119 FERC ¶ 61,154

UNITED STATES OF AMERICA 

FEDERAL ENERGY REGULATORY COMMISSION 

Before Commissioners: Joseph T. Kelliher, Chairman; 

 Suedeen G. Kelly, Marc Spitzer, 

 Philip D. Moeller, and Jon Wellinghoff. 

Regulations for Filing Applications 

for Permits to Site Interstate Docket No. RM06-12-001 

Electric Transmission Facilities 

 

ORDER DENYING REHEARING 

(Issued May 17, 2007) 

1. On November 16, 2006, the Commission issued a Final Rule in this proceeding.1

 

In the Final Rule, the Commission implemented new regulations in accordance with 

section 1221 of the Energy Policy Act of 2005 (EPAct 2005) to establish filing 

requirements and procedures for entities seeking to construct electric transmission 

facilities. The regulations also provided for the coordination of the processing of requests 

for federal authorizations and for conducting an environmental review in association with 

a proposal to construct or modify electric transmission facilities in national interest 

electric transmission corridors (national corridors). 

2. Several parties requested rehearing of the Final Rule.2

 The primary focus of the 

requests for rehearing is the scope of the Commission’s jurisdiction under new Federal 

 1 Regulations for Filing Applications for Permits to Site Interstate Electric 

Transmission Facilities, Order No. 689, 71 Fed. Reg. 69,440 (Dec. 1, 2006), FERC Stats. 

& Regs. ¶ 31,234 (2006)(Final Rule). 

2

 Communities Against Regional Interconnection (CARI), Edison Electric Institute 

(EEI), Iowa Utilities Board (Iowa UB), Maine Public Utilities Commission and the 

Maine Public Advocate (jointly Maine PUC), Minnesota Public Utilities Commission and 

Minnesota Department of Commerce (jointly Minnesota PUC), National Association of 

Regulatory Utility Commissioners (NARUC), National Rural Electric Cooperative 

Association (NRECA), New York Public Service Commission (New York PSC), 

Piedmont Environmental Council (Piedmont). 
Docket No. RM06-12-001 - 2 -

Power Act (FPA) section 216(b)(1)(C)(i). That section provides that the Commission 

may issue a permit for the construction of electric transmission facilities in a national 

corridor if it finds that a state commission or other entity that has authority to approve the 

siting of the facilities has “withheld approval for more than 1 year after the filing of an 

application seeking approval pursuant to applicable law or 1 year after the designation of 

the relevant national interest electric transmission corridor, whichever is later; . . . .” 

Specifically, parties contest the Commission’s determination that the phrase “withheld 

approval” can reasonably be interpreted to include a state’s lawful denial of an 

application to site transmission facilities. 

3. Other aspects of the Final Rule that were raised on rehearing include, among 

others: (1) the Commission’s determination to address its jurisdiction over a proposed 

project when it issues an order on the merits of an application; (2) the Commission’s 

policy not to commence its pre-filing process until one year after a complete application 

is filed with the state; (3) the weight that will be given an independent agency’s 

determination of the need for a project; (4) the extent of authority delegated to the 

Commission by DOE; and (5) various NEPA-related issues. 

I. Background

4. Section 1221 of EPAct 2005 adds a new section 216 to the FPA providing for 

federal siting of electric transmission facilities under certain circumstances. Section 216 

requires that the Secretary of the Department of Energy (DOE or Secretary) identify 

transmission constraints and designate certain constrained areas as national corridors. 

Section 216(b) provides that the Commission may issue permits to construct or to modify 

electric transmission facilities in a national corridor under certain circumstances. 

5. In addition to responsibilities assigned to the Commission by statute, DOE 

delegated to the Commission its lead agency responsibilities for the purpose of 

coordinating all applicable federal authorizations and related environmental review and 

preparing a single environmental review document for facilities within the Commission’s 

siting jurisdiction.3

 With respect to such projects, the Commission will establish prompt 

and binding intermediate milestones and ultimate deadlines to help ensure that all federal 

permits are issued, and reviews are completed, within a year, or as soon as practicable 

thereafter. 

6. FPA section 216(c)(2) requires that the Commission issue rules specifying the 

form of, and the information to be contained in, an application for proposed construction 

or modification of electric transmission facilities in national corridors, and the manner of 

 3

 Department of Energy Delegation Order No. 00-004.00A. 
Docket No. RM06-12-001 - 3 -

service of notice of the permit application on interested persons. To that end, the 

Commission issued a Notice of Proposed Rulemaking (NOPR) on June 16, 2006, seeking 

comments on the Commission’s proposal to comply with section 216. 4 After considering 

comments on the NOPR, the Commission issued its Final Rule implementing those 

regulations in a new Part 50 of existing subchapter B of its regulations. The procedures 

also required certain modifications to other existing regulations, including the 

Commission’s regulations implementing the National Environmental Policy Act of 1969 

(NEPA) in Part 380. 

II. Discussion

 A. Withheld Approval/Denying Applications

7. As stated, section 216(b)(1)(C), provides that the Commission may issue a permit 

for the construction of electric transmission facilities in a national corridor if it finds that 

a state commission or other entity that has authority to approve the siting of the facilities 

has “withheld approval for more than 1 year after the filing of an application seeking 

approval pursuant to applicable law or 1 year after the designation of the relevant national 

interest electric transmission corridor, whichever is later; . . .” 

8. In the Final Rule, the Commission noted that section 216(b)(1)(C) did not 

explicitly define the full range of state actions that are deemed to be withholding 

approval. In response to requests that the Commission determine if a state’s lawful 

denial of a request to site an electric transmission facility would be deemed to be 

withholding approval, the Commission stated that a reasonable interpretation of the 

language in the context of the legislation did indeed support a finding that withholding 

approval includes such a denial. 

9. CARI, Piedmont, Minnesota PUC, and New York PSC request rehearing of the 

Commission’s determination that the phrase “withheld approval” can reasonably be 

interpreted to include a state’s lawful denial of an application to site transmission 

facilities.5

 4 Regulations for Filing Applications for Permits to Site Interstate Electric 

Transmission Facilities, 71 Fed. Reg. 36,258 (June 26, 2006); FERC Stats. & Regs. 

¶ 32,605 (2006). 

5

 We note that agencies from only two states, New York and Minnesota, question 

the Commission’s finding that it may assert jurisdiction over a proposed facility if a state 

denies an application. Further, NARUC did not seek rehearing on this issue. 
Docket No. RM06-12-001 - 4 -

 1. The Commission’s Interpretation of the Phrase 

 “Withheld Approval” and the Effect of the Phrase “for more 

 than 1 year”

10. On rehearing, CARI, Piedmont, Minnesota PUC, and New York PSC argue that 

when “withheld approval” is read in the context of “withheld approval for more than 1 

year,” it cannot mean “deny” because that interpretation would render the phrase “for 

more than 1 year” superfluous. Piedmont argues that while “withheld” and “denied” can 

be synonyms as used in certain contexts, “context is king” in construing a statute.6

 CARI 

asserts that the Commission’s attempt to use dictionary definitions of the terms 

“withhold” and “deny” does not support its interpretation. It states that the 

Commission’s approach is backwards, as though Congress actually used the term 

“denial” in the statute rather than “withheld.” CARI argues that the term carefully 

chosen by Congress was “withheld,” and based both on the common dictionary 

definitions and the canons of statutory interpretation, that term clearly does not include a 

valid, formal administrative denial appealable to a state court. 

