Applications for Permits to Site Interstate Electric Transmission Facilities, 84465-84472 [2024-24526]
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[FR Doc. 2024–24562 Filed 10–21–24; 11:15 am]
BILLING CODE 3510–33–P
DEPARTMENT OF ENERGY
Federal Energy Regulatory
Commission
[Docket No. RM22–7–001; Order No. 1977–
A]
Applications for Permits to Site
Interstate Electric Transmission
Facilities
Federal Energy Regulatory
Commission, Department of Energy.
ACTION: Final rule; Order addressing
arguments raised on rehearing, and
setting aside prior order, in part.
AGENCY:
In this order, the Federal
Energy Regulatory Commission
addresses arguments raised on rehearing
of Order No. 1977, which amended the
Commission’s regulations governing
applications for permits to site electric
transmission facilities under section 216
of the Federal Power Act, as amended
by the Infrastructure Investment and
Jobs Act of 2021, and amended its
National Environmental Policy Act
procedures.
SUMMARY:
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This rule is effective November
22, 2024.
FOR FURTHER INFORMATION CONTACT:
DATES:
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Federal Register citation
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Maggie Suter (Technical Information),
Office of Energy Projects, Federal
Energy Regulatory Commission, 888
First Street NE, Washington, DC
20426, (202) 502–6344,
magdalene.suter@ferc.gov
Tara DiJohn Bruce (Legal Information),
Office of the General Counsel, Federal
Energy Regulatory Commission, 888
First Street NE, Washington, DC
20426, (202) 502–8671, tara.bruce@
ferc.gov
Commission); 4 and Pennsylvania Public
Utility Commission (Pennsylvania
Commission) filed timely requests for
rehearing.
2. Pursuant to Allegheny Defense
Project v. FERC,5 the rehearing requests
filed in this proceeding may be deemed
denied by operation of law. However, as
permitted by section 313(a) of the FPA,6
we are modifying the discussion in
Order No. 1977 and setting aside the
order, in part, as discussed below.7
1. On May
13, 2024, the Federal Energy Regulatory
Commission (Commission) issued Order
No. 1977.1 Order No. 1977 amended the
Commission’s regulations governing
applications for permits to site electric
transmission facilities: to be consistent
with section 216 of the Federal Power
Act (FPA),2 as amended by the
Infrastructure Investment and Jobs Act
(IIJA); 3 to modernize certain regulatory
requirements; and to incorporate other
updates and clarifications to ensure the
efficient and timely review of permit
applications. On June 12, 2024,
Earthjustice, Environmental Defense
Fund, Natural Resources Defense
Council, Sierra Club, Sustainable FERC
Project, Union of Concerned Scientists,
WE ACT for Environmental Justice, and
the Yurok Tribe (together, Public
Interest Organizations); Louisiana
Public Service Commission (Louisiana
Commission); New York State Public
Service Commission (New York
I. Background
3. The Energy Policy Act of 2005 8
added section 216 to the FPA, providing
for Federal siting of electric
transmission facilities under certain
circumstances.9 Under section 216,
Federal siting authority is divided
between the U.S. Department of Energy
(DOE) and the Commission. Section
216(a) directs DOE to conduct a study
and issue a report on electric
transmission congestion and authorizes
DOE to designate certain transmissionconstrained or congested geographic
areas as national interest electric
SUPPLEMENTARY INFORMATION:
18 CFR Parts 50 and 380
15:59 Oct 22, 2024
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Matthew S. Borman,
Deputy Assistant Secretary for Strategic Trade
and Technology Security.
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License review
policy
84465
1 Applications for Permits to Site Interstate Elec.
Transmission Facilities, Order No. 1977, 89 FR
46682 (May 29, 2024), 187 FERC ¶ 61,069 (2024).
2 16 U.S.C. 824p.
3 Public Law 117–58, sec. 40105, 135 Stat. 429
(2021).
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4 New York Commission seeks rehearing, or in the
alternative, clarification of Order No. 1977.
5 964 F.3d 1 (D.C. Cir. 2020) (en banc).
6 16 U.S.C. 825l(a) (‘‘Until the record in a
proceeding shall have been filed in a court of
appeals, as provided in subsection (b), the
Commission may at any time, upon reasonable
notice and in such manner as it shall deem proper,
modify or set aside, in whole or in part, any finding
or order made or issued by it under the provisions
of this chapter.’’).
7 Allegheny Def. Project, 964 F.3d at 16–17.
8 Public Law 109–58, sec. 1221, 119 Stat. 594
(Aug. 8, 2005).
9 Order No. 1977 provides a more detailed
discussion of the legislative, regulatory, and judicial
actions that preceded the final rule. See Order No.
1977, 187 FERC ¶ 61,069 at pt I.
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transmission corridors (National
Corridors). Section 216(b) provides that
the Commission may issue permits to
construct or modify electric
transmission facilities in a designated
National Corridor under specified
circumstances.
4. On November 16, 2006, the
Commission issued Order No. 689,10
which implemented new regulations for
section 216 permit applications by
adding part 50 to the Commission’s
regulations and by modifying part 380
of the Commission’s regulations
implementing the National
Environmental Policy Act of 1969
(NEPA).11
5. On November 15, 2021, the IIJA
amended FPA section 216. With respect
to the Commission’s electric
transmission siting authority, the IIJA
amended section 216(b)(1)(C) to
expressly provide that the Commission
may issue a permit if a State has denied
an application. As amended, section
216(b)(1)(C) provides that the
Commission’s siting authority is
triggered when a State commission or
other entity with authority to approve
the siting of the transmission facilities:
(i) has not made a determination on a
siting application by one year after the
later of the date on which the
application was filed or the date on
which the relevant National Corridor
was designated; (ii) has conditioned its
approval such that the proposed project
will not significantly reduce
transmission capacity constraints or
congestion in interstate commerce or is
not economically feasible; or (iii) has
denied an application.12
6. Additionally, the IIJA amended
section 216(e), which grants a permit
holder the right to acquire the necessary
right-of-way by eminent domain.13 As
amended, section 216(e)(1) requires the
Commission to determine, as a
precondition to a permit holder
exercising eminent domain authority,
that the permit holder has made good
faith efforts to engage with landowners
and other stakeholders early in the
applicable permitting process.14
7. On December 15, 2022, the
Commission issued a Notice of
Proposed Rulemaking (NOPR) which
proposed revisions to parts 50 and 380
of the Commission’s regulations to,
10 Reguls. for Filing Applications for Permits to
Site Interstate Elec. Transmission Facilities, Order
No. 689, 117 FERC ¶ 61,202 (2006) (Order No. 689),
reh’g denied, 119 FERC ¶ 61,154 (2007) (Order No.
689 Rehearing).
11 42 U.S.C. 4321 et seq. See also 18 CFR pt. 380
(Commission’s regulations implementing NEPA).
12 16 U.S.C. 824p(b)(1)(C).
13 Id. 824p(e)(1).
14 Id.
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among other things, address the IIJA’s
amendments to FPA section 216.15 After
considering comments on the NOPR, on
May 13, 2024, the Commission issued
its final rule in Order No. 1977.
8. On June 12, 2024, Public Interest
Organizations, Louisiana Commission,
New York Commission, and
Pennsylvania Commission requested
rehearing. The rehearing requests raise
issues related to when the Commission’s
jurisdiction is triggered; how State siting
decisions and evidentiary records,
including comments filed in State
proceedings, will be considered in the
Commission proceeding; the scope of
the Applicant Code of Conduct and the
Landowner Bill of Rights; and the
analysis of climate impacts under
NEPA. We address the issues raised on
rehearing below.
II. Discussion
A. Commission Jurisdiction
1. Order No. 1977
9. FPA section 216(b)(1)(C)(i), as
amended by the IIJA, provides that the
Commission may issue a permit for the
construction or modification of electric
transmission facilities in a National
Corridor if a State commission or other
entity with authority to approve the
siting of the transmission facilities has
not made a determination on a siting
application by one year after the later of
the date on which the application was
filed or the date on which the relevant
National Corridor was designated.16 The
final rule revised § 50.6(e) of the
Commission’s regulations, which
describes the information that each
permit application must provide. As
relevant here, § 50.6(e)(3)(i) requires that
an applicant seeking to invoke the
Commission’s jurisdiction under FPA
section 216(b)(1)(C)(i) must provide, at
the time it files an application with the
Commission, evidence that a State has
not made a determination on an
application seeking approval pursuant
to applicable law.
2. Requests for Rehearing
10. New York Commission contends
that the Commission’s failure to explain
how the one-year timeframe triggering
the Commission’s jurisdiction will be
calculated is arbitrary and capricious.17
Reiterating its comments on the NOPR,
15 Applications for Permits to Site Interstate Elec.
Transmission Facilities, 88 FR 2770 (Jan. 17, 2023),
181 FERC ¶ 61,205 (2022) (NOPR), errata notice,
182 FERC ¶ 61,020 (2023). The Commission’s errata
notice for the NOPR, issued on January 17, 2023,
reflected certain stylistic revisions requested by the
Federal Register as well as minor, non-substantive
editorial revisions.
16 16 U.S.C. 824p(b)(1)(c).
17 New York Commission Rehearing Request at 5.
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New York Commission recommends
that the one-year period commence once
an application is deemed complete
according to applicable State
requirements.18 It asserts that failure to
impose such a requirement leaves the
States with significant regulatory
uncertainty and could lead to
incomplete applications and rushed
review.19 New York Commission states
that the Commission’s jurisdiction
should not be triggered until a year after
a complete application has been filed
with the State in order to disincentivize
applicants from trying to ‘‘game’’ the
system by filing deficient applications
with the State just to start and exhaust
the one-year timeframe.20
11. New York Commission asks the
Commission to revise the final rule to
specify that, where a State has not made
a determination on an application, the
Commission’s jurisdiction is dependent
upon the filing of a complete
application with the State.21 In the
alternative, New York Commission asks
that the Commission clarify for
prospective applicants how the
Commission will determine when the
statute’s one-year period begins to run.
3. Commission Determination
12. We agree with New York
Commission that the filing of a complete
application with the State is an
important consideration when
Commission jurisdiction is based upon
FPA section 216(b)(1)(C)(i). However,
we do not find it necessary to revise the
final rule to specify that the
Commission’s consideration of an
application pursuant to FPA section
216(b)(1)(C)(i) must hinge upon the
filing of a complete application with the
State.22 As the Commission explained
previously, our regulations require that
the applicant file information
concerning the status of the applicant’s
filings before State agencies at various
points during the Commission’s pre18 Id.
at 6–7.
at 6, 7.
20 Id. at 6.
21 Id. at 7–8.
22 We note that FPA section 216(b)(1)(C)(i)
provides that the Commission may issue a permit
if a State has not made a determination on an
application by the date that is one year after the
date on which the application was filed, or the date
on which the relevant National Corridor was
designated, whichever is later. But the statute does
not explicitly state that the one-year period is
triggered by the filing of a complete application.
Compare 16 U.S.C. 824p(b)(1)(C)(i) with id.
824p(b)(h)(4)(B) (requiring all permit decisions and
environmental reviews be completed within one
year ‘‘once an application has been submitted with
such data as the Secretary [of Energy] considers
necessary’’)
19 Id.
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filing process.23 Specifically,
§ 50.5(b)(3) requires that the applicant,
at the initial consultation meeting in
pre-filing, discuss when it filed its
application with the State and the status
of that application. Section 50.5(c)(5)
requires that the applicant’s pre-filing
request describe any work completed or
actions taken in conjunction with the
State proceeding. Finally, under
§ 50.6(e)(3)(i), the applicant must
provide evidence, at the time an
application is filed with the
Commission, that the State has not
made a determination on an application
seeking approval under applicable law.
13. The Commission will take into
account all information provided by the
applicant and stakeholders, including
the relevant States, concerning the
timing and status of the State
proceeding in determining whether an
application meets the requirements of
FPA section 216(b)(1)(C)(i). When
rendering a decision on a permit
application, the Commission will
consider, on a case-by-case basis,
arguments regarding whether one year
has passed from the date on which the
application was filed with the State,
including any assertion that such
application was incomplete. We find
this measured, case-specific approach is
appropriate because such a
determination will be informed by the
specific facts presented in any given
proceeding including, as applicable,
State-specific laws and regulations.
