On December 15, 2022, FERC issued a Notice of Proposed Rulemaking (“NOPR”) seeking to revise its regulations governing applications for permits to site electric transmission facilities under § 216 of the Federal Power Act (“FPA”). Specifically, the NOPR seeks to: (1) revise Section 50.6 of FERC’s regulations to reflect the Infrastructure Investment and Jobs Act’s (“IIJA”) amendments to the FPA § 216; (2) eliminate the required one-year delay before the commencement of FERC’s pre-filing process; (3) supplement the existing landowner and stakeholder participation provisions in Part 50 of its regulations; and (4) revise the timing of the required Project Participation Plan (“Plan”) in the pre-filing application process.
FERC Jurisdiction and State Siting Proceedings
The Energy Policy Act of 2005 established a limited Federal role in electric transmission siting under § 216 of the FPA, including backstop siting authority under certain circumstances where the applicable State regulatory authority has failed to act. The IIJA amended FPA § 216(b)(1)(C) to expand FERC’s siting authority. As amended, FERC may issue a permit for the construction or modification of electric transmission facilities in National Corridors when a State commission or other applicable siting authority: (1) has not made a determination on an application by one year after the later of the date on which (a) the application was filed or (b) the relevant National Corridor was designated; (2) has conditioned its approval such that the proposed project will not significantly reduce transmission capacity constraints or congestion in interstate commerce or is not economically feasible; or (3) has denied an application.
Accordingly, the NOPR seeks to make corresponding revisions to Section 50.6 of FERC’s regulations to reflect the amended FPA § 216. To that end, the revised Section 50.6(e) requires an applicant to demonstrate that its proposed project satisfies one of the three aforementioned conditions relating to its State permit application.
The Pre-Filing Process
Next, the NOPR seeks to eliminate the required one-year delay before the pre-filing process may commence. Under this amendment, FERC will allow simultaneous processing of State applications and FERC pre-filing proceedings. Notably, the proposal provides an additional opportunity for State input before determining that the pre-filing process is complete and a permit application can be filed. If a State has not issued a determination on an application, the proposal provides a 90-day window for the State to provide comments on any aspect of FERC’s pre-filing process.
Eminent Domain Authority and Applicant Efforts to Engage with Landowners and Other Stakeholders
In accordance with the IIJA’s amendment to the FPA § 216(e)(1), the NOPR seeks to supplement Section 50.4 of FERC’s regulations by adding a new Section 50.12. Under Section 50.12, in order for FERC to grant an applicant eminent domain authority, an applicant may demonstrate that it has met the statutory “good faith efforts” standard by complying with an Applicant Code of Conduct in its communications with affected landowners. Alternatively, an applicant may demonstrate good faith efforts by complying with an alternative standard of conduct, so long as the applicant specifies its chosen method, including any specific commitments to record-keeping and information-sharing. Should an alternative method be used, FERC will first assess whether such method is “equal or superior to” compliance with the Applicant Code of Conduct. If so, FERC will then evaluate whether the record evidence shows the applicant substantially complied with the commitments of its alternative method.
Environmental Justice Public Engagement Plan
Lastly, the NOPR seeks to revise the timing of the required Plan and file a supplementary Environmental Justice Public Engagement Plan. Currently, Section 50.4(a) requires applicants to file a Plan during the pre-filing process to facilitate stakeholder communication and public information about the proposed project. The NOPR seeks to require applicants to develop and file an Environmental Justice Public Engagement Plan that describes the applicants completed and planned outreach activities targeted to identified environmental justice communities. The Environmental Justice Public Engagement Plan must summarize comments received from potentially impacted environmental justice communities during any previous outreach activities and describe planned outreach activities during the permitting process.
A copy of the NOPR can be found here.