Applications for Permits to Site Interstate Electric Transmission Facilities

<RULE> DEPARTMENT OF ENERGY <SUBAGY>Federal Energy Regulatory Commission</SUBAGY> <CFR>18 CFR Parts 50 and 380</CFR> <DEPDOC>[Docket No. RM22-7-001; Order No. 1977-A]</DEPDOC> <SUBJECT>Applications for Permits to Site Interstate Electric Transmission Facilities</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Federal Energy Regulatory Commission, Department of Energy. <HD SOURCE="HED">ACTION:</HD> Final rule; Order addressing arguments raised on rehearing, and setting aside prior order, in part. <SUM> <HD SOURCE="HED">SUMMARY:</HD> In this order, the Federal Energy Regulatory Commission addresses arguments raised on rehearing of Order No. 1977, which amended the Commission's regulations governing applications for permits to site electric transmission facilities under section 216 of the Federal Power Act, as amended by the Infrastructure Investment and Jobs Act of 2021, and amended its National Environmental Policy Act procedures. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This rule is effective November 22, 2024. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> <FP SOURCE="FP-1"> Maggie Suter (Technical Information), Office of Energy Projects, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-6344, <E T="03">magdalene.suter@ferc.gov</E> </FP> <FP SOURCE="FP-1"> Tara DiJohn Bruce (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-8671, <E T="03">tara.bruce@ferc.gov</E> </FP> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> 1. On May 13, 2024, the Federal Energy Regulatory Commission (Commission) issued Order No. 1977. <SU>1</SU> <FTREF/> Order No. 1977 amended the Commission's regulations governing applications for permits to site electric transmission facilities: to be consistent with section 216 of the Federal Power Act (FPA), <SU>2</SU> <FTREF/> as amended by the Infrastructure Investment and Jobs Act (IIJA);  <SU>3</SU> <FTREF/> to modernize certain regulatory requirements; and to incorporate other updates and clarifications to ensure the efficient and timely review of permit applications. On June 12, 2024, Earthjustice, Environmental Defense Fund, Natural Resources Defense Council, Sierra Club, Sustainable FERC Project, Union of Concerned Scientists, WE ACT for Environmental Justice, and the Yurok Tribe (together, Public Interest Organizations); Louisiana Public Service Commission (Louisiana Commission); New York State Public Service Commission (New York Commission);  <SU>4</SU> <FTREF/> and Pennsylvania Public Utility Commission (Pennsylvania Commission) filed timely requests for rehearing. <FTNT> <SU>1</SU>   <E T="03">Applications for Permits to Site Interstate Elec. Transmission Facilities,</E> Order No. 1977, 89 FR 46682 (May 29, 2024), 187 FERC ¶ 61,069 (2024). </FTNT> <FTNT> <SU>2</SU>  16 U.S.C. 824p. </FTNT> <FTNT> <SU>3</SU>  Public Law 117-58, sec. 40105, 135 Stat. 429 (2021). </FTNT> <FTNT> <SU>4</SU>  New York Commission seeks rehearing, or in the alternative, clarification of Order No. 1977. </FTNT> 2. Pursuant to <E T="03">Allegheny Defense Project</E> v. <E T="03">FERC,</E> <SU>5</SU> <FTREF/> the rehearing requests filed in this proceeding may be deemed denied by operation of law. However, as permitted by section 313(a) of the FPA, <SU>6</SU> <FTREF/> we are modifying the discussion in Order No. 1977 and setting aside the order, in part, as discussed below. <SU>7</SU> <FTREF/> <FTNT> <SU>5</SU>  964 F.3d 1 (D.C. Cir. 2020) (en banc). </FTNT> <FTNT> <SU>6</SU>  16 U.S.C. 825 <E T="03">l</E> (a) (“Until the record in a proceeding shall have been filed in a court of appeals, as provided in subsection (b), the Commission may at any time, upon reasonable notice and in such manner as it shall deem proper, modify or set aside, in whole or in part, any finding or order made or issued by it under the provisions of this chapter.”). </FTNT> <FTNT> <SU>7</SU>   <E T="03">Allegheny Def. Project,</E> 964 F.3d at 16-17. </FTNT> <HD SOURCE="HD1">I. Background</HD> 3. The Energy Policy Act of 2005  <SU>8</SU> <FTREF/> added section 216 to the FPA, providing for Federal siting of electric transmission facilities under certain circumstances. <SU>9</SU> <FTREF/> Under section 216, Federal siting authority is divided between the U.S. Department of Energy (DOE) and the Commission. Section 216(a) directs DOE to conduct a study and issue a report on electric transmission congestion and authorizes DOE to designate certain transmission-constrained or congested geographic areas as national interest electric transmission corridors (National Corridors). Section 216(b) provides that the Commission may issue permits to construct or modify electric transmission facilities in a designated National Corridor under specified circumstances. <FTNT> <SU>8</SU>  Public Law 109-58, sec. 1221, 119 