Sec. 107. Increased FERC transmission siting authority

4,266 words·~19 min read·/bill/118/hr/6747/ih/section-107

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Part II of the Federal Power Act ( 16 U.S.C. 824 et seq. ) is further amended by adding at the end the following: On receipt of an application under subsection (b)(1) relating to an electric transmission facility described in paragraph (2), the Commission, after making the finding described in paragraph

(3)with respect to such electric transmission facility, shall, by order which is published in the Federal Register, issue to the person who submitted such application a certificate of public convenience and necessity for the construction, modification, or operation of such electric transmission facility, subject to such reasonable terms and conditions as the Commission determines to be appropriate. An electric transmission facility referred to in paragraph

(1)is an electric transmission facility that— traverses or, on construction or modification in accordance with a certificate of public convenience and necessity issued under that paragraph, will traverse not fewer than 2 States; is used for the transmission of electric energy in interstate commerce; and has a power capacity of not less than 1,000 megawatts. The finding referred to in paragraph

(1)is a finding that— the applicant for a certificate of public convenience and necessity is able and willing— to carry out the activities and perform the services proposed in the application in a manner determined to be appropriate by the Commission; and to achieve compliance with the applicable requirements of— this part; and any rules and regulations promulgated by the Commission pursuant to this part; the electric transmission facility to be constructed, modified, or operated under the certificate of public convenience and necessity will— traverse not fewer than 2 States; be used for the transmission of electric energy in interstate commerce; and have a power capacity of not less than 1,000 megawatts; and construction, modification, or operation of the electric transmission facility, as proposed in the application— will— enable the use of renewable energy; reduce congestion of the applicable transmission system or transmission systems; improve the operational reliability of the applicable transmission system or transmission systems; or provide system resilience between regions of the applicable transmission system or transmission systems; will maximize, to the extent reasonable and economical, the use of— existing facility sites; and the transmission capabilities of existing electric transmission facilities; and will, to the extent practicable, minimize the use of eminent domain. Not later than 18 months after the date of enactment of this section, the Commission shall issue regulations specifying— a pre-filing process during which a person described in subsection (b)(1) and the Commission shall consult with— the State commission for each State through which the applicable electric transmission facility will traverse; appropriate Federal agencies; each Indian Tribe that may be affected by the proposed project to construct, modify, or operate an electric transmission facility; and the appropriate Transmission Organization; the form of, and information to be contained in, an application submitted under subsection (b)(1); requirements for determining whether the applicable electric transmission facility will— traverse not fewer than 2 States; be used for the transmission of electric energy in interstate commerce; and have a power capacity of not less than 1,000 megawatts; criteria for determining the reasonable and economical use of— existing rights-of-way; and the transmission capabilities of existing towers or structures; the manner in which an application submitted under subsection (b)(1) shall be considered, which, to the extent practicable, shall be consistent with State statutory and regulatory policies concerning generation and retail sales of electricity in the States in which the electric energy transmitted by the electric transmission facility will be generated or sold; and the manner in which the Commission will consider the needs of communities that will be impacted directly by the applicable electric transmission facility, including how any impacts of the electric transmission facility could be mitigated or offset. The Commission shall publish in the Federal Register a notice of intent to prepare an environmental impact statement and a draft environmental impact statement with respect to an application for a certificate of public convenience and necessity that has been submitted under subsection (b)(1). The Commission shall provide not less than 60 days for public comment on each notice of intent and draft environmental impact statement published under subparagraph (A). The Commission shall provide to the individuals and entities described in paragraph (6)(B) a reasonable opportunity for presentation, in at least one public hearing, of any views and recommendations on each notice of intent and each draft environmental impact statement published under subparagraph (A). The Commission shall publish in the Federal Register notice of any hearing held under this subparagraph. In any proceeding before the Commission to consider an application for a certificate of public convenience and necessity under this section, the Commission shall— publish a notice of the application in the Federal Register; provide written notice of such application to all affected landowners in accordance with subsection (c); and provide to the individuals and entities described in subparagraph

