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Transmission Line-Siting Under EPACT: Shortcut or Short Circuit?

The 2005 Act, designed to streamline projects, may fall short of that goal.

Fortnightly Magazine - August 2007

corridor also has raised concerns in New York where it encompasses large sections of upstate New York and the Hudson River Valley. Similarly, the size of the Southwest Area National Corridor has concerned local environmental officials, some of whom questioned whether the corridor threatens the area’s open spaces, such as the Mojave National Preserve.

Despite the steps taken toward federalizing transmission siting, legislative efforts already are underway to strip or limit the authority granted to DOE to designate the national corridors and thus limit FERC’s siting authority under EPACT. For example, a group of congressmen that represent districts affected by the draft national corridors requested that language be inserted in a congressional spending bill that prohibited DOE from using any money to make final national corridor designations. While this effort did not succeed, it effectively would have eliminated DOE’s ability to move forward with implementing the national corridors and halted any FERC jurisdiction over transmission projects. 12 In addition, some of the same congressmen have introduced separate legislation that would repeal the DOE national-corridor designation authority, 13 repeal FERC’s permit authority for projects in national corridors, 14 remove the eminent domain provisions of the EPACT, 15 and ensure that local authorities have control over transmission projects. 16 Such legislation is far from enactment, but reflects the potential for backlash against federal siting.

FERC’s Authority

Once the national corridors are finalized by the DOE, FERC is authorized to issue permits to construct transmission facilities in the national corridors pursuant to the conditions set forth in EPACT. The construction permits issued by FERC would allow the recipient to acquire the necessary rights-of-way through eminent domain. 17 However, applicants must still first go through the state filing process, except where a state does not have siting authority over a project, a state cannot consider the facility’s interstate benefits, or where an applicant does not serve end-use customers in the state. Absent these statutory conditions, the approval process must first go through the affected states.

For those projects that are only partially within a national corridor, FERC would have jurisdiction only over the parts of the project in a national corridor; however, it would review the entire project so that it could make the required statutory findings. 18 For projects within a national corridor, however, an applicant can go directly to FERC, bypassing a state PUC, if the EPACT prerequisites are met.

If the state PUC has jurisdiction and an applicant cannot go directly to FERC, the one-year clock for state action starts the day the application is filed. The state PUC will have one year to consider the application, but after that, an applicant can start the FERC pre-filing process, which itself will take more than a year to complete. 19 If a state does not issue a final approval prior to the expiration of the one-year state review period and the applicant seeks FERC siting approval, FERC Chairman Joseph T. Kelliher believes that EPACT authorizes FERC, under certain circumstances, to pre-empt and effectively moot ongoing state proceedings. 20 Such preemption, according to Kelliher, would