14. Moreover, we note that in Order
No. 1977 the Commission declined to
adopt the NOPR proposal to allow
simultaneous processing.24 This
proposal would have allowed the
Commission’s pre-filing process to begin
once an application had been filed with
the State.25 In declining to adopt
simultaneous processing, the
Commission continues to recognize the
States’ primacy in transmission siting
and afford States one full year to process
an application without any overlapping
Commission processes.26 An applicant
may request to begin the Commission’s
pre-filing process only after that year
has passed.
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B. State Siting Proceedings
1. Order No. 1977
15. Section 50.6(e) requires an
application to provide evidence
demonstrating that one of the
jurisdictional bases set forth in FPA
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2. Requests for Rehearing
17. Louisiana Commission seeks
rehearing of Order No. 1977, arguing
that the final rule intrudes on State
authority and fails to require
consideration of a State’s siting decision
and the associated evidentiary record.29
It asserts that a State’s decision on a
siting application is deserving of
deference and should be presumed
correct, with the burden of proof on the
applicant in the Federal proceeding to
overcome that presumption.30 Louisiana
Commission urges the Commission to
defer, or at least consider and afford
great weight, to a State’s findings.31
18. Public Interest Organizations
assert that the Commission should
incorporate all public comments in the
State permitting docket into the
administrative record for any
subsequent Federal permitting
proceeding.32 They contend that
comments in State permitting processes
are generally public and incorporating
them in the Commission’s docket, even
absent explicit permission, will not
harm commenters’ interests.33 Rather,
Public Interest Organizations note that
this practice would benefit commenters
by eliminating the ‘‘procedural trap’’ of
requiring commenters in a State
proceeding to resubmit any input to the
Commission.34 They also posit that
incorporating all comments filed at the
State level would help ensure that the
27 Id.
P 33.
P 216.
29 Louisiana Commission Rehearing Request at 5,
7–8.
30 Id. at 8.
31 Id.
32 Public Interest Organizations Rehearing
Request at 23–34.
33 Id. at 23.
34 Id. at 24.
28 Id.
23 Order No. 689 Rehearing, 119 FERC ¶ 61,154 at
P 34.
24 Order No. 1977, 187 FERC ¶ 61,069 at PP 53–
54.
25 See id. PP 53–54.
26 See id. P 40.
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section 216(b)(1) applies to the
proposed facilities. In addition, § 50.6(f)
provides that an application must also
demonstrate that the proposed facilities
meet the statutory criteria in FPA
sections 216(b)(2) through (6),
including, among other things, that the
proposal is consistent with the public
interest.
16. In Order No. 1977, the
Commission adopted revisions to
§ 50.6(e) for consistency with the IIJA’s
amendments to FPA section 216(b)(1).27
The IIJA did not amend the criteria in
section 216(b)(2) through (6). Therefore,
Order No. 1977 did not revise § 50.6(f).
In response to comments on the NOPR,
the Commission declined to adopt a
requirement that an applicant file with
the Commission all comments
submitted in a relevant State siting
proceeding.28
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Commission has a full administrative
record containing all information
relevant to the State’s decision and that
the Commission’s permit decision is
legally defensible.35
3. Commission Determination
19. The Commission has previously
stated that in reviewing a request for a
permit to site electric transmission
facilities it will consider the record in
its entirety, including any information
filed regarding actions or findings made
in the State proceeding.36 We reaffirm
that commitment here. Nevertheless, we
note that, although the Commission will
consider the outcome and relevant
findings of State siting decisions, the
State’s decision is not determinative
under the section 216 framework. If the
Commission finds that the statutory
criteria under section 216(b) have been
met, it may issue a permit to construct
or modify electric transmission facilities
in a National Corridor notwithstanding
a State’s denial of the same.37 The
Commission’s consideration, as
described in the final rule, of whether
an application meets the statutory
criteria for Commission jurisdiction
does not improperly intrude upon State
authority.
20. When filings made in a
Commission proceeding reference
information in a State siting proceeding,
to the extent that the Commission may
find certain elements of the State siting
proceeding useful in its decisionmaking process, it may request that the
applicant file this information in the
Commission’s record, as needed, on a
case-by-case basis.38 We continue to
find that incorporating the State record
in its entirety into the Commission’s
record would require the submission
and review of information that may not
be relevant to the Commission
proceeding.39
21. We disagree that we are creating
a ‘‘procedural trap’’ or imperiling the
legal defensibility of our orders by
declining to mandate that all comments
in the State proceeding be filed in the
Commission’s docket. The
commencement of the pre-filing process
and the filing of an application are both
milestones that trigger requirements that
an applicant notify stakeholders. These
requirements are intended to encourage
stakeholder participation and
disseminate information about the
proposed project and about how to
35 Id.
36 Order
No. 689 Rehearing, 119 FERC ¶ 61,154 at
P 4.
37 16
U.S.C. 824p(b)(1)(C)(iii).
No. 1977, 187 FERC ¶ 61,069 at P 256.
38 Order
39 Id.
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participate in the Commission’s prefiling and application processes. In
particular, applicants must make a good
faith effort to notify, among other
stakeholders, any known individuals or
organizations that have expressed an
interest in the State siting proceeding.40
In addition, the applicant’s Pre-filing
Notification must explain that the
Commission’s pre-filing and application
processes are separate from any ongoing
State siting proceeding and describe the
status of any such State siting
proceeding.41 We believe these
provisions are sufficient to ensure that
stakeholders are made aware of the
Commission’s separate proceeding and
how to participate in it, and that
stakeholders can then decide whether to
file with the Commission information
that they have provided to the State.
22. Moreover, as previously noted, in
Order No. 1977 the Commission
declined to adopt the NOPR proposal to
allow simultaneous processing.42 This
means that, in cases where the
Commission’s jurisdiction rests on the
pendency of a State’s siting
determination (i.e., FPA section
216(b)(1)(C)(i)), the pre-filing process
will not begin until at least one year
after applications have been filed with
the relevant States.43 The one-year delay
between initiation of the State and
Federal processes increases the
possibility that comments filed in the
State siting proceeding may contain
outdated information or may not fully
reflect the filer’s views with respect to
the subsequent Commission proceeding.
For these reasons, we continue to find
it unnecessary to impose a generic
requirement that all comments filed in
a State siting proceeding should be
incorporated into any subsequent
Commission proceeding. This does not
preclude interested parties from
submitting for the Commission’s
consideration information from the
State proceeding.
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C. Applicant Code of Conduct
Applicability
1. Order No. 1977
23. Section 216(e)(1) of the FPA, as
amended by the IIJA, requires the
Commission to determine, as a
prerequisite to a permit holder receiving
eminent domain authority, that the
permit holder has made good faith
efforts to engage with landowners and
other stakeholders early in the
applicable permitting process.44 In
Order No. 1977, the Commission
adopted an Applicant Code of Conduct
as one way that an applicant may
demonstrate that it has made good faith
efforts to engage with landowners.45 The
Commission further explained that an
applicant may choose an alternative
method of demonstrating that it meets
the good faith efforts standard, so long
as it explains how its alternative method
is equal to or better than compliance
with the Applicant Code of Conduct.46
In response to comments about the
statute’s requirement to make good faith
efforts to engage with ‘‘other
stakeholders’’ in addition to
landowners, Order No. 1977 explained
that applicants will bear the burden of
demonstrating good faith efforts to
engage with stakeholders other than
landowners and that the Commission
will evaluate these efforts on a case-bycase basis, based on the record in each
individual proceeding.47
2. Rehearing Requests
24. First, Public Interest Organizations
contend that the Commission erred by
not extending the Applicant Code of
Conduct to all stakeholders or, in the
alternative, by not adding to the
regulations a requirement that
applicants demonstrate that they have
made good faith efforts to engage with
other stakeholders.48 To comply with
the FPA’s good faith efforts requirement,
Public Interest Organizations argue that
the Applicant Code of Conduct must be
applied to all landowners and other
stakeholders.49 They generally argue
this would provide a clear path for
applicants to satisfy the statutory
requirement and that many of the
provisions in the Applicant Code of
Conduct are not landowner-specific and
apply equally to all stakeholders (e.g.,
maintaining a discussion log; ensuring
communications are factually correct
and respectful; avoiding harassing,
coercive, manipulative, or intimidating
communications or high-pressure
tactics).50 In the alternative, Public
Interest Organizations argue that the
Commission must revise its regulations
to make clear that the applicant must
engage in good faith with all
stakeholders.51
25. Second, Public Interest
Organizations assert that if the
Applicant Code of Conduct is not
45 Order
No. 1977, 187 FERC ¶ 61,069 at PP 73–
74.
P 82.
P 84.
48 Public Interest Organizations Rehearing
Request at 2.
49 Id. at 2–6.
50 Id. at 5–6.
51 Id. at 7–8.
CFR 50.4(c)(1).
41 Id. § 50.4(c)(2)(i)(H).
42 Order No. 1977, 187 FERC ¶ 61,069 at P 53.
43 Id. P 54.
44 16 U.S.C. 824p(e)(1).
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3. Commission Determination
27. Order No. 1977 did not err by
adopting an Applicant Code of Conduct
that focuses on an applicant’s
engagement with affected landowners.
As the Commission previously
explained, the Applicant Code of
Conduct specifies recordkeeping and
information-sharing requirements that
are tailored to encourage productive and
more sustained engagement with
affected landowners regarding the use or
acquisition of their property.56 The
interests of other individual
stakeholders may vary in timing and
scope, and the amount and type of
engagement with each stakeholder will
need to be adapted to case-specific
circumstances. We continue to find that
the most appropriate way to determine
whether an applicant has made good
faith efforts to engage with other
stakeholders is based on the record in
each individual proceeding. As the
Commission previously explained, the
burden is on the applicant to show that
the good faith efforts standard is met
with respect to stakeholders.57 In
evaluating whether this showing is met,
we will consider, among other things,
an applicant’s efforts to engage
stakeholders as described in the Project
46 Id.
47 Id.
40 18
extended to all stakeholders it should, at
a minimum, apply to an applicant’s
engagement with Indian Tribes.52 Citing
that the Commission’s reasoning for
limiting applicability of the Code of
Conduct is to protect landowners whose
property may be used or acquired,
Public Interest Organizations note that
‘‘these same early-in-the-process
protections of honest dealings, consent
to enter lands, and documentation of
engagement are also necessary to protect
Tribes whose remaining resources may
be affected, particularly on reservations
or lands otherwise held by a Tribe, as
well as on Tribes’ ancestral lands.’’ 53
26. Third, Public Interest
Organizations urge the Commission to
clarify two statements in Order No.
1977’s preamble regarding Tribal land
ownership. They ask the Commission to
recognize that Tribes: (1) meet the
Commission’s definition of ‘‘affected
landowners’’ regardless of whether their
land is held in fee or in trust,54 and (2)
retain their sovereign right to exclude
nonmembers from reservation land,
regardless of the applicability of the
Applicant Code of Conduct.55
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52 See
id. at 8–16.
at 10.
54 Id. at 12–15.
55 Id. at 15–16.
56 Order No. 1977, 187 FERC ¶ 61,069 at P 84.
57 Id.
53 Id.
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Participation Plan (including
engagement with environmental justice
communities and Tribes) and monthly
status reports filed during pre-filing, as
well as compliance with project
notification requirements.58 The
Commission will also consider other
record information, such as comments
filed by stakeholders.
