Evidence-based recommendations for overcoming barriers to federal transmission permitting

Executive Summary

The United States (U.S.) stands at a critical juncture in modernizing its energy infrastructure. Multiple studies estimate that a three- to four-fold increase of transmission capacity will be required to meet burgeoning demand within the next thirty years.¹ So far, the U.S. has not kept pace with the challenge; in fact, there was an overall decrease in annual transmission investment for large powerlines (100 kilovolts [kV] and above) from 2010 to 2020,² and the nation’s transmission investment requirements will reach more than $40 billion annually by 2031.³ As discussed in this report, developing sufficient transmission to meet emerging needs will require significant changes in how transmission is planned, permitted, and financed.

The rationale for bolstering high-capacity, modernized transmission lines is multifold. First, it will provide an urgently needed boost to the grid’s resilience against disruption from extreme weather, climate change, security threats, and other challenges. Second, it will accelerate the deployment of renewable and clean energy generation, enabling decarbonization. Third, transmission plays a pivotal role in alleviating grid congestion and constraints, potentially benefiting consumers by allowing lower-priced energy to flow to areas with high wholesale electricity prices.⁴ Finally, it supports economic development by facilitating load growth that accompanies new manufacturing and industrial facilities and the proliferation of data centers.⁵ Investment in transmission is a cornerstone for achieving grid reliability, economic development, energy affordability, security, resiliency, and climate objectives. On the other hand, if the U.S. does not build more transmission, new power generation resources will remain stranded in interconnection queues, aging infrastructure will become increasingly vulnerable to failure, and growth in burgeoning economic sectors will be stifled.

There are many reasons why transmission deployment has faltered in the U.S.: planning is short-sighted and uncoordinated across regions, cost allocation is contentious, and financial realities favor incremental transmission expansion at the expense of building grid-beneficial large projects, just to name a few. Federal permitting of these long, complex engineering projects is just one of multiple challenges, and for many transmission projects may be a secondary or tertiary concern relative to other barriers. Yet, according to our research, for the 3.5% of all transmission projects that underwent the most rigorous federal environmental review in the 2010s–constituting 26% of the total miles of new powerlines–federal permitting mattered.⁶ And for many of the hundreds of new projects that must be built across the country in the coming years, barriers to effective and expeditious federal permitting could pose significant impacts. Therefore, refinement of the federal environmental review and authorization process could play a critical role in facilitating deployment of major transmission projects–the focus of this report.

The National Environmental Policy Act (NEPA) process establishes a framework whereby environmental review forms a substantial part of the record for an agency’s decision and supports greater public awareness of and participation in influencing federal actions and their potential environmental consequences. In doing so, it creates foundational community and environmental protections. NEPA implementation has evolved since the law was established in 1970, driven by updated regulations, caselaw, legislation, and government norms. The most recent changes include NEPA amendments in the Fiscal Responsibility Act of 2023 (FRA) and recent and pending updates to NEPA implementing regulations. As of the date of this report’s publication, the Department of Energy is finalizing its Coordinated Interagency Transmission Authorizations and Permits (CITAP) Program, providing a framework for interagency coordination for transmission project environmental reviews, at the developer’s request. The full report discusses how our recommendations align with these ongoing changes to the federal environmental review process.

As it currently stands, the permitting process is frequently protracted and complex even without accounting for preparatory work required before a formal application filing. There is growing consensus across the political spectrum that processes need to be improved and strengthened, as recent and ongoing reforms make evident. However, there is currently little evidence and consolidated information to ensure these reforms are as impactful as possible for transmission permitting.

In response to this gap, the Niskanen Center (Niskanen) and Clean Air Task Force (CATF) embarked on a comprehensive study, developing an extensive evidentiary record through the compilation of a database, interviews with developers and federal officials, and in-depth case studies of identified transmission projects. This endeavor yielded critical insights, culminating in a set of recommendations addressing the identified challenges.

The results of Niskanen and CATF’s analysis underscore the importance of a reasoned approach to improving transmission permitting, while protecting the core functions of NEPA–the cornerstone of the federal permitting and environmental review process–including its coordination and information-sharing provisions which support early identification and resolution of potential conflicts during environmental review. 

It is imperative that any reforms to the federal environmental review and permitting processes for transmission be conscientiously designed to safeguard and empower impacted communities, particularly those communities historically marginalized or disproportionately affected by legacy energy infrastructure. Our recommendations are predicated on the principle that enhancing federal permitting processes need not degrade community protections or environmental integrity. On the contrary, neglecting community engagement or diminishing protections fuels uncertainty, prolongs timelines, and undermines the long-term feasibility of proposed transmission projects. The path forward is one of balance, ensuring a sustainable and inclusive energy transition. 

Our recommendations, listed below, coalesce around three principal themes. 

1. Improving federal agency coordination, cooperation, and capacity

1.1: The President should continuously recognize transmission infrastructure permitting as a national priority. The Administration should establish clear transmission deployment goals and priorities to galvanize a shared vision across the Executive Branch. This approach should be reinforced by regular Cabinet-level alignment and coordination, use of Permitting Council authorities, and assignment of a transmission director to oversee transmission efforts. 

1.2: Congress and agencies should enhance transparency in project review and project timelines. An iterative, agile process with consistent communication among agencies, developers, and stakeholders is needed to identify and address concerns early and often. The permitting process should include interagency coordination during the pre-application phase.

1.3: Congress should invest in interagency coordination, interagency cooperation, and agency capacity. Senior agency personnel who report directly to agency decision-makers should be assigned to each major project under environmental review. Agency staff should be trained on the nuances of transmission infrastructure and interagency staffing should be dedicated to joint-agency projects. Solutions to interagency coordination shortfalls that only expand agency function or authority without providing appropriate investment to support agency coordination, cooperation, and capacity will be insufficient. Finally, Congress and agencies should continue to modernize permitting review processes, including by investing in digital tools and data platforms.

1.4: The Department of Energy (DOE), the Federal Permitting Improvement Steering Council (“Permitting Council”), and other agencies should require transparency and accountability through use of the Permitting Dashboard. DOE can recommend nationally and regionally significant projects, including all transmission projects requiring Environmental Impact Statement (EIS) review, be added to the Dashboard. Projects should be on the Dashboard before the Notice of Intent to prepare an EIS is filed.

2. Streamlining interactions among sovereign authorities

2.1: Federal agencies, with Congressional support, should enhance state and Tribal capacity to conduct and participate in permitting processes. Federal agencies should take a leading role in boosting state and Tribal capacity, through dedicated grant programs, technical support, and best practices sharing. Federal agencies should conduct earlier and more comprehensive engagement with Tribes, on par with federal engagement with states and developers.

2.2: Congress should consolidate permitting and siting authority for multi-state projects that are in the national public interest. Congress should grant FERC comprehensive and plenary permitting and siting powers for key transmission projects. The Streamlining Interstate Transmission of Electricity (SITE) and Clean Electricity and Transmission Acceleration (CETA) Acts serve as possible legislative models.

2.3: States should harmonize their permitting processes to create regulatory efficiency and allow more concurrent processes. Though this report centers on federal initiatives, our research unearthed opportunities for optimizing project timelines through more harmonized state permitting processes with those mandated federally. Joint state and federal environmental reviews, incorporation by reference of state or federal environmental reviews by the other jurisdictions, and project-specific memoranda of understanding (MOU) are opportunities to improve regulatory alignment. States may also participate in federal FAST-41 reviews under an MOU. To avoid unnecessary inefficiencies inherent in sequential review processes, states should revise their need and environmental review processes to be concurrent with federal reviews.

2.4: The Permitting Council should work with Chief Environmental Review and Permitting Officers (CERPOs) to advance projects and coordinate with and support local authorities. The essential NEPA function of providing information to states, Tribes, and other decision-makers provides an opportunity for CERPOs to support local authorities in making timely permitting decisions.

3. Improving the environmental review and permitting process

3.1: Agencies and developers should conduct early, sustained, and meaningful stakeholder outreach. Timely, meaningful engagement with impacted communities must be conducted as a part of project planning, approval, and post-implementation monitoring. Government-to-government interactions with Tribes, distinct from other stakeholder consultations, are essential for respecting sovereign authorities and ensuring projects avoid unnecessary opposition and delays, highlighting the need for federal agencies to facilitate these interactions effectively from the project’s inception..

3.2: Agencies should implement robust pre-filing processes. The pre-filing process provides an opportunity to constructively debate, raise environmental and community issues, and consider alternative routes, and can streamline reviews once applications are filed. Agencies should implement agency-specific pre-filing processes and encourage applicants to opt in to pre-filing.

3.3: Developers and agencies should engage in early and collaborative identification of alternatives to be analyzed in an environmental impact statement (EIS). Project alternatives should be identified as early as possible in a collaborative process that includes relevant federal agencies, the project developer, state and local officials, Tribes, other stakeholders, and the public. Project developers and agencies can initiate and lead alternative route identification and evaluation efforts, and CEQ guidance can support these efforts.

3.4: Agencies should carefully expand categorical exclusions for transmission development. Appropriate use of categorical exclusions with adequate environmental and community safeguards for much-needed transmission projects with no significant impacts can accelerate deployment of transmission. Available categorical exclusions should be expanded for projects within existing project rights-of-way that are known to have no significant impacts.

3.5: Agencies should expand the use of programmatic EIS (PEIS) reviews for transmission infrastructure projects, and Congress should ensure that agencies have sufficient capacity to do so. PEISs can be used to identify environmental impacts common to transmission lines, and can be applied where these impacts are “well understood” given the location or nature of particular projects. PEISs could be prepared alongside Independent System Operator/Regional Transmission Organization transmission development plans. Congress should provide sufficient funding to ensure data, staff, and other resources are available to prepare useful and sufficiently detailed PEISs.

3.6: DOE and FERC should minimize environmental review redundancy for the National Interest Electricity Transmission Corridor (NIETC) process. DOE, FERC, and relevant environmental agencies must collaborate closely to streamline environmental review processes in NIETCs, ensuring that environmental protections are upheld without unnecessary duplication of efforts.

Introduction and Motivation

The U.S. must rapidly expand transmission infrastructure

The United States’ electric grid is aging and needs to be updated and rapidly expanded in order to meet emerging challenges. Most of the country’s transmission system was built in the 1950s and 1960s, with an expected lifespan of 50 years. Now, nearly 70 percent of transmission lines are more than 25 years old.⁷ The U.S. transmission system was also not designed to accommodate the integration of new, cleaner generation from a wider variety of sources. As the system ages, it also becomes increasingly vulnerable to the impacts of climate change, including more frequent severe weather. Outages may become more common, with disproportionate impacts on the most vulnerable populations.⁸

Investing in modernized, resilient transmission infrastructure supports grid reliability, lowers energy costs, facilitates economic development, and reduces the proportion of household income spent on energy needs.⁹ Updating and expanding the grid also enhances grid resilience by allowing for integration of new, geographically- and resource-diverse renewable generation. As diverse and dispersed resources are brought online, they can protect the grid and compensate for losses in other regions, including those due to extreme weather, if there is sufficient inter-regional transmission capacity.¹⁰ This, in turn, reduces congestion and curtailment, reducing costs associated with both. Updating the grid also presents opportunities to modernize grid security, as cyber threats can increasingly wreak havoc on transmission grids, shutting down critical infrastructure.¹¹ Finally, grid upgrades support economic development by facilitating load growth that accompanies new manufacturing and industrial facilities and the proliferation of data centers.¹²

Transmission investment also supports the achievement of U.S. decarbonization targets.¹³ These targets are coupled with aggressive electrification goals, including plans to electrify significant amounts of transportation, homes, businesses, and industry by 2050.¹⁴ Achieving these ambitious goals will require replacing aging fossil-fuel generation with modern clean energy generation and expanding energy storage.¹⁵ But transmission is a crucial limiting factor for adding new generation and storage to the grid, so these projects may be delayed or face additional costs when there is inadequate supporting transmission to bring new resources online.¹⁶ Therefore, transmission and generation capacity will need to be expanded in tandem.¹⁷ 

The U.S. has failed to build critical transmission infrastructure at the pace it needs, despite continued acknowledgement of the challenge

In the face of the immense scale of needed transmission upgrades and modernization, the United States has not kept up with required infrastructure investments. The Department of Energy (DOE), in its 2023 National Transmission Needs Study, found that there was an overall decrease in annual investment for transmission projects larger than 100 kV from 2010 to 2020.¹⁸ Similarly, a study of planned interstate, bulk power transmission projects from 2010 to 2020 in the western United States found that few projects were built compared to expectations in a 2010 projection of planned projects.¹⁹ Although spending has increased slightly in recent years, the U.S. is still experiencing chronic public and private under-investment in transmission, and the nation’s transmission investment requirements will reach more than $40 billion annually by 2031.²⁰ 

Meanwhile, there has been a record amount of new generation and storage capacity added to interconnection queues and unable to connect to the grid.²¹ A 2023 study from Lawrence Berkeley National Laboratory found that there are more than 1,000 gigawatts of clean energy stuck in interconnection queues due to transmission constraints and poor interconnection processes, and that the average time projects spend in interconnection queues has grown substantially to five years, compared to three years in 2015 and less than two years in 2008.²² Long waits and lack of transmission capacity contributed to the fact that only about 20 percent of projects requesting interconnection over the period from 2000-2017 actually reached commercial operation by the end of 2022.²³

Several presidential administrations have acknowledged this critical need for more transmission, with some proposing solutions at the federal level to address the problem. For example, in 2001, then-Deputy Secretary of Energy Francis Blake testified to Congress that “investment in new transmission capacity has failed to keep pace with growth in demand and with changes in the industry’s structure…Since the transmission system is both Interstate and International, regulation of the grid is a federal responsibility.”²⁴ He noted that legislation “should provide for federal siting of transmission facilities that are in the national interest.”²⁵

In the Energy Policy Act of 2005 (EPAct), signed into law by President George W. Bush, Congress created section 216 of the Federal Power Act (FPA) with the goal of increasing the buildout of important electric transmission infrastructure. This statute granted the Federal Energy Regulatory Commission (FERC) authority to approve transmission lines (i.e., “backstop authority”) if states withheld approval for more than one year or lacked authority to consider interstate benefits, or if the utility proposing the transmission line did not qualify to apply for a permit because there were no end-use in-state customers.²⁶ The Infrastructure Investment and Jobs Act (IIJA), signed into law in November 2021 by President Biden, expanded and clarified FERC’s backstop authority under section 216 and gave DOE more authority to help incentivize projects, including on public-private partnerships and loans.²⁷ The Inflation Reduction Act (IRA), which became law in August 2022, also made available direct loan programs for transmission project development.²⁸

Section 216 of the FPA also gave DOE power to coordinate all applicable federal authorizations, Tribal consultations, and state agency reviews required to designate National Interest Electric Transmission Corridors (NIETC) and construct needed transmission lines in those corridors. DOE intends for transmission lines constructed in NIETCs to be eligible for public-private partnerships and loan programs under the IRA and IIJA,²⁹ as well as FERC backstop siting authority if the necessary conditions are met.

