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U.S. Supreme Court Reject State Attorney General’s Plea to Intervene in Regional Grid Project
On June 8th the U.S. Supreme Court rejected Pennsylvania Attorney General Dave Sunday’s plea to intervene in Transource Pennsylvania LLC’s blocked electricity transmission line proceeding. The rejected intervention plea maintains a Third Circuit ruling federally preempting the Pennsylvania Public Utilities Commission’s (PUC’s) authority to block the project.
Given the Supreme Court’s ruling not to review the matter means that Transource Pennsylvania is allowed to proceed with its interstate transmission project, overcoming the prior PUC rejections.
As background, Transource Pennsylvania LLC had proposed a high-voltage regional grid project that ran across Pennsylvania and Maryland. The Pennsylvania PUC had rejected the proposed project in May 2021 largely relying upon state verses federal authority. Here it is important to note that the Federal Energy Regulatory Commission (FERC) had previously approved the regional project. In denying the project, the Pennsylvania PUC relied upon the argument that its state authority over the project ‘trumped’ FERC’s authority.
When the Pennsylvania PUC chose not to appeal the Third Circuit’s ruling, Attorney General Dave Sunday attempted to step into the litigation to defend the state’s interests in land use regulations.
At the U.S. Court of Appeals level, the Third Circuit ruled that the Pennsylvania PUC’s denial of the project was federally preempted. It held that states cannot use local permitting and siting authority to veto regional grid-planning projects previously approved by FERC.
In Transource Pennsylvania LLC v. Pennsylvania Public Utility Commission, the U.S. Third Circuit Court of Appeals ruled that the Supremacy Clause of the U.S. Constitution preempts state PUC authority from vetoing interstate transmission projects that have been federally approved by regional grid operators.
Plaintiffs-Appellee Transource Pennsylvania LLC (“Transource”) challenged the decision of the Pennsylvania PUC to deny Transource’s application to construct a portion of an interstate transmission line in Pennsylvania. Under Pennsylvania law, the PUC may grant an application only if it finds that there is a need for the project. Transource claimed, and the district court agreed, that the PUC’s conclusion about “need” in this case is: 1) preempted by a PJM finding that Transource’s project is economically beneficial; and 2) in violation of the dormant Commerce Clause.
See: Transource Pennsylvania, LLC v. DeFrank, No. 1:21-CV-01101, 2023 WL 8457071 (M.D. Pa. Dec. 6, 2023) (J.A. 4 – 65) (“Transource Decision”).
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