28. The Commission has explained
that it will make this determination at
the time it renders a decision on a
permit application.59 We intend to
evaluate an applicant’s engagement with
affected landowners based on
compliance with the Applicant Code of
Conduct, or an alternative method, and
an applicant’s engagement with other
stakeholders based on the record in the
proceeding. This approach will provide
the Commission with sufficient
information to determine whether an
applicant has made good faith efforts,
and the Commission did not err by
declining to either adopt specific
criteria or regulatory text reiterating the
statutory obligation with respect to
other stakeholders.60
29. As to Public Interest
Organizations’ second argument, we
similarly find that Order No. 1977 did
not err by declining to extend the
Applicant Code of Conduct to an
applicant’s engagement with Tribes. As
noted above, we think it appropriate
that the Applicant Code of Conduct
focuses on affected landowners whose
property is most likely to be affected by
a proposed project—e.g., property that
will be crossed or used, abutting
property that may be affected by minor
adjustments to the route or project
facilities, or property containing
residences in close proximity to
construction areas—and whose property
may be subject to eminent domain.
Section 216(e) authorizes a permit
holder to use eminent domain to acquire
the necessary right-of-way to construct,
operate, and maintain transmission
facilities. But section 216(e)(1) expressly
excludes property owned by the United
States from the type of property that can
be acquired by eminent domain, and
Tribal reservation or trust lands are
owned by the United States and held in
trust for the benefit of Tribes. Therefore,
an applicant may not acquire rights-ofway across these lands using eminent
domain under section 216(e). Rather, an
applicant must apply to the U.S.
Department of the Interior’s Bureau of
58 Id.
59 Id.
P 78.
note that, to the extent relevant, nothing
precludes applicants from applying generic
principles of good faith engagement from the
Applicant Code of Conduct to interactions with
other stakeholders.
60 We
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Indian Affairs (BIA) for right-of-way
authorization to cross Tribal land and
comply with the relevant BIA
regulations.61
30. Nevertheless, due to the unique
and complex nature of Tribal land
ownership, we are modifying the Tribal
Engagement Plan to add requirements
that will apply if rights-of-way on land
owned in trust or restricted status must
be obtained for a proposed project.62
Specifically, if a proposed project will
require this type of right-of-way
authorization, the Tribal Engagement
Plan must describe how the applicant
will engage with the relevant Indian
Tribe or individual Indian landowners
to obtain the necessary permissions,
including consent to access Tribal land
to prepare information required by the
application (e.g., to survey), if
applicable, and ensure that
communications with Indian Tribes are
honest, factually accurate, and
respectful of Tribal sovereignty. These
additional requirements, if applicable,
will apply to all applicants regardless of
whether they choose to comply with the
Applicant Code of Conduct.63 We
clarify that the definition of affected
landowner does not specifically
encompass Indian Tribes or individual
Indian landowners located on Tribal
reservations or trust lands owned by the
United States and held in trust for the
benefit of Tribes.
31. Finally, in response to Public
Interest Organizations’ request, we
clarify a statement in Order No. 1977’s
preamble regarding the need to obtain
consent to enter Tribal lands. The
statement was in reference to
applicability of a specific provision of
the Applicant Code of Conduct that
requires an applicant to obtain an
affected landowner’s permission prior to
61 It appears that BIA regulations require an
applicant for right-of way authorization to obtain
consent from the Tribe or individual Indian
landowner. See 25 CFR 169.107.
62 BIA’s regulations provide that ‘‘trust or
restricted status’’ means: ‘‘(1) That the United States
holds title to the tract or interest in trust for the
benefit of one or more tribes and/or individual
Indians; or (2) That one or more tribes and/or
individual Indians holds title to the tract or interest,
but can alienate or encumber it only with the
approval of the United States because of limitations
in the conveyance instrument under Federal law or
limitations in Federal law.’’ 25 CFR 169.2.
63 As in the final rule, we note that the Tribal
Engagement Plan does not affect and is separate
from the Commission’s consultation practices under
its Tribal Consultation Policy, as well as existing
trust responsibilities and government-togovernment relationships with Tribes. Pol’y
Statement on Consultation with Indian Tribes in
Comm’n Procs., Order No. 635, 104 FERC ¶ 61,108
(2003), revised, Order No. 863, 169 FERC ¶ 61,036
(2019). The Tribal Consultation Policy is codified
at 18 CFR 2.1c. The Commission also has separate
responsibilities to consult with Tribes under section
106 of the National Historic Preservation Act.
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84469
accessing their property to survey.64 We
recognize and clarify that a Tribe’s right
to exclude, or condition the presence of,
nonmembers on Tribal lands is wellestablished.65 Nothing in Order No.
1977, as revised herein, is intended to
or can infringe upon Tribal sovereignty.
D. Landowner Bill of Rights
1. Order No. 1977
32. In Order No. 1977, the
Commission adopted a new project
notification requirement to ensure that
any Pre-filing Notification that an
applicant mails to an affected
landowner include a copy of a
Commission document titled
‘‘Landowner Bill of Rights in Federal
Energy Regulatory Commission Electric
Transmission Proceedings’’ (Landowner
Bill of Rights).66 The Commission
explained that requiring applicants to
provide this document at the outset of
the permitting process would help
ensure that affected landowners are
informed of their rights in dealings with
the applicant, in Commission
proceedings, and in eminent domain
proceedings.67
2. Rehearing Requests
33. Pennsylvania Commission argues
that the Commission’s decision to
require its Landowner Bill of Rights was
arbitrary and capricious, an abuse of
discretion, and not reasoned decisionmaking.68 Pennsylvania Commission
asserts that the Commission failed to
consider Pennsylvania Commission’s
proffered alternative that the
Commission endorse State-designed
Landowner Bill of Rights for those
States willing to engage with the
Commission on the contents of the
document.69 It also faults the
64 See Order No. 1977, 187 FERC ¶ 61,069 at P 94
(‘‘Regarding Tribal concerns for obtaining consent
to enter Tribal lands, we clarify that the Applicant
Code of Conduct would apply to land owned in fee
by a Tribe or member of a Tribe, so § 50.12(a)(9)
would require approval from the Tribe or member
of a Tribe under those circumstances.’’).
65 See, e.g., State of Montana v. U.S., 450 U.S.
544, 557 (1981) (Tribe may prohibit nonmembers
from hunting or fishing on land belonging to the
Tribe or held by the United States in trust for the
Tribe or it may place conditions upon their entry
upon the same); Merrion v. Jicarilla Apache Tribe,
455 U.S. 130, 144 (1982) (‘‘Nonmembers who
lawfully enter tribal lands remain subject to the
tribe’s power to exclude them. This power
necessarily includes the lesser power to place
conditions on entry, on continued presence, or on
reservation conduct, such as a tax on business
activities conducted on the reservation.’’).
66 Order No. 1977, 187 FERC ¶ 61,069 at P 202 &
app. A (providing final version of the Landowner
Bill of Rights).
67 Id. P 196.
68 Pennsylvania Commission Rehearing Request
at 2.
69 Id. at 4.
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Commission-developed Landowner Bill
of Rights because it does not mention
State siting jurisdiction and gives the
impression that Federal permit
applications are the only proceedings
that matter.70
3. Commission Determination
34. In Order No. 1977, the
Commission considered and ultimately
disagreed with Pennsylvania
Commission’s recommendation that
modifications to the Landowner Bill of
Rights, including State-designed
versions of the document, should be
permissible.71 The Commission
explained that the purpose of requiring
applicants to provide the Landowner
Bill of Rights with the Pre-filing
Notification is to ensure that affected
landowners are informed in a consistent
manner of their rights. Allowing
applicants to modify or develop their
own version of the Landowner Bill of
Rights, even with State input, could
result in uncertainty and confusion.72
We continue to find that to be the case.
Endorsing various, potentially
conflicting, documents that are specific
to each State would be a confusing and
inefficient approach. Requiring
applicants to provide affected
landowners with a copy of the
Landowner Bill of Rights—a generic
document developed by the
Commission and intended to provide
information about the Federal
permitting process in a broad and
consistent manner—does not preclude
an applicant from providing additional
information to landowners about
additional rights under State law or
ongoing State siting proceedings, if
applicable.
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E. Climate Impacts Analysis Under
NEPA
1. Order No. 1977
35. In Order No. 1977, the
Commission adopted a new
environmental resource report that
requires an applicant to provide
information on proposed transmission
facilities’ impacts on air quality and
environmental noise.73 As relevant here,
the Air quality and environmental noise
resource report requires an applicant to
estimate emissions from the proposed
project and the corresponding impacts
on air quality and the environment.
Specifically, the report must disclose
the reasonably foreseeable emissions
from construction, operation, and
70 Id.
at 5.
Order No. 1977, 187 FERC ¶ 61,069 at PP
197, 203.
72 See id. P 203.
73 Id. PP 379–386.
71 See
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maintenance of the project facilities;
compare those emissions with
applicable General Conformity
thresholds for each designated
nonattainment or maintenance area;
identify the corresponding impacts on
communities and the environment in
the project area; and describe any
proposed mitigation measures to control
emissions.74
2. Rehearing Requests
36. Public Interest Organizations
assert that the Commission must require
a more rigorous analysis of electric
transmission projects’ climate impacts
under NEPA.75 They generally argue
that the final rule’s failure to explicitly
require applicants to analyze climate
impacts is out of step with recent legal
developments, including the Fiscal
Responsibility Act of 2023,76 the
Council on Environmental Quality’s
(CEQ) Phase 2 final rule,77 and DOE’s
section 216(h) rule.78 Public Interest
Organizations urge the Commission to
adopt relevant language from DOE’s
regulations and require applicants to
‘‘[e]stimate the reasonably foreseeable
change in greenhouse gas emissions
from the existing, proposed, and
reasonably foreseeable generation
resources . . . that may connect to the
proposed project or interconnect as a
result of the proposed project.’’ 79
74 Id. P 371; 89 FR 46682, 46738 (to be codified
at 18 CFR 380.16(m)(3)(i)–(iv)).
75 Public Interest Organizations Rehearing
Request at 16–22.
76 Enacted on June 3, 2023, the Fiscal
Responsibility Act includes a section titled
‘‘Builder Act,’’ which amended NEPA in several
ways. See FISCAL RESPONSIBILITY ACT OF 2023,
Public Law 118–5, 137 Stat 10, § 321 (providing the
‘‘Builder Act’’).
77 On May 1, 2024, CEQ published its Phase 2
final rule revising its regulations implementing
NEPA, including to implement the Builder Act
amendments. CEQ, National Environmental Policy
Act Implementing Regulations Revisions Phase 2,
89 FR 35442 (May 1, 2024). CEQ’s Phase 2 final rule
became effective on July 1, 2024, and agencies have
12 months from the effective date to develop or
revise proposed procedures to implement CEQ’s
revised regulations.
78 Public Interest Organizations Rehearing
Request at 17. On May 1, 2024, DOE issued a final
rule revising its regulations under section 216(h) of
the FPA to establish a Coordinated Interagency
Transmission Authorizations and Permits (CITAP)
Program for coordinating the Federal authorization
and environmental review process for electric
transmission facilities. See DOE, Coordination of
Federal Authorizations for Electric Transmission
Facilities, 89 FR 35312 (May 1, 2024) (DOE CITAP
Final Rule). We note that, pursuant to Delegation
Order No. S1–DEL–FERC–2006, DOE delegated to
the Commission the responsibility for coordinating
the Federal authorization and environmental review
process for electric transmission facilities seeking a
permit under FPA section 216(b).
79 Public Interest Organizations Rehearing
Request at 21 (quoting CITAP Final Rule, 89 FR at
35378).
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3. Commission Determination
37. We disagree with Public Interest
Organizations’ contention that the final
rule does not ensure a rigorous analysis
of electric transmission projects’ climate
impacts. The Commission’s regulations
describe the generally applicable
information that permit applications
must include. These are minimum filing
requirements with which each
application must comply. In addition,
each project will raise unique issues
that will need to be considered on a
case-by-case basis. In Order No. 1977,
the Commission adopted regulations
requiring applicants to estimate a
proposed project’s emissions and the
corresponding impacts on air quality
and the environment. Although the
regulations are broad, greenhouse gases
are considered air pollutants by the
Environmental Protection Agency and
estimates of such emissions should be
included in the Air quality and
environmental noise resource report if
they are reasonably foreseeable, along
with associated climate impacts.
