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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

occur only in limited circumstances, and when it does, FERC would coordinate closely with local entities in exercising this authority. 21 Because FERC and the states have not participated jointly in the electric-transmission siting process, it is unclear as to what will constitute coordination. FERC, however, already has set the tone for this relationship by determining that if it has jurisdiction over a project, the states cannot interfere with, or act in a manner inconsistent with, FERC’s permitting determinations.

Once FERC has jurisdiction over a project, state and local entities may participate in the FERC-siting proceeding by intervening. It remains to be seen, however, how much weight FERC will give to local issues. FERC has noted that any state or local permits issued with respect to FERC-jurisdictional facilities must be consistent with FERC approval, and that a state or local agency cannot prevent the construction of the facility through the local permitting process, which is pre-empted by federal law. 22

Even if a state does act within one year, FERC will step in if the state PUC denies an application or unreasonably conditions an approved project. Specifically, in Order 689, FERC determined that the denial of an application by a state PUC equates to withholding approval under EPACT. 23 Hence, according to FERC, if a state regulator denies an application to construct a transmission line after a full review of all the issues, that applicant still can apply to FERC for a construction permit for the previously denied project.

Notably, FERC Commissioner Suedeen Kelly dissented on this issue, and explained that the majority’s interpretation flies in the face of the plain language of EPACT and the purpose of the statute. Certain state agencies sought rehearing of this determination, but FERC reiterated its conclusion that to deny an application would be construed as being tantamount to withholding approval. 24

The FERC Filing Process

Order 689 established FERC’s procedures and regulations for entities seeking to construct electric transmission facilities. It also issued a separate guide to its permit process. 25

Although FERC has not sited electric transmission previously, it does have experience siting large-scale interstate projects for the natural-gas industry. As a result, the electric transmission permit filing process is based on the current natural-gas certificate process. 26 FERC’s guide to the transmission-permit process recommends that the applicant meet with FERC staff and other stakeholders before filing an application. 27 When a project is defined sufficiently, the applicant will meet with FERC’s director of energy projects to request initiation of the pre-filing process. 28 FERC will issue a notice regarding the initiation of the pre-filing process. 29 Applicants will be required to implement a public-participation plan that identifies specific tools and actions to facilitate stakeholder communication. FERC staff then will review the proposal and assist the applicant in the preparation of a completed application. 30 The final application can be filed only after the director of energy projects determines that all necessary information gathering is complete. 31 The application’s filing date is important because FERC must act on the permit within one year of