What's a NIETC (pronounced nit-zee)? Just when you thought the energy alphabet soup couldn't get any thicker, here's another federal program meant to enable a massive buildout of high voltage electric transmission, whether we need it or not. NIETC stands for National Interest Electric Transmission Corridors. NIETCs were dreamed up by Congress in the Energy Policy Act of 2005 as a way to give the Federal Energy Regulatory Commission (FERC) "backstop" permitting authority for certain transmission lines. Transmission line siting and permitting is state jurisdictional. It is up to the states to decide whether a new transmission line is needed and, if so, where to put it. However, Congress wanted to give the federal government authority to permit transmission where states did not use their own authority. In its original form, designation of a NIETC by the U.S. Department of Energy (DOE) would bump permitting to FERC if a state did not possess the authority to site and permit, or if it took too long, or if it burdened its permit with unworkable conditions. Importantly, Congress did not give FERC jurisdiction to permit a transmission project if a state issued a denial within one year. But our federal government overstepped its boundaries by interpreting the statute to mean that a state denial could be overruled by FERC. The NIETC process was killed by two court decisions that said the government failed to consult with states in making its designations, and that it had no authority to permit if a state issued a denial. NIETCs were shelved and we moved on. In 2021, NIETCs were dusted off and a new Congress decided that FERC could overrule a state denial for a transmission project in a NIETC. This overreach into areas of state jurisdiction has not yet been challenged in court, but I guarantee you it will be.
Meanwhile, the U.S. DOE has been busy re-imagining the NIETC process so that it can designate new corridors. The purpose of a corridor is to turn FERC into an appeals court for new transmission lines in the event that a state denies a permit to build. For its part, FERC has initiated a rulemaking to set up its new permitting authority. After proposing the rule, FERC accepted comment on its proposal, and then let the matter die. FERC has not yet set the rules for applying for a permit for a project in a NIETC. Nothing can be done until this process is finished. However, DOE is moving ahead to designate corridors.
DOE'S first proposal was to allow transmission developers to apply for NIETCs for transmission projects they wanted to build. In order to inform its process, DOE also conducted a National Transmission Needs Study. It came a no surprise that DOE determined that the entire U.S. is in need of lots of new transmission, although the regional transmission planners (like PJM Interconnection) have been planning the transmission we need for decades. Although DOE does not have any authority to plan the transmission system, or decide who pays for it, DOE issued its biased report in order to enable the designation of NIETCs. Now that the entire country needs new transmission according to DOE's report, DOE has issued what it calls a "guidance document" to create the rules for designation of NIETCs. It's not a rulemaking (sez DOE), it's a "guidance" and there are no formal rules. Of course, this does not comport with administrative policy rules that require public notice and comment on agency rules, but DOE isn't bothered by that.... it's simply plunging ahead. As if that won't be litigated...
Anyhow, on December 19, DOE published its "guidance". The guidance says that any person can suggest a NIETC anywhere, and DOE will evaluate the suggestions it receives and publish a short list of possible NIETCs by the spring of 2024. After the list is published, DOE will accept comments on the possible NIETCs. It doesn't look like DOE will bother to undertake any local community notice so that impacted landowners and communities will be made aware of the comment opportunity. You're supposed to be in the dark about this (so spread this around and educate yourself). Once DOE receives comments on its list of possibilities, it will further winnow it down to select a number of "draft" corridors. The draft corridors will be subject to an environmental statement under the National Environmental Policy Act. This is where DOE will finally begin "robust" public notification and invitation to comment. However, the NEPA report only concerns itself with environmental issues, not issues of need for the project in the first place. While you should comment on the Environmental Impact Statement, you should also comment before the draft corridor is designated.
I know the guidance document is long and perhaps confusing, but you shouldn't ignore it. I expect that every transmission proposal that has not yet been approved by state utility commissions will be proposing a new corridor as insurance in case it cannot get the state approvals it wants. Your goal should be to prevent designation of a NIETC in your own community. DOE will be holding one of its silly webinars to explain its process on January 3. You can register to attend here. The webinar will consist of some DOE employees reading the slides of a power point presentation. DOE rarely allows attendees to ask questions during the webinar. When it allowed questions in the past, it never seemed to like the questions asked by real people. Therefore, in order to avoid embarrassment for DOE, there is unlikely to be any actual interaction during the webinar. However, if you are new to NIETCs, you may get some information from reading the slides yourself. What the hay, it's only an hour.
DOE pretends that its "guidance" was informed by the comments it received on its initial plan. But reality is that DOE cherry picked the comments that supported what it wanted to do, and ignored the rest. I submitted extensive comments on this (and also all the other related rulemakings and studies at FERC and DOE), however DOE ignored everything that didn't fit in with its plan. Here's what I found wrong with DOE's process:
Meanwhile, the U.S. DOE has been busy re-imagining the NIETC process so that it can designate new corridors. The purpose of a corridor is to turn FERC into an appeals court for new transmission lines in the event that a state denies a permit to build. For its part, FERC has initiated a rulemaking to set up its new permitting authority. After proposing the rule, FERC accepted comment on its proposal, and then let the matter die. FERC has not yet set the rules for applying for a permit for a project in a NIETC. Nothing can be done until this process is finished. However, DOE is moving ahead to designate corridors.
