When the Senate returns on November 9, a key procedural vote is expected on the Bipartisan American Affordability and Jobs Act of 2026, S. 5653. Introduced September 30 by Sens. Shelley Moore Capito (R-WV), Mike Lee (R-UT), Sheldon Whitehouse (D-RI), and Martin Heinrich (D-NM), the permitting package covers far more than transmission. But one provision in its transmission title has drawn the sharpest line between developers and state regulators. Section 2101 would rewrite Section 216 of the Federal Power Act, FERC’s backstop siting authority, by removing the condition that has kept that authority unusable for two decades.
The condition is a map that does not exist. Under current law, FERC may permit an interstate transmission line over a state’s objection only inside an area the Department of Energy has designated a National Interest Electric Transmission Corridor. On August 12, 2026, Secretary of Energy Chris Wright announced that DOE will not designate the three corridors that had reached the final phase of review: the Tribal Energy Access Corridor, the Southwestern Grid Connector Corridor, and the Lake Erie–Canada Corridor, selected in December 2024. The process that began in December 2023 is now complete, DOE confirms, with no corridors designated. A siting power exercisable only inside designated corridors therefore has, at present, nowhere to be exercised.
This is not the work of one administration. Congress created Section 216 in the Energy Policy Act of 2005, and it has never produced a permitted line. In 2009, the Fourth Circuit held in Piedmont Environmental Council v. FERC that a state’s outright denial did not count as “withholding approval,” so FERC could act only when a state failed to act. In 2011, the Ninth Circuit vacated DOE’s first two corridor designations for inadequate state consultation, and no corridor was designated after that until the process that ended this August. Congress amended Section 216 in 2021 so that a state denial can now trigger FERC review. But the corridor requirement survived, leaving the trigger behind a designation step no administration completed in fifteen years.
What Section 2101 would actually do
Section 2101 deletes the corridor step entirely. DOE’s authority to designate corridors would be repealed, the Congressional Research Service’s October 14 analysis says, and FERC’s permit authority would instead apply to most of the country, with the ERCOT area of Texas exempt. The state-side triggers are left untouched: FERC may act when a state siting authority has denied an application, withheld a decision for more than a year, or imposed conditions that make the project uneconomic or unable to meaningfully relieve congestion. What changes is not when FERC may step in, but where. Everywhere, rather than nowhere.
The bill also changes how the two reviews relate in time. Under FERC policy affirmed in Order No. 1977 in May 2024, a developer could not pre-file with FERC while its state application was pending. Section 2101 reverses that: pre-filing at FERC may begin before a state application and must begin no later than the state filing, and for lines of 345 kilovolts or above, a developer may file at FERC simultaneously with its state application, with FERC required to open a proceeding. For a 765-kilovolt line, the federal track runs alongside the state track from day one.
The eligibility tests are rewritten as well. FERC must find the facilities will carry power in interstate or foreign commerce, serve the public interest, protect or benefit consumers and improve reliability, and rate at least 230 kilovolts — or, for advanced conductors, a voltage FERC deems appropriate. The bill drops two current-law tests — national energy policy consistency and congestion reduction as a standalone requirement — and the voltage floor leaves states’ authority over lower-voltage and intrastate lines intact.
Two protections travel with the new authority: a public comment period of at least 45 days, landowner input FERC must take into account, and a state record FERC must consider. The state proceeding does not disappear when the federal one begins; it becomes evidence in it.
The Wisconsin test case
No place illustrates the stakes more concretely than southern Wisconsin, where two proposed 765-kilovolt lines — MariBell and BECI — have become the most organized transmission fight in the country. Both are part of MISO’s Tranche 2.1 regional plan, approved in 2024. MariBell would run roughly 140 miles from Marion, Minnesota, to Bell Center, Wisconsin; BECI, developed by Midcontinent Grid Solutions, would run roughly 190 miles across southern Wisconsin from Crawford County toward the Illinois border. Neither has PSC construction approval, and neither has reached the permit stage: MariBell’s developers expect to apply in the fourth quarter of 2026, BECI’s developer in early 2027.
What Wisconsin has produced so far is political organization, not a decision. On October 13, 173 residents from ten counties came to the Capitol for “A Day of Power,” meeting legislators or staff in 49 offices. Two days later, the PSC made the BECI developer’s application to operate as a Wisconsin utility a contested case — a trial-type proceeding with witnesses and evidence — with requests to intervene due October 29. According to the opposition group No 765 Line’s tracker, about 80 local governments had gone on record about the lines by October 10, nearly all opposing the lines or their routes.
That sequence is why Wisconsin is the wrong place to look for a simple story about a state saying no: the PSC has not said no, because it has not yet been asked, at least not for construction. What Section 2101 would change in Wisconsin is therefore not the outcome of a pending denial, but the bargaining position of everyone in the room before any denial happens. A developer that can file at FERC the same day it files at the PSC negotiates with a commission that knows a federal alternative exists, and the commission knows the developer knows it. The backstop’s most important effect may be felt in proceedings where it is never invoked.
Wisconsin also exposes a clock problem the bill does not resolve. Under state statute, the PSC has up to 30 days to find an application complete, then 180 days to decide, with up to 180 more for good cause — about 390 days while fully complying with state law, past the federal one-year trigger. Whether a diligent state proceeding counts as delay will be litigated in the first FERC case that tests it.