38. Public Interest Organizations’
concern that an applicant’s analysis will
be incongruous with new statutory and
regulatory authority directing
consideration of climate impacts under
NEPA is misplaced. It is the
Commission’s obligation to ensure that
its environmental analysis complies
with the most current requirements
under NEPA. And it is the
Commission’s responsibility to obtain
any additional information needed to
ensure such compliance. The
Commission’s required resource reports
are intended to support the
Commission’s environmental review
and NEPA obligations but cannot be
exhaustive of all environmental matters
that may arise in a proceeding that the
Commission may need to address. The
Commission will determine on a caseby-case basis whether additional
information is needed to analyze the
proposed project’s reasonably
foreseeable effects. This approach is
reasonable where, as is the case here,
determinations regarding the scope and
reasonable foreseeability of a proposed
project’s climate change impacts will be
complex, variable, and will turn on the
unique facts of each case.
III. Information Collection Statement
39. The Paperwork Reduction Act 80
requires each Federal agency to seek
and obtain the Office of Management
and Budget’s (OMB) approval before
undertaking a collection of information
directed to 10 or more persons or
80 44
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contained in a rule of general
applicability. OMB regulations require
approval of certain information
collection requirements contained in
final rules published in the Federal
Register.81 Upon approval of a
collection of information, OMB will
assign an OMB control number and an
expiration date. Respondents subject to
the filing requirements of a rule will not
be penalized for failing to respond to the
collection of information unless the
collection of information displays a
valid OMB control number.
40. Public Reporting Burden: On
rehearing of Order No. 1977, the
Commission is further revising its
regulations governing applications for
permits to site transmission facilities
under section 216 of the FPA. This
order on rehearing modifies certain
reporting and recordkeeping
requirements included in FERC–729
(OMB Control No. 1902–0238).82
41. Previously, the Commission
submitted to OMB the information
collection requirements arising from
Order No. 1977 and OMB approved
those requirements. In this order on
rehearing, the Commission makes one
substantive change to those
requirements. This order on rehearing
revises § 50.4(a)(5) to require applicants,
under certain circumstances, to provide
additional information describing its
efforts to engage with Tribes.
Specifically, if a right-of-way on Tribal
lands must be obtained for a proposed
84471
project, the Tribal Engagement Plan
must describe how the applicant will
engage with the relevant Indian Tribe or
individual Indian landowners to obtain
the necessary permissions, including
consent to access Tribal land to prepare
information required by the application
(e.g., to survey), if applicable. In
addition, the plan must describe how
the applicant will ensure
communications with Indian Tribes are
honest, factually accurate, and
respectful of Tribal sovereignty.
Accordingly, there is a slight increase in
the reporting requirements and burden
for FERC–729.
42. The estimated burden and cost for
the requirements contained in this order
on rehearing follow.
ANNUAL CHANGES RESULTING FROM ORDER ON REHEARING IN DOCKET NO. RM22–7–001
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Tribal Engagement Plan ........................................................
The final rule estimated the burden
and cost for the Tribal Engagement Plan
to be 24 hours and $2,400. In this order
on rehearing, we are requiring
applicants to provide additional
information in the Tribal Engagement
Plan if the proposed transmission
facilities will cross Tribal lands. We
estimate that this will result in an
increase of three burden hours.
Therefore, we estimate that the total
burden and cost for the Tribal
Engagement Plan, as revised herein, to
be 27 hours and $2,700. No other
information collection requirements
contained in Order No. 1977 are affected
by this order on rehearing.
43. Title: FERC–729—Electric
Transmission Facilities.
44. Action: Revision of information
collection FERC–729 in accordance with
Docket No. RM22–7–001.
45. OMB Control No.: 1902–0238
(FERC–729).
46. Respondents: Entities proposing to
construct electric transmission facilities
pursuant to the Commission’s authority
under section 216 of the FPA.
47. Frequency of Information
Collection: Ongoing.
48. Necessity of Information: The new
information collection requirements in
this order on rehearing are necessary for
the Commission to carry out its
81 See
5 CFR 1320.12.
includes the reporting and
recordkeeping requirements for ‘‘Electric
Transmission Facilities.’’
82 FERC–729
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Number of
respondents
Number of
responses 83 per
respondent
Total number
of responses
Avg. burden
hrs. & cost
per response 84
Total annual
burden hours &
total annual cost
(1)
(2)
(1) × (2) = (3)
(4)
(3) × (4) = 5
I
1
1
1
27 hrs.; $2,700 .....
27 hrs.; $2,700.
responsibilities under the FPA, as
amended by the IIJA, and NEPA. The
required information would enable the
Commission to review the features of
the proposed project and determine
whether the proposed project meets the
statutory criteria enumerated in section
216(b) of the FPA as well as evaluate
whether an applicant has made good
faith efforts to engage with affected
landowners and other stakeholders.
49. Internal Review: The Commission
has reviewed the revisions and has
determined that they are necessary.
These requirements conform to the
Commission’s need for efficient
information collection, communication,
and management within the energy
industry. The Commission has assured
itself, by means of internal review, that
there is specific, objective support for
the burden estimates associated with the
information collection requirements.
50. Interested persons may obtain
information on the reporting
requirements by contacting the Federal
Energy Regulatory Commission, 888
First Street NE, Washington, DC 20426
[Attention: Kayla Williams, Office of the
Executive Director], by email to
DataClearance@ferc.gov or by phone
(202) 502–6468.
51. Comments concerning the
collection of information and the
associated burden estimates may also be
sent to: Office of Information and
Regulatory Affairs, Office of
Management and Budget, 725 17th
Street NW, Washington, DC 20503
[Attention: Desk Officer for the Federal
Energy Regulatory Commission]. Due to
security concerns, comments should be
sent electronically to the following
email address: oira_submission@
omb.eop.gov. Comments submitted to
OMB should refer to FERC–729 (OMB
Control No. 1902–0238). Copies of the
comments can be sent to the
Commission (identified by Docket No.
RM22–7–001 and the specific FERC
collection number (FERC–729)
electronically through https://
www.ferc.gov. For those unable to file
electronically, comment copies may be
filed by USPS mail or by hand
(including courier) delivery: Mail via
U.S. Postal Service Only: Addressed to:
Federal Energy Regulatory Commission,
Secretary of the Commission, 888 First
Street NE, Washington, DC 20426. Or
hand (including courier) delivery:
Deliver to: Federal Energy Regulatory
Commission, 12225 Wilkins Avenue,
Rockville, MD 20852.
83 We consider the filing of an application,
including the mandatory pre-filing information, to
be a ‘‘response.’’
84 The estimates for cost per response are derived
using the following formula: Average Burden Hours
per Response * $100 per Hour = Average Cost per
Response. The hourly cost figure is the FY2024
FERC average annual salary plus benefits
($207,786/year or $100/hour). Commission staff
estimates that industry costs for salary plus benefits
are similar to Commission costs.
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IV. Environmental Analysis
52. The Commission is required to
prepare an environmental assessment or
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an environmental impact statement for
any action that may have a significant
effect on the human environment.85 The
Commission has categorically excluded
certain actions from this requirement as
not having a significant effect on the
human environment, including the
promulgation of rules that are clarifying,
corrective, or procedural, or that do not
substantially change the effect of
legislation or the regulations being
amended.86 Because the final rule
promulgated by Order No. 1977, and
revised herein, falls within this
categorical exclusion, preparation of an
environmental assessment or an
environmental impact statement is not
required.
V. Regulatory Flexibility Act
53. The Regulatory Flexibility Act of
1980 (RFA) 87 generally requires a
description and analysis of final rules
that will have significant economic
impact on a substantial number of small
entities. The RFA mandates
consideration of regulatory alternatives
that accomplish the stated objectives of
applicable statutes and minimize any
significant economic impact on small
entities.88 In lieu of preparing a
regulatory flexibility analysis, an agency
may certify that a final rule will not
have a significant economic impact on
a substantial number of small entities.89
54. The Small Business
Administration’s (SBA) Office of Size
Standards develops the numerical
definition of a small business.90 The
SBA size standard for electric utilities is
based on the number of employees,
including affiliates.91 Under SBA’s size
standards, a transmission owner
covered under the category of Electric
Bulk Power Transmission and Control
(NAICS code 221121) 92 is small if,
including its affiliates, it employs 500 or
fewer people.93
55. In Order No. 1977, the
Commission, pursuant to RFA section
605(b), certified that the final rule
would not have a significant economic
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85 Reguls.
Implementing the Nat’l Envtl. Policy
Act of 1969, Order No. 486, FERC Stats. & Regs.
¶ 30,783 (1987) (cross-referenced at 41 FERC
¶ 61,284).
86 18 CFR 380.4(a)(2)(ii).
87 5 U.S.C. 601–612.
88 Id. 603(c).
89 Id. 605(b).
90 13 CFR 121.101.
91 Id. 121.201.
92 The North American Industry Classification
System (NAICS) is an industry classification system
that Federal statistical agencies use to categorize
businesses for the purpose of collecting, analyzing,
and publishing statistical data related to the U.S.
economy. United States Census Bureau, North
American Industry Classification System, https://
www.census.gov/eos/www/naics/.
93 13 CFR 121.201 (Sector 22—Utilities).
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impact on a substantial number of small
entities.94 This order on rehearing does
not disturb that conclusion. For the
same reasons cited in Order No. 1977,95
we continue to find that the final rule,
as revised herein, would not have a
significant economic impact on a
substantial number of small entities.
VI. Document Availability
56. In addition to publishing the full
text of this document in the Federal
Register, the Commission provides all
interested persons an opportunity to
view and/or print the contents of this
document via the internet through the
Commission’s Home Page (https://
www.ferc.gov).
57. From the Commission’s Home
Page on the internet, this information is
available on eLibrary. The full text of
this document is available on eLibrary
in PDF and Microsoft Word format for
viewing, printing, and/or downloading.
To access this document in eLibrary,
type the docket number excluding the
last three digits of this document in the
docket number field.
58. User assistance is available for
eLibrary and the Commission’s website
during normal business hours from
FERC Online Support at (202) 502–6652
(toll free at 1–866–208–3676) or email at
ferconlinesupport@ferc.gov, or the
Public Reference Room at (202) 502–
8371, TTY (202) 502–8659. Email the
Public Reference Room at
public.referenceroom@ferc.gov.
VII. Effective Date
59. These regulations are effective
November 22, 2024.
List of Subjects in 18 CFR Part 50
Administrative practice and
procedure, Electric power, Reporting
and recordkeeping requirements.
By the Commission.
Issued: October 17, 2024.
Debbie-Anne A. Reese,
Secretary.
In consideration of the foregoing, the
Commission amends part 50, chapter I,
title 18, Code of Federal Regulations, as
follows:
PART 50—APPLICATIONS FOR
PERMITS TO SITE INTERSTATE
ELECTRIC TRANSMISSION FACILITIES
1. The authority citation for part 50
continues to read as follows:
■
Authority: 16 U.S.C. 824p; DOE
Delegation Order No. S1–DEL–FERC–2006.
94 Order
No. 1977, 187 FERC ¶ 61,069 at PP 427–
430.
95 See
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2. Amend § 50.4 by revising paragraph
(a)(5) to read as follows:
■
§ 50.4
Stakeholder participation.
*
*
*
*
*
(a) * * *
(5) Includes a Tribal Engagement Plan
that addresses all targeted outreach to
identified Indian Tribes. This plan must
summarize comments received from
potentially affected Indian Tribes during
any previous outreach activities and
describe planned targeted outreach
activities with such Tribes during the
pre-filing process and after the filing of
an application. This plan must also
describe how the applicant will engage
Indian Tribes about any potential
mitigation measures. If rights-of-way
over or across land owned in trust or
restricted status must be obtained, this
plan must describe how the applicant
will engage with the relevant Indian
Tribe or individual Indian landowners
to obtain the necessary permissions,
including consent to access Tribal land
to prepare information required by the
application (e.g., to survey), if
applicable, and ensure communications
with Indian Tribes are honest, factually
accurate, and respectful of Tribal
sovereignty.
*
*
*
*
*
[FR Doc. 2024–24526 Filed 10–22–24; 8:45 am]
BILLING CODE 6717–01–P
DEPARTMENT OF THE TREASURY
Office of Foreign Assets Control
31 CFR Part 588
Publication of Western Balkans
Stabilization Regulations Web General
Licenses 3A, 4, and 5
Office of Foreign Assets
Control, Treasury.