Despite recognition from several administrations of the need for more transmission and significant policy levers available, the federal government has not yet successfully leveraged its authorities to deploy transmission at the necessary pace and scale. For example, the potential benefits to transmission projects from NIETC designations, including FERC’s backstop authority, have yet to be fully realized after FERC’s interpretation of its backstop authority was partially struck down and its transmission-related regulations implementing the National Environmental Policy Act (NEPA) vacated,³⁰ and DOE’s initial designation of corridors was vacated for failing to comply with NEPA.³¹ DOE and FERC are currently developing regulations pursuant to DOE’s updated NIETC authorities from IIJA. The crux of the challenge does not lie entirely within the bounds of statutory authority, but also in the practical application and implementation of these policies.

While the federal government can provide powerful tools and funds to foment change, it must work with states, Tribes, and local authorities to deploy transmission successfully. But providing funds without technical assistance will not address the most fundamental challenges to transmission permitting. Strong federal leadership and guidance can help build state capacity and knowledge on the intricacies of high-voltage, long-distance transmission permitting and ensure effective coordination with the right entities on the complexities of the permitting process.

Successful deployment of transmission faces significant challenges, including federal permitting

Contributing to the lack of recent investment is the fact that deployment of planned and financed transmission faces significant challenges, including effective implementation of federal environmental review and permitting processes. Given the diversity of jurisdictional permit and decision-making authorities, the process of obtaining permits to develop new interstate transmission lines or to upgrade existing interstate lines is inherently lengthy, complicated, and costly. Transmission projects that are located entirely on federal lands, that cross federal lands, or that involve federal funding or authorizations are subject to environmental review under NEPA and other federal authorities.³² Federal permitting must also be coordinated with state, Tribal, and local governments with the authority to permit and site transmission projects. While interagency environmental review coordinated through NEPA can help foster decisions that reduce adverse project impacts, existing barriers to efficient and effective decision-making often prevent timely permitting decisions. 

While there is a plethora of proposed federal permitting reforms, there is too little evidence about which specific solutions are most likely to meaningfully expedite transmission expansion. That is the gap Niskanen and CATF have sought to begin filling with this study. Transmission faces many challenges beyond federal permitting, including difficulties with the planning process, cost allocation, disjointed and overlapping siting authorities, and opposition. Although these challenges are interrelated, this report’s underlying analysis and findings focus on federal environmental review and permitting processes. 

This paper begins by presenting an overview of and legal background on the permitting status quo and barriers to transmission development. Then, we present our findings and propose informed solutions that would meaningfully expedite transmission expansion.

Overview of and Legal Background on the Permitting Process for Transmission Development

The permitting process for the construction of transmission facilities is convoluted, multi-layered, and project-specific. Most transmission projects require environmental review and a multitude of permits or authorizations. The number of approvals from different authorities (federal, state, Tribal, and local) generally expands as the size and jurisdictional reach of the transmission project increases. This section begins by summarizing the NEPA process, then notes frameworks for coordination among decision-making authorities, and finishes with a discussion of recent federal efforts to facilitate coordination of environmental review and permitting.

Transmission projects face numerous permitting requirements, carried out in conjunction with NEPA and its framework for interagency coordination

NEPA was established in 1970 as a tool to enable transparency and informed decision-making and ensure that all federal agencies consider the reasonably foreseeable environmental effects of proposed federal actions before making final decisions, including whether to fund, permit, or authorize a project.³³ This was, in part, a response to past failings by government and industry to take into account the impact and externalities of human impacts on the environment.³⁴ The NEPA process establishes a framework whereby consideration of environmental impacts forms a substantial part of the record for an agency’s decision and supports greater public awareness of and participation in influencing federal actions and their potential environmental consequences. Effective environmental review is a key component of responsible development as it, ideally, enlightens the decision-maker and the public as to whether a proposed activity will significantly affect the human environment, and whether mitigation measures would avoid, minimize, or compensate for those effects.

The Council on Environmental Quality (CEQ), established by NEPA, advises on NEPA implementation, is responsible for government-wide NEPA implementing regulations, and plays a coordinating role across agencies.³⁵ Agencies have also prescribed their own regulations for integrating the NEPA process of environmental review into their decision-making.³⁶ For actions not expected to have significant adverse effects on the environment, agencies may conduct a less-detailed environmental assessment (EA) to document impacts and mitigation measures which may result in a Finding of No Significant Impact (FONSI) for the proposed action.³⁷ Other actions are “categorically excluded” from environmental analysis if an agency has found that the category of action is not expected to have significant adverse effects absent extraordinary circumstances.³⁸ Agency NEPA procedures can identify these categories of actions that, under normal circumstances, will not have a significant environmental impact, and require action-specific review for extraordinary circumstances that warrant additional scrutiny.³⁹

For those projects expected to have significant adverse effects on the quality of the human environment or where an EA determines significant effects are likely, an environmental impact statement (EIS) must be prepared that considers the proposed action, action alternatives, and required mitigation measures, among many other topics.⁴⁰ The vast majority of transmission lines do not undergo an EIS, typically because their development does not involve a major federal action that would require a NEPA review, but those that do are more likely to be longer interstate lines and make up a significantly larger proportion of new line miles built. The 33 lines in our dataset compiled for this effort with an EIS in progress or completed between 2010 and 2020 make up 3.5 percent of all new transmission lines built in that period, but 26 percent of all new line miles built in the decade.⁴¹

Importantly, NEPA review for infrastructure projects can serve as a means for coordinating permitting with numerous federal, state, and Tribal agencies and provides a basis for decisions by cooperating agencies. How federal agencies approach the permitting process for transmission projects varies tremendously. Environmental review and approvals for transmission projects must be coordinated among the federal agencies and state, Tribal, and local authorities with jurisdiction. The specific authorizations required for a project depend on the jurisdictional nexus and on land use, ownership, financing, and geography. Each state follows different procedures for approving transmission infrastructure, and interstate lines must comply with the legal requirements of each state. This leads to a complex permitting pathway for a transmission line crossing state or Tribal boundaries and different types of federal land. Each step of approvals may result in “critical adjustments to planning, cost allocation, and siting processes,” and prompt re-evaluation of whether the project is worth advancing.⁴²

The NEPA process provides a procedure for structuring interagency coordination and consultation, requiring concurrent and integrated environmental impact analyses and related surveys and studies mandated by all other federal environmental review laws and Executive Orders applicable to the proposed action, including the Fish and Wildlife Coordination Act,⁴³ the National Historic Preservation Act (NHPA),⁴⁴ and the Endangered Species Act.⁴⁵ NHPA procedures for coordination with NEPA encourage agencies to coordinate compliance with NHPA Section 106 consultation as early as possible in the NEPA process, even to the point of NEPA process substitution for Section 106 consultation.⁴⁶

Any federal agency that has jurisdiction or special expertise with respect to the environmental impact involved must be consulted, and their comments on the EIS must be made publicly available.⁴⁷ An essential purpose of NEPA is to make information available to decision-makers and potentially impacted communities and to coordinate that information-sharing. In this capacity, NEPA acts as a valuable public resource; such information would not necessarily be publicly available or accessible otherwise. Where there is more than one agency involved, one or more federal agencies may act as the “lead agency” or “joint lead agencies” and coordinate the NEPA effort. Because linear infrastructure often overlaps jurisdictions, state, Tribal, or local agencies may also serve as joint lead agencies, and these or other federal agencies may also participate as cooperating agencies.⁴⁸

The purpose of the lead, co-lead, and cooperating agency framework in CEQ’s NEPA regulations is to ensure efficient and consistent environmental reviews.⁴⁹ CEQ also encourages active involvement by non-federal cooperating agencies, and proposed revisions to CEQ’s NEPA regulations would expand provisions for interagency coordination to involve state, Tribal, and local agencies early in the scoping and development of EISs.⁵⁰ In a recent proposed rulemaking, discussed later in this report, CEQ noted that early conversations and coordination, in advance of receipt of a complete application, “can improve efficiencies in the NEPA process and ultimately lead to better environmental outcomes.”⁵¹

In recent and pending updates to NEPA’s implementing regulations,⁵² and amendments to NEPA in the Fiscal Responsibility Act of 2023 (FRA),⁵³ these core functions of NEPA have been preserved. The FRA amendments, which represent the most substantive amendments to NEPA since its enactment in 1970, codified many aspects of existing NEPA practice. One potentially impactful change from the FRA is a new definition of a “major Federal action” as “an action that the agency carrying out such action determines is subject to substantial Federal control and responsibility.”⁵⁴ The statute also includes a significant codification of some of the case law that has developed under NEPA. The amendments narrow the scope of NEPA applicability and explicitly exclude projects “with no or minimal Federal involvement where a Federal agency cannot control the outcome of the project,” loans or loan guarantees where the agency “does not exercise sufficient control and responsibility over the subsequent use of such financial assistance or the effect of the action,” and Small Business Administration loan guarantees and other financial instruments.⁵⁵ The FRA amendments also codified time limits from the 2020 CEQ regulations,⁵⁶ including that an agency must complete an EIS no later than two years after determining that an EIS is required and an EA no later than one year after determining that an EA is required, unless an agency determines that without additional time it cannot meet such deadlines and consults with project applicants on the deadline extension.⁵⁷ The amendments further provide a project sponsor with rights for judicial intervention if an agency allegedly fails to meet applicable deadlines.⁵⁸ The practical effect of these amendments remains to be seen and potentially could be counterproductive.

Recent efforts to facilitate coordination among permitting authorities have focused on improving transparency and reducing timelines

While NEPA provides a broad framework for intergovernmental coordination, additional statutory and agency measures aim to streamline permitting further. This section briefly describes some of these measures.

Title 41 of the FAST Act

Title 41 of the FAST Act (FAST-41),⁵⁹ passed in 2015, established the Federal Permitting Improvement Steering Council (“Permitting Council”), an interagency council of Deputy Secretaries whose Presidentially-appointed Executive Director is charged with maintaining project timelines and resolving interagency disputes. Under FAST-41, each agency is also required to designate Chief Environmental Review and Permitting Officers (CERPOs), who report to that agency’s Deputy Secretary on environmental reviews and authorizations.⁶⁰ FAST-41 also established the Permitting Dashboard, an online database to track the status of federal environmental reviews and authorizations for covered projects.⁶¹ 

FAST-41 also reduces the statute of limitations for lawsuits on covered projects from six to two years. It also narrows legal standing on NEPA claims to not only parties who submitted comments during the project’s environmental review but also provided sufficiently detailed comments to alert the lead agency to specific issues that might be pursued in court.⁶² This aims to limit uncertainty arising from potential litigation in opposition to a project.

Under FAST-41, all federal and state entities, Tribes, and localities “likely to have financing, environmental review, authorization, or other responsibilities with respect to the proposed project” will be invited to become participating or cooperating agencies.⁶³ A cooperating agency has authority over or special expertise relevant to a covered project, and is commensurate with the same designation as a “cooperating agency” under NEPA.⁶⁴ FAST-41 also allows federal and state entities, Tribes, and localities that do not have jurisdiction or authority over a project, but may have other interests or responsibilities, to elect to participate in the permitting process. If, for example, a state elects to participate in the FAST-41 process, a memorandum of understanding (MOU) would be developed that includes a coordination plan, setting a permitting timetable, and subjecting all relevant state agencies to FAST-41 requirements consistent with state law. 

According to the Permitting Council, FAST-41 has saved project sponsors over $1 billion through improvements in permitting efficiency, enhanced coordination, and avoidance of communication failures.⁶⁵ FAST-41 was cited as one of the reasons why an EIS for the Ten West Link transmission line in Arizona and California was completed in a relatively quick 2.5 years.⁶⁶ 

When Congress passed FAST-41, it was subject to a seven-year sunset clause. The IIJA made FAST-41 permanent law and amended FAST-41 to incorporate more aggressive timelines, including schedules that do not exceed two years “to the maximum extent practicable, and consistent with applicable federal law.”⁶⁷ Federal agencies must also issue a record of decision (ROD), a public final document stating the outcome of the NEPA process, within 90 days of issuance of a final EIS. To encourage efficiency, the IIJA also required preparation of a single, joint, interagency EIS and subsequent joint ROD.The IIJA shortened the timeline to identify all federal and non-federal agencies with decision-making authority with respect to proposed projects from 45 to 21 days. The law also made it more difficult to amend permitting schedules, requiring consultation with the Executive Director of the Permitting Council before any consultation among parties as to the permitting timetable. However, as highlighted elsewhere in this report (see below Recommendation 1.2), mandated or shortened timelines do not resolve key factors that determine the success of federal permitting—leadership, coordination, capacity, and effective implementation.

Interagency Memorandum of Understanding on Federal Power Act section 216(h)

Under the FPA section 216(h), created by EPAct, DOE has the authority to act as lead agency for federal authorizations and environmental reviews conducted for electric transmission lines.⁶⁸ Under this authority and following a 2009 interagency MOU, DOE established a process in 2016 that allows developers to convene with federal agencies before submitting a formal permitting application.⁶⁹ The Integrated Interagency Pre-Application (IIP) process also identifies an agency to take the lead on NEPA review and allows developers to prepare an early environmental assessment that can inform the federal effort.⁷⁰ Developers can invoke the optional IIP process for interstate high-voltage projects that cross jurisdictions administered by more than one federal agency, or projects that cross at least one federal jurisdiction and where federal financial assistance will be provided.⁷¹

In May 2023, nine federal agencies signed an updated MOU to implement FPA section 216(h), coordinate federal review of transmission projects, and to expedite siting, permitting, and construction.⁷²  In signing the MOU, the “signatory agencies recognized that insufficient budgetary resources, lack of agency staff, and limited mechanisms for coordination across federal agencies have contributed to delays in permitting timelines for transmission facilities.”⁷³

The 2023 MOU aims to further improve coordination between federal agencies as well as between agencies, states, and Tribes. The MOU allows DOE to designate the agency that has the “most significant interest” in the lands or waters traversed by a transmission line as co-lead agency for NEPA review. The terms of the MOU also require the Secretary of Energy to update the DOE regulations implementing 216(h) to: (1) make participation in the IIP a precondition for participation in the coordinated 216(h) process; (2) require submission of resource reports and public engagement plans for affected communities; (3) require public engagement with Tribes and communities affected by the project; and (4) harmonize the IIP process, 216(h) implementing regulations, and the FAST-41 process. In early August 2023, DOE announced a proposed rule to update its regulations accordingly.⁷⁴ 

The new MOU is not limited to projects sited on federal lands but would include, for example, projects for which federal financial assistance would be provided (similar to qualifying projects under the IIP process). For all projects, DOE will establish prompt and binding intermediate milestones and ultimate deadlines for decisions on federal authorizations and related environmental reviews, including a final decision on all federal authorizations within two years of publishing a Notice of Intent (NOI) to prepare an EIS. Any disagreements among agencies will be elevated to the chair of CEQ and director of Office of Management and Budget (OMB) for prompt resolution.

