Increased FERC transmission siting authority

(a) In general Part II of the Federal Power Act (16 U.S.C. 824 et seq.) is further amended by adding at the end the following: 227. Siting of certain interstate electric transmission facilities (a) Certificate of public convenience and necessity (1) In general On receipt of an application under subsection (b)(1) relating to a transmission facility of national significance described in paragraph (2), the Commission, after making the finding described in paragraph (3) with respect to such transmission facility of national significance, shall, by order which is published in the Federal Register, issue to the person who submitted such application a certificate of public convenience and necessity for the construction, modification, or operation of such transmission facility of national significance, subject to such reasonable terms and conditions as the Commission determines to be appropriate. (2) Transmission facility of national significance described A transmission facility of national significance referred to in paragraph (1) is an interstate or interregional electric power transmission line (and any facilities necessary for the operation of such electric power transmission line)— (A) that has a transmission capacity of not less than 1,000 megawatts; and (B) the construction of which is completed on or after the date of enactment of this section. (3) Finding described The finding referred to in paragraph (1) is a finding that— (A) the applicant for a certificate of public convenience and necessity is able and willing— (i) to carry out the activities and perform the services proposed in the application in a manner determined to be appropriate by the Commission; and (ii) to achieve compliance with the applicable requirements of— (I) this part; and (II) any rules and regulations promulgated by the Commission pursuant to this part; (B) the transmission facility of national significance to be constructed, modified, or operated under the certificate of public convenience and necessity will— (i) be interstate or interregional; (ii) be used for the transmission of electric energy in interstate commerce; and (iii) have a transmission capacity of not less than 1,000 megawatts. (4) Rulemaking Not later than 18 months after the date of enactment of this section, the Commission shall issue regulations specifying— (A) a pre-filing process during which a person described in subsection (b)(1) and the Commission shall consult with— (i) the State commission for each State through which the applicable transmission facility of national significance will traverse; (ii) appropriate Federal agencies; (iii) each Indian Tribe that may be affected by the proposed project to construct, modify, or operate a transmission facility of national significance; and (iv) the appropriate Transmission Organization; (B) the form of, and information to be contained in, an application submitted under subsection (b)(1); (C) requirements for determining whether the applicable transmission facility of national significance will— (i) traverse not fewer than 2 States; (ii) be used for the transmission of electric energy in interstate commerce; and (iii) have a power capacity of not less than 1,000 megawatts; (D) criteria for determining the reasonable and economical use of— (i) existing rights-of-way; and (ii) the transmission capabilities of existing towers or structures; (E) the manner in which an application submitted under subsection (b)(1) shall be considered, which, to the extent practicable, shall be consistent with State statutory and regulatory policies concerning generation and retail sales of electricity in the States in which the electric energy transmitted by the transmission facility of national significance will be generated or sold; and (F) the manner in which the Commission will consider the needs of communities that will be impacted directly by the applicable transmission facility of national significance, including how any impacts of the transmission facility of national significance could be mitigated or offset. (5) Publication, public comment, and hearings for certain notice of intent and draft environmental impact statements (A) Publication The Commission shall publish in the Federal Register a notice of intent to prepare an environmental document under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) with respect to an application for a certificate of public convenience and necessity that has been submitted under subsection (b)(1). (B) Public comment The Commission shall provide not less than 60 days for public comment on each notice of intent and draft environmental impact statement published under subparagraph (A). (C) Hearing The Commission shall provide to the individuals and entities described in paragraph (6)(B) a reasonable opportunity for presentation, in at least 1 public hearing, of any views and recommendations on each notice of intent and each draft environmental impact statement published under subparagraph (A). The Commission shall publish in the Federal Register notice of any hearing held under this subparagraph. (6) Notice and opportunity for a hearing on applications (A) In general In any proceeding before the Commission to consider an application for a certificate of public convenience and necessity under this section, the Commission shall— (i) publish a notice of the application in the Federal Register; (ii) provide written notice of such application to all affected landowners in accordance with subsection (c); and (iii) provide to the individuals and entities described in subparagraph (B) a notice and reasonable opportunity for the presentation in at least 1 public hearing of any views and