NORWICH – The federal government says it will only be supplementing a state’s authority to accept or reject a power line, although it’s given itself the power to override it.
As a stipulation of the 2005 Energy Policy Act, the Federal Energy Regulatory Commission has authorized a multi-faceted final rule regarding its awaited and unprecedented jurisdiction over the energy policies of individual states. One of those facets allows FERC to step in and take-up the review of a power line project, even if an accredited and established state agency, such as the Public Service Commission in New York state, has already denied the proposal based on its regulatory and technical qualifications.
Suedeen Kelly, one of five FERC Commissioners, states she was “surprised” by the commission’s self-guided intrusion into the states’ autonomy.
“States have always had exclusive, plenary jurisdiction over transmission siting,” said Kelly, who was the lone dissenter on the Nov. 16 majority decision. “It gives states two options: either issue a permit, or we’ll do it for them. Obviously this is no choice. This is preemption.”
The final rule comes in anticipation of the 2005 Energy Act’s call for the designation of National Interest Electric Transmission Corridors, expected in 2007, which could engulf a chunk of southeastern New York state – an area already deemed in August to be severely congested by the U.S. Department of Energy – and leave it open to the new FERC jurisdiction. The expected corridor designation could potentially play a role in Albany-based New York Regional Interconnect Inc.’s bid to construct a 200-mile long high voltage power line from Oneida to Orange County, splitting 44 miles of Chenango County, in what the company claims is an effort to relieve downstate electricity constraints. NYRI requested and was not granted an early corridor designation from the DOE for its proposed route, and in July its project was deemed deficient at the state level by the PST. NYRI has yet to offer the corrected deficiencies, and has not given a time frame as to when those corrections will be completed.
“I’d be very disappointed if the federal government stepped in,” said Town of Sherburne Supervisor Harry W. Conley, whose municipality would be bisected by the pending NYRI power line. “We (Sherburne) don’t want it and the county doesn’t want it. I don’t think the federal government would ever do something like that. That’s going too far.”
FERC Chairman Joseph T. Kelliher claims the commission’s ruling will not overrule state authority.
“Federal transmission siting supplements state siting, it does not supplant state siting,” states Kelliher in a released statement. “We recognize that as a practical reality states will continue to site most transmission facilities. Federal jurisdiction to site transmission projects under the Energy Policy Act of 2005 is limited.”
Kelliher explains that the commission can only step-in to review a power line project under a certain set of circumstances, which includes if a state “withholds approval” on a proposal for more than one year. However, the commission also asserts, “we believe that a reasonable interpretation of the language in the context of the legislation supports a finding that withholding approval includes denial of an application,” even if done so within the prescribed one-year window.
“The bottom line is that this is what they believe the intent of the Energy Policy Act is,” said FERC spokeswoman Barbara Connors, who reaffirmed that the rules will only apply to areas within national interest corridors. “That’s why they voted for it.” In an Aug. 4 article in The Evening Sun, Connors had said she did not read the legislation as allowing FERC to step-in if a project was denied, only if it was not acted upon within one year.
“I have trouble believing that FERC would want to get involved with a 200 mile-long project that begins and ends within one state,” said Chenango County Chamber of Commerce President and CEO Dave Hall, who also is a chair on the Regional Congress in opposition of NYRI. “I’d just be flabbergasted if that were to happen.”
Other significant parts of FERC’s final rule state that a project within a corridor can only file for FERC intervention after the allotted one year state review period is up. The commission also states that it “will not countenance” the behavior of companies within a corridor that provide incomplete applications on-purpose, and then wait the one year without actively seeking state approval in an effort to invoke federal involvement.
FERC can take over power line proceedings if; a state does not have the authority to site power lines; the power line would not serve customers in the state in which it is built; or if a permit is granted with certain conditions that would limit or eliminate the benefits of the project, or make it unfeasible.