[co-author: Juan Dawson]

On March 3, 2023, the House Energy and Commerce Committee Chair Cathy McMorris Rodgers (R-WA) and Energy, Climate Change, and Grid Security Subcommittee Chair Jeff Duncan (R-SC) sent a letter to Acting FERC Chairman Willie Phillips and Commissioners asking the Commission to respond to a series of questions related to FERC’s authority as it relates to two policy statements issued in February 2022 and a Notice of Proposed Rulemaking (“NOPR”) issued in December 2022. The two policy statements concern Greenhouse Gas (“GHG”) emissions of natural gas infrastructure projects (see February 18, 2022 Troutman Pepper Insights; February 23, 2022 edition of the WER). The NOPR would require applicants proposing to build electric transmission infrastructure to prepare Environmental Justice Public Engagement Plans.

The December 15, 2022 NOPR, entitled, Applications for Permits to Site Interstate Electric Transmission Facilities, was issued in response to the passage of the 2021 Infrastructure Investment and Jobs Act (“IIJA”) which amended the Commission’s authority to issue permits to applicants for the construction of electric transmission facilities under Section 216 of the Federal Power Act (“FPA”). Section 216 of the FPA permits FERC to issue permits for the construction of electric transmission facilities, but only after the Department of Energy has designated certain National Interest Electric Transmission Corridors (“NIETC”), which it has not yet done. NIETCs are geographic areas where electricity limitations, congestions, or capacity constraints are adversely affecting electricity consumers and communities. Under the NOPR, applicants who propose to build transmission infrastructure to prepare Environmental Justice Public Engagement Plans must: (i) describe any completed and planned outreach efforts to environmental justice communities during the pre-filing process and after an application has been submitted; (ii) summarize comments received during any such prior outreach; (iii) include a description of efforts to identify, engage, and accommodate non-English speaking groups; and (iv) describe the manner in which the applicant will reach out to environmental justice communities about potential mitigation of project impacts.

In their letter, Chair Rodgers and Chair Duncan requested answers from the Commissioners to the following questions:

1. What specific statutory authorities is the Commission relying upon in requiring an “Environmental Justice Public Engagement Plan” for project applicants under Section 216 of the FPA?
2. What specific statutory authorities is the Commission relying upon in requiring project developers to estimate emissions of electric transmission facilities under Section 216 of the FPA?
3. Does the Commission plan to issue specific guidelines for the “Environmental Justice Public Engagement Plan” required for project applicants? If so, when?
4. The NOPR proposes that project applicants must engage with environmental justice communities in the pre-filing process. Such communities include those that have been specifically “overburdened by pollution.” Has the Commission defined this term with specific parameters for project developers in order to facilitate a timely issuance of permits?
5. Is it your opinion that these requirements will help facilitate the timely issuance of permits under Section 216 of the FPA. Please explain.

Each Commissioner independently responded to the inquires. In his March 17, 2023 response, Acting Chairman Phillips stated that the Environmental Justice Public Engagement Plans would help the Commission fulfill its obligations under the National Environmental Policy Act (“NEPA”) and Section 216 of the FPA. Under NEPA, Acting Chairman Phillips noted that the finalized NOPR will “facilitate the development of the record that the Commission needs to assess the proposed project’s impacts on environmental justice communities. Further, under Section 216 of the FPA, the NOPR will “provide a roadmap for applicants’ engagement with environmental justice communities—and an opportunity for comment on the roadmap—which, in turn, can aide the Commission’s determination” in approving or denying applications.

Comments on the NOPR were due on April 17, 2023. The Commission has not yet issued a final rule.

A copy of the letter can be found here.