recommendations with respect to the need for, and impact of, the construction, modification, or operation of the transmission facility of national significance proposed to be constructed, modified, or operated under the certificate. (B) Individuals and entities described The individuals and entities referred to in subparagraph (A) are— (i) an agency, selected by the Governor (or equivalent official) of the applicable State, of each State in which the transmission facility of national significance proposed to be constructed, modified, or operated under the applicable certificate of public convenience and necessity is or will be located; (ii) each affected landowner; and (iii) as determined by the Commission— (I) each affected Federal agency; and (II) each Indian Tribe that may be affected by the proposed construction, modification, or operation. (C) Prohibition The Commission may not— (i) require an applicant for a certificate of public convenience and necessity under this section to provide any notice required under this section; or (ii) enter into a contract to provide any notice required under this section with— (I) the applicant for the applicable certificate of public convenience and necessity; or (II) any other person that has a financial interest in the project proposed in the application for such certificate. (b) Applications (1) In general A person desiring a certificate of public convenience and necessity under this section shall submit to the Commission an application at such time, in such manner, and containing such information as the Commission may require. (2) Requirement An application submitted to the Commission under paragraph (1) shall include all information necessary for the Commission to make the finding described in subsection (a)(3). (c) Notice to affected landowners (1) In general The Commission shall provide written notice of an application submitted under subsection (b)(1) to all affected landowners with respect to the transmission facility of national significance for which such application was submitted in accordance with this subsection. (2) Requirements Any notice provided to an affected landowner under paragraph (1) shall include the following: (A) The following statement in 14-point bold typeface: “ ‘The [name of applicant] has proposed building power lines that will cross your property, and may also require building transmission towers on your property. If the Federal Energy Regulatory Commission approves [applicant]’s proposed project, then [applicant] may have the right to build transmission towers on, and power lines over, your property, or use your property to construct the proposed project, subject to paying you just compensation for the loss of your property. “ ‘If you want to raise objections to, offer support for, or otherwise comment on this, or otherwise comment on this project, you can do so by submitting written comments to the Federal Energy Regulatory Commission Docket No. [___]. You can do this electronically or by mail. To do so electronically [to be inserted by the Commission]. To do so by mail [to be inserted by the Commission].’. (B) A description of the proposed project to construct, modify, or operate a transmission facility of national significance, including— (i) the location of the proposed project (including a general location map); (ii) the purpose of the proposed project; and (iii) the timing of the proposed project. (C) The name of, and the location in the docket of the Commission at which may be found, each submission by the applicant to the Commission relating to the proposed project. (D) A general description of what the applicant will need from the landowner if the proposed project is approved, including the activities the applicant may undertake and the facilities that the applicant may seek to construct on the property of the landowner. (E) A description of how the landowner may contact the applicant, including— (i) a website; (ii) an email address; (iii) a local or toll-free telephone number; and (iv) the name of a specific person to contact who is knowledgeable about the proposed project. (F) A description of how the landowner may contact the Commission, including— (i) a website; (ii) an email address; (iii) a local or toll-free telephone number; and (iv) the name of a specific person to contact who is knowledgeable about the proposed project. (G) A summary of the rights that the landowner has— (i) before the Commission; and (ii) in other proceedings under— (I) the Federal Rules of Civil Procedure; and (II) the eminent domain rules of the relevant State. (H) Any other information that the Commission determines to be appropriate. (3) Obligation of applicant An applicant for a certificate of public convenience and necessity under this section shall submit to the Commission, together with the application for the certificate, the name and address of each affected landowner. (d) Regulatory jurisdiction (1) In general Except as provided in paragraph (2) and notwithstanding section 216(i), no State shall regulate any aspect of the siting or permitting of a transmission facility of national significance constructed, modified, or operated under a certificate of public convenience and necessity issued under this section. (2) Savings clause Nothing in this section affects the rights of States under— (A) the Coastal Zone Management Act of 1972 (16 U.S.C. 1451 et seq.); (B) the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.); (C) the Clean Air Act (42 U.S.C. 7401 et seq.); or (D) division A of subtitle III of title 54, United States Code (formerly known as the National Historic Preservation Act). (3) Tribal consent for certain rights-of-way No right-of-way over or across Tribal land may be