At its May 13, 2024 open meeting the Federal Energy Regulatory Commission (FERC) unanimously approved Order No. 1977,[1] which updates the process FERC uses when exercising its transmission siting authority under Section 216 of the Federal Power Act, as amended by the Infrastructure Investment and Jobs Act of 2021 (IIJA).
The IIJA clarified that FERC may issue a siting permit to build a transmission facility in a national interest electric corridor (designated by the Department of Energy) if a State has (i) not made a decision on a siting application by one year after the application is filed or one year after the corridor is designated (whichever is longer), (ii) conditioned approval so that the facility does not reduce transmission capacity constraints or congestion or is not economically feasible, or (iii) denied a siting application. FERC and DOE have not exercised their transmission siting authority under Federal Power Act Section 216 since 2011 due to Federal litigation. Accordingly, the IIJA and Order No. 1977 provide much needed clarity on FERC’s and DOE’s authority in this important area of transmission siting.
To obtain a federal siting permit from FERC an applicant must demonstrate that one of the above state actions (or inactions) has occurred such that FERC can assert jurisdiction. To support a FERC siting application, applicants must engage with landowners and other stakeholders. To facilitate this, Order No. 1977 includes a “Landowner Bill of Rights” and codifies an “Applicant Code of Conduct” as a way for applicants to demonstrate good-faith efforts to engage with landowners in the permitting process. It also requires applicants to develop engagement plans for outreach to environmental justice communities and Indian Tribes. Order No. 1977 did not adopt the proposal to allow simultaneous processing of state and FERC siting applications, but instead retained the existing policy that requires applicants to wait one year after the filing of a state siting application before applying to FERC.
The Landowner Bill of Rights provides notice to landowners who would be affected by a proposed transmission line of their right to intervene in any open proceeding at FERC, and a copy of the Bill of Rights must be included by transmission line applicants when they mail the pre-filing notice to affected landowners. Order No. 1977 also requires an applicant to produce additional resource reports to support the FERC’s National Environmental Policy Act (NEPA) analysis for the application, including a report on Tribal resources and environmental justice that detail potentially affected Tribal and environmental justice communities and the impacts of project construction, operation and maintenance on those communities’ interests. Applicants are similarly required to develop and file Tribal and Environmental Justice Public Engagement Plans, which describe outreach activities to identified Indian Tribes and potentially affected environmental justice communities.
Order No. 1977 becomes effective on July 29, 2024. For more information about Order No. 1977, including how it affects your company, please contact Linda Walsh, Sylvia Bartell, Michael Blackwell, Corban Coffman or a member of Husch Blackwell’s Energy Regulation team.
[1] Applications for Permits to Site Interstate Electric Transmission Facilities, 187 FERC ¶ 61,069 (2024).