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May 21, 2024 Feature

Seven Strategies for Efficient Electric Transmission Siting

John Sample and Andy Flavin

With reliance on electric power and infrastructure at an all-time high, both states and the federal government have recognized an increasing need to expand and rebuild the US electric transmission grid. This need is driven in large part by (i) clean energy mandates and intermittency of renewable resources; (ii) aging infrastructure; (iii) broader electrification, including the adoption of electric vehicles (EVs); (iv) cybersecurity concerns; and (v) data center growth. Recognizing the need for growth is not enough, however, as lack of funding, congested siting approval processes, and lack of coordination have stalled efforts to bring more power, more efficiently, to the masses. Below, we examine the drivers for expansion and rehabilitation of the US electric transmission grid, consider ways to make the current processes more efficient and productive, and look toward proposed legislation intended to help ameliorate some of the impediments to the current system.

What’s Driving the Need for Electric Transmission Growth and Rehabilitation?

States in the US have been actively legislating clean energy policies in recent years, with 23 states, including the District of Columbia and Puerto Rico, having 100 percent clean energy goals. These efforts are part of a broader trend where states are implementing policies to accelerate the transition to clean energy sources. One such policy is the Renewable Portfolio Standard (RPS), which has been effective in encouraging renewable energy development. RPS policies mandate that a certain percentage of electricity sold by utilities must be sourced from eligible renewable energy sources. Similarly, Clean Energy Standard policies (CES) implemented by other states focus on clean, rather than strictly renewable, sources; though CESs—like the one enacted in California in 2018—often incorporate RPSs as part of their requirements.

The rise in intermittent renewable energy production, such as wind and solar power, has presented challenges in terms of grid integration and balancing supply and demand. To address this, there has been a push to upgrade and/or expand transmission infrastructure to support the increased penetration of renewable energy sources. The need for energy storage solutions to manage the variability of renewable energy generation further underscores the importance of upgrading transmission lines to facilitate the integration of storage technologies.

The aging existing electric transmission grid has necessitated significant investments to ensure the reliability and efficiency of the grid. With 70 percent of transmission lines in the US over 25 years old and nearing end-of-life status, there is increased risk of power outages, vulnerability to cyberattacks, and general complications arising from an outdated and overtaxed grid infrastructure. Indeed, a crucial component of a resilient transmission system is the ability to forecast and withstand simultaneous outages—a challenge made all the more difficult given the unreliability and unpredictable nature of an aging transmission system.

The adoption of EVs has also influenced recent changes to electric transmission lines. As EV adoption continues to grow, electric transmission owners and developers must upgrade the grid to support increased charging infrastructure and manage the impact of EVs on grid stability and power quality. Additionally, the potential benefits of EVs in providing grid support services and storing excess electricity have further underscored the importance of optimizing the grid for EV integration.

Cybersecurity concerns have also played a significant role in shaping recent changes to electric transmission lines in the US Recent cyberattacks on critical energy infrastructure have highlighted the vulnerabilities in the electric grid, prompting a reevaluation of security measures and the adoption of advanced technologies to protect against potential threats. There is a general consensus among experts that the cybersecurity of the nation’s power grid needs to be a top priority, with both the Federal Energy Regulatory Commission (FERC) and PJM Interconnection, LLC (PJM) repeatedly highlighting that need in recent years. While technological advances can do wonders to increase efficiency and reliability in every sector, they also grant bad actors the outsized ability to take advantage of an aging system that has yet to equip itself with modern defenses to these modern cybersecurity threats. Moreover, the complexity and interconnectivity of electric infrastructure have posed challenges in understanding and mitigating the risks of cascading failures that can lead to widespread outages. Efforts to enhance grid resilience and reliability have involved implementing new technologies and protocols to detect and respond to potential disruptions in the transmission system.

Lastly, the avalanche of data center growth in different regions of the US requires significant expansion and rehabilitation of the nation’s power grid. Recent studies suggest revenue in the data center market will reach upwards of $99.16 billion in 2024, with the data center footprint absorbing more than twice its current gigawatt total by 2030. One of the key drivers for data center growth is the increasing adoption of cloud computing, which is both more flexible and cost-effective than traditional methods.

Overall, recent changes in the United States reflect a broader shift toward a more modern, resilient, and sustainable electric transmission grid. These changes are driven by the need to accommodate renewable energy integration, enhance grid security, improve reliability, and optimize the grid for emerging technologies like EVs. By investing in transmission infrastructure and adopting innovative solutions, the US electric transmission grid can meet the evolving energy needs of the future.

