Federal Backstop Authority for Transmission Line Siting

Ambitions to decarbonize the power sector by 2035 face a number of significant hurdles, the most intractable of which may be the extent of corresponding high-voltage transmission infrastructure necessary to accommodate the forecasted growth of renewable generation. The authority to site new transmission infrastructure rests with the states, and every state has historically had the power to prevent construction of transmission infrastructure it opposes. The Energy Policy Act of 2005 gave the Federal Energy Regulatory Commission new “backstop” siting authority in an attempt to overcome state opposition to construction of transmission infrastructure. But this authority was fatally flawed from the outset, and has never been used. Although the Infrastructure Investment and Jobs Act, which passed the Senate on August 10, 2021, seeks to bolster FERC’s backstop authority in response to adverse court decisions, it fails to address another key flaw: the lack of eminent domain authority over state-owned lands. Given the extent of state landholdings, it is practically impossible to build a major transmission line without crossing state lands, such as river bottoms. As a result, even if FERC grants a permit for a transmission project under its “backstop” authority, a state opposing the project can still prevent its construction by simply denying the necessary real estate instruments. Enacting a new legislative grant of federal eminent domain authority over state lands is no doubt politically daunting. But unless the current state-land eminent domain carveout is addressed, states will continue to have the power to stymie the energy transition and renewable generation goals by blocking construction of transmission infrastructure.

Mike Wigmore, Brandon Tuck, Kelly Rondinelli, and Hannah Flesch discuss in Law360.