Rule2024-10879
Applications for Permits To Site Interstate Electric Transmission Facilities
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
May 29, 2024
Effective
July 29, 2024
Issuing agencies
Energy DepartmentFederal Energy Regulatory Commission
Abstract
The Federal Energy Regulatory Commission amends its regulations governing applications for permits to site electric transmission facilities under the Federal Power Act, as amended by the Infrastructure Investment and Jobs Act of 2021, and amends its National Environmental Policy Act procedures.
Full Text
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<title>Federal Register, Volume 89 Issue 104 (Wednesday, May 29, 2024)</title>
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[Federal Register Volume 89, Number 104 (Wednesday, May 29, 2024)]
[Rules and Regulations]
[Pages 46682-46740]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-10879]
[[Page 46681]]
Vol. 89
Wednesday,
No. 104
May 29, 2024
Part IV
Department of Energy
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Federal Energy Regulatory Commission
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18 CFR Parts 50 and 380
Applications for Permits To Site Interstate Electric Transmission
Facilities; Final Rule
Federal Register / Vol. 89, No. 104 / Wednesday, May 29, 2024 / Rules
and Regulations
[[Page 46682]]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Parts 50 and 380
[Docket No. RM22-7-000; Order No. 1977]
Applications for Permits To Site Interstate Electric Transmission
Facilities
AGENCY: Federal Energy Regulatory Commission.
ACTION: Final rule.
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SUMMARY: The Federal Energy Regulatory Commission amends its
regulations governing applications for permits to site electric
transmission facilities under the Federal Power Act, as amended by the
Infrastructure Investment and Jobs Act of 2021, and amends its National
Environmental Policy Act procedures.
DATES: This rule is effective July 29, 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, <a href="/cdn-cgi/l/email-protection#7c111d1b181d10191219520f0908190e3c1a190e1f521b130a"><span class="__cf_email__" data-cfemail="b0ddd1d7d4d1dcd5ded59ec3c5c4d5c2f0d6d5c2d39ed7dfc6">[email protected]</span></a>
Tara DiJohn Bruce (Legal Information), Office of the General Counsel,
Federal Energy Regulatory Commission, 888 First Street NE, Washington,
DC 20426, (202) 502-8671, <a href="/cdn-cgi/l/email-protection#5c283d2e3d723e2e293f391c3a392e3f723b332a"><span class="__cf_email__" data-cfemail="88fce9fae9a6eafafdebedc8eeedfaeba6efe7fe">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
Paragraph
Nos.
I. Background............................................... 2
A. Energy Policy Act of 2005 and FPA Section 216........ 2
B. Order No. 689........................................ 9
C. Piedmont & California Wilderness Judicial Decisions.. 11
D. IIJA Amendments to FPA Section 216................... 14
E. Notice of Proposed Rulemaking........................ 17
II. Discussion.............................................. 26
A. Commission Jurisdiction and State Siting Proceedings. 26
1. IIJA Amendments and Commission Jurisdiction Under 27
FPA Section 216(b)(1)..............................
2. Commencement of Pre-Filing....................... 38
B. Eminent Domain Authority and Applicant Efforts To 55
Engage With Landowners and Other Stakeholders..........
1. NOPR Proposal.................................... 56
2. Comments......................................... 60
3. Commission Determination......................... 73
C. Environmental Justice Public Engagement Plan......... 98
1. NOPR Proposal.................................... 98
2. Comments......................................... 100
3. Commission Determination......................... 109
D. Revisions to 18 CFR Part 50.......................... 119
1. Section 50.1--Definitions........................ 119
2. Section 50.3--Filing and Formatting Requirements. 159
3. Section 50.4--Stakeholder Participation.......... 160
4. Section 50.5--Pre-Filing Procedures.............. 223
5. Section 50.6--General Content of Applications.... 246
6. Section 50.7--Application Exhibits............... 257
7. Section 50.11--General Permit Conditions......... 261
8. Clarifying Revisions to 18 CFR Part 50........... 265
E. Additional Considerations Raised by Commenters....... 266
1. Grid-Enhancing Technologies...................... 267
2. Use of Existing Rights-of-Way.................... 269
3. Project Costs.................................... 273
4. Miscellaneous.................................... 275
F. Regulations Implementing NEPA........................ 279
1. Consultation With CEQ............................ 281
2. DOE Coordination................................. 285
3. NEPA Document Procedures......................... 295
4. Revisions to 18 CFR 380.16....................... 301
5. Revisions to 18 CFR 380.13 and 380.14............ 411
III. Information Collection Statement....................... 412
IV. Environmental Analysis.................................. 426
V. Regulatory Flexibility Act............................... 427
VI. Document Availability................................... 431
VII. Effective Date and Congressional Notification.......... 434
1. On November 15, 2021, the Infrastructure Investment and Jobs Act
(IIJA) became law.\1\ The IIJA, among other things, amended section 216
of the Federal Power Act (FPA),\2\ which provides for Federal siting of
electric transmission facilities under certain circumstances. The
Federal Energy Regulatory Commission (Commission) is amending its
regulations governing applications for permits to site electric
transmission facilities to ensure consistency with the IIJA's
amendments to FPA section 216, to modernize certain regulatory
requirements, and to incorporate other updates and clarifications to
provide for the efficient and timely review of permit applications.
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\1\ Public Law 117-58, sec. 40105, 135 Stat. 429 (2021).
\2\ 16 U.S.C. 824p.
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[[Page 46683]]
I. Background
A. Energy Policy Act of 2005 and FPA Section 216
2. The authority to site electric transmission facilities has
traditionally resided solely with the States; however, the enactment of
the Energy Policy Act of 2005 (EPAct 2005) \3\ established a limited
Federal role in electric transmission siting by adding section 216 to
the FPA. Under section 216, Federal siting authority for electric
transmission facilities (as defined in that section) is divided between
the Department of Energy (DOE) and the Commission. Section 216(a)
directs DOE, on a triennial basis, 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 transmission corridors (National
Corridors). Section 216(b) authorizes the Commission in certain
instances to issue permits for the construction or modification of
electric transmission facilities in areas that DOE has designated as
National Corridors.
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\3\ Public Law 109-58, sec. 1221, 119 Stat. 594 (Aug. 8, 2005)
(amended 2021).
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3. As originally enacted in EPAct 2005, section 216(b)(1)
authorized the Commission to issue permits to construct or modify
electric transmission facilities in a National Corridor if it found
that: (A) a State in which such facilities are located lacks the
authority to approve the siting of the facilities or consider the
interstate benefits expected to be achieved by the proposed
construction or modification of transmission facilities in the State;
\4\ (B) the permit applicant is a transmitting utility but does not
qualify to apply for a permit or siting approval in a State because the
applicant does not serve end-use customers in the State; \5\ or (C) a
State commission or entity with siting authority has withheld approval
of the facilities for more than one year after an application is filed
or one year after the designation of the relevant National Corridor,
whichever is later, or the State conditions the construction or
modification of the facilities in such a manner that the proposal will
not significantly reduce transmission congestion in interstate commerce
or is not economically feasible.\6\
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\4\ 16 U.S.C. 824p(b)(1)(A) (prior to the IIJA amendment in
2021). Instances in this rule citing the statute prior to the IIJA
amendment in 2021 are noted by a parenthetical for clarity.
\5\ Id. 824p(b)(1)(B).
\6\ Id. 824p(b)(1)(C) (prior to the IIJA amendment in 2021).
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4. In addition, sections 216(b)(2) through (6) required the
Commission, before issuing a permit, to find that the proposed
facilities: (1) will be used for the transmission of electricity in
interstate commerce; (2) are consistent with the public interest; (3)
will significantly reduce transmission congestion in interstate
commerce and protect or benefit consumers; (4) are consistent with
sound national energy policy and will enhance energy independence; and
(5) will maximize, to the extent reasonable and economical, the
transmission capabilities of existing towers or structures.\7\
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\7\ Id. 824p(b)(2)-(6).
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5. Section 216(e) authorized a permit holder, if unable to reach
agreement with a property owner, to use eminent domain to acquire the
necessary right-of-way for the construction or modification of
transmission facilities for which the Commission has issued a permit
under section 216(b).\8\ Federal and State-owned land was expressly
excluded from the purview of section 216(e) and thus could not be
acquired via eminent domain.\9\
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\8\ Id. 824p(e)(1) (prior to the IIJA amendment in 2021).
\9\ Id.
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6. Section 216(h)(2) designated DOE as the lead agency for purposes
of coordinating all Federal authorizations and related environmental
reviews needed to construct proposed electric transmission facilities.
To ensure timely and efficient reviews and permit decisions, under
section 216(h)(4)(A), DOE was required to establish prompt and binding
intermediate milestones and ultimate deadlines for all Federal reviews
and authorizations required for a proposed electric transmission
facility.\10\ Under section 216(h)(5)(A), DOE, as lead agency, was
required to prepare a single environmental review document, in
consultation with other affected agencies, that would be used as the
basis for all decisions for proposed projects under Federal law.
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\10\ Under FPA section 216(h)(6)(A), if any agency has denied a
Federal authorization required for a transmission facility or has
failed to act by the deadline established by the Secretary of DOE,
the applicant or any State in which the facility would be located
may file an appeal with the President. 16 U.S.C. 824p(h)(6)(A).
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7. On May 16, 2006, the Secretary of DOE delegated to the
Commission authority to implement parts of section 216(h), specifically
paragraphs (2), (3), (4)(A)-(B), and (5).\11\ Specifically, the
Secretary delegated DOE's lead agency responsibilities to the
Commission for the purposes of coordinating all applicable Federal
authorizations and related environmental reviews and preparing a single
environmental review document for proposed facilities under the
Commission's siting jurisdiction.\12\
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\11\ See DOE Delegation Order No. S1-DEL-FERC-2006 (previously
DOE Delegation Order No. 00-004.00A).
\12\ While Congress has provided the authority to establish
prompt and binding milestones and deadlines for the review of, and
Federal authorization decisions relating to, facilities proposed
under section 216, 16 U.S.C. 824p(h)(4)(A), efficient processing of
applications will depend upon agencies complying with the
established milestones and deadlines.
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8. In August 2006, DOE issued a Congestion Study pursuant to
section 216(a), which identified two critically congested areas in the
Mid-Atlantic and Southern California.\13\ Based on the results of the
Congestion Study, in October 2007, DOE formally designated two National
Corridors, the Mid-Atlantic Corridor and the Southwest Area
Corridor.\14\
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\13\ DOE, National Electric Transmission Congestion Study, 71 FR
45047 (Aug. 8, 2006).
\14\ DOE, National Electric Transmission Congestion Report, 72
FR 56992 (Oct. 5, 2007).
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B. Order No. 689
9. Section 216(c)(2) of the FPA required the Commission to issue
rules specifying the form of, and the information to be contained in,
an application for proposed construction or modification of electric
transmission facilities in National Corridors, and the manner of
service of notice of the permit application on interested persons.
Pursuant to this statutory requirement, on November 16, 2006, the
Commission issued Order No. 689, which implemented new regulations for
section 216 permit applications by adding part 50 to the Commission's
regulations.\15\ In addition, Order No. 689 adopted modifications to
the Commission's regulations implementing the National Environmental
Policy Act of 1969 (NEPA) \16\ in part 380 of the Commission's
regulations to ensure that the Commission is provided sufficient
information to conduct an environmental analysis of a proposed electric
transmission project.
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\15\ Regulations for Filing Applications for Permits to Site
Interstate Elec. Transmission Facilities, Order No. 689, 71 FR 69440
(Dec. 1, 2006) 117 FERC ] 61,202 (2006), reh'g denied, 119 FERC ]
61,154 (2007).
\16\ 42 U.S.C. 4321 et seq. See also 18 CFR pt. 380 (2023)
(Commission's regulations implementing NEPA).
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10. In Order No. 689, the Commission addressed a question of
statutory interpretation raised by commenters concerning the text of
section 216(b)(1)(C), which, at the time, conferred jurisdiction to the
Commission whenever a State had withheld approval of a State siting
[[Page 46684]]
application for more than one year.\17\ The Commission interpreted the
phrase ``withheld approval'' to include any action that resulted in an
applicant not receiving State approval within one year, including a
State's express denial of an application to site transmission
facilities.\18\
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\17\ Order No. 689, 117 FERC ] 61,202 at PP 24-31, reh'g denied,
119 FERC ] 61,154 at PP 7-23.
\18\ Order No. 689, 117 FERC ] 61,202 at P 26, reh'g denied, 119
FERC ] 61,154 at P 11.
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C. Piedmont & California Wilderness Judicial Decisions
11. In 2009, the U.S. Court of Appeals for the Fourth Circuit
(Fourth Circuit), in Piedmont Environmental Council v. FERC,\19\ held
that the Commission's interpretation of ``withheld approval'' was
contrary to the plain meaning of the statute, and that the Commission's
siting authority does not apply when a State has affirmatively denied a
permit application within the one-year deadline.\20\ In addition, the
Fourth Circuit vacated the Commission's transmission-related amendments
to its NEPA regulations, finding that the Commission had failed to
consult with the Council on Environmental Quality (CEQ) before adopting
the revisions.\21\
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\19\ 558 F.3d 304 (4th Cir. 2009), cert. denied, 558 U.S. 1147
(2010) (Piedmont).
\20\ Id. at 313.
\21\ Id. at 319, 320.
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12. Two years later, the U.S. Court of Appeals for the Ninth
Circuit (Ninth Circuit), in California Wilderness Coalition v. DOE,
considered petitions for review challenging DOE's actions following the
enactment of section 216.\22\ The Ninth Circuit vacated DOE's August
2006 Congestion Study and October 2007 National Corridor designations,
finding that the agency: (1) failed to properly consult with affected
States in preparing the Congestion Study, as required by section 216;
and (2) failed to consider the environmental effects of the National
Corridor designations under NEPA.\23\
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\22\ 631 F.3d 1072 (9th Cir. 2011).
\23\ Id. at 1096, 1106.
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13. Since the Fourth Circuit and Ninth Circuit decisions, DOE has
not designated any National Corridors, and the Commission has not
received any applications for permits to site electric transmission
facilities.
D. IIJA Amendments to FPA Section 216
14. On November 15, 2021, the IIJA amended section 216 of the FPA.
With respect to DOE's authority, the IIJA amended section 216(a)(2) to
expand the circumstances in which DOE may designate a National
Corridor. In addition to geographic areas currently experiencing
transmission capacity constraints or congestion that adversely affects
consumers, amended section 216(a)(2) provides that DOE may designate
National Corridors in geographic areas expected to experience such
constraints or congestion. The IIJA also amended section 216(a)(4) to
expand the factors that DOE may consider in determining whether to
designate a National Corridor.\24\
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\24\ DOE may consider the following factors when determining
whether to designate a National Corridor under section 216(a)(4):
(1) the economic vitality and development of the corridor, or the
end markets served by the corridor, may be constrained by lack of
adequate or reasonably priced electricity; (2) economic growth in
the corridor, or the end markets served by the corridor, may be
jeopardized by reliance on limited sources of energy and a
diversification of supply is warranted; (3) the energy independence
or energy security of the United States would be served by the
designation; (4) the designation would be in the interest of
national energy policy; (5) the designation would enhance national
defense and homeland security; (6) the designation would enhance the
ability of facilities that generate or transmit firm or intermittent
energy to connect to the electric grid; (7) the designation
maximizes existing rights-of-way and avoids and minimizes, to the
maximum extent practicable, and offsets to the extent appropriate
and practicable, sensitive environmental areas and cultural heritage
sites; and (8) the designation would result in a reduction in the
cost to purchase electric energy for consumers.
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15. With respect to the Commission's siting authority, the IIJA
amended section 216(b)(1)(C) by deleting the phrase ``withheld
approval'' and by incorporating revisions to the statutory text. 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.\25\ This statutory amendment resolves the
jurisdictional issue at the heart of Piedmont by explicitly giving the
Commission siting authority when a State has denied an application.\26\
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\25\ 16 U.S.C. 824p(b)(1)(C).
\26\ Id. 824p(b)(1)(C)(iii).
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16. Additionally, the IIJA amended section 216(e), which grants a
permit holder the right to acquire the necessary right-of-way by
eminent domain.\27\ As amended, section 216(e)(1) requires the
Commission to determine, as a precondition to a permit holder
exercising such 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.\28\
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\27\ Id. 824p(e)(1).
\28\ Id.
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E. Notice of Proposed Rulemaking
17. On December 15, 2022, the Commission issued a Notice of
Proposed Rulemaking (NOPR), which proposed revisions to its regulations
in parts 50 and 380 governing applications for permits to site electric
transmission facilities.\29\ Among other revisions, the Commission
proposed changes to address the IIJA's amendments to section 216 of the
FPA.
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\29\ 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.
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18. First, the Commission proposed revisions to make clear that the
Commission has the authority to issue permits for the construction or
modification of electric transmission facilities in a National Corridor
if a State has denied a siting application.\30\
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\30\ Id. P 18.
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19. Second, the Commission announced a proposed policy change that
would allow an applicant that is subject to a State siting authority to
seek to commence the Commission's pre-filing process once the relevant
State siting applications have been filed.\31\ The Commission explained
that this change, if adopted, would eliminate the Commission's prior
policy of waiting one year after the relevant State siting applications
have been filed before allowing an applicant to seek to commence the
Commission's pre-filing process. The Commission further proposed that,
one year after the commencement of the Commission's pre-filing process,
if a State has not made a determination on an application before it,
the State will have 90 days to provide comments to the Commission on
any aspect of the pre-filing process, including any information
submitted by the applicant.\32\
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\31\ Id. PP 20-21.
\32\ Id. P 23.
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20. Third, the Commission proposed to codify an Applicant Code of
Conduct.\33\ The Commission explained that compliance with the
Applicant Code of Conduct is one way an applicant may demonstrate that
it has made good faith efforts to engage with landowners and other
stakeholders early
[[Page 46685]]
in the applicable permitting process as required by section 216(e)(1)
of the FPA as a predicate to the use of eminent domain.\34\ The
Commission also proposed 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 as a means
of ensuring that the statutory standard is met.
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\33\ Id. PP 26-27.
\34\ Id. P 28.
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21. Fourth, the Commission proposed to add a requirement that
applicants develop and file an Environmental Justice Public Engagement
Plan as part of their Project Participation Plan, which is already
required early in the pre-filing process.\35\ The Commission explained
that an Environmental Justice Public Engagement Plan must describe the
applicant's completed outreach to environmental justice communities,
summarize comments from potentially impacted communities, describe
planned outreach, and describe how the applicant will reach out to
environmental justice communities about potential mitigation.\36\
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\35\ Id. PP 30-31; 18 CFR 50.4(a) (requiring Project
Participation Plan).