Electric Transmission Siting Approvals

In order to expand and rehabilitate the electric grid, transmission developers must first obtain siting approval from the requisite regulators. Electric transmission siting is primarily regulated by the states. The siting of transmission lines involves a complex set of procedures and considerations to ensure that new projects meet regulatory requirements, address environmental concerns, and gain community acceptance. The approval process can be challenging and time-consuming, often involving multiple stakeholders and regulatory bodies at the federal, state, and local levels. Indeed, from the date an application is filed, it may take multiple years before the regulator issues a decision. This does not include the time it takes to prepare a thorough application once a project is conceived—up to one year; or the time it takes to litigate an appeal of a siting decision—potentially more than one year.

States have different names for the approval, but examples are certificate of public convenience and necessity, certificate of public good, and certificate of need and environmental compatibility. State approval processes are typically quasi-judicial in nature, requiring a detailed application and supporting materials.

As part of their siting approval process, most states allow for intervention by other interested parties, discovery, public hearings, evidentiary hearings, cross-examination of witnesses, and briefing and appeals to state appellate courts. These broad avenues for intervention often lead to significant community and resident engagement in the siting process. As such, applicants need to be cognizant of the needs and concerns of local stakeholders affected by a proposed project. Applicants must also be sure to set their expectations as to time frame and predictability appropriately as the siting and permitting process can run the risk of significantly slowing development.

The accelerated need to build and rebuild portions of the electric transmission grid is clashing with an already onerous siting process and leaving stakeholders less equipped to reliably set expectations and predict costs. Furthermore, transmission needs and potential solutions are often regional and interregional in nature, meaning that state coordination and collaboration are crucial to design effective solutions to expedite the siting approval process.

Because electric transmission siting can become so complex, costly, and time-consuming, we recommend the following strategies to facilitate a more efficient process.

Stakeholder Engagement and Collaboration

Establishing early and meaningful engagement with stakeholders, including local communities, environmental groups, regulatory agencies, and industry partners, can foster collaboration and build consensus. By involving stakeholders from the outset, concerns can be addressed proactively, and potential conflicts mitigated.

Transparent Decision-Making Processes

To enhance predictability and accountability, state regulators must implement transparent decision-making processes that provide clear guidelines, timelines, and criteria. Transparency in the siting process can help build trust among stakeholders and streamline project approvals.

Data-Driven Siting Decisions

Utilizing advanced data analytics, geographic information systems (GIS), and modeling tools can inform evidence-based siting decisions. By analyzing environmental, social, and technical data, decision-makers can identify optimal siting locations that minimize impacts and maximize benefits.

Streamlined Permitting Procedures

To meet the aggressive public policy mandates in a cost-efficient manner, state legislators and regulators must simplify and streamline permitting procedures to reduce bureaucratic hurdles and expedite the approval process. Clear and efficient permitting pathways can accelerate project timelines and reduce regulatory burdens. For example, rebuilding or upgrading an existing transmission line in an existing disturbed corridor should not be subject to the same siting process as a brand-new 50-mile electric transmission line constructed in an undeveloped corridor.

Risk Assessment and Mitigation

Conducting comprehensive risk assessments to identify potential environmental, social, and technical risks associated with transmission siting can inform mitigation strategies. By proactively addressing risks and developing mitigation plans, project developers can navigate challenges more effectively.

General Public Outreach and Education

Engaging in robust public outreach and education campaigns to raise awareness about the importance of transmission infrastructure and the siting process can help garner support and address misconceptions. Educating the public about the benefits of new transmission projects can foster acceptance and cooperation.

Interagency Coordination

Enhancing coordination among federal, state, and local agencies involved in the siting process can streamline approvals and reduce duplication of efforts. By fostering collaboration and communication among regulatory bodies, decision-making can be more efficient and cohesive.

By implementing these strategies and drawing on insights from research and practical experiences, stakeholders can streamline the transmission siting process, accelerate the deployment of critical infrastructure projects, and ensure a reliable and resilient electric grid for the future.

FERC’s Role in Electric Transmission Siting

As noted above, the mission to address America’s need for growing and modernized electric infrastructure is both a state and a federal concern. FERC, aware of the challenges presented by a congested grid and the siting process, is attempting to find ways to help streamline and add efficiencies to current processes.