ACTION: Publication of Web General
Licenses.
AGENCY:
The Department of the
Treasury’s Office of Foreign Assets
Control (OFAC) is publishing three
general licenses (GLs) issued pursuant
to the Western Balkans Stabilization
Regulations: GLs 3A, 4, and 5, each of
which was previously made available
on OFAC’s website.
DATES: GLs 3A, 4, and 5 were issued on
June 18, 2024. See SUPPLEMENTARY
INFORMATION for additional relevant
dates.
SUMMARY:
FOR FURTHER INFORMATION CONTACT:
OFAC: Assistant Director for Licensing,
202–622–2480; Assistant Director for
Regulatory Affairs, 202–622–4855; or
E:\FR\FM\23OCR1.SGM
23OCR1
]]>Agencies
[Federal Register Volume 89, Number 205 (Wednesday, October 23, 2024)]
[Rules and Regulations]
[Pages 84465-84472]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-24526]
=======================================================================
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Parts 50 and 380
[Docket No. RM22-7-001; Order No. 1977-A]
Applications for Permits to Site Interstate Electric Transmission
Facilities
AGENCY: Federal Energy Regulatory Commission, Department of Energy.
ACTION: Final rule; Order addressing arguments raised on rehearing, and
setting aside prior order, in part.
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SUMMARY: In this order, the Federal Energy Regulatory Commission
addresses arguments raised on rehearing of Order No. 1977, which
amended the Commission's regulations governing applications for permits
to site electric transmission facilities under section 216 of the
Federal Power Act, as amended by the Infrastructure Investment and Jobs
Act of 2021, and amended its National Environmental Policy Act
procedures.
DATES: This rule is effective November 22, 2024.
FOR FURTHER INFORMATION CONTACT:
Maggie Suter (Technical Information), Office of Energy Projects,
Federal Energy Regulatory Commission, 888 First Street NE, Washington,
DC 20426, (202) 502-6344, [email protected]
Tara DiJohn Bruce (Legal Information), Office of the General Counsel,
Federal Energy Regulatory Commission, 888 First Street NE, Washington,
DC 20426, (202) 502-8671, [email protected]
SUPPLEMENTARY INFORMATION: 1. On May 13, 2024, the Federal Energy
Regulatory Commission (Commission) issued Order No. 1977.\1\ Order No.
1977 amended the Commission's regulations governing applications for
permits to site electric transmission facilities: to be consistent with
section 216 of the Federal Power Act (FPA),\2\ as amended by the
Infrastructure Investment and Jobs Act (IIJA); \3\ to modernize certain
regulatory requirements; and to incorporate other updates and
clarifications to ensure the efficient and timely review of permit
applications. On June 12, 2024, Earthjustice, Environmental Defense
Fund, Natural Resources Defense Council, Sierra Club, Sustainable FERC
Project, Union of Concerned Scientists, WE ACT for Environmental
Justice, and the Yurok Tribe (together, Public Interest Organizations);
Louisiana Public Service Commission (Louisiana Commission); New York
State Public Service Commission (New York Commission); \4\ and
Pennsylvania Public Utility Commission (Pennsylvania Commission) filed
timely requests for rehearing.
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\1\ Applications for Permits to Site Interstate Elec.
Transmission Facilities, Order No. 1977, 89 FR 46682 (May 29, 2024),
187 FERC ] 61,069 (2024).
\2\ 16 U.S.C. 824p.
\3\ Public Law 117-58, sec. 40105, 135 Stat. 429 (2021).
\4\ New York Commission seeks rehearing, or in the alternative,
clarification of Order No. 1977.
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2. Pursuant to Allegheny Defense Project v. FERC,\5\ the rehearing
requests filed in this proceeding may be deemed denied by operation of
law. However, as permitted by section 313(a) of the FPA,\6\ we are
modifying the discussion in Order No. 1977 and setting aside the order,
in part, as discussed below.\7\
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\5\ 964 F.3d 1 (D.C. Cir. 2020) (en banc).
\6\ 16 U.S.C. 825l(a) (``Until the record in a proceeding shall
have been filed in a court of appeals, as provided in subsection
(b), the Commission may at any time, upon reasonable notice and in
such manner as it shall deem proper, modify or set aside, in whole
or in part, any finding or order made or issued by it under the
provisions of this chapter.'').
\7\ Allegheny Def. Project, 964 F.3d at 16-17.
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I. Background
3. The Energy Policy Act of 2005 \8\ added section 216 to the FPA,
providing for Federal siting of electric transmission facilities under
certain circumstances.\9\ Under section 216, Federal siting authority
is divided between the U.S. Department of Energy (DOE) and the
Commission. Section 216(a) directs DOE to conduct a study and issue a
report on electric transmission congestion and authorizes DOE to
designate certain transmission-constrained or congested geographic
areas as national interest electric
[[Page 84466]]
transmission corridors (National Corridors). Section 216(b) provides
that the Commission may issue permits to construct or modify electric
transmission facilities in a designated National Corridor under
specified circumstances.
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\8\ Public Law 109-58, sec. 1221, 119 Stat. 594 (Aug. 8, 2005).
\9\ Order No. 1977 provides a more detailed discussion of the
legislative, regulatory, and judicial actions that preceded the
final rule. See Order No. 1977, 187 FERC ] 61,069 at pt I.
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4. On November 16, 2006, the Commission issued Order No. 689,\10\
which implemented new regulations for section 216 permit applications
by adding part 50 to the Commission's regulations and by modifying part
380 of the Commission's regulations implementing the National
Environmental Policy Act of 1969 (NEPA).\11\
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\10\ Reguls. for Filing Applications for Permits to Site
Interstate Elec. Transmission Facilities, Order No. 689, 117 FERC ]
61,202 (2006) (Order No. 689), reh'g denied, 119 FERC ] 61,154
(2007) (Order No. 689 Rehearing).
\11\ 42 U.S.C. 4321 et seq. See also 18 CFR pt. 380
(Commission's regulations implementing NEPA).
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5. On November 15, 2021, the IIJA amended FPA section 216. With
respect to the Commission's electric transmission siting authority, the
IIJA amended section 216(b)(1)(C) to expressly provide that the
Commission may issue a permit if a State has denied an application. As
amended, section 216(b)(1)(C) provides that the Commission's siting
authority is triggered when a State commission or other entity with
authority to approve the siting of the transmission facilities: (i) has
not made a determination on a siting application by one year after the
later of the date on which the application was filed or the date on
which the relevant National Corridor was designated; (ii) has
conditioned its approval such that the proposed project will not
significantly reduce transmission capacity constraints or congestion in
interstate commerce or is not economically feasible; or (iii) has
denied an application.\12\
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\12\ 16 U.S.C. 824p(b)(1)(C).
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6. Additionally, the IIJA amended section 216(e), which grants a
permit holder the right to acquire the necessary right-of-way by
eminent domain.\13\ As amended, section 216(e)(1) requires the
Commission to determine, as a precondition to a permit holder
exercising eminent domain authority, that the permit holder has made
good faith efforts to engage with landowners and other stakeholders
early in the applicable permitting process.\14\
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\13\ Id. 824p(e)(1).
\14\ Id.
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7. On December 15, 2022, the Commission issued a Notice of Proposed
Rulemaking (NOPR) which proposed revisions to parts 50 and 380 of the
Commission's regulations to, among other things, address the IIJA's
amendments to FPA section 216.\15\ After considering comments on the
NOPR, on May 13, 2024, the Commission issued its final rule in Order
No. 1977.
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\15\ Applications for Permits to Site Interstate Elec.
Transmission Facilities, 88 FR 2770 (Jan. 17, 2023), 181 FERC ]
61,205 (2022) (NOPR), errata notice, 182 FERC ] 61,020 (2023). The
Commission's errata notice for the NOPR, issued on January 17, 2023,
reflected certain stylistic revisions requested by the Federal
Register as well as minor, non-substantive editorial revisions.
---------------------------------------------------------------------------
8. On June 12, 2024, Public Interest Organizations, Louisiana
Commission, New York Commission, and Pennsylvania Commission requested
rehearing. The rehearing requests raise issues related to when the
Commission's jurisdiction is triggered; how State siting decisions and
evidentiary records, including comments filed in State proceedings,
will be considered in the Commission proceeding; the scope of the
Applicant Code of Conduct and the Landowner Bill of Rights; and the
analysis of climate impacts under NEPA. We address the issues raised on
rehearing below.
II. Discussion
A. Commission Jurisdiction
1. Order No. 1977
9. FPA section 216(b)(1)(C)(i), as amended by the IIJA, provides
that the Commission may issue a permit for the construction or
modification of electric transmission facilities in a National Corridor
if a State commission or other entity with authority to approve the
siting of the transmission facilities has not made a determination on a
siting application by one year after the later of the date on which the
application was filed or the date on which the relevant National
Corridor was designated.\16\ The final rule revised Sec. 50.6(e) of
the Commission's regulations, which describes the information that each
permit application must provide. As relevant here, Sec. 50.6(e)(3)(i)
requires that an applicant seeking to invoke the Commission's
jurisdiction under FPA section 216(b)(1)(C)(i) must provide, at the
time it files an application with the Commission, evidence that a State
has not made a determination on an application seeking approval
pursuant to applicable law.
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\16\ 16 U.S.C. 824p(b)(1)(c).
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2. Requests for Rehearing
10. New York Commission contends that the Commission's failure to
explain how the one-year timeframe triggering the Commission's
jurisdiction will be calculated is arbitrary and capricious.\17\
Reiterating its comments on the NOPR, New York Commission recommends
that the one-year period commence once an application is deemed
complete according to applicable State requirements.\18\ It asserts
that failure to impose such a requirement leaves the States with
significant regulatory uncertainty and could lead to incomplete
applications and rushed review.\19\ New York Commission states that the
Commission's jurisdiction should not be triggered until a year after a
complete application has been filed with the State in order to
disincentivize applicants from trying to ``game'' the system by filing
deficient applications with the State just to start and exhaust the
one-year timeframe.\20\
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\17\ New York Commission Rehearing Request at 5.
\18\ Id. at 6-7.
\19\ Id. at 6, 7.
\20\ Id. at 6.
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11. New York Commission asks the Commission to revise the final
rule to specify that, where a State has not made a determination on an
application, the Commission's jurisdiction is dependent upon the filing
of a complete application with the State.\21\ In the alternative, New
York Commission asks that the Commission clarify for prospective
applicants how the Commission will determine when the statute's one-
year period begins to run.
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\21\ Id. at 7-8.
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3. Commission Determination
12. We agree with New York Commission that the filing of a complete
application with the State is an important consideration when
Commission jurisdiction is based upon FPA section 216(b)(1)(C)(i).
However, we do not find it necessary to revise the final rule to
specify that the Commission's consideration of an application pursuant
to FPA section 216(b)(1)(C)(i) must hinge upon the filing of a complete
application with the State.\22\ As the Commission explained previously,
our regulations require that the applicant file information concerning
the status of the applicant's filings before State agencies at various
points during the Commission's pre-
[[Page 84467]]
filing process.\23\ Specifically, Sec. 50.5(b)(3) requires that the
applicant, at the initial consultation meeting in pre-filing, discuss
when it filed its application with the State and the status of that
application. Section 50.5(c)(5) requires that the applicant's pre-
filing request describe any work completed or actions taken in
conjunction with the State proceeding. Finally, under Sec.
50.6(e)(3)(i), the applicant must provide evidence, at the time an
application is filed with the Commission, that the State has not made a
determination on an application seeking approval under applicable law.
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\22\ We note that FPA section 216(b)(1)(C)(i) provides that the
Commission may issue a permit if a State has not made a
determination on an application by the date that is one year after
the date on which the application was filed, or the date on which
the relevant National Corridor was designated, whichever is later.
