Under section 216 of the Energy Policy Act of 2005, the DOE has the authority to conduct triennial congestion studies and designate much-needed national-interest electric-transmission corridors (NIETCs). The DOE had initially proposed to hand over this authority completely to Ferc.
The duties will now be shared between the two. DOE will rely heavily on Ferc's expertise but will not cede control. The partnership has been widely seen as a positive step towards properly identifying transmission congestion and determining NIETCs. However, section 216 contains no power to deal with states that turn down applications for transmission infrastructure. The law was gutted by court rulings in 2009 and 2011 that related to the two designated corridors - one in the Mid-Atlantic region and another in the Southwest.
The courts, in narrow interpretations that allow little leeway, ruled that the federal government has no authority to issue permits when a state denies a transmission application. In other words, states that refuse to build an NIETC line cannot be forced to do so regardless of whether the authority resides with DOE or Ferc, according to Marcus Wood, a partner at law firm Stoel Rives. "It's a question of which entity gets to assign staffers to make a map that they can't do anything with," said Wood. "I think it's that futile."
DOE is left with so-called backstop authority - the ability to force prescribed transmission build-outs only when a state makes no determination within a year. But, according to Jason Johns, an associate at Stoel Rives, the circumstances whereby states would make no determination are very limited. "So trying to shift around the little remaining authority that was left in section 216 doesn't do a whole lot of good," Johns said.
Any judicial strengthening would have to come from the US Supreme Court - an unlikely scenario. "I don't expect that the US Supreme Court would hear that case," Johns said. "And I'm not sure that anyone would ask it to."
One obvious solution would be for Congress to grant the federal government transmission authority similar to its ability to force construction of natural-gas pipelines. But the natural-gas industry evolved around the need to move gas from one region to another, while transmission policy is rooted in an earlier era when utilities generated electricity within their own regions - making long-distance transmission lines a non-issue.
"One of our primary goals is to make the regulation of electric infrastructure more similar to natural gas," said Jim Creevy, director of government relations at the National Electrical Manufacturers Association. "But it's a big challenge that would take an act of Congress."
Yet the concept of the federal government taking power away from the states is highly unlikely in the current political climate. "Congress has to be willing," said Jimmy Glotfelty, executive vice-president at transmission developer Clean Line Energy. "They are the ones who have to take the responsibility of putting some type of siting language in the Federal Power Act. But creating more federal authority in this day and age is pretty tough."
Meanwhile, the White House pledged last month to accelerate permitting and construction of seven major transmission projects involving Arizona, Colorado, Idaho, Minnesota, New Mexico, Nevada, Wyoming, Utah, New Jersey, Pennsylvania, Oregon and Wisconsin. These are projects unrelated to the NIETCs that have existing authority primarily from within those states, but the White House can accelerate permitting in the many instances where these lines need to cross federal land.