(B)a notice and reasonable opportunity for the presentation in at least one public hearing of any views and recommendations with respect to the need for, and impact of, the construction, modification, or operation of the electric transmission facility proposed to be constructed, modified, or operated under the certificate. The individuals and entities referred to in subparagraph

(A)are— an agency, selected by the Governor (or equivalent official) of the applicable State, of each State in which the electric transmission facility proposed to be constructed, modified, or operated under the applicable certificate of public convenience and necessity is or will be located; each affected landowner; and as determined by the Commission— each affected Federal agency; and each Indian Tribe that may be affected by the proposed construction, modification, or operation. The Commission may not— require an applicant for a certificate of public convenience and necessity under this section to provide any notice required under this section; or enter into a contract to provide any notice required under this section with— the applicant for the applicable certificate of public convenience and necessity; or any other person that has a financial interest in the project proposed in the application for such certificate. A person desiring a certificate of public convenience and necessity under this section shall submit to the Commission an application at such time, in such manner, and containing such information as the Commission may require. An application submitted to the Commission under paragraph

(1)shall include all information necessary for the Commission to make the finding described in subsection (a)(3). The Commission shall provide written notice of an application submitted under subsection (b)(1) to all affected landowners with respect to the electric transmission facility for which such application was submitted in accordance with this subsection. Any notice provided to an affected landowner under paragraph

(1)shall include the following: The following statement in 14-point bold typeface: “‘The [name of applicant] has proposed building power lines that will cross your property, and may also require building transmission towers on your property. If the Federal Energy Regulatory Commission approves [applicant]’s proposed project, then [applicant] may have the right to build transmission towers on, and power lines over, your property, or use your property to construct the proposed project, subject to paying you just compensation for the loss of your property. “‘If you want to raise objections to, offer support for, or otherwise comment on this, or otherwise comment on this project, you can do so by submitting written comments to the Federal Energy Regulatory Commission Docket No. [___]. You can do this electronically or by mail. To do so electronically [to be inserted by the Commission]. To do so by mail [to be inserted by the Commission].’. A description of the proposed project to construct, modify, or operate an electric transmission facility, including— the location of the proposed project (including a general location map); the purpose of the proposed project; and the timing of the proposed project. The name of, and the location in the docket of the Commission at which may be found, each submission by the applicant to the Commission relating to the proposed project. A general description of what the applicant will need from the landowner if the proposed project is approved, including the activities the applicant may undertake and the facilities that the applicant may seek to construct on the property of the landowner. A description of how the landowner may contact the applicant, including— a website; an email address; a local or toll-free telephone number; and the name of a specific person to contact who is knowledgeable about the proposed project. A description of how the landowner may contact the Commission, including— a website; an email address; a local or toll-free telephone number; and the name of a specific person to contact who is knowledgeable about the proposed project. A summary of the rights that the landowner has— before the Commission; and in other proceedings under— the Federal Rules of Civil Procedure; and the eminent domain rules of the relevant State. Any other information that the Commission determines to be appropriate. An applicant for a certificate of public convenience and necessity under this section shall submit to the Commission, together with the application for the certificate, the name and address of each affected landowner. Except as provided in paragraph

(2)and notwithstanding section 216(i), no State shall regulate any aspect of the siting or permitting of an electric transmission facility constructed, modified, or operated under a certificate of public convenience and necessity issued under this section. Nothing in this section affects the rights of States under— the Coastal Zone Management Act of 1972 ( 16 U.S.C. 1451 et seq. ); the Federal Water Pollution Control Act ( 33 U.S.C. 1251 et seq. ); the Clean Air Act ( 42 U.S.C. 7401 et seq. ); or division A of subtitle III of title 54, United States Code (formerly known as the National Historic Preservation Act ). No right-of-way over or across Tribal land may be granted pursuant to this section unless consent for the right-of-way has been obtained from the proper Tribal official in a manner consistent with the requirements of section 2 of the Act of February 5, 1948 (62 Stat. 18, chapter 45; 25 U.S.C. 324 ). Any person aggrieved by an order of the Commission issued under this section may obtain review of the order in— the court of appeals of the United States for any judicial circuit in which the electric transmission facility to be constructed, modified, or operated under the applicable certificate of public convenience and necessity is or will be located; or the United States Court of Appeals for the District of Columbia Circuit. A person may obtain review under paragraph

