Illustration: Brendan Lynch/Axios
Brace for legal challenges to FERC's transmission planning rule that could make or break power-line policy for years to come.
Why it matters: The next few months will shape the politics of the next Hill battles over transmission and show whether FERC's landmark order is liable to be overturned.
- Republicans will maneuver against proposals to more widely distribute the cost of transmission and require certain levels of capacity.
Driving the news: The commission finished collecting rehearing requests on the transmission rule last week.
- These are appeals for FERC to reconsider that precede any legal challenge. They come both from supporters — like wind and solar developers — and opponents, such as southern utilities and red-state regulators.
- Perhaps most importantly, 19 GOP states led by Texas have filed in opposition, arguing that it violates the "major questions" doctrine and that FERC lacks authority to require this kind of long-term transmission planning.
- That's going to inform how Republican AGs and others argue against FERC when they sue over the rule in federal court.
Between the lines: Opponents' arguments closely mirror some of what we've heard from Hill Republicans.
- Georgia's Public Service Commission argues that the FERC rule will "socialize" the costs of blue-state policies that attempt to spur a transition from fossil fuels to wind and solar.
The other side: States and consumer organizations — including the consumer advocates from six Northeastern states — have supported the order, which "takes wind out of the dissent sails claiming that the rule harms states and consumers," said Devin Hartman of R Street.
- But some have taken issue with the "right of first refusal" provision. That allows incumbent transmission providers to build certain lines without competitive bidding.
- The ROFR, Hartman said, "has been battleground central between utility and consumer groups throughout the rulemaking process."
What's next: Texas and its allies are likely to file soon in federal court, as will other interested parties.
- Then a lottery will determine which court hears the case.
- The judicial venue "could very well inform whether this rule survives," said Ari Peskoe, director of Harvard Law's Electricity Law Initiative.
What we're watching: The three newly confirmed commissioners could impact how the hearing process plays out, said former FERC Chair Neil Chatterjee.
- "Regardless of party affiliation, you're going to have some of these new commissioners who will have their own independent views on some of these complex issues," he said.
