Congress’ experiment with establishing federal siting authority for transmission lines suffered another setback after a Ninth Circuit Court of Appeals decision issued yesterday, February 1, 2011, vacated the Department of Energy’s (“DOE”) 2007 Transmission Congestion Study that had designated national interest electric transmission corridors in mid-Atlantic and Southwestern states. This ruling is the latest of three court and agency decisions that have limited or undermined the federal siting authority established at Federal Power Act section 216 by the Energy Policy Act of 2005.
Congress created section 216 to confront concerns that states were acting too slowly in siting new transmission lines needed to address growing reliability and congestion problems. In part, section 216 directs the DOE to study transmission congestion in consultation with the states, and designate certain transmission-constrained areas as national interest electric transmission corridors (“NIETCs”). Section 216 also grants the Federal Energy Regulatory Commission authority to issue permits to construct transmission facilities in these NIETCs under certain circumstances. Congress also provided that an applicant who receives a permit to construct transmission in a NIETC would be granted with the authority to acquire rights-of-way by eminent domain. In sum, section 216 had the potential to uncork the transmission bottleneck, but that potential has not materialized.