Circuit Court Strikes Down Federal Transmission Corridors
A coalition of states and environmental groups succeeded yesterday in persuading the Ninth Circuit Court of Appeals to vacate the 2007 Department of Energy (DOE) designation of two National Interest Electric Transmission Corridors (NIETCs), which covered all or parts of 10 US states. Within these “corridors”, utilities were given unprecedented access to federal eminent domain authority for the fast-track siting of electric transmission lines. The largest of these corridors, in the eastern part of the country, included 116,000 square miles and stretched from Virginia to New York.
The Ninth Circuit found that the Department of Energy failed to consult with the affected states when it conducted the congestion study that formed the basis for the corridors, as required by the Energy Policy Act of 2005, and that it failed to prepare an environmental impact statement, as required by the National Environmental Policy Act.
“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.” 9th Circuit Decision, p. 1965
The ruling strikes down the existing federal transmission corridors, and remands the case back to the DOE for a new congestion study. Without these corridors, power companies lose a major advantage when applying for new transmission line proposals. We at the Piedmont Environmental Council believe this will impact future applications, and could have an immediate impact on transmission projects currently under review, including the 765-kV PATH line proposal through West Virginia, Virginia and Maryland.
Beginning in the summer of 2006, the Piedmont Environmental Council (PEC), a non-profit based in Warrenton, VA, led an effort to draw attention to the Department of Energy’s flawed Congestion Study and the dramatic failure to consult with affected states or to comply with federal environmental laws, the National Environmental Policy Act in particular. At the urging of Congresssman Frank Wolf and former Congressman Tom Davis, the House Committee on Government Reform and Oversight held hearings on these issues. Even after these hearings, the Department of Energy refused to comply with the National Environmental Policy Act or to allow states access to the technical data they had relied on in performing the National Congestion Study.
In 2008, after DOE refused to act on extensive comments calling for a reopening of the Congestion Study and insisting that a programmatic Environmental Impact Statement was required, PEC joined with partners to challenge these designations in court. PEC and its partners, represented by Cale Jaffe of the Southern Environmental Law Center and Washington DC attorney Jim Dougherty, argued that the Department of Energy failed to comply with key environmental laws and failed to follow the statutory requirements of the 2005 Energy Policy Act. This case was eventually consolidated with a number of other actions and assigned to the Ninth Circuit for hearing.
In total, there were over 25 Petitioners, including PEC, the National Trust for Historic Preservation, the National Parks Conservation Association, Civil War Preservation Trust, Pennsylvania Land Trust Association, The Wilderness Society, the Natural Resources Defense Council and many other conservation organizations, as well as government entities such as the County of Fauquier, the Commonwealth of Virginia, the Pennsylvania Public Utility Commission, the New Jersey Board of Public Utilities, the Public Service Commission of the State of New York and the Public Utilities Commission of the State of California.
Commenting on the ruling, Cale Jaffe of the Southern Environmental Law Center says: “This is a complete vindication of what we have been saying since 2006. The Department of Energy cannot fast-track the construction of massive coal-by-wire power lines while thumbing its nose at the National Environmental Policy Act.”
Piedmont Environmental Council President, Chris Miller, adds: ”This is a game-changing decision. It established what we have been saying all along: we cannot be willing to sacrifice long established environmental laws in our haste to build new transmission lines. Those environmental laws were carefully developed, well thought out expressions of our desire to protect precious resources. A “hurry up and build” approach to energy transmission should not supersede existing law.”
Quotes from the 9th Circuit Decision:
“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.” p. 1918
“The failure to consult was not some technical error, but resulted in a decisionmaking process that was contrary to that mandated by Congress and one that deprived DOE of timely substantive information.” p. 1947
“Both the intent and impact of the NIETCs support the conclusion that they constitute major Federal action. They create “National Interest” corridors to address national concerns. The NIETCs cover over a 100 million acres in ten States. Moreover, they create new federal rights, including the power of eminent domain, that are intended to, and do, curtail rights traditionally held by the states and local governments.” p. 1957