granted pursuant to this section unless consent for the right-of-way has been obtained from the proper Tribal official in a manner consistent with the requirements of section 2 of the Act of February 5, 1948 (62 Stat. 18, chapter 45; 25 U.S.C. 324). (e) Judicial review (1) In general Any person aggrieved by an order of the Commission issued under this section may obtain review of the order in— (A) the court of appeals of the United States for any judicial circuit in which the transmission facility of national significance to be constructed, modified, or operated under the applicable certificate of public convenience and necessity is or will be located; or (B) the United States Court of Appeals for the District of Columbia Circuit. (2) Petition for review (A) In general A person may obtain review under paragraph (1) by filing in the applicable court a written petition praying that the order of the Commission be modified or set aside in whole or in part. (B) Timing A petition under subparagraph (A) shall be filed by not later than 60 days after the date on which the applicable order of the Commission is published in the Federal Register. (3) Person aggrieved Notwithstanding any other provision of this Act, a person aggrieved by an order of the Commission issued under this section need not— (A) have been a party to the proceedings before the Commission in which that order was issued in order to obtain judicial review of the order under this subsection; or (B) have requested rehearing before the Commission prior to seeking judicial review. (f) Right of eminent domain for electric transmission facilities (1) In general The holder of a certificate of public convenience and necessity may acquire through the exercise of the right of eminent domain in a court described in paragraph (2) any right-of-way, land, or other property that is necessary to construct, modify, or operate a transmission facility of national significance in accordance with such certificate if the holder has, in the determination of the Commission, made good faith efforts to engage with landowners and other stakeholders early in the permitting process established under this section, and— (A) cannot acquire the necessary right-of-way, land, or other property by contract; (B) is unable to agree with the owner of the right-of-way, land, or other property with respect to the compensation to be paid for that right-of-way, land, or other property; or (C) cannot clear defective title with respect to the right-of-way, land, or other property. (2) Court described A court referred to in paragraph (1) is— (A) the district court of the United States for the district in which the applicable right-of-way, land, or other property is located; or (B) the appropriate State court. (3) Notice of order issuing certificate The holder of a certificate of public convenience and necessity may not exercise the right of eminent domain under this subsection with respect to any property covered by the certificate unless the Commission has first, in addition to publishing the notice of certificate of public convenience and necessity in the Federal Register, provided all affected landowners with notice of— (A) the order; and (B) the procedures for obtaining judicial review of such order under subsection (e), including a description of the time period for seeking judicial review under that subsection. (g) Condemnation procedures (1) Appraisals (A) In general A holder of, or applicant for, a certificate of public convenience and necessity shall have any property that the holder or applicant seeks to acquire through the exercise of the right of eminent domain under subsection (f) appraised in accordance with generally accepted appraisal standards by an appraiser selected by the owner of the property, subject to subparagraph (D). (B) Requirements (i) Costs The applicable holder of, or applicant for, a certificate of public convenience and necessity shall pay for each appraisal carried out under subparagraph (A). (ii) Inspections The owner of the applicable property (or a designated representative of the owner) shall be given the opportunity to accompany the appraiser during any inspection of the property that is part of an appraisal under subparagraph (A). (C) Timing An appraisal under subparagraph (A) shall be carried out before— (i) the holder of, or applicant for, the certificate of public convenience and necessity makes an offer of just compensation under paragraph (2); or (ii) the holder of the certificate of public convenience and necessity commences an action or proceeding to exercise the right of eminent domain under subsection (f). (D) Selection of appraiser If the owner of the applicable property does not select an appraiser under subparagraph (A) by the date that is 60 days after the date on which the holder of, or applicant for, the applicable certificate of public convenience and necessity requests that the owner do so, the holder or applicant shall have the right to select the appraiser. (2) Offers of just compensation (A) In general Any offer of just compensation made to an affected landowner of property that is or will be covered by a certificate of public convenience and necessity— (i) shall be made in writing; (ii) may not be for an amount less than the fair market value of the property, as determined by an appraisal carried out under paragraph (1); and (iii) shall include compensation for— (I) any lost income from the property; and (II) any damages to any other property of the owner. (B) Timing The holder of a certificate of public convenience and necessity may not make an offer of just compensation to an affected landowner until the date that is 30 days after the date on which the Commission provides