Crossed Wires and Split Circuits: Transmission Rights of First Refusal
As population growth and increased electrification rapidly raise demand for power, U.S. electric grids are struggling to keep pace, and the need for more transmission capacity is pressing. The U.S. Congress has delegated its interstate commerce authority to the Federal Energy Regulatory Commission to regulate interstate transmission rates. Meanwhile, states regulate intrastate transmission rates. What is perhaps surprising, though, is the fact that states generally have authority over the siting and construction of interstate transmission lines. This complex division of jurisdiction means that states have a certain level of control over the future of interstate transmission, which can (and has) led to questions of exactly where a state’s authority ends. Some states have tested this boundary more than others—with mixed results. This Comment analyzes recent challenges to Minnesota and Texas laws that have led to a current circuit split as to the constitutionality of state restrictions on transmission buildout.