TRANSMISSION: A NEW HOPE: THE IMPLICATIONS OF THE BIDEN INFRASTRUCTURE ACT ON CORRIDOR DESIGNATION.

• Author: Kelinsky, Eddie

1. INTRODUCTION 310 II. EXPLORING AND SUMMARIZING EXISTING TRANSMISSION LAW 315 A. A Brief History of Pre-EPAct 2005 Transmission Policy 315 B. The Effect of EPAct 2005 317 C. FPA Section 216: Transmission Planning and Corridor Designation 318 D. Judicial Backlash to Section 216 320 III. THE INFRASTRUCTURE BILL 324 A. Grant Funding 325 B. Amendments to FPA Section 216 326 C. Additional Regulatory Developments 327 1. RM21-17 328 2. Building a Better Grid Initiative 329 IV. TAKINGS 329 A. Regulatory Framework 330 B. State Authority for Transmission Siting 332 1. Public Use Requirement 332 2. Police Powers 335 C. Certificate Approval Process 338 V. CONCLUSION 340 I. INTRODUCTION

   The summer of 2021 was a banner year for climate disasters. June of 2021 was the hottest on the record for the United States, surpassing the previous June of 2020 by 0.9 of a degree. (1) July 2021 was one of the hottest months on earth in recorded history. (2) Simultaneously, the Pacific Northwest experienced heat waves and temperature spikes up to 116 degrees Fahrenheit, killing hundreds across Oregon, Washington, and British Columbia. (3) California lost two million acres of land to wildfires before the Fall of 2021's "fire season," 150,000 acres short of 2020's all-time record. (4) In August, Category 4 storm Hurricane Ida made landfall in Louisiana, displacing thousands and killing at least twelve people. (5) Though New Orleans avoided a worst-case scenario, Ida swept across the Northeast and into major cities like New York and Philadelphia where it killed over fifty more people. (6) Unfortunately, these disasters are now commonplace: almost one-third of Americans live in parts of the country that experienced a weather disaster in the summer of 2021. (7) Even in regions historically assessed as the least likely to experience such extremes, the frequency and intensity of hot extremes have increased while the frequency and intensity of cold extremes have decreased. (8)

   The threads tying these disasters together is climate change. President Biden acknowledged this in a speech he gave after surveying the storm damages in New York and New Jersey: 'The nation and the world are in peril.... They've been warning us the extreme weather would get more extreme over the decade, and we're living in it real time now." (9) In the same speech, President Biden emphasized the need to modernize infrastructure, specifically naming power transmission lines as key targets for upgrade. (10) This position is not new or surprising, as infrastructure was a major component of President Biden's campaign promises. (11) So far, President Biden has largely delivered on this promise. On June 24, 2021, he announced support for a new, bipartisan infrastructure bill (12) which made it through Congress and was signed into law just five months later. (13) Though it has been greatly altered in scope and budget since its inception, (14) the Infrastructure Investment and Jobs Act (the Infrastructure Bill) names energy infrastructure and transmission as one of its most prioritized upgrades. (15)

   Policymakers and concerned citizens want to maximize and utilize the Infrastructure Bill's funding in the most efficient, logical manner possible. One popular argument for improving energy infrastructure to help curb climate change is that roughly 75% of worldwide greenhouse gas (GHG) emissions stem from the energy sector. (16) Since this is mathematically the largest piece of the GHG "pie," it makes sense to prioritize energy sector efficiency and reformation in climate mitigation efforts. Considering that the U.S. energy grid determines where energy is produced and consumed, transmission grid reform is an ideal starting point of discussion. Improving grid transmission is a critical factor in achieving reliable, emissions-free electric energy pursuant to President Biden's stated climate goals. (17)

   Regardless of one's position on infrastructure change management, the American electric energy grid is in dire need of reform. Most of the American grid was built in the 1950s and 60s with an anticipated fifty-year lifespan, and the United States experiences more power outages than any other developed country. (18) Early facilities first created and then carried the electrical power--known in the field of energy law as "load"-directly to customers. (19) This system was so inefficient that load generation facilities had to be located within a mile of the load consumer. (20) Technological advancements, transmission construction, and economies of scale increased the distance between load production and consumption, improving overall electricity output and dropping consumer prices. (21) While interconnection between facilities happened naturally over time, little overarching or unifying design philosophy existed except to base generation near high population centers "with the transmission system as the sole reliability backbone." (22) America's modern electric grid is split into three distinct regions, (23) which means it is balkanized and regulated on an inefficient, regional basis.

