition, they could not foresee that the U.S. Court of Appeals for the 4th Circuit would gut the backstop authority.  Therefore, the best course is to build on the efforts of the authors of the EPAct 2005 backstop.  The concept of a narrowly crafted federal backstop that largely preserves state authority and is only utilized for long-distance high-voltage transmission projects that are truly in the national interest, remains sound.

If Congress was able to enact a backstop statue back in 2005, it should at least take another crack at getting it right 16 years later. If not now, when?  Particularly when the evidence of climate change has become far more compelling and a more serious threat to our society than many could have imagined in 2005.