The U.S. Department of Energy (DOE) is due to release its preliminary list of National Interest Electric Transmission Corridors (NIETC) that it is considering any day now. In order to understand what an NIETC is and how you can participate in the process of designation, let's take a look back at the history of NIETCs.
In the Energy Policy Act of 2005, Congress passed legislation to give the DOE authority to study electric transmission congestion and designate NIETCs that would give the Federal Energy Regulatory Commission (FERC) jurisdiction to site and permit an electric transmission line in the event that a state either did not have the authority to approve a transmission line or failed to act on an application for a transmission line for one year. This became known as "Backstop Permitting." States traditionally have authority and jurisdiction to regulate the siting and permitting of new transmission lines within their borders. This hasn't changed, but now there was a backstop measure to prevent a state from holding up a needed transmission project.
The legislation tasked FERC with developing rules for its backstop permitting process and FERC did so. FERC interpreted the statute to mean if a state denied an application for a transmission project then it bumped permitting to FERC. But that's not what the statute said! Piedmont Environmental Council and several states appealed FERC's rulemaking in the Fourth Circuit Court of Appeals. The Court found that state denial did not activate backstop permitting in PEC v. FERC. This allowed states to deny a permit to build transmission and end the matter.
Meanwhile, DOE had performed its congestion study and designated two huge corridors, one in the southwest, and one along the east coast stretching from New York to Virginia. The designation of those corridors was also appealed in the Ninth Circuit and the Court vacated the corridors due to DOE's failure to consult with states and its failure to perform an environmental assessment on the huge corridors it had designated. That decision is California Wilderness Coalition v. DOE.
These two court decisions made DOE's NIETC program effectively worthless and the entire thing was put on a shelf and forgotten about. But, in 2021, Congress passed the Infrastructure Investment and Jobs Act that contained a section that is meant to cure the problems with NIETCs, reviving the program. In addition to broadening the reasons for designating a corridor, the new statute allows FERC to site and permit a transmission project in an NIETC that is denied by a state. The law tells states -- either approve it or FERC will do it for you. It does not take the place of state permitting, the states still have authority to site and permit, as long as they don't say "no." Transmission projects cannot go directly to FERC without first applying at the state and going through the state permitting process.
DOE has been busy trying to revive its NIETC program ever since. In May of 2023, DOE issued a Notice of Intent and Request for Information proposing a new procedure for designating transmission corridors. DOE proposed that it accept applications from transmission builders to designate a NIETC that corresponded with transmission they wanted to build. That's not what the statute says... it says
In the Energy Policy Act of 2005, Congress passed legislation to give the DOE authority to study electric transmission congestion and designate NIETCs that would give the Federal Energy Regulatory Commission (FERC) jurisdiction to site and permit an electric transmission line in the event that a state either did not have the authority to approve a transmission line or failed to act on an application for a transmission line for one year. This became known as "Backstop Permitting." States traditionally have authority and jurisdiction to regulate the siting and permitting of new transmission lines within their borders. This hasn't changed, but now there was a backstop measure to prevent a state from holding up a needed transmission project.
The legislation tasked FERC with developing rules for its backstop permitting process and FERC did so. FERC interpreted the statute to mean if a state denied an application for a transmission project then it bumped permitting to FERC. But that's not what the statute said! Piedmont Environmental Council and several states appealed FERC's rulemaking in the Fourth Circuit Court of Appeals. The Court found that state denial did not activate backstop permitting in PEC v. FERC. This allowed states to deny a permit to build transmission and end the matter.
Meanwhile, DOE had performed its congestion study and designated two huge corridors, one in the southwest, and one along the east coast stretching from New York to Virginia. The designation of those corridors was also appealed in the Ninth Circuit and the Court vacated the corridors due to DOE's failure to consult with states and its failure to perform an environmental assessment on the huge corridors it had designated. That decision is California Wilderness Coalition v. DOE.
