The past three parts of this series discussed national interest electric transmission corridors, the Federal Energy Regulatory Commission’s (FERC’s) authority to issue federal construction permits over the objections of state and local regulators, and the use of easements, rights of way, and eminent domain by the utilities to get access to the land needed for the transmission lines themselves. In the final part of this series, I discuss a means by which states may be able to avoid being overruled by the FERC and close with some concluding remarks.
The Way Out – Regional Transmission Siting Agencies
Up until now, the “Transmission Infrastructure Modernization” section of the Energy Policy Act of 2005 (the EPAct) could be construed as a big power grab by the federal government and a usurpation of states’ rights. And, in most respects, that’s an accurate complaint. But at the same time that Congress gave the Federal Electric Regulatory Commission (FERC) the legal authority to overrule local control regarding transmission lines in national interest electric transmission corridors (NIETCs), Congress also gave the states a way to avoid being overruled quite so easily.The EPAct grants the authority for three or more states to enter into “regional transmission siting agencies” (RTSAs). These agencies would “facilitate siting of future electric energy transmission facilities within those States and; carry out the electric energy transmission siting responsibilities of those States.” RTSAs have to be approved by Congress since they’re exercising nominally federal responsibilities, but once approved, the EPAct grants RTSAs the authority to site transmission lines within the states that are part of the regional compact and removes that authority from the federal government (the FERC, specifically). Only in cases where the RTSA’s member states disagree with each other on transmission line siting does the FERC get to step back in.
If the states want to retain some amount of local control over where transmission lines are constructed or expanded in their state, then their best bet is to get together with the other states and come up with their own plans instead of relying on the federal government to do it for (or against) them. In the event that they form an RTSA, the RTSA has all the authorities that the FERC would otherwise have and no Administration can remove that authority without an act of Congress. So, if New York, Pennsylvania, New Jersey, Maryland, Delaware, Virginia, West Virginia, and Ohio want to form an RTSA, or if California and Arizona want to bring Nevada or New Mexico into an RTSA, the states can collectively keep the federal government from overruling all their local decisions on energy types, transmission line routing, etc.
The nine pages that make up the Title XII, subtitle B (“Transmission Infrastructure Modernization”) represent a massive transfer of authority from the state and local level to the federal level. The broadly defined and vaguely worded powers were probably written with the best of intentions, and I suspect that many of the Representatives and Senators, who voted for the EPAct in 2005 did so with the understanding that they were voting for a bill that would not strip their home states and districts of the authority to decide what happens within their borders. They expected, as I did when I originally heard about these new provisions back in 2005, that the EPAct was written in such a way that it would be applied on a case-by-case basis. Unfortunately, at 551 pages (in .pdf format), the EPAct itself has too much legislation for every Congressperson to spend the week I’ve spent analyzing just a single section (1221), never mind the time it would take to read all 525 sections and anticipate the future ramifications of all of them.
It’s difficult to know whether Congress voted for a law that was deeply flawed by overly broad and vague language because of inattention and insufficient time to review the legislation or because they wanted to expand federal authority into this arena. The language that Congressional staffers wrote, phrases like “national energy policy,” “energy independence”, and “national defense,” was chosen specifically in order to give current and future Presidents greatly expanded authority. After all, it’s not at all clear what the national energy policy (NEP)actually is. Neither “Reliable, Affordable, Environmentally-Sound Energy” nor the EPAct itself really suffices as a NEP, although both produce sound bites and grand language that sounds great to easily distracted voters.
There will be a legal challenge to this aspect of the EPAct eventually. The first step of that process was the designation of the two new NIETCs. The next step will be for the FERC to overrule the permitting authority of the state(s) involved. And when that happens, the affected state(s) will sue the FERC and the case will move inexorably through the federal courts until it sits before the Supreme Court. However, there is no reason to believe that the Supreme Court will rule in favor of the state(s). In fact, given the unanimous decision in Berman v. Parker and the 5-4 decision in Kelo v. the City of New London (that was decided by the Court’s liberals), it’s very likely that the Supreme Court will defer to Congressional authority in this regard as well.
That the federal government has a role in ensuring sufficient redundancy, reliability, and capacity in the power grid cannot reasonably disputed. The problem is that, when we demanded that Congress act on our behalf with regard to electricity transmission lines, they chose to draw the line to closely to the federal government and too far from the control of state and local governments. For this reason we should start demanding of our Congressional representative that the EPAct be revisited and the larger abuses of federal power that presently exist removed.
No administration, current or future, should have the ability to declare the entire country a region of national interest where state and local laws are meaningless. That way lies madness.