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Notice2021-13440

State Voluntary Agreements To Plan and Pay for Transmission Facilities

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Published

June 25, 2021

Effective

June 17, 2021

Issuing agencies

Energy DepartmentFederal Energy Regulatory Commission

Abstract

This policy statement addresses state efforts to develop transmission facilities through voluntary agreements to plan and pay for those facilities. We clarify that Voluntary Agreements are not categorically precluded by the Federal Power Act or the Commission's existing rules and regulations.

Full Text

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<title>Federal Register, Volume 86 Issue 120 (Friday, June 25, 2021)</title>
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[Federal Register Volume 86, Number 120 (Friday, June 25, 2021)]
[Notices]
[Pages 33700-33703]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-13440]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. PL21-2-000]

State Voluntary Agreements To Plan and Pay for Transmission
Facilities

AGENCY: Federal Energy Regulatory Commission, Department of Energy.

ACTION: Notice of policy statement.

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SUMMARY: This policy statement addresses state efforts to develop
transmission facilities through voluntary agreements to plan and pay
for those facilities. We clarify that Voluntary Agreements are not
categorically precluded by the Federal Power Act or the Commission's
existing rules and regulations.

DATES: This policy statement is effective June 17, 2021.

FOR FURTHER INFORMATION CONTACT:

David Tobenkin (Technical Information), Office of Energy Policy and
Innovation, (202) 502-6445, <a href="/cdn-cgi/l/email-protection#7115100718155f051e13141f1a181f31171403125f161e07">[email&#160;protected]</a>
Lina Naik (Legal Information), Office of the General Counsel, (202)
502-8882, <a href="/cdn-cgi/l/email-protection#0e6267606f20606f67654e686b7c6d20696178">[email&#160;protected]</a>
Jay Sher (Technical Information), Office of Energy Market Regulation,
(202) 502-8921, <a href="/cdn-cgi/l/email-protection#412b20386f3229243301272433226f262e37">[email&#160;protected]</a>

SUPPLEMENTARY INFORMATION:
1. This policy statement addresses state efforts to develop
transmission facilities through voluntary agreements to plan and pay
for those facilities (Voluntary Agreements). Voluntary Agreements
include agreements among: (1) Two or more states; (2) one or more
states and one or more public utility transmission providers; or (3)
two or more public utility transmission providers. We clarify that
Voluntary Agreements are not categorically precluded by the Federal
Power Act (FPA) \1\ or the Commission's existing rules and regulations,
and encourage interested parties considering the use of such agreements
to consult with Commission staff. To the extent that states, public
utility transmission providers, or other stakeholders believe that the
relevant tariffs impose barriers to Voluntary Agreements, the
Commission is open to filings to remove or otherwise address those
barriers.
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\1\ 16 U.S.C. 791a et seq.
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2. Developing cost-effective and reliable transmission facilities
remains a priority of this Commission.\2\ Voluntary Agreements can
further those goals by, for example, providing states with a way to
prioritize, plan, and pay for transmission facilities that, for
whatever reason, are not being developed pursuant to the regional
transmission planning processes required by Order No. 1000.\3\ In
addition, in some cases, Voluntary Agreements may allow state-
prioritized transmission facilities to be planned and built more
quickly than would comparable facilities that are

[[Page 33701]]