\36\ Id. P 31.
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22. Finally, the Commission proposed updates to the environmental
information that an application must include. In addition to a variety
of proposed updates, clarifications, and corrections to existing
resource reports, the Commission proposed to require an applicant to
provide information regarding a proposed project's impacts on Tribal
resources, environmental justice communities, and air quality and
environmental noise in three new resource reports.\37\
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\37\ Id. PP 63-71.
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23. Comments on the NOPR were due by April 17, 2023. In response to
a motion filed by the National Association of Regulatory Utility
Commissioners (NARUC), the Commission extended the comment deadline to
May 17, 2023.
24. In response to the NOPR, 52 comments were filed.\38\ These
comments have informed our determinations in this final rule.
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\38\ Appendix B lists the entities that submitted comments on
the NOPR and the abbreviated names used throughout this final rule
to describe those entities.
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25. Additionally, on February 28, 2024, the Joint Federal-State
Task Force on Electric Transmission (Task Force) \39\ met to discuss
transmission siting.\40\ The discussion included topics such as how
State and Federal siting reviews should be sequenced and coordinated,
what factors the Commission should consider in its siting proceedings
under section 216(b), and how the Commission's siting process will
interface with transmission planning and cost allocation requirements.
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\39\ Joint Fed.-State Task Force on Elec. Transmission, 175 FERC
] 61,224 (2021) (establishing Task Force pursuant to FPA section
209(b)).
\40\ Joint Fed.-State Task Force on Elec. Transmission, Notice
of Meeting and Agenda, Docket No. AD21-15-000 (Feb. 13, 2024). The
transcript of this meeting can be found in Docket No. AD21-15-000.
For context, the Commission established the Task Force in June 2021
to formally explore transmission-related topics such as generator
interconnection, grid enhancing technologies, physical security, and
regulatory gaps or challenges in oversight. The Task Force was
composed of all FERC Commissioners as well as representatives from
10 State commissions nominated by NARUC, with two originating from
each NARUC region. The Task Force convened for multiple formal
meetings annually, which were open to the public.
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II. Discussion
A. Commission Jurisdiction and State Siting Proceedings
26. As discussed above, section 216(b)(1) of the FPA, as revised by
the IIJA, provides the circumstances that trigger the Commission's
jurisdiction. As discussed further below, in this final rule, the
Commission revises Sec. 50.6 of its regulations to reflect the IIJA's
amendments to section 216(b)(1). The Commission also declines to adopt
the policy change proposed in the NOPR with respect to when the
Commission's pre-filing process may commence.
1. IIJA Amendments and Commission Jurisdiction Under FPA Section
216(b)(1)
a. NOPR Proposal
27. Section 50.6 of the Commission's regulations describes the
information that is required in each application filed pursuant to the
part 50 regulations. Section 50.6(e) provides that each application
must provide evidence demonstrating that one of the bases for the
Commission's jurisdiction set forth in section 216(b)(1) applies to the
proposed facilities. To ensure consistency with section 216(b)(1)(A),
as amended by the IIJA, in the NOPR the Commission proposed to add to
Sec. 50.6(e)(1) the phrase ``or interregional benefits'' to clarify
that an application may provide evidence that a State does not have the
authority to consider the interstate benefits or interregional benefits
expected to be achieved by the proposed facilities.\41\
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\41\ NOPR, 181 FERC ] 61,205 at P 43. While the statute, as
amended by the IIJA, does not define the term ``interregional,'' the
Commission proposed to apply a meaning that is consistent with Order
No. 1000, which defines an interregional transmission facility as
one that is located in two or more transmission planning regions.
Id. (citing Transmission Plan. & Cost Allocation by Transmission
Owning & Operating Public Utilities, Order No. 1000, 76 FR 49842
(Aug. 11, 2011), 136 FERC ] 61,051, at P 482 n.374 (2011)).
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28. As discussed above, the IIJA also amended FPA section
216(b)(1)(C) to expressly state that the Commission may issue a permit
for the construction or modification of electric transmission
facilities in National Corridors if a State has denied an application
to site such transmission facilities.\42\ To reflect this amendment, in
the NOPR the Commission proposed corresponding revisions to Sec.
50.6(e)(3) to provide that the applicant is required to submit evidence
demonstrating that a State has: (i) not made a determination on an
application; (ii) conditioned its approval in such a manner that the
proposed facilities would not significantly reduce transmission
capacity constraints or congestion in interstate commerce or is not
economically feasible; or (iii) denied an application.\43\
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\42\ See supra P 15.
\43\ NOPR, 181 FERC ] 61,205 at P 18.
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b. Comments
29. Several commenters ask the Commission to clarify its
jurisdiction under section 216(b)(1) of the FPA. ACEG seeks
confirmation that the Commission's regulations will apply in instances
where a State does not have authority to approve the siting of
facilities or consider a project's expected interstate or interregional
benefits, or when an applicant does not qualify for a State permit or
siting approval because the applicant does not serve end-use customers
in that State.\44\ ACEG also urges the Commission to ``expand upon the
meaning of a State `lacking authority' to approve the proposed
facilities.'' \45\
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\44\ ACEG Comments at 4-5 (citing 16 U.S.C. 824p(b)(1)(A)-(B)).
\45\ Id. at 7.
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30. Commenters ask the Commission to clarify whether specific
circumstances would trigger the Commission's siting authority under FPA
section 216(b)(1)(C), including when a local government entity with
siting authority, such as a county zoning board, has failed to act on,
conditionally approved, or denied a permit; \46\ when a State has not
acted within a year but no
[[Page 46686]]
National Corridor has been designated; \47\ and when a multistate
project is approved by one or more relevant States but denied by
another.\48\ To clarify when the Commission's authority under section
216(b)(1) would apply, ACEG recommends that the Commission add an
applicability section to its regulations.\49\
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\46\ See ACEG Comments at 6; SEIA Comments at 7; Rail
Electrification Council Comments at 13. Rail Electrification Council
also asks whether a State transportation authority that owns or
controls a railroad right-of-way that is integral to a proposed
transmission project would qualify as a ``State commission or other
entity'' under FPA section 216(b)(1)(C)). Rail Electrification
Council Comments at 13.
\47\ ACEG Comments at 7.
\48\ Impacted Landowners Comments at 25.
\49\ ACEG Comments at 7.
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31. Commenters also request clarification on the Commission's
authority to act under section 216(b)(1)(C)(ii) if it determines that a
State commission or other entity with siting authority has conditioned
its approval in such a manner that the proposed facilities will not
significantly reduce transmission capacity constraints or congestion in
interstate commerce or is not economically feasible. Several commenters
urge the Commission to opine on what it would consider a significant
reduction in transmission capacity constraints or congestion and how
any such threshold would be quantified.\50\ Maryland Commission
observes that the statutory phrase ``not economically feasible'' is
broad and undefined and that State conditions that simply impose an
economic burden on an applicant should not be deemed sufficient to
trigger the Commission's siting jurisdiction.\51\ Rather, Maryland
Commission states that the Commission should only consider asserting
its siting authority when confronted by State conditions that are not
supported by the record, are contrary to law, or are substantially
outweighed by the project's regional benefits and would jeopardize the
existence of the project if included.\52\
---------------------------------------------------------------------------
\50\ See Michigan Commission Comments at 11; New York Commission
Comments at 6-1; OMS Comments at 5-6.
\51\ Maryland Commission Comments at 25.
\52\ Id.
---------------------------------------------------------------------------
32. Some commenters urge the Commission either to defer to State
siting decisions or to refrain from prematurely exercising its
jurisdiction under section 216(b)(1)(C). New Jersey Board states that
the Commission should refrain from exercising its section 216 authority
and allow a State to reach its own determination, so long as the State
has acted in good faith and there is no evidence that it is attempting
to delay the process.\53\ New Jersey Board suggests that the
Commission's final rule recognize good cause for an application to
remain in the State's purview.\54\ New York Commission states that the
Commission should defer to State siting determinations that deny an
application because a project is incompatible with public health,
safety, and the environment.\55\ Noting that the ability to approve or
deny transmission siting applications is within States' general police
powers, New York Commission argues that the NOPR is too broad, does not
respect State siting authority, and is an overreach of the Commission's
jurisdiction.\56\ For these reasons, New York Commission urges the
Commission to identify a limited set of specific circumstances that
would trigger the Commission's jurisdiction if State denial of a permit
is unreasonable or inappropriate.\57\
---------------------------------------------------------------------------
\53\ New Jersey Board Comments at 6.
\54\ Id.
\55\ New York Commission Comments at 7-9.
\56\ Id. at 8-9.
\57\ Id. at 9.
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c. Commission Determination
33. We adopt the NOPR proposal's revisions to Sec. 50.6(e), which
clarifies the evidence an applicant must provide to demonstrate that
one of the jurisdictional bases set forth in section 216(b)(1) applies
to the proposed facilities, including the addition in Sec. 50.6(e)(1)
of the phrase ``interregional benefits'' to clarify that an applicant
may provide evidence that a State does not have authority to consider
the interregional benefits expected to be achieved by the proposed
project. We decline to impose additional requirements for the
Commission to assert its jurisdiction beyond those required by the
statute. We disagree with commenters that, by revising the Commission's
regulations to reflect the IIJA's amendments to section 216(b)(1)(C),
the Commission does not respect State siting authority, exceeds its
statutory authority, or coopts or preempts State processes.
34. As stated previously in Order No. 689, mere consideration of an
application by the Commission does not equate to a jurisdictional
determination or Commission approval of the proposed project.\58\ Once
the Commission notices an application in accordance with Sec. 50.9,
anyone who questions the Commission's jurisdiction over the proposed
project, the timing of the exercise of that jurisdiction, or the merits
of the proposal can raise those matters with the Commission by filing
comments, an intervention, or a protest in the proceeding. The
Commission will make a jurisdictional determination and address
comments and protests in an order addressing the proposed project.
---------------------------------------------------------------------------
\58\ Order No. 689, 117 FERC ] 61,202 at P 32.
---------------------------------------------------------------------------
35. Section 50.6(e)(1) of the Commission's regulations tracks the
statutory language that triggers the Commission's jurisdiction under
FPA section 216(b)(1)(A). Thus, in response to ACEG's clarification
request, we confirm that the Commission's regulations would apply in
instances where a State does not have authority to approve the siting
of facilities or consider a project's expected interstate or
interregional benefits, and when an applicant does not qualify for a
State permit or siting approval because the applicant does not serve
end-use customers in that State. We decline ACEG's invitation to expand
on the meaning of a State ``lacking authority'' to approve proposed
facilities,\59\ as such findings will be State-specific and, perhaps,
project-specific and will be considered by the Commission on a case-by-
case basis.
---------------------------------------------------------------------------
\59\ ACEG Comments at 7. While ACEG does not cite a particular
statutory provision, we presume that ACEG's comment is in reference
to FPA section 216(b)(1)(A)(i), which provides that the Commission
may issue a permit if it finds that a State in which the
transmission facilities are to be located does not have authority to
approve the siting of the facilities.
---------------------------------------------------------------------------
36. We also do not find it necessary to further define the scope of
circumstances that might trigger the Commission's siting authority
under section 216(b)(1). We note that Sec. 50.6(e) of the Commission's
the regulations require an applicant to demonstrate that the relevant
statutory requirements have been met. The Commission will make such
determinations case-by-case, based upon the record in a given
proceeding. For this reason, we decline commenters' requests to clarify
the applicability of FPA section 216(b)(1) to particular, factual
circumstances that are, at this point, hypothetical.
37. We likewise decline commenters' calls to expound on when a
State approval would be conditioned in a manner that meets the
statutory threshold under FPA section 216(b)(1)(C)(ii). The Commission
addressed similar comments in Order No. 689.\60\ As the Commission
stated then, these issues cannot be resolved adequately on a generic
basis. Consistent with the Commission's prior approach, we decline to
outline potential conditions a State might impose that would invoke the
Commission's jurisdiction under FPA section 216(b)(1).
---------------------------------------------------------------------------
\60\ Order No. 689, 117 FERC ] 61,202 at P 34.
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2. Commencement of Pre-Filing
38. The Commission has recognized that Congress, in enacting
section 216 of the FPA, adopted a statutory scheme that allows
simultaneous State and Commission siting processes.\61\ As the
[[Page 46687]]
Commission explained in Order No. 689, the statute provides for this
potential overlap by allowing the Commission to issue a permit one year
after the State siting process has begun and requiring an expeditious
pre-application mechanism for all permit decisions under Federal
law.\62\ Thus, the Commission has recognized that the pre-filing
process can occur at the same time as State proceedings.\63\
---------------------------------------------------------------------------
\61\ Id. P 19.
\62\ Id.
\63\ Id.
---------------------------------------------------------------------------
39. Notwithstanding that the statute allows simultaneous State and
Federal proceedings, the Commission in Order No. 689 announced a policy
that, in cases where its jurisdiction rests on section
216(b)(1)(C),\64\ the pre-filing process would not commence until one
year after the relevant State applications have been filed.\65\ This
approach, the Commission explained, would provide the States one full
year to process an application without any overlapping Commission
processes, after which time an applicant might seek to commence the
Commission's pre-filing process.\66\ However, the Commission noted that
it would reconsider this issue if it later determined that requiring
applicants to wait one year before commencing the Commission's pre-
filing process was delaying projects or was otherwise not in the public
interest.\67\
---------------------------------------------------------------------------
\64\ In Order No. 689, the Commission explained that in all
other instances, the pre-filing process may be commenced at any
time. Id. P 21 n.14.
\65\ Id. P 21.
\66\ Id.
\67\ Id.
---------------------------------------------------------------------------
a. NOPR Proposal
40. In the NOPR, the Commission proposed to eliminate the one-year
delay before the Commission's pre-filing process may commence, thus
allowing simultaneous processing of State applications and Commission
pre-filing proceedings (referred to herein as simultaneous
processing).\68\ The Commission proposed to entertain requests to
commence pre-filing, and potentially grant such requests, at any time
after the relevant State applications have been filed. Additionally,
the Commission proposed to provide an opportunity for State input
before the Commission would announce the completion of the pre-filing
process and allow an application to be filed.\69\ Specifically, one
year after the commencement of the Commission's pre-filing process, if
a State has not made a determination on an application, the Commission
proposed to provide a 90-day window for the State to submit comments on
any aspect of the pre-filing process, including any information
submitted by the applicant. The NOPR also sought comment on the
advantages or disadvantages of the Commission entertaining requests to
commence the pre-filing process before a State application has been
filed.
---------------------------------------------------------------------------
\68\ NOPR, 181 FERC ] 61,205 at PP19-23.
\69\ Id. P 23.
---------------------------------------------------------------------------
b. Comments
41. Numerous commenters express support for the NOPR proposal.\70\
A number of commenters agree that simultaneous processing would enhance
efficiency by streamlining processes and allowing decision-making
entities to use pre-existing data to make determinations.\71\ For
instance, Los Angeles DWP believes that simultaneous processing would
enable early engagement and coordination between State and Federal
regulators, thereby increasing certainty in permit application
outcomes, reducing time and costs of environmental reviews, and better
aligning projects with State and Federal policy goals.\72\ Sabin Center
concurs that removing the one-year delay will improve efficiency and
ensure more timely decision-making by the Commission by streamlining
information collection.\73\
---------------------------------------------------------------------------
\70\ Advanced Energy United Comments at 8-9; American Chemistry
Council Comments at 5; ACP Comments at 2-7; ACORE Comments at 2-3;
ACEG Comments at 5-6, 8-9; CATF Comments at 3-7; Clean Energy Buyers
Comments at 6-7; ClearPath Comments at 2; CLF Comments at 2,4; ELCON
Comments at 1,3; EDF Comments at 10-11; Los Angeles DWP Comments at
2; Michigan Commission Comments at 4; New Jersey Board Comments at
5; Niskanen Comments at 5-7; Public Interest Organizations Comments
at 10-15; Sabin Center Comments at 2-3; SEIA Comments at 2-7;
Chickahominy Indian Tribe, Nansemond Indian Nation, Rappahannock
Indian Tribe, and Upper Mattaponi Indian Tribe Comments at 3.
\71\ Los Angeles DWP Comments at 2; Michigan Commission Comments
at 4; New Jersey Board Comments at 5.
\72\ Los Angeles DWP Comments at 3.
\73\ Sabin Center Comments at 3.
---------------------------------------------------------------------------
42. Several commenters assert that the NOPR's simultaneous
processing proposal affords sufficient deference to States' decision-
making involving land-use and permitting decisions.\74\ ACEG states
that the Commission's proposed approach toward simultaneous processing
strikes the correct balance between promoting efficiency and respecting
States' primacy in the process.\75\
---------------------------------------------------------------------------
\74\ See, e.g., SEIA Comments at 5-7; EDF Comments at 11.
\75\ ACEG Comments at 5-6.
---------------------------------------------------------------------------
43. Some commenters agree that simultaneous processing is
consistent with the Commission's statutory authority under FPA section
216 and Congress's intent.\76\ Advanced Energy United states that the
IIJA's amendments to FPA section 216 were meant to expedite the
permitting process and that simultaneous processing would meet that
goal.\77\
---------------------------------------------------------------------------
\76\ See, e.g., ClearPath Comments at 2; see also Clean Energy
Buyers Comments at 5; Public Interest Organizations Comments at 11-
12 (interpreting Congress's silence as an implicit grant of
authority).
\77\ See, e.g., ACP Comments at 8; see also Advanced Energy
United Comments at 7.
---------------------------------------------------------------------------
44. Some commenters contend that the NOPR's simultaneous processing
proposal would enhance stakeholder participation and communication in
both State and Federal transmission siting proceedings.\78\ ACP states
that conducting concurrent review allows the Commission to hear from
stakeholders early in the Federal siting process--and potentially in
tandem with States.\79\ Niskanen also supports simultaneous processing
because it believes that the Commission's implementation of the
statute's ``good faith'' standard for engaging with landowners and
other stakeholders from the beginning of the process will standardize
practices across the States and decrease the ability of applicants to
exhibit bad faith when dealing with only the State commission.\80\
---------------------------------------------------------------------------
\78\ Los Angeles DWP Comments at 2
\79\ ACP Comments at 5.
\80\ Niskanen Comments at 7.
