Senators clash over policy to increase FERC transmission siting authority

Source: By Catherine Morehouse, Utility Dive • Posted: Thursday, July 15, 2021

  • An attempt to derail Senate efforts to give federal regulators more authority over transmission siting prompted a debate over power line expansion on Wednesday.
  • Sen. Roger Marshall, R-Kan., during a Senate Energy and Natural Resources (ENR) Committee hearing considering a bill that would invest in energy and outdoor infrastructure, proposed an amendment that would cut a section in the legislation that would increase the permitting authority of the Federal Energy Regulatory Commission. He argued the policy could override state-level concerns, while Democratic senators protested that broader federal authority is necessary in order to build out the transmission needed to bring more renewable energy onto the grid quickly.
  • Marshall’s amendment failed to pass, but was supported by the National Association of Regulatory Utility Commissioners (NARUC) and raised debate over how Congress should improve siting for high voltage electric transmission projects.

Dive Insight:

Transmission is widely considered a key tool needed to accelerate the decarbonization of the power grid affordably. But building a power line can take years of navigating various permitting and siting authorities, and experts say streamlined interregional planning will allow wind and solar resources to more efficiently flow to areas of high demand.

The Senate began to address some of the permitting constraints transmission experts have recommended Congress tackle, by proposing to clarify in legislation currently before the ENR committee that FERC has absolute authority in allowing transmission lines to be sited along National Interest Electric Transmission Corridors.

Such corridors are designated by the Department of Energy as regions in the U.S. where the public would benefit from additional transmission, due to congested power lines coupled with high demand. Those authorities were originally created by Republicans in the Energy Policy Act of 2005, but court decisions in 2009 and 2011 effectively ended federal siting authority for electric transmission.

Its reintroduction this year is important for interregional transmission planning, given it can sometimes take just one county commissioner to “tank” an entire transmission project that the rest of a state otherwise may support, said Rob Gramlich, executive director of Americans for a Clean Energy Grid and founder and president of Grid Strategies.

“If there’s zero federal authority, then the project is over. So the backstop is helpful,” he said. “It probably will be a big stick that will never be used, but it can change the dynamics and perspective on the ground.”

But some Republican members of the committee balked at giving FERC absolute siting authority in those DOE-designated areas, arguing states should have the final say in whether a power line passes through their territory. Marshall’s amendment would have removed that provision from the proposed legislation entirely.

“At least under the current structure, our state regulatory body is able to take into consideration the issues that are important to Kansans, or West Virginians, or Maine folks and make decisions that are more reflective of those issues,” said Marshall, in introducing his amendment.

Under the current proposal, “FERC would have de facto authority to approve all projects, robbing us of our ability to even attempt to make our voices heard,” he said, adding the section “represents a major change from current law that could seriously undermine property rights and negatively impact rates.”

His amendment was supported by NARUC, which in a letter to the committee argued federal permitting, public opposition to power lines, cost impacts and cost allocation issues are behind slow energy infrastructure permitting, not state government action or inaction.

“[R]egardless of where siting authority falls – with state government, the federal government, or both – siting energy infrastructure will not be easy and there will be ‘no quick fix,'” NARUC President Paul Kjellander wrote in the letter.

NARUC’s support for the amendment raised red flags for Ranking Member John Barrasso, R-Wyo., who said the committee should take more time to consider the provision.

Although he is “open to strengthening federal authority in that area … it’s not the time to make that change in the law,” he said. It’s “too significant to make without further deliberation.”

But Sen. Martin Heinrich, D-N.M., argued the provision would lower electric rates by allowing cheaper wind and solar resources onto the grid more efficiently. He also noted that the authority proposed matches the authority granted to FERC under the Natural Gas Act in citing and permitting gas pipelines.

“With respect to transmission, the status quo is simply not working,” Heinrich said. “Oftentimes it requires over a decade to build a very simple power line connecting different parts of the regional grid and this federal backstop authority is the exact authority that exists for natural gas pipelines — that no one on this committee is suggesting we repeal.”

Further, he and Committee Chair Joe Manchin, D-W. Va., noted that FERC could not use this authority in all cases — only in specific instances where DOE has previously determined that it would be in the public’s interest to build high voltage power lines because of congestion and high demand.

“We’ve had the current system in place for 15 years and we know it’s not working. We know it’s not working,” Manchin said. “Section 1005 makes incremental progress in addressing some of the challenges facing development of transmission, specifically in these national interest corridors.”

Sen. John Hickenlooper, D-Colo., said eliminating the “endless red tape and litigation” that comes with transmission siting is essential if Congress wants to “seriously address climate.” He compared the need to reform electric transmission permitting to previous efforts to speed up pipeline development, in order to take advantage of the shale revolution.

“We should be able to do the same” with electric transmission, he said. “We need that same level of innovation.”

FERC currently does not have as much authority over electric transmission siting as it does over pipelines, and the bill’s current proposed language would not bring those authorities to the same level, experts say.

The legislation would not give FERC “nearly as broad” authorities as it currently has with pipeline siting, said Ari Peskoe, director of the Electricity Law Initiative at the Harvard Law School’s Environmental and Energy Law Program, in an email. “FERC has exclusive authority to site all interstate natural gas pipelines … This bill would give FERC only backstop siting authority for electric transmission and only in regions designated by DOE,” he said.

It’s ironic that Republicans attempted to shoot down a provision championing Republicans’ original 2005 vision, said Gramlich, who was working with then FERC Chair Pat Wood III when the policy was put in place. But he still expects the provision and others related to transmission have a good chance good of making it into a final bipartisan infrastructure bill.

“I didn’t interpret the Republican opposition to be too hard or too strong,” he said.