FERC has authority to issue permits for the construction or modification of certain interstate transmission lines, i.e., FERC’s “backstop authority,” via the Energy Policy Act of 2005 (EPAct of 2005), which added section 216 to the Federal Power Act (FPA). This allows FERC to issue a federal permit to site projects located in National Interest Electric Transmission Corridors (NIETCs) once they are designated as such by the US Department of Energy (DOE). This authority was hampered, however, by the US Court of Appeals for the Fourth Circuit, which ruled that FERC could not reverse a timely state decision to deny the construction of a transmission project, and instead could only exercise its backstop authority if a state failed to act for more than one year on a request for construction.

In the wake of that decision and others, DOE refrained from designating any NIETC. In 2021, the Biden administration passed the Infrastructure Investment and Jobs Act of 2021 (the IIJA), which amended section 216 of the FPA, giving broader authority to the DOE to designate national corridors and clarified issues regarding FERC’s jurisdiction. With the IIJA setting a new baseline for FERC’s regulatory authority, in December 2022, FERC issued a notice of proposed rulemaking (NOPR) to amend and clarify its existing regulations for permits to site interstate electric transmission facilitates. The NOPR includes the following proposals, which could have a significant effect on the siting and permitting process:

  • Clarifying that FERC may use its backstop authority when a state has denied an application, rather than just when a state has failed to respond to an application for more than a year. Notably, the IIJA specifically grants FERC this authority and overrides the Fourth Circuit’s decision
  • Eliminating the one-year delay before applicants can prefile with FERC—instead allowing a developer to simultaneously file for permitting with the state and FERC
  • Supplementing the application process with a voluntary “Applicant Code of Conduct” that includes additional recordkeeping and information-sharing requirements for engagement between the applicant and affected landowners, as well as more general prohibitions against certain misconduct in such engagement

These proposals, among others, will allow FERC to more effectively streamline the siting process in certain circumstances, and ensure better communication and engagement between developers and the communities their projects will impact.

DOE issued its own notice of intent (NOI), to restate and clarify its role in designating NIETCs under FPA section 216(a), thus creating a full picture with respect to FERC’s authority to issue permits for transmission line projects in national corridors. The NOI also declares DOE’s intent to coordinate with FERC for National Environmental Policy Act review to avoid regulatory redundancy.

While the NOPR has not yet been made final, it is still very much so a priority, with Senator Sheldon Whitehouse (RI) encouraging FERC to “strengthen and swiftly finalize its backstop electric transmission siting authority rule (Docket No. RM22-7-000)” this past November 2023.

The Clean Electricity and Transmission Acceleration Act of 2023 (CETA)

Additionally, in December 2023, lawmakers introduced the Clean Electricity and Transmission Acceleration Act (CETA), seeking to accelerate the development of energy transmission lines. The bill, cosponsored by 74 House Democrats, would amend the Federal Power Act, seeking to support the build-out of transmission lines and improve grid reliability and resilience to withstand extreme weather events. Specifically, the bill contains provisions for (i) improvement of national electricity transmission capacity, (ii) improvement of governance and efficiency of the grid, (iii) modernization of electricity ratemaking, (iv) facilitation of clean energy deployment on public land, (v) modernization of offshore renewable energy permitting, and (vi) empowerment of communities. Importantly, CETA’s goals to improve the governance, efficiency, and empowerment of communities would directly impact FERC’s role by authorizing the establishment of a FERC Office of Electricity Transmission, directly providing support for FERC staffing and authorizing the establishment of a FERC environmental justice liaison.


America’s increasing reliance on and desire to implement clean energy have likewise led to an escalating need to address—among other things—aging infrastructure, security, and onerous siting processes. Luckily, the externalities commensurate with this escalating demand are well within our power to address. By leveraging the interests and efforts of stakeholder—both private and governmental—the country can work toward proactively addressing potential risks, while taking advantage of the new landscape a more modern, secure, and decongested electric grid can provide. inf

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    John Sample

    Troutman Pepper

    John Sample is an associate in Troutman Pepper’s Regulatory Investigations, Strategy and Enforcement (RISE) Practice Group.

    Andy Flavin

    Troutman Pepper

    Andy Flavin is a partner in Troutman Pepper’s Regulatory Investigations, Strategy and Enforcement (RISE) Practice Group, where he focuses on federal and state energy and environmental matters.