State regulators, clean energy advocates square off on bill pre-empting power line siting authority 

Source: Emily Holden, E&E reporter • Posted: Thursday, April 23, 2015

Sen. Martin Heinrich (D-N.M.) introduced legislation yesterday that would give federal regulators power to override state decisions and site power lines meant to move large amounts of renewable energy across long distances.

The measure is likely to revive fights over state autonomy, but clean energy advocates say it could be key to developing renewable energy so states can comply with U.S. EPA’s Clean Power Plan to reduce greenhouse gas emissions.

“We certainly understand that states would have a lot of questions about how any new federal authority would affect their existing authority,” said Bill White, senior adviser for Americans for a Clean Energy Grid. “At the same time, we all recognize that there’s a challenge here in getting these really important and valuable interstate infrastructure projects built.”

Heinrich’s bill would give the Federal Energy Regulatory Commission backstop power to authorize projects identified for cost-sharing under the agency’s Order No. 1000.

FERC could act if a state fails to approve construction or routing within a year of a company’s seeking approval, or if the state denies the project or doesn’t have the authority to approve the transmission line, or if approval is accompanied by requirements that “unreasonably interfere” with construction (Greenwire, April 22).

Previous attempts at legislation to widen FERC’s authority in this area have failed.

White said Heinrich’s bill is “narrowly focused on what we think are some of the highest-value and most important and most difficult to build lines.” Order No. 1000 applies specifically to large regional and interregional power line projects — which have proved hardest in terms of reaching consensus on planning and cost-sharing among states and stakeholders.

A bill with ‘broad scope on the ground’?

Order No. 1000 will require states to agree on the need for projects and figure out how to pay for them, and the FERC backstop authority could be a last resort for hashing out routing decisions if states get hung up on that part of the process, White said.

There are currently no projects planned under Order No. 1000 that have not been approved by state regulators with siting authority over transmission, said Whitney Potter, a spokeswoman for Heinrich. Different U.S. regions are still implementing processes for planning and cost allocation under the order.

But Regina Davis, a spokeswoman for the National Association of Regulatory Utility Commissioners, said the legislation may look narrowly tailored on paper but could have “broad scope on the ground.”

“State siting of electric transmission infrastructure should not be transferred to Washington, regardless of how narrow pre-emption under this bill might be,” Davis said.

The Energy Policy Act of 2005 gave FERC authority to issue permits under certain circumstances, including if a state “withheld approval,” but FERC interpreted that to give the agency backstop authority even if a state had rejected an application, and a court overturned that interpretation.

In 2011, Rep. Jim Sensenbrenner (R-Wis.) drafted a bill to allow FERC to overrule a state’s denial to site a power line within one year. But Heinrich’s bill appears to be more targeted.

Heinrich’s legislation would also call on FERC to conduct any necessary environmental reviews, including under the National Environmental Policy Act, and to coordinate with states, multi-state entities and American Indian tribes to carry out those reviews. It would require FERC to draft a schedule for federal authorizations to be completed.

The Senate Energy and Natural Resources Committee hopefully will hold a hearing on the bill this year, Heinrich told an audience at a Washington, D.C., event by the group WIRES, which advocates for transmission development. He also asked attendees to help him build congressional support for the proposal.