(1)by filing in the applicable court a written petition praying that the order of the Commission be modified or set aside in whole or in part. A petition under subparagraph

(A)shall be filed by not later than 60 days after the date on which the applicable order of the Commission is published in the Federal Register. Notwithstanding any other provision of this Act, a person aggrieved by an order of the Commission issued under this section need not— have been a party to the proceedings before the Commission in which that order was issued in order to obtain judicial review of the order under this subsection; or have requested rehearing before the Commission prior to seeking judicial review. The holder of a certificate of public convenience and necessity may acquire through the exercise of the right of eminent domain in a court described in paragraph

(2)any right-of-way, land, or other property that is necessary to construct, modify, or operate an electric transmission facility in accordance with such certificate if the holder has, in the determination of the Commission, made good faith efforts to engage with landowners and other stakeholders early in the permitting process established under this section, and— cannot acquire the necessary right-of-way, land, or other property by contract; is unable to agree with the owner of the right-of-way, land, or other property with respect to the compensation to be paid for that right-of-way, land, or other property; or cannot clear defective title with respect to the right-of-way, land, or other property. A court referred to in paragraph

(1)is— the district court of the United States for the district in which the applicable right-of-way, land, or other property is located; or the appropriate State court. The holder of a certificate of public convenience and necessity may not exercise the right of eminent domain under this subsection with respect to any property covered by the certificate unless the Commission has first, in addition to publishing the notice of certificate of public convenience and necessity in the Federal Register, provided all affected landowners with notice of— the order; and the procedures for obtaining judicial review of such order under subsection (e), including a description of the time period for seeking judicial review under that subsection. A holder of, or applicant for, a certificate of public convenience and necessity shall have any property that the holder or applicant seeks to acquire through the exercise of the right of eminent domain under subsection

(f)appraised in accordance with generally accepted appraisal standards by an appraiser selected by the owner of the property, subject to subparagraph (D). The applicable holder of, or applicant for, a certificate of public convenience and necessity shall pay for each appraisal carried out under subparagraph (A). The owner of the applicable property (or a designated representative of the owner) shall be given the opportunity to accompany the appraiser during any inspection of the property that is part of an appraisal under subparagraph (A). An appraisal under subparagraph

(A)shall be carried out before— the holder of, or applicant for, the certificate of public convenience and necessity makes an offer of just compensation under paragraph (2); or the holder of the certificate of public convenience and necessity commences an action or proceeding to exercise the right of eminent domain under subsection (f). If the owner of the applicable property does not select an appraiser under subparagraph

(A)by the date that is 60 days after the date on which the holder of, or applicant for, the applicable certificate of public convenience and necessity requests that the owner do so, the holder or applicant shall have the right to select the appraiser. Any offer of just compensation made to an affected landowner of property that is or will be covered by a certificate of public convenience and necessity— shall be made in writing; may not be for an amount less than the fair market value of the property, as determined by an appraisal carried out under paragraph (1); and shall include compensation for— any lost income from the property; and any damages to any other property of the owner. The holder of a certificate of public convenience and necessity may not make an offer of just compensation to an affected landowner until the date that is 30 days after the date on which the Commission provides a notice to the affected landowner under subsection (f)(3). A district court of the United States shall only have jurisdiction of an action or proceeding to exercise the right of eminent domain under subsection

