On the Pulse of America: The Federal Government’s Assertion of Jurisdiction Over Electric Transmission Planning and its Effect on the Public Interest

BY Alexander T. Dadok

Electricity is essential for our modern life. Currently, our country must make significant investments in its electricity infrastructure to continue efficient and safe delivery of electricity to customers. Planning how to invest, however, is fraught with controversy. That controversy is especially present in deciding whether to build additional transmission lines or make non-transmission investments such as more local “distributed” electric generation. The controversy in planning is amplified by a controversy over how to pay for whichever investment choice is made.

This Comment analyzes the technical transmission planning processes used to make decisions about this much-debated electric transmission system. Nationwide, no uniform process exists for making transmission construction decisions; planning processes are carried out in diverse variations by public utilities and transmission management entities, with varying levels of participation by regulating entities and stakeholder groups. The Federal Energy Regulatory Commission (“FERC”), the major federal regulator of electricity markets, has issued an order requiring certain processes for regional transmission planning.

In the face of challenges to broad aspects of FERC’s recent order, this Comment argues, first, that although FERC is asserting new authority over transmission planning, a reviewing court would likely hold that FERC has not exceeded its statutory powers in this regard. Second, this Comment argues that the changing nature of the industry and the FERC’s order itself may have exacerbated an existing problem with public interest representation in transmission planning. Public interest groups, such as consumer, renewable energy, and landowner groups, lack the time, expertise, and funding to adequately inform themselves and ensure that they are heard in the transmission planning process. Better including these groups in the transmission planning process offers a way toward a more equitable and efficient modernization strategy by reducing acrimony and making transmission planning and construction a more positive process. This Comment therefore proposes the creation of a regional planning “Public Staff Model” advocate to provide public interest representation in the regulation of this important part of our economy.

DOWNLOAD PDF | 91 N.C. L. Rev.997 (2013)