Right of First Refusal – the Battle Intensifies

Published: May 12, 2023

By: Danielle Powers, Executive Vice President

There is no question that expanding the electric transmission system is a key factor in achieving the nation’s clean energy goals. The most efficient way to ensure that this happens, however, is being strongly debated.

FERC Order 1000 established reforms in transmission planning and cost allocation, and eliminated the Right of First Refusal (ROFR) for those incumbent utilities involved in regional or inter-regional infrastructure construction, with limited exceptions.1 In Order 1000, FERC reasoned that by eliminating long-standing monopolies, competition would be created, and innovation and cost savings would result. In eliminating utilities’ monopoly over regional transmission, however, FERC expressly left it to states to enact their own ROFR laws.

Utilities in Kansas, Missouri, Oklahoma, Mississippi, and Montana have successfully persuaded lawmakers to prioritize ROFR legislation. Indiana recently passed ROFR legislation, and legislation is anticipated in other midwestern states this year. States including North and South Dakota, Nebraska, Texas, Iowa, and Michigan have ROFR laws in place.

ROFR issues are also being re-examined at the federal level. Questions around the effectiveness of competition in transmission have prompted the FERC to consider giving incumbent utilities the right to build regional transmission if they partner with one or more unaffiliated, non-incumbent partners.

Critics of the ROFR argue that it can limit competition and innovation in the industry. By granting the incumbent transmission provider the first opportunity to continue providing service, it can create a barrier to entry for other providers who may be better suited to meet the needs of the market. Additionally, the ROFR can limit consumers’ ability to access alternative sources of energy and limit the development of renewable energy sources.

These arguments have recently carried the day in Iowa, where the battle over who should be able to build and own the regional transmission projects necessary to support grid reliability and the shift toward renewable energy is currently playing out.

The Iowa Supreme Court recently halted a 2020 order giving incumbent utilities in Iowa the right of first refusal to build proposed transmission projects. Stating that the 2020 law would stifle competition and harm the business interests of out-of-state companies, the Iowa Supreme Court sent the case back to the district court to decide whether the ROFR is unconstitutional. The temporary injunction affects five transmission projects totaling about $2.64 billion that ITC Midwest, MidAmerican Energy and Cedar Falls Utilities intend to build in Iowa. The projects are part of the Midcontinent Independent System Operator’s Long Range Transmission Planning Tranche 1 projects, approved last year.

The battle over who builds the grid of the future will continue to be fiercely debated. Protracted debate, however, risks the grid transformation necessary to enable a clean energy future.

All views expressed by the author are solely the author’s current views and do not reflect the views of Concentric Energy Advisors, Inc., its affiliates, subsidiaries, or related companies. The author’s views are based upon information the author considers reliable at the time of publication. However, neither Concentric Energy Advisors, Inc., nor its affiliates, subsidiaries, and related companies warrant the information’s completeness or accuracy, and it should not be relied upon as such.

1 An incumbent utility is defined as an entity that develops a transmission project within its own retail distribution service territory or footprint.

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