Research Findings: Data and Litigation Analysis

Political actors on both sides of the aisle recognize that large-scale transmission projects take too long to site, permit, and construct.⁷⁵ In an effort to provide ambitious, evidence-based, politically durable solutions, Niskanen and CATF engaged in months-long information-gathering and analysis efforts, including quantitative and legal assessments of recent transmission project permitting processes. These efforts intended to establish insights to inform ongoing dialogues around transmission permitting and set a fact-based context for our recommendations.

Contextualizing federal permitting of electricity transmission through data analysis

To better inform the ongoing dialogue regarding transmission permitting, we gathered and analyzed a dataset of major new high-capacity transmission lines.⁷⁶ Our dataset contains 37 electric transmission lines that had an EIS environmental review in progress or completed between 2010 and 2020. These data were derived from various sources, including academic papers, federal agencies, and inventories accessible to the public. Because there is no central database for transmission projects, this dataset cannot be assumed to definitively represent all electric transmission projects that meet the criteria; some eligible lines may have been unintentionally overlooked. 

Figure 1: Map of the 33 Completed Lines in the EIS Lines Dataset, by Voltage Class (4 of the original 37 lines were canceled and therefore not included).

The following criteria determined the inclusion of the 37 lines included in our analysis:

• New transmission lines only (excludes rebuilds and upgrades)
• Federal Review Status: Projects that had an EIS in progress or completed between 2010 and 2020 (meaning the project published an NOI, FEIS, ROD, or was in the process of having an EIS prepared at some point during the decade)
• Voltage of at least 115 kV
• Line length of at least 5 miles
• At least one domestic endpoint

Of the 37 lines, four lines were canceled, two projects have yet to release an ROD, and one never published an NOI. Evaluating the timeline for the remaining 30 projects (Figure 2), Niskanen and CATF found that: 

• EIS reviews took on average 4.3 years between publication of an initial NOI and the release of a ROD, with a median review time of 3.7 years. 
• Of the 17 large transmission lines (longer than 100 miles and above 345 kV) that were not canceled, the average NOI to ROD timeline was 4.7 years — roughly comparable with the timelines CEQ found for all federal environmental reviews. 

In 2020, CEQ examined 1,276 EISs for which a Notice of Availability of a final EIS was published between January 1, 2010 and December 31, 2018, and for which a ROD was issued by June 18, 2019. CEQ found that “across all Federal agencies, the average (i.e., mean) EIS completion time (from NOI to ROD) was 4.5 years . . . and the median was 3.5 years.”⁷⁷ These timelines exclude any pre-application processes, for which data are typically not publicly available.

In addition, our review found:

• 17 of the 30 lines completed federal environmental permitting review under NEPA within four years. 
• EIS reviews ranged from 1.2 to 11 years. 
• Transmission projects that had an EIS prepared between 2010 and 2020 made up 3.5% of projects, but 26% of total domestic transmission line miles.

Figure 2: Time to Complete NEPA EIS Review (NOI to ROD)

Understanding the impact of litigation and opposition on projects undergoing federal permitting

Legal challenges are commonly cited as a major factor contributing to delays or cancellations of transmission line projects.⁷⁸ However, research on the true impact of litigation on project delay or cancellation is limited.⁷⁹ Our in-depth analysis of 37 high-capacity transmission line projects considered whether litigation and significant non-litigation opposition is correlated with project delay. We found that the majority of projects in our analysis (54%) did not face litigation or substantial non-litigation opposition (Figure 3). Of the projects analyzed, around a quarter (27%) faced litigation or significant non-litigation opposition and were either delayed or canceled.

In addition, our review found that:

• The majority of projects proceeded to completion or are in progress, despite litigation and opposition. Notably, of the 37 lines investigated, only four were canceled.
• Most lawsuits filed by project opponents were decided in favor of the project. We identified 18 lawsuits opposing the projects, and only two were resolved in favor of opponents to a project (both of those lawsuits involved a single project, which has been constructed). One lawsuit remains pending as of the time of this analysis.⁸⁰ 
• The analysis also considered the impact of preliminary injunctions,⁸¹ finding that courts almost always denied motions for preliminary injunctions filed by project opponents. Of the seven preliminary injunction motions identified, five were denied, and one was granted but never went into effect. One motion remains pending at the time of this analysis.⁸²

These findings are consistent with the conclusion that, although litigation and opposition can influence delays and cancellations, factors that cause delays likely compound and it is difficult to draw a throughline from litigation to the extended timelines common for transmission line projects. Addressing these challenges requires a multifaceted approach to ensure greater efficiency and effectiveness in the permitting process. The evidence-based recommendations in this report are tailored to address concurrent challenges in the permitting process and ensure greater efficiency in federal environmental review.⁸³

Figure 3: Percentage of transmission projects by litigation and opposition status.  (N=37)

Research-Based Recommendations to Improve Federal Transmission Permitting

In addition to our litigation and quantitative analyses, Niskanen and CATF evaluated case studies of transmission projects undergoing federal permitting and conducted extensive stakeholder interviews.⁸⁴ The sum total of these efforts intended to establish an evidentiary record of permitting challenges faced by electric transmission projects and fact-based insights into: (1) what prevents the pace and scale of transmission buildout needed to achieve a reliable, resilient, clean grid; (2) the levels (federal, state, Tribal and local) and/or nexuses (e.g., developer-agency coordination) at which transmission permitting faces critical hurdles; and (3) concrete opportunities to improve transmission permitting, focusing on federal environmental permitting. 

Niskanen and CATF’s research identified three key themes, into which we categorize our summary recommendations. These themes are: (1) the importance of improving federal agency coordination, cooperation, and capacity; (2) the need for clarifying interactions between federal, state, local, and Tribal authorities; and (3) the need for improvements in the environmental review process.

Improving federal agency coordination, cooperation, and capacity

From in-depth review of 37 transmission projects,⁸⁵ supporting data analysis of the federal environmental transmission permitting process, and conversations with transmission stakeholders,⁸⁶ Niskanen and CATF found that a lack of federal agency leadership and prioritization of transmission, coupled with insufficient support for agency coordination, cooperation, and capacity, contributes to longer permitting timelines. 

Although the NEPA process offers avenues for interagency coordination and collaboration (see above Section B.1), a lack of sustained engagement and focus on project timelines by an agency until “its turn” in the regulatory review process results in conflicts, duplicated efforts, and delay. This issue stems from the linear, or “waterfall,” approach to regulatory review where one agency’s activities begin upon the completion of the actions of an agency upstream in the process.⁸⁷ If potential conflicts are wrestled with earlier in the process, i.e., before an agency waits for “its turn” on a project approval, issues could be resolved or avoided altogether. Further, insufficient and inconsistent staffing levels and a lack of comprehensive transmission infrastructure expertise can create bottlenecks in the NEPA process.⁸⁸ 

For example, the TransWest Express and SunZia Southwest transmission projects both suffered from a lack of consistent federal agency coordination, cooperation, and capacity that contributed to longer permitting timelines. In the case of TransWest Express, although routine coordination calls were held weekly and monthly for more than five years, “major issues remained unresolved as decisions were only finalized if there was a ‘consensus.’”⁸⁹ In testimony before the Senate Energy and Natural Resources Committee, Roxane Perruso of The Anschutz Corporation stated the lack of timely issue resolution “substantially increased permitting time and costs” and could have been avoided with more senior-level agency involvement.⁹⁰ 

Similarly, in development of the SunZia Southwest transmission line, the Department of Defense raised concerns regarding impacts of the line on the White Sands Missile Range. The project was controversial and the mitigation measures included in the 2015 ROD issued by Bureau of Land Management (BLM) did not settle the Department of Defense’s concerns. After the 2016 presidential election, the Department of Defense stated that national security interests and operations would be hampered by the transmission line and that the developer should pursue potential alternative routes farther from the missile range. Due in part to these concerns, in 2019, the developer performed a siting study to evaluate other routes, and in 2020, submitted an application to amend the right-of-way. Beginning July 29, 2021, SunZia was covered under FAST-41⁹¹ and the project was closely monitored by federal agencies and the Permitting Council. BLM (the lead agency) hosted weekly meetings with the federal cooperating agencies in 2021, leading up to the preparation of the Draft EIS for the amended application, and hosted quarterly meetings with all cooperating agencies, including the non-federal agencies.⁹² The increased collaboration under the auspices of the Permitting Council ultimately led to permits being granted in 2023, and a ROD issued in May 2023, less than two years after coverage under FAST-41.⁹³

Improving federal agency coordination and capacity is fundamental to a more streamlined and effective transmission permitting process. Given the importance of high-voltage, long-distance transmission lines to the security, resilience, and decarbonization of the electric grid, the executive branch should continue to push transmission development as a high-visibility priority for federal agencies. Congress can provide funding for more dedicated agency staff, and DOE, the Permitting Council, and other entities can push for transparency, conflict resolution, and coordination around permitting within their purview.

Recommendation 1.1: The President should continuously recognize transmission infrastructure permitting as a national priority

Executive leadership, spearheaded by the President, plays a pivotal role in establishing and championing strategic national priorities. By actively prioritizing transmission infrastructure, the President can significantly influence the entire executive branch and ensure that every Cabinet secretary, political appointee, frontline manager, and permitting official in the country understands that transmission permitting is a daily priority and interagency conflicts should be avoided or effectively resolved.

The President should establish clear transmission deployment goals and priorities to galvanize a shared vision and concerted effort across the executive branch. This effort should be reinforced by regular coordination at the Cabinet level, facilitation of departmental coordination, and mobilization of support for delivering on federal goals. 

Through regular Cabinet-level alignment, and fully leveraging the authorities of the Permitting Council, the President should drive whole-of-government follow-through on the planning, establishment, and construction of long-distance lines of national importance⁹⁴ undergoing federal environmental reviews. Doing so requires clarifying roles and responsibilities, providing the institutional knowledge and support to act on existing authorities, and ensuring that transmission budget requests and appropriated funds are strategically deployed to deliver outcome-driven success. This encompasses essential elements such as the staffing and training needed to implement federal priorities effectively. Executive leadership is also vital for addressing regional and interregional issues, necessitating regular coordination between and among federal agencies, Tribal Nations, state and local governments, and regional grid planning organizations.⁹⁵

To actualize a coordinated transmission effort, the White House should appoint a transmission director with specific authority to oversee these efforts. This director will not only ensure alignment across agencies but will also play a critical role in educating existing agency staff on how to build transmission equitably and expeditiously. 

Transmission projects are ripe for conflict – between landowners and developers, among agencies, and among federal, state, Tribal, and local authorities. Often, delays in permitting arise due to interagency conflicts that are not identified or resolved in a timely manner. A senior official in the Executive Office of the President should have the authority to assist in resolving interagency disputes, and the tools and gravitas to successfully advance projects. 

A noteworthy example of executive leadership is the Biden administration’s clear setting of goals, provision of support, and whole-of-government approach to offshore wind development. This approach has yielded significant milestones, including the approval of six offshore wind farms, four offshore wind lease auctions,⁹⁶ power reaching the grid from the first and second utility-scale offshore wind farms in the United States,⁹⁷ and proposed regulatory reforms to modernize offshore wind development.⁹⁸ The President should similarly elevate transmission infrastructure modernization as a national priority. And, as administrations change, outgoing officials should emphasize communication and cooperation with their corollaries to align current practice and ensure a shared commitment to the prioritization of transmission as necessary infrastructure.

Recommendation 1.2: Congress and agencies should enhance transparency in project review and project timelines

Congress and federal agencies should work to enhance transparency in project timelines and in each step of review. Improving project review timelines and permitting review outcomes does not merely take more mandates and deadlines, which have been the focus of recent reforms. Mandating general timelines without addressing underlying substantive issues (including a lack of proper staffing and resources, see below Recommendation 1.3) can have unintended consequences; for example, the two-year EIS deadline imposed in the FRA⁹⁹ does not address the substance of the underlying issues that cause delays at the start of the formal siting and permitting processes. Requiring that agencies complete a process in less time does not help agencies do so. Tight timelines can also reduce the quality of work, which can in turn expose projects to greater litigation risk.

The larger issue is the failure to create and support an iterative, agile process with continuous and consistent communication among federal agencies, project developers, and stakeholders to identify and address concerns early and often. Instead of relying on mandating timelines alone to address delays resulting from inadequate interagency coordination, the permitting process should include interagency coordination during the pre-application phase–as outlined in DOE’s IIP process–and at specific points in the environmental review process. This, coupled with—where appropriate and logistically feasible—use of a public docket throughout the permitting process could take significant strides toward ensuring real-time, effective communication among relevant governmental and non-governmental entities.¹⁰⁰ An informative example of smart use of a public docket is FERC’s pre-filing docket and public dockets generally.¹⁰¹ All this combined would support transparent processes, transparent timelines, and ultimately, commitments to timelines. Use of the Permitting Dashboard should also be encouraged to enhance transparency and commitment to timelines. See below Recommendation 1.4.

Recommendation 1.3: Congress should invest in interagency coordination, interagency cooperation, and agency capacity¹⁰²

Insights from conversations with developers and federal government officials underscore a significant barrier to advancing transmission development: limitations on agency capacity.¹⁰³ Signatory agencies to DOE’s MOU under FPA section 216(h) also recognized that insufficient budgets and agency staff, along with limited mechanisms for interagency coordination, contribute to delays in permitting timelines for transmission.¹⁰⁴

Addressing these coordination shortfalls requires a holistic approach. Simply focusing on expanding agency functions or authorities, without appropriate investment in supporting agency coordination, cooperation, and capacity, will likely fail. Agencies need appropriate resources and expertise to contribute to transmission modernization as a national priority. More funding or more staff does not necessarily mean increased efficiency or effectiveness, however, and there needs to be additional support for retaining, supervising, empowering, and training agency staff, particularly on the nuances of transmission and linear infrastructure. To this end, Congress should also increase funding for interagency coordination and staff dedicated to joint-agency projects. This need extends beyond federal entities to include state and Tribal agencies, which have similar needs for such support. See below Recommendation 2.1. 

