Piedmont Environmental Council v. FERC

Feb 18: In the U.S. Court of Appeals, Fourth Circuit, Case Nos. 07-1651, 07-1864, 07-1865, and 07-1866. This important case involving dozens of states, NGOs, electric utilities and associations. Two state utilities commissions and two community interest organizations petition for review of several rulemaking decisions made by the Federal Energy Regulatory Commission (FERC or the Commission) in connection with FERC’s implementation of the new § 216 of the Federal Power Act (FPA) and the National Environmental Policy Act (NEPA).

Section 216 of the FPA, which was added in 2005, gives FERC jurisdiction in certain circumstances to issue permits for the construction or modification of electric transmission facilities in areas designated as national interest corridors by the Secretary of Energy. The majority opinion reversed in part, affirmed in part, vacated in part, dismissed in part without prejudice, and remanded the opinion. The wrote a separate opinion concurring in part and dissenting in part.

The Fourth Circuit majority in this case summarized its decision as follows: "First, we reverse FERC’s expansive interpretation of the language in FPA § 216(b)(1)(C)(i) that grants FERC permitting jurisdiction when a state commission has 'withheld approval [of a permit application] for more than 1 year.' The phrase does not include, as FERC held, the denial of an application. Second, we affirm FERC’s determination that it was not required to prepare an environmental assessment or an environmental impact statement in connection with its issuance of procedural regulations dealing with the content of permit applications under § 216 of the FPA. Third, we conclude that FERC violated Council on Environmental Quality (CEQ) regulations when it failed to consult with the CEQ before amending its (FERC’s) NEPA implementing regulations to cover § 216 permit applications. We therefore vacate the amendments to the NEPA regulations and remand for FERC to engage in the required consultation with the CEQ. And fourth, we dismiss without prejudice, because it is not ripe, the part of one petition for review that seeks to challenge the content of the amendments (which we are vacating) to FERC’s NEPA-implementing regulations."

The minority dissent in part said, "because I believe that FERC correctly interpreted 'withheld approval [of a permit application] for more than 1 year' in 16 U.S.C.A. § 824p(b)(1)(C) (West Supp. 2008) to include the failure or refusal to grant a permit application for more than one year in cases in which the permit application was denied, I respectfully dissent from the contrary holding."

According to a report in the Mid-Hudson News, U.S. Senator Charles Schumer (D-NY) said the decision was a victory and indicated, “This decision puts the kibosh on NYRI’s effort to do an end-around local law and correctly determines that New York State should have the preeminent role in siting projects like NYRI. NYRI’s proposed path remains unduly intrusive and would have damaging impacts on parks, vista and communities from Utica to Chenango to the Catskills to Orange County.”

Christopher Miller, President of the Piedmont Environmental Council (PEC) said, "The decision directly upholds a State's right to reject a transmission line project without fear of the federal government stepping in to overrule that State's determination. In plain language, the utilities do not get a second chance if the State rejects a line based upon the merits. The court also ruled that FERC must consult with the Council on Environmental Quality to ensure compliance with the National Environmental Policy Act."
PEC indicated the Court's decision "overturns FERC's hard-charging, environment-be-damned approach to fast-tracking transmission line siting throughout the northeast and southwest corridors. The Court's decision is a blow against heavy-handed federal preemption and the ruling restores a semblance of federal-state balance in the overall transmission line-siting process."

PEC indicated that the FERC lawsuit was the first of two filed by PEC against the previous Administration's attempt "to fast-track transmission line siting through much of the U.S." The second, which seeks to overturn the Department of Energy's designation of multi-state corridors for transmission line siting [See WIMS 3/7/08], is pending before the Ninth Circuit Court of Appeals in San Francisco.

Access the complete opinion and partial dissent (click here). Access the Mid-Hudson News (click here). Access a release from PEC (click here).