a notice to the affected landowner under subsection (f)(3). (3) Jurisdictional limitations (A) Minimum jurisdictional amount A district court of the United States shall only have jurisdiction of an action or proceeding to exercise the right of eminent domain under subsection (f) if the amount claimed by the owner of the property to be condemned exceeds $3,000. (B) Tribal land A district court of the United States shall have no jurisdiction to condemn any interest in Tribal land. (4) Limitation on condemnation In any action or proceeding to exercise the right of eminent domain under subsection (f), a court— (A) may condemn an interest in property only to the extent necessary for the specific facilities described in the applicable certificate of public convenience and necessity; and (B) may not— (i) condemn any other interest; or (ii) condemn an interest for any purpose not described in that certificate. (5) Right of possession With respect to any action or proceeding to exercise the right of eminent domain under subsection (f), an owner of property that is covered by the applicable certificate of public convenience and necessity shall not be required to surrender possession of that property unless the holder of the certificate— (A) has paid to the owner the award of compensation in the action or proceeding; or (B) has deposited the amount of that award with the court. (6) Litigation costs (A) In general A holder of a certificate of public convenience and necessity that commences an action or proceeding to exercise the right of eminent domain under subsection (f) shall be liable to the owner of any property condemned in that proceeding for the costs described in subparagraph (B) if the amount awarded to that owner for the property condemned is more than 125 percent of the amount offered to the owner by the holder before the commencement of that action or proceeding. (B) Costs described The costs referred to in subparagraph (A) are litigation costs incurred for the action or proceeding described in that subparagraph by the owner of the property condemned, including— (i) reasonable attorney fees; (ii) expert witness fees and costs; and (iii) reasonable travel costs to participate in proceedings. (h) Enforcement of conditions (1) In general An affected landowner the property of which has been acquired by eminent domain under subsection (f) shall have the right— (A) to enforce any condition in the applicable certificate of public convenience and necessity; and (B) to seek damages for a violation of any condition described in subparagraph (A). (2) Jurisdiction The district courts of the United States shall have jurisdiction over any action arising under paragraph (1). (i) Other landowner rights and protections (1) Failure to timely complete projects (A) Surrender of condemned property (i) In general An individual or entity from which an interest in property is acquired through the exercise of the right of eminent domain under subsection (f) by the holder of a certificate of public convenience and necessity that is issued for the construction, modification, or operation of a transmission facility of national significance may demand that the holder of the certificate surrender that interest to that individual or entity if— (I) (aa) the transmission facility of national significance is not in operation (as modified, in the case of a modification of a transmission facility of national significance) by the date specified in the certificate (including any modification of the certificate by the Commission); and (bb) there is no request for the extension of that date pending before the Commission; or (II) subject to clause (ii), the holder of the certificate, with the approval of the Commission, abandons the portion of the transmission facility of national significance that is located on the applicable property relating to that interest. (ii) Requirement The Commission may not approve in a certificate of public convenience and necessity issued under this section or in any subsequent proceeding the abandonment of all or any part of a transmission facility of national significance unless the Commission requires the holder of the applicable certificate of public convenience and necessity to offer to each individual or entity described in clause (i) the option of having the property acquired from that individual or entity as described in that clause restored to the condition that the property was in prior to the issuance of the certificate. (B) Repayment of condemnation award If an individual or entity described in subparagraph (A)(i) demands the surrender of an interest under that subparagraph, the holder of the applicable certificate of public convenience and necessity shall be entitled to repayment of an amount equal to not more than 50 percent of the condemnation award relating to the interest. (C) Jurisdiction The district courts of the United States shall have jurisdiction over any action arising under this paragraph. (2) Material misrepresentations (A) Rescission of transaction (i) In general An individual or entity from which an interest in property is acquired through the exercise of the right of eminent domain under subsection (f) that proves, by a preponderance of the evidence, that the individual or entity has granted a right-of-way or any other property interest based on a material misrepresentation made by or on behalf of an applicant for, or holder of, a certificate of public convenience and necessity under this section concerning the transmission facility of national significance to be constructed, modified, or operated under the certificate shall have the right to rescind the transaction. (ii) Jurisdiction The district courts of the United States