Stat. 594 (Aug. 8, 2005). </FTNT> <FTNT> <SU>9</SU>  Order No. 1977 provides a more detailed discussion of the legislative, regulatory, and judicial actions that preceded the final rule. <E T="03">See</E> Order No. 1977, 187 FERC ¶ 61,069 at pt I. </FTNT> 4. On November 16, 2006, the Commission issued Order No. 689, <SU>10</SU> <FTREF/> which implemented new regulations for section 216 permit applications by adding part 50 to the Commission's regulations and by modifying part 380 of the Commission's regulations implementing the National Environmental Policy Act of 1969 (NEPA). <SU>11</SU> <FTREF/> <FTNT> <SU>10</SU>   <E T="03">Reguls. for Filing Applications for Permits to Site Interstate Elec. Transmission Facilities,</E> Order No. 689, 117 FERC ¶ 61,202 (2006) (Order No. 689), <E T="03">reh'g denied,</E> 119 FERC ¶ 61,154 (2007) (Order No. 689 Rehearing). </FTNT> <FTNT> <SU>11</SU>  42 U.S.C. 4321 <E T="03">et seq. See also</E> 18 CFR pt. 380 (Commission's regulations implementing NEPA). </FTNT> 5. On November 15, 2021, the IIJA amended FPA section 216. With respect to the Commission's electric transmission siting authority, the IIJA amended section 216(b)(1)(C) to expressly provide that the Commission may issue a permit if a State has denied an application. As amended, section 216(b)(1)(C) provides that the Commission's siting authority is triggered when a State commission or other entity with authority to approve the siting of the transmission facilities: (i) has not made a determination on a siting application by one year after the later of the date on which the application was filed or the date on which the relevant National Corridor was designated; (ii) has conditioned its approval such that the proposed project will not significantly reduce transmission capacity constraints or congestion in interstate commerce or is not economically feasible; or (iii) has denied an application. <SU>12</SU> <FTREF/> <FTNT> <SU>12</SU>  16 U.S.C. 824p(b)(1)(C). </FTNT> 6. Additionally, the IIJA amended section 216(e), which grants a permit holder the right to acquire the necessary right-of-way by eminent domain. <SU>13</SU> <FTREF/> As amended, section 216(e)(1) requires the Commission to determine, as a precondition to a permit holder exercising eminent domain authority, that the permit holder has made good faith efforts to engage with landowners and other stakeholders early in the applicable permitting process. <SU>14</SU> <FTREF/> <FTNT> <SU>13</SU>   <E T="03">Id.</E> 824p(e)(1). </FTNT> <FTNT> <SU>14</SU>   <E T="03">Id.</E> </FTNT> 7. On December 15, 2022, the Commission issued a Notice of Proposed Rulemaking (NOPR) which proposed revisions to parts 50 and 380 of the Commission's regulations to, among other things, address the IIJA's amendments to FPA section 216. <SU>15</SU> <FTREF/> After considering comments on the NOPR, on May 13, 2024, the Commission issued its final rule in Order No. 1977. <FTNT> <SU>15</SU>   <E T="03">Applications for Permits to Site Interstate Elec. Transmission Facilities,</E> 88 FR 2770 (Jan. 17, 2023), 181 FERC ¶ 61,205 (2022) (NOPR), <E T="03">errata notice,</E> 182 FERC ¶ 61,020 (2023). The Commission's errata notice for the NOPR, issued on January 17, 2023, reflected certain stylistic revisions requested by the <E T="04">Federal Register</E> as well as minor, non-substantive editorial revisions. </FTNT> 8. On June 12, 2024, Public Interest Organizations, Louisiana Commission, New York Commission, and Pennsylvania Commission requested rehearing. The rehearing requests raise issues related to when the Commission's jurisdiction is triggered; how State siting decisions and evidentiary records, including comments filed in State proceedings, will be considered in the Commission proceeding; the scope of the Applicant Code of Conduct and the Landowner Bill of Rights; and the analysis of climate impacts under NEPA. We address the issues raised on rehearing below. <HD SOURCE="HD1">II. Discussion</HD> <HD SOURCE="HD2">A. Commission Jurisdiction</HD> <HD SOURCE="HD3">1. Order No. 1977</HD> 9. FPA section 216(b)(1)(C)(i), as amended by the IIJA, provides that the Commission may issue a permit for the construction or modification of electric transmission facilities in a National Corridor if a State commission or other entity with authority to approve the siting of the transmission facilities has not made a determination on a siting application by one year after the later of the date on which the application was filed or the date on which the relevant National Corridor was designated. <SU>16</SU> <FTREF/> The final rule revised § 50.6(e) of the Commission's regulations, which describes the information that each permit application must provide. As relevant here, §  ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 62k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━