---------------------------------------------------------------------------
45. Several commenters that otherwise support the NOPR's
simultaneous processing proposal explicitly oppose the Commission's
pre-filing process commencing prior to the commencement of the State's
permitting process or a State application being filed.\81\ Several
commenters that support simultaneous processing also urge the
Commission to take steps to limit stakeholder confusion, for instance,
by requiring applicants to specify when they will file their
applications with States.\82\ The Chickahominy Indian Tribe, Nansemond
Indian Nation, Rappahannock Indian Tribe, and Upper Mattaponi Indian
Tribe are supportive of simultaneous processing, but warn that the
Commission must ensure meaningful stakeholder participation during the
pre-filing process.\83\
---------------------------------------------------------------------------
\81\ ACORE Comments at 3; Yurok Tribe Comments at 24; Clean
Energy Buyers Comments at 7.
\82\ See California Commission Comments at 6; EDF Comments at
11.
\83\ Chickahominy Indian Tribe, Nansemond Indian Nation,
Rappahannock Indian Tribe, and Upper Mattaponi Indian Tribe Comments
at 3.
---------------------------------------------------------------------------
46. Many commenters oppose the NOPR proposal to allow the
Commission's pre-filing process to commence at any time after the
relevant State siting applications have been filed
[[Page 46688]]
but before a State decision is made.\84\ Several commenters urge the
Commission to retain the existing policy adopted in Order No. 689,
where the pre-filing process could not commence until one year after
the relevant State applications have been filed.\85\ Some commenters
argue that the Commission's pre-filing process should not begin until
after the relevant State authority determines that a State application
is complete \86\ or after the relevant State authority's finishes its
adjudication.\87\ Georgia Commission is concerned that simultaneous
processing would contradict current State statutes and regulations
guiding transmission planning, which in Georgia occurs at least every
three years.\88\
---------------------------------------------------------------------------
\84\ Alabama Commission Comments at 1-3; Georgia Commission
Comments at 1-2; Impacted Landowners Comments at 2-5; Joint Consumer
Advocates Comments at 6-11; Kansas Commission Comments at 9-12;
Kentucky Commission Comments at 2-4; Louisiana Commission Comments
at 5-9; Maryland Commission Comments at 2, 16-21; NESCOE Comments at
4, 6-7; New York Commission Comments at 9-10; North Carolina
Commission and Staff Comments at 8, 10-11; North Dakota Commission
Comments at 5-6; Pennsylvania Consumer Advocate Comments at 5-7;
Pennsylvania Commission Comments at 2, 4-6; Texas Commission
Comments at 5-6, 10-11; Southern Comments at 3-8; Farm Bureaus
Comments at 3, 6; Chamber of Commerce Comments at 2, 5.
\85\ See, e.g., North Dakota Commission Comments at 6; NESCOE
Comments at 4-6; Texas Commission Comments at 6.
\86\ North Dakota Commission Comments at 5; Joint Consumer
Advocates Comments at 6; Maryland Commission Comments at 21 (arguing
that the one-year should be tolled if material amendments are filed
at the State level).
\87\ New York Commission Comments at 9; Maryland Commission
Comments at 2, 18-19; Pennsylvania Commission Comments at 7.
\88\ Georgia Commission Comments at 2.
---------------------------------------------------------------------------
47. Several commenters argue that simultaneous processing would not
adequately respect the States' primacy and would impinge on State
jurisdiction.\89\ Joint Consumer Advocates caution that the Commission,
in implementing its section 216 authority, must ensure State processes
are not coopted or preempted, and they assert that the Federal process
should be a backstop, rather than an alternative, to the State
process.\90\ Georgia and Texas Commissions express concerns that the
NOPR's proposed simultaneous processing will encroach on their existing
permitting schemes.\91\ Some commenters argue that simultaneous
processing would undermine State proceedings \92\ and the public's
confidence in State siting authorities.\93\ Pennsylvania Commission and
North Carolina Commission argue that Congress meant to balance the
Commission's process with State primacy and that the NOPR's
simultaneous processing proposal is inconsistent with that goal.\94\
---------------------------------------------------------------------------
\89\ See, e.g., Maryland Commission Comments at 2, 19; North
Dakota Commission Comments at 2; Louisiana Commission Comments at 5.
\90\ Joint Consumer Advocates Comments at 5.
\91\ Georgia Commission Comments at 2,4; Texas Commission
Comments at 6-9.
\92\ Louisiana Commission Comments at 5.
\93\ NESCOE Comments at 6-7.
\94\ Pennsylvania Commission Comments at 2; North Carolina
Commission and Staff Comments at 8.
---------------------------------------------------------------------------
48. Several commenters argue that simultaneous processing invites
potentially duplicative, wasteful procedures, especially in instances
where the State ultimately approves the application.\95\ Kentucky PSC
contends that the one-year delay actually helps the Commission, as some
projects will be approved by States in that time, saving the Commission
from wasting time and resources on commencing the NEPA process.\96\
Chamber of Commerce asserts that simultaneous processing, by virtue of
its design, guarantees that one of the processes and the stakeholder
efforts will amount to a void and wasted effort.\97\ Some commenters
express concerns that applicants may seek to recover from ratepayers
costs incurred for commencing the Commission's pre-filing process in
instances when the State siting commission approves a proposed
transmission project.\98\
---------------------------------------------------------------------------
\95\ See New York Commission Comments at 9; Alabama Commission
Comments at 2 n.3; North Dakota Commission Comments at 6; North
Carolina Commission and Staff Comments at 8.
\96\ Kentucky Commission Comments at 3-4.
\97\ Chamber of Commerce Comments at 5; Impacted Landowners
Comments at 3.
\98\ Texas Commission Comments at 10-11; Impacted Landowners
Comments at 3.
---------------------------------------------------------------------------
49. Commenters opposed to simultaneous processing argue that the
NOPR proposal would disproportionately burden State agencies charged
with processing transmission siting applications. Some commenters
assert that simultaneous proceedings would make it challenging for
State oversight agencies to concurrently perform their quasi-judicial
role and act as intervenors in Commission proceedings.\99\ Other
commenters contend that overlapping hearings and comment deadlines
\100\ would strain State resources or divide the attention of State
experts.\101\
---------------------------------------------------------------------------
\99\ See Kentucky Commission Comments at 2; Alabama Commission
Comments at 1; Pennsylvania Commission Comments at 6.
\100\ See NESCOE Comments at 5-6.
\101\ See Kansas Commission Comments at 11-12; New York
Commission Comments at 9; Kentucky Commission Comments at 2; Alabama
Commission Comments at 1; Pennsylvania Commission Comments at 6.
---------------------------------------------------------------------------
50. Multiple commenters assert that the NOPR's simultaneous
processing proposal would have an adverse effect on stakeholder and
applicant participation in State proceedings.\102\ In particular, some
commenters express concerns that multiple hearings and comment
deadlines resulting from parallel State and Federal proceedings would
confuse stakeholders by requiring interested participants and affected
landowners to learn and comply with two sets of procedural rules and
substantive permitting requirements.\103\ Some commenters argued that
the resulting confusion would reduce stakeholder participation.\104\
---------------------------------------------------------------------------
\102\ NESCOE comments at 5-6; Kansas Commission Comments at 11-
12.
\103\ See NESCOE Comments at 6; New York Commission Comments at
9; Kansas Commission Comments at 11-12.
\104\ See NESCOE Comments at 6.
---------------------------------------------------------------------------
51. Several of the commenters that oppose the simultaneous
processing proposal also oppose the proposed 90-day comment period for
States as an inadequate replacement for the one-year delay.\105\
Kentucky and Louisiana Commissions argue that the 90-day comment period
for States will put them in the position of choosing whether to remain
silent in the Commission pre-filing process or to comment in favor of
or against a proposed project, essentially ``prejudging'' the project
at the Federal level while trying to maintain impartiality in the
ongoing State proceeding.\106\ North Carolina Commission and Staff
oppose simultaneous processing but support the 90-day comment period in
the event that the Commission adopts the proposal, because it would
afford the States more time to participate in the Commission's pre-
filing process.\107\ Although Pennsylvania Commission also opposes
simultaneous Federal and State proceedings, it contends that the 90-day
comment period is necessary even in the absence of simultaneous
processing.\108\
---------------------------------------------------------------------------
\105\ See, e.g., Alabama Commission Comments at 2 n.6; Maryland
Commission Comments at 19; Kentucky Commission Comments at 2-3;
Louisiana Commission Comments at 5; Southern Comments at 8.
\106\ Kentucky Commission Comments at 2-3; Louisiana Commission
Comments at 5.
\107\ North Carolina Commission and Staff Comments at 11-12.
\108\ Pennsylvania Commission Comments at 6-7.
---------------------------------------------------------------------------
52. Sabin Center and ClearPath both suggest that the 90-day comment
period start one year after the start of the State review, not one year
after the Commission's pre-filing process has begun.\109\ ClearPath
suggests that there be no 90-day comment period if a State
[[Page 46689]]
has already approved or denied an application, as the State will have
already stated its position on the project.\110\ Some entities seek
clarity as to whether the 90-day window explicitly applies to every
circumstance triggering the Commission's jurisdiction under section
216.\111\ ACP points out that the 90-day comment period would serve as
a second opportunity for State input, as States will also have the
opportunity to provide input during DOE's National Corridor designation
process.\112\
---------------------------------------------------------------------------
\109\ Sabin Center comments at 3; ClearPath Comments at 2.
\110\ ClearPath Comments at 2.
\111\ Joint Consumer Advocates Comments at 6.
\112\ ACP Comments at 6.
---------------------------------------------------------------------------
c. Commission Determination
53. After further consideration and review of the comments, we
decline to adopt the NOPR proposal to allow simultaneous processing. We
acknowledge comments that argue that simultaneous processing could
result in efficiencies, but given the concerns raised by the States, we
find that not allowing simultaneous processing strikes the appropriate
balance at this time between an efficient process and respect for
States' primacy in siting transmission infrastructure. We continue to
believe that the statute allows parallel State and Commission
processes.\113\ Nevertheless, we make this policy determination to
continue the Commission's practice introduced in Order No. 689, based
on our review of the record and, in particular, the feedback received
from States in their filed comments and at the February 28, 2024
meeting of the Joint Federal-State Task Force on Electric
Transmission.\114\ Additionally, given this determination, we are not
adopting the NOPR proposal to provide a 90-day period for the State to
comment on the pre-filing process.
---------------------------------------------------------------------------
\113\ Order No. 689, 117 FERC ] 61,202 at P 19.
\114\ See supra note 40, Tr. 79-90.
---------------------------------------------------------------------------
54. We confirm that, in cases where the Commission's jurisdiction
rests on FPA section 216(b)(1)(C)(i),\115\ the applicant should not
begin the pre-filing process until one year after the relevant State
applications have been filed. This will give the States one full year
to process an application without any overlapping Commission processes.
Once that year is complete, an applicant may begin the Commission's
pre-filing procedures pursuant to Sec. 50.5. We believe that
continuing this approach most adequately addresses State concerns.
However, as the Commission previously stated in Order No. 689, if we
determine in the future that the lack of a Commission pre-filing
process prior to the end of the one year is delaying projects or
otherwise not in the public interest, we may reexamine this issue.
---------------------------------------------------------------------------
\115\ 16 U.S.C. 824p(b)(1)(C)(i).
---------------------------------------------------------------------------
B. Eminent Domain Authority and Applicant Efforts To Engage With
Landowners and Other Stakeholders
55. Section 50.4 requires the applicant to develop and file a
Project Participation Plan early in the pre-filing process and to
distribute, by mail and newspaper publication, project participation
notifications early in both the pre-filing and application review
processes. These notifications will provide a range of information
about the proposed project and permitting process, including a general
description of the property an applicant would need from an affected
landowner and a brief summary of the rights an affected landowner has
at the Commission and in proceedings under the eminent domain rules of
the relevant State.
1. NOPR Proposal
56. As described above, the IIJA amended FPA section 216(e)(1) to
require the Commission to determine, as a precondition 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 permitting process.\116\ Therefore, in the
NOPR, the Commission proposed to supplement the existing landowner and
stakeholder participation provisions in part 50 of its
regulations.\117\
---------------------------------------------------------------------------
\116\ 16 U.S.C. 824p(e)(1).
\117\ NOPR, 181 FERC ] 61,205 at PP 24-29.
---------------------------------------------------------------------------
57. To address the IIJA's amendment to section 216(e)(1), in the
NOPR the Commission proposed to supplement the regulatory requirements
in Sec. 50.4 by adding a new Sec. 50.12.\118\ Under proposed Sec.
50.12, an applicant may demonstrate that it has met the statutory good
faith efforts standard by complying with an Applicant Code of Conduct
in its communications with affected landowners. The Applicant Code of
Conduct includes recordkeeping (e.g., maintaining an affected landowner
discussion log) and information-sharing requirements for engagement
with affected landowners, as well as more general prohibitions against
misconduct in such engagement.
---------------------------------------------------------------------------
\118\ Id. PP 26-29.
---------------------------------------------------------------------------
58. As the Commission proposed in the NOPR, under Sec.
50.12(b)(1), an applicant that chooses to show good faith by complying
with the Applicant Code of Conduct must file, as part of the pre-filing
request required under Sec. 50.5(c), an affirmative statement
indicating its intent to comply with the Applicant Code of
Conduct.\119\ Under Sec. 50.12(b)(2), such an applicant must, as part
of the monthly status reports required under Sec. 50.5(e), demonstrate
compliance by: (i) affirming that the applicant and its representatives
have complied with the Applicant Code of Conduct; or (ii) explaining
any instances of non-compliance during the relevant month and any
remedial actions taken or planned. Under proposed Sec. 50.12(b)(3), an
applicant must also identify any known instances of non-compliance that
were not disclosed in prior monthly status reports and explain any
remedial actions taken to remedy such instances of non-compliance.
---------------------------------------------------------------------------
\119\ Id. P 27.
---------------------------------------------------------------------------
59. In the NOPR, the Commission emphasized that compliance with the
Applicant Code of Conduct is one way, but not the only way, that an
applicant may demonstrate that it has met the good faith efforts
standard in section 216(e)(1).\120\ Nevertheless, the Commission stated
that the Applicant Code of Conduct reflects principles that are broadly
relevant to determining whether an applicant has made good faith
efforts to engage with landowners and other stakeholders early in the
applicable permitting process. Thus, the Commission proposed to require
under Sec. 50.12 that an applicant that chooses not to rely on
compliance with the Applicant Code of Conduct must specify its
alternative method of demonstrating that it meets the statute's good
faith efforts standard and explain for each deviation from the
Applicant Code of Conduct why the chosen alternative is an equal or
better means to ensure that the good faith efforts standard is met.
---------------------------------------------------------------------------
\120\ Id. P 28.
---------------------------------------------------------------------------
2. Comments
60. Public Interest Organizations and the Yurok Tribe generally
support the Applicant Code of Conduct.\121\ In addition, numerous
commenters urge the Commission to make compliance with the Applicant
Code of Conduct mandatory for applicants to maximize transparency and
meaningfully assist landowners and stakeholders.\122\ Public Interest
Organizations specifically recommend that the Commission elevate the
Applicant Code of Conduct as the sole means of demonstrating compliance
with the good faith efforts standard in section 216(e)(1), asserting
that allowing alternative methods could
[[Page 46690]]
result in ambiguity for the applicant and other stakeholders.\123\
---------------------------------------------------------------------------
\121\ Public Interest Organizations Comments at 16-17; Yurok
Tribe Comments at 30.
\122\ EDF Comments at 13: Farm Bureaus Comments at 11; Public
Interest Organizations Comments at 18; NESCOE Comments at 13;
Pennsylvania Consumer Advocate Comments at 7.
\123\ Public Interest Organizations Comments at 42-44.
---------------------------------------------------------------------------
61. Impacted Landowners and EDF urge the Commission to create clear
standards to guide its good faith efforts determination, including for
alternative methods of demonstrating that an applicant meets the good
faith efforts standard.\124\
---------------------------------------------------------------------------
\124\ Impacted Landowners Reply Comments at 6; EDF Comments at
13.
---------------------------------------------------------------------------
62. In opposition, American Chemistry Council and ClearPath state
that the Commission's proposed good faith efforts requirements are
overly prescriptive, intrusive, outside the scope of the Commission's
statutory mandates, and will turn efforts to engage affected landowners
into a box-checking exercise instead of meaningful engagement.\125\
American Chemistry Council and ClearPath dispute the Commission's
assertion that compliance with the Applicant Code of Conduct is
voluntary given that applicants pursuing alternative methods of meeting
the good faith efforts requirement must explain how their methods are
equal to or better than compliance with the Applicant Code of
Conduct.\126\ ClearPath also contends that the Applicant Code of
Conduct contains redundancies, including the requirement in proposed
Sec. 50.12 that applicants provide landowners, upon first contact,
with documentation about the project, which, it says, is duplicative of
the notification requirements in Sec. 50.4(c).\127\ Furthermore,
ClearPath contends that the NOPR proposal would create inconsistent
requirements for transmission siting applications under the FPA and
natural gas pipeline applications under the Natural Gas Act.\128\
---------------------------------------------------------------------------
\125\ American Chemistry Council Comments at 6; ClearPath
Comments at 3.
\126\ American Chemistry Council Comments at 6; ClearPath
Comments at 3. For example, ClearPath notes that the regulations
require monthly status reports and questions whether any less
frequent reporting would be deemed ``equal or better'' than monthly
reporting.
\127\ ClearPath Comments at 3.
\128\ Id.
---------------------------------------------------------------------------
63. Impacted Landowners state that merely having an Applicant Code
of Conduct will not result in actual good faith efforts by an applicant
to engage with landowners and generally that codes of conduct do not
work. They assert that there has historically been no policing or
punishment of violations associated with codes of conduct.\129\
Further, Impacted Landowners assert that although the proposed
Applicant Code of Conduct admonishes applicants to avoid coercive
tactics while they engage in negotiations with landowners, there is no
way to bring up the possible exercise of eminent domain without it
being interpreted by the landowner as coercive.\130\
---------------------------------------------------------------------------
\129\ Impacted Landowners Comments at 7-10.
\130\ Id. at 8.
---------------------------------------------------------------------------
64. California Commission states that the proposed regulations
under Sec. 50.12(b)(2) should be revised to require a demonstration
and documentation of compliance with the Applicant Code of Conduct
rather than only an ``affirmation'' to ensure applicant
compliance.\131\
---------------------------------------------------------------------------
\131\ California Commission Comments at 7.