planned through the regional transmission planning process(es).
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\2\ See Transmission Planning and Cost Allocation by
Transmission Owning and Operating Public Utilities, Order No. 1000,
76 FR 49842 (Aug. 11, 2011), 136 FERC ] 61,051, at P 2 (2011), order
on reh'g and clarification, Order No. 1000-A, 77 FR 32184 (May 31,
2012), 139 FERC ] 61,132, order on reh'g and clarification, Order
No. 1000-B, 77 FR 64890 (Oct. 24, 2012), 141 FERC ] 61,044 (2012),
aff'd sub nom. S.C. Pub. Serv. Auth. v. FERC, 762 F.3d 41 (D.C. Cir.
2014) (instituting reforms to ensure more efficient and cost-
effective regional transmission planning); see also Elec.
Transmission Incentives Pol'y Under Section 219 of the Federal Power
Act, 170 FERC ] 61,204, at P 31 (2020) (Transmission Incentives
NOPR) (noting ``FPA section 219(a) requires that the Commission
provide incentive-based rates for electric transmission for the
purpose of benefitting consumers by ensuring reliability and
reducing the cost of delivered power by reducing transmission
congestion''). The Commission noted in the Transmission Incentives
NOPR that there is a need for existing and new transmission
facilities to help facilitate integration of a variety of types of
resources. Transmission Incentives NOPR, 170 FERC ] 61,204 at P 28.
\3\ Order No. 1000, 136 FERC ] 61,051 at P 146. Order No. 1000
established rules and regulations addressing, among other things,
regional transmission planning, interregional transmission
coordination, and cost allocation methods for new transmission
facilities. This includes requiring each public utility transmission
provider to participate in a regional transmission planning process
that produces a regional transmission plan and complies with certain
transmission planning principles.
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3. Nevertheless, we are concerned that confusion regarding the
relationship between Voluntary Agreements and Commission rules and
regulations may be deterring such agreements. Accordingly, in this
policy statement, we clarify that neither the FPA nor the Commission's
rules and regulations categorically preclude Voluntary Agreements
among: (1) Two or more states; (2) one or more states and one or more
public utility transmission providers; or (3) two or more public
utility transmission providers to plan and pay for new transmission
facilities. In particular, we note that Order No. 1000 allows market
participants, including states, to negotiate voluntarily alternative
cost sharing arrangements that are distinct from the relevant regional
cost allocation method(s).\4\
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\4\ See id. PP 561, 724; Order No. 1000-A, 139 FERC ] 61,132 at
PP 728-729; see also Order No. 1000, 136 FERC ] 61,051 at P 209
n.189 (``[W]e strongly encourage states to participate actively in
the identification of transmission needs driven by Public Policy
Requirements. Public utility transmission providers, for example,
could rely on committees of state regulators or, with appropriate
approval from Congress, compacts between interested states to
identify transmission needs driven by Public Policy Requirements for
the public utility transmission providers to evaluate in the
transmission planning process.''). While we focus here on Voluntary
Agreements as a potential tool for states to advance state policy
goals, the policy statement does not alter market participants'
ability to pursue such arrangements absent state involvement.
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4. As an illustration, we note that the Commission accepted certain
non-Order No. 1000, alternative cost sharing arrangements in the
context of Order No. 1000 compliance filings.\5\ In the case of PJM,
the Commission held that it ``need not find that the State Agreement
Approach and corresponding cost allocation method comply with Order No.
1000.'' \6\ Specifically, with regard to PJM's State Agreement
Approach, the Commission found the approach supplemented and did ``not
conflict or otherwise replace'' PJM's Order No. 1000 process to
consider transmission needs driven by public policy requirements.\7\
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\5\ For example, the Commission accepted PJM Interconnection,
L.L.C.'s (PJM) State Agreement Approach to transmission planning,
which is a transmission planning and cost allocation mechanism
supplementary to PJM's Order No. 1000 regional transmission planning
process. Through the State Agreement Approach, one or more state
governmental entities authorized by their respective states,
individually or jointly, may agree voluntarily to be responsible for
the allocation of all costs of a proposed transmission facility that
addresses state public policy requirements identified or accepted by
the relevant state(s) in the PJM region. See PJM Interconnection,
L.L.C., 142 FERC ] 61,214, at PP 142-143 (2013), order on reh'g and
compliance, 147 FERC ] 61,128, at P 92 (2014); PJM, Intra-PJM
Tariffs, Operating Agreement, sched. 6, section 1.5.9(a) (State
Agreement Approach) (26.0.0). Similarly, ISO New England Inc.'s
(ISO-NE) tariff includes a voluntary process that enables the New
England States Committee on Electricity (NESCOE) and state public
utility regulators to plan and pay for transmission facilities. See
ISO New England Inc., 143 FERC ] 61,150, at P 121 (2013); ISO-NE,
ISO New England Inc. Transmission, Markets and Services Tariff,
sched. 12, section B.6 (Public Policy Transmission Upgrade Costs)
(7.0.0).
\6\ PJM Interconnection, L.L.C., 142 FERC ] 61,214 at P 142.
\7\ Id.
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5. More recently, the Commission approved a study agreement that
initiated a Voluntary Agreement process in PJM. There, the New Jersey
Board of Public Utilities (New Jersey Board), acting pursuant to PJM's
State Agreement Approach, issued an order formally requesting that PJM
open a competitive proposal window to solicit proposals for
transmission facilities to expand the PJM transmission system and to
identify system improvements to interconnect and provide for the
deliverability of 7,500 MW of offshore wind generation into New Jersey
by 2035. The New Jersey Board and PJM entered into a study agreement
directing PJM to solicit proposals for possible transmission facilities
and analyze them to determine the more efficient or cost-effective
enhancement or expansion of transmission facilities to meet New
Jersey's offshore wind goals.\8\ The New Jersey Board explained that
this type of collaborative approach to transmission planning will help
ensure that the high-voltage transmission system accommodates state
clean energy policies and represents a type of state-federal
collaboration consistent with Commission rules and regulations.\9\
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\8\ PJM Interconnection, L.L.C., 174 FERC ] 61,090 (2021).
\9\ Id. P 10.
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6. To the extent that states or public utility transmission
providers believe there are barriers to Voluntary Agreements in
Commission-jurisdictional tariffs or other agreements, we encourage
them to identify those barriers and, as necessary, consider making
filings before this Commission to address those barriers. Commission
staff is available to consult on these issues as states, public utility
transmission providers, and other stakeholders consider addressing such
barriers and the topic of Voluntary Agreements more generally. We
encourage relevant parties to contact Commission staff regarding all
potential Voluntary Agreements.

