There’s been a lot of talk in the industry about new super powers for market enforcement, conferred by Congress on FERC in last year’s energy legislation. But this hasn’t been the case entirely....
From EPAct to Order 1000, siting authority continues evolving.
transmission facilities. As noted above, for example, Potomac Edison met the definition of an “electric company” under Maryland law, and therefore it could seek a certificate to build a transmission facility. In contrast, its affiliate, which did not serve retail customers, i.e., a non-incumbent entity, was not able to seek a certificate in the state.
Order No. 1000 might suggest a roadmap for an end run around state siting authority via a combination of FPA § 216, the planning processes contained in the applicable FERC tariffs and state law limitations with regard to non-state jurisdictional entities. For example, if a non-incumbent entity were selected to build a transmission facility in a NIETC, 56 the selected entity would then need to determine where it is appropriate to have the project permitted. If the selected non-incumbent entity could not apply for a permit or siting approval at the state level because it did not serve end-use customers in the jurisdiction, the federal siting process could be its only avenue for approval—thereby circumventing the state approval process. Furthermore, under FERC’s regulations a state would not be a party to the required pre-filing discussions between the non-incumbent applicant and FERC. Pursuant to FERC’s pre-filing regulations, a potential applicant must meet with FERC staff and discuss, inter alia , how its proposed project is subject to the FERC’s jurisdiction under FPA § 216(b)(1). 57 The state entity that historically had jurisdiction over transmission siting would not be permitted to intervene in the pre-filing process; however, it could intervene once the formal application is filed. 58 Therefore, while a state may be heard as part of a stakeholder process, 59 it would not be a party to the pre-filing process.
EPAct 2005 was designed to streamline the siting process. At this stage, FERC’s authority has been trimmed and placed on hold by the courts. Nonetheless, FERC has pressed ahead and continues to influence the transmission planning process, which, in turn, might affect whether a state or federal entity issues the necessary permits required to build a transmission facility. Therefore, six years after the enactment of EPAct 2005 the tug of war between federal and state siting authority continues, and it seems these issues are less settled now than they were in 2005.
1. Pub. L. No. 109-58, 119 Stat. 594 (2005).
2. 16 USC § 824p.
3. Notice of Withdrawal filed on May 18, 2009, by Southern California Edison, in FERC Docket No. PT08-1-000.
4. California Wilderness Coalition v. U.S. Dep’t of Energy , 631 F.3d 1072 (9th Cir. 2011) ( California Wilderness Coalition ).
5. Piedmont Envtl. Council v. FERC , 558 F.3d 304 (4th Cir. 2009), cert. denied, Edison Elec. Inst. v. Piedmont Envtl. Council , 130 S. Ct. 1138, 2010 U.S. LEXIS 635 (2010) ( Piedmont).
6. Transmission Planning and Cost Allocation by Transmission Owning and Operating Public Utilities , Order No. 1000, 136 FERC ¶ 61,051 (July 21, 2011), 76 Fed. Reg. 49842 (Aug. 11, 2011).
7. See, e.g., In the Matter of the Petition of Public Service Electric and