DOE'S first proposal was to allow transmission developers to apply for NIETCs for transmission projects they wanted to build. In order to inform its process, DOE also conducted a National Transmission Needs Study. It came a no surprise that DOE determined that the entire U.S. is in need of lots of new transmission, although the regional transmission planners (like PJM Interconnection) have been planning the transmission we need for decades. Although DOE does not have any authority to plan the transmission system, or decide who pays for it, DOE issued its biased report in order to enable the designation of NIETCs. Now that the entire country needs new transmission according to DOE's report, DOE has issued what it calls a "guidance document" to create the rules for designation of NIETCs. It's not a rulemaking (sez DOE), it's a "guidance" and there are no formal rules. Of course, this does not comport with administrative policy rules that require public notice and comment on agency rules, but DOE isn't bothered by that.... it's simply plunging ahead. As if that won't be litigated...
Anyhow, on December 19, DOE published its "guidance". The guidance says that any person can suggest a NIETC anywhere, and DOE will evaluate the suggestions it receives and publish a short list of possible NIETCs by the spring of 2024. After the list is published, DOE will accept comments on the possible NIETCs. It doesn't look like DOE will bother to undertake any local community notice so that impacted landowners and communities will be made aware of the comment opportunity. You're supposed to be in the dark about this (so spread this around and educate yourself). Once DOE receives comments on its list of possibilities, it will further winnow it down to select a number of "draft" corridors. The draft corridors will be subject to an environmental statement under the National Environmental Policy Act. This is where DOE will finally begin "robust" public notification and invitation to comment. However, the NEPA report only concerns itself with environmental issues, not issues of need for the project in the first place. While you should comment on the Environmental Impact Statement, you should also comment before the draft corridor is designated.
I know the guidance document is long and perhaps confusing, but you shouldn't ignore it. I expect that every transmission proposal that has not yet been approved by state utility commissions will be proposing a new corridor as insurance in case it cannot get the state approvals it wants. Your goal should be to prevent designation of a NIETC in your own community. DOE will be holding one of its silly webinars to explain its process on January 3. You can register to attend here. The webinar will consist of some DOE employees reading the slides of a power point presentation. DOE rarely allows attendees to ask questions during the webinar. When it allowed questions in the past, it never seemed to like the questions asked by real people. Therefore, in order to avoid embarrassment for DOE, there is unlikely to be any actual interaction during the webinar. However, if you are new to NIETCs, you may get some information from reading the slides yourself. What the hay, it's only an hour.
DOE pretends that its "guidance" was informed by the comments it received on its initial plan. But reality is that DOE cherry picked the comments that supported what it wanted to do, and ignored the rest. I submitted extensive comments on this (and also all the other related rulemakings and studies at FERC and DOE), however DOE ignored everything that didn't fit in with its plan. Here's what I found wrong with DOE's process:
| doe_nietc_comments.pdf |
The U.S. DOE is like a kid with a new Christmas toy. In the name of "clean energy" DOE has been given limited new authorities by Congress that clash with other authorities already possessed by grid planners, state regulators, NERC and FERC. DOE doesn't know squat about transmission for reliability or economic purposes. It is only concerned about building a bunch of transmission willy-nilly because Big Green says we need a bunch of new transmission to connect more unreliable wind and solar generators. Wind and solar alone are not a viable means of powering our society. But certain companies are getting very rich on all the government handouts for "clean energy" so they make up all sorts of new ways to pick our pockets, claiming that there's just one more thing we need to pay for in order to make wind and solar work. Several years ago, they complained that wind and solar weren't working because it was too hard to connect new projects to the existing grid. So, all the grid interconnection rules were reformed and a huge amount of new connections were approved. But guess what? Most of the approved projects dropped out because they were not economic or profitable. Now Big Green says we need to build new transmission in order to connect new wind and solar. As Rosanne Rosannadanna once said:
The U.S. DOE is not a grid planner. It is not a grid regulator. It's not a cost allocator. It's just a gigantic waste of everyone's time and money... but it's a waste that we would ignore at our own peril.
Who does our government work for? If not the citizens who fund and enable it, then it is not part of a functioning democracy. DOE has been working steadily over the past several years to gaslight stakeholders to believe that new transmission and generation is the ONLY solution to a cleaner energy future. There are many other tools in the toolbox that can aid the transition that do not depend on commandeering hundreds of thousands of square miles of private property. DOE’s role is to examine all the tools available and determine which scenario, or combination of scenarios, best serves all citizens. DOE should be purposefully engaging all stakeholders in consultation and making all its actions public, instead of carrying on programs like NIETC designation in secret, lest the hoi polloi find out about it before they are supposed to and become a fly in the ointment.
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