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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

to end-use customers is defined, an applicant may go directly to FERC to test the new EPACT standard. This could lead to a jurisdictional fight that could take years for the courts to sort out.

Another Option: An Interstate Compact

EPACT contains a potential compromise solution to these federal and state jurisdictional-siting issues. It provides that three or more contiguous states can, subject to Congressional approval, establish regional transmission-siting agencies to site transmission facilities and conduct the siting responsibilities in those states. These regional agencies would have the authority to “review, certify, and permit siting of transmission facilities, including facilities in national interest electric transmission corridors.” 43 Moreover, FERC would have no authority to issue permits within a state that is a party to such an interstate compact, unless the members of the compact are in disagreement and DOE makes certain statutory findings. Similar interstate compacts are used for water supply and resource planning. For example, the Delaware River Basin Compact entered into by Delaware, New Jersey, New York, Pennsylvania, and the United States created the Delaware River Basin Commission to manage the watershed. The commission has the authority to plan and construct facilities relating to the water resources of the basin. Similar commissions also were created by the Potomac Valley Compact and the Susquehanna River Basin Compact.

EPACT was designed to streamline projects and prevent states from creating bottlenecks because of parochial interests. Time will tell, but at this point streamlining is not assured. EPACT was in many ways a compromise solution and in seeking to please everyone it may please no one.

 

Endnotes

1. Pub. L. No. 109-58, 119 Stat. 594 (2005).

2. Federal Power Act (FPA) § 216(b) as added by EPACT § 1221.

3. See 52 Pa. Code § 57.71 (2007). The state agencies in Maryland and Virginia have similar jurisdiction for projects over 69 kV and 150 kV, respectively. Md. Public Utility Companies Code Ann. § 7-207 (2007); Va. Code Ann. § 56-46.1 (2007).

4. New York Transportation Corporation Law § 11 as amended by New York Senate Bill 8349 (2006).

5. DOE Will Press Congress to Grant FERC Sole Siting Jurisdiction, Energy Washington Week, Jan. 31, 2007.

6. AEP CEO: States Stymie Transmission Growth, Energy Trader, May 15, 2007.

7. Press Release, DOE Issues Two Draft National Interest Electric Transmission Corridor Designations (April 26, 2007).

8. Id.

9. See the public meeting archives available at http://www.energetics.com/NIETCpublicmeetings/index.shtml.

10. Id.

11. Press Release, Gov. Rendell of Pennsylvania, Rendell Administration Voices Concerns Over Proposed Electric Transmission Corridor (July 14, 2007).

12. See May 3, 2007 Press release from Congressmen M. Hinchey (NY) available at www.house.gov/list/press/ny22_hinchey/morenews/050307NIETCAppropsLetter.html.

13. To Repeal Section 216 of the Federal Power Act, HR 809, 110th U.S. Congress (2007-2008).

14. Id.

15. Id.; see Protecting Communities from Power Line Abuse Act, HR 810, 110th U.S. Congress (2007-2008) (need to acquire land in accordance with state law).

16. National Interest Electric Transmission Corridor Clarification Act, HR 829, 110th U.S. Congress (2007-2008).

17. FPA § 216(e).

18. Regulations for Filing Applications for Permits to Site Interstate