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
• makes the DOE the lead agency for the preparation of a single environment review document to serve as the NEPA document for all required federal authorisations; and • sets an expedited two-year deadline for completion of all federal authorisations and permitting from the date the DOE issues a notice of intent (NOI) to prepare an environmental impact statement (EIS). The IIP process requires the project proponent to sub- mit a project participation plan and a public engage- ment plan, which are intended to identify opportunities for the public to participate in project authorisation decisions and promote engagement with communities of interest and relevant stakeholders. When a company’s permit application is subject to review by FERC, the company must meet with FERC’s Director of Energy Projects to initiate the pre-filing review process. Upon approval from the Director, FERC will issue a notice of the pre-filing process, and the company must implement a Public Participation Plan to identify how it intends to communicate with stakeholders and disseminate information to the pub- lic. Once the company files a complete application, FERC will review comments and recommendations from involved entities and individuals, hold public meet- ings and technical conferences, and clarify project- related issues. FERC is required to act on an appli- cation within one year of the filing date. In addition, FERC will issue an NOI to prepare an environmental assessment (EA) or EIS. The NOI is sent to federal agencies, state and local agencies, and to any entity or individual that may be affected by the transmission facilities, seeking com- ments from interested parties. After the comment period, FERC will prepare an EA or EIS to outline its findings and recommendations. FERC will address the comments in the EA or EIS, or in the final order granting or denying the application. The extent of the federal review process will depend on a number of factors, including the size and location of the project and the degree of co-ordination between the federal agencies and the applicant. The future of this initiative,
particularly as it relates to renewable energy-related transmission projects, is unclear. 4.3 Terms and Conditions Imposed on Approvals to Construct and Operate a Transmission Line and Associated Facilities State, local and federal agency approval of transmis- sion facilities is contingent on the terms and condi- tions as determined by the applicable agencies in the review process. As discussed previously, a company seeking a transmission facilities permit must undergo review by numerous authorities, both state and fed - eral. During such review, the applicable authority will make comments and recommendations and will con- dition its approval on certain modifications or consid- erations that will make the proposed project compliant with the relevant safety, environmental, engineering and zoning standards. 4.4 Eminent Domain, Condemnation and Expropriation Rights to Construct and Operate Transmission Lines and Associated Facilities A CPCN (or its equivalent) issued by a state public utility commission may include eminent domain rights to the transmission facility developer under terms and conditions specific to that state. 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. On the federal level, if a facility project is granted a permit by FERC or the DOE, the transmission facility developer will have eminent domain authority (16 USC Section 824p). The eminent domain authority can only be used for the permitted facilities. The developer should refer the landowner to the rel- evant state agency or state Attorney General, and should explain to the landowner that they have the right to acquire the property, or property rights, by eminent domain under FPA Section 216 (e). When a developer exercises eminent domain under FPA Section 216 (e), a condemnation proceeding in federal court must conform as nearly as practicable to the practice and procedure of condemnation proceed-
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