Congress and President Biden are looking to pass a $1 trillion bipartisan infrastructure bill (“Infrastructure Bill”). There are provisions in the bill that are problematic for landowners, environmentalists, and energy consumers. Specifically, the bill added a provision that will allow the Federal Energy Regulatory Commission (“FERC”) to override a state regulator’s decision to deny a siting application for electrical transmission projects and issue a permit allowing the project to go forward (Sec. 40105). It also adds a separate provision that requires the federal government to purchase service on new transmission projects that have no customers, and therefore no need for the project (Sec. 40106).

The call to “Build Back Better” has not been applied to the electric grid. New technological advancements can allow high-voltage direct current transmission lines to be built underground in a narrow, shallow trench along existing rights of way, such as rail or highway. However, all the new transmission envisioned by the infrastructure bill is early 20th century overhead wire on imposing steel towers. We urge Congress to limit any new transmission incentive programs to innovative buried projects on existing rights of way. These amazing new projects require no sacrifice and can be built quicker and cheaper, with virtually no community opposition. Buried transmission on existing rights of way is a big “win-win” for the environment, transmission builders, and host communities.

Since the passage of the Energy Policy Act and the granting of attractive financial incentives for electrical transmission projects in 2005, there has been a proliferation of new transmission projects. In the mid-Atlantic region alone, it has been estimated that consumers have paid a staggering $55.6 billion in transmission costs from 2005 to 2018 even though there has been a consistent decrease in peak demand. Notably, advances in energy storage, especially when coupled with locally generated renewable energy (e.g., solar or wind) have provided a solution to further shaving peak demand from the grid. Incentivizing transmission to import energy for a few hours per year of peak demand no longer makes sense.

Traditionally, the approval for siting application is the jurisdiction of state regulators. Across the country, there has been some modest success by citizen groups against certain proposed transmission projects that were not well-developed, did not serve the public interest, caused significant collateral damage to local communities, and served to benefit only the utility companies or other for-profit organizations - all at the expense of electrical consumers and targeted landowners.

The sponsors of these proposed projects failed to make their case in legal proceedings for the need in front of administrative judges and state regulators. Unfortunately, the sponsors are looking to revive some of these projects under the pretext that they are needed for clean renewable energy due to climate change and their proposed solution, in essence, is a federal override of state transmission decisions the transmission builders don’t like.

FERC Commissioner Mark Christie recently publicly voiced his opposition to such a provision in the bill, as well as the National Association of Regulatory Utility Commissioners. As reported by S&P Global Pratts, Commissioner Christie stated that “while utilities and grid operators may promote an infrastructure project they deem necessary, state regulators are responsible for doing their due diligence to ensure there is a need for such facilities.” He added that “these regulators sift through hundreds of pages of evidence and listen to hours of public testimony before coming to a decision.” Essentially, Commissioner Christie said that it’s a bad idea to usurp state authority to site and permit new transmission.

Merchant transmission, such as the previously denied Clean Line projects, are market-based projects that need customers to demonstrate need before being built. Lack of customers was Clean Line’s downfall. The new Transmission Facilitation Program requires the Secretary of Energy to purchase this unwanted transmission capacity in order to prop up market-based projects with no market. These truly will become “bridges to nowhere” that go unused while burdening landowners, all at taxpayer expense.

For all the above reasons, we urge Congress to remove Sections 40105 and 40106 from the Infrastructure Bill.

Thank you.