Statement of Commissioner James P. Danly
December 15, 2022
RM22-7-000
I concur with the issuance of this Notice of Proposed Rulemaking (NOPR) because it is not my habit to oppose any but the most infirm proposed rules. Today’s issuance purports to be the first step in discharging the Commission’s obligations under Infrastructure Investment and Jobs Act,[1] which, among other things, included amendments to certain provisions of section 216 of the Federal Power Act[2] (FPA) to clarify Federal “backstop” siting of electric transmission facilities in limited circumstances when states fail to act on certain transmission proposals. The NOPR itself, however, largely appears to be an exercise to extend various environmental reviews typically seen in natural gas project proceedings—a regime in which the majority of the Commission has been imposing pervasive, standardless environmental tests well beyond our statutory authority.
I agree that our “backstop” siting authority is limited under the Commission’s governing statutes. I disagree that the limited “backstop” siting authority that the Commission has been granted also confers extensive powers as an environmental and social regulator. Regardless, the statute certainly did not extend our obligations beyond the requirements we have always observed in order to discharge our duties under the National Environmental Policy Act (NEPA).
In going far beyond that which is required by the Infrastructure Investment and Jobs Act, this NOPR instead appears to represent the majority’s “environmental justice” wish list. Accordingly, I specifically solicit citations to the provisions in section 216, as amended—or any other statutory basis—to support each revision proposed in the NOPR (such citations are often omitted in the NOPR itself).[3] Once statutory authority is certain, commenters should further provide legal analysis and evidence whether the proposed rule constitutes good policy, such as, for example, whether it will be beneficial in determining whether to site electric transmission projects when the states have not done so, or whether the rule will tend to ensure almost nothing is ever sited.
For example, we propose to “require [electric transmission project] applicants to develop and file an Environmental Justice Public Engagement Plan as part of their Project Participation Plan under § 50.4(a)(4).”[4] The Commission does not cite any statute that requires or even permits us to require this Environmental Justice Public Engagement Plan, instead citing Executive Orders, at least one of which the majority acknowledges does not bind the Commission.[5] The Commission further “proposes to define the term ‘environmental justice community’ as any disadvantaged community that has been historically marginalized and overburdened by pollution, including, but not limited to, minority populations, low-income populations, or indigenous peoples.”[6] What does it mean to be “overburdened by pollution?” Is this a concept that the Commission—a Federal energy rate regulator—is authorized and equipped to define or establish? Will the regulated community of transmission developers have any idea how to comply with such ambiguities? Is there anything about being “overburdened” in the Infrastructure Investment and Jobs Act?
The Commission also seeks to decree that the Environmental Justice Public Engagement Plan must “describe the manner in which the applicant will reach out to environmental justice communities about potential mitigation,”[7] or, in other words, include a mitigation plan, even though “NEPA not only does not require agencies to discuss any particular mitigation plans that they might put in place, it does not require agencies—or third parties—to effect any.”[8] Commenters should tell us how the Commission can impose such a requirement when the Supreme Court and the D.C. Circuit have ruled otherwise.
By way of further example, as part of its NEPA review, the Commission proposes to require applicants to submit “Resource Report 10” on “Air quality and environmental noise.”[9] “Proposed Resource Report 10 would require the applicant to estimate emissions from the proposed project . . . and describe proposed measures to mitigate the impacts.”[10] “Specifically, the applicant must provide the reasonably foreseeable emissions from construction, operation, and maintenance of the project facilities . . . and describe any proposed mitigation measures to control emissions.”[11] Someone better propose some standards because these proposals sound much more like aspirational goals than clear rules that a developer could figure out how to comply with. What are “foreseeable emissions” from “maintenance,” for example? If a transmission line falls in a storm, is a transmission developer supposed to predict “reasonably foreseeable” emissions from the truck the utility line worker uses to drive out to the site? If the line worker uses a rechargeable ratchet to loosen a bolt, is the transmission developer supposed to predict the “reasonably foreseeable” emissions from electric generation required to recharge the battery? And, again, by what authority do we propose to require a mitigation plan over directly contrary judicial precedent?[12]
As another example, the Commission proposes to “add language to § 50.11(d) that would, under certain circumstances and for a limited time, preclude the issuance of authorizations to proceed with construction of transmission facilities authorized under FPA section 216 while requests for rehearing of orders issuing permits remain pending before the Commission.”[13] Though in a different context and sounding in a different statute, the majority imposed a similar policy, including the issuance of stays, for natural gas projects, over my dissent.[14] I solicit comment whether we have this authority, and if so, whether it is sound policy to exercise it as part of our limited “backstop” siting jurisdiction.
