Transmission Backstop Authority is Receding
Courts are dismantling federal say in designated corridors
If federal officials are going to have more direct control over the siting of interstate transmission lines needed to move renewable power long distances, then Congress is going to have to explicitly say so.
It seems that the oft-cited federal "backstop authority" is not sufficient to pass court challenges that have been brought against a section of the Energy Policy Act of 2005 (EPAct 2005).
That seems apparent after a recent ruling by the Ninth Circuit Court of Appeals, which covers several western states. A previous ruling in the Fourth Circuit also weakened federal authority.
In the recent decision, the Court essentially voided the Department of Energy's 2007 Transmission Congestion Study that had designated national interest electric transmission corridors in mid-Atlantic and Southwestern states. The backstop authority was established in section 216 of EPAct. DOE would have to start the transmission corridor process from scratch.
"Congress created section 216 to confront concerns that states were acting too slowly in siting new transmission lines needed to address growing reliability and congestion problems. In part, section 216 directs the DOE to study transmission congestion in consultation with the states, and designate certain transmission-constrained areas as national interest electric transmission corridors (NIETCs)," says the Stoel Rives law firm.
"Section 216 also grants the Federal Energy Regulatory Commission (FERC) authority to issue permits to construct transmission facilities in these NIETCs under certain circumstances."
Transmission providers who received a permit in a designated corridor would have been granted the right to acquire rights of way through eminent domain.
The decision, California Wilderness Coalition v. U.S. Dept. of Energy, said the DOE failed to properly consult with states in the affected areas in the congestion study and also disregarded federal environmental laws I creating the NIETCs.
As reported here previously, a ruling in 2009 that affected a transmission corridor in eastern states, reversed a Federal Energy Regulatory Commission order that had overruled a state's denial of a transmission siting application.
That's two decisions in two jurisdictions, each dealing a blow to different aspects of the backstop authority theory.
The editorial staff at RenewablesBiz.com is passionate about exchanging ideas and dedicated to promoting ongoing conversation about renewables and sustainable energy issues. We invite you to join and contribute to our online community. If you have an idea for an article or editorial contribution, please contact me via email, bopalka@energycentral.com, or phone, 860.633.0090.
"Continue the conversation! For more discussion on coal, nuclear and the future of renewable energy, join us at the 3rd Annual EnergyBiz Leadership Forum, the most influential gathering of power industry executives in the United States. Visit www.EnergyBizForum.com for more information."