I. Document Availability

7. 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 (<a href="https://www.ferc.gov">https://www.ferc.gov</a>). At
this time, the Commission has suspended access to the Commission's
Public Reference Room, due to the proclamation declaring a National
Emergency concerning the Novel Coronavirus Disease (COVID-19), issued
by the President on March 13, 2020.
8. 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.
9. User assistance is available for eLibrary and the Commission's
website during normal business hours from the Commission's Online
Support at (202) 502-6652 (toll free at 1-866-208-3676) or email at
<a href="/cdn-cgi/l/email-protection#45232037262a2b292c2b20363035352a373105232037266b222a33">[email&#160;protected]</a>, or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. Email the Public Reference Room at
<a href="/cdn-cgi/l/email-protection#b6c6c3d4dadfd598c4d3d0d3c4d3d8d5d3c4d9d9dbf6d0d3c4d598d1d9c0">[email&#160;protected]</a>.
By direction of the Commission.
Commissioner Chatterjee is not participating.
Commissioner Danly is concurring with a separate statement
attached.
Commissioner Christie is concurring with a separate statement
attached.

Issued: June 17, 2021.
Debbie-Anne A. Reese,
Deputy Secretary.

Department of Energy

Federal Energy Regulatory Commission

State Voluntary Agreements To Plan and Pay for Transmission Facilities
PL21-2-000
DANLY, Commissioner, concurring:
1. I concur in the issuance of this policy statement on state
voluntary agreements to plan and pay for transmission facilities. I do
not know what it accomplishes, but we are not ``categorically
precluded'' from issuing it, and if there is a chance that it can help
critical transmission infrastructure to be built, then I see no reason
to oppose it.
2. The policy states that ``[W]e are concerned that confusion
regarding the relationship between Voluntary Agreements and Commission
rules and regulations may be deterring [Voluntary]

[[Page 33702]]

agreements.'' \1\ We do not cite any examples of such confusion, but--
who knows--it may well exist.
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\1\ State Voluntary Agreements to Plan and Pay for Transmission
Facilities, 175 FERC ] 61,225, at P 3 (2021) (Policy Statement).
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3. To attempt to dispel this possible confusion, we ``clarify that
Voluntary Agreements are not categorically precluded by the Federal
Power Act (FPA) \2\ or the Commission's existing rules and
regulations.'' \3\ This amounts to a declaration that the FPA and
existing rules and regulations do not obviously prohibit all Voluntary
Agreements--I have no quarrel with that. But I do believe it necessary
to remind everyone that each Voluntary Agreement must still
individually pass muster under our statute and regulations.
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\2\ 16 U.S.C. 791a et seq.
\3\ Policy Statement, 175 FERC ] 61,225 at P 1.
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4. The actual policy in our statement is an invitation:
To the extent that states or public utility transmission providers
believe there are barriers to Voluntary Agreements in Commission-
jurisdictional tariffs or other agreements, we encourage them to
identify those barriers and, as necessary, consider making filings
before this Commission to address those barriers.\4\
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\4\ Id. P 6.
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5. We do not need a policy statement to invite filings. But there
is no harm in it. I also invite and welcome filings before the
Commission so that we can ensure that critical transmission, and
critical natural gas pipelines, and other critical infrastructure, can
obtain the approvals and regulatory certainty they require in order to
be built.
For these reasons, I respectfully concur.

James P. Danly,
Commissioner.