Congress should provide the funding necessary through annual appropriations to ensure that federal agencies have sufficient resources to conduct expeditious, coordinated reviews and permit decisions. The IRA provided more than $1 billion to support the environmental review process—including $350 million to the Permitting Council, $30 million to CEQ, and $625 million to federal agencies, including DOE, the Department of the Interior, the Forest Service, and the U.S. Department of Agriculture (USDA), to hire and train personnel, support public engagement, and develop helpful tools to improve transparency¹⁰⁵—which represents a significant step forward. However, while the episodic nature of large appropriation packages such as the IRA can boost funding for permitting for a number of years, relying on individual, unpredictable bills for funding makes it difficult for agencies to recruit and retain qualified permitting staff. Regular appropriations for permitting activities, rather than intermittent financial injections, will provide a more reliable foundation for attracting and retaining the skilled personnel necessary for this vital government function. 

Senior agency personnel should be assigned to each major project under environmental review and should report directly to appointed decision-making officials at agency headquarters. One option could be to resume the use of National Project Managers, which existed within BLM. These positions were formerly filled by experienced career staff dedicated to shepherding transmission projects through the permitting process. Their upstream oversight of field offices was combined with a long-term, national view of projects and the experience necessary to make key decisions. After a gradual phase out due to staff retirements and turnover, reestablishing such a role across federal agencies through executive order or personnel action should be prioritized.

Finally, investments in digital tools and data platforms, potentially leveraging new developments in artificial intelligence and DOE’s computing capabilities, could pay dividends of more targeted, effective, and expeditious reviews.¹⁰⁶ The Permitting Council’s commitment of $25 million from the IRA to modernize and develop technology solutions for federal environmental review is a commendable step. Sustained investments will help ensure new software and computing developments are harnessed to serve the public interest in efficient and effective federal permitting processes.

Recommendation 1.4: DOE, the Permitting Council, and other agencies should require transparency and accountability through use of the Permitting Dashboard¹⁰⁷

The Permitting Dashboard should be used to enhance transparency and accountability for transmission projects. Agencies should establish clear timeline goals and track key project information, including for projects not eligible for FAST-41 coverage. See above Recommendation 1.2. To further increase the Dashboard’s utility, DOE can work with lead and cooperating agencies to recommend nationally and regionally significant transmission projects, including all transmission projects requiring EIS review, be added to the Permitting Dashboard for their environmental review and authorization processes. Federal agencies can be project proponents under the FAST-41 definition, so federal leadership on transmission does not need to be constrained by the limitations of project applicants. 

To support transparency efforts, the Permitting Council should increase the scope and detail of the Permitting Dashboard. Projects should be on the Dashboard before the NOI to prepare an EIS is filed. Where there are coordinated project plans with detailed timelines before the NOI, the Dashboard should track those timelines and project plans with the same level of detail; any points of implementation that can hold up a decision should be tracked on the Dashboard. This allows the Dashboard to function as a spotlight on developer-agency interactions, keeping the agency on track and moving efficiently, even before an NOI is filed.

Streamlining interactions among sovereign authorities

From our in-depth review of 37 transmission projects,¹⁰⁸ supporting data analysis of the federal environmental transmission permitting process, and conversations with transmission stakeholders,¹⁰⁹ Niskanen and CATF found that slow and/or sequential state and federal regulatory processes can add significant time to the total duration of project permitting. For example, on the Boardman to Hemingway Transmission Line, the Oregon and Idaho processes have substantially lagged the federal process.¹¹⁰ Interviews with permitting experts singled out Oregon’s Facility Siting Council as a noteworthy example of state and federal misalignment, particularly as Oregon law requires that a Site Certificate application cannot be found to be complete until all federal permit applications are submitted and each federal agency has identified when they will issue a permit decision.¹¹¹ This regulatory discordance can add years to a project’s total permitting timeline. 

Moreover, state and local political opposition can create formidable barriers completely independent of the federal permitting process. In the case of the SunZia Southwest Transmission Project, BLM originally approved a right-of-way that crossed the Rio Grande near Socorro, New Mexico, a ranching and farming community.¹¹² Some individuals impacted by the route successfully lobbied the New Mexico Public Regulation Commission to reject SunZia’s application, causing additional project delays.¹¹³ The Plains and Eastern Clean Line, which would have traversed Oklahoma, Arkansas, and Tennessee, has failed to come to fruition after considerable political opposition.¹¹⁴ In its proposal to DOE, the project developer stated the project would “make possible some $12 billion of renewable energy projects that otherwise cannot be built due to limitations of the existing grid.”¹¹⁵ Arkansas rejected Clean Line’s application to operate as a public utility “based on [ ] information about its current business plan and present lack of plans to serve customers in Arkansas.”¹¹⁶ Members of the Arkansas congressional delegation proposed legislation to impede and stop the project. Even in Tennessee, where it enjoyed some support,¹¹⁷ the project sustained vocal opposition from a Tennessee senator and other Tennessee congressional members for years.¹¹⁸ The Tennessee Valley Authority ultimately decided not to buy power from the project, even though analyses appeared to show the project would have resulted in competitive pricing. The original developer sold a portion of the project in 2017.¹¹⁹

Finally, insufficient state and Tribal resources to participate in federal permitting processes and a lack of comprehensive federal leadership cause additional hurdles. As interstate transmission lines do not always directly benefit each state or Tribe they traverse, the federal government must lead in demonstrating the importance of transmission development for national and regional policy goals.

To address these challenges and promote a more efficient permitting process, several strategic initiatives are recommended to facilitate and support more streamlined interactions between and among states, Tribes, and federal authorities. Federal agencies should use Congressional funding to enhance state and Tribal capacity to fully partake in the permitting process. The Permitting Council can serve an important coordinator role among permitting officials at federal agencies to ensure cross-agency and cross-jurisdictional alignment. Congress can consolidate permitting and siting authority for multi-state projects in the national interest. And though the focus of this report is federal, our research unearthed the potential of better-harmonized state permitting processes to speed projects undergoing federal reviews. This promising avenue warrants further exploration to identify effective strategies for federal support of harmonization efforts.

Recommendation 2.1: Federal agencies, with Congressional support, should enhance state and Tribal capacity to conduct and participate in permitting processes¹²⁰

State and Tribal resource constraints can contribute to the lengthy timelines attributed to federal, state, and Tribal interactions and reviews. For state and Tribal agencies to actively participate in federal permitting processes and avoid delays from sequential review or political challenges, federal agencies should take a leading role in boosting state and Tribal capacity. Federal agencies should also conduct earlier and more comprehensive engagement with Tribes, on par with federal engagement with state entities and developers. 

Federal agencies typically have more resources than state or Tribal institutions and can retain extensive expertise on critical technical matters. To make these resources more accessible, Federal agencies should lay out best practices on how local, state, Tribal, and community entities can and should engage in the permitting process. Federal agencies should provide technical assistance and make funding available for states and Tribes to hire experts to interpret and conduct any required technical analyses. Such practices can play a major role in equitably distributing knowledge and resources to those entities engaged in the permitting process.

Agencies should also provide funding and support for public engagement around transmission line benefits and costs. Federal assistance should be provided to assist state, Tribal, and local entities in enforcing siting decisions and corridor selection. Tribal consultation and outreach should be prioritized and, when done effectively and intentionally, can lead to more predictable development outcomes and the possibility of including Tribal Nations in financial project development partnerships. And while federal agencies should use their resources to support Tribes in overcoming barriers to participation in the federal permitting process, this only goes so far. Developers themselves—even before the beginning of the formal federal permitting process—can hire dedicated Tribal affairs consultants, akin to the current standard practice of engaging professional government affairs staff or environmental consultants. 

One option for providing technical assistance is for Congress to appropriate funds to DOE’s National Labs to make transmission experts available on-call to eligible entities.¹²¹ Another example of funding support is through existing Transmission Siting and Economic Development (TSED) grants from DOE, where state and Tribal agencies can pursue federal funding to hire dedicated staff with legal and engineering backgrounds to participate actively in the siting and permitting processes for specific large, interstate or offshore transmission projects. In August 2023, DOE released a funding opportunity announcement for $300 million under the TSED program to support state, Tribal, and local entities in analyzing the impacts of high-voltage transmission projects, assessing alternative corridors, participating in regulatory proceedings, and facilitating other actions that could aid the permitting process.¹²²

In the case that conflict arises during the permitting process, the use of a neutral third-party facilitator can also support conflict resolution among federal, state, Tribal, and local authorities. A report from the federal Forum on Environmental Collaboration and Conflict Resolution (ECCR) supports using conflict resolution techniques to shepherd projects to approval.¹²³ This ECCR study shows how increasing the effective use of environmental conflict resolution and building institutional capacity for collaborative problem solving can produce cost savings and more timely decisions, improve relationships between the government and stakeholders, and result in more creative and lasting solutions to even long-term or entrenched disagreements by increasing understanding among stakeholders and reaching durable agreements. 

A skilled neutral third-party facilitator can assist with government-to-government consultation between Tribes and federal agencies, facilitate agency and departmental collaborations, and help resolve state and federal differences and conflicts involving multiple levels of government and the public. To avoid delays, disputes should be brought to the attention of alternative dispute resolution professionals as soon as problems are identified.¹²⁴ So far, the Permitting Council has not used its authority for this purpose. This effort should be supported by the Permitting Council, which received $350 million in the IRA to fund the implementation and enforcement of FAST-41 through 2031.¹²⁵

Recommendation 2.2: Congress should consolidate permitting and siting authority for multi-state projects that are in the national public interest

Large multi-state transmission lines offer outsized reliability, cost savings, and resilience benefits at the regional and national levels. Yet local opposition, while often rooted in legitimate concerns, can overlook or underestimate the collective value of transmission. The disconnect between local opposition and broader national public interest necessitates a recalibration of the permitting and siting authority paradigm.

Congress should vest and consolidate permitting and siting authority at the federal level for multi-state transmission lines that are in the public interest. This approach is not unprecedented; it draws upon some of the existing framework for siting in NIETCs, which already empowers FERC to step in under specific circumstances.¹²⁶ However, the scope of current federal statutory authority for transmission siting is limited and does not fully address the complexities and scale of need for modern, multi-state transmission projects.

Congress should build on FERC’s current backstop siting authority for projects in NIETCs by granting comprehensive permitting and siting powers for such projects. The Streamlining Interstate Transmission of Electricity (SITE)¹²⁷ and Clean Electricity and Transmission Acceleration (CETA)¹²⁸ Acts serve as possible legislative models, aiming to bolster grid security and reliability through enhanced federal authority, balanced with ample and sensible stakeholder engagement and protections. 

This recommendation is made with a clear understanding of the delicate balance between federal oversight and local autonomy, which warrants a structured, transparent, and collaborative approach, ensuring that all stakeholders, including state authorities, local communities, and private entities, are engaged in a constructive dialogue throughout the project lifecycle. This approach is not about undermining local concerns but about elevating and aligning these concerns within a broader national framework, ensuring that the collective benefits of these projects are realized effectively and equitably.

Recommendation 2.3: States should harmonize their permitting processes to create regulatory efficiency and allow more concurrent processes¹²⁹

State processes need to be harmonized among themselves (state-state) and with federal processes (state-federal). State determinations of project need, through State Certificates of Public Convenience and Necessity (CPCN) or similar siting approval processes, and state-level environmental permitting are often required for transmission facilities. These permitting processes vary greatly in their timelines and applicant requirements, creating a patchwork of distinct regulatory requirements. In some cases, these processes require much more and specific information than federal environmental reviews. Harmonizing state permitting requirements need not require lessening the rigor or authority of state reviews; instead, neighboring states can identify the best of their distinctive processes to inform reforms that align between them and with federal permitting.

One example of effective harmonization between state and federal environmental reviews is in California under the California Environmental Quality Act (CEQA). The projects reviewed by Niskanen and CATF demonstrate multiple examples of joint EISs and Environmental Impact Reports (EIRs) prepared under NEPA and CEQA.¹³⁰ While CEQA’s complexity can leave projects more vulnerable to litigation,¹³¹ it provides an example of how state and federal processes can align, as there is the ability for joint CEQA/NEPA review and state agencies can serve as co-lead agencies under the NEPA process. However, CEQA processes include additional procedural rigor and substantive standards that should not be confused with the requirements for federal environmental review under NEPA and federal authorizations. 

Incorporation by reference of state environmental review materials for purposes of federal environmental reviews should also be used as appropriate, following proper validation and verification.¹³² For example, in the Hampton-Rochester-La Crosse Transmission System Improvement Project, the Rural Utilities Service (RUS) incorporated by reference information from the Minnesota and Wisconsin EISs in preparing its final EIS.¹³³

Project-specific MOUs between state and federal permitting authorities can also help to align processes and tailor coordination to particular needs. While MOUs will not fix all underlying issues in coordination, developing cross-state MOUs requires the type of deeper examinations of state processes that can help identify and routinize areas of alignment between state permitting processes.¹³⁴ States should also take advantage of opportunities to participate in FAST-41 under an MOU. See above Section B.2.b. So far, no state has opted to do so for a transmission project.

To avoid lengthy sequential review processes, states should revise their need and environmental review processes to be concurrent with federal reviews. In Oregon, for example, the state’s siting process requires a final route be determined before their review can begin, greatly extending permitting timelines for projects that also undergo federal review like the Boardman to Hemingway Transmission Line.¹³⁵ Many other states lack such requirements. Another example of streamlining state and federal reviews would be exempting projects that receive thorough federal environmental review from the state environmental review process.¹³⁶ Additionally, there are ongoing discussions regarding the degree to which a federal need designation can be effective in moving a project forward.¹³⁷

Finally, to support successful state-federal harmonization, Congress and the federal agencies should provide support to states to participate in the federal permitting process and/or to states that incorporate national needs into their siting and permitting processes. See Recommendation 2.1.

Recommendation 2.4: The Permitting Council should work with CERPOs to advance projects and coordinate with and support local authorities

Given the balkanization of authority over interstate transmission lines, there is a clear need for centralized federal transmission leadership to coordinate and support states, Tribes, and local authorities along the permitting and approvals process. The Permitting Council should take advantage of existing positions within agencies to support this effort. Specifically, the Council should work with each agency’s CERPO to advance transmission projects. 

Federal agencies should not sit passively during the environmental review process for transmission lines; instead, they should take a leading role and use NEPA as a tool to inform other decision-makers and the public about transmission projects. The essential NEPA function of providing information to states, Tribes, and other decision-makers provides an opportunity for CERPOs, the Permitting Council, and other agency staff to support local authorities in making timely related permitting decisions.

