USA Law and Practice Contributed by: David P. Flynn, Lindsey E. Haubenreich, Thomas F. Puchner and Dennis W. Elsenbeck, Phillips Lytle LLP
• advising FERC on enforcement and compli- ance issues. RSO Market-Monitoring Plans Each RSO has market-monitoring plans, which implement a variety of activities designed to assess and improve wholesale electricity market competition. Similar to the functions of FERC’s OE, RSO monitoring system functions include: • monitoring and ensuring compliance with market rules and procedures; • gathering data; • evaluating and reporting on market perfor- mance; • proposing rule changes to improve market operation and performance; and • in some cases, employing mitigation meas- ures and sanctions where authorised. The system of laws applicable to the construc- tion and operation of generation facilities varies depending on the type of facility and its location. For the purposes of this discussion, distinction is drawn between offshore facilities and onshore facilities. State law is the primary authority for the con- struction and operation of onshore generation facilities. Applicable laws generally take the form of: • public utility law regulatory authorities; 3. Generation Facilities 3.1 Constructing and Operating Generation Facilities
In the first category, some states require that electricity-generating facilities obtain a Cer- tificate of Public Convenience and Necessity (CPCN) or similar approval for generating facili- ties prior to construction and operation under the state’s public utility laws. In the second category, local permitting may be required from the municipality where a facility will be sited in the form of a special use permit or similar approval under local land use and zoning laws. In some states, permitting is governed by a centralised (“one-stop”) siting board that may supersede some or all local permitting authori- ties. In the third category, various state environmen- tal review acts (or “mini-NEPAs”) apply, which generally resemble the federal National Environ- mental Policy Act (NEPA). Generally, if a federal permit is involved and the project may result in discharge into waters of the USA, a Clean Water Act (CWA) Section 401 Water Quality Certifica- tion will be necessary. Efforts are under way to streamline the Federal NEPA process as it relates to certain energy projects, including energy infrastructure projects. Projects may also implicate federal authority. Specifically, where onshore projects involve federal lands, authorisation from the US Depart- ment of the Interior’s (DOI) Bureau of Land Man- agement (BLM) or the US Forest Service may be required. Depending on potential impacts, involvement by various consulting agencies may be necessary under the Endangered Spe- cies Act, the Migratory Bird Treaty Act, the Bald and Golden Eagle Protection Act and the CWA. Where federal action is involved, environmental review under NEPA will also be necessary. Again, as it relates to fossil fuel projects, efforts are under way to open up additional federal lands
• local/state permitting laws; and • state environmental review laws.
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