---------------------------------------------------------------------------
65. Several commenters seek clarification regarding the timing and
duration of the Commission's good faith efforts determination required
by FPA section 216(e)(1). For instance, Impacted Landowners ask the
Commission to clarify the point at which the ``applicable permitting
process'' begins, during which applicants must make good faith efforts
to engage with landowners and other stakeholders. They also ask when
the Commission would determine if good faith efforts have been made and
whether applicants will be expected or required to continue to make
good faith efforts to engage with landowners and other stakeholders
once a permit is issued, asserting that after permit issuance,
applicants will likely increase land acquisition efforts and
negotiations can become more contentious.\132\ Several commenters
suggest that applicants must make good faith efforts to engage with
landowners and other stakeholders throughout the permitting process,
including prior to the start of the Commission's pre-filing
process.\133\ EEI notes that in instances of late project routing
changes it may be difficult to comply with the statutory good faith
efforts requirement.\134\
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\132\ Impacted Landowners Reply Comments at 5-6.
\133\ Public Interest Organizations Comments at 17 and 21;
Niskanen Comments at 7.
\134\ EEI Comments at 7.
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66. Similarly, several commenters raise timing concerns with using
an alternative method, allowed in proposed Sec. 50.12(c), to
demonstrate that the good faith efforts standard has been met. Public
Interest Organizations assert that the proposed regulations are
ambiguous with respect to how or when the Commission would determine
that an applicant's alternative method is equal to or better than the
Commission's Applicant Code of Conduct.\135\ EEI asks the Commission to
avoid any disruption or delay when making that determination.\136\
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\135\ Public Interest Organizations Comments at 42-44.
\136\ EEI Comments at 7.
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67. Several commenters offer suggestions with respect to the scope
of an applicant's good faith efforts under FPA section 216(e)(1).
Public Interest Organizations and SEIA claim that proposed Sec. 50.12,
which applies to communications with affected landowners, fails to take
into account section 216(e)(1)'s statutory directive to make good faith
efforts to engage ``landowners and other stakeholders.'' \137\ Public
Interest Organizations and SEIA recommend that the regulations in Sec.
50.12 be amended to include conduct with ``other stakeholders,'' \138\
noting that this change would extend the duty of good faith to
environmental justice communities.\139\ The Yurok Tribe, Chickahominy
Indian Tribe, Nansemond Indian Nation, Rappahannock Indian Tribe, and
Upper Mattaponi Indian Tribe state that Tribes should be included as a
separate stakeholder in the regulations with whom applicants must
demonstrate good faith efforts to engage, including in the Applicant
Code of Conduct.\140\
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\137\ Public Interest Organizations Comments at 3 and 17.
\138\ Id. at 18-21.
\139\ Id. at 78-79; SEIA Comments at 10.
\140\ Yurok Tribe Comments at 30; Chickahominy Indian Tribe,
Nansemond Indian Nation, Rappahannock Indian Tribe, and Upper
Mattaponi Indian Tribe Comments at 2.
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68. Impacted Landowners argue that the proposed Applicant Code of
Conduct only applies to applicants and would not extend to contracted
land agents who negotiate with landowners.\141\ Niskanen suggests that
the Commission add explicit language to the Applicant Code of Conduct
to capture applicability to land agents acting on behalf of
applicants.\142\
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\141\ Impacted Landowners Comments at 9-10.
\142\ Niskanen Comments at 18-20.
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69. Pennsylvania Consumer Advocate, asserting that improper land
agent tactics are the most common cause of complaints during
transmission line siting cases, urges Commission staff to oversee
interactions between applicants and affected landowners.\143\ Several
commenters suggest that the Commission establish compliance procedures
and communication channels for landowners and stakeholders to provide
feedback to the Commission concerning applicants' efforts to engage in
good faith and violations of the Applicant Code of
[[Page 46691]]
Conduct.\144\ Public Interest Organizations and Niskanen recommend that
the Commission assign its Office of Public Participation to receive
from landowners and stakeholders reports of abuse or fraudulent
behavior exhibited by the applicant or any representative of the
applicant.\145\ Additionally, numerous commenters state that the
Commission should add language to the Landowner Bill of Rights
instructing affected landowners to promptly report to the Commission
any instances of abuse or fraudulent behavior exhibited by the
applicant or any representative of the applicant.\146\ Impacted
Landowners recommend that the Commission independently investigate
complaints of violations of the Applicant Code of Conduct, and that
Commission-verified violations should be punished to prevent
recurrence.\147\
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\143\ Pennsylvania Consumer Advocate Comments at 8.
\144\ Impacted Landowners Comments at 11; Impacted Landowners
Reply Comments at 5-6; Public Interest Organizations Comments at 17;
Pennsylvania Consumer Advocate Comments at 7-8.
\145\ Public Interest Organizations Comments at 40; Niskanen
Comments at 15-17.
\146\ Public Interest Organizations Comments at 40; Niskanen
Comments at 15-17.
\147\ Impacted Landowners Comments at 11.
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70. Similarly, several commenters recommend that the Commission
require applicants to include the discussion logs required under
proposed Sec. 50.12(a)(1) as part of the monthly status reports
applicants must submit under Sec. 50.5(e)(11),\148\ or, alternatively,
provide copies of discussion logs to landowners, stakeholders, and
Tribes for the purpose of verifying their accuracy.\149\ The Yurok
Tribe and Public Interest Organizations ask that the Applicant Code of
Conduct include a requirement for applicants to note within their
discussion logs who within a Tribe was contacted, a description of the
contacted Tribal representative's role, and whether another Tribal
representative was suggested to be contacted.\150\ The Yurok Tribe
states that the applicant must be held accountable to follow up on
alternative contact recommendations. The Yurok Tribe also suggests that
the discussion logs include the date of any questions posted by a
Tribe, the contents and date of any applicant responses to questions,
any follow-up after the initial answer, and the method of contact for
each interaction (e.g., phone, email, in-person).\151\
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\148\ Due to a clarifying edit, in this final rule the
Commission has split and redesignated what appeared in the NOPR as
Sec. 50.5(e)(7) and (8) into Sec. 50.5(e)(7), (8), and (9). With
this change, the NOPR's redesignated Sec. 50.5(e)(9) and (10) are
further redesignated to Sec. 50.5(e)(10) and (11). Consequently,
this final rule references these regulations according to the final
redesignated numbering.
\149\ Public Interest Organizations Comments at 22-23; NESCOE
Comments at 14, Niskanen Comments at 20, Yurok Tribe Comments at 32
and 34.
\150\ Yurok Tribe Comments at 31-32; Public Interest
Organizations Comments at 70-71.
\151\ Yurok Tribe Comments at 32.
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71. Specific to the Applicant Code of Conduct, Public Interest
Organizations note that proposed Sec. 50.12(a)(2) requires the
applicant to provide certain information to each stakeholder at first
contact. However, Public Interest Organizations state that the
regulations do not include a deadline for the applicant to provide
these documents. Public Interest Organizations recommend that the
Commission set a reasonable deadline for providing this information,
such as sending the document within three business days of first
contact.\152\
---------------------------------------------------------------------------
\152\ Public Interest Organizations Comments at 23.
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72. Several commenters provide additional recommendations for the
Applicant Code of Conduct, including requiring that company
representatives: provide landowners with a copy of the Applicant Code
of Conduct at first notification; \153\ present photo identification;
\154\ consent to being recorded or photographed,\155\ and explain their
position and decision-making authority along with providing contact
information for decision makers.\156\ Impacted Landowners ask that the
Applicant Code of Conduct require applicants to notify landowners of
their right to have counsel of their choice review the easement
agreement before signing and that use of eminent domain to acquire a
right-of-way requires payment of just compensation determined by the
appropriate court.\157\ Other commenters suggest that the Commission
require via the Applicant Code of Conduct that applicants must obtain
consent from Tribes to enter any form of Tribal land or any area known
to have cultural resources and that all individuals who conduct
outreach to Tribes have undergone training, including affected Tribes'
own programming.\158\ ACEG recommends that the Applicant Code of
Conduct require applicants to adequately protect landowners' personally
identifiable information.\159\ Finally, EDF suggests that the Applicant
Code of Conduct include provisions for applicants to determine the
preferred language of all affected landowners and communicate with
affected landowners in their preferred language.\160\
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\153\ Impacted Landowners Comments at 11.
\154\ Id.
\155\ Id.
\156\ Yurok Tribe Comments at 31; Public Interest Organizations
Comments at 70-71.
\157\ Impacted Landowners Comments at 11.
\158\ Yurok Tribe Comments at 33; Public Interest Organizations
Comments at 70.
\159\ ACEG Comments at 18.
\160\ EDF Comments at 13.
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3. Commission Determination
73. To incorporate the IIJA's amendment to section 216(e)(1)
requiring a determination by the Commission as to whether the permit
holder has made good faith efforts to engage with landowners and other
stakeholders, we adopt the NOPR proposal, with modifications. We find
that establishing standards via the Applicant Code of Conduct provides
clarity on expectations for applicants and will support the Commission
in making the required good faith efforts determination. As discussed
further below, in response to commenter feedback, we modify the NOPR
proposal to: clarify the timing and duration of certain Applicant Code
of Conduct provisions, ensure applicant representatives present photo
identification and provide the applicant's contact information during
discussions with affected landowners, require that applicants explain
to affected landowners that they may request copies of discussion log
entries that pertain to their property, and require applicants to
provide affected landowners copies of their discussion log entries upon
request.
74. We both decline commenters' requests to make the Applicant Code
of Conduct mandatory and disagree with commenters who argue that, by
setting minimum requirements, we have de facto made the Applicant Code
of Conduct mandatory. Given that the IIJA requires, as a prerequisite
to the permit holder using eminent domain, that the Commission
determine whether a permit holder has made good faith efforts to engage
with landowners and other stakeholders early in the applicable
permitting process, we believe it is important for the Commission to
identify a means for potential applicants to obtain that determination.
At the same time, while the Applicant Code of Conduct reflects the
principles, we find to be broadly relevant to determining that an
applicant has made good faith efforts to engage with landowners, we
will not declare that the specific steps outlined in the Applicant Code
of Conduct are the only way those principles can be achieved and
demonstrated. Therefore, we will allow applicants to propose for the
Commission's consideration alternative methods to demonstrate that the
statute's good faith efforts standard
[[Page 46692]]
will be met. We disagree that this framework would lead to ambiguity as
commenters suggest. The scope and complexity of projects that the
Commission may receive could significantly vary and we find it
appropriate at this point not to forestall alternative options to
demonstrate compliance with the good faith efforts standard. We find
that the Applicant Code of Conduct and option to comply with an
alternative method provides applicants sufficiently clear standards to
allow a demonstration of good faith efforts while providing for
appropriate flexibility, which may be necessary based on project-
specific circumstances.
75. Establishing an Applicant Code of Conduct does not exceed the
Commission's authority under FPA section 216. As described above,
Congress has directed the Commission to determine, as a prerequisite to
the use of eminent domain under FPA section 216(e)(1), that a permit
holder has made good faith efforts to engage with landowners and other
stakeholders. It is consistent with that directive to set forth in the
Commission's regulations a set of actions which we find, if followed,
will result in the appropriate engagement expected of applicants in
their interactions with landowners and provides guidance as to the
standards the Commission will apply in determining whether an applicant
has met the statutory requirement.
76. Regarding ClearPath's concerns that the Applicant Code of
Conduct contains redundancies, we note that the notification
requirements under Sec. 50.12 are structured to specifically address
an applicant's demonstration of its good faith efforts to engage
affected landowners. The Commission's existing notification
requirements in Sec. 50.4 facilitate participation from all landowners
and other stakeholders during the Commission's proceeding. Although
affected landowners may receive multiple notifications from applicants
as a result of these requirements, the Commission does not view this as
overly burdensome for applicants.
77. We also are not persuaded by ClearPath's argument that the
Commission can only adopt reforms to stakeholder participation
requirements if those revisions are applied equally to other Commission
infrastructure processes (i.e., to natural gas and hydropower
proceedings).\161\ Section 216(e)(1) of the FPA requires the Commission
to determine, as a prerequisite to eminent domain authority, that a
permit holder has made good faith efforts to engage with landowners and
other stakeholders early in the applicable permitting process. There is
no such requirement under the NGA or Part I of the FPA.
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\161\ The Commission is not obligated to implement changes in a
single, sweeping step, and is not barred from implementing process
improvements to only one program at a time. See, e.g.,
Transportation Div. of the Int'l Ass'n of Sheet Metal, Air, Rail &
Transportation Workers v. Fed. R.R. Admin., 10 F.4th 869, 875 (D.C.
Cir. 2021) (agencies have great discretion to take one step at a
time and do not need to act in ``one fell regulatory swoop'')
(internal citation and quotation omitted).
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78. In response to questions about the timing of the Commission's
good faith efforts determination, we clarify that, regardless of
whether the applicant follows the Applicant Code of Conduct or an
alternative method, we expect to issue such determinations concurrently
with an order on the merits of a permit application under section
216(b), based on the record in the proceeding.
79. Regarding Impacted Landowners' question as to when the
``applicable permitting process'' and good faith efforts requirements
begin and whether applicants must continue to make good faith efforts
to engage after permit issuance, we clarify that a good faith efforts
demonstration begins with the commencement of the Commission's pre-
filing process and continues through the issuance of the Commission's
order on the merits of the application. We adopt a revision in the
Applicant Code of Conduct to relocate, from Sec. 50.12(a)(1) to the
introductory text in paragraph (a) of this section, the phrase ``for
the duration of the pre-filing and application review processes'' to
make clear that this duration applies to all Applicant Code of Conduct
requirements. We also expect applicants to act in good faith in their
dealings with landowners and other stakeholders during any post-
authorization engagement related to the exercise of eminent domain,
construction of the project, and any post-construction mitigation or
other ongoing activities involving landowners and other stakeholders.
80. We also disagree with assertions that merely adopting an
Applicant Code of Conduct would not result in actual good faith efforts
or could produce contradictory results. Some of these assertions appear
premised on the notion that any engagement in which an applicant
retains the potential to use eminent domain is not in good faith.
However, we believe that an applicant demonstrates good faith efforts
by the course of its engagement and efforts to involve landowners and
other stakeholders in the process, rather than by whether eminent
domain is ultimately necessary or parties are satisfied with the
outcome of that engagement. We also disagree with claims that the
Applicant Code of Conduct will reduce engagement to a ``box checking
exercise.'' \162\ We believe compliance with the information-sharing
and recordkeeping provisions in the Applicant Code of Conduct will
encourage meaningful engagement with landowners and help ensure that
engagement meets the good faith efforts standard.
---------------------------------------------------------------------------
\162\ See, e.g., American Chemistry Council Comments at 6;
ClearPath Comments at 3.
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81. We decline to revise proposed Sec. 50.12(b)(2) to require
further demonstration beyond affirmation of compliance with the
Applicant Code of Conduct. The Applicant Code of Conduct requires
thorough documentation of an applicant's discussions with affected
landowners, and each month an applicant must either affirm that it has
complied with the Applicant Code of Conduct or provide a detailed
explanation of any instances of non-compliance and any remedial actions
taken or planned. As noted above, an applicant must demonstrate good
faith efforts for the duration of the Commission's pre-filing and
application review processes. In this final rule, we add Sec.
50.12(b)(4) to clarify that an applicant must continue to file monthly
status reports describing its efforts to comply with the Applicant Code
of Conduct during the application review process.
82. Regarding alternatives to the Applicant Code of Conduct, we
clarify that an applicant that uses an alternative method to
demonstrate good faith efforts to engage with landowners will bear the
burden to explain how its alternative method is equal to or better than
compliance with the Applicant Code of Conduct. The Commission would not
typically reach a determination that this standard is met until it
evaluates the permit application and determines whether to issue a
permit. Thus, an applicant who seeks to demonstrate that an alternative
method is equal to or better than compliance with the Applicant Code of
Conduct will face uncertainty regarding the acceptability of its method
until the Commission determines it meets the regulatory standard. We
have set forth an Applicant Code of Conduct that reflects principles we
find to be broadly relevant to determining whether an applicant has
made good faith efforts to engage with landowners and establishes a set
of practices we believe are sufficient to achieve those principles.
Applicants should propose deviations
[[Page 46693]]
only where they are confident that their approach is equal to or better
than the Applicant Code of Conduct as a means of demonstrating that
they have made good faith efforts to engage with landowners as required
by the statute.
83. In response to EEI's comment regarding the potential for late-
stage route changes, we note that applicants are required to file
monthly reports during the pre-filing process detailing the efforts to
comply with the Applicant Code of Conduct. To the extent that project
route changes are developed during the pre-filing process, we expect
that engagement with landowners and other affected stakeholders who
would be newly impacted by the contemplated route change will be
documented in monthly reports. In the instance of route changes that
occur after an application is filed, Sec. 50.4(c)(3) requires
notifications to newly affected landowners when they are identified. We
expect applicants to continue to make good faith efforts to engage
affected landowners, including those impacted by post-application and
post-authorization route changes, throughout the application review
process and through construction and restoration and mitigation
efforts.
84. In response to comments regarding the scope of proposed Sec.
50.12, we agree with commenters that FPA section 216(e)(1) requires an
applicant to demonstrate good faith efforts to engage with ``landowners
and other stakeholders.'' We decline to alter the scope of the
Applicant Code of Conduct, which specifically provides an applicant a
means to demonstrate compliance with the good faith efforts standard in
communications with affected landowners. 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,
which may not necessarily apply to engagement with other stakeholders.
With regard to good faith efforts to engage with other stakeholders,
applicants bear the burden to demonstrate good faith efforts at
engagement and should strive to incorporate best practices used in
engagement with affected landowners in engagement with other
stakeholders, as applicable. We also clarify that the Commission will
assess case-by-case an applicant's good faith efforts to engage with
other stakeholders, based on the record in a proceeding. We will
consider, among other things, an applicant's efforts to engage
stakeholders as described in the Project Participation Plan (including
engagement with environmental justice communities and Tribes), monthly
status reports describing stakeholder communications during pre-filing,
and compliance with Commission regulations for project notifications.
85. In response to the requests of several Tribes, we clarify that
Tribes meeting the definition of Indian Tribe in Sec. 50.1 qualify as
stakeholders for which applicants would be required to make good faith
efforts to engage. We conclude that the good faith efforts requirements
as discussed herein will ensure appropriate engagement with Tribes.
Accordingly, the Commission would consider evidence of engagement with
Tribes in its assessment of whether the good faith efforts standard has
been met.
86. As to applicability of the Applicant Code of Conduct to land
agents, we note that proposed Sec. 50.12(a)(12), adopted in this final
rule, explicitly applies the Applicant Code of Conduct to any
representative acting on the applicant's behalf, which includes land
agents.
