Earlier this year, the Federal Energy Regulatory Commission (FERC or the Commission) issued Order 1977 to address its limited backstop siting authority for electric transmission lines. On October 17, 2024, FERC issued Order 1977-A, adding a new requirement mandating that siting applicants seeking rights of way on Tribal lands must include their Tribal Engagement Plans within their project proposals.
A Tribal Engagement Plan is a requirement of the overall Project Participation Plan that addresses all outreach that is targeted to identified Tribes, including a summary of comments from potentially affected Tribes in previous outreach, a description of planned Tribal outreach activities, and a description of how the applicant will engage Tribes about potential mitigation measures. FERC also clarified several aspects of the final rule.
Background
On May 13, 2024, FERC issued Order 1977 to revise the process it uses when exercising its limited authority to site electric transmission lines under the Federal Power Act, as amended in 2021. Among other things, Order 1977 modified FERC’s “backstop” siting procedures for issuing permits to construct or modify electric transmission facilities in regional lines designated by the US Department of Energy as National Interest Electric Transmission Corridors (NIETC).
The order also codified a code of conduct for applicants, including recordkeeping and information-sharing requirements for engagement with affected landowners, and created a landowner bill of right. In addition, Order 1977 required that a Tribal Engagement Plan must be included with any siting application wherein applicants must identify potentially affected tribes and describe the impacts of construction, operation, and maintenance on Tribes and Tribal interests.
New Addition to Regulations Affecting Tribal Engagement Plans
FERC modified the Tribal Engagement Plan to add requirements that will apply if a project developer needs rights-of-way on land (1) held by the US government in trust for the benefit of one or more Tribes and/or individual American Indians or (2) land that one or more Tribes and/or individual American Indians holds title to, but those individuals can alienate or encumber it only with the approval of the United States. In such cases, the Tribal Engagement Plan must describe how the applicant will engage with the relevant Indian Tribe or individual Indian landowners to obtain the necessary permissions, including consent to access Tribal land to prepare information required by the application, if applicable.
Applicants must also ensure that communications with Indian Tribes are honest, factually accurate, and respectful of Tribal sovereignty. FERC noted that these additional requirements, if applicable, apply to all applicants regardless of whether they choose to comply with the voluntary Applicant Code of Conduct. Order 1977-A also clarified that Tribes have a right to exclude, or condition the presence of, nonmembers on Tribal lands and that the final order is not intended to infringe upon Tribal sovereignty.
Further Discussion on Order 1977 Requirements
The Federal Power Act section 216(b)(1)(C)(i) provides that FERC may issue a permit for the construction or modification of electric transmission facilities in a NIETC if a state commission or other entity with authority to approve the siting of the transmission facilities has not made a determination on a siting application by one year after the later of the date on which the application was filed or the date on which the relevant NIETC was designated. One rehearing request asked FERC to revise the final rule to specify that, where a state has not decided on an application, the Commission’s jurisdiction is dependent upon the filing of a “complete” application with the state, or in alternative, to clarify how FERC will determine when the statute’s one-year period begins to run.
FERC declined to revise the final rule to condition its jurisdiction upon the filing of a complete application with the state. FERC explained that an applicant must provide the status of the applicant’s filings before state agencies throughout the Commission’s pre-filing process. In addition, applicants must provide evidence, at the time an application is filed with the Commission, that the state has not decided on an application seeking approval under applicable law. FERC also explained that in determining whether one year has passed from the date on which an application was filed with the state, it will consider, on a case-by-case basis, any assertions that such application was incomplete.
In addition, in Order 1977, FERC adopted a new environmental resource report that requires an applicant to provide information on proposed transmission facilities’ impacts on air quality and environmental noise. In Order 1977-A, in response to requests for additional information, FERC explained that these reports are intended to support the Commission’s environmental review and National Environmental Policy Act obligations. However, FERC noted that these reports cannot be exhaustive of all environmental matters that may arise in a proceeding that the Commission may need to address. As such, FERC will determine, on a case-by-case basis, whether additional information is needed to analyze the proposed project’s reasonably foreseeable effects.