In October, the U.S. Department of Energy (DOE) declared two large swaths of the country “National Interest Electric Transmission Corridors” (NIETCs). In these regions, the federal government would have the authority to overrule local and state regulations and control and to grant permits for the construction of transmission lines even over the objections of the state and local governments. Needless to say, there was a dramatic uproar in the regions declared NEITCs, and I wrote a four part examination of the Energy Policy Act of 2005 (EPAct) that gave the DOE this authority (see links below).
In response to the uproar from the public and several states, the DOE has agreed to re-open hearings on the designations of the Mid-Atlantic and Southwest NEITCs. The Pennsylvania Utilities Commission even filed suit in federal court to block implementation of the corridors, saying that they were “beyond the scope intended by Congress (from link above)”. Given the language of the EPAct itself, there is literally nothing to prevent the DOE from doing exactly what it did, protestations about how “[t]he final northeastern NIETC designation plan was not altered from a draft plan released earlier this year…” notwithstanding.
Revisiting the decisions is good politics for the DOE – it shows that listen to public comment even though the EPAct doesn’t actually require them to do so. But just because it’s revisited doesn’t mean that the decisions will be scaled back or reversed. In fact, there’s no way to ensure that the DOE won’t conclude that they need to expand the NIETCs due to updated information on where power is required. The vague and overly-broad language of the EPAct itself is the problem here, not the designations themselves. Had the EPAct been better written, the DOE wouldn’t have been given overly broad powers in the first place. And attacking the NIETCs in federal court will almost certainly fail for the same reason – Congress gave the DOE this authority, and nothing in the act itself places sufficient limitations on the DOE in how they exercise their new authority.
The states and counties who have been designated part of one of the two NIETCs would be best served if they lobbied their various federal legislators to have the blanket authority given to the DOE scaled back, something that I have yet to see evidence of.
If you’re interested reading my original series on the EPAct and National Interest Electric Transmission Corridors, “Electric transmission lines, eminent domain, and the consequences of vague and broadly worded laws,” see the links below:
The Designation of National Interest Electric Transmission Corridors
Construction Permitting in National Interest Electric Transmission Corridors
Rights of Way and Exercising Eminent Domain
The Way Out – Regional Transmission Siting Agencies; and Conclusions