(f)if the amount claimed by the owner of the property to be condemned exceeds $3,000. A district court of the United States shall have no jurisdiction to condemn any interest in Tribal land. In any action or proceeding to exercise the right of eminent domain under subsection (f), a court— may condemn an interest in property only to the extent necessary for the specific facilities described in the applicable certificate of public convenience and necessity; and may not— condemn any other interest; or condemn an interest for any purpose not described in that certificate. With respect to any action or proceeding to exercise the right of eminent domain under subsection (f), an owner of property that is covered by the applicable certificate of public convenience and necessity shall not be required to surrender possession of that property unless the holder of the certificate— has paid to the owner the award of compensation in the action or proceeding; or has deposited the amount of that award with the court. A holder of a certificate of public convenience and necessity that commences an action or proceeding to exercise the right of eminent domain under subsection

(f)shall be liable to the owner of any property condemned in that proceeding for the costs described in subparagraph

(B)if the amount awarded to that owner for the property condemned is more than 125 percent of the amount offered to the owner by the holder before the commencement of that action or proceeding. The costs referred to in subparagraph

(A)are litigation costs incurred for the action or proceeding described in that subparagraph by the owner of the property condemned, including— reasonable attorney fees; expert witness fees and costs; and reasonable travel costs to participate in proceedings. An affected landowner the property of which has been acquired by eminent domain under subsection

(f)shall have the right— to enforce any condition in the applicable certificate of public convenience and necessity; and to seek damages for a violation of any condition described in subparagraph (A). The district courts of the United States shall have jurisdiction over any action arising under paragraph (1). An individual or entity from which an interest in property is acquired through the exercise of the right of eminent domain under subsection

(f)by the holder of a certificate of public convenience and necessity that is issued for the construction, modification, or operation of an electric transmission facility may demand that the holder of the certificate surrender that interest to that individual or entity if— the electric transmission facility is not in operation (as modified, in the case of a modification of an electric transmission facility) by the date specified in the certificate (including any modification of the certificate by the Commission); and there is no request for the extension of that date pending before the Commission; or subject to clause (ii), the holder of the certificate, with the approval of the Commission, abandons the portion of the electric transmission facility that is located on the applicable property relating to that interest. The Commission may not approve in a certificate of public convenience and necessity issued under this section or in any subsequent proceeding the abandonment of all or any part of an electric transmission facility unless the Commission requires the holder of the applicable certificate of public convenience and necessity to offer to each individual or entity described in clause

(i)the option of having the property acquired from that individual or entity as described in that clause restored to the condition that the property was in prior to the issuance of the certificate. If an individual or entity described in subparagraph (A)(i) demands the surrender of an interest under that subparagraph, the holder of the applicable certificate of public convenience and necessity shall be entitled to repayment of an amount equal to not more than 50 percent of the condemnation award relating to the interest. The district courts of the United States shall have jurisdiction over any action arising under this paragraph. An individual or entity from which an interest in property is acquired through the exercise of the right of eminent domain under subsection