What backstop siting would change
The most concrete change is geography: removing the corridor requirement converts backstop authority from a power on paper into one that exists everywhere a qualifying interstate line is proposed, except ERCOT. A developer no longer needs to hope a future energy secretary designates a corridor covering its route — a hope that has failed twice in two decades. The August 12 announcement is what makes this provision read differently than it would have a year ago: the designation process has run to completion and produced nothing.
The second change is leverage, and it cuts both ways. Supporters argue a credible federal alternative disciplines state processes: commissions decide on the merits and on schedule, because the alternative to deciding is losing the decision. Critics argue the same leverage works in reverse: a commission weighing local harms against regional benefits will discount the local harms when it knows FERC can override them. Both claims can be true at once. A backstop is, by design, a threat that works best when it is not used.
The third change is the least discussed and most material to landowners: a FERC permit carries federal eminent domain authority. Under Section 216, a permit holder that cannot buy a right-of-way may condemn the land in court. Today that power reaches only corridors that do not exist; under Section 2101, it would reach any line FERC permits. This is the provision’s sharpest edge, and the reason the Wisconsin debate is framed in terms of land rather than electrons: the bill moves the final property decision for large interstate lines from a state commission to a federal one.
The fourth change is cost allocation, written as a protection. Section 2101 requires the owner of a FERC-permitted line to file a tariff allocating costs to benefiting customers, at least roughly commensurate with specified benefits — reliability, congestion, losses, capacity, reserves, cheaper power — and bars involuntary charges where benefits are nil or trivial relative to costs. That mirrors FERC’s beneficiary-pays policy for regionally planned lines, and answers the obvious objection: that a state whose commission rejected a line would still have to pay for it.
What it would not change
The list of what Section 2101 does not do disciplines the wilder claims on both sides. It does not give FERC authority over need in the first instance. A line still has to be proposed, planned, and justified — typically through a regional plan like MISO’s Tranche 2.1 — and states retain authority over need determinations, retail rates, and other approvals. A FERC permit answers the siting question, not whether the region needed the line, who should build it, or what retail customers should pay, except through the cost-allocation tariff.
Nor does it remove the other veto points, or build anything quickly. A FERC permit is a siting decision, not a waiver of environmental review or the other authorizations a large line requires, and a permitted line can still be litigated, as every previous attempt at federal siting was. Even if the bill passes, FERC would need to revise its siting regulations, and state proceedings, federal review, a 45-day comment period, and litigation would still stretch years. Section 2101 shortens the path from a state denial to a federal decision, not from a federal decision to steel in the ground.
Most importantly for the current debate, it does not decide any pending line. MariBell and BECI have no state denial to appeal from, and their developers have not filed construction applications. If the bill passes in its current form, the first Wisconsin case under it would still require a state proceeding, a trigger event, a FERC application, and FERC findings — a sequence measured in years, not months. Anyone describing Section 2101 as approving the Wisconsin lines is describing a different bill than the one filed on September 30.
The “shall” fight
That brings the debate to the two words both sides keep quoting. The bill provides that FERC “shall, after notice and an opportunity for hearing, including a public comment period of at least 45 days, issue one or more permits” for facilities “necessary in the national interest if the Commission finds” that the eligibility tests are met. Developers read that as a mandate: once FERC makes the findings, issuance follows as a matter of law. State regulators read it differently: the findings themselves — public interest, consumer benefit, improved reliability — are judgment calls, and a FERC not persuaded on them issues nothing.
Both readings are grammatically available, and that is the point. “Shall” attaches to issuance, but issuance is conditioned on findings that require FERC to be persuaded. The practical question is how much deference a court gives FERC’s findings, and how much weight the state record carries. The bill says FERC must consider the relevant parts of the state record and must take landowner input into account. It does not say FERC must agree with them. A commission that builds a thorough record on need, alternatives, and impacts is building the basis on which FERC’s findings will be judged. One that simply says no, without a record, is building far less.
The cost-allocation language invites the same dispute. Planners read “at least roughly commensurate” as a workable standard that has governed regional cost allocation for years. Critics read it as an invitation to count benefits that are real to a region but speculative to a particular state’s customers, and to charge them anyway. The bill’s answer is the trivial-benefit bar, but “trivial” is a standard, not a number.
What happens next
The calendar now does most of the talking. Senate leaders are targeting a cloture vote on the motion to proceed on November 9, according to law-firm analyses of the bill’s prospects, and the session ends January 3, 2027. A bill that has not passed both houses by then must start over. That gives Section 2101 roughly eight weeks to survive committee, floor amendment, and a House with its own permitting politics, in a form its four sponsors can still jointly defend. The bipartisan sponsorship is real, and it is also the bill’s fragility.
Even passage would not settle the question. The planning mandate in Section 2103 — this desk’s October 10 subject — would give regions shared standards for identifying interregional lines, and Section 2101 would give those lines a siting path that does not end at a single state’s desk. Planning without siting identifies lines that die; siting without planning permits lines nobody has justified. But a theory is not a line, and a permit is not a tower. The country has spent twenty-one years with a federal backstop that has never been used, through two court decisions, a congressional repair, and a designation process that designated nothing. What Section 2101 would change is the answer to a narrow but consequential question: when a state says no to a large interstate line, does anyone else get to ask whether that no should stand? Under current law, the answer has been no — not because Congress said so, but because the corridor map stayed blank. Under the bill, the answer would be yes, with conditions, with a record, and with a fight over what “shall” means.