11. We find the parties’ arguments unpersuasive. The Commission continues to 

believe that a reasonable interpretation of the language of the legislation supports a 

finding that a state’s withholding approval includes a state’s denial of an application.7

 

The parties argue that the concept of a state having “denied approval for more than 1 

year” is nonsensical, and thus, the word “withheld” cannot be interpreted to include 

“denied.” However, that argument ignores the fact that the term as used in the EPAct 

2005 is inclusive, comprising “denying” approval as well as “refraining” or “holding 

back” from granting approval. The parties “nonsensical” reading can only be rendered by 

reading “withheld approval” to only mean “deny,” while the Final Rule interprets it to 

mean both “deny” and “failure to act.” We believe the most common sense reading of 

“withheld approval for more than 1 year” encompasses any action – whether it is a failure 

to act or an outright denial – that results in an applicant not having received state 

approval at the end of one year. 

 6 Citing Wachovia Bank v. United States, 455 F.3d 1261, 1268 (11th Cir. 

2006)(“we do not read words . . . in isolation” but instead “in context” and “try to make 

them and their near and far kin make sense together, have them singing on the same note, 

as harmoniously as possible”). 

7 Perrin v. United States, 444 U.S. 37, 42 (1979)(finding a fundamental canon of 

statutory construction is that, unless otherwise defined, words will be interpreted as 

taking their ordinary, contemporary, common meaning). 
Docket No. RM06-12-001 - 5 -

12. As noted in the Final Rule, the transmission siting language first appeared in 

legislation considered in the House of Representatives in 2003. That measure (H.R. 6) 

allowed the Commission to exercise jurisdiction where a state entity with transmission 

siting authority “has withheld approval, conditioned its approval in such a manner that 

the proposed construction or modification will not significantly reduce transmission 

congestion in interstate commerce and is otherwise not economically feasible, or delayed 

final approval for more than one year after the filing of an application seeking 

approval . . . .”8

 The report language accompanying the above legislative text states, 

“The section provides that for such lines, persons may obtain a permit from FERC and 

exercise eminent domain if, after one year, a State is unable or refuses to site the line.”9

 

The Commission stated that the fact that this precursor to the transmission siting 

provision of EPAct 2005 distinguished “withholding approval” from “delaying final 

approval for more than one year” and was interpreted to include a state “refusing to site a 

line” supports its conclusion that “withholding approval” was intended to mean 

something beyond a failure to act. 

13. Piedmont and CARI contend that the Commission cannot rely on an earlier 

proposed bill which was never enacted to support its interpretation that Congress meant 

something more than mere delay or failure to act when it retained the term “withheld 

approval” and dropped “delayed final approval” in the enacted version. CARI contends 

that there is no legislative history indicating why the language was changed or if the issue 

was ever addressed, and as such, no significance should be attributed to it. Piedmont 

agrees that a state’s inability to site a transmission line or refusal to act because of 

political opposition or lack of time and experience would trigger the Commission’s 

jurisdiction under section 216. It argues, however, that neither inability nor refusal to act 

is the same as a state or local decision to deny approval made in a timely fashion. 

14. CARI also points to Senate Report 109-78 which states that EPAct 2005 would 

authorize the Commission “to issue siting permits if a State withholds approval 

inappropriately,” in contending that it is clear that the conditional jurisdiction granted to 

the Commission applies only when a state is unable to act, refrains from acting through 

delay, or inappropriately refuses to act. CARI argues that Congress did not intend to give 

the Commission preemptive and appellate jurisdiction when a state licensing entity 

appropriately exercises its authority to determine the approval or denial of a license 

application. 

 8

 H.R. 6, 108th Cong. § 16012 (2003). 

9

 H.R. Rep No. 108-65 (April 6, 2003). 
Docket No. RM06-12-001 - 6 -

15. The Commission acknowledges, as do the parties seeking rehearing, that there is 

no definitive legislative history on point. However, we continue to believe that our 

interpretation of the phrase “withhold approval” to include denial of an application is 

reasonable. The Congressional Budget Office’s cost estimate for EPAct 2005 suggests a 

similar interpretation, stating: 

Section 1221 would authorize FERC to issue construction permits for 

electric transmission facilities in “interstate congestion areas” when a state 

has not acted on or has rejected a permit request.10

2. The Commission’s Jurisdictional Basis

16. The Minnesota PUC and New York PSC argue that Congress carefully carved out 

a limited role for the federal government in the area of transmission siting. They contend 

that section 216(b)(1) gives the Commission jurisdiction to site electric transmission 

facilities in five specific situations and that the Commission’s interpretation of section 

216(b)(1)(C)(i) would add a sixth basis for jurisdiction, allowing the Commission to 

approve the siting of transmission facilities under federal law in instances where the state 

has lawfully denied an application. The parties argue that this situation was never 

contemplated by Congress. 

17. Section 216(b)(1) sets forth three categories of circumstances which will give rise 

to Commission jurisdiction to act on a proposal to site transmission facilities. Section 

216(b)(1)(A) covers instances where a state does not have authority to site the proposed 

facilities or to consider interstate benefits expected to be achieved. Section 216(b)(1)(B) 

covers instances where the applicant does not qualify to use the siting authority of the 

state. Section 216(b)(1)(C) covers a third category of circumstances – those where a state 

has the authority to site the proposed facilities and the applicant is qualified to avail itself 

 10 H.R.Rep. No. 109-215, at 227 (2005). In addition, a July 2005 report prepared 

by the Minority Staff Special Investigations Division of the Committee on Government 

Reform states that: 

Under section 1221 of H.R. 6, DOE may designate “interstate congestion 

areas” within which state and local authority to deny or condition a 

transmission line permit request is severely limited. If a state denies a 

permit, places certain conditions on a permit, or has not acted on a permit 

within one year for any reason, including lack of information provided by 

the applicant, DOE can step in and issue the permit. Staff of H. 

Commission on Government Reform- Minority Staff Special Investigations 

Division, 109th Cong., Energy Bill Preempts States and Localities 3 

(Comm. Print 2005). 
Docket No. RM06-12-001 - 7 -

of that authority, but where the state, for whatever reason, has failed to authorize the 

facilities within a one-year period. Under section 216(b)(1)(C), the Commission has 

jurisdiction to act not only where the state has delayed granting authorization, including, 

as we have interpreted it, explicitly denying authorization, but also where the state has 

granted authorization, but has conditioned its approval in a manner which would fail to 

relieve transmission congestion. There is no definitive legislative history regarding 

Congress’s choice of the word “withheld,” but, the underlying purpose of section 216 is 

to facilitate the process of siting critical regional transmission lines and facilities, 

ensuring adequate capacity and increased reliability on the electric transmission grid.11 

Thus, the Commission’s interpretation of the term “withheld approval” in the context of 

the statute furthers the goals, purpose, and intent of the statute. 