Department of Energy

Federal Energy Regulatory Commission

State Voluntary Agreements To Plan and Pay for Transmission Facilities
Docket No. PL21-2-000
CHRISTIE, Commissioner, concurring:
1. I concur and write separately to add the following.
2. Today's Policy Statement \1\ reaffirms that voluntary agreements
among states to promote transmission development to meet state public
policies are not categorically precluded by Commission rules and
regulations. Order No. 1000 made clear that states voluntarily could
negotiate alternative cost sharing arrangements that are distinct from
the relevant regional cost allocation method \2\ and that order
highlighted a vehicle for multiple states to cooperate, interstate
compacts.\3\ As the Policy Statement notes, the Commission has accepted
certain alternative cost sharing arrangements in the context of Order
No. 1000 compliance filings.\4\ I would note that voluntary agreements
are open to all states without regard to whether they participate in
Regional Transmission Organizations (RTOs) or Independent System
Operators (ISOs) \5\ and they need not be limited in purpose to
transmission only. Relevant history illustrates.
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\1\ State Voluntary Agreements to Plan and Pay for Transmission
Facilities, 175 FERC ] 61,225 (2021) (Policy Statement).
\2\ See Policy Statement at PP 3-4, nn.4-5.
\3\ See id. at n.4. Interstate compacts among states must be
approved by Congress. U.S. Const. art.1, section 10, cl. 3.
\4\ Policy Statement at n.5 (citing PJM's State Agreement
Approach as an example of a vehicle by which a state or states may
voluntarily pursue transmission projects to fulfill their own
individual public policies and bear the costs of such policy-driven
projects themselves.).
\5\ Technically speaking, state-regulated utilities participate
in RTOs/ISOs, subject to state law.
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3. RTOs/ISOs \6\ were established more than two decades ago during
the ``restructuring'' era that saw about half the states initially
adopt some version of policies requiring their vertically-integrated
utilities to divest or at least ``functionally separate'' their
generating assets, which were then supposed to compete on price in RTO/
ISO markets with independent power producers (``IPPs,'' sometimes
called ``NUGS'' for non-utility generators--the acronyms float like
confetti in this business).\7\
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\6\ See Regional Transmission Organizations, Order No. 2000,
FERC Stats. & Regs. ] 31,089 (1999) (cross-referenced at 89 FERC ]
61,285), order on reh'g, Order No. 2000-A, FERC Stats. & Regs. ]
31,092 (2000) (cross-referenced at 90 FERC ] 61,201), aff'd sub nom.
Pub. Util. Dist. No. 1 of Snohomish Cty. v. FERC, 272 F.3d 607 (D.C.
Cir. 2001). Order No. 2000 was issued in 1999 and established
criteria for RTOs/ISOs.
\7\ The restructuring era was short-lived. Several states
subsequently reversed their earlier decisions and returned to some
form of vertical integration. See Tyson Slocum, The Failure of
Electricity Deregulation: History, Status and Needed Reforms, Public
Citizen's Energy Program, March 2007, at 5; see, e.g., Ch. 933, 2007
Va. Acts of Assembly (April 4, 2007). Restructuring was sometimes
inaccurately called ``deregulation,'' which implied a move from
highly structured cost-of-service regulation to true free markets in
power supply, but it was typically more a swap of one complicated
regulatory construct for another one just as vulnerable to rent-
seeking. See, e.g., Severin Borenstein and James Bushnell, The U.S.
Electricity Industry after 20 Years of Restructuring, National
Bureau of Economic Research, April 2015, at Abstract (``We argue
that the greatest political motivation for restructuring was rent
shifting, not efficiency improvements, and that this explanation is
supported by observed waxing and waning of political enthusiasm for
electricity reform.''); see also id. at 1.
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4. Importantly, the states which chose to participate in RTO/ISO
markets during the restructuring era shared a general consensus that
the purpose of RTOs/ISOs was to plan the regional transmission
necessary to promote reliability at the least-cost to consumers and to
operate energy and capacity markets to provide consumers with least-
cost power on a non-discriminatory basis, i.e., without regard to the
source of the electrons (sometimes called ``economic dispatch'').
Federal regulation reflected this consensus about the purpose of RTOs/
ISOs.\8\
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\8\ The Energy Policy Act of 2005 provided a definition of
economic dispatch: as ``the operation of generation facilities to
produce energy at the lowest cost to reliably serve consumers,
recognizing any operational limits of generation and transmission
facilities.'' Energy Policy Act of 2005 (EPAct 2005), Public Law
109-58, 1234(b), 119 Stat. 594, 960 (2005) (codified at 42 U.S.C.
16432(b)) (emphasis added).
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5. That consensus no longer exists at either the state or federal
levels. The past several years have seen an increasing divergence of
public policies in states that are members of multi-state RTOs/ISOs,
over such fundamental issues as mandated resource mixes, compensation
in capacity markets, transmission planning criteria and cost
allocation, and carbon taxes.\9\ The disappearance of the original
consensus about the purpose of RTO/ISO markets has serious implications
across a range of issues, but the adoption of this Policy Statement by
the Commission offers a good time to emphasize that states that wish to
cooperate with other states which share similar public-policy goals--
whether environmental, reliability or economic--have options for
achieving regional benefits outside the context of RTO/ISO
participation.
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\9\ This divergence did not happen yesterday, but has been
building. One commentator wrote ten years ago that ``. . . state
legislation and regulatory choices continue to push the electricity
industries of the various states along vastly different paths.'' Ari
Peskoe, A Challenge for Federalism: Achieving National Goals in the
Electricity Industry, 18 Mo. Envtl. L. & Pol'y Rev. 209, 211 (2011)
(``Peskoe'') (emphasis added).
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6. In particular, I would point out that while this Policy
Statement emphasizes the potential availability of voluntary agreements
among states to promote interstate transmission development, voluntary
state agreements may also be available for other purposes. Before the
restructuring era, many state-regulated utilities participated in
multi-state power pools \10\ designed to support reliability by
wheeling power from state to state when needed to avoid load shedding,
as well as facilitating bilateral

