FERC Finalized New “Backstop” Rule for Federal Permitting of Transmission Lines

The Federal Energy Regulatory Commission (FERC) recently finalized a new rule — Applications for Permits to Site Interstate Electric Transmission Facilities — that explains how the agency will begin to issue permits for much-needed high-priority transmission lines. While states have historically sited and permitted transmission lines, Congress authorizes FERC to issue permits for high-priority transmission lines under limited circumstances. The new rule lays out how FERC will issue these permits to speed the construction of much-needed long-distance transmission in corridors designated by the Department of Energy (DOE).

Earthjustice worked with the Yurok Tribe and the Sustainable FERC Project to identify needed protections and improvements to enhance equity in the proposed rule, and to seek rehearing on select parts of FERC’s first issuance of the rule in May that fell short. As a result of this advocacy, the finalized rule establishes a more equitable, inclusive, and effective process to approve these transmission projects.

FERC’s Transmission Siting Authority

The new rule addresses a long-standing problem. Transmission lines often cross many states with different permitting standards. Some states cannot authorize a transmission line that merely crosses the state without delivering energy to the state. Other states might not consider all the benefits of transmission lines in their approval process. And some transmission lines might cross states with different, or even conflicting, standards. These diverging state standards make getting all the permits for interstate transmission lines very difficult. To solve this problem, the Federal Power Act (FPA) allows some transmission lines to seek a permit from FERC if a state lacks permitting authority, sits on a permit application for over a year, imposes unreasonable permit conditions, or denies a permit. Because FERC’s authority picks up where states leave off, it’s known as “backstop permitting.”

Importantly, FERC won’t often override state decisions because its authority applies only to very high-priority transmission lines. To be eligible for a FERC permit, a transmission line must be in an area that the DOE has designated as a National Interest Electric Transmission Corridor. DOE can only designate a Corridor that will relieve pressure on the grid, and DOE also considers whether a Corridor is in the public interest by evaluating eight factors, including whether the corridor will make energy more affordable and avoid environmentally sensitive areas and cultural resources. DOE recently announced a slate of 10 potential corridors across the country, where FERC’s permitting authority might be used. In these areas — where transmission is in the national interest — FERC’s new rule will enable development of transmission the nation desperately needs.

Ensuring Equity and Fair Play in FERC’s Transmission Siting Processes

FERC’s initial proposal introduced a number of protections into the transmission siting process: establishing a Landowner Bill of Rights, requiring transmission developers to prepare an Environmental Justice Public Engagement Plan, and creating a Code of Conduct for developers to demonstrate compliance with the statute’s requirement to deal with stakeholders in good faith. These initial proposals took an important first step toward a more equitable permitting process, but required greater opportunities for community input to create more effective processes.

Earthjustice worked with the Yurok Tribe to propose additional protections specific to Tribes. The Yurok Tribe’s comments successfully pushed for FERC to require developers to prepare a Tribal Engagement Plan, and to either mitigate any potential harm to Tribes or provide an explanation of why mitigation was not pursued.

Nevertheless, in the initial version of the rule, FERC failed to extend all of the protections granted to landowners to Tribes, given the unique legal status of Tribal Land held in trust. In response to the rehearing request written by Earthjustice on behalf of a coalition including the Yurok Tribe and Public Interest Organizations, FERC revised its rule to clarify that important protections such as honest communications and consent to enter land apply to Tribes as well. We applaud FERC for its responsiveness to Tribal input, and its willingness to continue to improve on its proposals.

Although the final rule has created a solid foundation, FERC must be vigilant to ensure equity in using its siting authority. In particular, FERC declined Public Interest Organization’s suggestions that developers be held to the Code of Conduct in interactions with all potentially affected stakeholders, not just landowners. FERC indicates that renters and community organizations who may not qualify as landowners will have other avenues for providing input into these siting processes (and more particularly, to report to FERC if developers fail to engage in good faith as required by the statute). We look forward to collaboration with FERC to ensure these opportunities for community input are truly accessible.

Environmental Review Under the Final Rule

As to the study of environmental impacts, the rule takes important steps but does not go far enough. The rule requires a new report on “air quality and environmental noise” that will, for the first time, require analysis of transmission projects’ emissions and effects on air quality. Our comments supported this report — while stressing that FERC must also consider how transmission will affect the climate. We expect that transmission will benefit the climate by unlocking clean energy — and the nation’s bedrock environmental law requires analysis of those impacts. Similarly, FERC should account for climate impacts when determining whether new transmission is in the public interest. However, FERC’s rule does not clearly require analysis of climate impacts, instead casting doubt about whether these impacts are “reasonably foreseeable.” As a result, FERC’s rule is drastically out of step with the law, as well as similar regulations from its sister agencies, including the Center for Environmental Quality and the Department of Energy.

Overall, FERC’s rule is an important step forward, but we will continue to work with our partners to ensure that FERC uses its siting authority to build equitable transmission projects with quantifiable emissions benefits.