   The pre-1960s American energy market economically modeled public utilities as natural monopolies. (24) Natural monopolies exist in free markets where a firm can produce a good at a lower cost than competitors acting individually or in combination with one another. (25) Natural monopoly structure dictates that a single utility will produce the cheapest electricity by being vertically integrated and controlling each aspect of production. (26) For electric utilities, this meant that one company would produce the electricity, send it along its own transmission lines, and deliver it directly to its customers along its own distribution lines. Early economists and legal scholars acknowledged natural monopolies' usefulness and value. (27) In addition, Supreme Court jurisprudence blessed the use of natural monopolies with the caveat that nonobvious rights must be construed narrowly and in the public interest. (28) Soon after, the Court recognized that monopolies affecting the public interest could be regulated, formulating an early theory of natural monopolies. (29) The Court explained that private property must be regulated when "clothed with a public interest" or used in a manner making it of private consequence and affecting the community at large. (30) This model remained relatively undisturbed in the early days of energy generation. When the grid was first conceptualized and connected, generators and transmission providers were one and the same, generating and delivering energy as a vertical monopoly. (31) Over time, investor-owned utilities (IOUs), rural electric cooperatives, and federal power authorities all shared in different aspects of generating electricity and transmitting it to customers. (32) However, public utilities were generally recognized and protected as legal monopolies until the 1990s. (33)

   Creating efficient grid design must address an issue known as transmission congestion, or bottlenecking. Bottlenecking occurs when grids cannot maintain acceptable safety margins for reliability while sending power over transmission lines. (34) The grid requires a constant balance of electricity to match energy demand both instantaneously and simultaneously; (35) when too many requests for electricity threaten to overload lines, grid operators must deny some transactions. (36) Bottlenecking also occurs on a larger scale, especially on a regional basis. For example, the Western United States has the "greatest proven potential to develop renewable resources." (37) Yet the region lacks transmission capacity to sufficiently deliver energy to areas with high load demand. (38) It does not matter how many new solar and wind farms are built or how much energy new carbon-free generation facilities create if existing infrastructure cannot transmit that energy load to consumers. (39) Similarly, it does not matter how much new transmission infrastructure is built if the warming climate's extreme weather events continue to destroy wires and power lines.

   Determining and securing ideal siting locations for new transmission projects is crucial to solving bottlenecking. The U.S. can only mitigate climate change by limiting its GHG output, which requires new transmission planning and construction. This Note examines an obsolete program that allows the Department of Energy (DoE) to determine and secure land for siting transmission projects. It proposes that DoE should resurrect its corridor designation program and fund new corridor projects via the Infrastructure Bill. (40) Part II explores transmission regulation and the creation and subsequent limitations placed on transmission corridors. Part III walks through the Infrastructure Act, highlighting the ways it could fund corridors. Part IV explores takings issues on a state-by-state basis. This Note concludes that although the Federal Energy Regulatory Commission (FERC) historically lacks the funding and regulatory power necessary to enforce its backstop authority, hope exists that Congress intends to revitalize the corridor program.

2. EXPLORING AND SUMMARIZING EXISTING TRANSMISSION LAW

   In 2005, the United States Congress enacted the Energy Policy Act (EPAct 2005) (41) to promote "dependable, affordable, and environmentally sound production and distribution of energy for America's future." (42) Numerous factors pushed policymakers towards restructuring energy policy in this manner.

   1. A Brief History of Pre-EPAct 2005 Transmission Policy

      U.S. energy market growth slowed in the 1960s and improving technology made smaller generation and renewable energy more cost efficient. (43) By the 1970s, demand for electricity grew at a rate that significantly outpaced transmission investments and reached a historical low point in 1994. (44) According to one expert report, per capita electricity consumption was seven times higher in 1999 compared to fifty years prior. (45)...