[Federal Register Volume 86, Number 120 (Friday, June 25, 2021)]
[Notices]
[Pages 33700-33703]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-13440]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. PL21-2-000]


State Voluntary Agreements To Plan and Pay for Transmission 
Facilities

AGENCY: Federal Energy Regulatory Commission, Department of Energy.

ACTION: Notice of policy statement.

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SUMMARY: This policy statement addresses state efforts to develop 
transmission facilities through voluntary agreements to plan and pay 
for those facilities. We clarify that Voluntary Agreements are not 
categorically precluded by the Federal Power Act or the Commission's 
existing rules and regulations.

DATES: This policy statement is effective June 17, 2021.

FOR FURTHER INFORMATION CONTACT: 

David Tobenkin (Technical Information), Office of Energy Policy and 
Innovation, (202) 502-6445, [email protected]
Lina Naik (Legal Information), Office of the General Counsel, (202) 
502-8882, [email protected]
Jay Sher (Technical Information), Office of Energy Market Regulation, 
(202) 502-8921, [email protected]

SUPPLEMENTARY INFORMATION:
    1. This policy statement addresses state efforts to develop 
transmission facilities through voluntary agreements to plan and pay 
for those facilities (Voluntary Agreements). Voluntary Agreements 
include agreements among: (1) Two or more states; (2) one or more 
states and one or more public utility transmission providers; or (3) 
two or more public utility transmission providers. We clarify that 
Voluntary Agreements are not categorically precluded by the Federal 
Power Act (FPA) \1\ or the Commission's existing rules and regulations, 
and encourage interested parties considering the use of such agreements 
to consult with Commission staff. To the extent that states, public 
utility transmission providers, or other stakeholders believe that the 
relevant tariffs impose barriers to Voluntary Agreements, the 
Commission is open to filings to remove or otherwise address those 
barriers.
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    \1\ 16 U.S.C. 791a et seq.
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    2. Developing cost-effective and reliable transmission facilities 
remains a priority of this Commission.\2\ Voluntary Agreements can 
further those goals by, for example, providing states with a way to 
prioritize, plan, and pay for transmission facilities that, for 
whatever reason, are not being developed pursuant to the regional 
transmission planning processes required by Order No. 1000.\3\ In 
addition, in some cases, Voluntary Agreements may allow state-
prioritized transmission facilities to be planned and built more 
quickly than would comparable facilities that are

[[Page 33701]]

