R Street warns DOE against ‘rushed’ rulemaking on AI infrastructure buildout
The free market-oriented R Street Institute urges the Department of Energy to pause or dial back its proposal on how the Federal Energy Regulatory Commission can help accelerate development of transmission facilities needed to power artificial intelligence infrastructure.
“For an issue this important and complicated, particularly given the major federalist questions, it is highly advisable that DOE give FERC more time, narrow the ask of FERC, or have FERC delay final action on aspects of the ANOPR by choosing not to implement it as proposed,” R Street says in its Nov. 21 filing to DOE.
Energy Secretary Chris Wright on Oct. 23 sent FERC an advance notice of proposed rulemaking designed to “rapidly accelerate” the connection of “large loads, including [AI] data centers,” to the transmission system, with directions to issue a final rule by April 30, 2026.
R Street’s recommendations on the ANOPR were included in the think tank’s response to a September DOE request for information on energy sector infrastructure projects that can help meet electricity demand from AI data centers. The RFI was issued under the DOE “Accelerating Speed to Power/Winning the Artificial Intelligence Race” initiative, with comments due Nov. 21.
R Street also submitted more detailed comments to FERC in the commission’s proceeding on the ANOPR, also under a Nov. 21 deadline. Reply comments in that docket are due Dec. 5.
“Last month, DOE asked FERC to consider an [ANOPR] for interconnection of retail loads over 20 megawatts with final FERC action by April 30, 2026,” R Street says in its comments to DOE. “This is warp speed by FERC standards.”
R Street cautions that “Stakeholders are scrambling to develop high-quality comments to DOE’s 14-page ANOPR, and the record at FERC will be lackluster, given the accelerated comments window for such a novel issue. This could be disastrous for FERC’s final rule. If FERC fails to support a final rule with sufficient evidence, it will not withstand judicial scrutiny.”
“To be clear,” R Street says, “DOE’s ANOPR proposes that FERC extend its reach into planning processes far beyond what the agency oversees today. This is a highly sensitive federalist matter; FERC has never before exercised this type of authority over retail loads. This month, the National Association of Regulatory Utility Commissioners passed a resolution urging FERC to resist the ANOPR push to give the regulator jurisdiction over large interconnecting loads.”
The think tank concludes this section of its DOE comments with a warning for policymakers: “A rushed rulemaking will be technically suboptimal, less durable, and more vulnerable to excessive litigation. Changes need to come immediately, as a final rule cannot deviate substantially from a notice of proposed rulemaking, which FERC will have to issue expeditiously to meet DOE’s timeline.”