But the statute does not explicitly state that the one-year period
is triggered by the filing of a complete application. Compare 16
U.S.C. 824p(b)(1)(C)(i) with id. 824p(b)(h)(4)(B) (requiring all
permit decisions and environmental reviews be completed within one
year ``once an application has been submitted with such data as the
Secretary [of Energy] considers necessary'')
\23\ Order No. 689 Rehearing, 119 FERC ] 61,154 at P 34.
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13. The Commission will take into account all information provided
by the applicant and stakeholders, including the relevant States,
concerning the timing and status of the State proceeding in determining
whether an application meets the requirements of FPA section
216(b)(1)(C)(i). When rendering a decision on a permit application, the
Commission will consider, on a case-by-case basis, arguments regarding
whether one year has passed from the date on which the application was
filed with the State, including any assertion that such application was
incomplete. We find this measured, case-specific approach is
appropriate because such a determination will be informed by the
specific facts presented in any given proceeding including, as
applicable, State-specific laws and regulations.
14. Moreover, we note that in Order No. 1977 the Commission
declined to adopt the NOPR proposal to allow simultaneous
processing.\24\ This proposal would have allowed the Commission's pre-
filing process to begin once an application had been filed with the
State.\25\ In declining to adopt simultaneous processing, the
Commission continues to recognize the States' primacy in transmission
siting and afford States one full year to process an application
without any overlapping Commission processes.\26\ An applicant may
request to begin the Commission's pre-filing process only after that
year has passed.
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\24\ Order No. 1977, 187 FERC ] 61,069 at PP 53-54.
\25\ See id. PP 53-54.
\26\ See id. P 40.
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B. State Siting Proceedings
1. Order No. 1977
15. Section 50.6(e) requires an application to provide evidence
demonstrating that one of the jurisdictional bases set forth in FPA
section 216(b)(1) applies to the proposed facilities. In addition,
Sec. 50.6(f) provides that an application must also demonstrate that
the proposed facilities meet the statutory criteria in FPA sections
216(b)(2) through (6), including, among other things, that the proposal
is consistent with the public interest.
16. In Order No. 1977, the Commission adopted revisions to Sec.
50.6(e) for consistency with the IIJA's amendments to FPA section
216(b)(1).\27\ The IIJA did not amend the criteria in section 216(b)(2)
through (6). Therefore, Order No. 1977 did not revise Sec. 50.6(f). In
response to comments on the NOPR, the Commission declined to adopt a
requirement that an applicant file with the Commission all comments
submitted in a relevant State siting proceeding.\28\
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\27\ Id. P 33.
\28\ Id. P 216.
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2. Requests for Rehearing
17. Louisiana Commission seeks rehearing of Order No. 1977, arguing
that the final rule intrudes on State authority and fails to require
consideration of a State's siting decision and the associated
evidentiary record.\29\ It asserts that a State's decision on a siting
application is deserving of deference and should be presumed correct,
with the burden of proof on the applicant in the Federal proceeding to
overcome that presumption.\30\ Louisiana Commission urges the
Commission to defer, or at least consider and afford great weight, to a
State's findings.\31\
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\29\ Louisiana Commission Rehearing Request at 5, 7-8.
\30\ Id. at 8.
\31\ Id.
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18. Public Interest Organizations assert that the Commission should
incorporate all public comments in the State permitting docket into the
administrative record for any subsequent Federal permitting
proceeding.\32\ They contend that comments in State permitting
processes are generally public and incorporating them in the
Commission's docket, even absent explicit permission, will not harm
commenters' interests.\33\ Rather, Public Interest Organizations note
that this practice would benefit commenters by eliminating the
``procedural trap'' of requiring commenters in a State proceeding to
resubmit any input to the Commission.\34\ They also posit that
incorporating all comments filed at the State level would help ensure
that the Commission has a full administrative record containing all
information relevant to the State's decision and that the Commission's
permit decision is legally defensible.\35\
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\32\ Public Interest Organizations Rehearing Request at 23-34.
\33\ Id. at 23.
\34\ Id. at 24.
\35\ Id.
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3. Commission Determination
19. The Commission has previously stated that in reviewing a
request for a permit to site electric transmission facilities it will
consider the record in its entirety, including any information filed
regarding actions or findings made in the State proceeding.\36\ We
reaffirm that commitment here. Nevertheless, we note that, although the
Commission will consider the outcome and relevant findings of State
siting decisions, the State's decision is not determinative under the
section 216 framework. If the Commission finds that the statutory
criteria under section 216(b) have been met, it may issue a permit to
construct or modify electric transmission facilities in a National
Corridor notwithstanding a State's denial of the same.\37\ The
Commission's consideration, as described in the final rule, of whether
an application meets the statutory criteria for Commission jurisdiction
does not improperly intrude upon State authority.
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\36\ Order No. 689 Rehearing, 119 FERC ] 61,154 at P 4.
\37\ 16 U.S.C. 824p(b)(1)(C)(iii).
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20. When filings made in a Commission proceeding reference
information in a State siting proceeding, to the extent that the
Commission may find certain elements of the State siting proceeding
useful in its decision-making process, it may request that the
applicant file this information in the Commission's record, as needed,
on a case-by-case basis.\38\ We continue to find that incorporating the
State record in its entirety into the Commission's record would require
the submission and review of information that may not be relevant to
the Commission proceeding.\39\
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\38\ Order No. 1977, 187 FERC ] 61,069 at P 256.
\39\ Id.
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21. We disagree that we are creating a ``procedural trap'' or
imperiling the legal defensibility of our orders by declining to
mandate that all comments in the State proceeding be filed in the
Commission's docket. The commencement of the pre-filing process and the
filing of an application are both milestones that trigger requirements
that an applicant notify stakeholders. These requirements are intended
to encourage stakeholder participation and disseminate information
about the proposed project and about how to
[[Page 84468]]
participate in the Commission's pre-filing and application processes.
In particular, applicants must make a good faith effort to notify,
among other stakeholders, any known individuals or organizations that
have expressed an interest in the State siting proceeding.\40\ In
addition, the applicant's Pre-filing Notification must explain that the
Commission's pre-filing and application processes are separate from any
ongoing State siting proceeding and describe the status of any such
State siting proceeding.\41\ We believe these provisions are sufficient
to ensure that stakeholders are made aware of the Commission's separate
proceeding and how to participate in it, and that stakeholders can then
decide whether to file with the Commission information that they have
provided to the State.
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\40\ 18 CFR 50.4(c)(1).
\41\ Id. Sec. 50.4(c)(2)(i)(H).
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22. Moreover, as previously noted, in Order No. 1977 the Commission
declined to adopt the NOPR proposal to allow simultaneous
processing.\42\ This means that, in cases where the Commission's
jurisdiction rests on the pendency of a State's siting determination
(i.e., FPA section 216(b)(1)(C)(i)), the pre-filing process will not
begin until at least one year after applications have been filed with
the relevant States.\43\ The one-year delay between initiation of the
State and Federal processes increases the possibility that comments
filed in the State siting proceeding may contain outdated information
or may not fully reflect the filer's views with respect to the
subsequent Commission proceeding. For these reasons, we continue to
find it unnecessary to impose a generic requirement that all comments
filed in a State siting proceeding should be incorporated into any
subsequent Commission proceeding. This does not preclude interested
parties from submitting for the Commission's consideration information
from the State proceeding.
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\42\ Order No. 1977, 187 FERC ] 61,069 at P 53.
\43\ Id. P 54.
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C. Applicant Code of Conduct Applicability
1. Order No. 1977
23. Section 216(e)(1) of the FPA, as amended by the IIJA, requires
the Commission to determine, as a prerequisite to a permit holder
receiving eminent domain authority, that the permit holder has made
good faith efforts to engage with landowners and other stakeholders
early in the applicable permitting process.\44\ In Order No. 1977, the
Commission adopted an Applicant Code of Conduct as one way that an
applicant may demonstrate that it has made good faith efforts to engage
with landowners.\45\ The Commission further explained that an applicant
may choose an alternative method of demonstrating that it meets the
good faith efforts standard, so long as it explains how its alternative
method is equal to or better than compliance with the Applicant Code of
Conduct.\46\ In response to comments about the statute's requirement to
make good faith efforts to engage with ``other stakeholders'' in
addition to landowners, Order No. 1977 explained that applicants will
bear the burden of demonstrating good faith efforts to engage with
stakeholders other than landowners and that the Commission will
evaluate these efforts on a case-by-case basis, based on the record in
each individual proceeding.\47\
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\44\ 16 U.S.C. 824p(e)(1).
\45\ Order No. 1977, 187 FERC ] 61,069 at PP 73-74.
\46\ Id. P 82.
\47\ Id. P 84.
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2. Rehearing Requests
24. First, Public Interest Organizations contend that the
Commission erred by not extending the Applicant Code of Conduct to all
stakeholders or, in the alternative, by not adding to the regulations a
requirement that applicants demonstrate that they have made good faith
efforts to engage with other stakeholders.\48\ To comply with the FPA's
good faith efforts requirement, Public Interest Organizations argue
that the Applicant Code of Conduct must be applied to all landowners
and other stakeholders.\49\ They generally argue this would provide a
clear path for applicants to satisfy the statutory requirement and that
many of the provisions in the Applicant Code of Conduct are not
landowner-specific and apply equally to all stakeholders (e.g.,
maintaining a discussion log; ensuring communications are factually
correct and respectful; avoiding harassing, coercive, manipulative, or
intimidating communications or high-pressure tactics).\50\ In the
alternative, Public Interest Organizations argue that the Commission
must revise its regulations to make clear that the applicant must
engage in good faith with all stakeholders.\51\
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\48\ Public Interest Organizations Rehearing Request at 2.
\49\ Id. at 2-6.
\50\ Id. at 5-6.
\51\ Id. at 7-8.
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25. Second, Public Interest Organizations assert that if the
Applicant Code of Conduct is not extended to all stakeholders it
should, at a minimum, apply to an applicant's engagement with Indian
Tribes.\52\ Citing that the Commission's reasoning for limiting
applicability of the Code of Conduct is to protect landowners whose
property may be used or acquired, Public Interest Organizations note
that ``these same early-in-the-process protections of honest dealings,
consent to enter lands, and documentation of engagement are also
necessary to protect Tribes whose remaining resources may be affected,
particularly on reservations or lands otherwise held by a Tribe, as
well as on Tribes' ancestral lands.'' \53\
---------------------------------------------------------------------------
\52\ See id. at 8-16.
\53\ Id. at 10.
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26. Third, Public Interest Organizations urge the Commission to
clarify two statements in Order No. 1977's preamble regarding Tribal
land ownership. They ask the Commission to recognize that Tribes: (1)
meet the Commission's definition of ``affected landowners'' regardless
of whether their land is held in fee or in trust,\54\ and (2) retain
their sovereign right to exclude nonmembers from reservation land,
regardless of the applicability of the Applicant Code of Conduct.\55\
---------------------------------------------------------------------------
\54\ Id. at 12-15.
\55\ Id. at 15-16.
---------------------------------------------------------------------------
3. Commission Determination
27. Order No. 1977 did not err by adopting an Applicant Code of
Conduct that focuses on an applicant's engagement with affected
landowners. As the Commission previously explained, the Applicant Code
of Conduct specifies recordkeeping and information-sharing requirements
that are tailored to encourage productive and more sustained engagement
with affected landowners regarding the use or acquisition of their
property.\56\ The interests of other individual stakeholders may vary
in timing and scope, and the amount and type of engagement with each
stakeholder will need to be adapted to case-specific circumstances. We
continue to find that the most appropriate way to determine whether an
applicant has made good faith efforts to engage with other stakeholders
is based on the record in each individual proceeding. As the Commission
previously explained, the burden is on the applicant to show that the
good faith efforts standard is met with respect to stakeholders.\57\ In
evaluating whether this showing is met, we will consider, among other
things, an applicant's efforts to engage stakeholders as described in
the Project
[[Page 84469]]
Participation Plan (including engagement with environmental justice
communities and Tribes) and monthly status reports filed during pre-
filing, as well as compliance with project notification
requirements.\58\ The Commission will also consider other record
information, such as comments filed by stakeholders.
---------------------------------------------------------------------------
\56\ Order No. 1977, 187 FERC ] 61,069 at P 84.
