Non-Transmission Alternatives

• Date: 01 August 2016

46 ELR 10688 ENVIRONMENTAL LAW REPORTER 8-2016

A R T I C L E

Non-Transmission Alternatives

by Shelley Welton

Shelley Welton is a Ph.D. Candidate in Law, Yale Law School.

I. Introduction

e United States is approaching an electricity-transmis-

sion crisis at the same time that transmission has become

the critical “fulcrum” on which the future of the U.S.

energy mix may pivot.1 If the United States is to meet ambi-

tious federal and state goals for transitioning its electricity

system to one that relies far more on renewable power, and

far less on fossil fuels, expanding tra nsmission is critical.

Yet transmission faces many well-documented chal-

lenges, including siting battles and complicated questions

about how to allocate the costs of new lines.2 It also cre-

ates signicant environmental impacts, which often lead

to protracted litigation over the adequacy of environmen-

tal a nalyses.3 Often it is easier, cheaper, and environmen-

tally preferable to eliminate or shift demand, or to locate

generation strategically, tha n it is to build new lines. A s

demand-reduction and demand-shifting strategies gain in

scale and sophistication, they will prove increasingly viable

alternatives to building new transmission. Not only might

these strategies often prove cheaper, they might also bring

environmental benets in the form of reduced carbon

emissions, reduced conventional pollutants, and avoided

environmental degradation from not building new trans-

mission lines.

However, there are persistent governance a nd jurisdic-

tional hurdles that impede the United States’ ability to

deploy these “non-transmission alternatives.” Transmission

development occurs through a complex web of federal and

state processes and approvals.4 States have taken some steps

1. P F-P, S P: C C,  S G,

  F  E U 80 (2010).

2. See generally, e.g., Alexandra B. Klass & Elizabeth J. Wilson, Interstate Trans-

mission Challenges for Renewable Energy: A Federalism Mismatch, 65 V.

L. R. 1801 (2012).

3. See Nat’l Council on Elec. Policy, Updating the Electric Grid: An Introduc-

tion to Non-Transmission Alternatives for Policymakers 1 (2009).

4. See Ashley C. Brown & Jim Rossi, Siting Transmission Lines in a Changed

Milieu: Evolving Notions of the “Public Interest” in Balancing State and Re-

gional Considerations, 81 U. C. L. R. 705, 710–13 (2010) (detailing

the problems with the multi-layered approval process for transmission, in-

cluding state and sometimes local approvals).

to evaluate alternatives to local transmission solutions, but

transmission planning is increasingly an interstate, regional

issue, carried out by bodies beyond state control.5 ese

regional transmission planning processes fail to properly

consider or promote non-transmission alternatives.

is failure has major rami cations. Much expensive

new transmission will inarguably be necessary in the com-

ing decades. e ability to understand when not to build

transmission because other solutions out-perform it will be

an important, complementary part of accomplishing U.S.

energy goals.

e Federal Energy Regulatory Commission (“FERC”)

has recognized t hat non-transmission alternatives deser ve

greater attention during transmission planning and has

taken steps to better promote their consideration. FERC’s

2007 “Order 890” and 2011 “Order 1000” mandated com-

parable consideration for non-transmission alternatives,

but left the details of achieving comparability to be worked

out at the regional and local levels. Unfortunately, plan-

ners at these levels are doing no more than ma king vague

promises to “comparably consider” non-transmission alter-

natives proposed by participating stakeholders.

is Article argues that such process-focused, participa-

tory reforms are unlikely to do much to alleviate the cha l-

lenges non-transmission alternatives face. It identies three

impediments that will prevent FERC’s participatory gover-

nance reforms from facilitating comparable consideration

in practice. First, the United States has ceded the function

of transmission planning to private, transmission-focused

entities, creating institutional biases and expertise in favor

of building actual tra nsmission. Second, non-transmission

alternatives have societal benets that are not considered,

and likely cannot be fully considered, in FERC-led tra ns-

mission planning processes. ird, non-transmission alter-

natives are ineligible to have their costs allocated among

regional beneciaries—a privilege that FERC accords to

approved transmission projects.

FERC’s heavy reliance on participatory reforms to pro-

mote non-transmission alternatives pays lip service to these

alternatives without meaningfully changing planning pro-

cesses. Such a lack of t between rhetoric and act ion is

troubling. FERC declares that it has created a process for

5. See, e.g., FERC Order No. 2000, Regional Transmission Organizations, 65

Fed. Reg. 810, 810 (Jan. 6, 2000) (codied at 18 C.F.R. pt. 35) [hereinafter

Order 2000].

e full version of this Article was originally published as: Shelley

Welton, Non-Transmission Alternatives, 39 H. E. L. R.

457 (2015). It has been excerpted and updated with permission of

Harvard Environmental Law Review and Shelley Welton. Please

see the full article for footnotes and sources.

Copyright © 2016 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.