On May 8, 2024, the Biden Administration published a list of ten potential geographic areas for designation as National Interest Electric Transmission Corridors (NIETC) under Section 216 (a) of the Federal Power Act. Once established, electric transmission projects proposed within these broad areas will unleash expedited federal approvals and financing to facilitate construction. Comments on the proposed designations are due June 24, 2024.

In 2005, Congress authorized the Department of Energy (DOE) to establish NIETCs in areas where DOE determines that electric energy transmission capacity constraints or congestion adversely affects consumers. In deciding whether to designate an area, the DOE may consider lack of adequate or reasonably priced electricity, reliance on limited sources of energy, supply diversification, energy policy and independence, national defense and homeland security. Designation means the federal government through the Federal Energy Regulatory Commission may issue a construction permit where a State has withheld or conditioned approval or where the project will pass through but not deliver electricity within the State. Use of federal eminent domain is also authorized.

What should not go unrecognized with the Administration’s announcement is the that a primary reason these areas lack sufficient capacity is directly attributable to the Administration’s accelerated pace of fossil fuel baseload retirements. Also missing is an analysis of the cost and benefits of increasing transmission capacity in the face of serious generation shortfalls. These issues should be addressed prior to making any final decisions on NIETCs.

E&W Law is available to assist with comment development. Connect with E&W Partner Karen Bennett at karen.bennett@earthandwatergroup.com.