 3. Congress’s Use of the Phrase “does not act” Elsewhere in 

 EPAct 2005

18. In support of its interpretation of the term “withheld approval,” the Commission 

pointed out that in amending FPA section 203 in section 1289 of EPAct 2005, Congress 

specifically used the language “does not act,” to define the consequences leading to a 

merger application being deemed approved. The Commission reasoned that Congress’s 

use of the different phrase “withheld approval” in section 1221 indicated an affirmative 

expression of a different intent. Piedmont argues that sections 203 and 216 deal with 

fundamentally different subject matter and regulatory processes, and, therefore, the 

inconsistency of the language should be given no weight. 

19. Despite the fact that sections 203 and 216 address different regulatory situations, 

the Commission has an obligation to construe the legislation as a whole in such a manner 

as to give every word some operative effect. Interpreting the phrase “withheld approval” 

to mean the same as “does not act” would fail to do this. Further, we note that section 

216(h)(6)(A) also uses the phrase “fails to act” in reference to other federal approvals. 

The Commission believes it is reasonable to conclude that if Congress had simply meant 

“failure to act” in the context of section 216, it would have used that language as, in fact, 

it did in section 216(h)(6)(A) in establishing procedures available when an agency “has 

 11 In Representative Todd Tiahrt’s speech in the House of Representatives on 

April 21, 2005 in support of EPAct 2005 he states: 

H.R. 6 will improve our Nation’s electric transmission capacity and 

reliability. By providing for expedited siting processes on both Federal and 

private lands, transmission lines will be able to be more efficiently and 

quickly placed so power can be transmitted across the county. 151 Cong. 

Rec. E796 (2005). 
Docket No. RM06-12-001 - 8 -

failed to act” on a request for a federal authorization required for a transmission facility. 

Instead, Congress used the phrase “withheld approval,” which we interpret it to 

encompass both deny and failure to act. 

20. Congress provided a specific mechanism for states to prevent the Commission’s 

jurisdiction from attaching in that it granted consent in section 216(i) for three or more 

states to enter into interstate compacts. In such an instance, the “Commission shall have 

no authority to issue a permit for the construction . . . of an electric transmission facility 

within a State that is a party to a compact, unless the members of the compact are in 

disagreement and the Secretary makes . . . the finding described in subsection (b)(1)(C).” 

This is an example of Congress using very clear language to carve out a situation in 

which the Commission shall not have authority to permit siting of transmission facilities 

in the face of states having denied an application and lends credence to the Commission’s 

position that if Congress had not intended the Commission to have jurisdiction to site a 

transmission facility in the face of a denial of such authorization under other 

circumstances, it could have plainly said so. 

 4. Preemption

21. CARI, Piedmont, and Minnesota PUC urge the Commission to promulgate a 

narrow construction of the word “withheld,” citing the principle of statutory construction 

known as the “presumption against preemption.” The presumption recognizes that 

preemption of state law is an “extraordinary power in the federalist system.”12 The 

parties state that the Supreme Court has explained that when Congress legislates “in a 

field which the States have traditionally occupied . . . we start with the assumption that 

the historic police powers of the States were not to be superseded by the Federal Act 

unless that was the clear and manifest purpose of Congress.”13 CARI argues that 

because the phrase “withheld approval” is ambiguous, the Commission must overcome a 

presumption against federal preemption. 

22. The “presumption against preemption” cited by parties arises when there is a 

controversy concerning not the scope of the federal government’s authority to displace 

state action, but rather whether a given state authority conflicts with, and thus has been 

displaced by, the existence of the federal authority.14 We are not concerned here with the 

validity of any state law or regulation. Rather, the parties are disputing the scope of the 

authority granted the Commission in section 216 to act in certain circumstances. Such a 

 12 Citing Gregory v. Ashcroft, 501 U.S. 452, 460 (1996). 

13 Citing Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947); see also 

Metronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996). 

14 New York v. FERC, 535 U.S. 1, 17-18 (2002). 
Docket No. RM06-12-001 - 9 -

case does not involve a “presumption against preemption.” Instead, it calls for an 

examination of the statute to determine what powers Congress has conferred upon the 

agency, without any presumption one way or the other.15 

23. While the Commission has had broad authority over the transmission of electric 

energy in interstate commerce,16 traditionally, authority to site transmission facilities was 

left in the hands of the states. However, in enacting section 216, Congress affirmatively 

granted the Commission jurisdiction to site electric transmission facilities in a national 

corridor in any instance where the conditions enumerated in section 216(b) are met, 

clearly preempting the exclusive jurisdiction formerly held by the states. As discussed 

above, there is substantial textual and contextual support for the Commission’s 

reasonable determination that a state’s denial of a transmission application is within the 

meaning of withholding approval in section 216(b)(1)(C). Both section 216(b)(1)(A) and 

(B) are preemptive, so there is no question section 216(b)(1) is preemptive. We believe 

that if Congress had intended to limit the scope of its grant of authority in instances 

where a state has denied an application, it would have explicitly done so. 

B. Jurisdictional Determination

24. In the Final Rule, the Commission indicated that while the language in section 216 

would allow for simultaneous state and Commission siting processes where the states 

have the requisite authority, the Commission does not plan to commence its pre-filing 

process until one year after the relevant state application has been filed. On rehearing, 

CARI reiterates their argument that the Commission lacks authority to conduct its prefiling process before it receives jurisdiction under the statute. CARI contends that section 

216(b) provides for a grant of conditional, sequential authority, not parallel or 

overlapping jurisdiction. 

25. NARUC requests that the Commission adopt procedural rules that will provide an 

opportunity for a state siting authority to obtain a Commission ruling on whether the 

prerequisites set out in section 216 for federal jurisdiction have been met before the prefiling process begins. It contends that the Commission’s ability to initiate the pre-filing 

process under its siting authority in cases arising under section 216 (b)(C) is contingent 

upon the resolution of issues concerning the action or inaction of the state agency with 

original jurisdiction. 

26. Similarly, Maine PUC contends that it is inefficient for the Commission to address 

its jurisdiction in a final order on the merits of a proposed project because a lengthy 

proceeding could take place only to have the Commission ultimately reject the 

 

15 Id. at 18. 

16 16 U.S.C. § 824(a) (2005). 
Docket No. RM06-12-001 - 10 -

application before it for want of jurisdiction. Maine PUC also asserts that the proposed 

process might result in the Commission’s beginning the permitting process without 

proper authority. Maine PUC states that a more efficient approach is to have the 

Commission make a threshold, on the record, determination of jurisdiction. It argues that 

if there are disputed questions of fact or law as to whether the one-year period has 

elapsed or whether a state-imposed condition makes the project “not economically 

feasible,” such questions can and should be definitively settled before the pre-filing 

information gathering process commences. Maine PUC concludes that the pre-filing 

process should be bifurcated: first, the Commission should establish whether it has 

jurisdiction; and if it does, then it should proceed to gather information. 

