Keeping Alive Paris Accord 1.5 in the U.S.
By Jeffrey D. Watkiss
November brought a confluence of efforts to limit global warming to the Paris Accord target of a 1.5 degree Celsius (2.7 degrees Fahrenheit) above the pre-industrial level. Here in the U.S. the newly enacted Infrastructure Investment and Jobs Act allocates $1.2 trillion to infrastructure, with a substantial portion devoted to decarbonizing the power and transportation sectors and strengthening the electric grid. The United Nations convened session 26 of the Conference of the Parties (COP-26) asking nations to “keep 1.5 alive” by achieving net-zero emissions of climate heating gases by 2050. The U.S. Federal Energy Regulatory Commission (FERC) convened a technical conference to reform its regulation of electricity transmission planning in ways that may help the U.S. achieve its 1.5 commitment. And social critic-comedian John Oliver took a deep dive into the failing U.S. power grid in a spot-on Last Week Tonight episode (watch the episode below), inviting the public into a critical conversation until now confined to energy policy wonks.
Let’s start with Oliver, ever insightful and more accessible and entertaining than COP-26 committee reports or the small print of infrastructure legislation. To achieve net-zero emissions in the U.S. and keep 1.5 alive, the power grid will need to deliver to households, businesses, industry, and electric vehicle charging stations electricity from non-emitting sources that will replace coal, fuel oil, natural gas, and gasoline. Oliver eases his viewers into the complexity of the power grid. He starts with our increasing dependence on electric power, beginning with 1950’s innovations in thermostats (for men) and electric irons (for women). He offers up a history of electricity supply from Thomas Edison’s topographically constrained direct-current Pearl Street station in lower Manhattan to Nicola Tesla’s research in alternating current capable of sending electric power over greater distances. A link to the show is below.
Oliver then overviews today’s high-voltage network, extended to rural communities through the Rural Electrification Administration of 1935, to today’s half-century-old electric grid that is getting longer-in-the-tooth by the day, neglected by its profit-driven owners—case in point, Pacific Gas and Electric—and ravaged by climate-change driven fires and floods (not to mention Oliver spotted errant birthday helium balloons).
Oliver concludes with a plea for authorities to upgrade the power grid to support access to a zero-carbon-emitting resource mix of electricity generation. Pointing to a Princeton University study map, Oliver focuses on the need to connect largely disconnected offshore and midwestern wind-energy resources and desert-southwest sun resources to places where the lion’s share of energy is consumed, mostly on the Nation’s coasts.
In the Energy Policy Act of 2005, Congress made a play in that direction in an amendment to Part II of the Federal Power Act (FPA) by granting the Department of Energy (DOE) limited federal authority to create National Interest Electric Transmission Corridors (NIETC) to connect generation to demand through several coast-to-coast high-voltage direct-current transmission lines. However, displacing the “National” in NIETC, that initiative went down in flames due to state opposition grounded largely in NIMBYism embraced by the a 2009 majority (2-1) decision of the U.S. Court of Appeals for the 4th Circuit (Piedmont Env’t Council v. FERC, 558 F.3d 304 (4th Cir.2009)) and a 2011 legally limp majority (2-1) decision of the U.S. Circuit Court of Appeals for the 9th Circuit (CA Wilderness Coalition v. DEA, 631 F.3d 1072 (9th Cir. 2011)).
Segue to the U.S. infrastructure bill President Biden just signed into law. Beyond investments in roads, bridges, broadband, and ports, the law addresses electricity supply, storage, and deliverability and, perhaps most importantly, how these components of the electric grid need to be upgraded and connected seamlessly, as Oliver advocated. Specifically, the new law continues to require the Secretary of Energy to identify NIETCs and empowers FERC to permit transmission line construction within NIETCs, supported by eminent domain authority to acquire rights of way.
But unlike the 2005 NIETC provision, the new infrastructure law eliminates the state veto.
In permitting transmission construction, FERC still will be required to comply with applicable environmental laws, such as the National Environmental Policy Act, but both it and DOE can now proceed with essential transmission lines within NIETCs, free of provincial NIMBYism. And they had better do so soon. A recent and copiously documented International Energy Agency report confirms that if climate-warming emissions from fossil-fuel generation are not throttled now—not later—1.5 (or anything even close) will be unattainable.
In tandem with the infrastructure law’s NIETC amendment, an ongoing FERC rulemaking could also keep 1.5 alive and in reach in the U.S. This rulemaking, announced in July 2021 (FERC Docket RM21-17), proposes to update FERC’s electricity transmission planning requirements so that the grid can seamlessly connect a mix of net-zero emission resources with distant centers of electricity consumption.
Critical to making this a success is a sensible application of FERC’s cost-causation principle. That principle holds that the beneficiaries of billions of dollars in needed grid investments—developers of zero-emission generation resources and consumers of the power and related services that the new mix of resources provides—should shoulder most of those costs. For too long, however, that principle has been applied myopically to burden unduly net-zero emission developers and their consumers, ignoring the widespread societal benefits of clean energy and greater access to it. In future applications, FERC’s cost-causation principle should account for all benefits, including reliability, reduced emissions of greenhouse gases and other pollutants, as well as other environmental improvements on the path to 1.5.
In the context of well-defined NIETCs and FERC’s muscled-up permitting authority, free of state obstruction, essential transmission grid buildouts could be fast-tracked and cost-responsibility fairly allocated consistent with a realistic accounting of widely shared benefits. Energy Secretary Granholm should take DOE’s existing NIETC authority, coordinate it closely with FERC’s new and expanded permitting authority, perfect both in transparent consultation with stakeholders, and then run with it very fast. For its part, FERC should move rapidly ahead with its transmission planning rulemaking and, in coordination with DOE, expeditiously implement its backstop authority to permit essential transmission lines.
Thanks John Oliver. Please keep all of us laughing (as painful as it may be) and committed to Paris 1.5.
Mr. Watkiss is a member of the District of Columbia and New York bar associations, with over 40 years of experience in energy and environmental law.