On October 21, 2009, four former chairmen of the Federal Energy Regulatory Commission (“FERC” or the “Commission”) filed a brief as amici curiae at the United States Supreme Court (“Supreme Court”), arguing that a lower court’s interpretation of  the Commission’s backstop transmission siting authority was too narrow (see February 20, 2009 edition of WER).  The four former chairmen are Joseph Kelliher, Pat Wood, James Hoecker, and Elizabeth Moler, who combined, presided over the Commission for all but seven months from February 1993 to January 2009. 

Traditionally, only states had the authority to site electric transmission projects.  However, out of a growing concern for congestion and reliability issues, the Energy Policy Act of 2005 (“EPAct 2005”) gave FERC “backstop” siting authority under certain conditions.  Under section 216(b)(1) of the Federal Power Act (“FPA”), the Commission could approve interstate transmission projects when a National Interest Electric Transmission Corridor (“NIETC”), as designated by the Department of Energy, was involved.

When the Commission implemented section 216(b)(1) into its regulations in 2006, it ruled that the provision allowed it to overrule a state commission’s denial of a project application after one year.  However, several parties disagreed, arguing that the language provided for Commission action only when the state commission had failed to act on the NIETC transmission application for over one year.

After the Commission reaffirmed its interpretation and denied rehearing in 2007, multiple petitions for review were eventually consolidated at the United States Court of Appeals for the Fourth Circuit (“Court of Appeals”).  On February 18, 2009, the Court of Appeals reversed the Commission’s ruling.  On September 17, 2009, various stakeholders within the energy industry filed a petition for a writ of certiorari, asking the Supreme Court to review the Court of Appeals’ decision.

In the amici curiae brief, the former chairmen argue that backstop authority within the FPA represents a 70 year evolution of the transmission system where individual, local delivery systems have turned into large, interstate grids.  Additionally, a national clean energy policy that must often deliver electricity from remote, isolated areas of the country demands an effective federal transmission siting scheme.  To date though, state and local siting of interstate transmission projects has proven to be inadequate. 

The former chairmen go on to argue that Congress recognized the inadequacies of state and local siting as well as the need for broader federal transmission siting authority in EPAct 2005.  The amici curiae brief also argues that this is demonstrated throughout the legislative history of EPAct 2005.  The former chairman conclude that ignoring this intent and upholding the Court of Appeals’ decision would make federal transmission siting an unlikely event and would restore the law to a status quo that Congress already found unacceptable before EPAct 2005. 

A list of all of the case’s proceedings and orders, including the amici curiae brief, can be found under Docket No. 09-343 at the Supreme Court’s website at http://origin.www.supremecourtus.gov/docket/09-343.htm.