The Federal Energy Regulatory Commission (FERC) has announced an open meeting where it will present its new rules for transmission planning AND its new rules for transmission permitting in a National Interest Electric Transmission Corridor (NIETC).

Both of these rulemakings have taken years to get to this point.  As you may know, rulemakings are public participation proceedings where the agency proposes a new rule, accepts comments from the public, and then issues a final rule.  The transmission planning rulemaking began in 2019 -- 5 years ago!  Five years to get a new rule in place isn't uncommon... things move at a glacial pace at FERC.  In addition, FERC's commissioners have come and gone over that time period, making FERC flip-flop on several different new rule proposals.  The transmission permitting rulemaking hasn't been in the works for as long, but it is going to have a profound impact on landowners so unlucky as to be targeted for new transmission projects.

First, the transmission planning rulemaking.  This is all the media has been talking about.  Fans of doubling or tripling transmission lines to ostensibly connect remote wind and solar generators are chomping at the bit, convinced that it will finally make intermittent renewables viable.  That proposed rule contains, among other provisions, a plan to prospectively build new transmission to remote "zones" where some unnamed authority believes new wind and solar can be built.  This would shift the cost of transmission to connect renewables from the owner of the generator to ratepayers across the regions connected.  As it has been for years, the owner of a new generator must pay the costs of connecting its new generator.  These companies want to shift this cost burden to ratepayers.  If a generator has to pay for its own connection, it makes economic choices about where to site new generation in order to build at the most economic sites.  If we're paying, generators can build stuff anywhere, even if it doesn't make economic sense, and stick electric consumers with the bill.

Another thing the transmission planning rule is going to do is create some hypothetical list of "benefits" from new transmission in order to spread the cost allocation as wide as possible.  Even if you don't "need" transmission for reliability or economic reasons, if the transmission owner makes up some hypothetical "benefits" for you, then you're going to be charged for it.  The idea is to spread the trillions of dollars needed for new transmission as wide as possible in the hope that if everyone pays a little that nobody will notice how their money is being wasted building transmission that they don't need.

Finally, the transmission rule will require planning authorities, like PJM or MISO, to plan transmission on a rolling 20-year timeline.  What are you going to need 20 years from now?  You have no idea, and neither does the planner.  By planning so far into the future, the idea is to drive generation choices through transmission planning, and not to plan the transmission system based on need.  It will also attempt to roll state and federal "public policies" into transmission planning so that we all pay a share of other state energy policy choices.  Is Maryland shutting down all its gas-fired generation?  You're going to pay for new transmission to replace it, even though you don't live in Maryland and had no say in the creation of their energy policies. 

The transmission planning rule will be prospective only and will not affect any transmission already included in regional plans.   After this rule is issued, planners will have to submit what are known as compliance filings, which detail how the planner will adjust its rules to carry out the new transmission planning process FERC orders.  In addition, I fully expect that this rule will be litigated for several more years, which is going to hold the whole thing up.

Now onto the Transmission Permitting rule, which is something that is going to impact anyone currently battling unwanted transmission, and anyone doing so in the future.  As you probably know, the U.S. Department of Energy is poised to release its preliminary list of potential NIETCs at any time.  That's a whole battle unto itself that I'm not going to cover here, but if a corridor is designated in your area, it means that one or more proposed transmission projects may be built in that corridor.  A transmission project sited in a NIETC is subject to "backstop" permitting by FERC.  If a state has no authority to permit transmission, or denies a permit to a project in a NIETC, then it can be bumped to FERC for permitting.  FERC will require the transmission company to file an application and then will hold a full-blown permitting process very similar to the state process.  If FERC permits the project, then FERC has authority to say where it goes and to grant the utility building it federal eminent domain authority to take property for it.

In FERC's rulemaking on transmission permitting, it proposed that a utility could begin the FERC process as soon as an application is filed at the state level.  This would mean that there will be TWO simultaneous permitting processes going on at the same time.  Two permitting cases, two interventions, two sets of lawyers, double your time and double your money.  The drawback here is that the FERC process may not even be necessary if the state approves the project in its own permitting process.  If a state approves, FERC doesn't have jurisdiction to get involved.  FERC said that it needed to speed up this process by running its own permitting process at the same time as the state process.  It's foolish and a waste of our time and money.  Let's see what FERC does with this as it was widely panned by those who commented on this rulemaking.

