FERC Proposes to Update Regulations on Transmission Backstop Siting Authority

by Paul Ciampoli
APPA News Director
December 19, 2022

The Federal Energy Regulatory Commission (FERC) recently issued a notice of proposed rulemaking that proposes to update its regulations implementing its backstop siting authority for electric transmission facilities under section 216 of the Federal Power Act (FPA), which was recently amended by the Infrastructure Investment and Jobs Act (IIJA).

The IIJA amended FPA section 216 to modify the circumstances under which the Secretary of Energy may designate national corridors and to clarify the circumstances giving rise to the Commission’s jurisdiction. 

The NOPR issued by FERC on Dec. 15 proposes revisions to the Commission’s regulations to ensure consistency with the IIJA’s section 216 amendments, to modernize certain regulatory requirements, and to incorporate other various updates and clarifications.

Along with making various revisions and updates to the Commission’s regulations, the NOPR proposes four overarching clarifications and additions.  

First, in accordance with the IIJA, the NOPR clarifies the Commission’s siting authority by expressly stating that FERC may issue a permit for the construction or modification of electric transmission facilities in DOE-designated national corridors if a State has denied an application to site transmission facilities.  

A 2009 ruling by the U.S. Court of Appeals for the Fourth Circuit had concluded that the version of section 216 enacted in 2005 did not allow FERC to invoke its backstop siting authority where a state regulator denied a permit application, as FERC had found.  The court ruling significantly limited FERC’s backstop siting authority, and the recent IIJA amendments effectively overrule the Fourth Circuit’s decision by clarifying that FERC can act even where a State has denied a permit application.

Second, the NOPR announces a proposed change in Commission policy that would eliminate the one-year delay following the submittal of a State application before the Commission’s mandatory pre-filing process may commence. Instead, the Commission proposes to allow the simultaneous processing of State applications and Commission pre-filing proceedings. This change will allow applicants to simultaneously pursue approval before a state and the Commission if they so choose, FERC staff noted in a presentation at the agency’s monthly meeting. 

Out of respect for state siting processes, the NOPR proposes to provide an additional opportunity for State input before the Commission determines that the pre-filing process is complete and that an application may be filed, FERC staff said.

Specifically, one year after the commencement of the Commission’s pre-filing process, if a state has not made a determination on an application, the NOPR proposes to establish a 90-day window for the state to provide comments on any aspect of the pre-filing process, including any information submitted by the applicant.

Third, the IIJA added a new clause requiring the Commission to determine that a permit holder “has made good faith efforts to engage with landowners and other stakeholders early in the applicable permitting process” as a precondition to the permit holder acquiring the necessary right-of-way by eminent domain. 

The NOPR proposes that one way for an applicant to demonstrate that it has met the “good faith efforts” standard is to elect to comply with an Applicant Code of Conduct in its communications with affected landowners. 

The Code of Conduct includes particular recordkeeping and information-sharing requirements for engagement with affected landowners, as well as more general prohibitions against certain misconduct in such engagement. 

Although a commitment to the Applicant Code of Conduct is voluntary, an applicant that chooses not to comply with the Code of Conduct must specify its alternative method of demonstrating that it meets the good faith efforts standard. 

Fourth, the NOPR proposes to add three resource reports to the backstop siting permit application, including an Environmental Justice Resource Report, a Tribal Resources Report, and an Air Quality and Environmental Noise Resource Report. 

The information provided in these three resource reports, as well as in the other resource reports required in an application, will enable the Commission to fully evaluate the effects of a proposed project in furtherance of the Commission’s statutory obligations under the FPA and the National Environmental Policy Act, FERC staff said.

Comments on the NOPR are due 90 days after publication in the Federal Register.