by Bahrad Sokhansanj
J.D. Candidate, Columbia Law School

On February 1, 2011, a three judge panel of the Ninth Circuit Court of Appeals vacated a landmark Department of Energy (DOE) electricity transmission Congestion Study, together with the agency’s designation of the Mid-Atlantic and Southwest National Interest Electric Transmission Corridors (NIETCs). In Calif. Wilderness Coalition v. U.S. Department of Energy, No. 08-71074 (9th Cir. Feb. 1, 2011), a consolidated challenge brought by a coalition of environmental and historic preservation organizations and state and local agencies, the Court remanded the cases to DOE for further proceedings, including a new congestion study. Writing for the majority, Judge Callahan said that DOE will have to fully consult affected states in preparing the study and properly evaluate the environmental impact of any electric transmission corridor designated as a result.

The 2005 Energy Policy Act (EPAct) required DOE to conduct a study of electric transmission congestion and designate NEITCs, as appropriate. Any high-voltage transmission line project proposed on NEITC land would be deemed eligible for a “fast track” approval process – for example, if a state agency were to fail to approve a project’s permit, the DOE could override it and grant the permit itself. Under the EPAct, project developers also have the right to use eminent domain to acquire rights-of-way on any NEITC lands.

As a result of the decision in California Wilderness, the two areas that DOE designated as NEITCs will no longer be available for fast-tracked transmission line development. Furthermore, federal eminent domain power is no longer available to develop these projects.

The Mid-Atlantic NEITC covered more than 116,000 square miles of lands, including parts of eight states (map). The area includes dozens of state and national parks, refuges and recreation areas, including the Gettysburg National Military Park, the Shenandoah National Park and the Upper Delaware Scenic and National Recreation River. The Southwest NEITC includes the Joshua Tree National Park and the Sonoran Desert National Monument, along with more than three million acres of national wildlife refuge, other national parks, national scenic and historic trials, and 57 state beaches, reserves and recreational areas (map). The proposed transmission lines along these corridors threatened adverse environmental impact on these sensitive areas.

In reaching its decision, the Court held that DOE’s mere invitation to states to comment on its Congestion Study did not satisfy its statutory consultation requirement. Moreover, the Court found that DOE should have shared modeling data that it used to identify areas of transmission line congestion – data that it claimed was proprietary. Citing Supreme Court precedent, the Court held that the failure to provide the data and inadequate consultation necessitates a new DOE study.

The Court flatly rejected DOE’s position that it did not need to pursue any environmental review of the NEITC designation – or even justify why it would not do an environmental assessment or impact study beyond simply asserting “NEITCs do not have any environmental effects.” The Court stated that DOE’s perspective failed “to appreciate that a decision to encourage, through a number of incentives, the siting of transmission facilities in one municipality rather than another has effects in both municipalities in terms of the values of land and proposed and potential uses of land.” The Court held that while these effects may be imprecise and difficult to measure, any evaluation “only can be intelligently made after the preparation of an EA.”

The Court also sharply criticized DOE’s lack of documentation on its decision not to pursue environmental review: “We cannot accept DOE’s unsupported conclusion that its final agency action that covers ten States and over a 100 million acres does not, as a matter of law, have some environmental impact.” Finally, the Court cited the NEITC lands’ broad sweep over national parkland, state preservation areas, and historic properties as reason to conclude that the DOE’s failure to study environmental impacts is not a harmless error and must be reversed.

Writing in dissent, Judge Ikuta identifies “two errors,” one made by DOE and one by the majority. First, the dissent agrees with the majority that DOE “erred by not consulting with affected states at the threshold of a massive, yearlong, nationwide study of electric transmission congestion.” However, unlike the majority, the dissent holds that this error was harmless and did not prejudice the States in any way. Under controlling Supreme Court precedent, the dissent would uphold DOE’s actions.  The second “error” identified by the dissent is one made by the Court itself, not DOE. Instead of recognizing that the Supreme Court’s recent decision in Shinseki v. Sanders, 129 S. Ct. 1696 (2009), requires upholding DOE’s actions in this case, the majority “employs [a] discredited approach to nullify DOE’s efforts,” thus inflicting “the only real injury in this saga.” Notably, the dissent also agreed with DOE that because any environmental impacts resulting from the corridor designation are still “speculative,” DOE is not compelled to conduct an EIS and need not justify why it would not.

The full decision can be found here (PDF).

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