This order was entered today in the 9th Circuit Federal Court of Appeals:
In the Energy Policy Act of 2005, Congress specifically directed DOE to undertake a Congestion Study “in consultation with affected States.” 16 U.S.C. § 824p(a)(1). It further directed that in undertaking this study and in designating any national interest electric transmission corridors, DOE was to comply with NEPA. We determine that DOE failed to consult with the affected States prior to issuing its Congestion Study and that this failure was prejudicial to the States. Accordingly, the Congestion Study is vacated. We further find that DOE’s statement that its designation of NIETCs “does not significantly affect the quality of the human environment” is not supported by sufficient evidence to show that DOE has taken the requisite “hard look” at the environmental consequences. See Kleppe v. Sierra Club, 427 U.S. at 410 n.21; California ex rel. Lockyer, 575 F.3d at 1012. We further find that the record does not allow us to conclude that the failure to take a hard look at the environmental consequences was harmless. Accordingly, the Designation of the NIETCs is vacated. In light of our vacation of the Congestion Study and the NIETCs Designation, we decline to consider the petitioners’ challenges (1) under the Endangered Species Act, (2) under the National Historic Preservation Act, and (3) to specific aspects of the Mid-Atlantic Corridor and the Southwest Corridor.
The petitions for review are GRANTED, the Congestion Study and Designation of NIETCs are VACATED, and the matter is REMANDED for further proceedings consistent with this opinion.
You read that right. “the Congestion Study and Designation of NIETCs are VACATED”. The 9th Circuit also stated that the failure of the Department of Energy to conduct an Environmental Impact Statement for the entire Mid-Atlantic NIETC (National Impact Electrical Transmission Corridor) presented a fundamental flaw in the DoE’s NIETC process. (The National Park Service heard from the public in their PATH EIS proceedings about just this problem with the PATH project.)
..even if we had not determined that the Congestion Study must be vacated, we would nonetheless hold that the NIETCs must be vacated because DOE violated the lawin failing to consider the environmental consequences of the NIETCs. Second, because DOE will now have to prepare new NIETCs based on a new Congestion Study, our guidance on this issue should be useful for all concerned.
The order states that the case will be remanded, so I am assuming that they are requiring DoE to start all over again with a new Congestion Study to create a new Mid-Atlantic NIETC. It also looks like DoE will have to do an EIS for the entire NIETC as well. Here is a link to the entire order.
We will be ready for them this time.