Here is a letter from New Mexico Sen. Jeff Bingaman to FERC Chairman Jon Wellinghoff dated September 9, 2011. Sen. Bingaman, Chairman of the Senate Energy Committee, clearly tells FERC to butt out of the business of getting the Dept. of Energy to delegate the authority Congress granted DoE in the 2005 Energy Policy Act.
In no uncertain terms, Sen. Bingaman, one of the architects of the federal transmission siting parts of the law, tells Chairman Wellinghoff that only Congress can change the terms of the law, and that FERC’s attempted end run around Congress is not a good idea.
Sen. Bingaman even throws the Federal 4th Circuit Piedmont Environmental Council opinion back in FERC’s face:
In enacting section 216, “Congress intended only a measured, although important, transfer of jurisdiction to FERC,” not “the sweeping transfer of jurisdiction” that some of us might have preferred. Piedmont Environmental Council v. FERC, 558 F.3d 304, 314 (4th Cir. 2009), cert. denied, 130 S. Ct. 1138 (2010). “Unifying” in the Commission authorities that Congress intentionally separated would eliminate one of the important checks-and-balances that Congress thought essential to limit the transfer of jurisdiction, and it would pave the way for the Commission to use the newly consolidated powers in ways never intended by Congress.
Sen. Bingaman also gives Chairman Wellinghoff a lecture on the subject of state sovereignty with regard to transmission siting:
The simple fact is that the States, rather than Commission, have always had exclusive, plenary jurisdiction over electric transmission siting, and Congress has been reluctant to transfer that authority to the Commission. Congress was willing, in enacting section 216, to give the Commission “limited federal backstop siting authority,” S. Rept. 109-78, at 48, but only within areas that the Secretary of Energy had already independently determined were suffering “transmission capacity constraints or congestion that adversely affects consumers,” and even then, only within certain narrowly prescribed parameters spelled out in the statute.
This letter from Sen. Bingaman is a clear signal to the Wellinghoff at FERC, Sec. Chu at the DoE and the Obama Administration, that the Senate will not tolerate any attempt to rewrite federal law by administrative skullduggery.