Federal Backstop Siting Authority

In addition to the responsibilities given to DOE, EPAct 2005 gave FERC federal backstop siting authority of certain electric transmission facilities. Upon DOE’s NIETC designation, FERC may issue permits to construct or modify electric transmission facilities if it finds that:

1. A State in which such facilities are located does not have the authority to approve the siting of the facilities or to consider the interstate benefi ts expected to be achieved by the construction or modification of the facilities;
2. The applicant is a transmitting utility but does not qualify to apply for siting approval in the State because the applicant does not serve end-use customers in the State; and
3. The State with siting authority takes longer than one year aft er the application is filed to act, or the State imposes conditions on a proposal such that it will not significantly reduce transmission congestion or it is not economically feasible. 

To issue a permit, FERC must find that proposed facilities:

1. Are used for interstate commerce; 
2. Are consistent with public interest; 
3. Significantly reduce transmission congestion in interstate commerce; 
4. Are consistent with national energy policy; and 
5. Maximize the use of existing towers and structures. 

FERC issued the Final Order -- Order No. 689 -- implementing its backstop siting authority on November 16, 2006. The Final Order gives the States one full year to consider a transmission line siting application before the federal pre-filing process begins. The intent is to avoid conducting “parallel proceedings” – where a State commission and FERC would be considering a siting application at the same time. If such “parallel proceedings” were allowed, that process would create ex parte and prejudgment concerns under State law. Such a situation could potentially result in an applicant “gaming” the siting process by purposefully filing a deficient application to the State with the hopes of starting the one-year federal clock and precluding adequate State consideration of the application.

Source: http://www.oe.energy.gov/DocumentsandMedia/Transmission_Siting_FINAL_41.pdf