87. We decline to adopt additional mechanisms to monitor compliance
with the good faith efforts standard. We do not believe that it is an
appropriate or practical use of Commission or stakeholder resources to
adjudicate good faith efforts issues during the course of a proceeding.
We encourage affected landowners and other stakeholders to participate
in the pre-filing process and the permit proceeding once an application
is filed. Landowners and other stakeholders may file comments in the
project-specific proceeding and may contact the Commission's landowner
helpline to identify perceived violations of the Applicant Code of
Conduct for consideration and to request investigation by the
Commission. Any comments submitted in the record may inform the
Commission's deliberation regarding the good faith efforts standard and
issuance of the permit. We also note that the Office of Public
Participation may be able to provide technical assistance to landowners
and other stakeholders regarding how to participate in a proceeding,
but will not serve as an advocate for stakeholders.
88. We also decline to make any additional changes to the
applicant's duty under Sec. 50.12(a)(1) to develop and maintain a log
of discussions because we conclude that the proposed requirements are
sufficiently detailed to record engagement with affected landowners,
and the Applicant Code of Conduct, as discussed above, is specifically
aimed at promoting good faith engagement. We similarly decline to
require applicants to file the discussion logs with the applicant's
monthly status reports required by Sec. 50.5(e)(11), as such a
categorical requirement is not necessary to promote good faith
engagement and could result in the public disclosure of information
that landowners may not want shared with the general public. With
respect to commenters' request that affected landowners be provided
with any relevant discussion logs, this final rule modifies Sec.
50.12(a)(2) to require applicants to explain to affected landowners
that they may request copies of discussion log entries that pertain to
their property and how affected landowners make such requests, and
modifies Sec. 50.12(a)(5) to require applicants to provide affected
landowners copies of discussion log entries, upon request.
89. Turning to commenter feedback on specific provisions in the
Applicant Code of Conduct, we agree with Public Interest Organizations
that requiring an applicant to provide to each affected landowner
specified documents ``immediately'' after first contact may be vague
and confusing. Therefore, we modify the NOPR proposal in Sec.
50.12(a)(2) by deleting ``immediately'' and adding in its place
``within three business days'' to clarify how soon after the first
contact the required document must be provided to the landowner.
90. We decline to require applicants to provide landowners with
copies of the Applicant Code of Conduct, as recommended in comments. As
stated in the NOPR, the Applicant Code of Conduct reflects principles
that are broadly relevant to determining whether an applicant has made
good faith efforts to engage with landowners. We do not believe that
requiring applicants to provide the Commission's regulatory text to
affected landowners is necessary or will assist in our good faith
efforts determination. In any event, we note that the Commission's
Electric Transmission Facilities Permit Process pamphlet--a copy of
which applicants must include as part of their Pre-filing Notifications
sent by mail--will be updated to reflect the provisions in this final
rule, and will include the text of the Applicant Code of Conduct.
91. Regarding requests that applicant representatives present photo
identification when engaging with affected landowners, we agree and
adopt this requirement in Sec. 50.12(a)(3). We find that a photo
identification requirement provides an important protection to an
affected landowner in confirming the identity and business association
of the applicant representative with whom the
[[Page 46694]]
landowner is speaking, and such requirement presents a minimal burden
on the applicant.
92. Given the protections to affected landowners contained herein,
including in the Landowner Bill of Rights and the required sharing of
information by the applicant, as well as the photo identification
requirement, we decline to also add a requirement that applicant
representatives consent to being recorded and photographed.
93. Regarding the request for company representatives to provide
contact information for decision makers, we assume commenters are
referring to a decision maker within the applicant's company. We agree
that it is important to provide affected landowners a way to contact
the applicant to obtain more information about a project or report any
issues with land agents. Therefore, we modify the NOPR proposal in
Sec. 50.12(a)(3) to require an applicant's representative to also
provide contact information for the applicant.
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.
95. We also decline to adopt a requirement that applicants have
specific engagement training that may be provided by Tribes. While such
engagement training may constitute a good business practice, we do not
find a generic requirement necessary to promote good faith efforts to
engage with affected landowners or other stakeholders. We reiterate
that the burden is on the applicant to demonstrate that the good faith
efforts standard has been met, and we therefore expect that the
applicant will take reasonable steps to engage with Tribes.
96. We also disagree that an addition to the Applicant Code of
Conduct to protect landowners' personally identifiable information is
necessary. We expect applicants to protect sensitive information from
public release, however, some personal information (e.g., a landowner's
name or mailing address) may be sourced from public databases or
applicants may need to share such information with its own contractors
or submit it to agencies as part of permitting application submittals.
Of course, when filing information that may contain personal
information with the Commission, applicants should use any appropriate
filing classification for proper treatment by the Commission.\163\
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\163\ For example, applicants may request privileged treatment
for landowner mailing lists submitted to the Commission by following
the procedures specified in Sec. 388.112 of the Commission's
regulations.
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97. As to the suggestion that applicants should communicate with
landowners in their preferred language, we understand the importance of
communicating basic information about the project, particularly to
landowners who may be subject to eminent domain, in languages other
than English where a significant portion of the community has limited
English proficiency. As discussed below, in response to comments, we
modify proposed Sec. 50.4 to require applicants to identify census
block groups that include limited English proficiency households,
identify the languages spoken in those census block groups, and, under
certain circumstances, provide project notifications in languages other
than English. Applicants must also describe in the Environmental
Justice Public Engagement Plan how they will identify, engage, and
accommodate people with limited English proficiency.
C. Environmental Justice Public Engagement Plan
1. NOPR Proposal
98. In the NOPR, the Commission stated that the existing provisions
of Sec. 50.4(a) require applicants to develop and file a Project
Participation Plan early in the pre-filing process.\164\ The Commission
explained that this requirement is intended to facilitate stakeholder
communications and the dissemination of public information about the
proposed project, including meaningful engagement early in the pre-
filing process with potentially affected environmental justice
communities. The Commission further explained that engagement with
environmental justice communities is consistent with a series of
executive orders, the Promising Practices for EJ Methodologies in NEPA
Reviews (Promising Practices) report, and the Commission's Equity
Action Plan.\165\ Accordingly, the Commission proposed to require,
under Sec. 50.4(a)(4) as part of the Project Participation Plan, that
applicants develop an Environmental Justice Public Engagement Plan
describing the applicant's outreach activities that are targeted to
identified environmental justice communities.\166\
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\164\ NOPR, 181 FERC ] 61,205 at P 30.
\165\ Id. (citing E.O. 12898, Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations, 59 FR 7629 (Feb. 11, 1994); E.O. 14008, Tackling the
Climate Crises at Home and Abroad, 86 FR 7619 (Jan. 27, 2021); E.O.
13985, Advancing Racial Equity and Support for Underserved
Communities Through the Federal Government, 86 FR 7009 (Jan. 20,
2021); Federal Interagency Working Group on Environmental Justice &
NEPA Committee, Promising Practices for EJ Methodologies in NEPA
Reviews (Mar. 2016), <a href="https://www.epa.gov/sites/default/files/2016-08/documents/nepa_promising_practices_document_2016.pdf">https://www.epa.gov/sites/default/files/2016-08/documents/nepa_promising_practices_document_2016.pdf</a>.;
Commission, Equity Action Plan (2022), <a href="https://www.ferc.gov/equity">https://www.ferc.gov/equity</a>.)
\166\ To identify potentially-affected environmental justice
communities in individual proceedings, Commission staff uses current
U.S. Census American Community Survey data for the race, ethnicity,
and poverty data at the State, county, and block group level. As
recommended in Promising Practices, the Commission currently uses
the fifty percent and the meaningfully greater analysis methods to
identify minority populations. Specifically, a minority population
is present where either: (1) the aggregate minority population of
the block groups in the affected area exceeds 50%; or (2) the
aggregate minority population in the block group affected is 10%
higher than the aggregate minority population percentage in the
county. Federal Interagency Working Group on Environmental Justice &
NEPA Committee, Promising Practices for EJ Methodologies in NEPA
Reviews (Mar. 2016), <a href="https://www.epa.gov/sites/default/files/2016-08/documents/nepa_promising_practices_document_2016.pdf">https://www.epa.gov/sites/default/files/2016-08/documents/nepa_promising_practices_document_2016.pdf</a>. Using
Promising Practices' low-income threshold criteria method, low-
income populations are currently identified as block groups where
the percent of a low-income population in the identified block group
is equal to or greater than that of the county. E.g., Transcon. Gas
Pipe Line Co. LLC, 186 FERC 61,209, at PP 34-36 (2024).
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99. The NOPR explained that the proposed Environmental Justice
Public Engagement Plan would require applicants to summarize comments
received from potentially impacted environmental justice communities
during any previous outreach activities, if applicable, and describe
planned outreach activities during the permitting process, including
efforts to identify, engage, and accommodate non-English speaking
groups or linguistically isolated communities.\167\ The proposed plan
must also describe the manner in which the applicant will reach out to
environmental justice communities about potential mitigation.\168\
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\167\ NOPR, 181 FERC ] 61,205 at P 31.
\168\ We note that the proposed Environmental justice resource
report, discussed further below, would require the applicant to
describe any proposed mitigation measures intended to avoid or
minimize impacts on environmental justice communities, including any
community input received on the proposed mitigation measures and how
that input informed such measures. See infra Part II.F.4.e.
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2. Comments
100. Some commenters question the Commission's authority to require
the Environmental Justice Public Engagement Plan, given the reliance on
executive orders and guidance. Representatives McMorris Rodgers and
Duncan state that the NOPR appears to broadly interpret the
Commission's
[[Page 46695]]
statutory authority and thus request that the Commission specify what
statutory authorities it is relying upon.\169\ Conversely, NESCOE
argues that the proposed Environmental Justice Public Engagement Plan
aligns with the Commission's statutory authority under FPA section
216(b).\170\ ClearPath is also concerned that reliance on best
practices derived from CEQ, the Environmental Protection Agency (EPA),
Census Bureau, and other authoritative sources, introduces uncertainty
and delay should applicants have to re-do compliance requirements every
time new data or guidance becomes available.\171\
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\169\ Representatives McMorris Rodgers and Duncan Comments at 2.
\170\ NESCOE Comments at 15-26.
\171\ ClearPath Comments at 4.
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101. American Chemistry Council and ClearPath argue that, although
they support community engagement, the proposed Environmental Justice
Public Engagement Plan does not advance this goal because the proposal
imposes extensive new requirements, as well as specific notice and
follow-up actions that are likely to undermine community engagement,
redirect effort from engagement to duplicative and excessive paperwork,
and foster increased procedural litigation and challenges--leading to
delays.\172\ American Chemistry Council states that the Commission
should limit any new planning mandates to outlining strategic goals,
planned communication tools and strategies, and desired outcomes.\173\
Representatives McMorris Rodgers and Duncan argue that the
Environmental Justice Public Engagement Plan includes vague
requirements and asks whether the Commission will issue more specific
guidelines.\174\ ClearPath argues that the Commission failed to explain
how the current stakeholder participation revisions are deficient for
environmental justice communities, but not for the general public;
therefore, it recommends that the Commission continue to utilize its
existing public participation procedures and not add a separate,
duplicative Environmental Justice Public Engagement Plan.\175\
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\172\ American Chemistry Council Comments at 7; ClearPath
Comments at 4-5.
\173\ American Chemistry Council Comments at 7.
\174\ Representatives McMorris Rodgers and Duncan Comments at 2.
\175\ ClearPath Comments at 4.
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102. On the other hand, several commenters support the requirement
for an Environmental Justice Public Engagement Plan. Public Interest
Organizations believe that the Commission must take concrete, tangible
action to require robust community engagement and partnership.\176\
Environmental Law & Policy Center states that this early stakeholder
engagement will improve the transmission siting process.\177\ Clean
Energy Buyers also comment in support but recognize that the success of
a plan will depend on the applicant's ability to actually engage with
the target communities.\178\
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\176\ Public Interest Organizations Comments at 44, 86-89.
\177\ Environmental Law & Policy Center Comments at 2.
\178\ Clean Energy Buyers Comments at 8-9.
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103. Several commenters request clarification and revision to the
proposed requirement for an Environmental Justice Public Engagement
Plan. EDF states that because the NOPR was drafted before the issuance
of Executive Order 14096, the Commission should review its proposal in
light of renewed and strengthened environmental justice requirements to
ensure compliance with updated rules and guidance.\179\ It also
encourages the Commission to mandate engagement on mitigation,
including the discussion of alternatives and community benefit
programs. Environmental Law & Policy Center urges the Commission to
adopt specific recommendations to ensure that engagement is more than a
box-checking exercise for developers.\180\ NESCOE states that, under
the NOPR proposal, applicants would not be required to comply with any
actual standards for engaging with environmental justice communities,
including documentation, accountability, and enforcement of
consequences for inadequate engagement.\181\ EDF requests that the
Commission periodically review the results of applicants' Environmental
Justice Public Engagement Plans and determine whether they are yielding
sufficient engagement with environmental justice communities.\182\
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\179\ EDF Comments at 9 (referencing E.O. 14096, Revitalizing
Our Nation's Commitment to Environmental Justice for All, 88 FR
25251 (Apr. 21, 2023)).
\180\ Environmental Law & Policy Center Comments at 2.
\181\ NESCOE comments at 25; EDF Comments at 9.
\182\ EDF Comments at 9.
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104. Several commenters recommend specific methodology and
terminology clarifications.\183\ Public Interest Organizations ask the
Commission to require applicants to use updated information from CEQ
and EPA when identifying environmental justice communities as part of
their Environmental Justice Public Engagement Plan or providing
specificity on the additional sources the Commission expects applicants
to use, to ensure consistency and transparency in the methodology
selection process.\184\ Public Interest Organizations state that the
Commission must: prioritize identification methodologies that promote
accurate identification of environmental justice communities; provide
guardrail language to guide the methodology selection process while
creating flexibility; acknowledge the scope and limitations of
potential databases and tools, where applicable; and commit to promptly
update its methods for identifying environmental justice
communities.\185\ In addition, they state that the Commission should
refine the term ``outreach activities'' in order to require developers
to seek guidance on and then incorporate community-based best practices
and methods for both disseminating and requesting information and input
from the community.\186\ Public Interest Organizations argue that
outreach activities should include a reciprocal educational component
where developers as well as the community members share and
meaningfully engage with each other.\187\
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\183\ EDF Comments at 8; Environmental Law & Policy Center
Comments at 4.
\184\ Public Interest Organizations Comments at 86.
\185\ Id. at 84-85.
\186\ Id. at 88.
\187\ Id.
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105. EDF and Policy Integrity recommend that the Commission and
developers utilize specific tools such as the EPA's EJScreen Tool,
CEQ's Climate and Economic Justice Screening Tool (CEJST), and State-
developed mapping tools to identify environmental justice
communities.\188\ Public Interest Organizations agree on the need for
more nuanced and fulsome identification of environmental justice
communities, but state that utilization of the EJScreen and CEJST can
only be useful first steps in this methodology given that both tools
have inherent limitations.\189\
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\188\ EDF Comments at 9; Policy Integrity Comments at 24-37;
Environmental Law & Policy Center Comments at 4.
\189\ Public Interest Organizations Comments at 84-85.
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106. Policy Integrity states that the Commission should require
incorporation of screening tools that use a combination of
environmental and socioeconomic proxies, such as proximity to
pollution, because relying upon demographic-only proxies like income
and race might not capture localized harms and omit communities that
would otherwise satisfy the proposed definition of environmental
[[Page 46696]]
justice community.\190\ It asks the Commission to recognize any
historically marginalized community that bears any type of
disproportionate environmental burden or faces disparities in access to
environmental benefits as an environmental justice community.\191\ In
addition, Policy Integrity states that the Commission should establish
a mechanism for communities to self-identify as environmental justice
communities, and then adjudicate whether a community should be
considered an environmental justice community in light of submitted
evidence.\192\
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\190\ Policy Integrity Comments at 24.
\191\ Id. at 2.
\192\ Id. at 37-39.
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107. Commenters make additional recommendations in support of
transparency and accountability in the process of engaging with
environmental justice communities, including requiring notices in
languages other than English, maintaining a project website, and using
additional notification methods.\193\ NESCOE recommends several
engagement best practices such as holding in-person meetings ``in
locations that are accessible by public transportation . . . [and] at
times that would allow working individuals to attend,'' providing
childcare during such meetings, designating a community liaison, and
disseminating non-technical information that meaningfully explains how
one might be impacted by the project.\194\ Some commenters recommend
that the Commission's Office of Public Participation have a role in the
identification of barriers to participation as well as helping foster
engagement between the Commission, applicants, and environmental
justice communities.\195\
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\193\ ClearPath Comments at 5; Public Interest Organizations
Comments at 87; NESCOE Comments at 26.
\194\ NESCOE Comments at 26.
\195\ Id. at 25-26; Public Interest Organizations Comments at
89-91.
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108. NESCOE and Clean Energy Buyers suggest that the Commission
should ensure that its public engagement and environmental justice
review practices are generally consistent and coordinated with
applicable State policies and agencies.\196\ Joint Consumer Advocates
argue that the Commission's proposed approach only requires applicants
to describe outreach activities and summarize comments, which largely
places the burden on disadvantaged populations to describe anticipated
impacts to human health or the environment, rather than engaging State
agencies like consumer advocate offices.\197\
---------------------------------------------------------------------------
\196\ NESCOE Comments at 26; Clean Energy Buyers Comments at 9.
\197\ Joint Consumer Advocate Comments at 18.
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3. Commission Determination
109. We adopt the NOPR proposal to require an Environmental Justice
Public Engagement Plan under Sec. 50.4(a)(4) as a component of the
Project Participation Plan, with the following modification. The NOPR
proposed that the plan describe an applicant's efforts to identify,
engage, and accommodate ``non-English speaking groups and
linguistically isolated communities;'' however, this final rule updates
that terminology to ``people with limited English proficiency.''
110. As an initial matter, we disagree that requiring applicants to
include an Environmental Justice Public Engagement Plan as part of its
Project Participation Plan exceeds the Commission's statutory
authority. NEPA requires the Commission to evaluate the environmental
impacts of any major Federal action, such as the issuance of a permit
to site electric transmission facilities under section 216 of the
FPA.\198\ The Commission's obligation to take a ``hard look'' at such
impacts under NEPA requires consideration of impacts on environmental
justice communities, much as it requires the Commission to consider
impacts on other affected communities.\199\ This requirement
facilitates the development of the record, including the Environmental
justice resource report, that the Commission needs to assess impacts on
environmental justice communities by providing a roadmap for
applicants' engagement with environmental justice communities and an
opportunity for comment on that engagement. In addition, requiring
applicants to describe engagement with identified environmental justice
communities will assist the Commission in meeting its statutory
obligations under FPA section 216. Because environmental justice
communities may experience environmental impacts more acutely than
other communities or targeted methods of engagement may be more
effective,\200\ we appropriately require that an applicant develop a
targeted outreach plan for environmental justice communities.\201\
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\198\ 42 U.S.C. 4332(2)(C); see Sierra Club v. FERC, 38 F.4th
220, 226 (D.C. Cir. 2022).