planned through the regional transmission planning process(es).
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    \2\ See Transmission Planning and Cost Allocation by 
Transmission Owning and Operating Public Utilities, Order No. 1000, 
76 FR 49842 (Aug. 11, 2011), 136 FERC ] 61,051, at P 2 (2011), order 
on reh'g and clarification, Order No. 1000-A, 77 FR 32184 (May 31, 
2012), 139 FERC ] 61,132, order on reh'g and clarification, Order 
No. 1000-B, 77 FR 64890 (Oct. 24, 2012), 141 FERC ] 61,044 (2012), 
aff'd sub nom. S.C. Pub. Serv. Auth. v. FERC, 762 F.3d 41 (D.C. Cir. 
2014) (instituting reforms to ensure more efficient and cost-
effective regional transmission planning); see also Elec. 
Transmission Incentives Pol'y Under Section 219 of the Federal Power 
Act, 170 FERC ] 61,204, at P 31 (2020) (Transmission Incentives 
NOPR) (noting ``FPA section 219(a) requires that the Commission 
provide incentive-based rates for electric transmission for the 
purpose of benefitting consumers by ensuring reliability and 
reducing the cost of delivered power by reducing transmission 
congestion''). The Commission noted in the Transmission Incentives 
NOPR that there is a need for existing and new transmission 
facilities to help facilitate integration of a variety of types of 
resources. Transmission Incentives NOPR, 170 FERC ] 61,204 at P 28.
    \3\ Order No. 1000, 136 FERC ] 61,051 at P 146. Order No. 1000 
established rules and regulations addressing, among other things, 
regional transmission planning, interregional transmission 
coordination, and cost allocation methods for new transmission 
facilities. This includes requiring each public utility transmission 
provider to participate in a regional transmission planning process 
that produces a regional transmission plan and complies with certain 
transmission planning principles.
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    3. Nevertheless, we are concerned that confusion regarding the 
relationship between Voluntary Agreements and Commission rules and 
regulations may be deterring such agreements. Accordingly, in this 
policy statement, we clarify that neither the FPA nor the Commission's 
rules and regulations categorically preclude Voluntary Agreements 
among: (1) Two or more states; (2) one or more states and one or more 
public utility transmission providers; or (3) two or more public 
utility transmission providers to plan and pay for new transmission 
facilities. In particular, we note that Order No. 1000 allows market 
participants, including states, to negotiate voluntarily alternative 
cost sharing arrangements that are distinct from the relevant regional 
cost allocation method(s).\4\
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    \4\ See id. PP 561, 724; Order No. 1000-A, 139 FERC ] 61,132 at 
PP 728-729; see also Order No. 1000, 136 FERC ] 61,051 at P 209 
n.189 (``[W]e strongly encourage states to participate actively in 
the identification of transmission needs driven by Public Policy 
Requirements. Public utility transmission providers, for example, 
could rely on committees of state regulators or, with appropriate 
approval from Congress, compacts between interested states to 
identify transmission needs driven by Public Policy Requirements for 
the public utility transmission providers to evaluate in the 
transmission planning process.''). While we focus here on Voluntary 
Agreements as a potential tool for states to advance state policy 
goals, the policy statement does not alter market participants' 
ability to pursue such arrangements absent state involvement.
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    4. As an illustration, we note that the Commission accepted certain 
non-Order No. 1000, alternative cost sharing arrangements in the 
context of Order No. 1000 compliance filings.\5\ In the case of PJM, 
the Commission held that it ``need not find that the State Agreement 
Approach and corresponding cost allocation method comply with Order No. 
1000.'' \6\ Specifically, with regard to PJM's State Agreement 
Approach, the Commission found the approach supplemented and did ``not 
conflict or otherwise replace'' PJM's Order No. 1000 process to 
consider transmission needs driven by public policy requirements.\7\
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    \5\ For example, the Commission accepted PJM Interconnection, 
L.L.C.'s (PJM) State Agreement Approach to transmission planning, 
which is a transmission planning and cost allocation mechanism 
supplementary to PJM's Order No. 1000 regional transmission planning 
process. Through the State Agreement Approach, one or more state 
governmental entities authorized by their respective states, 
individually or jointly, may agree voluntarily to be responsible for 
the allocation of all costs of a proposed transmission facility that 
addresses state public policy requirements identified or accepted by 
the relevant state(s) in the PJM region. See PJM Interconnection, 
L.L.C., 142 FERC ] 61,214, at PP 142-143 (2013), order on reh'g and 
compliance, 147 FERC ] 61,128, at P 92 (2014); PJM, Intra-PJM 
Tariffs, Operating Agreement, sched. 6, section 1.5.9(a) (State 
Agreement Approach) (26.0.0). Similarly, ISO New England Inc.'s 
(ISO-NE) tariff includes a voluntary process that enables the New 
England States Committee on Electricity (NESCOE) and state public 
utility regulators to plan and pay for transmission facilities. See 
ISO New England Inc., 143 FERC ] 61,150, at P 121 (2013); ISO-NE, 
ISO New England Inc. Transmission, Markets and Services Tariff, 
sched. 12, section B.6 (Public Policy Transmission Upgrade Costs) 
(7.0.0).
    \6\ PJM Interconnection, L.L.C., 142 FERC ] 61,214 at P 142.
    \7\ Id.
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    5. More recently, the Commission approved a study agreement that 
initiated a Voluntary Agreement process in PJM. There, the New Jersey 
Board of Public Utilities (New Jersey Board), acting pursuant to PJM's 
State Agreement Approach, issued an order formally requesting that PJM 
open a competitive proposal window to solicit proposals for 
transmission facilities to expand the PJM transmission system and to 
identify system improvements to interconnect and provide for the 
deliverability of 7,500 MW of offshore wind generation into New Jersey 
by 2035. The New Jersey Board and PJM entered into a study agreement 
directing PJM to solicit proposals for possible transmission facilities 
and analyze them to determine the more efficient or cost-effective 
enhancement or expansion of transmission facilities to meet New 
Jersey's offshore wind goals.\8\ The New Jersey Board explained that 
this type of collaborative approach to transmission planning will help 
ensure that the high-voltage transmission system accommodates state 
clean energy policies and represents a type of state-federal 
collaboration consistent with Commission rules and regulations.\9\
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    \8\ PJM Interconnection, L.L.C., 174 FERC ] 61,090 (2021).
    \9\ Id. P 10.
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    6. To the extent that states or public utility transmission 
providers believe there are barriers to Voluntary Agreements in 
Commission-jurisdictional tariffs or other agreements, we encourage 
them to identify those barriers and, as necessary, consider making 
filings before this Commission to address those barriers. Commission 
staff is available to consult on these issues as states, public utility 
transmission providers, and other stakeholders consider addressing such 
barriers and the topic of Voluntary Agreements more generally. We 
encourage relevant parties to contact Commission staff regarding all 
potential Voluntary Agreements.

