FERC Engages in Political and Special Interest Narrative Building

At the end of the week, the Federal Energy Regulatory Commission issued a Notice of Proposed Rulemaking entitled, "Applications for Permits to Site Interstate Electric Transmission Facilities."  Yes, it's just what it sounds like.  FERC is developing rules for applying for a federal permit from the agency.  This was made possible by last year's "Bipartisan Infrastructure Act" that gave FERC permission to issue a permit for interstate transmission in the event that a state denied one.  FERC's new rules are going to guide the process for a transmission developer to usurp state authority and use federal eminent domain to site a new transmission line on your property.

The NOPR itself contains a plethora of really awful ideas, and your job is to comment on them and advocate for something different.  Yes, it's a federal agency and you may find that daunting, but ultimately you are the one who is going to have to live within these rules so don't give up your only opportunity to say your piece.

One of FERC's absolutely ABSURD ideas is to allow a developer to engage in a pre-application process at FERC at the same time as it is engaged in a state application process for the project.  FERC reasons:

"The purpose of the pre-filing process is to facilitate maximum participation from all stakeholders to provide them with an opportunity to present their views and recommendations with respect to the environmental impacts of the facilities early in the planning stages of the proposed facilities."

FERC thinks you have nothing better to do than "participate" in its permitting process while you are also engaged in a state permitting process.  Double your time, double your effort, double your money!  And while we're doubling things here, it also costs the transmission developer double their costs to participate in two different permitting processes at the same time.  In many RTO-planned, cost allocated transmission projects, ratepayers (that's you) pick up the tab for all the permitting costs.  So this double permitting process costs you double!  The epitome of waste here is that if the transmission project is approved by the state (which it is in a vast number of instances) then the FERC permitting process becomes completely unnecessary!   Instead, FERC should sit back and wait until a state either approves or denies a project before giving transmission developers the green light to proceed with the FERC application.  It should wait until it knows whether the FERC process is even necessary before spending all that time and money on it.  FERC has not given a plausible reason for having to run these two permitting processes simultaneously.

Another FERC brain fart is titled "Eminent Domain Authority and Applicant Efforts to Engage with Landowners and Other Stakeholders."  This proposed rule governs how the applicant will "engage" with you.  FERC suggests:

...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.

FERC purports that if a transmission developer files a "Code of Conduct" and promises to abide by it, then so it shall.  There is no enforcement, no investigation, no public forum to keep the developer honest.  FERC just takes the developer's word for it that you are treated well and that you will be all aboard for the transmission project if you are only "engaged with" early on.  We all know that transmission developer "codes" are not worth the paper they are written on.  They are nothing but a fig leaf.  There is no place to report a violation of the "code" and absolutely no enforcement of it.  This is utter garbage and serves no useful purpose.  If FERC needs to ensure that landowners are treated fairly, it needs to roll up its sleeves and get its hands dirty actually engaging with the public in an effort to keep the developer honest.

There's also some "environmental justice" box checking going on here.  An applicant must provide an Environmental Justice Public Engagement Plan.  This plan requires the developer to "meaningfully engage with potentially affected environmental justice communities."  What is an environmental justice community?

...the term “environmental justice community” includes disadvantaged communities that have been historically marginalized and overburdened by pollution. The term also includes, but may not be limited to, minority populations, low-income populations, or indigenous peoples.

These communities are rarely found along transmission routes in rural areas that all the interstate transmission projects traverse.  Despite the word "justice", it is not dispensed equally to all persons.  Are you an environmental justice community if you already have a transmission line or two (or a gas or oil pipeline, or a highway, or other visually polluting infrastructure) sited across your property?  We should definitely find out because they don't have a real definition here.

Perhaps the best part of this train wreck are the "concurrences" of Commissioners Danly and Christie that are attached at the end of the document.  Despite voting for this rulemaking, they both manage to find ways to criticize it.

Commissioner Danly wonders:

... whether the proposed rule constitutes good policy, such as, for example, whether it will be beneficial in determining whether to site electric transmission projects when the states have not done so, or whether the rule will tend to ensure almost nothing is ever sited.

But Commissioner Christie sums it up like this:

State regulators are much better prepared to deal with that myriad of local concerns, including concerns over routing and costs, than FERC. Furthermore, state processes are far more convenient and user-friendly than processes at FERC, if for no other reason than geographic proximity. So, waiting one full year to allow a state to “go first” and make its decision makes sense for a lot of reasons. One obvious reason is that if the line is truly needed, the state regulators will in all likelihood approve it, and no FERC staff time and resources will need to be expended at all. The whole mantra that goes “the states are blocking needed transmission all over the country!” is simply a political and special-interest narrative. The steadily mounting increases over the past decade in transmission rate base nationally, with concomitant skyrocketing increases in transmission costs to consumers, blows up the narrative that states are systemically blocking needed transmission lines. Contrary to the narrative, states need more authority to scrutinize transmission projects for need and prudence of cost, not less, to protect consumers.

Ignorant special interests writing legislation that they believe will help them fill their pockets is never smart.  It always results in dumb stuff like this.

If you want to be involved in a group effort to comment on this Rulemaking, let me know.

Happy Holidays!  Krampus had delivered a bulging bag of evil for good little landowners this year while they're distracted with family activities.  More to come...