USA Law and Practice Contributed by: David P. Flynn, Lindsey E. Haubenreich, Thomas F. Puchner, Dennis W. Elsenbeck and Zachary R. Hirschfeld, Phillips Lytle LLP
4.2 Obtaining Approvals to Construct and Operate Transmission Lines and Associated Facilities Both state and federal certifications and approvals can generally be required to construct and operate electrical transmission facilities. Some states may have a pre-filing consultation require- ment designed to co-ordinate the review process across multiple agencies. Ultimately, the applicant will generally need to obtain a CPCN, or an equivalent certificate, from the state utility commission. As part of the CPCN proceeding, or as a separate process, an applicant may be subject to review by a multitude of state agencies and authorities, including the relevant counties and municipalities, drainage districts, state natural resource and environmental agencies, trans- portation authorities and cultural heritage preservation offices. In addition to state permits and authorisations, an applicant may need to obtain approval from several federal agencies, including: • the Department of Agriculture; • the Department of Commerce; • the Department of War; • the DOE; • the Environmental Protection Agency (EPA); • the Council on Environmental Quality; • the Advisory Council on Historic Preservation; • the DOI; and • FERC. Building upon a 2023 Memorandum of Understanding between nine of these agencies aimed at expediting the siting, permitting and construction of transmis- sion infrastructure, in April 2024 the DOE promulgated a final rule to establish the Coordinated Interagency Transmission Authorizations and Permits (CITAP) Pro- gram. The CITAP Program: • implements a new integrated inter-agency pre- application (IIP) process for transmission projects; • the US Army Corps of Engineers; • the Federal Aviation Administration; • the US Fish and Wildlife Service;
ting standards, or otherwise reduce impacts that are of concern to the regulators. 3.4 Eminent Domain, Condemnation and Expropriation Rights to Construct and Operate Generation Facilities A CPCN issued by a state public utility commission may include eminent domain rights for the facility developer under terms and conditions specific to that state and its relevant laws. To act on their emi- nent domain authority, the developer must provide the landowner with just compensation based on the fair market value of the property being condemned, on the date that the eminent domain is exercised. 3.5 Decommissioning a Generation Facility Decommissioning is often included as part of the terms and conditions of approval for generation facili- ties. The specifics of such requirements and how they are implemented are highly dependent on the local, state or federal authorities involved, and their unique practices. Permitting authorities may require formal decommissioning plans and financial security. In some cases, decommissioning requirements are applied based on discretionary approval conditions, while in other cases, specific legal requirements for decommissioning may be derived from applicable laws or regulations. 4. Transmission Lines and Associated Facilities 4.1 Constructing and Operating Transmission Lines and Associated Facilities The US transmission system is generally comprised of facilities that are privately, publicly, federally or co- operatively owned. While individual states may have primary authority over environmental reviews, siting and construction of electrical transmission lines and their associated facilities (including storage), federal authorities are involved when a project is subject to federal jurisdiction, located on federal lands, spans multiple states or lies in certain designated areas.
401 CHAMBERS.COM
Powered by FlippingBook