I. Document Availability

    7. In addition to publishing the full text of this document in the 
Federal Register, the Commission provides all interested persons an 
opportunity to view and/or print the contents of this document via the 
internet through the Commission's Home Page (https://www.ferc.gov). At 
this time, the Commission has suspended access to the Commission's 
Public Reference Room, due to the proclamation declaring a National 
Emergency concerning the Novel Coronavirus Disease (COVID-19), issued 
by the President on March 13, 2020.
    8. From the Commission's Home Page on the internet, this 
information is available on eLibrary. The full text of this document is 
available on eLibrary in PDF and Microsoft Word format for viewing, 
printing, and/or downloading. To access this document in eLibrary, type 
the docket number excluding the last three digits of this document in 
the docket number field.
    9. User assistance is available for eLibrary and the Commission's 
website during normal business hours from the Commission's Online 
Support at (202) 502-6652 (toll free at 1-866-208-3676) or email at 
[email protected], or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. Email the Public Reference Room at 
[email protected].
    By direction of the Commission.
    Commissioner Chatterjee is not participating.
    Commissioner Danly is concurring with a separate statement 
attached.
    Commissioner Christie is concurring with a separate statement 
attached.

    Issued: June 17, 2021.
Debbie-Anne A. Reese,
Deputy Secretary.

Department of Energy

Federal Energy Regulatory Commission

State Voluntary Agreements To Plan and Pay for Transmission Facilities
PL21-2-000
    DANLY, Commissioner, concurring:
    1. I concur in the issuance of this policy statement on state 
voluntary agreements to plan and pay for transmission facilities. I do 
not know what it accomplishes, but we are not ``categorically 
precluded'' from issuing it, and if there is a chance that it can help 
critical transmission infrastructure to be built, then I see no reason 
to oppose it.
    2. The policy states that ``[W]e are concerned that confusion 
regarding the relationship between Voluntary Agreements and Commission 
rules and regulations may be deterring [Voluntary]

[[Page 33702]]

agreements.'' \1\ We do not cite any examples of such confusion, but--
who knows--it may well exist.
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    \1\ State Voluntary Agreements to Plan and Pay for Transmission 
Facilities, 175 FERC ] 61,225, at P 3 (2021) (Policy Statement).
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    3. To attempt to dispel this possible confusion, we ``clarify that 
Voluntary Agreements are not categorically precluded by the Federal 
Power Act (FPA) \2\ or the Commission's existing rules and 
regulations.'' \3\ This amounts to a declaration that the FPA and 
existing rules and regulations do not obviously prohibit all Voluntary 
Agreements--I have no quarrel with that. But I do believe it necessary 
to remind everyone that each Voluntary Agreement must still 
individually pass muster under our statute and regulations.
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    \2\ 16 U.S.C. 791a et seq.
    \3\ Policy Statement, 175 FERC ] 61,225 at P 1.
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    4. The actual policy in our statement is an invitation:
    To the extent that states or public utility transmission providers 
believe there are barriers to Voluntary Agreements in Commission-
jurisdictional tariffs or other agreements, we encourage them to 
identify those barriers and, as necessary, consider making filings 
before this Commission to address those barriers.\4\
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    \4\ Id. P 6.
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    5. We do not need a policy statement to invite filings. But there 
is no harm in it. I also invite and welcome filings before the 
Commission so that we can ensure that critical transmission, and 
critical natural gas pipelines, and other critical infrastructure, can 
obtain the approvals and regulatory certainty they require in order to 
be built.
    For these reasons, I respectfully concur.

James P. Danly,
Commissioner.

