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Transmission Tug-of-War

From EPAct to Order 1000, siting authority continues evolving.

Fortnightly Magazine - November 2011

Staff of the Public Service Commission filed in Case No. 9223, filed April 9, 2010, citing Debbie Swantstrom & Meredith M. Jolivert, “DOE Transmission Corridor Designations & FERC Backstop Siting Authority: Has the Energy Policy Act of 2005 Succeeded in Stimulating the Development of New Transmission Facilities?” 30 Energy Law J . 415, 443-444 (2009).

55. See, e.g. Southwestern Sugar & Molasses Co. v. River Terminals Corp., 360 U.S. 411, n.4 (1959); Lowden v. Simonds-Shields-Lonsdale Grain Co. , 306 U.S. 516, 520 (1939) (until changed, tariffs bind both carriers and shippers with the force of law).

56. As discussed above, California Wilderness Coalition nullified DOE’s 2007 NIETC designations, therefore, FERC currently has no backstop siting authority under FPA § 216. This example, assumes that DOE has re-designated the NIETCs because FERC would not have siting authority until the re-designation occurs. As it currently stands, if a non-incumbent developer could not seek siting approval at the state level, it could not seek a construction permit from FERC. Once DOE re-designates the NIETCs a non-incumbent developer of a project in a NIETC could request a permit from FERC; however, if the project is not in a NIETC, FERC would have no backstop siting authority under FPA § 216.

57. 18 C.F.R. § 50.5.

58. 18 C.F.R. § 380.10(a)(2)(iii); Southern California Edison Company , 124 FERC ¶ 61,157 (2008) (FERC rejected the Arizona Corporation Commission’s request to intervene in the pre-filing process initiated by Southern California Edison for a construction permit to build an interstate electric transmission line from Arizona into California).

59. Order No. 689 at P 72 (FERC will work with the applicant to make sure that all interested stakeholders have been made aware of the proposed project and have had the opportunity for their views and recommendations to be considered).