Improving the environmental review and permitting process

The NEPA process is intended to support informed federal decision-making and guarantee that information on the environmental effects of major federal actions is made available to a larger audience in the decision-making process. NEPA’s requirements for information sharing have made NEPA the foundation of federal coordination and assessment of environmental impacts of major federal actions. Decades of NEPA implementation have also shown the importance of NEPA-driven coordination with the communities that infrastructure is intended to serve, creating a framework for developing greater social license for major infrastructure projects and identifying ways to mitigate the impacts of projects that are ultimately built.

While upholding these important goals and purposes of NEPA, there are opportunities to improve efficiencies in the federal permitting process. As found through Niskanen and CATF’s in-depth review of 37 transmission projects,¹³⁸ supporting data analysis of the federal environmental transmission permitting process, and conversations with transmission stakeholders,¹³⁹ purposeful and collaborative pre-planning efforts can lead to a more efficient NEPA process. This includes pre-application engagement between developers and agencies to reduce overall project timelines. As one example, Minnesota Power, the developer of the Great Northern Transmission Line, a 220-mile, 500 kV line,¹⁴⁰ conducted extensive outreach with federal, state, and local agencies, Tribal governments, and landowners along the proposed routes prior to filing applications with the Minnesota Public Utility Commission and DOE for a Presidential Permit required for crossing international borders.¹⁴¹ This developer’s approach to stakeholder engagement demonstrates that pre-planning and early collaboration is an important component of an efficient permitting process; there were only three years¹⁴² from the issuance of an NOI to prepare an EIS to the start of project construction.¹⁴³ Further, pre-application work can assist in building stakeholder relationships that mitigate conflict in advance of formal federal review. Transparent processes (see above Recommendation 1.4) can provide additional clarity to all stakeholders. 

Implementation of these recommendations does not require legislative changes to NEPA. Instead, agencies should take advantage of existing processes and authorities, including through associated rulemakings.¹⁴⁴ Fuller use of already-established mechanisms to carry out the below proposals will result in a more coordinated, efficient, and inclusive environmental review and permitting process.

Recommendation 3.1: Agencies and developers should conduct early, sustained, and meaningful stakeholder outreach¹⁴⁵

Early, sustained, and meaningful stakeholder outreach is critical to improving project design and identifying and resolving potential conflicts that can create delays in transmission development. Done well, pre-application stakeholder outreach that occurs before the formal start of the NEPA process can increase the efficiency of permitting processes, and the outreach and information-sharing requirements of NEPA itself further support efficient timelines. In particular, developer coordination and engagement with Tribal communities early in the project design process can help ensure mutually beneficial outcomes. Projects that fail to engage in meaningful outreach are exposed to avoidable opposition and delays that slow timelines.

As previously noted, the Great Northern Transmission Line provides an example where early and meaningful engagement improved permitting outcomes. This project was planned to cross the U.S.-Canada border near Roseau, Minnesota and continue on to Grand Rapids, Minnesota. In its pre-filing process, the project developer, Minnesota Power, proposed routes that it developed through 75 voluntary meetings and other outreach forums over a five-year period.¹⁴⁶ The route that emerged at the end of the lengthy stakeholder engagement process had been modified several times to accommodate stakeholders and received letters of support from counties bordering the project and the Red Lake Band of Chippewa Indians, whose land would also border the proposed project.¹⁴⁷ The resulting federal permitting timeline was comparably quick. After the publication of an NOI in June 2014, it only took until November 2016 for an ROD to be released. Without this up-front stakeholder engagement, the transmission line could have been mired in more serious and time-consuming opposition and litigation.¹⁴⁸

Timely, meaningful engagement with impacted communities must be conducted as part of project planning, approval, and post-implementation monitoring. It is also crucial to emphasize the distinct government-to-government responsibilities of federal agencies to ensure robust engagement through the permitting process when consulting with Tribes on projects that may impact natural and cultural resources. State and local agencies can coordinate with Tribal agencies, including through NHPA consultations involving state and Tribal Historic Preservation Officers, and applicants are encouraged to coordinate with Tribal agencies with jurisdiction or special expertise regarding the effects of their proposed actions and alternatives. However, coordination on environmental review under NEPA or consultation under NHPA Section 106 should not be confused with the sovereign authorities of Tribes to consult with federal agencies on a government-to-government basis.¹⁴⁹

Transmission developers do many studies pre-application, but historically Tribes have only been involved or engaged once the formal study begins. In some cases, agency consultation issues are to blame – for example, our research uncovered that agencies have wrongly told developers not to talk to Tribes prior to the commencement of the formal consultation period. Agencies should be resourced and empowered to invest in capacity-building programs to support agency personnel and communities’ ability to meaningfully participate. Implementation of the NEPA process must prioritize early, robust, and responsive stakeholder outreach as an essential aspect, ensuring an efficient and timely permitting process.

Recommendation 3.2: Agencies should implement robust pre-filing processes¹⁵⁰

Pre-filing processes provide an opportunity for the applicant and agency to have detailed interactions before the official commencement of environmental review. The key purposes of pre-filing are: 1) to allow an agency and applicant to discuss the application requirements to create a common understanding of what must be filed, and 2) to allow an applicant to vet its project with the agency before filing so that the agency can identify potentially significant problems with the project.

FERC has recognized the value of pre-filing processes in issuing certificates for natural gas pipelines, and encourages pre-filing procedures for all major pipelines, noting that it “reduces the time it takes to develop the record … while ensuring the highest levels of environmental protection and public participation.”¹⁵¹ FERC has found that pre-filing “provides an opportunity for constructive discussions about potential issues and environmental concerns, and early consideration of alternative pipeline routing.”¹⁵² FERC adds that, if used effectively, the pre-filing process “can streamline the review once an application is filed. It allows the Commission to focus on any remaining significant issues, and to make more timely decisions.”¹⁵³ As part of its 2023 Notice of Proposed Rulemaking on the siting of interstate electric transmission facilities, FERC has proposed to revise its policy that the Commission’s pre-filing processes must begin at least one year after the filing of relevant state siting applications in NIETCs, acknowledging that federal and state pre-filing processes beginning simultaneously can eliminate an unneeded delay.¹⁵⁴

A recent proposal to support pre-filing procedures is DOE’s proposed Coordinated Interagency Transmission Authorizations and Permits (CITAP) Program.¹⁵⁵ The CITAP Program would improve the IIP Process, make participation in the IIP Process mandatory for a permitting decision from DOE pursuant to the 2023 MOU (see Section B.2.b), and set milestones and deadlines for the review of authorizations and environmental reviews.¹⁵⁶

Following FERC and DOE’s lead, agencies making decisions about transmission should implement agency-specific pre-filing processes and encourage applicants to opt in to pre-filing where appropriate.¹⁵⁷ Agencies are best situated to know what they need from an applicant and whether a project presents a problem that should be dealt with before an application is filed. For this reason, there is not necessarily an advantage to standardizing the pre-filing process across different agencies, although there should be predictability and transparency in what the pre-filing process requires.¹⁵⁸ Some amount of standardization at this stage can facilitate coordination at later stages. CEQ can assist this effort by issuing pre-filing guidance specific to transmission. See below, Recommendation 3.3. Pre-filing processes should also be supported with sufficient investments in agency capacity and coordination. See above Recommendation 1.3.

Moreover, to maximize the efficacy and efficiency of pre-filing processes, it is essential that these procedures are designed to complement, rather then replicate, the formal permitting or application processes. By focusing on early identification and resolution of potential issues, pre-filing should streamline the subsequent stages of project approval without introducing unnecessary redundancies. This approach ensures a pre-filing phase adds value by fostering a more collaborative, informed, and efficient path through the regulatory landscape, ultimately benefiting both the agency and the applicant by saving time and resources.

Recommendation 3.3: Developers and agencies should engage in early and collaborative identification of alternatives to be analyzed in an Environmental Impact Statement (EIS)¹⁵⁹

The consideration of alternatives is the heart of the environmental analysis of a proposed project. Identifying and evaluating alternatives that meet a project’s purpose, need, and technical requirements is time- and resource-intensive. Evidence from the transmission projects evaluated by Niskanen and CATF demonstrates that project alternatives should be identified as early as is feasible in a collaborative process that includes relevant federal agencies, the project developer, state and local officials, Tribes, relevant stakeholders, and the public. This facilitates the permitting process by identifying the least contentious alternatives early in the planning process, reducing the likelihood of delay from project opposition. See also Recommendation 3.1. That, in turn, creates a strong foundation for the preparation of the EIS and subsequent permitting actions based on the environmental analysis.

For example, Southline Transmission, LLC, based on a series of public meetings, routing workshops, and meetings with local, state, and other federal agencies prior to developing the Southline Transmission Line Project, published a project routing study. Many different route segments were identified and analyzed. This process resulted in two alternatives for the new build section of the project (the other section of the project would upgrade an existing transmission line owned by the Western Area Power Administration [WAPA]). Southline presented the two alternatives to the BLM and WAPA, the joint lead agencies in the preparation of the EIS. Because WAPA and BLM participated in Southline’s routing study and public outreach, they each understood why various route segments were selected or rejected. Both agencies analyzed the Southline alternatives and used the NEPA process to identify reasonable, technically and economically feasible alternatives.¹⁶⁰ As stated by WAPA in its ROD, “[d]ue to Southline’s thorough routing process, extensive stakeholder outreach, and early route screening with Western and the BLM, agency alternatives developed through the NEPA process resulted in only small route variations which could potentially reduce or avoid local resource conflicts.”¹⁶¹

Project developers can proactively initiate the investigation of potential alternatives themselves.¹⁶² Agencies can lead early evaluation of project alternatives by engaging with project sponsors and by adopting practices such as the Macro-Corridor Study, a preliminary study that USDA’s RUS requires applicants to submit in anticipation of developing an EIS.¹⁶³ CEQ can also support these efforts by developing guidance encouraging early and collaborative identification of alternatives.

Recommendation 3.4: Agencies should carefully expand categorical exclusions for transmission development

One means of accelerating transmission infrastructure delivery and decreasing project costs is to increase the efficiency of the environmental review and permitting process through the strategic and appropriate use of categorical exclusions. Appropriately using categorical exclusions with adequate environmental and community safeguards for much-needed transmission projects that are known to have no significant impacts is an important way for agencies to accelerate the deployment of transmission infrastructure. Categorical exclusions are not absolute, meaning that if the agency finds an extraordinary circumstance (e.g., identification of adverse effects on threatened or endangered species in the project area) exists and determines that the presumption of a categorical exclusion is overcome, an EA or EIS will be required. This extraordinary circumstances requirement provides a critical safeguard to the use of categorical exclusions where they would not be appropriate.

Available categorical exclusions should be expanded for more categories of projects within existing project rights-of-way that are known to have no significant impacts. Agencies should look for opportunities to establish or expand existing categorical exclusions for transmission development, where EIS-level review is unnecessary. As an example, a recently proposed rule from DOE would revise an existing categorical exclusion (B4.13, which applies to upgrading or rebuilding transmission lines that are approximately 20 miles in length or less) to exclude the mileage limitation.¹⁶⁴ DOE indicated that its experience with power line upgrades and rebuilds does not suggest that a particular mileage limit is a reliable threshold for whether a project has significant effects. Instead, the potential significance of environmental impacts from upgrading or rebuilding power lines more often depends on local environmental conditions, which well-designed definitions of and screening for extraordinary circumstances can safeguard against. Agencies should look to their existing categorical exclusions and, based on their institutional knowledge, consider how they can be thoughtfully expanded to increase the efficiency of environmental review without causing significant impacts to the environment or impacting public participation.

Recommendation 3.5: Agencies should expand the use of programmatic EIS (PEIS) reviews for transmission infrastructure projects, and Congress should ensure that agencies have sufficient capacity to do so¹⁶⁵

CEQ’s NEPA implementing regulations support the use of broader, programmatic environmental reviews that consider the impacts of programmatic federal actions; for example, actions occurring in the same geography, or actions with relevant similarities, including timing, impacts, implementation, or subject matter.¹⁶⁶ CEQ’s NEPA regulations also encourage the use of “tiering” to increase the efficiency of environmental review, eliminate repetitive discussions, and focus on issues ripe for decision.¹⁶⁷ Tiering refers to citing earlier NEPA review documents to expedite project-specific environmental review.

For transmission development, a programmatic EIS (PEIS) can be used to identify potential environmental impacts that are common to electric transmission lines, such as viewsheds, migratory birds, and land-use changes. These reviews can be applied where common impacts of transmission development, given the location or nature of particular projects, are “well understood.”¹⁶⁸ Programmatic reviews could also identify areas that are more (or less) conducive to transmission and identify potential mitigation measures to be applied on an individual project basis. For example, BLM has issued a draft PEIS to plan for utility-scale solar energy development on public lands throughout the West.¹⁶⁹ Under the draft’s proposed alternative, BLM would amend its Western Solar Plan for public land management to make lands available for solar development that have minimal natural resource constraints (e.g., avoiding habitat for sensitive species), less than 10 percent slope, and are located within 10 miles of existing or planned transmission lines.¹⁷⁰ Once finalized, this PEIS will also provide a foundation for subsequent, tiered environmental reviews for individual solar projects.

As one potential approach, a transmission PEIS could be prepared alongside Independent System Operator/Regional Transmission Organization plans for transmission development. Additionally, agencies could expressly make PEIS data available to federal and non-federal permitting entities, including state and Tribal Historic Preservation Offices, for purposes of their own environmental reviews.¹⁷¹

Programmatic reviews are a significant investment of federal resources and so must still be implemented carefully to ensure there are subsequent benefits from improved and faster tiered reviews. For example, programmatic reviews that are likely to facilitate many future project-specific reviews are much more valuable than programmatic reviews with vague, small, or speculative future use. Agencies should consider how they can use their authority to conduct PEISs and do so where there are efficiency gains and where PEIS-level review is appropriate.

Congress should provide sufficient funding to agencies to ensure data, staff, and other resources are available to prepare useful PEISs with sufficient levels of detail. Environmental reviews for specific transmission projects could then be tiered off of these PEISs.

Recommendation 3.6: DOE and FERC should minimize environmental review redundancy for the NIETC process

There is the potential for a duplication of efforts with respect to NEPA analysis and permitting review process for the use of the NIETC process—first for DOE’s corridor designation process, and subsequently through FERC’s siting decision for a project through the DOE-designated corridor. This potential redundancy not only risks delaying the implementation of vital infrastructure projects but also imposes additional burdens on the agencies and stakeholders involved. However, given the different focus for each review, in some instances both agencies may need to conduct separate reviews. For the NIETCs that could benefit from coordinated NEPA reviews, existing regulations may help mitigate the risk of redundancy and delays.¹⁷²

To reduce redundancy and truly capitalize on the benefits of the updated FPA, it is imperative that DOE, FERC, and other relevant agencies use existing regulatory authorities and practices to collaborate closely and streamline environmental review for FERC’s siting decision, ensuring that environmental protections are upheld without unnecessary duplication of efforts. These existing tools–including tiering, FERC’s participation as a cooperating agency in DOE’s review, and FERC’s adoption of DOE’s review–allow DOE and FERC to collaborate directly on environmental reviews and FERC to use part or all of DOE’s environmental review for a NIETC when subsequently permitting a transmission line. To the extent the environmental reviews actually address the same issues, these tools will allow FERC’s analysis to proceed expeditiously.