shall have jurisdiction over any action arising under clause (i). (B) Civil penalties A material misrepresentation made by an applicant for, or holder of, a certificate of public convenience and necessity, or on behalf of such an applicant or holder, to an affected landowner concerning the transmission facility of national significance to be constructed, modified, or operated under the certificate, shall be considered to be a violation of this part for purposes of section 316A and such applicant or holder shall be assessed a civil penalty by the Commission in accordance with such section 316A, except the amount of such civil penalty may not exceed $10,000 per affected landowner to whom the misrepresentation was made. (j) Definitions In this section: (1) Affected landowner (A) In general The term affected landowner includes each owner of a property interest in land or other property described in subparagraph (B), including— (i) the Federal Government; (ii) a State or local government; and (iii) each owner noted in the most recent county or city tax record as receiving the relevant tax notice with respect to that interest. (B) Land and other property described The land or other property described in this subparagraph is any land or other property— (i) that is directly affected by the proposed construction, modification, or operation of a transmission facility of national significance, including all facility sites; (ii) that is located within the greater of— (I) 0.25 miles from a proposed facility site for a transmission facility of national significance; or (II) a minimum distance from the proposed transmission facility of national significance as specified by State law; or (iii) contains a residence that is within 3,000 feet of a proposed facility site for a transmission facility of national significance. (2) Alternating current transmission facility The term alternating current transmission facility means a transmission facility that uses alternating current for the bulk transmission of electric energy. (3) Electric power transmission line The term electric power transmission line means, as applicable— (A) an alternating current transmission facility; (B) a high-voltage, direct current transmission facility; or (C) infrastructure associated with an alternating current transmission facility or a high-voltage, direct current transmission facility, including substations and switchyards. (4) Facility site The term facility site includes— (A) an area covered by a right-of-way; (B) an access road; (C) a contractor yard where equipment and material are stored or where assembly work is conducted; and (D) any temporary workspace. (5) High-voltage, direct current transmission facility The term high-voltage, direct current transmission facility means a transmission facility that uses direct current for the bulk transmission of electric energy. (6) Tribal land The term Tribal land has the meaning given the term Indian land in section 2601 of the Energy Policy Act of 1992 (25 U.S.C. 3501).. (b) Conforming changes to the Federal Power Act (1) Siting of interstate electric transmission facilities Section 216 of the Federal Power Act (16 U.S.C. 824p) is amended— (A) in subsection (b)(2), by inserting (including transmission of electric energy from the outer Continental Shelf to a State) after interstate commerce; and (B) in subsection (h)— (i) by amending paragraph (2) to read as follows: (2) Lead agency For the purposes of coordinating all applicable Federal authorizations and related environmental reviews— (A) the Commission shall act as the lead agency in the case of— (i) except as provided in subparagraph (B), a transmission facility of national significance in a national interest electric transmission corridor designated by the Secretary under subsection (a); or (ii) a transmission facility of national significance for which an application has been submitted for a certificate of public convenience and necessity under section 227; (B) the Department of the Interior shall act as the lead agency in the case of a transmission facility of national significance in a national interest electric transmission corridor designated by the Secretary under subsection (a) that is located on a lease, easement, or right-of-way granted by the Secretary of the Interior under section 8(p)(1)(C) of the Outer Continental Shelf Lands Act (43 U.S.C. 1337(p)(1)(C)); and (C) the Department of Energy shall act as the lead agency in the case of any other transmission facility of national significance.; (ii) in each of paragraphs (3), (4)(B), (4)(C), (5)(B), (6)(A), (7)(A), (8)(A)(i), and (9), by striking Secretary each place it appears and inserting applicable lead agency; (iii) in paragraph (4)(A), by striking As head of the lead agency, the Secretary and inserting The applicable lead agency; (iv) in paragraph (5)(A), by striking As lead agency head, the Secretary and inserting The applicable lead agency; and (v) in paragraph (7)— (I) in subparagraph (A), by striking after the date of enactment of this section and inserting after the date of enactment of the Energy Bills Relief Act; and (II) in subparagraph (B), by amending clause (i) to read as follows: (i) Not later than six months after the date of enactment of the Energy Bills Relief Act, the Secretary, the Commission, and the heads of all Federal agencies with authority to issue Federal authorizations shall enter into a memorandum of understanding to ensure the timely and coordinated review and permitting of electric transmission facilities.. (2) Transmission infrastructure investment Section 219(b)(4)(B) of the Federal Power Act (16 U.S.C. 824s(b)(4)(B)) is amended by striking section 216 and inserting sections 216 and 227.