(f)that proves, by a preponderance of the evidence, that the individual or entity has granted a right-of-way or any other property interest based on a material misrepresentation made by or on behalf of an applicant for, or holder of, a certificate of public convenience and necessity under this section concerning the electric transmission facility to be constructed, modified, or operated under the certificate shall have the right to rescind the transaction. The district courts of the United States shall have jurisdiction over any action arising under clause (i). A material misrepresentation made by an applicant for, or holder of, a certificate of public convenience and necessity, or on behalf of such an applicant or holder, to an affected landowner concerning the electric transmission facility to be constructed, modified, or operated under the certificate, shall be considered to be a violation of this part for purposes of section 316A and such applicant or holder shall be assessed a civil penalty by the Commission in accordance with such section 316A, except the amount of such civil penalty may not exceed $10,000 per affected landowner to whom the misrepresentation was made. In this section: The term affected landowner includes each owner of a property interest in land or other property described in subparagraph (B), including— the Federal Government; a State or local government; and each owner noted in the most recent county or city tax record as receiving the relevant tax notice with respect to that interest. The land or other property described in this subparagraph is any land or other property— that is directly affected by the proposed construction, modification, or operation of an electric transmission facility, including all facility sites; that is located within the greater of— 0.25 miles from a proposed facility site for an electric transmission facility; or a minimum distance from the proposed electric transmission facility as specified by State law; or contains a residence that is within 3000 feet of a proposed facility site for an electric transmission facility. The term alternating current transmission facility means a transmission facility that uses alternating current for the bulk transmission of electric energy. The term electric transmission facility means, as applicable— an alternating current transmission facility; a high-voltage, direct current transmission facility; or infrastructure associated with an alternating current transmission facility or a high-voltage, direct current transmission facility, including substations and switchyards. The term facility site includes— an area covered by a right-of-way; an access road; a contractor yard where equipment and material are stored or where assembly work is conducted; and any temporary workspace. The term high-voltage, direct current transmission facility means a transmission facility that uses direct current for the bulk transmission of electric energy. The term Tribal land has the meaning given the term Indian land in section 2601 of the Energy Policy Act of 1992 ( 25 U.S.C. 3501 ). . Section 216 of the Federal Power Act ( 16 U.S.C. 824p ) is amended— in subsection (b)(2), by inserting (including transmission of electric energy from the outer Continental Shelf to a State) after interstate commerce ; in subsection (c), by adding at the end the following: Subject to subparagraph (B), the Commission shall allow a person to file an application for a permit under subsection (b), and may begin evaluation of such application, even if the relevant electric transmission facility is not in a national interest electric transmission corridor designated by the Secretary under subsection

(a)at the time the application is filed. The Commission shall cease all evaluation of an application described in subparagraph

(A)if, two years after the application is filed with the Commission, the relevant electric transmission facility is not in a national interest electric transmission corridor designated by the Secretary under subsection (a). The Commission may resume evaluation of such application if, after ceasing evaluation under this subparagraph, a national interest electric transmission corridor is designated by the Secretary under subsection

(a)and the relevant electric transmission facility is in such national interest electric transmission corridor. ; and in subsection (h)— by amending paragraph

(2)to read as follows: For the purposes of coordinating all applicable Federal authorizations and related environmental reviews— the Commission shall act as the lead agency in the case of— except as provided in subparagraph (B), an electric transmission facility in a national interest electric transmission corridor designated by the Secretary under subsection (a); or an electric transmission facility for which an application has been submitted for a certificate of public convenience and necessity under section 229; the Department of the Interior shall act as the lead agency in the case of an electric transmission facility in a national interest electric transmission corridor designated by the Secretary under subsection

(a)that is located on a lease, easement, or right-of-way granted by the Secretary of the Interior under section 8(p)(1)(C) of the Outer Continental Shelf Lands Act ( 43 U.S.C. 1337(p)(1)(C) ); and the Department of Energy shall act as the lead agency in the case of any other electric transmission facility. . in each of paragraphs (3), (4)(B), (4)(C), (5)(B), (6)(A), (7)(A), (8)(A)(i), and (9), by striking Secretary each place it appears and inserting applicable lead agency ; in paragraph (4)(A), by striking As head of the lead agency, the Secretary and inserting The applicable lead agency ; in paragraph (5)(A), by striking As lead agency head, the Secretary and inserting The applicable lead agency ; and in paragraph (7)— in subparagraph (A), by striking after the date of enactment of this section and inserting after the date of enactment of the ; and Clean Electricity and Transmission Acceleration Act of 2023 in subparagraph (B), by amending clause

(i)to read as follows: Not later than six months after the date of enactment of the Clean Electricity and Transmission Acceleration Act of 2023 , the Secretary, the Commission, and the heads of all Federal agencies with authority to issue Federal authorizations shall enter into a memorandum of understanding to ensure the timely and coordinated review and permitting of electric transmission facilities. . Section 219(b)(4)(B) of the Federal Power Act ( 16 U.S.C. 824s(b)(4)(B) ) is amended by striking section 216 and inserting sections 216 and 229 .

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