27. FPA section 216 authorizes the Commission to issue permits to construct electric 

transmission facilities in national corridors if the Commission finds that the proposed 

facilities meet the requirements of section 216(b)(1) through (6). As we discussed in the 

Final Rule, the language of section 216 allows the Commission to issue a construction 

permit one year after the state siting process has begun and requires the Commission to 

render its decision one year after an application is filed with it. We believe we will need 

to develop a complete record before we can reach a determination concerning the 

findings required under section 216(b)(1), including a finding concerning the 

Commission’s jurisdiction over the proposed project. 

28. In essence, the filed application is the applicant’s assertion that the Commission 

has jurisdiction over the proposed project and authority to issue a permit to construct the 

facility. The Commission will review all the evidence before it and determine if the 

proposal meets all the requirements under section 216(b). If, based on that evidence, the 

Commission determines that the applicant has not demonstrated that the Commission has 

jurisdiction under section 216(b)(1), the Commission will dismiss the application. If all 

the requirements of section 216(b)(1) have been met, the Commission will assert 

jurisdiction and, make a determination on the merits of the proposed project. The 

Commission does not need jurisdiction to review an application for a proposed project to 

determine if, in fact, it has jurisdiction to act on the application. 

29. CARI also argues that the authority delegated to the Commission by DOE in 

section 216(h)(4)(C) to coordinate federal authorizations may not be held by the 

Commission before it has jurisdiction to authorize a proposed project. CARI asserts that 

until a national corridor is designated and the other statutory criteria in section 216(b) are 

met, the Commission has no authority over electric transmission facilities and would be 

acting beyond the authorization conferred under the governing statute.17

 17 Citing Houston Oil & Refining, Inc. v. FERC, 95 F.3d 1126, 1136 Fed. Cir. 

1996)(An agency is but a creature of statute that has no greater authority than that 

conferred under the governing statute). 
Docket No. RM06-12-001 - 11 -

30. FPA section 216(b) sets forth a series of findings the Commission must make 

before issuing a construction permit for electric transmission facilities in a national 

corridor. We agree that while the Commission cannot issue a permit to construct a 

proposed electric transmission facility until it determines that the statutory criteria in 

section 216(b) have been met, there is no requirement in section 216 that the Commission 

make findings regarding certain of the criteria before proceeding with its review of an 

application for such a permit in its entirety. Moreover, the time limits imposed by the 

statute preclude a general practice of considering and ruling on the jurisdictional aspects 

of an application before initiating our review of the merits of the proposal. If in a 

particular proceeding a state agency deems it necessary for the Commission to make a 

jurisdictional determination prior to issuing an order on the merits of the application, it 

can file a petition requesting a declaratory order or rule to terminate a controversy or 

remove uncertainty under section 385.207(a)(2) of the Commission’s regulations. 

C. Complete Application

31. CARI contends that the Commission’s Final Rule ignores the statutory language 

by failing to require in our regulations that the state application be determined complete 

under state law before the one-year state review period begins. It argues that without 

such a regulation, siting applicants could effectively subvert the primary siting authority 

reserved to the state by submitting a deficient application to the state, and then, after a 

year, seek federal authority to construct the transmission facility. CARI concludes that 

this clearly was not the intent of Congress in granting the Commission its conditional 

preemptive authority over electric transmission facility siting in national corridors. 

32. CARI asserts that while the Commission recognized that an applicant might not 

provide complete information to a state in the hopes of frustrating the state’s ability to act 

within one year, the Commission failed to explain how it expects to determine if the 

applicant has acted in good faith. CARI argues that the Commission ignored the clear 

language and intent of section 216(b) and is acting outside its statutory authority by not 

requiring that the one-year clock start only upon the state application being deemed 

complete by the state licensing authority. 

33. NARUC and Maine PUC encouraged the Commission to include a specific 

provision in its regulations stating that the federal pre-filing process will not commence 

until one year after the relevant state applications have been filed with the proper state 

body. Maine PUC states that while the Commission’s intent is clear from the order, it is 

not clearly articulated in the Commission’s regulations. It contends that the 

Commission’s regulations should provide the same direction given in the Final Rule. 
Docket No. RM06-12-001 - 12 -

34. The Commission does not believe it is necessary to codify its stated policy 

concerning the potential overlap of federal/state review of transmission applications in 

the regulations. The Commission’s regulations require that the applicant file information 

concerning the status of the applicant’s filings before state agencies at various points 

during the pre-filing process. Specifically, section 50.5(b)(3) requires that the applicant 

provide such information for the pre-filing consultation and section 50.5(c)(5) requires 

that the applicant file information concerning the state proceeding with its initial prefiling request. Finally, under section 50.6(e)(3)(i), the applicant must file evidence that 

the state withheld approval for more than one year after the filing of an application 

seeking approval under applicable law. 

35. If an issue arises in a given proceeding concerning the one-year state review 

process, the Commission will address that issue as appropriate. For example, if questions 

arise during pre-filing concerning the adequacy of the applicant’s effort to site the facility 

at the state level and Commission staff determines that more processing at the state level 

is appropriate, it will not hesitate to suspend the pre-filing process while the state process 

continues. 

36. Additionally, as stated in the Final Rule, the Commission believes that it is 

incumbent on project sponsors and states to work together to site facilities at the state 

level, as this would be the most expeditious way to site the facilities.18 To that end, the 

Commission will make its Dispute Resolution Service available if parties to a state siting 

proceeding desire assistance to facilitate the resolution of issues at the state level. 

D. Simultaneous Processes 

37. EEI urged the Commission to permit simultaneous filings to avoid wasteful 

duplication of effort and to expedite the entire process. It contends that by postponing 

commencement of the Commission’s pre-filing process, the Final Rule poses the 

likelihood of serious delay in the Commission’s review and approval of needed new 

transmission facilities. EEI argues that given Congress’ clear desire for expeditious 

action, the Commission should reconsider allowing the pre-filing process to occur 

simultaneously with the state pre-filing, application, and post-filing processes, so as to 

avoid unnecessary duplication of efforts by applicants and others involved. At a 

minimum, EEI requests that the Commission ensure that Commission staff give full 

credit for outreach, information gathering, and analyses already completed in front of 

other federal and state agencies, to the maximum extent possible, in order to avoid 

duplication of effort and to speed the siting of needed new transmission facilities in 

national corridors. 

 18 Final Rule at P 115. 
Docket No. RM06-12-001 - 13 -

38. The Commission believes that its approach of respecting state jurisdiction by 

providing the states with one full year to consider siting applications prior to the initiation 

of the Commission’s pre-filing process is consistent with Congress’s desire to recognize 

the states’ traditional authority to site electric transmission facilities under their 

applicable laws. Moreover, the Commission anticipates that most states will want the 

opportunity to also participate in the Commission’s process. Thus, simultaneous 

proceedings could place an undue burden on a state’s resources. The Commission 

believes that the states should be given a meaningful opportunity to fully process siting 

applications at the state level before federal proceedings on those projects commence. 

39. As stated in the Final Rule, the Commission will consider all activities an 

applicant has conducted prior to approaching the Commission to commence pre-filing. 