\199\ See Sierra Club v. FERC, 867 F.3d 1357, 1368 (D.C. Cir.
2017).
\200\ For example, targeted methods of engagement may include
additional notification to community leaders, religious
institutions, and other community resources, and the publishing of
project information via community newspapers and radio stations.
\201\ See E.O. 14096, Revitalizing Our Nation's Commitment to
Environmental Justice for All, 88 FR 25251, 25252 (Apr. 21, 2023).
---------------------------------------------------------------------------
111. Requiring an applicant to describe its outreach targeted to
environmental justice communities as part of its Project Participation
Plan is also consistent with the Executive Orders that direct Federal
agencies to identify and address disproportionate and adverse human
health or environmental effects of their actions on minority and low-
income populations (i.e. environmental justice communities).\202\ In
response to EDF's request that we review Executive Order 14096, we note
that the new Executive Order did not rescind Executive Order 12898. The
Commission's current practices as an independent regulatory agency are
largely consistent with the principles and goals of Executive Order
14096.\203\ This requirement is also consistent with the Commission's
2022 Equity Action Plan, which promotes equitable processes and
outcomes for underserved communities, including environmental justice
communities, at the Commission.\204\
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\202\ See E.O. 12898, Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR
7629 (Feb. 11, 1994); E.O. 14008, Tackling the Climate Crises at
Home and Abroad, 86 FR 7619 (Jan. 27, 2021); E.O. 13985, Advancing
Racial Equity and Support for Underserved Communities Through the
Federal Government, 86 FR 7009 (Jan. 20, 2021); E.O. 14096,
Revitalizing Our Nation's Commitment to Environmental Justice for
All, 88 FR 25251 (Apr. 21, 2023).
\203\ E.O. 14096, Revitalizing Our Nation's Commitment to
Environmental Justice for All, 88 FR 25251 (Apr. 21, 2023).
\204\ FERC, Equity Action Plan (2022), <a href="https://www.ferc.gov/equity">https://www.ferc.gov/equity</a>.
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112. Regarding comments stating that the proposed Environmental
Justice Public Engagement Plan does not advance the goal of community
engagement and imposes extensive new or duplicative requirements, we
disagree. The Commission currently requires a Project Participation
Plan in Sec. 50.4(a), which requires applicants to identify specific
tools and actions to facilitate stakeholder communications and public
information, including those tools and actions used to engage
stakeholders.\205\ To advance stakeholder participation under Sec.
50.4, we are requiring applicants to plan and target their outreach to
ensure appropriate and effective meaningful engagement with
[[Page 46697]]
potentially affected environmental justice communities.
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\205\ Consistent with the revised definition of ``stakeholder''
in Sec. 50.1 in this final rule, all stakeholders mean any
``Federal, State, interstate, or local agency; any Indian Tribe; any
affected landowner; any environmental justice community member; or
any other interested person or organization.''
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113. The requirement to address targeted outreach to identified
environmental justice communities merely codifies the expectation that
engagement with stakeholders in differing circumstances will require
differing approaches in order to be effective. Therefore, we do not
believe this requirement imposes additional administrative burden or
delay for applicants. This separate provision aims to ensure that
applicants do not use a ``one size fits all'' approach to outreach, and
it fosters the inclusion of outreach techniques that are tailored to
communication with environmental justice communities.
114. With regard to potential burdens placed on environmental
justice communities in having to communicate potential adverse impacts
caused or exacerbated by the project, we acknowledge this concern and
require applicants to identify the measures taken to accommodate
environmental justice communities who may face barriers to traditional
outreach or engagement methods. Additionally, the Commission's Office
of Public Participation will continue to engage with the public and act
as a liaison to members of the public affected by and interested in
Commission proceedings.
115. In response to comments recommending that the Commission
require the utilization of specific screening tools to identify
environmental justice communities such as CEQ's CEJST, we decline to do
so. The Commission currently uses the smallest geographic data area
available, census block groups, to identify environmental justice
communities in accordance with the identification methodology put forth
in Promising Practices and described above.\206\ In contrast, CEJST
uses census tracts, a larger geographic data area, to identify
``disadvantaged communities'' based on a variety of thresholds. We
decline to require the use of alternative screening tools that do not
provide a localized review of smaller environmental justice communities
in block groups. Further, to the extent that commenters argue that the
Commission should utilize the tools to expand the definition of
environmental justice communities, we decline for the reasons expressed
addressing definitions below.\207\
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\206\ Supra note 166. E.g., ANR Pipeline Co., 185 FERC ] 61,191,
at P 96 (2023); see also PennEast Pipeline Co. LLC, 170 FERC ]
61,198, at 62,305 (2020) (upholding staff's reliance on EPA's
EJScreen Tool to identify census block groups meeting the definition
of an environmental justice community despite the availability of
alternative screening tools).
\207\ Infra P 135.
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116. We acknowledge the desire expressed by commenters for specific
guidance for the Environmental Justice Public Engagement Plan and best
practices for engagement with environmental justice communities.\208\
But we find that the provisions of Sec. 50.4 are sufficient to
establish applicants' obligation to prepare a Project Participation
Plan that includes how they will address outreach to environmental
justice communities.
---------------------------------------------------------------------------
\208\ Outside of this final rule, the Commission has received
comments on best practices for engagement with environmental justice
communities during the Environmental Justice Roundtable and filed in
Docket No. AD23-5-000.
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117. Likewise, we decline to incorporate policies of States or
other agencies. Such specific practices may not be universally or
practically applicable across the variety of applications and contexts
relevant to this rule. Imposing an overly prescriptive set of
requirements mandating specific methodologies could negatively impact
flexibility needed to address engagement in the context of a broad
spectrum of applications. Instead, we believe such practices may more
appropriately be considered as part of future action by the Commission
in specific proceedings and/or as guidance, intended to assist
applicants to more effectively implement their regulatory obligations.
118. We also decline to adopt requirements mandating specific
levels of engagement as part of this rule. Again, adopting such
requirements is impracticable given the variety of applications and
related factual contexts we expect to encounter.
D. Revisions to 18 CFR Part 50
1. Section 50.1--Definitions
119. Section 50.1 sets forth the definitions for part 50 of the
Commission's regulations. The Commission proposed in the NOPR to add
definitions for ``Indian Tribe'' and ``environmental justice
community.'' The Commission also proposed to revise the definitions of
``national interest electric transmission corridor,'' ``permitting
entity,'' and ``stakeholder.'' Although the Commission did not propose
to revise the definition of ``affected landowners,'' the NOPR sought
comment on whether the Commission should revise the definition to
include landowners within a certain geographic distance from the
proposed project facilities.
120. This final rule adopts a definition for ``Indian Tribe,'' as
proposed in the NOPR, consistent with the Commission's regulations
governing other types of energy infrastructure projects.\209\ We also
adopt the definition of ``permitting entity'' as proposed in the NOPR.
In addition, we modify several proposed definitions as further
discussed below.
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\209\ See, e.g., 18 CFR 4.30(b)(10) (2023) (defining ``Indian
Tribe'' in reference to an application for a license or exemption
for a hydropower project) and 18 CFR 157.1 (defining ``Indian
Tribe'' in reference to an application for a certificate of public
convenience and necessity for a natural gas pipeline project).
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a. Definition of Environmental Justice Community
i. NOPR Proposal
121. The Commission in the NOPR proposed to add a definition for
the term ``environmental justice community'' to assist applicant
compliance with the requirement in proposed Sec. 50.4(a)(4) that an
applicant develop and file an Environmental Justice Public Engagement
Plan.\210\ Specifically, the Commission proposed to define the term
``environmental justice community'' as ``any disadvantaged community
that has been historically marginalized and overburdened by pollution,
including, but not limited to, minority populations, low-income
populations, or indigenous peoples.''
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\210\ See discussion supra Part II.C.
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ii. Comments
122. Farm Bureaus state that at the Federal level there is no clear
definition of environmental justice communities.\211\ American
Chemistry Council and NESCOE agree and encourage the Commission to work
with EPA, DOE, and other Federal agencies to develop one consistent
definition for environmental justice communities, as the lack of a
consistent terminology and definition across government programs
creates confusion and uncertainty for all stakeholders.\212\ ClearPath
questions the legal durability of the Commission's definition,
particularly if other agencies adopt different definitions.\213\
ClearPath and Chamber of Commerce assert that adding the definition of
``environmental justice community'' may exceed the Commission's
statutory authority and expertise, increasing opportunities for legal
challenges.\214\
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\211\ Farm Bureaus Comments at 13.
\212\ American Chemistry Council Comments at 7; NESCOE Comments
at 27.
\213\ ClearPath Comments at 4.
\214\ ClearPath Comments at 4; Chamber of Commerce Comments at
4.
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[[Page 46698]]
123. ClearPath and Representatives McMorris Rodgers and Duncan
assert that the Commission's definition of ``environmental justice
community'' is standardless, such that the term ``overburdened by
pollution'' has neither a quantitative methodology for applicants to
follow nor a threshold for a designation to be made in a legally
durable manner.\215\ ClearPath states that the Commission makes the
definition open-ended when it states it ``includes, but may not be
limited to minority populations, low-income populations, or indigenous
people.'' \216\ Chamber of Commerce states that transmission line
infrastructure is not a source of ``pollution'' as contemplated under
the Commission's proposed definition of ``environmental justice
community.'' \217\
---------------------------------------------------------------------------
\215\ ClearPath Comments at 4; Representatives McMorris Rodgers
and Duncan Comments at 2.
\216\ ClearPath Comments at 4.
\217\ Chamber of Commerce Comments at 3-4.
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124. CATF suggests that the proposed definition of ``environmental
justice community'' be modified, specifically to remove the word
``disadvantaged,'' citing a CEQ memorandum which states that some
communities and advocates prefer ``overburdened and underserved''
instead of ``disadvantaged.'' \218\
---------------------------------------------------------------------------
\218\ CATF Comments at 9.
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125. EDF and Policy Integrity state that the Commission's
definition for ``environmental justice community'' is too narrow,
risking the omission of communities that bear disproportionate
environmental burdens beyond pollution (e.g., flooding) and health
impacts resulting from industry and infrastructure, or that lack equal
access to environmental benefits (e.g., green space).\219\
---------------------------------------------------------------------------
\219\ EDF Comments at 8; Policy Integrity Comments at 2.
---------------------------------------------------------------------------
126. EDF also states that the Commission's proposed definition
could be read as limiting the consideration of communities that can
specifically demonstrate that they have been historically marginalized
or overburdened by pollution, since it contains an additional
requirement that the community be a ``disadvantaged community,''
without a definition of that term.
127. Impacted Landowners state that rural landowners along the
center line of a proposed overhead transmission project on a new right-
of-way should be considered environmental justice communities because
such landowners are disadvantaged and marginalized.\220\ Further,
Impacted Landowners suggest that identification of environmental
justice communities should include religious affiliation, occupation,
age, or those who have been historically impacted due to numerous
energy infrastructure projects located on their property.\221\
---------------------------------------------------------------------------
\220\ Impacted Landowners Comments at 20.
\221\ Impacted Landowners Comments at 24.
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128. Los Angeles DWP proposes defining environmental justice
community as ``a group of people or a community that is
disproportionately affected by environmental pollution, hazards, or
other environmental risks, and that may face social, economic, or
political barriers to accessing a healthy and sustainable
environment.'' \222\
---------------------------------------------------------------------------
\222\ Los Angeles DWP Comments at 3.
---------------------------------------------------------------------------
129. Public Interest Organizations recommend revising the
Commission's proposed definition of environmental justice community to
include ``any community that is historically marginalized and/or
overburdened by pollution, including but not limited to communities
with significant representation of communities of Color, low-income
communities, or Indian Tribes and Indigenous peoples.'' \223\ Public
Interest Organizations also state that using the term ``communities
with significant representations of communities of Color,'' rather than
``minority populations'' reflects the Commission's practice of using
the Fifty Percent Analysis and Meaningfully Greater Analysis, as
recommended in Promising Practices.
---------------------------------------------------------------------------
\223\ Public Interest Organizations Comments at 81.
---------------------------------------------------------------------------
130. Public Interest Organizations also request that the Commission
include a definition of ``overburdened'' in Sec. 50.1.\224\ They point
to the EPA 2020 EJ Glossary for the Commission to model in defining
``overburdened communities.'' \225\
---------------------------------------------------------------------------
\224\ Public Interest Organizations Comments at 83.
\225\ The EPA 2020 EJ Glossary defines ``overburdened
communities'' as ``minority, low-income, tribal, or Indigenous
populations or geographic locations in the United States that
potentially experience disproportionate environmental harms and
risks. This disproportionality can be as a result of greater
vulnerability to environmental hazards, lack of opportunity for
public participation, or other factors. Increased vulnerability may
be attributable to an accumulation of negative or lack of positive
environmental, health, economic, or social conditions within these
populations or places. The term describes where multiple factors,
including both environmental and socio-economic stressors, may act
cumulatively to affect health and the environment and contribute to
persistent environmental health disparities.'' EPA, EJ 2020 Glossary
(Feb. 2024), <a href="https://www.epa.gov/system/files/documents/2024-02/ej-2020-glossary.pdf">https://www.epa.gov/system/files/documents/2024-02/ej-2020-glossary.pdf</a>.
---------------------------------------------------------------------------
131. SEIA recommends revising the Commission's proposed definition
of ``environmental justice community'' to ``a geographic location with
significant representation of persons of color, low-income persons,
indigenous persons, or members of Tribal nations, where such persons
experience, or are at risk of experiencing, higher or more adverse
human health or environmental outcomes.'' \226\ SEIA states that this
definition would be quantifiable based on census data, and can allow
all stakeholders to work from a common understanding of what would make
an environmental justice community.
---------------------------------------------------------------------------
\226\ SEIA Comments at 12.
---------------------------------------------------------------------------
iii. Commission Determination
132. The Commission adopts the definition of ``environmental
justice community'' as proposed in the NOPR with one modification,
removing ``disadvantaged'' in the definition, as further discussed
herein.
133. As an initial matter, we disagree that defining
``environmental justice community'' exceeds the Commission's legal
authority for the same reasons expressed above.\227\ Further, we
decline to defer establishing a definition of ``environmental justice
community'' until such time as a universal definition can be agreed
upon by multiple agencies because the Commission cannot wait to carry
out its statutory responsibilities under NEPA and section 216 of the
FPA.
---------------------------------------------------------------------------
\227\ Supra PP 110-111.
---------------------------------------------------------------------------
134. We are informed by Executive Order 14008's focus on
communities that have been historically and disproportionately
marginalized and overburdened by pollution.\228\ The term
``environmental justice community'' includes, but may not be limited
to, minority populations, low-income populations, or indigenous
peoples.\229\ This definition is substantially the same definition the
Commission has used in its environmental reviews and orders pertaining
to energy infrastructure development applications over the last several
years.\230\ The definition has allowed the Commission, applicants, and
stakeholders to have a general sense of the types of communities that
may fall under the term, while the identification methodology noted
above \231\ and in each of the Commission's NEPA documents and
Commission orders provides a common understanding of the steps
necessary to identify environmental justice
[[Page 46699]]
communities. To the extent that the Commission, applicants, or
participants identify additional populations with environmental justice
concerns, the Commission will address impacts on these communities in
the context of specific proceedings.
---------------------------------------------------------------------------
\228\ E.O. 14008, Tackling the Climate Crises at Home and
Abroad, 86 FR 7619 (Jan. 27, 2021); see also E.O. 14096,
Revitalizing Our Nation's Commitment to Environmental Justice for
All, 88 FR 25251 (Apr. 21, 2023).
\229\ See E.O. 12898, Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR
7629 (Feb. 11, 1994); see also EPA, EJ 2020 Glossary (Feb. 2024),
<a href="https://www.epa.gov/system/files/documents/2024-02/ej-2020-glossary.pdf">https://www.epa.gov/system/files/documents/2024-02/ej-2020-glossary.pdf</a>.
\230\ See, e.g., Columbia Gas Transmission, LLC, 186 FERC ]
61,048, at P 20 n.36 (2024); Andrew Peklo III, 186 FERC P 61,208, at
P 23 n.41 (2024).
\231\ Supra note 166.
---------------------------------------------------------------------------
135. We define ``environmental justice community'' with the intent
of neither too rigidly limiting nor strictly defining a set list of
demographic populations or communities. We are intentionally allowing
flexibility in the definition of ``environmental justice community,''
as this acknowledges that there are many environmental or human health
qualifiers that may need to be analyzed separately by Commission staff
to determine anticipated impacts on potential environmental justice
communities. This flexibility is intended to strike a balance between
applying an identification methodology that can be used in all
proceedings and allowing the identification of other populations,
during scoping or in comments filed in the record of individual
proceedings, that may fall outside of the categories of minority
populations, low-income populations, or indigenous peoples. We do not
agree that this flexibility renders the definition practically
unworkable, as applicants seeking to develop energy infrastructure in
other contexts have been able to use the definition and identification
methodology to successfully develop and submit the information that the
Commission needs to process applications.\232\ Likewise, we do not
agree that the definition of ``environmental justice community'' is so
expansive that it cannot be readily understood and applied.
---------------------------------------------------------------------------
\232\ E.g., ANR Pipeline Co., 185 FERC ] 61,191 at P 96.
---------------------------------------------------------------------------
136. Commenters' assertion that transmission line infrastructure is
not a source of ``pollution'' as contemplated under the definition of
``environmental justice community'' is inapposite. Defining an
environmental justice community as one that has been overburdened by
pollution acknowledges the historical burdens of disproportionate rates
of pollution faced by environmental justice communities.\233\ We
believe that there are many ways in which transmission line
infrastructure may result in reasonably foreseeable adverse impacts on
environmental justice communities during construction, operation, and
maintenance of the project facilities.
---------------------------------------------------------------------------
\233\ See E.O. 14008, Tackling the Climate Crises at Home and
Abroad, 86 FR 7619 (Jan. 27, 2021).