Department of Energy

Federal Energy Regulatory Commission

State Voluntary Agreements To Plan and Pay for Transmission Facilities
Docket No. PL21-2-000
    CHRISTIE, Commissioner, concurring:
    1. I concur and write separately to add the following.
    2. Today's Policy Statement \1\ reaffirms that voluntary agreements 
among states to promote transmission development to meet state public 
policies are not categorically precluded by Commission rules and 
regulations. Order No. 1000 made clear that states voluntarily could 
negotiate alternative cost sharing arrangements that are distinct from 
the relevant regional cost allocation method \2\ and that order 
highlighted a vehicle for multiple states to cooperate, interstate 
compacts.\3\ As the Policy Statement notes, the Commission has accepted 
certain alternative cost sharing arrangements in the context of Order 
No. 1000 compliance filings.\4\ I would note that voluntary agreements 
are open to all states without regard to whether they participate in 
Regional Transmission Organizations (RTOs) or Independent System 
Operators (ISOs) \5\ and they need not be limited in purpose to 
transmission only. Relevant history illustrates.
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    \1\ State Voluntary Agreements to Plan and Pay for Transmission 
Facilities, 175 FERC ] 61,225 (2021) (Policy Statement).
    \2\ See Policy Statement at PP 3-4, nn.4-5.
    \3\ See id. at n.4. Interstate compacts among states must be 
approved by Congress. U.S. Const. art.1, section 10, cl. 3.
    \4\ Policy Statement at n.5 (citing PJM's State Agreement 
Approach as an example of a vehicle by which a state or states may 
voluntarily pursue transmission projects to fulfill their own 
individual public policies and bear the costs of such policy-driven 
projects themselves.).
    \5\ Technically speaking, state-regulated utilities participate 
in RTOs/ISOs, subject to state law.
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    3. RTOs/ISOs \6\ were established more than two decades ago during 
the ``restructuring'' era that saw about half the states initially 
adopt some version of policies requiring their vertically-integrated 
utilities to divest or at least ``functionally separate'' their 
generating assets, which were then supposed to compete on price in RTO/
ISO markets with independent power producers (``IPPs,'' sometimes 
called ``NUGS'' for non-utility generators--the acronyms float like 
confetti in this business).\7\
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    \6\ See Regional Transmission Organizations, Order No. 2000, 
FERC Stats. & Regs. ] 31,089 (1999) (cross-referenced at 89 FERC ] 
61,285), order on reh'g, Order No. 2000-A, FERC Stats. & Regs. ] 
31,092 (2000) (cross-referenced at 90 FERC ] 61,201), aff'd sub nom. 
Pub. Util. Dist. No. 1 of Snohomish Cty. v. FERC, 272 F.3d 607 (D.C. 
Cir. 2001). Order No. 2000 was issued in 1999 and established 
criteria for RTOs/ISOs.
    \7\ The restructuring era was short-lived. Several states 
subsequently reversed their earlier decisions and returned to some 
form of vertical integration. See Tyson Slocum, The Failure of 
Electricity Deregulation: History, Status and Needed Reforms, Public 
Citizen's Energy Program, March 2007, at 5; see, e.g., Ch. 933, 2007 
Va. Acts of Assembly (April 4, 2007). Restructuring was sometimes 
inaccurately called ``deregulation,'' which implied a move from 
highly structured cost-of-service regulation to true free markets in 
power supply, but it was typically more a swap of one complicated 
regulatory construct for another one just as vulnerable to rent-
seeking. See, e.g., Severin Borenstein and James Bushnell, The U.S. 
Electricity Industry after 20 Years of Restructuring, National 
Bureau of Economic Research, April 2015, at Abstract (``We argue 
that the greatest political motivation for restructuring was rent 
shifting, not efficiency improvements, and that this explanation is 
supported by observed waxing and waning of political enthusiasm for 
electricity reform.''); see also id. at 1.
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    4. Importantly, the states which chose to participate in RTO/ISO 
markets during the restructuring era shared a general consensus that 
the purpose of RTOs/ISOs was to plan the regional transmission 
necessary to promote reliability at the least-cost to consumers and to 
operate energy and capacity markets to provide consumers with least-
cost power on a non-discriminatory basis, i.e., without regard to the 
source of the electrons (sometimes called ``economic dispatch''). 
Federal regulation reflected this consensus about the purpose of RTOs/
ISOs.\8\
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    \8\ The Energy Policy Act of 2005 provided a definition of 
economic dispatch: as ``the operation of generation facilities to 
produce energy at the lowest cost to reliably serve consumers, 
recognizing any operational limits of generation and transmission 
facilities.'' Energy Policy Act of 2005 (EPAct 2005), Public Law 
109-58, 1234(b), 119 Stat. 594, 960 (2005) (codified at 42 U.S.C. 
16432(b)) (emphasis added).
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    5. That consensus no longer exists at either the state or federal 
levels. The past several years have seen an increasing divergence of 
public policies in states that are members of multi-state RTOs/ISOs, 
over such fundamental issues as mandated resource mixes, compensation 
in capacity markets, transmission planning criteria and cost 
allocation, and carbon taxes.\9\ The disappearance of the original 
consensus about the purpose of RTO/ISO markets has serious implications 
across a range of issues, but the adoption of this Policy Statement by 
the Commission offers a good time to emphasize that states that wish to 
cooperate with other states which share similar public-policy goals--
whether environmental, reliability or economic--have options for 
achieving regional benefits outside the context of RTO/ISO 
participation.
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    \9\ This divergence did not happen yesterday, but has been 
building. One commentator wrote ten years ago that ``. . . state 
legislation and regulatory choices continue to push the electricity 
industries of the various states along vastly different paths.'' Ari 
Peskoe, A Challenge for Federalism: Achieving National Goals in the 
Electricity Industry, 18 Mo. Envtl. L. & Pol'y Rev. 209, 211 (2011) 
(``Peskoe'') (emphasis added).
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    6. In particular, I would point out that while this Policy 
Statement emphasizes the potential availability of voluntary agreements 
among states to promote interstate transmission development, voluntary 
state agreements may also be available for other purposes. Before the 
restructuring era, many state-regulated utilities participated in 
multi-state power pools \10\ designed to support reliability by 
wheeling power from state to state when needed to avoid load shedding, 
as well as facilitating bilateral