\57\ Id.
\58\ Id.
---------------------------------------------------------------------------
28. The Commission has explained that it will make this
determination at the time it renders a decision on a permit
application.\59\ We intend to evaluate an applicant's engagement with
affected landowners based on compliance with the Applicant Code of
Conduct, or an alternative method, and an applicant's engagement with
other stakeholders based on the record in the proceeding. This approach
will provide the Commission with sufficient information to determine
whether an applicant has made good faith efforts, and the Commission
did not err by declining to either adopt specific criteria or
regulatory text reiterating the statutory obligation with respect to
other stakeholders.\60\
---------------------------------------------------------------------------
\59\ Id. P 78.
\60\ We note that, to the extent relevant, nothing precludes
applicants from applying generic principles of good faith engagement
from the Applicant Code of Conduct to interactions with other
stakeholders.
---------------------------------------------------------------------------
29. As to Public Interest Organizations' second argument, we
similarly find that Order No. 1977 did not err by declining to extend
the Applicant Code of Conduct to an applicant's engagement with Tribes.
As noted above, we think it appropriate that the Applicant Code of
Conduct focuses on affected landowners whose property is most likely to
be affected by a proposed project--e.g., property that will be crossed
or used, abutting property that may be affected by minor adjustments to
the route or project facilities, or property containing residences in
close proximity to construction areas--and whose property may be
subject to eminent domain. Section 216(e) authorizes a permit holder to
use eminent domain to acquire the necessary right-of-way to construct,
operate, and maintain transmission facilities. But section 216(e)(1)
expressly excludes property owned by the United States from the type of
property that can be acquired by eminent domain, and Tribal reservation
or trust lands are owned by the United States and held in trust for the
benefit of Tribes. Therefore, an applicant may not acquire rights-of-
way across these lands using eminent domain under section 216(e).
Rather, an applicant must apply to the U.S. Department of the
Interior's Bureau of Indian Affairs (BIA) for right-of-way
authorization to cross Tribal land and comply with the relevant BIA
regulations.\61\
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\61\ It appears that BIA regulations require an applicant for
right-of way authorization to obtain consent from the Tribe or
individual Indian landowner. See 25 CFR 169.107.
---------------------------------------------------------------------------
30. Nevertheless, due to the unique and complex nature of Tribal
land ownership, we are modifying the Tribal Engagement Plan to add
requirements that will apply if rights-of-way on land owned in trust or
restricted status must be obtained for a proposed project.\62\
Specifically, if a proposed project will require this type of right-of-
way authorization, the Tribal Engagement Plan must describe how the
applicant will engage with the relevant Indian Tribe or individual
Indian landowners to obtain the necessary permissions, including
consent to access Tribal land to prepare information required by the
application (e.g., to survey), if applicable, and ensure that
communications with Indian Tribes are honest, factually accurate, and
respectful of Tribal sovereignty. These additional requirements, if
applicable, will apply to all applicants regardless of whether they
choose to comply with the Applicant Code of Conduct.\63\ We clarify
that the definition of affected landowner does not specifically
encompass Indian Tribes or individual Indian landowners located on
Tribal reservations or trust lands owned by the United States and held
in trust for the benefit of Tribes.
---------------------------------------------------------------------------
\62\ BIA's regulations provide that ``trust or restricted
status'' means: ``(1) That the United States holds title to the
tract or interest in trust for the benefit of one or more tribes
and/or individual Indians; or (2) That one or more tribes and/or
individual Indians holds title to the tract or interest, but can
alienate or encumber it only with the approval of the United States
because of limitations in the conveyance instrument under Federal
law or limitations in Federal law.'' 25 CFR 169.2.
\63\ As in the final rule, we note that the Tribal Engagement
Plan does not affect and is separate from the Commission's
consultation practices under its Tribal Consultation Policy, as well
as existing trust responsibilities and government-to-government
relationships with Tribes. Pol'y Statement on Consultation with
Indian Tribes in Comm'n Procs., Order No. 635, 104 FERC ] 61,108
(2003), revised, Order No. 863, 169 FERC ] 61,036 (2019). The Tribal
Consultation Policy is codified at 18 CFR 2.1c. The Commission also
has separate responsibilities to consult with Tribes under section
106 of the National Historic Preservation Act.
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31. Finally, in response to Public Interest Organizations' request,
we clarify a statement in Order No. 1977's preamble regarding the need
to obtain consent to enter Tribal lands. The statement was in reference
to applicability of a specific provision of the Applicant Code of
Conduct that requires an applicant to obtain an affected landowner's
permission prior to accessing their property to survey.\64\ We
recognize and clarify that a Tribe's right to exclude, or condition the
presence of, nonmembers on Tribal lands is well-established.\65\
Nothing in Order No. 1977, as revised herein, is intended to or can
infringe upon Tribal sovereignty.
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\64\ See Order No. 1977, 187 FERC ] 61,069 at P 94 (``Regarding
Tribal concerns for obtaining consent to enter Tribal lands, we
clarify that the Applicant Code of Conduct would apply to land owned
in fee by a Tribe or member of a Tribe, so Sec. 50.12(a)(9) would
require approval from the Tribe or member of a Tribe under those
circumstances.'').
\65\ See, e.g., State of Montana v. U.S., 450 U.S. 544, 557
(1981) (Tribe may prohibit nonmembers from hunting or fishing on
land belonging to the Tribe or held by the United States in trust
for the Tribe or it may place conditions upon their entry upon the
same); Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 144 (1982)
(``Nonmembers who lawfully enter tribal lands remain subject to the
tribe's power to exclude them. This power necessarily includes the
lesser power to place conditions on entry, on continued presence, or
on reservation conduct, such as a tax on business activities
conducted on the reservation.'').
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D. Landowner Bill of Rights
1. Order No. 1977
32. In Order No. 1977, the Commission adopted a new project
notification requirement to ensure that any Pre-filing Notification
that an applicant mails to an affected landowner include a copy of a
Commission document titled ``Landowner Bill of Rights in Federal Energy
Regulatory Commission Electric Transmission Proceedings'' (Landowner
Bill of Rights).\66\ The Commission explained that requiring applicants
to provide this document at the outset of the permitting process would
help ensure that affected landowners are informed of their rights in
dealings with the applicant, in Commission proceedings, and in eminent
domain proceedings.\67\
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\66\ Order No. 1977, 187 FERC ] 61,069 at P 202 & app. A
(providing final version of the Landowner Bill of Rights).
\67\ Id. P 196.
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2. Rehearing Requests
33. Pennsylvania Commission argues that the Commission's decision
to require its Landowner Bill of Rights was arbitrary and capricious,
an abuse of discretion, and not reasoned decision-making.\68\
Pennsylvania Commission asserts that the Commission failed to consider
Pennsylvania Commission's proffered alternative that the Commission
endorse State-designed Landowner Bill of Rights for those States
willing to engage with the Commission on the contents of the
document.\69\ It also faults the
[[Page 84470]]
Commission-developed Landowner Bill of Rights because it does not
mention State siting jurisdiction and gives the impression that Federal
permit applications are the only proceedings that matter.\70\
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\68\ Pennsylvania Commission Rehearing Request at 2.
\69\ Id. at 4.
\70\ Id. at 5.
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3. Commission Determination
34. In Order No. 1977, the Commission considered and ultimately
disagreed with Pennsylvania Commission's recommendation that
modifications to the Landowner Bill of Rights, including State-designed
versions of the document, should be permissible.\71\ The Commission
explained that the purpose of requiring applicants to provide the
Landowner Bill of Rights with the Pre-filing Notification is to ensure
that affected landowners are informed in a consistent manner of their
rights. Allowing applicants to modify or develop their own version of
the Landowner Bill of Rights, even with State input, could result in
uncertainty and confusion.\72\ We continue to find that to be the case.
Endorsing various, potentially conflicting, documents that are specific
to each State would be a confusing and inefficient approach. Requiring
applicants to provide affected landowners with a copy of the Landowner
Bill of Rights--a generic document developed by the Commission and
intended to provide information about the Federal permitting process in
a broad and consistent manner--does not preclude an applicant from
providing additional information to landowners about additional rights
under State law or ongoing State siting proceedings, if applicable.
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\71\ See Order No. 1977, 187 FERC ] 61,069 at PP 197, 203.
\72\ See id. P 203.
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E. Climate Impacts Analysis Under NEPA
1. Order No. 1977
35. In Order No. 1977, the Commission adopted a new environmental
resource report that requires an applicant to provide information on
proposed transmission facilities' impacts on air quality and
environmental noise.\73\ As relevant here, the Air quality and
environmental noise resource report requires an applicant to estimate
emissions from the proposed project and the corresponding impacts on
air quality and the environment. Specifically, the report must disclose
the reasonably foreseeable emissions from construction, operation, and
maintenance of the project facilities; compare those emissions with
applicable General Conformity thresholds for each designated
nonattainment or maintenance area; identify the corresponding impacts
on communities and the environment in the project area; and describe
any proposed mitigation measures to control emissions.\74\
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\73\ Id. PP 379-386.
\74\ Id. P 371; 89 FR 46682, 46738 (to be codified at 18 CFR
380.16(m)(3)(i)-(iv)).
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2. Rehearing Requests
36. Public Interest Organizations assert that the Commission must
require a more rigorous analysis of electric transmission projects'
climate impacts under NEPA.\75\ They generally argue that the final
rule's failure to explicitly require applicants to analyze climate
impacts is out of step with recent legal developments, including the
Fiscal Responsibility Act of 2023,\76\ the Council on Environmental
Quality's (CEQ) Phase 2 final rule,\77\ and DOE's section 216(h)
rule.\78\ Public Interest Organizations urge the Commission to adopt
relevant language from DOE's regulations and require applicants to
``[e]stimate the reasonably foreseeable change in greenhouse gas
emissions from the existing, proposed, and reasonably foreseeable
generation resources . . . that may connect to the proposed project or
interconnect as a result of the proposed project.'' \79\
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\75\ Public Interest Organizations Rehearing Request at 16-22.
\76\ Enacted on June 3, 2023, the Fiscal Responsibility Act
includes a section titled ``Builder Act,'' which amended NEPA in
several ways. See FISCAL RESPONSIBILITY ACT OF 2023, Public Law 118-
5, 137 Stat 10, Sec. 321 (providing the ``Builder Act'').
\77\ On May 1, 2024, CEQ published its Phase 2 final rule
revising its regulations implementing NEPA, including to implement
the Builder Act amendments. CEQ, National Environmental Policy Act
Implementing Regulations Revisions Phase 2, 89 FR 35442 (May 1,
2024). CEQ's Phase 2 final rule became effective on July 1, 2024,
and agencies have 12 months from the effective date to develop or
revise proposed procedures to implement CEQ's revised regulations.
\78\ Public Interest Organizations Rehearing Request at 17. On
May 1, 2024, DOE issued a final rule revising its regulations under
section 216(h) of the FPA to establish a Coordinated Interagency
Transmission Authorizations and Permits (CITAP) Program for
coordinating the Federal authorization and environmental review
process for electric transmission facilities. See DOE, Coordination
of Federal Authorizations for Electric Transmission Facilities, 89
FR 35312 (May 1, 2024) (DOE CITAP Final Rule). We note that,
pursuant to Delegation Order No. S1-DEL-FERC-2006, DOE delegated to
the Commission the responsibility for coordinating the Federal
authorization and environmental review process for electric
transmission facilities seeking a permit under FPA section 216(b).
\79\ Public Interest Organizations Rehearing Request at 21
(quoting CITAP Final Rule, 89 FR at 35378).
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3. Commission Determination
37. We disagree with Public Interest Organizations' contention that
the final rule does not ensure a rigorous analysis of electric
transmission projects' climate impacts. The Commission's regulations
describe the generally applicable information that permit applications
must include. These are minimum filing requirements with which each
application must comply. In addition, each project will raise unique
issues that will need to be considered on a case-by-case basis. In
Order No. 1977, the Commission adopted regulations requiring applicants
to estimate a proposed project's emissions and the corresponding
impacts on air quality and the environment. Although the regulations
are broad, greenhouse gases are considered air pollutants by the
Environmental Protection Agency and estimates of such emissions should
be included in the Air quality and environmental noise resource report
if they are reasonably foreseeable, along with associated climate
impacts.