Conclusion

A significant scale up of high-voltage, long-distance transmission lines is critical to relieving congestion, keeping electricity affordable, interconnecting new clean resources, meeting decarbonization goals, and hardening the grid to weather and security threats. Many have identified the federal permitting process as one area of transmission development due for improvement, but little concrete evidence exists to support claims for suggested improvements.

Niskanen and CATF’s analysis of transmission permitting data, deep dives on key transmission line permitting timelines and litigation, and interviews with developers, government officials, and other transmission stakeholders provide substantial evidence of the current challenges facing federal transmission permitting. These findings are  foundational to the recommendations offered in this report to improve permitting while maintaining protections for communities and the environment.

Our recommendations reflect the need for clear, specific, and ongoing leadership from the President, at the White House, and within federal agencies. Maintaining transmission development as a national priority and identifying key actors responsible for permitting process coordination will pay dividends in resolving disputes, clarifying roles, and reducing review timelines. There are opportunities for existing bodies, like the Permitting Council, to lean into their role of coordinating agencies. Making transmission an ongoing national priority will require boosted agency capacity and the use of expertise on transmission infrastructure and joint-agency projects. Though many of our recommendations do not require legislative action, Congress can play a significant role by providing federal agencies with the funding needed to plan and deploy transmission and by consolidating permitting and siting authorities for interstate projects in the public interest.

Transmission lines requiring federal permits can pass through different states, Tribal Nations, and local jurisdictions, each with their own regulatory and community engagement processes. At the same time, they involve and impact communities, developers, and other stakeholders key to project success. Our recommendations posit that federal support of and alignment with state, Tribal, and local processes will improve the entire permitting process. This means federal agencies, in tandem with project developers, should conduct meaningful and sustained stakeholder outreach and help identify alternative routes with stakeholder input. Federal agencies should ensure that state, Tribal, and local entities have enough capacity to participate fully in the permitting process. And where appropriate and responsible, federal agencies can propose categorical exclusions or PEISs.

Finally, our data analysis, the interviews we conducted with stakeholders, and our recommendations show that more data transparency is needed across the board to fully understand permitting processes and timelines, and to promote accountability for each step. Existing tools like the Permitting Dashboard should be better leveraged to enable interagency coordination and provide visibility to the public. Better data collection can make digital tools under development today much more useful and comprehensive while enabling future advances.

Throughout the course of our work, several avenues for continuing research emerged. Though this report focused on federal matters, interviews and transmission line data show that harmonization of state regulatory requirements and processes is integral to the success of interstate transmission lines. More work can be done to investigate federal incentives to smooth out regulatory differences between states, or to investigate ways for states to better coordinate among themselves. It is also likely that there are federal authorities already in effect not explicitly identified in this report that can be leveraged to better the current permitting process.

Niskanen and CATF conducted this work in order to build an evidentiary record for transmission permitting reforms. In doing so, we hope to have provided not just our own perspective on opportunities to improve the permitting process, but we also hope to have created a body of work from which others may reference, analyze, and draw solutions. We look forward to furthering this important conversation and hope our work prompts additional recommendations that go beyond our own.

Appendices

Please refer to the PDF version to view the appendices.

Acknowledgments

This report is the culmination of a year-long investigation conducted by the Niskanen Center and Clean Air Task Force. Our goal was to establish a comprehensive evidentiary record of permitting challenges faced by electric transmission projects and offer fact-based insights into: 

1. What prevents the transmission buildout needed to achieve federal and state policy goals; 
2. The levels (federal, state, local) and/or nexuses (e.g., developer-community relations) at which transmission permitting faces critical hurdles; and 
3. Concrete opportunities to improve transmission permitting while preserving and bolstering protections of vulnerable communities and the environment.

We compiled a database and conducted in-depth case studies of permitting for identified transmission projects. 

We convened an advisory group to help guide and shape our work. Advisory group members were chosen for their expertise and perspective on federal transmission permitting; their participation in no way implies that the individuals or the organizations they represent support or endorse this report’s findings or recommendations. 

In addition to in-depth case studies and data analysis, the Niskanen Center and Clean Air Task Force conducted numerous interviews with transmission line developers, industry consultants, and government officials to inform this report. These interviews were conducted anonymously; all findings and recommendations in this report should not be attributed directly to anyone interviewed on background during our research. This endeavor yielded critical insights, culminating in a set of recommendations that would address the identified challenges, discussed below.

This nonpartisan independent research was conducted with support from Breakthrough Energy. The results presented in this report reflect the views of the authors and not necessarily those of the supporting organization.

We would like to express deep appreciation and thanks to everyone who contributed or reviewed this report and played a part in its inspiration and completion.

