On Thursday, August 10, 2023, the U.S. Department of Energy (“DOE”) issued a Notice of Proposed Rulemaking and Request for Comment (“NOPR”) proposing changes to accelerate the process for permitting new electric transmission infrastructure. Specifically, the NOPR: (1) establishes a Coordinated Interagency Transmission Authorization and Permits Program (“CITAP Program”); (2) improves the Integrated Interagency Pre-Application (“IIP”) Process; and (3) consolidates the review of Federal authorization applications.¹

 

If adopted, the NOPR proposals would promote inter-agency coordination and accelerate Federal authorizations and related environmental review for major transmission lines. For any project within the NOPR’s scope (i.e., proposed interstate electric transmission facilities that require Federal authorizations), the NOPR establishes a process intended to facilitate final decisions on all Federal authorizations within two years after the publication of a notice of intent to prepare an Environmental Impact Statement (“EIS”) “or as soon as practicable thereafter.”

 

Background

 

The NOPR proposals are part of a long-standing effort to increase efficiency in the authorization process for transmission facilities. In 2005, the Energy Policy Act (“EPAct”) established a national policy of enhancing coordination and communication among Federal agencies involved in siting electric transmission facilities.² This included adding section 216 to Part II of the Federal Power Act (“FPA”). Section 216 charges the DOE with coordinating all Federal authorizations and related environmental reviews needed for siting interstate electric transmission projects.

 

In 2006, 2009, and 2023, nine Federal agencies signed “Memoranda of Understanding” (“MOU”) addressing how to facilitate Federal authorizations for electric transmission facilities, each MOU superseding the previous. The 2023 MOU was executed after the 2022 Infrastructure Investment and Jobs Act (“IIJA”)³ and the Inflation Reduction Act (“IRA”),⁴ both of which facilitate significant investment in clean energy projects. DOE has determined, however, that the full benefit of those investments cannot be realized without quickly, sustainably, and equitably expanding electric transmission infrastructure. Accordingly, the NOPR proposes amendments to update and expand the FPA section 216(h) implementing regulations set forth in 10 CFR part 900 so that the DOE may streamline the transmission facility authorization process.          

 

Proposed Changes

 

1. CITAP Program

   The DOE CITAP Program, which provides for coordinated Federal interagency review, is limited in scope to transmission projects that are both high voltage (230 kV and above) and expected to require an EIS. Participating in the CITAP Program is optional for developers. The “comprehensive and integrated” aspect of the program consists of DOE managing three main functions for the coordination of Federal review of transmission facilities:

    

   1. Managing the IIP Process to facilitate and ensure the timely submission of materials by the developer/permittee;

       

   2. Establishing a standard schedule for milestone dates and deadlines for Federal agencies reviewing authorization materials;

       

   3. Serving as the lead Federal agency for the preparation of a single EIS that meets the needs of all relevant Federal entities’ authorization decisions.

       

   The DOE expects that the CITAP Program will “substantially accelerate” the process for permitting and developing transmission projects, thereby justifying any IIP Process costs.

    

2. IIP Process

   Under the NOPR, the developer’s/permittee’s agreement to follow the IIP Process is a mandatory precondition for participating in the CITAP Program. During the IIP Process, project-specific deadlines are developed and project proponents and DOE will coordinate with Federal entities prior to the submission of applications for Federal authorizations. For example, the IIP Process requires project proponents to develop resource reports and public participation/engagement plans based on guidance from non-Federal and Federal entities. Proponents must participate in a series of meetings to ensure that entities have “ample opportunities to provide this guidance.” Final versions of the reports must be submitted to Federal entities before the IIP Process close-out meeting.

    

3. Streamlining Procedure

As part of coordinating the Federal review process and increasing efficiency, the NOPR proposes that an IIP Process administrative record be contained in a single docket that all relevant Federal entities can access. Additionally, the DOE would function as the lead National Environmental Policy Act of 1969 (“NEPA”) agency to prepare a single EIS for all required Federal Authorizations.

 

Future Action

The NOPR is scheduled for publication in the Federal Register on Wednesday, August 16, 2023.⁵ If published on that date, comments from interested individuals are due to the DOE by Monday, October 2, 2023.⁶ While dependent upon actual implementation, the proposed rulemaking should help improve the Federal permitting process for high-voltage interstate transmission projects.     

¹ DOE Docket No. DOE-HQ-2023-0050.

² Pub. L. 109-58.

³ Pub. L. 117-58.

⁴ Pub. L. 117-169.

⁵ Federal Register :: Public Inspection: Coordination of Federal Authorizations for Electric Transmission Facilities

⁶ 45 days after publication falls on a weekend, but is not due until the next Federal business day. Federal Register :: Reader Aids :: Using FederalRegister.Gov.

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