These two court decisions made DOE's NIETC program effectively worthless and the entire thing was put on a shelf and forgotten about. But, in 2021, Congress passed the Infrastructure Investment and Jobs Act that contained a section that is meant to cure the problems with NIETCs, reviving the program. In addition to broadening the reasons for designating a corridor, the new statute allows FERC to site and permit a transmission project in an NIETC that is denied by a state. The law tells states -- either approve it or FERC will do it for you. It does not take the place of state permitting, the states still have authority to site and permit, as long as they don't say "no." Transmission projects cannot go directly to FERC without first applying at the state and going through the state permitting process.
DOE has been busy trying to revive its NIETC program ever since. In May of 2023, DOE issued a Notice of Intent and Request for Information proposing a new procedure for designating transmission corridors. DOE proposed that it accept applications from transmission builders to designate a NIETC that corresponded with transmission they wanted to build. That's not what the statute says... it says
Not less frequently than once every 3 years, the Secretary, after considering alternatives and recommendations from interested parties (including an opportunity for comment from affected States and Indian Tribes), shall issue a report, based on the study under paragraph (1) or other information relating to electric transmission capacity constraints and congestion, which may designate as a national interest electric transmission corridor any geographic area ...
It says DOE must study and designate corridors, not farm it out for suggestions from for-profit transmission builders to come up projects that provide profits. The DOE is supposed to be studying and designating corridors that accomplish the criteria in the study and benefit consumers. There can be a huge difference between a project proposed simply for profit and one that is actually needed by consumers. Designating corridors is supposed to be a government tool to incentivize the building of the right kind of beneficial projects. If DOE thinks (all by itself) that a project is needed, then it designates a corridor that will attract transmission builders to propose a new project in the corridor. Instead, DOE is, as I mentioned in my comments to the DOE, allowing the inmates to run the asylum. And I wasn't the only one, DOE received more than 100 comments on its proposal for designating NIETCs. Many commenters also thought allowing transmission builders to apply for NIETCs was a bad idea. Some thought DOE should perform a legal rulemaking to set parameters for its new program.
Meanwhile, DOE had been working on a National Transmission Needs Study required by the statute as the first step to designating NIETCs. That study was published in October 2023. The study found transmission congestion everywhere, meaning that NIETCs were needed everywhere. Many comments were also submitted panning that study. Mine are posted here.
In December 2023, DOE released a "Guidance" document on NIETCs, in lieu of the requested Rulemaking. The Guidance says that it changed DOE's approach to allowing transmission builders to apply for NIETC corridors. Instead, DOE opened a 60-day window for any person to submit a request for a corridor. Supposedly this cured the DOE's problem with allowing transmission builders to control the process. But it really doesn't. Who else would submit a request for a corridor but a transmission builder? It's a legal sleight of hand that is due a day of reckoning.
Many blog readers got involved in NIETC at this point and attended DOE's webinar explaining its process in early January. DOE was not really forthcoming about all the process that came before that webinar, but hopefully this blog will help you to understand that this didn't just drop out of the sky, but had been in process for more than a year.
DOE's 60-day window for submission of "information and recommendations" for corridors ended on February 2. Many thought this was the one and only comment period for NIETCs, but it was actually designed for transmission builders to submit requests for DOE to study corridors to correspond with the projects they want to build. After DOE's window closed, it began to take a preliminary look at the corridor recommendations it has received and promised to release a list of corridors it was considering within 60 days (which would be April 2). DOE hasn't released anything yet, we are still waiting.
However, NextEra notified Piedmont Environmental Council that it had applied for a corridor in Western Loudoun for its MARL project. I'm pretty sure that is not the extent of NextEra's corridor proposal... the corridor will cover the entire MARL transmission line, from 502 Junction substation in Pennsylvania to Data Center Alley. It makes no sense to request a corridor for only part of a transmission project. However, we will have to wait and see what DOE's list looks like before we proceed with our own response.