Footnotes

1. See Niskanen Center, How are we going to build all that clean energy infrastructure? (Aug. 2021), https://www.niskanencenter.org/wp-content/uploads/2021/08/CATF_Niskanen_CleanEnergyInfrastructure_Report.pdf. ↩︎
2. Dep’t of Energy, National Transmission Needs Study (Oct. 2023), https://www.energy.gov/sites/default/files/2023-12/National%20Transmission%20Needs%20Study%20-%20Final_2023.12.1.pdf. ↩︎
3.  Jürgen Weiss, et al., The Coming Electrification of the North American Economy: Why We Need a Robust Transmission Grid, BRATTLE GRP. (Mar. 2019), https://wiresgroup.com/wp-content/uploads/2020/05/2019-03-06-Brattle-Group-The-Coming-Electrification-of-the-NA-Economy.pdf. ↩︎
4. See above note 2. ↩︎
5. John D. Wilson & Zach Zimmerman, The Era of Flat Power Demand is Over, GRID STRATEGIES (Dec. 2023), https://gridstrategiesllc.com/wp-content/uploads/2023/12/National-Load-Growth-Report-2023.pdf. ↩︎
6. It is essential to acknowledge that not all transmission projects require federal permits. Many can proceed under state or local regulations without any federal intervention. However, federal permits are often imperative to larger scale and inter-regional projects, as they are more likely to cross federally managed land or state borders, or require other federal action. See Natalie Manitius, Johan Cavert, Casey Kelly, Contextualizing Electric Transmission Permitting: Data from 2010 to 2020 (Mar. 2024), Clear Air Task Force and The Niskanen Center https://www.catf.us/resource/contextualizing-electric-transmission-permitting. ↩︎
7.  EBP & Am. Soc’y Civil Eng’rs, Failure to Act: Electric Infrastructure Investment
   Gaps in a Rapidly Changing Environment (2020), https://infrastructurereportcard.org/wp-content/uploads/2021/03/Failure-to-Act-Energy-2020-Final.pdf. ↩︎
8. See, e.g., U.S. Gov’t Accountability Off., GAO-21-346, ELECTRICITY GRID RESILIENCE: CLIMATE CHANGE IS EXPECTED TO HAVE FAR-REACHING EFFECTS AND DOE AND FERC SHOULD TAKE ACTIONS 20 (Mar. 2021). ↩︎
9. See Notice of Intent and Request for Information: Designation of National Interest Electric Transmission Corridors, 88 Fed. Reg. 30956 (May 15, 2023). ↩︎
10. See Liza Reed & Andrew Xu, FERC is coalescing around the idea of minimum transfer capacity but needs data and definitions, NISKANEN CTR. (Sept. 8, 2022), https://www.niskanencenter.org/ferc-is-coalescing-around-the-idea-of-minimum-transfer-capacity-but-needs-data-and-definitions/. ↩︎
11. Dep’t of Energy, DOE Announces $45 Million for Next-Generation Cyber Tools to Protect the Power Grid (Aug. 17, 2022), https://www.energy.gov/articles/doe-announces-45-million-next-generation-cyber-tools-protect-power-grid. ↩︎
12. See above note 5. ↩︎
13. See Exec. Order No. 14008, 86 Fed. Reg. 7619 (Feb. 1, 2021); White House Briefing Room, Fact Sheet: President Biden Sets 2030 Greenhouse Gas Pollution Reduction Target Aimed at Creating Good-Paying Union Jobs and Securing U.S. Leadership on Clean Energy Technologies (Apr. 22, 2021), https://www.whitehouse.gov (search in search bar for “Greenhouse Gas Pollution Reduction”). ↩︎
14. Press Release, White House, Fact Sheet: New Innovation Agenda Will Electrify Homes, Businesses, and Transportation to Lower Energy Bills and Achieve Climate Goals (Dec. 14, 2022), https://www.whitehouse.gov/ostp/news-updates/2022/12/14/fact-sheet-new-innovation-agenda-will-electrify-homes-businesses-and-transportation-to-lower-energy-bills-and-achieve-climate-goals/. ↩︎
15. The Princeton ZERO Lab estimated that generation capacity will need to quadruple in order to meet forecasted future electricity demand and production needs, and transmission capacity will need to be expanded to integrate clean energy resources—such as offshore wind, onshore wind, and solar—located far from existing transmission infrastructure. REPEAT (Rapid Energy Policy Evaluation and Analysis Toolkit), PRINCETON UNIV., https://repeatproject.org/, (last visited Mar. 11, 2024); see also above note 1. ↩︎
16. See above note 1. ↩︎
17. See Jesse D. Jenkins, et al., , Electricity Transmission is Key to Unlock the Full Potential of the Inflation Reduction Act, PRINCETON UNIV. ZERO LAB (Sept. 2022), https://repeatproject.org/docs/REPEAT_IRA_Transmission_2022-09-22.pdf (finding that that transmission expansion is needed to maximize the benefits of investments under the newly enacted Infrastructure Investment and Jobs Act and Inflation Reduction Act. The benefit of those investments will not be realized fully unless the United States can quickly expand enabling electric transmission infrastructure); see also above note 9. ↩︎
18. See above note 2. ↩︎
19. W. Elec. Coordinating Council, 10-Year Regional Transmission Plan: 2020 Study Report (Sept. 2011), https://doc.westconnect.com/Documents.aspx?NID=20390&dl=1. ↩︎
20. See above note 3. ↩︎
21. See above note 2. ↩︎
22. Defined as the span from the time of submission of the interconnection request to commercial operation. Joseph Rand, et al., Queued Up: Characteristics of Power Plants Seeking Transmission Interconnection As of the End of 2022, LAWRENCE BERKELEY NAT’L LAB’Y (Apr. 2023), https://emp.lbl.gov/sites/default/files/queued_up_2022_04-06-2023.pdf. ↩︎
23. Id. Note that there is more than one reason for this statistic – some argue that this reflects the fact that to address lack of information about system congestion prior to joining the queue, developers will submit multiple interconnection requests for every project they actually intend to build. ↩︎
24. National Electricity Policy: Federal Government Perspectives: Hearing Before the Subcomm. on Energy and Air Quality of the Comm. on Energy and Com. H.R., 107th Cong. 34-35 (2001) (statement of Francis Blake, Deputy Sec. of Energy). ↩︎
25. Id. at 35. ↩︎
26. 16 U.S.C. § 824p(b)(1) (2018) (section 216(a) to Federal Power Act). ↩︎
27. Infrastructure Investment and Jobs Act, Pub. L. No 117-58, 135 Stat. 429, 933 (2021) (codified as amended at 16 U.S.C. § 824p). ↩︎
28. 42 U.S.C. § 18715.et seq (2022). ↩︎
29. Dep’t of Energy, Grid Deployment Office Guidance on Implementing Section 216(a) of the Federal Power Act to Designate National Interest Electric Transmission Corridors (Dec. 19, 2023), https://www.energy.gov/sites/default/files/2023-12/2023-12-15%20GDO%20NIETC%20Final%20Guidance%20Document.pdf. ↩︎
30. Piedmont Env’l Council v. FERC, 558 F.3d 304 (4th Cir. 2009), cert. denied, 558 U.S. 1147 (2010). ↩︎
31. See Cal. Wilderness Coal. v. DOE, 631 F.3d 1072 (9th Cir. 2011). ↩︎
32. The Fiscal Responsibility Act of 2023 clarified which federal actions are not required to undergo NEPA review, including those “with no or minimal federal involvement where a federal agency cannot control the outcome of the project,” loans or loan guarantees where the agency “does not exercise sufficient control and responsibility over the subsequent use of such financial assistance or the effect of the action.” 42 U.S.C. § 4336e(10)(B)(2023). Future rulemaking and judicial review will elucidate what levels and types of funding are excluded from NEPA review. ↩︎
33. 42 U.S.C. § 4332(2)(C) (2022). The term “authorization” is defined as “any license, permit, approval, finding, determination, or other administrative decision issued by an agency that is required or authorized under Federal law in order to implement a proposed action.” 40 C.F.R. § 1508.1(c) (2024). ↩︎
34. See Congressional Research Service, The National Environmental Policy Act (NEPA): Background and Implementation, (Jan. 2011), https://crsreports.congress.gov/product/pdf/RL/RL33152 at 1. ↩︎
35. See 42 U.S.C. §§ 4342 (2022) (establishing CEQ), 4344 (CEQ duties and function). ↩︎
36. See, e.g., DOE’s NEPA Implementing Procedures, 10 C.F.R. pt. 1021, et seq. ↩︎
37. 40 C.F.R. §§ 1501.5-6 (2024). ↩︎
38. 40 C.F.R. § 1501.4 (2024). ↩︎
39. See, e.g., 10 C.F.R. pt. 1021, Subpart D (2024). ↩︎
40. 42 U.S.C. § 4332(2)(C) (2022). ↩︎
41. See above note 6 at 4. ↩︎
42. Nat’l Elec. Mfrs. Ass’n, Siting Transmission Corridors – A Real Life Game of Chutes and Ladders, (2024), https://www.nema.org/docs/default-source/advocacy-document-library/nema_chutesandladder_2024_revised-4web.pdf. ↩︎
43. 16 U.S.C. § 661 et seq. ↩︎
44. 54 U.S.C. § 300101 et seq. ↩︎
45. 16 U.S.C. § 1531 et seq. ↩︎
46. 36 C.F.R. § 800.8 (2024); CEQ & Advisory Council Hist. Pres., NEPA and NHPA A Handbook for Integrating NEPA and Section 106, (Mar. 2013), https://ceq.doe.gov/docs/ceq-publications/NEPA_NHPA_Section_106_Handbook_Mar2013.pdf. ↩︎
47. 42 U.S.C. § 4332(2)(C) (2022). ↩︎
48. See 42 U.S.C. § 4336a (2023). ↩︎
49. 40 C.F.R. §§ 1500.4, 1500.5 (2024). ↩︎
50. National Environmental Policy Act Implementing Regulations Revisions Phase 2, 88 Fed. Reg. 49924 (July 31, 2023). ↩︎
51. Id. at 49946. ↩︎
52. National Environmental Policy Act Implementing Regulations Revisions, 87 Fed. Reg. 23453 (Apr. 20, 2022). ↩︎
53. Fiscal Responsibility Act of 2023, Pub. L. No. 118-5, 137 Stat. 10 (2023). ↩︎
54. 42 U.S.C. § 4336e(10) (2023). ↩︎
55. Id. ↩︎
56. Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 85 Fed. Reg. 43304 (July 16, 2020). ↩︎
57. See 42 U.S.C. § 4336a(g) (2023). ↩︎
58. 42 U.S.C. § 4336a(g)(3) (2023). ↩︎
59. Fixing America’s Surface Transportation Act, Pub. Law. No. 114-94, § 41001-14, 129 Stat. 1312, 1741-62 (2015). ↩︎
60. 42 U.S.C. §§ 4370m(2), 4370m-1(b)(2)(A)(iii)(I) (2022). CERPOs were created under FAST-41, but they have a broader role, including to: advise the respective agency member of the Permitting Council on matters related to environmental reviews and authorizations; act on behalf of their agency or between their agency and other federal agencies to support timely identification and resolution of potential disputes; make recommendations to their agency’s Permitting Council member for ways to improve their agency’s environmental review and decision-making process; and review and develop training programs for agency staff that support and conduct environmental reviews or authorizations. ↩︎
61. A FAST-41 “covered” project is any infrastructure project involving a total investment of over $200 million that is subject to NEPA analysis, authorization by more than one agency, and is one of several infrastructure categories that include transmission infrastructure. To become a “covered” project, the sponsor of a qualified project must submit a FAST-41 Initiation Notice. Several transmission projects currently under federal permitting jurisdiction have initiated FAST-41 procedures as “covered” projects, and future projects should continue to qualify, assuming they exceed the $200 million threshold. According to data from Niskanen and CATF’s analysis on recently proposed and completed transmission projects in the United States, the majority of the 37 transmission projects we researched would have qualified for FAST-41 coverage. Further, under an amendment from the Infrastructure Investment and Jobs Act, the Executive Director of the Permitting Council can post projects other than FAST-41 covered projects to the Dashboard in the interest of transparency. Smaller transmission projects that do not meet the $200 million threshold may therefore be listed on the Dashboard at the discretion of the Permitting Council. ↩︎
62. 42 U.S.C. § 4370m-6(a)(1) (2022). ↩︎
63. 42 U.S.C.A. § 4370m-2(a)(3) (2022). ↩︎
64. Permitting Council, FAST-41 and Permitting Council, at 14 (Feb. 2022), https://www.nga.org/wp-content/uploads/2022/03/Permitting-Council-and-FAST-41-Overview_2022.pdf. ↩︎
65. Permitting Council, FAST-41: Tangible Permitting Process Improvements on a Project-Specific Basis, https://aapa.files.cms-plus.com/PDFs/8%20FAST41%20Amber.pdf (last visited Mar. 12, 2024). ↩︎
66. At groundbreaking for the Ten West Link transmission line, Christine Harada, then-executive director of the Permitting Council, stated that the relatively quick approval of Ten West demonstrated “the fruits of the coordination, collaboration, and transparency of the FAST-41 interagency coordination process” and “what is possible when infrastructure projects are covered by FAST-41.” Permitting Dashboard, Ten West Link Transmission Line Project Breaks Ground (updated Jan. 20, 2023), https://www.permits.performance.gov/fpisc-content/ten-west-link-transmission-line-project-breaks-ground. ↩︎
67. 42 U.S.C. § 4370m-1(c)(1)(C)(ii)(II)(aa) (2022). ↩︎
68. 16 U.S.C. § 824p(h) (2022). ↩︎
69. Dep’t of Agric., Dep’t of Def., Dep’t of Energy, Env’t Prot. Agency, Council on Env’t Quality, Fed. Permitting Improvement Steering Council, Dep’t of Interior, & Off. of Mgmt. & Budget, Memorandum of Understanding Regarding Facilitating Federal Authorizations for Electric Transmission Lines (May 4, 2023), https://www.whitehouse.gov/wp-content/uploads/2023/05/Final-Transmission-MOU-with-signatures-5-04-2023.pdf. ↩︎
70. The program was created under section 216(h)(4)(C) of the Federal Power Act. ↩︎
71. 10 C.F.R. § 900.3 (2024). ↩︎
72. See above note 69.  ↩︎
73. Coordination of Federal Authorizations for Electric Transmission Facilities, 88 Fed. Reg. 55826, 55828 (Aug. 16, 2023); see also above note 69. ↩︎
74. See above note 73, 88 Fed. Reg. 55826. ↩︎
75. See, e.g., efforts from opposing sides of the aisle to speed project review, including the Fiscal Responsibility Act, the SITE Act, BIG WIRES, and the Biden Administration’s Permitting Action Plan. ↩︎
76. See above note 6 at 3. ↩︎
77. CEQ, Environmental Impact Statement Timelines (2010-2018) (June 12, 2020), https://ceq.doe.gov/docs/nepa-practice/CEQ_EIS_Timeline_Report_2020-6-12.pdf. ↩︎
78. James W. Coleman, Pipelines & Power-Lines: Building the Energy Transport Future, 80 Ohio St. L.J. 264, 292 (2019) (“…while oil pipelines grab the national headlines, power-lines across the country are being held up using the same legal arguments.”), https://scholar.smu.edu/cgi/viewcontent.cgi?article=1037&context=law_faculty. ↩︎
79.  For a discussion of impacts of NEPA litigation on transport and energy infrastructure projects broadly, see Michael Bennon & Devon Wilson, NEPA Litigation Over Large Energy and Transport Infrastructure Projects,STANFORD UNIV. (Oct. 2, 2023) (“our goal was to directly link data on infrastructure projects to NEPA studies to lawsuits to outcomes, which has not been done before”), https://cddrl.fsi.stanford.edu/publication/nepa-litigation-over-large-energy-and-transport-infrastructure-projects. ↩︎
80. Susan Montoya Bryan & Ken Ritter, Tribes, environmental groups ask US court to block $10B energy transmission project in Arizona, AP NEWS (Jan. 23, 2024 12:43 PM PDT), https://apnews.com/article/wind-energy-sunzia-transmission-lawsuit-f414b9c3e4d7fc0ae2aee4a0777be92f. ↩︎
81. A preliminary injunction is a court order that can delay or stop a project’s construction or regulatory progress. ↩︎
82. See above note 80. ↩︎
83. For further analysis, see Olga Baranoff & Zachary Norris, A closer look at the role of litigation and opposition in transmission projects undergoing federal permitting, NISKANEN CENTER (Mar. 4, 2024), https://www.niskanencenter.org/a-closer-look-at-the-role-of-litigation-and-opposition-in-transmission-projects-undergoing-federal-permitting/. ↩︎
84. See Appendix, List of Transmission Line Case Studies, for in-depth project reviews. ↩︎
85. See Appendix, List of Transmission Line Case Studies, for in-depth project reviews. ↩︎
86. “Transmission stakeholders” refers to transmission permitting experts, transmission developers, federal officials with knowledge of and experience in transmission siting and permitting, and representatives from Tribal entities and utilities. ↩︎
87. As aptly put by Jennifer Pahlka in her book Recoding America, “Whether fed by one source or many, waterfalls determine how information, insights, agency, and power flow. The flow goes only one way: down.” JENNIFER PAHLKA, RECODING AMERICA: WHY GOVERNMENT IS FAILING IN THE DIGITAL AGE AND HOW WE CAN DO BETTER 60 (2023). This problem was also noted by legal scholar and former Deputy Secretary of the Department of Interior David J. Hayes: “The linear approach to federal permitting causes problems because when agencies are on the sidelines until late in the process, the project that they are finally presented with is likely to have well-defined and studies features that have been through an EIS process and have been validated by the lead agency. If these late-reviewing agencies identify a serious flaw in the project that was overlooked by, or was not in the jurisdictional purview of the lead agency, it may be too late to reorient the project to avoid that result. What might have been a relatively easy adjustment for a project proponent to make early in the permitting process, before the EIS was prepared and the lead agency completed its work, now becomes difficult or impossible.” David J. Hayes, Leaning on NEPA to Improve the Federal Permitting Process, 45 ENV’T L. REP. 10018, 10019 (2015), https://law.stanford.edu/wp-content/uploads/sites/default/files/publication/824999/doc/slspublic/Hayes%2025%20ELR%2010018%20Leaning%20on%20NEPA.pdf. ↩︎
88. Delays in the NEPA process are often due to “inadequate agency budgets, staff turnover, delays receiving information from permit applicants, and compliance with other laws.” John C. Ruple, et al., Evidence-Based Recommendations for Improving National Environmental Policy Act Implementation, 47 Columbia J. ENV’T L. S (2022), https://journals.library.columbia.edu/index.php/cjel/article/view/9479. ↩︎
89. Permitting Processes at the Department of the Interior and the Federal Energy Regulatory Commission for Energy and Resource Infrastructure Projects, 115th Cong. 46-47 (2017) (testimony by Roxane Perruso, Vice President & Associate General Counsel of The Anschutz Corporation), https://www.congress.gov/115/chrg/CHRG-115shrg28096/CHRG-115shrg28096.pdf. ↩︎
90. Id. ↩︎
91. Permitting Council, Permitting Dashboard, https://www.permits.performance.gov/projects (last visited Mar. 12, 2024). ↩︎
