A Sleeper Provision in the Senate Infrastructure Bill
The bill gives the Feds broad authority to authorize transmission projects.
We will need a much more robust transmission in coming years. Sources of renewable energy, such as Iowa wind farms, are often located far from the urban centers that need the power. Transmission also helps to deal with weather issues that may impact renewables: even if it’s too cloudy for solar in one state, the sun may be shining a state or two over. The effort to build new transmission has been stymied, however, by resistance from utilities and state governments.
An existing statute gives the Federal Energy Regulatory Commission the power to designate national transmission corridors where new transmission is urgently needed. If states refuse to authorize transmission projects in those corridors, FERC can authorize the projects itself. That gives the project owners the power to use eminent domain to get the land they need for the transmission line. Unfortunately, federal courts ruled that the existing law doesn’t apply when state utility commissions deny the application rather than sitting on it for a year or adding onerous conditions. [Thanks here to Steve Weissman for pointing out a slip-up in the way I originally described the situation in this post.] That made the existing statute a dead letter.
Section 40105(b)(C)(iii) of the Senate infrastructure bill overturns those judicial decisions. Now commission can step in if the state denies the application. That’s not a cure-all for the ills facing new transmission lines. There’s a similar provision governing natural gas pipelines. Pipeline opponents, particularly state governments, have found ways of slowing or stopping projects approved by FERC. However, the § 40105 amendment does eliminate a major roadblock. Moreover, it may put pressure on state utility commissions to approve projects rather than ceding their authority to the federal government.
Much more will need to be done if we’re going to get the transmission we need built as quickly as we need. The infrastructure bill does some of that work with its other provisions, not least by investing $65 billion in new transmission. Transmission isn’t a glamorous part of the energy system, but it’s crucial to an effective transition away from fossil fuels.
Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…READ more