Energy Policy Act of 2005: Pseudo-Fed for Transmission Congestion


  • Alexander K. Obrecht



Increasing federal involvement in the wholesale electricity market, and the ever-important emphasis on renewable energy resources, exposed the inadequacies of the existing transmission infrastructure. The Energy Policy Act of 2005 (EPAct 2005) attempted to address the transmission problems but
failed to adequately consolidate federal power over transmission siting. The resulting atmosphere presents an unsustainable dichotomy in which federal involvement encourages generation dependent upon transmission access, while state control over transmission siting impedes the necessary investment and capital improvement. Despite the efforts of EPAct 2005, a coherent and effective national energy policy remains unobtainable without the ability to incentivize generation and guarantee access to transmission by facilitating its development across state lines.

This note proceeds in two sections. First, the background section provides a brief history of federally mandated deregulation in the wholesale electricity market. A brief summary of EPAct 2005 then explains Congress's attempt to encourage transmission investment by allowing limited federal jurisdiction over the siting process. Second, the note analyzes the current pressures exerted on the transmission grid by renewable energy and inadequate state siting processes. The analysis then addresses the judicial interpretations of EPAct 2005 and how the United States Courts of Appeals delayed federal jurisdiction over transmission siting for the foreseeable future.