Energy Legal Blog

FERC Proposes Rules for Federal Eminent Domain in National Interest Electric Transmission Corridors

In a June 16 notice of proposed rulemaking (NOPR) FERC details how it proposes to implement its new authority under section 216 of the Federal Power Act, added by EPAct 2005, to issue federal permits for the construction of electric transmission facilities in Department of Energy (DOE)–designated National Interest Electric Transmission Corridors (NIETCs).  Previously, only states could authorize the taking of private property for electric transmission rights of way.  Public comments on the NOPR must be submitted by August 25, 2006. 

EPAct 2005 directed DOE to study electric transmission congestion and designate NIETCs.  Projects slated for NIETCs will receive special attention during review procedures.  DOE expects to finalize this study by mid-August.  [DOE Congestion Study to Identify National Interest Electric Transmission Corridors]  FERC, in turn, can issue permits to construct or modify transmission facilities in any DOE-designated NIETC provided that the state where the facilities would be located lacks the authority to site the facilities (or the applicant does not qualify for siting approval there), or the state either withholds approval for more than one year or attaches unreasonable or uneconomical conditions to its approval.  FERC must also find that the proposed project would be in the public interest, further national energy policy, and be used for interstate power transmission. 

FERC's proposed rule implements both authorities that EPAct 2005 granted directly to FERC and other authorities that DOE has delegated to the agency.  The proposed rule would require permit applicants to establish Participation Plans that facilitate stakeholder (e.g., landowner, local governments) involvement in the permitting process.  In addition, FERC proposes an extensive and mandatory pre-filing process, along the lines of what it requires for natural gas pipeline projects.  FERC intends that the majority of the heavy lifting, including required studies and meetings with other reviewing agencies and designation of at least three potential contractors for preparing environmental impact statements or assessments, be accomplished during this pre-filing process in order to streamline later application preparation.  Monthly status reports required as part of pre-filing, for instance, would carry some bite:  failure to submit a report, respond to a request for more information, or progress sufficiently toward permit issuance would allow FERC to terminate the pre-filing (without prejudice to refiling). 

The proposed rule also details the information FERC would require as part of the application, as well as general conditions that FERC would impose all permits issued under the new rule; specific conditions may be imposed on individual projects.   

FERC has also proposed to modify its rules implementing the National Environmental Policy Act (NEPA) to include electric transmission projects among the activities for which environmental information must be provided to the agency and for which FERC will complete an environmental assessment or environmental impact statement.  In addition, FERC's new NEPA rules would provide for specific environmental filing requirements (resource reports) for electric transmission facilities.