Thursday, February 3, 2011

California Wilderness Coalition v. US Department of Energy

Feb 1: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 08-71074, 08-71823, 08-71829, 08-71831, 08-71845, 08-71870, 08-71872, 08-71884, 08-71908, 08-72423, 08-72644, 08-72835. In this case Petitioners including The Wilderness Society, Natural Resources Defense Council, California Wilderness Coalition, and many more environmental organizations, combined with Petitioner states including Pennsylvania, New Jersey, and Virginia; with Respondents United States Department of Energy and many Respondents-Intervenors including Allegheny Energy, Inc., American Public Power Association, Edison Electric Institute, Monongahela Power Company, and many more -- thirteen petitions in all for review challenge the Department of Energy's (DOE) implementation of the Energy Policy Act of 2005 (EPAct), which added a new section 216 to the Federal Power Act (FPA), codified as 16 U.S.C. § 824p (sometimes referred to as § 216).
    Petitioners offer three distinct challenges to DOE's actions: (1) DOE failed to consult with the affected States in undertaking the Congestion Study as required by § 824p(a)(1); (2) DOE failed to properly consider the potential environmental consequences of its designation of national interest electric transmission corridors (NIETCs); and (3) DOE's actual designations of the Mid-Atlantic Area National Corridor and the Southwest Area National Corridor are arbitrary, capricious, and not supported by the evidence.
    The Appeals Court in a split decision ruled, "We determine that DOE failed to properly consult with the affected States in conducting the Congestion Study and failed to undertake any environmental study for its NIETC Designation as required by the National Environmental Protection Act (NEPA), 42 U.S.C. § 4332(C). We also determine that these failings were not harmless errors. Accordingly, we vacate the Congestion Study and NIETC designation and remand the cases to the DOE for further proceedings. Because we vacate the NIETC designation, we do not consider the merits of petitioners' challenges to the specific national corridors other than as necessary to determine that DOE's failures to consult and to undertake an environmental study were not harmless errors."
    In the dissent, one Justice indicates, "This is a tale of two errors. First, the DOE erred by not consulting with affected states at the threshold of a massive, yearlong, nationwide study of electric transmission congestion. But this error was harmless. Petitioners have not shown that DOE's error prevented them from submitting information or making arguments to DOE, nor have they shown that DOE would have made a different decision absent the error. In short, they have failed to offer even a scintilla of evidence to establish prejudice. Under controlling Supreme Court precedent, therefore, we must uphold DOE's actions. Shinseki v. Sanders, 129 S.Ct. 1696, 1704-06 (2009).
    "But here is where the second error comes in, namely, the majority's ruling that DOE must complete the entire process again even though its consultation error caused no harm. Instead of recognizing that Sanders rejected the presumption of prejudice articulated in Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1487 (9th Cir. 1992), the majority employs this discredited approach to nullify DOE's efforts. In doing so, the majority inflicts the only real injury in this saga. I respectfully dissent."
    Access the complete opinion and dissent (beginning page 70 of 88) (click here).

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