Senate bill in the works to expand FERC’s authority to site power lines 

Source: Emily Holden, E&E reporter • Posted: Monday, April 6, 2015

ALBUQUERQUE, N.M. — Sen. Martin Heinrich (D-N.M.) will introduce legislation in the coming months to give the Federal Energy Regulatory Commission authority to override state resistance to certain power line projects.

The proposal would give FERC the authority “as a backstop in the rare case where states have been unable to act on priority projects” that have been selected as part of FERC’s regional transmission planning process under Order No. 1000, Heinrich told attendees at a Southwestern summit on renewable energy transmission development yesterday.

Heinrich’s bill could revive a years-long controversy over how much power the federal government should have to issue construction permits for transmission development when a state withholds approval.

FERC would only use the authority “when things get really logjammed,” Heinrich said in an interview after speaking at the event, organized by Americans for a Clean Energy Grid.

Heinrich has been talking with stakeholders around the country and is now working to build political support for the legislation within the Senate.

“At least in theory, it’s something that ought to appeal to people more regionally and less politically,” he said. “It’s one of those issues where things vary based on what you’ve experienced yourself, particularly in the West.”

Heinrich said if states and stakeholders know FERC could site projects if they don’t make decisions on their own, they might be “less willing in those circumstances to just try to be the impediment.”

“You get in these situations where there’s not a local incentive to be part of the wider grid, or at least at this time, and so the grid ends up sort of going around you or not happening,” he said. “We want to make sure that there’s an incentive to bring people to the table to work things out.”

Asked if the bill might have support in the House, Heinrich said, “We’re not there yet … hopefully, we can rely on some of the folks who pushed this idea in the past.”

Court rejected earlier moves

In 2011, House Republican Rep. Jim Sensenbrenner of Wisconsin drafted a bill to allow FERC to overrule a state’s denial to site a power line within one year (Greenwire, Nov. 1, 2011).

State regulators have historically opposed the idea, saying it would take the local element out of siting and result in the unnecessary building of transmission.

The Energy Policy Act of 2005 gave FERC authority to issue permits under certain circumstances, including if a state “withheld approval” for more than a year for projects within the Energy Department’s designated “national interest electric transmission corridors.”

FERC interpreted that to give the agency backstop authority if a state had not acted on an application or if a state had rejected an application, but the 4th U.S. Circuit Court of Appeals overturned FERC’s definition.

In 2007, the 9th U.S. Circuit Court of Appeals also vacated DOE’s designation of two corridors — in the Southwest and the Mid-Atlantic.

As an alternative to giving FERC more authority, DOE and FERC have been conducting transmission congestion studies to determine how to move forward, issuing a draft for public comment in August.

Heinrich said he hopes to get the details on paper soon and introduce the measure as a stand-alone bill that could potentially become part of comprehensive energy legislation that Senate Energy and Natural Resources Committee leaders are preparing.

The energy package would have a tough time moving through Congress, but Heinrich said he is “always the optimist.”

“It will be challenging because it’s become a much more polarized issue just in the last few years than it was back in 2005,” Heinrich said. But he added that the Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) and ranking member Maria Cantwell (D-Wash.) “come from very different parts of the political spectrum,” and if they can reach an agreement, the legislation could have a fighting chance.