I have similar questions to those raised here about nearly every aspect of the NOPR.[15] The powers that Congress has granted the Commission are narrow, as has been acknowledged, but they are profound and, depending upon how the Commission implements those authorities, can have a lasting effect on the development of the transmission system. Accordingly, I invite comments from every interested party on my questions and any other aspect of the proposed rules so that the Commission will have a full record as it considers whether to promulgate these or related rules.
It is hard to reconcile today’s proposed rule, adorned as it is by burdensome, unnecessary requirements, with what appears, at the merest glance, to have been the purpose of Congress when passing the Infrastructure Investment and Jobs Act—to facilitate, not inhibit, the siting of transmission infrastructure.
For these reasons, I respectfully concur.
[1] Pub. L. 117-58, § 40105, 135 Stat. 429.
[2] 16 U.S.C. § 824p (2018).
[3] As amended by the Infrastructure Investment and Jobs Act, FPA section 216(a)(4)(G) provides that in determining whether to designate a national interest electric transmission corridor the Secretary of Energy “may consider” whether the designation “avoids and minimizes, to the maximum extent practicable, and offsets to the extent appropriate and practicable, sensitive environmental areas and cultural heritage sites.” 16 U.S.C. §§ 824p(a)(4), 824p(a)(4)(G)(ii). As amended, FPA section 216(e)(1) provides that a permit holder may acquire rights-of-way by the exercise of eminent domain if, among other things, “in the determination of the Commission, the permit holder has made good faith efforts to engage with landowners and other stakeholders early in the applicable permitting process.” Id. § 824p(e)(1). It is stretching these amendments to FPA section 216 beyond their breaking point to use them to justify the scope of environmental review the Commission now proposes in the NOPR.
[4] Applications for Permits to Site Interstate Elec. Transmission Facilities, 181 FERC ¶ 61,205 at P 31 (2022) (NOPR); see also 18 C.F.R. § 50.4(a).
[5] NOPR, 181 FERC ¶ 61,205 at PP 30, 65, n.72. The Commission also proposes to require a new “Environmental Justice Report” as part of its regulations implementing NEPA. See id. PP 65-67. Again, I would like to know where the Commission gets this authority. We also “expect applicants to utilize the latest guidance and data from [the Council on Environmental Quality], [the Environmental Protection Agency], the Census Bureau, and other authoritative sources.” Id. P 67. Does the “latest” guidance and data include anything issued after pre-filing but before permitting? What about the day after permitting? What about during the pendency of a rehearing request? And who or what are “other authoritative sources?”
[6] Id. P 32 (emphasis added).
[7] Id. P 31.
[8] Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 206 (D.C. Cir. 1991) (citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 353 & n.16 (1989)).
[9] NOPR, 181 FERC ¶ 61,205 at P 69.
[10] Id.
[11] Id. P 70.
[12] See supra P 5 n.8.
[13] NOPR, 181 FERC ¶ 61,205 at P 47.
[14] See Limiting Authorizations to Proceed with Constr. Activities Pending Rehearing, Order No. 871-B, 175 FERC ¶ 61,098 (Danly, Comm’r, dissenting), order on reh’g, 176 FERC ¶ 61,062 (2021) (Danly, Comm’r, dissenting).
[15] For example, I question whether we are complying with the purpose of the act to engage in parallel activity with the states during the pendency of the states’ review of transmission project proposals, a subject that Commissioner Christie has thoroughly canvassed in his separate statement to this order.