---------------------------------------------------------------------------
137. We acknowledge commenters' concerns regarding use of the word
``disadvantaged'' in the definition of ``environmental justice
community.'' Given that the definition of environmental justice
communities adopted in this final rule includes language indicating its
applicability to communities that have been historically marginalized
and overburdened by pollution, we agree that it is not necessary to
include the word ``disadvantaged'' in the definition and have removed
it in this final rule. We also decline to adopt a separate definition
for the term ``overburdened'' or to add ``underserved'' to the
definition. As explained above, the proposed definition has allowed the
Commission, applicants, and stakeholders to have a general sense of the
types of communities that may fall under the phrase without the need
for further definition or including additional terms, while the
Commission's identification methodology provides a common understanding
of the steps necessary to identify environmental justice communities.
138. We decline to adopt the phrase ``communities with significant
representations of communities of Color'' because we conclude that the
definition we are adopting is sufficiently broad to identify
communities that have been historically marginalized and overburdened
by pollution without that addition. We will continue our practice of
defining ``environmental justice communities'' as including, but not
being limited to, minority populations, low-income populations, or
indigenous peoples.
b. Definition of National Interest Electric Transmission Corridor
i. NOPR Proposal
139. The Commission proposed in the NOPR to revise the definition
of ``national interest electric transmission corridor'' to include any
geographic area that is expected to experience energy transmission
capacity constraints or congestion, for consistency with the IIJA's
amendments to section 216(a).
ii. Comments
140. While EDF states that the proposed definition of ``national
interest electric transmission corridor'' is appropriate, Farm Bureaus
and Kentucky Commission state that the definition is too broad, as a
National Corridor could include any geographic area that has any amount
of congestion.\234\ Kentucky Commission requests that the Commission
modify the definition to include a threshold for congestion, while Farm
Bureaus request that the Commission reopen public comment on this
proposal after DOE has identified National Corridors.\235\ EDF notes
that the Commission and DOE should coordinate to ensure consistent
definitions.
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\234\ EDF Comments at 5; Farm Bureaus Comments at 2; Kentucky
Commission Comments at 3.
\235\ Kentucky Commission Comments at 3; Farm Bureaus Comments
at 2.
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iii. Commission Determination
141. We adopt the definition of ``national interest electric
transmission corridor'' proposed in the NOPR in this final rule. As
stated in the NOPR, the Commission proposed changes to the definition
of ``national interest electric transmission corridor'' strictly to
incorporate the revisions to the term in the IIJA's amendment to
section 216(a) of the FPA, and we continue to find it appropriate to
define this term based on the statute. Section 216(a) of the FPA
designates the Secretary of DOE as the sole authority to determine
whether a geographic area is experiencing, or expected to experience,
sufficient capacity constraints or congestion to warrant the
designation of a ``national interest electric transmission corridor,''
and the Commission will defer to DOE's interpretation of the statute
for those purposes. Additionally, as the proposed definition is derived
directly from the statute, it is unnecessary to wait to finalize this
regulation until DOE has identified a National Corridor.\236\
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\236\ In DOE's recent Guidance on section 216(a), DOE's
definition of a National Corridor closely matches the Commission's
proposed definition. DOE defined a National Corridor as ``. . . a
geographic area where, based on the Needs Study or other relevant
information, DOE has identified . . . present or expected
transmission capacity constraints or congestion that adversely
affects consumers, and which has been designated by the Secretary as
a [National Corridor].'' DOE Grid Deployment Office, Guidance on
Implementing Section 216(a) of the Federal Power Act, at 16 (Dec.
19, 2023).
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c. Definition of Stakeholder
i. NOPR Proposal
142. The Commission in the NOPR proposed to revise the definition
of ``stakeholder'' for clarity and to ensure that environmental justice
community members and other interested persons or organizations are
covered by the definition. As proposed, Sec. 50.1 defines
``stakeholder'' as any Federal, State, interstate, or local agency; any
Tribal government; any affected landowner; any environmental justice
community member; or any other interested person or organization.
ii. Comments
143. Impacted Landowners state that grouping severely impacted
landowners
[[Page 46700]]
with individuals who have generalized environmental concerns, or
project advocates who will profit from the project, and considering
them all equal ``stakeholders'' is unfair and unjust. Impacted
Landowners suggest that a stakeholder should be defined as a person or
entity with an interest in a project but who will experience no
impacts.\237\ Niskanen states that the definition of stakeholder is too
broad and suggests the definition be modified to include any Federal,
State, interstate, Tribal, or local agency or Tribal government
involved with approving or whose interests may be affected by the
proposed transmission facilities, and any environmental justice
community that could be potentially impacted in some way by a proposed
project.\238\
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\237\ Impacted Landowners Comments at 22.
\238\ Niskanen Comments at 9-11.
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144. Public Interest Organizations recommend that the Commission
amend the definition of stakeholder to replace ``Tribal government''
with ``Indian Tribe,'' and that the Commission should add ``Indigenous
peoples'' to the definition of stakeholders.\239\ Public Interest
Organizations explain that the distinction between Indian Tribes and
any Tribal community member will preserve the government-to-government
relationship between the Federal government and Indian Tribes. Niskanen
also notes that the proposed definition for stakeholder as it relates
to ``any Tribal government'' is inconsistent with the definition given
in Sec. 50.1 of ``Indian Tribe.''
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\239\ Public Interest Organizations Comments at 53-54.
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iii. Commission Determination
145. We adopt the definition of ``stakeholder'' proposed in the
NOPR, with one modification. We agree with Public Interest
Organizations and Niskanen that the definition of ``stakeholder''
should include the term ``Indian Tribe'' instead of ``Tribal
government,'' for consistent use of defined terms in the Commission's
regulations. Therefore, this final rule adopts usage of ``Indian
Tribe'' in the definition of ``stakeholder.'' Similarly, the use of
``Tribal government'' in applicant notification requirements in Sec.
50.4(c)(1) is replaced with ``Indian Tribe.''
146. We also decline to limit the definition of stakeholders to
entities that may be interested but would experience no impacts from a
project, or to only agencies or governments that would be affected by a
project. The extent of project-related effects is evaluated and refined
throughout the review process and may not be well understood early in
the review process when engagement with stakeholders should begin.
Further, impacts from a project can vary from direct environmental
effects to indirect effects on users of public spaces to non-
environmental effects for individuals who will experience less
congestion, increased reliability of their electric grid, or rate
changes. Further, Niskanen's suggested definition would remove from
consideration landowners or other individuals who do not meet the
definition of affected landowner and are not members of an
environmental justice community, but who may be affected by a project.
As such, we find it appropriate to allow any interested party to be
considered a stakeholder.
147. With respect to Public Interest Organizations' request to add
``Indigenous peoples'' to the definition of ``stakeholder,'' we note
that Indigenous peoples are considered stakeholders under the
definition proposed and adopted in this final rule.
d. Definition of Affected Landowner
i. NOPR Proposal
148. In the NOPR, the Commission did not propose any revisions to
the existing definition of ``affected landowners'' in Sec. 50.1, which
defines ``affected landowners'' as owners of property interests, as
noted in the most recent county/city tax records as receiving the tax
notice, whose property: (1) is directly affected (i.e., crossed or
used) by the proposed activity including all facility sites, rights-of-
way, access roads, staging areas, and temporary workspace; or (2) abuts
either side of an existing right-of-way or facility site owned in fee
by any utility company, or abuts the edge of a proposed facility site
or right-of-way which runs along a property line in the area in which
the facilities would be constructed, or contains a residence within 50
feet of a proposed construction work area. Nevertheless, the NOPR
sought comment on whether the Commission should revise the definition
to include landowners located within a certain geographic distance from
the proposed project facilities to address effects on visual (or other)
resources, and, if so, what geographic distance should be used and why.
ii. Comments
149. ClearPath opposes any revisions to the existing definition of
``affected landowners,'' arguing that the Commission has not provided
evidence that the definition is deficient or that Congress directed the
Commission to revise the definition.\240\ ClearPath also states that
the NOPR fails to address whether expanding the definition of
``affected landowners'' would qualify the additional affected
landowners for compensation under eminent domain, which may make
projects economically unviable.\241\
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\240\ ClearPath Comments at 5.
\241\ Id.
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150. Several commenters note that property tax bills do not list
more than one person even if there are multiple owners of property, and
do not list tenants with possessory interests. These commenters request
that the Commission revise the definition of ``affected landowners'' to
include any person with a legal right or interest in the property
(e.g., a landowner, a contract purchaser of record, a person possessing
the property under a lease, a record lienholder, a record encumbrancer
of the property, and conservation easement holders).\242\ EDF and
Public Interest Organizations ask that the Commission clarify the
definition of ``affected landowners'' as it relates to Tribal lands,
particularly whether individual Tribal members residing on trust land
satisfy the definition, and request that Tribes be included in the
definition due to trust responsibilities.\243\
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\242\ EDF Comments at 5; Farm Bureaus Comments at 2-3; Land
Trust Alliance Comments at 2-3.
\243\ EDF Comments at 5; Public Interest Organizations Comments
at 26-27.
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151. EDF, Niskanen, Public Interest Organizations, and SEIA state
that the Commission should use DOE's definition of ``affected
landowners'' from its then-current regulations implementing section
216(h) of the FPA (i.e., landowners located within either 0.25 miles of
a proposed study corridor or route of a qualifying project or at a
minimum distance specified by State law, as well as those with a
residence within 3,000 feet of a proposed construction work area for a
qualifying project),\244\ because it is broader than the Commission's
definition and will provide for regulatory consistency between the
Commission and DOE.\245\ Public Interest Organizations argue that
[[Page 46701]]
limiting affected landowners to those within 50 feet of proposed
facilities fails to provide surrounding residents and communities the
opportunity to meaningfully participate in the permitting process, and
may cause landowners beyond this distance to feel marginalized, which
may add unnecessarily high regulatory and litigation risks.\246\
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\244\ 10 CFR 900.3 (2023). On May 1, 2024, DOE issued a final
rule revising its regulations implementing section 216(h) of the FPA
that, among other things, revises this definition and removes the
distance criteria. See DOE, Coordination of Federal Authorizations
for Electric Transmission Facilities, 89 FR 35312 (May 1, 2024).
Regarding the revised definition to be codified at 10 CFR 900.2, DOE
provides that a ``potentially affected landowner'' is one whose real
property interest is potentially affected directly or indirectly by
a proposed project. 89 FR 35340. DOE's final rule is effective on
May 31, 2024.
\245\ EDF Comments at 6; Niskanen Comments at 6-9; Public
Interest Organizations Comments at 25-26.
\246\ Public Interest Organizations Comments at 25-26.
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152. Impacted Landowners request that the Commission use the term
``impacted landowners'' instead of ``affected landowners,'' noting that
it is the degree of impact, not an arbitrary distance, that creates an
impacted landowner.\247\ Niskanen indicates that the current definition
does not adequately consider visual impacts or light pollution and
subsequent devaluation of property.\248\ EDF and Land Trust Alliance
suggest that the Commission use the results of a visual impact
assessment to identify affected landowners, and define ``affected
landowners'' as any landowner whose viewshed or ecosystem services may
be affected.\249\ Conversely, ClearPath argues that broadly expanding
the affected landowner definition to anyone whose viewshed is affected
could include properties up to 17 miles away and that the resource
report addressing visual impacts in an application requires evaluating
visual effects without the need to increase the affected landowner
definition.\250\
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\247\ Impacted Landowners Comments at 21.
\248\ Niskanen Comments at 6-9.
\249\ EDF Comments at 6; Land Trust Alliance Comments at 3.
\250\ ClearPath Comments at 5.
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iii. Commission Determination
153. We continue to find the definition of affected landowner in
our existing regulations appropriate and adopt no changes.
154. In response to ClearPath's concern that changing the
definition might mean additional landowners would be entitled to
compensation, we note that section 216(f) of the FPA provides that any
right-of-way acquired for construction or modification of transmission
facilities through the use of eminent domain is considered a taking of
private project for which just compensation is due. Whether a landowner
is entitled to just compensation under section 216(f) is in no way
connected to how the Commission's regulations define an affected
landowner.
155. As part of the Commission's review process, we seek to ensure
that landowners are given an opportunity to submit comments and
participate in the Commission proceeding. Therefore, the definition of
``affected landowners'' is meant to encompass owners of property that:
are proposed to be crossed by the project, are most likely to be
affected by minor route adjustments or variations that may occur to
avoid or minimize impacts to sensitive resources based on environmental
survey results, or may be impacted by construction activities conducted
in close proximity. The definition of ``stakeholder'' is then intended
to capture other landowners and parties who may have an interest in a
project or may be otherwise affected by a project and can inform the
Commission's review of an application.
156. We acknowledge the numerous requests for a broader and more
inclusive definition of an affected landowner (e.g., to include
lessees, multiple property owners, conservation easement holders) but
decline to adopt such a definition. The definition of ``affected
landowners'' sets forth the scope of other regulatory obligations,
including specific notification requirements, and applicants must have
a practicable means of determining which entities fall within the scope
of the definition. We find that there are not sufficient means for an
applicant to readily identify a broader set of entities, as proposed by
commenters, particularly for lengthy proposed transmission lines. The
existing definition of ``affected landowners'' is practicable and
likely to identify most entities with interests in the property. While
a Tribe or member of a Tribe would not be an affected landowner if they
occupy lands held in trust by the United States, a Tribe or member of a
Tribe may qualify as an affected landowner if they occupy land that is
not held in trust by the United States and otherwise meet the
definition.\251\
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\251\ We note that with regard to the Commission's trust
responsibilities, Tribes are afforded additional outreach and
consultations consistent with the Commission's consultation
practices under its Tribal Consultation Policy, as well as the
Commission's trust responsibilities and government-to-government
relationships with Tribes. Pol'y Statement on Consultation with
Indian Tribes in Comm'n Procs., Order No. 635, 68 FR 46452 (Sept. 5,
2033), 104 FERC ] 61,108 (2003), revised, Order No. 863, 84 FR 56940
(Oct. 24, 2019) 169 FERC ] 61,036 (2019). The policy statement is
codified at 18 CFR 2.1c (2023). These activities do not depend on
whether Tribal members are ``affected landowners.''
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157. While there are numerous requests for larger geographic bounds
to be used in the definition, we decline to modify the definition in
this manner. Commenters suggest such a modification is necessary to
ensure a broader group of stakeholders who may be impacted by a
proposed project are aware of and have an opportunity to share their
views on the proposal. We note, however, that the applicant must also
notify all landowners with a residence within a quarter mile of the
edge of the construction right-of-way under the notification
requirements in Sec. 50.4(c)(1). Moreover, stakeholders do not need to
be an affected landowner or live in a residence within a quarter mile
of the proposed site to participate in the Commission's proceedings.
Under the definition of ``stakeholder'' in Sec. 50.1, any interested
entity or person may file comments as a stakeholder and participate in
the Commission's pre-filing and application processes. We believe that
the existing definition of ``affected landowners'' and existing quarter
mile notification requirement provides individuals with appropriate
notification of a proposed project to allow an opportunity to
participate in Commission proceedings.
158. Although some commenters argue that the definition of affected
landowners should include landowners who may be impacted by visual or
other project effects, the geographic extent of impacts will vary by
region and project, and it is therefore difficult to identify a bright-
line definition that could be used by an applicant to identify
landowners who may experience visual impacts shortly after the
commencement of the pre-filing process (when initial notifications to
affected landowners must occur). Proposed transmission projects will be
subject to NEPA, and the environmental effects of a project (including
visual impacts) will be analyzed and addressed through the NEPA
process. The NEPA and FPA processes include opportunities for
landowners and other stakeholders to participate in the review process
and comment on anticipated effects of a project, including visual
impacts.
2. Section 50.3--Filing and Formatting Requirements
159. Section 50.3 establishes the filing and formatting
requirements for submissions in the Commission's pre-filing and
application processes. In the NOPR, the Commission proposed to revise
Sec. 50.3(b) to eliminate the requirement that applications,
amendments, and all exhibits and other submissions must be submitted in
an original and seven conformed copies. Instead, to reduce waste, the
Commission proposed that applicants only be required to make these
submissions in electronic format. We received no comments regarding
this proposed change. This final rule adopts Sec. 50.3 as proposed.
[[Page 46702]]
3. Section 50.4--Stakeholder Participation
a. Project Participation Plan
i. NOPR Proposal
160. The Commission explained in the NOPR that Sec. 50.4(a)
requires each applicant to develop and file a Project Participation
Plan for use during the pre-filing and application processes to ensure
that stakeholders have access to timely and accurate information about
the proposed project and permitting process. The Project Participation
Plan must, among other things, identify specific tools and actions to
facilitate stakeholder communications and public information, including
a regularly updated website. In the NOPR, the Commission proposed to
revise Sec. 50.4(a)(1) to incorporate minor clarifying language and
specify that an applicant's website must include an interactive mapping
component to provide users with the ability to locate the proposed
facilities in relation to specific properties and other features.
Additionally, as discussed above, the Commission proposed to require an
applicant to develop and file an Environmental Justice Public
Engagement Plan as part of its Project Participation Plan under Sec.
50.4(a) early in the pre-filing process.\252\
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\252\ See discussion supra Part II.C.
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ii. Comments
161. Arizona Game and Fish recommends that Sec. 50.4's Project
Participation Plan include a requirement for applicants to consult or
coordinate with specific entities, such as State wildlife or natural
resource agencies.\253\ Maryland Commission urges that county and
municipal governments affected by a proposed transmission line be given
the opportunity to participate fully in the Commission's proceeding and
provide recommendations.\254\
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\253\ Arizona Game and Fish Comments at 2-3.
\254\ Maryland Commission Comments at 8.
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162. The Yurok Tribe requests that the Commission require
applicants to develop a Tribal Participation Engagement Plan in the
pre-filing process, similar to the Environmental Justice Public
Engagement Plan.\255\
---------------------------------------------------------------------------
\255\ Yurok Tribe Comments at 27-28.
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iii. Commission Determination
163. We adopt the NOPR proposal to revise the Project Participation
Plan requirements to incorporate minor clarifications, specify that an
applicant's website must include an interactive mapping component, and
include an Environmental Justice Public Engagement Plan and a Tribal
Engagement Plan.
164. Regarding requests to include coordination and consultation
requirements for State, county and local agencies or governments in the
Project Participation Plan, we do not believe such changes are needed.
As further discussed below, the Sec. 50.4(c) project notification
requirements adopted in this final rule extend to, among others,
permitting entities and other local, State, and Federal governments and
agencies involved in the project, which include the entities that
Arizona Game and Fish and Maryland Commission suggest. The project
notification requirements inform recipients how to participate in the
Commission's proceeding, including opportunities to provide
recommendations to the Commission and how to contact the applicant.