Our own response? Oh yes, anyone can make comment on DOE's list for 45-days after it is released due to the way DOE expanded who may submit "recommendations." I urge you to read DOE's Guidance, that separates the designation process into four phases. Phase 1 began in December, when anyone (like NextEra) could submit recommendations for corridors. Phase 2 begins when DOE releases its list of preliminary corridors to be studied. In the 45-day Phase 2 window, any person may submit information and recommendations. DOE is asking for specific information about each preliminary corridor. It seems to be intended for transmission builders who submitted recommendations for corridors in Phase 1 to supplement their applications, err... "recommendations." It does not seem to be intended for people concerned about the designation of an NIETC to submit their own information and recommendations, but we're going to crash this party and give DOE an earful about corridors that concern us. More information about how to participate will be forthcoming after I see DOE's list. After the 45-day Phase 2 process, DOE will decide which corridors will proceed to Phase 3. Phase 3 opens the federal environmental study process required by NEPA. DOE will also evaluate historical resources and endangered species. During Phase 3, DOE will create a draft designation report and open it to public comment. Phase 3 requires "robust" public engagement and notification. This is where DOE wants you to join its NIETC party and make comment, and comes very late in the process, after DOE has already made up its mind in the draft designation report. When all the studies and comment periods are complete, DOE will move onto Phase 4. Phase 4 publishes a completed environmental study and DOE's Record of Decision and final Designation Report. That's the end of the process.
However, a designation may be appealed, first through a Request for Rehearing at DOE, and afterwards through a formal appeal in the D.C. Circuit Court of Appeals (or other circuit where the transmission builder is headquartered).
Is it worth engaging in the NIETC process? Absolutely! Unfortunately it is just one more thing to deal with and will play out during the state permitting process for MARL. If you do nothing on NIETC, you risk all your hard work opposing MARL at your state utility commission being for naught. If your work in the state process causes the state to deny a permit, NIETC can bump it to FERC and start the permitting process all over again.
And speaking of FERC, it also needs to update its process for permitting transmission projects in a designated NIETC. Back in 2005, FERC engaged in a rulemaking for a permitting process. That rulemaking has to be updated for the new process. FERC opened a rulemaking proceeding for siting and permitting transmission in a NIETC back in 2022. The comment window closed way back in May of 2023. However, FERC has not yet issued an order or taken any further action. FERC cannot accept any applications for NIETC projects until it completes its rulemaking. A group of nationwide transmission opponents submitted timely comments on FERC's rulemaking. You can read their initial comments here, and their reply comments here. This group was the only one to speak up for impacted landowners at FERC. You can read other comments on the docket and monitor its progress by going to FERC's eLibrary and searching for Docket No. RM22-7.
As you can tell from the length of this blog post, NIETCs have been quietly in the works for a long time and there are a lot of moving parts. I know it's a lot to understand all at once, that's why I will be publishing some guidelines for landowners who want to kick NIETCs to the curb just as soon as DOE releases its Phase 2 list.
Stay tuned!
Meanwhile, DOE had been working on a National Transmission Needs Study required by the statute as the first step to designating NIETCs. That study was published in October 2023. The study found transmission congestion everywhere, meaning that NIETCs were needed everywhere. Many comments were also submitted panning that study. Mine are posted here.
In December 2023, DOE released a "Guidance" document on NIETCs, in lieu of the requested Rulemaking. The Guidance says that it changed DOE's approach to allowing transmission builders to apply for NIETC corridors. Instead, DOE opened a 60-day window for any person to submit a request for a corridor. Supposedly this cured the DOE's problem with allowing transmission builders to control the process. But it really doesn't. Who else would submit a request for a corridor but a transmission builder? It's a legal sleight of hand that is due a day of reckoning.
Many blog readers got involved in NIETC at this point and attended DOE's webinar explaining its process in early January. DOE was not really forthcoming about all the process that came before that webinar, but hopefully this blog will help you to understand that this didn't just drop out of the sky, but had been in process for more than a year.