38. Public Interest Organizations' concern that an applicant's
analysis will be incongruous with new statutory and regulatory
authority directing consideration of climate impacts under NEPA is
misplaced. It is the Commission's obligation to ensure that its
environmental analysis complies with the most current requirements
under NEPA. And it is the Commission's responsibility to obtain any
additional information needed to ensure such compliance. The
Commission's required resource reports are intended to support the
Commission's environmental review and NEPA obligations but cannot be
exhaustive of all environmental matters that may arise in a proceeding
that the Commission may need to address. The Commission will determine
on a case-by-case basis whether additional information is needed to
analyze the proposed project's reasonably foreseeable effects. This
approach is reasonable where, as is the case here, determinations
regarding the scope and reasonable foreseeability of a proposed
project's climate change impacts will be complex, variable, and will
turn on the unique facts of each case.
III. Information Collection Statement
39. The Paperwork Reduction Act \80\ requires each Federal agency
to seek and obtain the Office of Management and Budget's (OMB) approval
before undertaking a collection of information directed to 10 or more
persons or
[[Page 84471]]
contained in a rule of general applicability. OMB regulations require
approval of certain information collection requirements contained in
final rules published in the Federal Register.\81\ Upon approval of a
collection of information, OMB will assign an OMB control number and an
expiration date. Respondents subject to the filing requirements of a
rule will not be penalized for failing to respond to the collection of
information unless the collection of information displays a valid OMB
control number.
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\80\ 44 U.S.C. 3501-3521.
\81\ See 5 CFR 1320.12.
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40. Public Reporting Burden: On rehearing of Order No. 1977, the
Commission is further revising its regulations governing applications
for permits to site transmission facilities under section 216 of the
FPA. This order on rehearing modifies certain reporting and
recordkeeping requirements included in FERC-729 (OMB Control No. 1902-
0238).\82\
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\82\ FERC-729 includes the reporting and recordkeeping
requirements for ``Electric Transmission Facilities.''
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41. Previously, the Commission submitted to OMB the information
collection requirements arising from Order No. 1977 and OMB approved
those requirements. In this order on rehearing, the Commission makes
one substantive change to those requirements. This order on rehearing
revises Sec. 50.4(a)(5) to require applicants, under certain
circumstances, to provide additional information describing its efforts
to engage with Tribes. Specifically, if a right-of-way on Tribal lands
must be obtained for a proposed project, the Tribal Engagement Plan
must describe how the applicant will engage with the relevant Indian
Tribe or individual Indian landowners to obtain the necessary
permissions, including consent to access Tribal land to prepare
information required by the application (e.g., to survey), if
applicable. In addition, the plan must describe how the applicant will
ensure communications with Indian Tribes are honest, factually
accurate, and respectful of Tribal sovereignty. Accordingly, there is a
slight increase in the reporting requirements and burden for FERC-729.
42. The estimated burden and cost for the requirements contained in
this order on rehearing follow.
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\83\ We consider the filing of an application, including the
mandatory pre-filing information, to be a ``response.''
\84\ The estimates for cost per response are derived using the
following formula: Average Burden Hours per Response * $100 per Hour
= Average Cost per Response. The hourly cost figure is the FY2024
FERC average annual salary plus benefits ($207,786/year or $100/
hour). Commission staff estimates that industry costs for salary
plus benefits are similar to Commission costs.
Annual Changes Resulting From Order on Rehearing in Docket No. RM22-7-001
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of
Number of responses \83\ per Total number of Avg. burden hrs. & cost Total annual burden hours &
respondents respondent responses per response \84\ total annual cost
(1) (2) (1) x (2) = (3) (4)......................... (3) x (4) = 5
--------------------------------------------------------------------------------------------------------------------------------------------------------
Tribal Engagement Plan.............. 1 1 1 27 hrs.; $2,700............. 27 hrs.; $2,700.
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The final rule estimated the burden and cost for the Tribal
Engagement Plan to be 24 hours and $2,400. In this order on rehearing,
we are requiring applicants to provide additional information in the
Tribal Engagement Plan if the proposed transmission facilities will
cross Tribal lands. We estimate that this will result in an increase of
three burden hours. Therefore, we estimate that the total burden and
cost for the Tribal Engagement Plan, as revised herein, to be 27 hours
and $2,700. No other information collection requirements contained in
Order No. 1977 are affected by this order on rehearing.
43. Title: FERC-729--Electric Transmission Facilities.
44. Action: Revision of information collection FERC-729 in
accordance with Docket No. RM22-7-001.
45. OMB Control No.: 1902-0238 (FERC-729).
46. Respondents: Entities proposing to construct electric
transmission facilities pursuant to the Commission's authority under
section 216 of the FPA.
47. Frequency of Information Collection: Ongoing.
48. Necessity of Information: The new information collection
requirements in this order on rehearing are necessary for the
Commission to carry out its responsibilities under the FPA, as amended
by the IIJA, and NEPA. The required information would enable the
Commission to review the features of the proposed project and determine
whether the proposed project meets the statutory criteria enumerated in
section 216(b) of the FPA as well as evaluate whether an applicant has
made good faith efforts to engage with affected landowners and other
stakeholders.
49. Internal Review: The Commission has reviewed the revisions and
has determined that they are necessary. These requirements conform to
the Commission's need for efficient information collection,
communication, and management within the energy industry. The
Commission has assured itself, by means of internal review, that there
is specific, objective support for the burden estimates associated with
the information collection requirements.
50. Interested persons may obtain information on the reporting
requirements by contacting the Federal Energy Regulatory Commission,
888 First Street NE, Washington, DC 20426 [Attention: Kayla Williams,
Office of the Executive Director], by email to [email protected]
or by phone (202) 502-6468.
51. Comments concerning the collection of information and the
associated burden estimates may also be sent to: Office of Information
and Regulatory Affairs, Office of Management and Budget, 725 17th
Street NW, Washington, DC 20503 [Attention: Desk Officer for the
Federal Energy Regulatory Commission]. Due to security concerns,
comments should be sent electronically to the following email address:
[email protected]. Comments submitted to OMB should refer to
FERC-729 (OMB Control No. 1902-0238). Copies of the comments can be
sent to the Commission (identified by Docket No. RM22-7-001 and the
specific FERC collection number (FERC-729) electronically through
https://www.ferc.gov. For those unable to file electronically, comment
copies may be filed by USPS mail or by hand (including courier)
delivery: Mail via U.S. Postal Service Only: Addressed to: Federal
Energy Regulatory Commission, Secretary of the Commission, 888 First
Street NE, Washington, DC 20426. Or hand (including courier) delivery:
Deliver to: Federal Energy Regulatory Commission, 12225 Wilkins Avenue,
Rockville, MD 20852.
IV. Environmental Analysis
52. The Commission is required to prepare an environmental
assessment or
[[Page 84472]]
an environmental impact statement for any action that may have a
significant effect on the human environment.\85\ The Commission has
categorically excluded certain actions from this requirement as not
having a significant effect on the human environment, including the
promulgation of rules that are clarifying, corrective, or procedural,
or that do not substantially change the effect of legislation or the
regulations being amended.\86\ Because the final rule promulgated by
Order No. 1977, and revised herein, falls within this categorical
exclusion, preparation of an environmental assessment or an
environmental impact statement is not required.
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\85\ Reguls. Implementing the Nat'l Envtl. Policy Act of 1969,
Order No. 486, FERC Stats. & Regs. ] 30,783 (1987) (cross-referenced
at 41 FERC ] 61,284).
\86\ 18 CFR 380.4(a)(2)(ii).
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V. Regulatory Flexibility Act
53. The Regulatory Flexibility Act of 1980 (RFA) \87\ generally
requires a description and analysis of final rules that will have
significant economic impact on a substantial number of small entities.
The RFA mandates consideration of regulatory alternatives that
accomplish the stated objectives of applicable statutes and minimize
any significant economic impact on small entities.\88\ In lieu of
preparing a regulatory flexibility analysis, an agency may certify that
a final rule will not have a significant economic impact on a
substantial number of small entities.\89\
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\87\ 5 U.S.C. 601-612.
\88\ Id. 603(c).
\89\ Id. 605(b).
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54. The Small Business Administration's (SBA) Office of Size
Standards develops the numerical definition of a small business.\90\
The SBA size standard for electric utilities is based on the number of
employees, including affiliates.\91\ Under SBA's size standards, a
transmission owner covered under the category of Electric Bulk Power
Transmission and Control (NAICS code 221121) \92\ is small if,
including its affiliates, it employs 500 or fewer people.\93\
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\90\ 13 CFR 121.101.
\91\ Id. 121.201.
\92\ The North American Industry Classification System (NAICS)
is an industry classification system that Federal statistical
agencies use to categorize businesses for the purpose of collecting,
analyzing, and publishing statistical data related to the U.S.
economy. United States Census Bureau, North American Industry
Classification System, https://www.census.gov/eos/www/naics/.
\93\ 13 CFR 121.201 (Sector 22--Utilities).
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55. In Order No. 1977, the Commission, pursuant to RFA section
605(b), certified that the final rule would not have a significant
economic impact on a substantial number of small entities.\94\ This
order on rehearing does not disturb that conclusion. For the same
reasons cited in Order No. 1977,\95\ we continue to find that the final
rule, as revised herein, would not have a significant economic impact
on a substantial number of small entities.
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\94\ Order No. 1977, 187 FERC ] 61,069 at PP 427-430.
\95\ See id.
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VI. Document Availability
56. In addition to publishing the full text of this document in the
Federal Register, the Commission provides all interested persons an
opportunity to view and/or print the contents of this document via the
internet through the Commission's Home Page (https://www.ferc.gov).
57. From the Commission's Home Page on the internet, this
information is available on eLibrary. The full text of this document is
available on eLibrary in PDF and Microsoft Word format for viewing,
printing, and/or downloading. To access this document in eLibrary, type
the docket number excluding the last three digits of this document in
the docket number field.
58. User assistance is available for eLibrary and the Commission's
website during normal business hours from FERC Online Support at (202)
502-6652 (toll free at 1-866-208-3676) or email at
[email protected], or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. Email the Public Reference Room at
[email protected].
VII. Effective Date
59. These regulations are effective November 22, 2024.
List of Subjects in 18 CFR Part 50
Administrative practice and procedure, Electric power, Reporting
and recordkeeping requirements.
By the Commission.
Issued: October 17, 2024.
Debbie-Anne A. Reese,
Secretary.
In consideration of the foregoing, the Commission amends part 50,
chapter I, title 18, Code of Federal Regulations, as follows:
PART 50--APPLICATIONS FOR PERMITS TO SITE INTERSTATE ELECTRIC
TRANSMISSION FACILITIES
0
1. The authority citation for part 50 continues to read as follows:
Authority: 16 U.S.C. 824p; DOE Delegation Order No. S1-DEL-
FERC-2006.
0
2. Amend Sec. 50.4 by revising paragraph (a)(5) to read as follows:
Sec. 50.4 Stakeholder participation.
* * * * *
(a) * * *
(5) Includes a Tribal Engagement Plan that addresses all targeted
outreach to identified Indian Tribes. This plan must summarize comments
received from potentially affected Indian Tribes during any previous
outreach activities and describe planned targeted outreach activities
with such Tribes during the pre-filing process and after the filing of
an application. This plan must also describe how the applicant will
engage Indian Tribes about any potential mitigation measures. If
rights-of-way over or across land owned in trust or restricted status
must be obtained, this plan must describe how the applicant will engage
with the relevant Indian Tribe or individual Indian landowners to
obtain the necessary permissions, including consent to access Tribal
land to prepare information required by the application (e.g., to
survey), if applicable, and ensure communications with Indian Tribes
are honest, factually accurate, and respectful of Tribal sovereignty.
* * * * *
[FR Doc. 2024-24526 Filed 10-22-24; 8:45 am]
BILLING CODE 6717-01-P