Local agencies and governments are typically included on project
stakeholder mailing lists, as they are stakeholders as defined by Sec.
50.1, who receive Commission notices regarding opportunities to submit
comments, attend meetings and site visits, and participate in the pre-
filing and application phases; and we encourage their participation.
The Commission will consider comments submitted by any State, county,
or local agencies during the processing of an application.
165. We adopt the Yurok Tribe's suggestion to require applicants to
address outreach targeted to Indian Tribes, similar to the requirement
to include an Environmental Justice Public Engagement Plan in an
applicant's Project Participation Plan. Requiring applicants to develop
a plan to identify and engage Tribal communities will facilitate the
development of the record, including the Tribal resources resource
report as discussed below, which the Commission needs to assess impacts
on Indian Tribes. Therefore, new Sec. 50.4(a)(5) requires an applicant
to include a Tribal Engagement Plan as a component of the Project
Participation Plan that addresses all outreach that is targeted to
identified Tribes, including a summary of comments from potentially
affected Tribes in previous outreach, a description of planned Tribal
outreach activities, and a description of how the applicant will engage
Tribes about potential mitigation measures.\256\
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\256\ We note that this new provision of the Project
Participation 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. Order No. 635, 104 FERC ]
61,108, revised, Order No. 863, 169 FERC ] 61,036. The policy
statement is codified at 18 CFR 2.1c (2023).
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b. Project Notification Requirements
i. NOPR Proposal
166. Section 50.4(c) sets forth the project notification
requirements for applicants. Section 50.4(c)(1) requires applicants to
distribute, by mail and newspaper publication, project notifications
within specified time periods, first, following commencement of the
pre-filing process and, second, after an application has been filed.
Section 50.4(c)(1) directs the applicant to notify, among others, all
affected landowners and landowners with a residence within a quarter
mile from the edge of the construction right-of-way for the proposed
project. In the NOPR, the Commission proposed to revise Sec.
50.4(c)(1) for clarity and to ensure that applicants provide
notification of the proposed project to all interested individuals and
organizations. The NOPR also sought comment on whether a quarter-mile
limit is sufficient and, if not, what geographic distance should be
used and why.
167. Section 50.4(c)(2)(i) describes the required contents of the
Pre-filing Notification. For clarity, in the NOPR, the Commission
proposed organizational changes in the regulations to distinguish the
requirements that pertain to any Pre-filing Notification that is sent
by mail or published in a newspaper (proposed Sec. 50.4(c)(2)(i)) from
the requirements that pertain to any Pre-filing Notification that is
sent by mail specifically to an affected landowner (proposed Sec.
50.4(c)(2)(ii)).
168. The Commission in the NOPR proposed to add a requirement that
any Pre-filing Notification mailed to an affected landowner also
include a copy of a Commission document titled ``Landowner Bill of
Rights in Federal Energy Regulatory Commission Electric Transmission
Proceedings'' (Landowner Bill of Rights). The Commission also proposed
in the NOPR to require that any Pre-filing Notification sent by mail or
published in the newspaper include information clarifying that the
Commission's pre-filing and application processes are separate from any
simultaneous State siting proceeding and explaining how to participate
in any such State siting proceeding.
169. In the NOPR, the Commission explained that it expects
applicants to make a good faith effort to ensure that individuals and
organizations entitled to receive project notifications can comprehend
the contents of such notifications. Accordingly, the NOPR
[[Page 46703]]
directed applicants to consider the need for project notifications in
languages other than English as part of the Environmental Justice
Public Engagement Plan, as described above. The NOPR also sought
comment on what methods of notification beyond mail and newspaper
publication might be utilized in order to effectively reach the largest
possible number of stakeholders.
ii. Comments
170. Public Interest Organizations and Niskanen suggest that the
Commission require the two applicant project notifications in Sec.
50.4(c) to include information on how to become an intervenor in a
Commission proceeding and the consequences of failing to intervene,
namely, lacking standing to petition for rehearing and pursue judicial
review of an order issued by the Commission.\257\ Public Interest
Organizations also request that Sec. 50.4(c)(2)(iii) of the
Commission's regulations be modified to require inclusion of the
Landowner Bill of Rights in the Application Notification required under
Sec. 50.4(c)(1)(i)(B),\258\ and further urge the Commission to
consider changes to Sec. 50.4(c)(2)(i) to require that the pre-filing
notice clearly state how affected landowners and other stakeholders can
participate in the pre-filing process in order to make the communities
feel heard, support the applicant in meeting landowner needs, and
reduce legal risks.\259\
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\257\ Public Interest Organizations Comments at 18; Niskanen
Comments at 17-18.
\258\ Public Interest Organizations Comments at 32 and 38.
\259\ Id. at 13-14.
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171. The existing regulations in Sec. 50.4(c)(1)(ii) require
applicants to publish a notification of the pre-filing request and
application filings in newspapers of general circulation. Some
commenters suggest that the Commission modify this requirement to
include other methods of notice, such as social media, popular internet
sites, local digital newspapers, online-only publications that serve a
local interest, neighborhood listservs and community web pages, utility
web pages, and including a QR code on notices that directs the reader
to an appropriate web page.\260\ CLF and EDF encourage requiring the
notices be posted in a range of locations in the community (e.g.,
churches, mosques, temples, community centers, public parks, post
offices, and schools) where transmission projects are proposed.\261\
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\260\ CLF Comments at 7; ELCON Comments at 4; Michigan PSC
Comments at 10; SEIA Comments at 11; Los Angeles DWP Comments at 5.
\261\ CLF comments at 7; EDF Comments at 12.
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172. Public Interest Organizations recommend that the Commission's
newspaper notification requirements in Sec. 50.4(c)(2)(i)(B) be
modified to include the website address for the Commission's pamphlet
Electric Transmission Facilities Permit Process.\262\ Niskanen states
that the Commission should create accessible online and paper versions
of the pamphlet, written in layperson's terms and should include: the
scope of the Commission's transmission siting authority; what findings
the Commission must make to approve a project; an explanation as to how
to obtain ongoing, accurate project information from the Commission;
clear contact information for the Office of Public Participation;
basic, step-by-step descriptions of the Commission's pre-filing and
application processes; and a description of how to participate in these
processes, including clear, bolded instructions on when, why, and how
to become an intervenor in the relevant proceeding.\263\
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\262\ Public Interest Organizations Comments at 33.
\263\ Niskanen Comments at 14.
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173. Impacted Landowners and SEIA request that Sec. 50.4(c)(2)
require the notices be written in plain language.\264\ Several
commenters suggest that notices be provided in multiple languages.\265\
Impacted Landowners and ACEG request that the notices contain a summary
of rights a landowner has in reference to the Federal eminent domain
laws that would be applicable, instead of just the State laws proposed
for reference in the NOPR.\266\
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\264\ Impacted Landowners Comments at 23; SEIA Comments at 11.
\265\ SEIA Comments at 11; NESCOE Comments at 28-29; Impacted
Landowners Comments at 23; Public Interest Organizations Comments at
30.
\266\ Impacted Landowners Comments at 23; ACEG Comments at 17-
18.
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174. Public Interest Organizations and the Yurok Tribe state that
the Commission should develop standardized language that all applicants
must include in each notice under Sec. 50.4(c) that clearly explains
the Commission's processes, all necessary deadlines, and the purpose
and consequences of intervening or seeking rehearing.\267\ Public
Interest Organizations and the Yurok Tribe also suggest that these
standard notices explain the roles of the Commission's Office of Public
Participation, Tribal Liaison, and the Environmental Justice
Liaison,\268\ and how to contact each of them.\269\ Finally, Public
Interest Organizations ask that the Commission revise its standard
notice to clarify the different ways interested persons may participate
in the pre-filing process, in which restrictions on off-the-record (ex
parte) communications do not apply.
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\267\ Public Interest Organizations Comments at 17-18; Yurok
Tribe Comments at 25.
\268\ Public Interest Organizations recommend that the
Commission establish Environmental Justice Liaisons as non-
decisional staff within the Office of Public Participation. Public
Interest Organizations Comments at 89-90. While the Commission has a
Senior Counsel for Environmental Justice and Equity and an
Environmental Justice and Equity Group within the Office of General
Counsel, it does not currently have an Environmental Justice
Liaison.
\269\ Public Interest Organizations Comments at 30; Yurok Tribe
Comments at 26.
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175. Public Interest Organizations and the Yurok Tribe suggest that
the Commission change its requirement under Sec. 50.4(c)(1)(i)(A) for
mailing notification of the pre-filing process. Specifically, they ask
that the Pre-filing Notifications be mailed within 3 business days
after the Director of the Commission's Office of Energy Projects
notifies the applicant of the commencement of the pre-filing process,
instead of within 14 days as currently required.\270\ The Yurok Tribe
states that there is no justification for the existing 14-day period
and that Tribes and stakeholders should be given as much time as
possible to prepare and participate through an earlier notification.
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\270\ Public Interest Organizations Comments at 28-29; Yurok
Tribe Comments at 26.
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176. CLF and NESCOE assert that not all residents own the property
in which they reside and request that project notifications under Sec.
50.4(c)(1) be sent to residents (e.g., renters/lessees) in addition to
the landowners.\271\
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\271\ CLF Comments at 6-7; NESCOE Comments at 28.
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177. The Chickahominy Indian Tribe, Nansemond Indian Nation,
Rappahannock Indian Tribe, and Upper Mattaponi Indian Tribe state that
Tribes should be included in the Stakeholder Participation section of
the proposed regulations regardless of whether the Tribes are already
involved in a project and should be addressed separately from, or as a
required element of, the Environmental Justice Public Engagement
Plan.\272\ Specifically, the Tribes, as well as the Yurok Tribe, state
that proposed Sec. 50.4(c)(1) appears to limit the requirement to
notify Tribes to those who are already involved in a project, and they
suggest that the Commission should amend its regulations to require
that project
[[Page 46704]]
notifications are sent to all Tribes with ancestral or current-day
lands that may experience impacts from the project.\273\
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\272\ Chickahominy Indian Tribe, Nansemond Indian Nation,
Rappahannock Indian Tribe, and Upper Mattaponi Indian Tribe Comments
at 2.
\273\ Chickahominy Indian Tribe, Nansemond Indian Nation,
Rappahannock Indian Tribe, and Upper Mattaponi Indian Tribe Comments
at 3; Yurok Tribe Comments at 26.
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178. Conversely, ClearPath suggests that Sec. 50.4(c)(1) should
remove the word, ``all,'' which immediately precedes the entities that
an applicant is required to notify, asserting that requiring applicants
to notify ``all'' listed entities would put the applicant at risk for
unnecessary litigation and may incur unnecessary delay.\274\ Similarly,
Niskanen suggests removing the word ``any'' from the Sec. 50.4(c)(1)
requirement that applicants notify ``any known individuals or
organizations that have expressed an interest in the State siting
proceeding; and any other individuals or organizations that have
expressed to the applicant, or its representatives, an interest in the
proposed project (emphasis added).'' \275\ Niskanen argues that
requiring applicants to notify ``any'' individual or organization that
has merely expressed an interest in a proposed project may invite
protracted legal challenges to any given project.\276\ Niskanen also
asserts that the Commission should be responsible for ensuring that all
stakeholders are properly accounted for and sent notice through the
applicant, and should create an accountability mechanism for applicants
to follow up on undeliverable notifications.\277\
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\274\ ClearPath Comments at 6.
\275\ Niskanen Comments at 12.
\276\ Id.
\277\ Id. at 13.
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179. ACP and ACEG question how the Commission will consider
notification requirements in the instances of route changes,
particularly ones that occur relatively late in the Commission's
proceeding.\278\ ACP states that applicants would have complied with
the Applicant Code of Conduct and conducted early outreach, and,
therefore, should not be required to restart the notice and comment
periods in instances of reroutes. ACEG suggests notifying landowners
along alternative routes earlier in the process or allowing for an
expedited notice and comment process if newly impacted parties are
identified.
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\278\ ACP Comments at 14; ACEG Comments at 15.
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iii. Commission Determination
180. To support the Commission's good faith efforts determinations
under the IIJA's amendment to section 216(e)(1) and make needed
clarifications to the Commission's existing project notification
requirements under Sec. 50.4(c), we adopt the NOPR proposal, with
modifications. Specifically, we revise Sec. 50.4(c) to address
confusion over the use of the terms ``notice'' and ``notification.'' We
also revise Sec. 50.4(c)(1)(ii) to expand newspaper publication
requirements to reach a broader audience and revise Sec.
50.4(c)(2)(i)(B) to require applicants to include the website address
for the Commission's pamphlet Electric Transmission Facilities Permit
Process in newspaper publications to improve accessibility of
information regarding the Commission's processes. We revise Sec.
50.4(c)(1)(i)(C) to include a new requirement for applicants to mail
project notifications in other languages under certain circumstances.
Finally, to reflect that we are not adopting the NOPR's proposal to
allow simultaneous processing, we adjust the required contents of the
participation notification concerning information about State siting
proceeding(s) in Sec. 50.4(c)(2)(i)(H).
181. As an initial matter, we recognize that Sec. 50.4(c)'s
interchangeable and intermittent use of ``notice'' and ``notification''
may have created confusion for commenters, some of whom conflated Sec.
50.4(c)'s notification requirements for applicants with the
Commission's notice requirements as described in Sec. 50.9.
Accordingly, we make minor consistency edits throughout Sec. 50.4(c)
to consistently use the term ``notification'' to apply exclusively to
applicants' obligation to provide certain information, and the term
``notice'' to apply exclusively to Commission-issued notices.
Additionally, we clarify which provisions in Sec. 50.4(c) apply to
Pre-filing Notifications versus Application Notifications.
182. We decline commenters' requests to revise Sec. 50.4(c) to
require additional information in Applicant Notifications concerning
intervening in Commission proceedings. We find that the proposed
revisions to Sec. 50.4(c), as modified in this final rule, will
adequately inform those affected landowners and other stakeholders
interested in becoming parties to a Commission proceeding of the
Commission's processes and timing for filing motions to intervene.
Although there is no intervention period during the pre-filing process,
as no application is before the Commission, the regulations in Sec.
50.4(c)(2)(i)(G) already require an applicant's Pre-filing
Notifications to include information explaining the Commission's pre-
filing and application processes and when and how to intervene in
application proceedings. Following the commencement of the pre-filing
process, applicants will be required under Sec. 50.4(c)(2)(ii)(B)--as
adopted herein--to include a copy of the Landowner Bill of Rights,
which notifies recipients of their right to intervene in any open
Commission proceeding, within the Pre-filing Notification mailed to
affected landowners.
183. We decline Public Interest Organizations' request to require
that the Landowner Bill of Rights be provided in the Application
Notification required by Sec. 50.4(c)(1)(i)(B) to be distributed
within 3 business days after the Commission publishes notice of the
application under Sec. 50.9. As discussed above, under proposed Sec.
50.4(c)(2)(ii)(B), as adopted herein, the Landowner Bill of Rights must
be included in an applicant's mailed Pre-filing Notification. Proposed
Sec. 50.4(c)(3) also requires applicants to provide the Landowner Bill
of Rights in instances where affected landowners are identified after
the initial notifications are mailed. Therefore, we find that all
affected landowners will be provided a copy of the Landowner Bill of
Rights and, as such, it is not necessary to provide it again with the
Application Notification.
184. We agree with commenters' recommendations that the Commission
include additional requirements in Sec. 50.4(c) for the publication of
notifications in media beyond newspapers of general circulation. There
are accessibility limitations inherent in relying solely on any single
media platform, whether print publications or electronic, for
notification of Commission proceedings, and no single media platform is
reasonably assured of reaching a general audience across varying
geographical locations. Therefore, we revise Sec. 50.4(c)(1)(ii) to
expand the publication requirements for applicant notifications beyond
newspaper print publications. Specifically, we require that in addition
to newspaper print publications, applicant notifications be published
in other online or hard copy periodicals of general circulation serving
the affected area, as appropriate. These notifications must also be
submitted to any available county and municipal government online
bulletin boards and other similar community resources.
185. We also agree with Public Interest Organizations that the
applicant's Pre-filing Notifications should include the website address
for the Commission's Electric Transmission Facilities Permit Process
pamphlet. Thus, we revise Sec. 50.4(c)(2)(i)(B) to adopt this
requirement. However, we decline at this time to adopt Niskanen's
recommendations to include certain information in the pamphlet. The
[[Page 46705]]
pamphlet will be updated to reflect the requirements of this final rule
and will be posted to the Commission's public website when available.
186. We agree with Impacted Landowners and SEIA that applicant
notifications should be written to be readily understood by the public.
We also agree with commenters that notifications should be provided in
multiple languages. Therefore, we add a new provision in Sec.
50.4(c)(1)(i)(C) to require applicants to mail project notifications in
languages other than English under certain circumstances. Our approach
is intended to ensure that applicants provide meaningful notification
to people with limited English proficiency who are affected landowners
or landowners within a quarter mile of the right-of-way.
187. Under this new notification requirement in Sec.
50.4(c)(1)(i)(C), applicants may be required to include written
translations of the applicant's notifications to affected landowners
and landowners with residences located within a quarter mile from the
edge of the construction right-of-way for a proposed project. To
determine whether written translations are required, applicants must
identify the landowners' census block groups, ascertain whether any of
the census block groups include people with limited English
proficiency, and, for each census block group, identify the languages
spoken by people with limited English proficiency. For each language
identified in the census block group that accounts for five percent of
households or 1,000 persons,\279\ whichever is less, applicants must
include written translation of the applicant's notifications with the
applicant's mailed notifications to all landowners entitled to
notification within that census block group. The U.S. Census American
Community Survey's 5-year estimates include the information needed to
identify the number of limited English proficiency households, similar
to the information collected for identifying environmental justice
communities.
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\279\ The number of people with limited English proficiency
within the census block group level may be estimated using the
census tract's average household size.
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188. We retain the existing requirement that any Pre-filing
Notification mailed to an affected landowner include a brief summary of
the specific rights the landowner has in proceedings under the eminent
domain laws of the relevant State. We decline commenters' suggestion
that this notification should instead include a summary of Federal
eminent domain law. Section 216(e)(1) of the FPA allows permit holders
to bring an eminent domain proceeding in the appropriate court in the
Federal district or the State in which the property is located.\280\
Section 216(e)(3) provides that the practice and procedure in any
eminent domain proceeding in Federal district court must conform as
nearly as practicable to
[…truncated; see source link]Indexed from Federal Register on May 29, 2024.
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