During pre-filing, the Commission will review the work an applicant has done at the state 

level, the amount of community outreach an applicant has conducted, and the results of 

that outreach in determining what further activities may be needed to process an 

applicant’s application for a permit.19 Further, the Commission will review all filings 

made in conjunction with any state proceedings to ensure, to the maximum extent 

possible, that the information developed in state proceedings can be used as appropriate 

before the Commission.20 

E. Not Economically Feasible

40. The Iowa UB seeks clarification that if the Commission considers siting a 

transmission line after a state commission has denied authorization for the proposed line, 

the Commission will give significant weight to legitimate, state-specific policies and 

requirements that caused the state to deny authorization. Further, the Iowa UB seeks 

clarification that the Commission does not interpret the language in the section 

216(b)(1)(C)(ii) allowing Commission proceedings when the state “conditioned its 

approval in such a manner that the proposed construction or modification ...is not 

economically feasible” to mean that if a state condition results in any cost increase, it will 

be preempted. Instead, it contends that reasonable costs for meeting important state 

policy goals should be acceptable to the Commission. 

41. In reviewing a request for a permit to site electric transmission facilities, the 

Commission will consider the record in its entirety, including any actions and findings 

made in the state proceeding. If an applicant is claiming federal jurisdiction based on 

section 216(b)(1)(C)(ii), the applicant will have to show not merely that there would be 

 19 Final Rule at P 95. 

20 Id. at P 124. 
Docket No. RM06-12-001 - 14 -

an increase in costs occasioned by state-imposed conditions, but that the increase in costs 

would render the project “not economically feasible.” In determining whether that is, in 

fact, the case, the Commission will give due weight to all the evidence in the record on 

that issue. We note that the statute does not distinguish costs related to “policy goals.” 

However, the Commission will consider whether conditions proposed by a state are 

required by the public interest. 

F. Public Interest Conditions

42. In the Final Rule, the Commission stated that it “will impose appropriate 

conditions necessary to avoid adverse economic, competitive, environmental, and other 

effects on the relevant interests from the construction of a new project, and will approve 

the project only where the public benefits to be achieved outweigh the adverse effects.”21 

EEI contends that this language could inappropriately be construed to suggest that the 

permit applicant has some obligation to make whole every affected party. It requests that 

the Commission clarify that there is no obligation to make whole every affected party, 

e.g., compensating a generator whose revenue decreases due to the elimination of a 

constraint. 

43. Protecting the public interest involves balancing the often-competing interests of 

individual parties which would be affected by a proposed project. The Commission will 

address the public interests considerations of each project on a case-by-case basis. 

However, the Commission does not anticipate imposing an obligation that all entities 

possibly affected by a proposed transmission facility be made whole. 

G. RTO/ISO Oversight

44. In the Final Rule the Commission agreed that determinations by an independent 

agency, such as an independent system operator (ISO) or regional transmission 

organization (RTO), should be given due weight in an assessment of whether a particular 

facility is needed to protect or benefit customers. Thus, the Commission determined that 

it will consider any such independent determination as a factor in determining whether 

the statutory criteria have been met. 

45. Piedmont contends that, in many instances, no weight is due the determination by 

an independent agency concerning the need for a proposed facility. It argues that the fact 

that a proposed electric transmission facility is being overseen by an ISO or RTO should 

not change the allocation of the burden of proof, since the existence of ISO or RTO 

oversight neither attests to whether an electric transmission facility is needed nor 

establishes whether a specific electric transmission facility is the optimal solution to a 

 21 Id. at P 42. 
Docket No. RM06-12-001 - 15 -

transmission system need. Piedmont states that the burden of proving that the criteria for 

eligibility for construction permits and eminent domain under section 216(b) have been 

met should remain on the applicant. 

46. The burden of proving that a construction permit should be issued for a proposed 

transmission facility rests upon the applicant. As stated, while the Commission will give 

the determination of an independent entity, such as an RTO, due weight in our 

assessment of whether a particular facility is needed to protect or benefit customers, we 

reiterate that such a determination will be merely one factor in the Commission’s 

evaluation. 

H. Joint Transmission Planning

47. NRECA reiterates its argument that the Commission should require applicants to 

demonstrate that they have conducted a truly open and inclusive joint transmission 

planning process before beginning the pre-filing process. It states that under FPA 

section 217(b)(4), the Commission is required to exercise its authority in a manner that 

facilitates the planning and expansion of transmission facilities to meet the reasonable 

needs of load-serving entities (LSEs) and enables LSEs to secure firm transmission rights 

on a long-term basis. It asserts that the Commission must recognize that a transmission 

upgrade does not serve the public interest as required under section 216(b)(3) unless it 

furthers the long-term transmission needs of all LSEs. Thus, NRECA concludes that the 

goals of section 217(b)(4) can only be met in the section 216 process if applicants for 

permits under section 216 have been required to participate in a truly open and inclusive 

joint planning process with all affected LSEs before beginning the pre-filing process. 

48. NRECA also argues that the Commission must interpret and implement section 

216 consistent with its statutory obligations under sections 205 and 206 that require that 

the Commission ensure that public utilities provide transmission service under rates and 

terms and conditions that are just and reasonable and not unduly discriminatory or 

preferential. It surmises that if a transmission plan is unjust, unreasonable, or unduly 

discriminatory and preferential under section 205 and 206 because it was developed 

without an open and inclusive process when included LSE transmission customers from 

the very beginning, it follows that the transmission plan is inconsistent with the public 

interest under section 216(b)(3). Therefore, NRECA concludes that the Commission 

must require applicants for permits under section 216 to demonstrate that they have 

conducted truly open and inclusive joint transmission planning processes before 

beginning the pre-filing process. 

49. Further, NRECA states that the Commission will fail to determine under section 

216(b)(5) and (6) that the proposed facility is consistent with sound national energy 

policy and will maximize to the extent reasonable and economical, the transmission 

capabilities of existing towers or structures, if it does not require the applicant to use an 

open and inclusive joint transmission planning process prior to initiating the pre-filing 
Docket No. RM06-12-001 - 16 -

process. It contends that without the full input of LSEs and transmission owners before 

pre-filing, the applicant cannot obtain the full scope of information required to design a 

transmission project that meets these criteria. It argues that a mere consultation process 

during pre-filing is too little, too late, to ensure that the statutory standards are met. 

50. Finally, NRECA states that while the Final Rule summarized its concerns that the 

Commission should require joint transmission planning, it did not adequately respond to 

them. NRECA states that the Commission’s comments that it expects that the applicant 

will conduct outreach activities at the planning level prior to commencing the 

Commission’s pre-filing process does not specify a joint planning process as part of the 

outreach activities. NRECA contends that such vague guidance by the Commission 

could be interpreted in widely different ways by stakeholders and could jeopardize the 

Commission’s efforts regarding efficient transmission planning. 

51. While the Commission encourages applicants for proposed electric transmission 

facilities to conduct an open and inclusive joint transmission planning process, we will 

not require such participation as a pre-condition to proposing to construct facilities. The 

Commission addressed the regional planning requirement in section 217 in Order No. 