​Another horrible idea in FERC's proposal is an "Applicant Code of Conduct" to meet the statutory requirement for "...good faith efforts to engage with landowners and other stakeholders early in the applicable permitting process."  FERC proposes a voluntary, generalized, unenforceable "Code" that does little to protect landowners.  The "Code" is merely an idea of how a company should behave, not how it will behave.  FERC does not plan to enforce it, or intervene when landowners report violations.  The landowner should report violations to the company!  Don't laugh... they're serious!  FERC's proposed "Code" advises that the company should "avoid" coercive tactics, but it doesn't prohibit them.  That does NOTHING to meet the statutory requirement.  It's a big joke!

The new transmission permitting rule will become operational once it is issued.  Many readers will be subject to this government-sponsored landowner abuse immediately.  This is one you should not ignore!

Over the years, I have worked with a large group of transmission opponents from across the country to file extensive comments on both of these rulemakings on behalf of impacted landowners.  In particular, you should read our comments about the transmission permitting rule to familiarize yourself with what's about to happen to landowners.

Please plan to (virtually) attend FERC's May 13 Open Meeting where they will release these two new rules and make comment and explanation.  The meeting is "listen only".  There is no opportunity to make comment or interact with the Commissioners.  This is an informational presentation, not a participatory event.  FERC's meeting begins at 11:00 a.m. and is expected to last about an hour.  You can watch it live on YouTube using a link that will appear on FERC's website the week before.  Later on that day (or the next day, remember FERC works at a snail's pace) the text of the rules will be released and then discussed over and over by lawyers and the media.  If you're impacted by a new transmission proposal, you can't miss this presentation!

You don't need to sign up in advance... simply click the link to view when the meeting starts.  You can find that link and minimal information about this special meeting at FERC's website.

Our power appetite is bigger than our power supply.  The "renewable transition" isn't working.  We are losing large baseload power generators and not replacing them and we're adding too much load.  Our electric system is not sustainable.  It's a simple math equation.

Back in January I was contacted by a reporter from the Washington Post who had been writing about the proliferation of data centers in Northern Virginia and wanted to investigate how Virginia's out-of-control building was impacting people in surrounding states.  Virginia's data center problem is no longer just Virginia's problem.  It has now spread to the entire 14 state PJM Interconnection region.

​Here's his story that began back in January.

​For us, the story began last summer when we found out about PJM's transmission plan for multiple new high-voltage transmission lines to import more power to data center alley.  We followed it through PJM's planning process and though we protested and asked for other solutions, PJM approved three new 500kV transmission lines and a whole bunch of smaller segments and substations.  During PJM's TEAC meetings, I remarked several times that the new transmission was feeding from existing legacy coal plants in West Virginia and was actually increasing emissions and in no way helping the "renewable transition."  Every time I mentioned it, PJM was quick to claim that the new electric supply would come from "all resources, including renewables."  PJM seemed rather sensitive about the reality of its plan and vehemently denied it.  Deny this article, PJM.  It's all there in living color.

Virginia has renewable energy laws that prohibit the building of new fossil fuel generation (gas, coal).  But yet Virginia is building an incredible amount of new data centers that use outrageous amounts of power that is simply not available on the current system.  Virginia's renewable energy plan is a virtue signaling lie.  Instead of building the electric generation it needs, Virginia intends to IMPORT electricity from surrounding states, even coal-fired power from West Virginia.  ESPECIALLY coal-fired power from West Virginia.  How is Virginia's "renewable energy" law cleaning up the environment?  It's not.  It's making the situation worse.