DOE's 60-day window for submission of "information and recommendations" for corridors ended on February 2. Many thought this was the one and only comment period for NIETCs, but it was actually designed for transmission builders to submit requests for DOE to study corridors to correspond with the projects they want to build. After DOE's window closed, it began to take a preliminary look at the corridor recommendations it has received and promised to release a list of corridors it was considering within 60 days (which would be April 2). DOE hasn't released anything yet, we are still waiting.
However, NextEra notified Piedmont Environmental Council that it had applied for a corridor in Western Loudoun for its MARL project. I'm pretty sure that is not the extent of NextEra's corridor proposal... the corridor will cover the entire MARL transmission line, from 502 Junction substation in Pennsylvania to Data Center Alley. It makes no sense to request a corridor for only part of a transmission project. However, we will have to wait and see what DOE's list looks like before we proceed with our own response.
Our own response? Oh yes, anyone can make comment on DOE's list for 45-days after it is released due to the way DOE expanded who may submit "recommendations." I urge you to read DOE's Guidance, that separates the designation process into four phases. Phase 1 began in December, when anyone (like NextEra) could submit recommendations for corridors. Phase 2 begins when DOE releases its list of preliminary corridors to be studied. In the 45-day Phase 2 window, any person may submit information and recommendations. DOE is asking for specific information about each preliminary corridor. It seems to be intended for transmission builders who submitted recommendations for corridors in Phase 1 to supplement their applications, err... "recommendations." It does not seem to be intended for people concerned about the designation of an NIETC to submit their own information and recommendations, but we're going to crash this party and give DOE an earful about corridors that concern us. More information about how to participate will be forthcoming after I see DOE's list. After the 45-day Phase 2 process, DOE will decide which corridors will proceed to Phase 3. Phase 3 opens the federal environmental study process required by NEPA. DOE will also evaluate historical resources and endangered species. During Phase 3, DOE will create a draft designation report and open it to public comment. Phase 3 requires "robust" public engagement and notification. This is where DOE wants you to join its NIETC party and make comment, and comes very late in the process, after DOE has already made up its mind in the draft designation report. When all the studies and comment periods are complete, DOE will move onto Phase 4. Phase 4 publishes a completed environmental study and DOE's Record of Decision and final Designation Report. That's the end of the process.
However, a designation may be appealed, first through a Request for Rehearing at DOE, and afterwards through a formal appeal in the D.C. Circuit Court of Appeals (or other circuit where the transmission builder is headquartered).
Is it worth engaging in the NIETC process? Absolutely! Unfortunately it is just one more thing to deal with and will play out during the state permitting process for MARL. If you do nothing on NIETC, you risk all your hard work opposing MARL at your state utility commission being for naught. If your work in the state process causes the state to deny a permit, NIETC can bump it to FERC and start the permitting process all over again.
And speaking of FERC, it also needs to update its process for permitting transmission projects in a designated NIETC. Back in 2005, FERC engaged in a rulemaking for a permitting process. That rulemaking has to be updated for the new process. FERC opened a rulemaking proceeding for siting and permitting transmission in a NIETC back in 2022. The comment window closed way back in May of 2023. However, FERC has not yet issued an order or taken any further action. FERC cannot accept any applications for NIETC projects until it completes its rulemaking. A group of nationwide transmission opponents submitted timely comments on FERC's rulemaking. You can read their initial comments here, and their reply comments here. This group was the only one to speak up for impacted landowners at FERC. You can read other comments on the docket and monitor its progress by going to FERC's eLibrary and searching for Docket No. RM22-7.
As you can tell from the length of this blog post, NIETCs have been quietly in the works for a long time and there are a lot of moving parts. I know it's a lot to understand all at once, that's why I will be publishing some guidelines for landowners who want to kick NIETCs to the curb just as soon as DOE releases its Phase 2 list.
Stay tuned!
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