890, where it required public utility transmission providers to amend their open-access 

transmission tariffs to require coordinated, open, and transparent transmission planning 

on both a local and regional level.22 The Commission also created a rebuttable 

presumption that projects resulting from regional planning qualify for incentive rate 

treatments. 23 We disagree that pre-filing is “a mere consultation process” that is “too 

little, too late.” The purpose of pre-filing is to seek input from all interested individuals 

so that those comments can be incorporated into the applicant’s plan for consideration by 

the Commission. In reviewing an application for a proposed facility, the Commission 

will review all planning activities the applicant conducted as part of its application 

process and will take that information into consideration in determining if the proposed 

facility is in the public interest. 

 22 See Preventing Undue Discrimination and Preference in Transmission Service, 

Order No. 890, 72 Fed. Reg. 12,226 (March 15, 2007), FERC Stats & Regs., ¶ 31,241, 

P 435 (2007)(requiring amendments to open access transmission tariffs to require 

coordinated, open, and transparent transmission planning on both a local and regional 

level). 

23 Promoting Transmission Investment through Pricing Reform, Order No. 679, 

71 Fed. Reg. 43,294 (July 31, 2006), FERC Stats. & Regs. ¶ 31,222 (2006), order on 

reh’g. Order No. 679-A, FERC Stats. & Regs. ¶ 30,901, PP110-11 (2007). 
Docket No. RM06-12-001 - 17 -

I. DOE Lead Agency

52. EEI contends that the Final Rule does not adequately reflect that applicants 

seeking siting approval are likely to have sought federal authorization from other federal 

agencies prior to filing with the Commission. It states that, on its face, DOE’s delegation 

of lead agency responsibility the Commission appears to be effective only upon the filing 

of an application to site electric transmission facilities in a national corridor and that the 

Commission’s Final Rule appears to have reflected that interpretation. EEI argues that, 

in practice, applicants seeking a permit from the Commission are likely to have sought 

authorizations from other federal agencies prior to filing an application with the 

Commission, in which case EEI concludes that DOE will have performed the lead agency 

function to that point. EEI states that the Final Rule does not adequately reflect this 

scenario, thereby increasing the likelihood that the lead agency process will not be 

effectively and timely implemented. 

53. EEI requests that the Commission work closely with DOE to revise the delegation 

order to more fully delegate lead agency responsibility to the Commission for all 

transmission facilities in national corridors. EEI also requests the Commission avoid a 

duplication of efforts to the maximum extent possible by actively participating in the 

DOE lead agency process and by giving full credit for work completed under that process 

prior to the applicant seeking a permit from the Commission. 

54. As stated in the Final Rule, the Memorandum of Understanding (MOU) entered 

into by the Commission, DOE, and several other federal agencies, establishes a 

framework for early coordination of all applicable federal authorizations that will be 

required to site an electric transmission facility. 24 The Commission anticipates working 

with DOE and the other agencies at the onset of any process to site electric transmission 

facilities in national corridors. The Commission has conferred and is working with DOE 

to assure that both agencies will be sufficiently prepared to expedite their respective 

responsibilities related to the review of any facilities appropriately proposed. 

J. Minor Modifications

55. EEI requests that the Commission allow minor modifications to an approved 

transmission facility to address operational needs during the life of that facility, without 

having to obtain further Commission, or other approvals. As stated in the Final Rule, the 

Commission’s jurisdiction is limited to the issuance of a permit to construct or modify 

facilities upon the making of certain findings.25 Section 216 does not confer Commission 

 24 Final Rule at P 107. 

25 Id. at P 220. 
Docket No. RM06-12-001 - 18 -

jurisdiction over the operation or maintenance of those facilities. Thus, any subsequent 

modifications made after the facilities are constructed and operational will be subject, at 

least initially, to applicable state law. 

K. NEPA Issues

 1. Affected Landowner

56. CARI contends that the Commission violated section 216(d) and NEPA when it 

arbitrarily and capriciously restricted the range of impacts to be evaluated for a project to 

those within a quarter-mile and narrowly defined the definition of “affected landowner” 

to property owners within 50 feet of the proposed facility. It argues that while the 

quarter-mile and 50-foot designations might be appropriate for natural gas pipeline 

projects that are underground, these geographic boundaries have no relevance with 

respect to a 190-mile long and 160-foot high overhead electric transmission project that 

has visual, noise, socioeconomic, and other impacts not associated with natural gas 

pipelines or smaller transmission lines. CARI claims that a fair definition of the area of 

impact should begin with a minimum of one-half mile and require an evaluation of the 

impact beyond that point depending on the facility. 

57. CARI argues that NEPA requires that a federal agency evaluate the environmental 

impacts of a proposed action and any adverse environmental effects that cannot be 

avoided should the proposal be implemented. It asserts that the Council on 

Environmental Quality (CEQ) implementation regulations explain that the Environmental 

Impact Statement (EIS) shall provide a full and fair discussion of significant 

environmental impacts and define effects to include both direct effects that occur at the 

same time and place, as well as indirect effects, which may occur later in time or farther 

removed in distance, but are still reasonably foreseeable. CARI contends that the 

Commission gave no reasoning for arbitrarily and capaciously cutting off review of a 

facility’s land use impacts or notifying only those landowners within a quarter of a mile. 

58. As we stated in the Final Rule, these are minimum filing requirements and each 

project will have its own unique issues that will need to be considered on a case-by-case 

basis.26 The regulations set forth the starting point for the Commission’s review and 

analysis. As additional interests or concerns are identified in an individual proceeding, 

the Commission will expand the scope of its review as appropriate. Thus, the 

Commission’s review of the impact of the proposed facility is not limited to the 

information initially filed by the applicant. Through the pre-filing and environmental 

scoping processes, Commission staff will define the scope of its analysis based on the 

specific facts and circumstances raised in each individual case. Further, we note that the 

 26 Id. at P 130. 
Docket No. RM06-12-001 - 19 -

definition of affected landowners is for purposes of notice of the project, not an 

assessment of the impacts. 

 2. Non-Transmission Alternatives

59. In the Final Rule, the Commission stated that in light of the specific facts raised by 

individual projects, the applicant will be required to address a variety of alternatives, 

including, where appropriate, alternatives other than new transmission lines. On 

rehearing, CARI contends that nothing in the regulations requires the siting applicant to 

discuss reasonable non-wire or non-transmission alternatives, or any alternatives other 

than those the applicant itself considered. It argues that section 380.16(k) of the 

Commission’s regulations does not require consideration of any more than the 

alternatives to which the applicant has given serious consideration. It claims that this 

allows the applicant to improperly limit the alternatives analysis and does not comply 

with the Commission’s mandate under NEPA. CARI states that the Commission’s 

passing remark that alternatives other than new transmission lines may be considered 

where appropriate does not take the place of a regulation which properly mandates that 

such an evaluation take place. 