After Tony started working on this story for the Washington Post, FirstEnergy made an announcement that bolstered what I had been saying... PJM's transmission plan is increasing the production of coal-fired electricity in West Virginia.  FirstEnergy announced it was abandoning its goal to decrease its carbon emissions by 2030 by throttling back its Ft. Martin and Harrison coal-fired power plants near Morgantown.  FirstEnergy said it was necessary to abandon that goal because those resources were necessary to provide reliability in PJM.   In other words, FirstEnergy will throttle up its electricity production at those plants in order to provide supply to PJM's new transmission line that begins at the nearby 502 Junction substation and ends at No. Va.'s data center alley in Loudoun County.  Ft. Martin and Harrison directly connect to 502 Junction via dedicated 500kV transmission lines.  Also connecting directly to 502 Junction is the Longview coal-fired power plant in Morgantown and AEP's Mitchell coal-fired power plant in West Virginia's northern panhandle.  It's more than 5,000 MW of hot and dirty coal-fired electricity and if the line is constructed it's heading right for Northern Virginia, along with some smog and air pollution.  Data Centers are filthy!  And PJM is a filthy liar.

Along the way to No. Va., PJM's new coal-by-wire extension cord will expand existing transmission rights-of-way closer to homes, schools, parks and businesses.  Expanding existing easements makes it impossible for the utility to avoid sensitive things like they could if they were siting a new corridor.  Anyone living along the existing corridor, like the Gee family, is going to be steamrolled right over. 

The "using existing rights-of-way" propaganda is another huge PJM lie I brought up over and over during TEAC meetings.  It's a new easement all the way because it cannot be constructed within the existing corridor.

And guess what?  Along with new pollution and new land acquisition using eminent domain, West Virginians will PAY for this destruction/construction in higher electric bills, along with every other ratepayer in the PJM region.

And we get NOTHING for our trouble.  Virginia gets new tax revenue building things they can't power while crowing about how "clean" Virginia is, and the rest of us get the impacts and the bill.  We're NOT your sacrifice zone.

Washington Post reporter Tony Olivo did a fantastic job investigating and reporting on this story.  He spent a day with us here in Jefferson County and drove from one end of the county to the other meeting people, and Washington Post photographer Sal got lots of photos and drone footage along the way.  Then these two guys drove all the way out to 502 Junction and Morgantown to do the same there.  They spent an enormous amount of time on this story and it shows.

One of my favorite images in the story is the new solar "farm" near Charles Town taken from the drone.  It shows how the company building it scraped off all the vegetation and top soil and left nothing but bare earth and erosion that is killing the Shenandoah River.  Clean energy ain't so clean, is it?

And let's talk about that "clean energy", shall we?  Wind and solar cannot create the amount of electricity needed for new data centers, even if they cover Virginia with turbines and panels from end to end.  The data centers need a plentiful and reliable supply they can only get from fossil fuels.  A few solar panels on the roof of the data center won't do a thing to cure this problem.  It may only keep the lights on in the restroom... during the day.  Renewables cannot power our energy intensive society.  We're not replacing the generation we're shutting down in the name of carbon reduction, and there's no chance that we can ever catch up at this point.  Data centers are too big a drain and Virginia can't stop building them.

If you have any doubts, check out the Generation Fuel Mix pie chart on PJM's website at any time.  Renewables provide only a tiny slice of PJM's power supply and it will never change as long as we keep increasing power load with new data centers.

Bravo to Washington Post for exposing Virginia's dirty data center reality!

​And let's get to work, Jefferson County.  We've got a power line to stop!

In our last episode of the FERC cost allocation soap opera, we saw a record number of intervenors for this kind of case, and were left breathlessly waiting for FERC to act.

FERC acted on April 8.  ​

As expected FERC approved PJM's cost allocation filing because projects necessary for reliability are allocated across the region, as PJM proposed.  An attack on the existing cost allocation formula for reliability projects is outside the scope of the proceeding because the formula was approved by FERC long ago.  The only thing FERC was considering here was whether PJM's cost allocations were in line with its approved formula.

Maryland's Office of People's Council tried to make the argument that PJM selected the wrong formula and that the projects were actually public policy projects that should be allocated 100% to the state whose public policy is causing the need for the projects.  FERC rebuffed that argument.

It's all over, save for the requests for rehearing or appeals.  This may happen, but that's a drama for another episode.

