On Thursday, December 15, 2022, the Federal Energy Regulatory Commission (“FERC” or “Commission”) issued a Notice of Proposed Rulemaking (“NOPR”) proposing changes to FERC’s authority under section 216 of the Federal Power Act (“FPA”). Section 216 provides FERC with jurisdiction over the siting of interstate transmission projects in National Corridors designated by the Department of Energy (“DOE”)—commonly referred to as FERC’s “backstop” transmission siting authority. Comments on the NOPR will be due in Spring 2023.
The NOPR carries forward Congress’s intent in the 2021 Infrastructure Investment and Jobs Act (“IIJA”) to revive FERC’s backstop transmission siting authority. The ultimate impact of the NOPR must be assessed in light of DOE’s efforts—currently still in the Notice of Intent stage—to revitalize its responsibility to designate National Corridors after a period of dormancy. Pursuant to DOE’s Notice of Intent, DOE envisions reviewing and designating National Corridors on a route-specific, applicant-driven basis, which could result in less discretion for FERC in fulfilling its responsibilities under FPA section 216. Coupled with the DOE’s efforts on National Corridors, FERC’s NOPR, if finalized, could—at least on paper—provide an expedited pathway to get steel in the ground for the types of major transmission projects that are widely viewed as required to realize the long-heralded “grid of the future.”
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