[[Page 33703]]

sales of excess power.\11\ These sales would benefit customers of the
selling utility, when booked as a customer credit for off-system sales,
and benefit customers of the purchasing utility when booked in the
``fuel factor'' at cost, with no return on equity (ROE) applied.
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\10\ For over half a century, PJM was a power pool. See <a href="https://pjm.com/about-pjm/who-we-are/pjm-history">https://pjm.com/about-pjm/who-we-are/pjm-history</a>.
\11\ See generally Peskoe at 223-24. Any application to this
Commission to establish a power pool or other similar arrangement
will, of course, come with its own specific evidentiary record and
will be considered individually under applicable laws at the time.
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7. Options such as these are still available. Through the use of
interstate compacts, enabling legislation \12\ could create multi-state
entities that can plan transmission projects--as this Policy Statement
encourages--but such entities also could be designed to function as
modern, innovative versions of power pools aligned with the member
states' public policies as to resource adequacy and preferences. The
enabling legislation could also ensure a sufficient state role in the
governance to ensure that the authority was used only in accordance
with member-state policies.\13\
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\12\ Power pools were generally regulated by the Federal Power
Commission, and later by FERC. See, e.g., id. Congress could,
however, through enabling legislation, grant various regulatory
powers to the requesting states which seek to participate in a power
pool arrangement. For example, Congress could include in such grant
of authority an explicit power to apply a carbon tax to wholesale
transactions in a power pool if such power was requested by the
member states, avoiding the many questions attendant to whether
RTOs/ISOs themselves have such power. See Carbon Pricing in
Organized Wholesale Electricity Markets, 175 FERC ] 61,036 (2021)
(Christie, Comm'r concurring in part and dissenting in part at PP
12-14, 17-24 (available at <a href="https://www.ferc.gov/news-events/news/item-e-2-commissioner-mark-c-christie-concurring-part-and-dissenting-part">https://www.ferc.gov/news-events/news/item-e-2-commissioner-mark-c-christie-concurring-part-and-dissenting-part</a>)).
\13\ For an example of such a broad grant of power to the
states, Congress in the Energy Policy Act of 2005 allowed three or
more contiguous states to enter into a compact, subject to the
approval by Congress, to form their own regional transmission siting
entities that would have siting authority for those states. EPAct
2005, Public Law 109-58, section 1221(i), 119 Stat. 594, 950 (2005)
(codified at 16 U.S.C. 824p(i)).
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8. States sharing similar public policies which desire to
collaborate with each other to obtain the benefits of regional
cooperation have innovative options to explore and consider whether
they participate in an RTO/ISO or do not. The adoption of this Policy
Statement is a good time to emphasize that opportunity.
For these reasons, I respectfully concur.

Mark C. Christie,
Commissioner.

[FR Doc. 2021-13440 Filed 6-24-21; 8:45 am]
BILLING CODE 6717-01-P

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