[[Page 33703]]

sales of excess power.\11\ These sales would benefit customers of the 
selling utility, when booked as a customer credit for off-system sales, 
and benefit customers of the purchasing utility when booked in the 
``fuel factor'' at cost, with no return on equity (ROE) applied.
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    \10\ For over half a century, PJM was a power pool. See https://pjm.com/about-pjm/who-we-are/pjm-history.
    \11\ See generally Peskoe at 223-24. Any application to this 
Commission to establish a power pool or other similar arrangement 
will, of course, come with its own specific evidentiary record and 
will be considered individually under applicable laws at the time.
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    7. Options such as these are still available. Through the use of 
interstate compacts, enabling legislation \12\ could create multi-state 
entities that can plan transmission projects--as this Policy Statement 
encourages--but such entities also could be designed to function as 
modern, innovative versions of power pools aligned with the member 
states' public policies as to resource adequacy and preferences. The 
enabling legislation could also ensure a sufficient state role in the 
governance to ensure that the authority was used only in accordance 
with member-state policies.\13\
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    \12\ Power pools were generally regulated by the Federal Power 
Commission, and later by FERC. See, e.g., id. Congress could, 
however, through enabling legislation, grant various regulatory 
powers to the requesting states which seek to participate in a power 
pool arrangement. For example, Congress could include in such grant 
of authority an explicit power to apply a carbon tax to wholesale 
transactions in a power pool if such power was requested by the 
member states, avoiding the many questions attendant to whether 
RTOs/ISOs themselves have such power. See Carbon Pricing in 
Organized Wholesale Electricity Markets, 175 FERC ] 61,036 (2021) 
(Christie, Comm'r concurring in part and dissenting in part at PP 
12-14, 17-24 (available at https://www.ferc.gov/news-events/news/item-e-2-commissioner-mark-c-christie-concurring-part-and-dissenting-part)).
    \13\ For an example of such a broad grant of power to the 
states, Congress in the Energy Policy Act of 2005 allowed three or 
more contiguous states to enter into a compact, subject to the 
approval by Congress, to form their own regional transmission siting 
entities that would have siting authority for those states. EPAct 
2005, Public Law 109-58, section 1221(i), 119 Stat. 594, 950 (2005) 
(codified at 16 U.S.C. 824p(i)).
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    8. States sharing similar public policies which desire to 
collaborate with each other to obtain the benefits of regional 
cooperation have innovative options to explore and consider whether 
they participate in an RTO/ISO or do not. The adoption of this Policy 
Statement is a good time to emphasize that opportunity.
    For these reasons, I respectfully concur.

Mark C. Christie,
Commissioner.

[FR Doc. 2021-13440 Filed 6-24-21; 8:45 am]
BILLING CODE 6717-01-P