92. BLM, Record of Decision SunZia Southwest Transmission Project Right-of-Way Amendment, at 16 (May 16, 2023), https://eplanning.blm.gov/public_projects/2011785/200481766/20078613/250084795/20230517%20SunZia%20ROD_508.pdf. ↩︎
93. On January 30, 2024, the Tohono O’odham Nation, San Carlos Apache Tribe, Center for Biological Diversity, and Archaeology Southwest filed a motion for preliminary injunction, seeking to halt construction of the SunZia transmission line and alleging that BLM inadequately considered Traditional Cultural Property under the NHPA. As of the date of publication of this report, the litigation is ongoing. Pls.’ Mot. for TRO and Prelim. Inj., Request for Expedited Hr’g, and Mem. of P. & A., Tohono O’odham Nation et al. v. U.S. Dep’t of Interior et al., No. 4:24-CV-00034 (D. Ariz. Jan. 30, 2024) (ECF No. 16). ↩︎
94. E.g., lines that enhance national energy security and reliability, lines that facilitate efficient and sustainable energy interstate transmission from production to consumption sites, and lines that promote interregional cooperation and economic growth.  ↩︎
95. One example, which has had some success in the transmission planning space, is the Joint Federal-State Task Force on Electric Transmission, in which FERC and NARUC participate. https://www.ferc.gov/TFSOET (last updated Mar. 5, 2024). ↩︎
96. Press Release, Dep’t of Interior, Biden-Harris Administration Approves Sixth Offshore Wind Project (Nov. 21, 2023), https://www.doi.gov/pressreleases/biden-harris-administration-approves-sixth-offshore-wind-project. ↩︎
97. Brad Plumer, Massachusetts Switches On Its First Large Offshore Wind Farm, N.Y. TIMES (Jan. 4, 2024), https://www.nytimes.com/2024/01/04/climate/vineyard-wind-massachusetts.html. ↩︎
98. See Renewable Energy Modernization Rule, 88 Fed. Reg. 5968 (Jan. 30, 2023). ↩︎
99. 42 U.S.C.A. § 4336a(g)(1)(A) (2023). ↩︎
100. See Letter from Niskanen Center to U.S. Dep’t of Energy (Oct. 2, 2023), https://www.niskanencenter.org/wp-content/uploads/2023/10/Niskanen-DOE-NOPR-CITAP-Comments.pdf. ↩︎
101. See https://www.ferc.gov/media/pre-filing-environmental-review-process (includes pre-filing
     process flowchart) (last visited Mar. 13, 2024); see generally FERC’s eLibrary, linking to pre-filing and other dockets, https://elibrary.ferc.gov/eLibrary/search. ↩︎
102. See Appendix, case studies: 2. TransWest Express Transmission Project; 6. Hampton-Rochester-La Crosse Transmission System Improvement Project; 21. SunZia Southwest Transmission Project; 23. Surry-Skiffes Creek-Whealton Project; 28. Ten West Transmission Line Project. ↩︎
103. See also, Jamie Pleune, Choosing between Environmental Standards and a Rapid Transition to Renewable Energy is a False Dilemma, ROOSEVELT INST. 15 (May 2023), https://rooseveltinstitute.org/wp-content/uploads/2023/05/RI_Choosing-between-Environmental-Standards-and-a-Rapid-Transition-to-Renewable-Energy-Is-a-False-Dilemma_Brief_202305-1.pdf. ↩︎
104. 88 Fed. Reg. at 55828; see also above note 69. ↩︎
105. White House, Building a Clean Energy Economy: A Guidebook to the Inflation Reduction Act’s Investments in Clean Energy and Climate Action (Jan. 2023), https://www.whitehouse.gov/wp-content/uploads/2022/12/Inflation-Reduction-Act-Guidebook.pdf.  ↩︎
106. See, e.g., U.S. Dep’t Transp. Fed. Highway Admin., Improving Collaboration and Quality Environmental Documentation (eNEPA and IQED), https://www.fhwa.dot.gov/innovation/pdfs/factsheets/edc/edc-3_factsheet_e-nepa.pdf (last visited Mar. 13, 2024). ↩︎
107. See Appendix, case study: 18. Tehachapi Renewable Transmission Project. ↩︎
108. See Appendix, List of Transmission Line Case Studies, for in-depth project reviews. ↩︎
109. “Transmission stakeholders” refers to transmission permitting experts, transmission developers, federal officials with knowledge of and experience in transmission siting and permitting, and representatives from Tribal entities and utilities. ↩︎
110. See Appendix, case study: 3. Boardman to Hemingway Transmission Line ↩︎
111. “The Department may not find the site certificate application to be complete before receiving copies of all federally-delegated permit applications and a letter or other indication from each agency responsible for issuing a federally-delegated permit stating that the agency has received the permit application, identifying any additional information the agency is likely to need from the applicant and estimating the date when the agency will complete its review and issue a permit decision.” OR. ADMIN R. 345-021-0000(6) (2024). ↩︎
112. See Appendix, case study: 21. SunZia Southwest Transmission Project. ↩︎
113.  Rio Grande Agric. Land Tr., Protect Our Migratory Birds: Demand SunZia Energy Bury Rio Grande Transmission Lines (Mar. 8, 2019), https://rgalt.org/protect-our-migratory-birds/. ↩︎
114. See Appendix, case study: 37. Plains and Eastern Clean Line. ↩︎
115. Plains and Eastern Clean Line, Project Proposal for New or Upgraded Transmission Line Projects Under Section 1222 of The Energy Policy Act of 2005, (Jul. 2010), https://www.energy.gov/sites/prod/files/Plains%20%26%20Eastern%20Clean%20Line%20Transmission%20Project%20Application.pdf at 2. ↩︎
116. See Order No. 9, In re Application of Plains and Eastern Clean Line LLC, No. 10-041-U, at 11 (Ark. Pub. Serv. Comm’n Jan. 11, 2011), http://www.apscservices.info/pdf/10/10-041-u_41_1.pdf at 11. ↩︎
117. Wesley Brown, Controversial $2.5 billion Clean Line project stalled; will evaluate options, officials say, TALK BUS. & POL. (Jan. 3, 2018), https://talkbusiness.net/2018/01/controversial-2-5-billion-clean-line-project-stalled-will-evaluate-options-officials-say/. ↩︎
118. Patrick Lantrip, Winds of Change: How massive energy project would fit into the local power structure, MEMPHIS DAILY NEWS (Jun. 3, 2017), https://www.memphisdailynews.com/news/2017/jun/3/winds-of-change/print. ↩︎
119. Michelle Froese, NextEra acquires Oklahoma portion of Plains & Eastern Clean Line transmission project,
     WINDPOWER ENG’G & DEV. (Dec. 27, 2017), https://www.windpowerengineering.com/nextera-acquires-oklahoma-portion-plains-eastern-clean-line-transmission-project/. ↩︎
120. See Appendix, case study: 1. Southline Transmission Line Project. ↩︎
121.  For example, DOE GDO currently administers a Tribal Nation Offshore Wind Transmission Technical Assistance Program, which offers capacity building through educational resources and provides on-call assistance from experts. See more information at: https://www.energy.gov/gdo/tribal-nation-offshore-wind-transmission-technical-assistance-program. ↩︎
122. DOE Grid Deployment Off., Transmission Siting and Economic Development (TSED) Program: What Siting Agencies Need to Know (Oct. 2023), https://www.energy.gov/sites/default/files/2023-10/102023_TSED-SitingAuthorities.pdf. ↩︎
123. CEQ, “Environmental Collaboration and Conflict Resolution (ECCR): Enhancing Agency Efficiency and Making Government Accountable to the People. A Report from the Federal Forum on Environmental Collaboration and Conflict Resolution,” (May 2, 2018), https://ceq.doe.gov/docs/nepa-practice/ECCR_Benefits_Recommendations_Report_%205-02-018.pdf. ↩︎
124. 42 U.S.C. § 4370m-1(c)(3)(B) (2022).  ↩︎
125. 42 U.S.C. § 4370m-8(d) (2022). ↩︎
126. 16 U.S.C. § 824p(b) (2022). ↩︎
127. Streamlining Interstate Transmission of Electricity or “SITE Act”, S. 946, 118th Cong. (1st Sess. 2023), https://www.congress.gov/bill/118th-congress/senate-bill/946. ↩︎
128. Clean Electricity and Transmission Acceleration Act of 2023, H.R.6747, 118th Cong. (1st Sess. 2023), https://www.congress.gov/bill/118th-congress/house-bill/6747. ↩︎
129. See Appendix, case studies: 3. Boardman to Hemingway Transmission Line; 6. Hampton-Rochester-La Crosse Transmission System Improvement Project; 8. Sun Valley to Morgan Transmission Line Project; 9. Antelope Valley Station-Neset Transmission Line; 10. Central Ferry-Lower Monumental Transmission Line Project; 12. City of Tallahassee Southwestern Transmission Line; 13. Tropic to Hatch Transmission Line Project; 14. Barren Ridge Renewable Transmission Project; 16. Bemidji-Grand Rapids Transmission Line Project; 20. New England Clean Power Link; 26. Great Northern Transmission Line; 30. Cardinal-Hickory Creek Transmission Line Project; 31. Mona to Oquirrh Transmission Corridor Project; 34. Northern Pass Project; 35. Potomac-Appalachian Transmission Highline. ↩︎
130. See, e.g., Appendix, case studies: 18. Tehachapi Renewable Transmission Project and 36. San Luis Transmission Project. ↩︎
131. Whitney Hodges, 2023 Year-in-Review CEQA Litigation, 14 NAT’L L. REV. 73 (Jan. 29, 2024), https://www.natlawreview.com/article/2023-year-review-ceqa-litigation (“Despite repeated attempts at reform by the Legislature, [CEQA] continues to be a minefield for those assigned with the herculean task of complying with the law’s myriad of directives.”); Perkins Coie LLP, Governor Newsom Proposes CEQA Reform  (May 22, 2023), https://www.perkinscoie.com/en/news-insights/governor-newsom-proposes-ceqa-reform.html. To promote efficient and effective environmental reviews, the CEQ and the California Governor’s Office of Planning and Research jointly issued a Handbook for Integrating California State and Federal environmental reviews. NEPA & CEQA, Integrated Federal and State Environmental Reviews (Feb. 2014), https://ceq.doe.gov/docs/ceq-publications/NEPA_CEQA_Handbook_Feb_2014.pdf. ↩︎
132. 40 C.F.R. § 1501.12 (2023). ↩︎
133. See Appendix, for relevant case study: 6. Hampton-Rochester-La Crosse Transmission System Improvement Project. ↩︎
134. For example, Massachusetts, Rhode Island, and Connecticut entered into an MOU to coordinate their selection of offshore wind projects to maximize regional benefits and reduce costs. This kind of coordination could serve as a model for interstate coordination on transmission. See Conn., R.I., Mass., Memorandum of Understanding on Offshore Wind Multi-State Coordination (Oct. 3, 2023), https://energy.ri.gov/sites/g/files/xkgbur741/files/2023-10/MA-RI-CT%20Offshore%20Wind%20Procurement%20Collaboration%20Memorandum%20of%20Understanding%20–%20Final%2010-3-23%20CEM%20Sig%5B45%5D.pdf. See also CEQ, in collaboration with states and local jurisdictions that have environmental review processes, has been preparing memoranda which compare and contrast state and local environmental review requirements with NEPA requirements. As CEQ notes, the memoranda are “designed to…find opportunities to realize efficiencies through collaboration with state and local governments by aligning, where appropriate, combining the environmental review process, https://ceq.doe.gov/laws-regulations/States.html (last visited Mar. 13, 2024). ↩︎
135. See Appendix, for relevant case study: 3. Boardman to Hemingway Transmission Line. ↩︎
136. For example, a bill introduced during Oregon’s 2024 legislative session would have excluded renewable energy facilities or transmission lines proposed wholly on federal lands and subject to NEPA review from additional state-level review. See HB 4090, 82nd Legislative Assembly (Oregon, 2024), https://olis.oregonlegislature.gov/liz/2024R1/Measures/Overview/HB4090. ↩︎
137. For example, the District Court for the Middle District of Pennsylvania issued a decision in December 2023 limiting state authority to deny transmission projects that a Regional Transmission Organization had determined were needed. See Transcource Pennsylvania, LLC v. Steven M. Defrank, et al, 1:21-CV-01101 (M.D. Pa. Dec. 6, 2023), https://casetext.com/case/transource-pa-llc-v-defrank. ↩︎
138. See Appendix, List of Transmission Line Case Studies for in-depth project reviews. ↩︎
139. “Transmission stakeholders” refers to transmission permitting experts, transmission developers, federal officials with knowledge of and experience in transmission siting and permitting, and representatives from Tribal entities and utilities. ↩︎
140.  See Appendix, for relevant case study: 26. Great Northern Transmission Line. ↩︎
141. See Dep’t of Energy Grid Deployment Off., Presidential Permits,  https://www.energy.gov/gdo/presidential-permits (last visited Mar. 13, 2023). ↩︎
142. Compared with an average of 4.3 years as indicated by findings from our data analysis, See Section C. ↩︎
143. MINN. STAT. § 216E.03(Subd. 3a, Subd3b), requires any utility that is planning to file an application for a route permit with the Minnesota PUC for a new transmission project to notify local governmental officials within a possible route of the existence of the project and the opportunity for a pre-application meeting. ↩︎
144. Of course, keeping in mind the pending Supreme Court case that will likely impact Chevron deference to agency decision-making. Loper Bright Enters., Inc. v. Raimondo, 45 F.4th 359 (D.C. Cir. 2022), cert. granted in part, 2023 WL 3158352 (2023) (granting the petition as to Question 2: “Whether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly
     granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.”)  ↩︎
145. See Appendix, case studies: 1. Southline Transmission Line Project; 15. Hooper Springs Transmission Project; 17. Sigurd to Red Butte Transmission Line Project; 21. SunZia Southwest Transmission Project; 26. Great Northern Transmission Line; 28. Ten West Link Transmission Line Project; 33. Devers-Palo Verde No. 2 Transmission Line; 37. Plains and Eastern Clean Line. ↩︎
146. Minn. Elec. Transmission Plan., Transmission Projects Report 2013 (Nov. 1, 2013),  https://www.minnelectrans.com/documents/2013_Biennial_Report/html/Ch_4_Public_Participation.htm. ↩︎
147. Eleanor Stein & Mike O’Boyle, Siting Renewable Generation: The Northeast Perspective  (March 2017), https://energyinnovation.org/wp-content/uploads/2020/01/siting-renewable-generation.pdf. ↩︎
148. See above note 83. ↩︎
149. Exec. Order No. 13175, 65 Fed. Reg. 67249 (Nov. 9, 2000); White House, Memorandum for the Heads of Executive Departments and Agengies on Uniform Standards for Tribal Consultation (Nov. 30, 2022), https://www.whitehouse.gov/briefing-room/presidential-actions/2022/11/30/memorandum-on-uniform-standards-for-tribal-consultation/; https://www.achp.gov/government-to-government (last visited Mar. 13, 2024). ↩︎
150. See Appendix, case studies: 26. Great Northern Transmission Line; 33. Devers-Palo Verde No. 2 Transmission Line. ↩︎
151. FERC, Suggest Best Practices for Industry Outreach Programs to Stakeholder 1, 3 (Jul. 2015), https://www.ferc.gov/sites/default/files/2020-04/stakeholder-brochure.pdf. ↩︎
152. Id. at 17. ↩︎
153. Id. ↩︎
154. See Applications for Permits to Site Interstate Electric Transmission Facilities, 88 Fed. Reg. 2770 (Jan 17, 2023). ↩︎
155. See above note 73, 88 Fed. Reg. 55826. ↩︎
156. Id. at  55828. ↩︎
157. FERC in early 2023 issued a Notice of Proposed Rulemaking to update backstop siting authority that would, if adopted, allow developers to start pre-filing process with FERC at the same time they start state permitting process (cutting down on delays if backstop siting ultimately becomes primary). See above note 154, 88 Fe. Reg. 2770. ↩︎
158. For example, the USDA Rural Utilities Service requires applicants to submit special preliminary studies when applying for financing assistance for classes of electric generation and/or transmission projects that require preparation of an EIS. These preliminary studies are the Alternative Evaluation Study, the Site Selection Study and the Macro-Corridor Study. 7 C.F.R. § 1794.51(c) (2024). ↩︎
159. See Appendix, case studies: 2. TransWest Express Transmission Project; 11. Vantage to Pomona Heights Transmission Line Project; 15. Hooper Springs Transmission Project; 18. Tehachapi Renewable Transmission Project; 21. SunZia Southwest Transmission Project; 22. Gateway South Transmission Project-Segment F; 36. San Luis Transmission Project. ↩︎
160. Southline Transmission Line Project Environmental Impact Statement, 81 Fed. Reg. 22076 (Apr. 14, 2016). ↩︎
161. Id. at 22077. ↩︎
162. As required under the FRA NEPA amendments, an EIS must consider a “reasonable range” of alternatives that includes a consideration of “any negative environmental impacts of not implementing the proposed agency action in the case of the no action alternative,” signaling the benefits of agency action. 42 U.S.C. § 4332(2)(C) (2022). ↩︎
163. See USDA Rural Dev., Exhibit D-8: Guidance for Preparing a Macro-Corridor Study (Sept. 2011) https://www.rd.usda.gov/sites/default/files/Macro-CorridorStudyGuidance.pdf. ↩︎
164. National Environmental Policy Act Implementing Procedures, 88 Fed. Reg. 78681 (Nov. 16, 2023). ↩︎
165. See Appendix, case studies: 5. Susquehanna to Roseland Transmission Line; 7. Southwest Intertie Project-South. ↩︎
166. 40 C.F.R. § 1502.4(b) (2024). ↩︎
167. 40 C.F.R. § 1501.11 (2024). ↩︎
168. Aspen Inst. Energy & Env’t Program, Building Cleaner, Faster: Final Report 1 (2021), https://www.aspeninstitute.org/wp-content/uploads/2021/06/Building-Cleaner-Faster-Final-Report.pdf. ↩︎
169. See BLM, BLM National Register for Draft Utility-Scale Solar Energy Development PEIS/RMPA, Document No. DOI-BLM-HQ-3000-2023-0001-RMP-EIS, https://eplanning.blm.gov/eplanning-ui/project/2022371/570 (last visited Mar. 13, 2024). ↩︎
170. BLM, Draft Programmatic Environmental Impact Statement for Utility-Scale Solar Energy Development, Doc. No. DOI-BLM-HQ-3000-2023-0001-RMP-EIS, 2-40–2-47 (Jan. 2024), https://eplanning.blm.gov/public_projects/2022371/200538533/20102762/251002762/2023%20Draft%20Solar%20PEIS%20Volume%201%201-10-2024_508compliant.pdf.  ↩︎
171.  Letter from Oceti Sakowin Power Authority to DOEon Comments to Docket DOE–HQ–2023–0050: Coordination of Federal Authorizations for Electric Transmission Facilities, at 4 (Oct. 2, 2023), https://www.regulations.gov/comment/DOE-HQ-2023-0050-0039. ↩︎
172. See, e.g., collaboration as cooperating agencies, 40 C.F.R. 1501.8; tiering, 40 C.F.R. 1501.11; incorporation by reference, 40 C.F.R. 1501.12; and adoption, 40 C.F.R. 1506.3. ↩︎