But all is not lost, avid followers.  Commissioner Mark Christie filed a delightful concurrence and opined 

However, the other two commissioners apparently weren't feeling it, with Commissioner Clements filing her own concurrence stating that she believes FERC should assign costs based on the allocation of reliability and economic (and perhaps other demonstrable) benefits.  In her world, it doesn't matter who causes the reliability issue or why... just that if one is created, everyone pays for it.

Commissioner Christie's concurrence is logical and thoughtful. 

But it's not just Virginia causing transmission projects that get allocated to other states, Maryland also gets called out for its "clean energy" policies and the costs for new transmission to take the place of closing coal-fired generators.

I agree with what Commissioner Christie didn't say... both Virginia and Maryland are hypocrites when it comes to cost allocation.  Neither one wants to accept the costs of transmission made necessary only by their state policies.  Instead, when it benefits them, they want to share the costs with other states whose residents had no part in creating the policies that cause new transmission, like approving more data centers than you can power, or shutting down all your baseload generation and relying on transmission imports from other states to keep your lights on.

Here's the cliffhanger for this episode... Will Commissioner Christie be successful in opening some sort of inquiry or investigation into cost allocation policies when reliability issues are caused by certain state policies?  He seems pretty determined to solve this issue.  Commissioner Christie's concern for ratepayers above all else is much appreciated, especially considering the political swamp he wades through every day to regulate in the public interest.  Regulation is an art, a skill, that comes with a huge learning curve.  We need more experienced state regulators like Commissioner Christie at FERC, and less political appointments.  FERC's work is too impactful to rest in the hands of political animals.

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

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!

As you may recall, FERC issued a very confused and contradictory order granting Grain Belt Express continued negotiated rate authority de novo.  This would be like selling a used car as a new car that has been continuously driven for the past 10 years.  As Illinois attorney Paul Neilan explains in his inimitable fashion:

So when the Commission said in its order that it was granting Grain Belt’s request for continued authority to sell transmission rights at negotiated rates, on a matter that it reviewed de novo, FERC contradicted itself.

Read the whole Request for Rehearing of the Illinois groups here.  I guarantee you won't be as confused as FERC.  It's pretty simple and straightforward and beautifully written.

GBE said... hey FERC, we need you to hurry up and give us what we want... and BTW, here's a CC of this letter to all the staff people we have been schmoozing.  Right.  The staff got it done on GBE's timetable, but they did a really crappy job that cannot withstand any legal scrutiny.  Shame on the Commissioners for allowing their names to be placed on that less than stellar piece of work.  Now it's time for FERC to actually give this docket the scrutiny it should have received in the first place or else the are going to be standing up before the D.C. Circuit looking like idiots trying to defend the indefensible.

It's been more than 30 days since FERC gave GBE what it wanted because GBE was in such a big hurry to advertise its project for sale to customers.  GBE hasn't advertised anything yet.  Guess there wasn't much of a hurry after all.

And why does GBE need to "amend" its prior grant of negotiated rate authority that expired when Clean Line sold the project to Invenergy without FERC approval?  Because the contract with the Missouri municipalities for less than 5% of the project's capacity was negotiated under Clean Line but never submitted to FERC for approval.  FERC cannot "continue" that unapproved contract to be approved at some later date if it actually did review GBE's negotiated rate authority de novo and issue new authority.  FERC needs to boot that contract to the curb because it was not filed by the deadline in FERC's original grant of negotiated rate authority that Clean Line agreed to.  Sorry, the instructions were clear and they were intentionally not followed.  That contract is toast.

FERC also has a huge problem with the contradiction it created saying that GBE didn't need approval to transfer the project from Clean Line to Invenergy, but that Invenergy's sale of undivided interests in the project would somehow require approval.  Either a sale of project assets requires approval under Sec. 203 of the Federal Power Act, or it doesn't.  Can't have it both ways.  FERC needs to think carefully before it does something that can impact its authority under Sec. 203 going forward.

FERC didn't think this thing through, and it needs to correct its errors.  Thank goodness the Illinois groups are there to clean up the mess.  If it doesn't make sense, it can't withstand the legal scrutiny of the DC Circuit.  Been there, done that.