60. Section 380.16(k) of the Commission’s regulations requires an applicant to file a 

resource report describing alternatives to the proposed project and comparing the 

environmental impacts of such alternatives to those of the proposal. In the Final Rule, we 

explained that “in light of the specific facts raised by the individual projects, the applicant 

will be required to address a variety of alternatives in the resource reports, including, 

where appropriate, alternatives other than new transmission lines. Moreover, reasonable 

alternatives can be identified by Commission staff or other stakeholders at various points 

during the proceeding for consideration in the NEPA process.”27

61. During the pre-filing and application processes, Commission staff will work with 

the applicant and stakeholders to define issues in each proceeding, including the 

development of appropriate alternatives. As required by NEPA, the Commission’s 

environmental review of a proposal will include the detailed examination of all 

reasonable alternatives to the proposed action.28 The public will have the opportunity to 

 27 See Final Rule at PP 177-79. 

28 In natural gas pipeline proceedings, the Commission also regularly explores not 

only major route alternatives, but also various minor route variations that reduce the 

impact of the proposed facility. It is not unlikely that in an electric transmission 

proceeding the Commission, on a case-by-case basis, would analyze similar variations of 

a proposed facility. 
Docket No. RM06-12-001 - 20 -

participate and file comments - which can include suggested alternatives of any kind - 

throughout this review. When the Commission acts on an application, it will consider the 

entire record, including the NEPA document and all filings made by participants. 

62. Because the facts of each case will dictate which alternatives merit detailed 

consideration, we are hesitant to include in our regulations specific requirements that 

applicants study and report on particular types of alternatives in every case. However, we 

are confident that the requirement that applicants address a variety of alternatives, 

coupled with our robust, public NEPA and application review process, will ensure that 

any and all reasonable alternatives receive full consideration. 

 3. Socioeconomic Impacts

63. In the NOPR, the Commission proposed that the applicant would be required to 

conduct a property value impact analysis for the proposed transmission line for properties 

adjacent to or abutting the right-of-way of proposed transmission lines. In the Final Rule, 

the Commission determined that given the speculative nature of these analyses and the 

time and resources the applicant would need to dedicate towards completion of this study, 

the Commission did not believe such a requirement is consistent with the purpose of 

EPAct 2005. The Commission stated that it will consider such information when 

provided in making a determination on the project, but such information will not be 

required.29

64. On rehearing, CARI asserts that the Commission erred by deleting the property 

value impact analysis from the Final Rule. It contends that NEPA and its implementing 

regulations require an evaluation of all socioeconomic impacts where they are 

interrelated with the project’s impacts to the physical environment, regardless of whether 

such analysis causes delay or whether there are various methodologies for such analysis. 

Further, it states that to the extent socioeconomic impacts are interrelated with natural or 

physical environmental impacts, the agency must make reasonable efforts to acquire 

relevant information concerning such impacts.30 CARI asserts that by removing the 

property value impact analysis from its new regulations, the Commission violates both 

the letter and spirit of NEPA and its implementing CEQ regulations. 

65. CARI also contends that the Commission erred by failing to require evaluation of 

the rate impact on consumers as a cognizable socioeconomic impact. It argues that as 

 29 Id. at P 158 

30 Citing Tongass Conservation Society v. Cheney, 924 F.2d 1137, 1144 (D.C. Cir. 

1991). 
Docket No. RM06-12-001 - 21 -

part of the socioeconomic impact analysis, the Commission is required to evaluate the 

effect of the proposed project and the alternatives on the cost of electricity to consumers. 

66. Under NEPA “an agency must make reasonable efforts to acquire relevant 

information concerning socioeconomic impacts, when economic or social and natural or 

physical environmental effects are interrelated.”31 NEPA does not require that an 

agency: 

examine the economic consequences of its actions. The theme of § 102 [of 

NEPA] is sounded by the adjective “environmental”: NEPA does not 

require the agency to assess every impact or effect of its proposed action, 

but only the impact or effect on the environment. If we were to seize the 

word “environmental” out of its context and give it the broadest possible 

definition, the words “adverse environmental effects” might embrace 

virtually any consequence . . . that some one thought “adverse.”32

67. While the Commission excluded the property value analysis as a filing 

requirement from the Final Rule, it did not specifically foreclose such an analysis from its 

socioeconomic impact analysis. The Commission will address all issues raised in a 

request for a permit on a case-by-case basis. Further, cost recovery and the effect on 

customer rates is purely an economic issue that is not part of the Commission’s NEPA 

review of a proposed project. Recovery of costs associated with a particular transmission 

project will be addressed by the Commission or other ratemaking authorities as 

appropriate. 

 31 Id. (finding that the Navy’s consideration of socioeconomic impacts was not 

inadequate for failure to prepare a survey conducted over several months of visitors, 

tourists, and other traveling to the areas for recreational fishing or other activities). 

32 Association of Pub. Agency Customers v. Bonneville Power Admin., 126 F.3d 

1158, at 1186 (9th Cir. 1997), citing Metropolitan Edison Co. v. People Against Nuclear 

Energy, 460 U.S. 766, 772 (1983). See also, Montana v. United States EPA, 137 F.3d 

1135, 1142(9th Cir. 1998)(finding that even if the tribal water quality standards program 

might affect property values, such a speculative and purely economic interest does not 

create a protectable interest in litigation concerning a statute that regulates environmental, 

not economic, interest); Portland Audubon Soc’y v. Hodel, 886 F.2d 302, 302 (9th Cir. 

1989)(finding that an adverse economic impact does not create a significant protectable 

interest in litigation under NEPA). 
Docket No. RM06-12-001 - 22 -

 4. Environmental Analysis of Final Rule

68. The Commission stated that no environmental consideration is raised by the 

promulgation of a rule that is procedural in nature or does not substantially change the 

effect of legislation or regulations being amended. The proposed regulations implement 

the procedural notice and filing requirements for applications to construct electric 

transmission facilities. Therefore, the Commission determined that an Environmental 

Assessment or EIS was not required. 

69. On rehearing, CARI contends that the Final Rule implemented substantive 

revisions to the Commission’s NEPA regulations that may directly impact the 

environment. It claims that the Commission has restricted project alternatives and 

impacts to be evaluated for proposed transmission facilities that may be built in national 

corridors. It argues that the restrictions on the range of information to be evaluated is not 

merely a matter of procedure, but rather affects the substance of the NEPA analysis. 

CARI claims that the mere fact that an environmental review may also take place at a 

later time, such as when a particular project is proposed, does not preclude an 

environmental review at the time a regulation is promulgated.33

70. The cases cited by CARI both address situations where there was a project with 

ground disturbance. The Commission did not restrict the alternatives or impacts that it 

will look at in an environmental analysis of each proposed project. It simply listed 

minimum filing requirements and will, in fact, do a complete analysis for every proposed 

project. The Final Rule does not authorize any construction of facilities that will cause 

ground disturbance and thus, no environmental analysis is required. 

 5. CEQ Consultation

71. CARI argues that CEQ regulations require that the Commission first consult with 

the CEQ so that it may review the proposed revisions for compliance with NEPA.34 They 

 33 See CARI’s rehearing request at 32, citing Sierra Club v. Untied States, 255 

F.Supp.2d 1177, 1186 (D.Colo. 2002)and Scientists’ Institute for Public Information v. 

Atomic Energy Comm’n, 481 F.2d 1079, 1088-89 (D.C. Cir. 1973). 

34 40 C.F.R. § 1507.3 (“[E]ach agency shall as necessary adopt procedures to 

supplement these regulations. . . . Each agency shall consult with the Council while 

developing its procedures and before publishing them in the Federal Register for 

comment. . . . The procedures shall be adopted only after an opportunity for public 

review and after review by the Council for conformity with the Act and these regulations. 

. . . Agencies shall continue to review their policies and procedures and in consultation 

with the Council to revise them as necessary to ensure full compliance with the purposes 

and provisions of the Act.”). 
Docket No. RM06-12-001 - 23 -

assert that there is no indication in the NOPR or the Final Rule that the Commission has 

consulted with the CEQ to determine whether the revisions comply with NEPA. It 

contends that in the absence of such consultation with the CEQ, the Commission’s 

issuance of the Final Rule, in which it revised its NEPA implementing requirements, is 

unlawful and the regulations must be withdrawn or stayed until the required consultation 

occurs. 

72. Section 1507.3 of CEQ’s regulations generally pertains to consultations with CEQ 

when agencies develop their initial NEPA regulations. Here, where we are developing 

regulations to implement EPAct 2005, not NEPA, consultation with CEQ is not 

necessary. Moreover, CEQ signed the MOU establishing a framework for early 

coordination of all applicable federal authorizations relating to the siting of transmission 

facilities and we will continue to work with CEQ and other agencies where appropriate.

The Commission orders: 

 All requests for rehearing are denied. 

By the Commission. Commissioner Kelly dissenting in part 

 with a separate statement attached. 

( S E A L ) 

 Kimberly D. Bose, 

 Secretary. 
UNITED STATES OF AMERICA 

FEDERAL ENERGY REGULATORY COMMISSION 

Regulations for Filing Applications Docket No. RM06-12-001 

for Permits to Site Interstate 

Electric Transmission Facilities 

(May 17, 2007) 

KELLY, Commissioner, dissenting in part: 

 

My dissent from the underlying order in this proceeding explains why I 

believe the majority’s finding that “withheld approval for more than one year” 

includes a state’s lawful denial of a permit flies in the face of the plain language of 

section 216 of EPAct 2005. On rehearing, the parties also cite to the plain 

language in challenging the majority’s interpretation, yet the majority responds, 

without more, that it finds “the parties’ arguments unpersuasive.” The majority 

does note that the parties’ argument “ignores the fact that the term as used in the 

EPAct 2005 is inclusive, comprising ‘denying’ approval as well as ‘refraining’ or 

‘holding back’ from granting approval.” In my view, such circular reasoning—

“we say it is so therefore it must be so”—is simply not reasoned decisionmaking. 

To shore up its interpretation, the majority makes much of what it deems to 

be the underlying purpose of section 216, that is, “to facilitate the process of siting 

critical regional transmission lines and facilities, ensuring adequate capacity and 

increased reliability on the electric transmission grid.” Nothwithstanding that the 

majority cites as the basis for this statutory purpose a speech given by a 

congressional representative four months before the passage of EPAct 2005, the 

majority in any event fails to demonstrate how pre-empting states when they 

lawfully deny permits will further this asserted purpose. As I noted in my previous 

dissent, I believe that states, as well as applicants, will act in good faith in 

processing requests for permits. Indeed, given the consequences of unlawfully 

denying a permit application, states would have a significant incentive to act in 

good faith in processing them, which, I am confident, would ultimately result in a 

more efficient and effective state transmission siting process. 

It is not reasonable to conclude that Congress’s intent in enacting section 

216 was to ensure the construction of transmission lines at the expense of a 

thoughtful, timely, and reasoned state determination, even where such a 

determination is the denial of a permit. As I noted in my previous dissent, states 

have always had exclusive, plenary jurisdiction over transmission siting, and the 

plain language of section 216 affirms the states’ important role by carefully 
Docket No. RM06-12-001 - 2 -

carving out only a limited role for the federal government in the area of 

transmission citing.1

 

The majority has not cited any additional legislative intent to pre-empt 

states from lawfully denying permit applications; in fact, the majority rightly 

acknowledges that there is no “definitive legislative history on point.” The 

majority does try and bolster its interpretation by comparing the statutory language 

at issue to that of new FPA section 203(a)(5), however, I agree with petitioners 

that such comparison offers no support, because, as the majority also 

acknowledges, sections 203 and 216 address different regulatory situations. 

When all is said and done, the majority has failed to demonstrate that 

Congress intended to pre-empt the states when they lawfully deny permit 

applications. It cites New York v. FERC for the proposition that in the instant case, 

there should be no “presumption against pre-emption” because there is no 

conflicting state law or regulations but, rather, there is a question over “the scope 

of the authority granted the Commission in section 216 to act in certain 

circumstances.” However, New York v. FERC involved clear statutory language 

under the Federal Power Act that “unambiguously” and with no “limitation” 

authorizes the Commission to assert jurisdiction over interstate electricity 

transmissions.2

 Such sweeping pre-emptive authority is not the case here. 

Even assuming, arguendo, that, as the majority asserts, there should be no 

presumption against preemption, the majority fails to address the fact that a court 

will not find federal pre-emption “in the absence of persuasive reasons—either 

that the nature of the regulated subject matter permits no other conclusion, or that 

the Congress has unmistakably so ordained.”3

 Instead, the majority concludes that 

it has “substantial textual and contextual support” for its “reasonable” 

interpretation, and that “if Congress had intended to limit the scope of its grant of 

authority in instances where a state has denied an application, it would have 

explicitly done so.” The majority’s reasoning is backward and fails to meet the 

high burden established by the courts. 

 

 1

 As one of the parties in this proceeding notes, support for such a limited 

role is bolstered by, e.g., S. Rep. No. 109-078, at 48 (2005)(explaining that 

section 216 “provides limited federal backstop siting authority...for electric 

transmission lines”). 

2 New York v. FERC, 535 U.S. 1 (2002). 

3 Id. at 18 (court has “to be certain that Congress has conferred authority on 

the agency” when controversy concerns scope of federal authority to preempt state 

law); See also Gregory v. Ashcroft, 501 U.S 452 (1991) (for a court to find federal 

pre-emption, it must be “unmistakably clear” that Congress intended to do so). 
Docket No. RM06-12-001 - 3 -

Finally, I am troubled by the majority’s dismissive attitude toward the 

parties’ challenges over the determination that “withheld approval” can reasonably 

be interpreted to include a state’s lawful denial of a permit application. In noting 

that “agencies from only two states” question the Commission’s jurisdictional 

finding, and that “NARUC did not seek rehearing,” the majority implies that the 

legitimacy of a challenge is determined by the number of challengers and by 

whom the challengers are. This is anathema to the way the Commission should 

conduct business, that is, by determining the legitimacy of a challenge based 

solely on its merits. Yet, in this order, the majority suggests that the parties may 

not be “significant enough” to warrant meaningful consideration of the merits of 

their challenges. It no doubt states the obvious to note that entities choose to file, 

or not to file, challenges to Commission findings based on any number of factors, 

such as financial resources, internal or external political pressures, or 

understanding of Commission proceedings. 

 

For all of the reasons stated above, as well as those set forth in my 

November 16, 2006 statement in this proceeding, I respectfully dissent. 

 

 ___________________________ 

Suedeen G. Kelly