Piedmont Environmental Council v. Federal Energy Regulatory Commission

558 F.3d 304, 39 Envtl. L. Rep. (Envtl. Law Inst.) 20036, 68 ERC (BNA) 1324, 2009 U.S. App. LEXIS 2944, 2009 WL 388237
CourtCourt of Appeals for the Fourth Circuit
DecidedFebruary 18, 2009
Docket07-1651, 07-1864, 07-1865, 07-1866
StatusPublished
Cited by13 cases

This text of 558 F.3d 304 (Piedmont Environmental Council v. Federal Energy Regulatory Commission) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Piedmont Environmental Council v. Federal Energy Regulatory Commission, 558 F.3d 304, 39 Envtl. L. Rep. (Envtl. Law Inst.) 20036, 68 ERC (BNA) 1324, 2009 U.S. App. LEXIS 2944, 2009 WL 388237 (4th Cir. 2009).

Opinions

Reversed in part, affirmed in part, vacated in part, dismissed in part without prejudice, and remanded by published opinion. Judge MICHAEL wrote the opinion, in which Judge VOORHEES joined. Judge TRAXLER wrote a separate opinion concurring in part and dissenting in part.

OPINION

MICHAEL, Circuit Judge:

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.

Our decision is as follows. First, we reverse FERC’s expansive interpretation [310]*310of the language in FPA § 216(b)(l)(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-imple-menting regulations.

I.

The states have traditionally assumed all jurisdiction to approve or deny permits for the siting and construction of electric transmission facilities. As a result, the nation’s transmission grid is an interconnected patchwork of state-authorized facilities. In recent times increasing concerns have been expressed about the capacity and reliability of the grid. Congress has reacted to these concerns by adding a new section (§ 216) to the FPA when it passed the Energy Policy Act of 2005, Pub.L. No. 109-58,119 Stat. 594 (2005).

FPA § 216 authorizes the Secretary of Energy to designate areas with electric transmission constraints affecting consumers as national interest electric transmission corridors. 16 U.S.C. § 824p(a).1 Section 216 gives FERC the authority in national interest corridors to issue permits for the construction or modification of transmission facilities in certain instances, including the one at issue here: when a state entity with authority to approve the siting of facilities has “withheld approval for more than 1 year after the filing of an application” for a permit. Id. §§ 824p(b), 824p(b)(l)(C)(i).

FPA § 216(c)(2) directed FERC to issue rules specifying the form of, and the information to be contained in, an application for construction or modification of electric transmission facilities in a national interest corridor. Id. § 824p(c)(2). On June 26, 2006, FERC issued a notice of proposed rule-making, proposing regulations to fulfill this statutory requirement. Regulations for Filing Applications for Permits to Site Interstate Electric Transmission Corridors, 71 Fed.Reg. 36,258 (June 16, 2006) (Notice of Proposed Rulemaking). The notice also included proposed amendments to FERC’s regulations implementing its responsibilities under NEPA with respect to the siting of electric transmission facilities.

In response to FERC’s proposed rule-making, petitioner Communities Against Regional Interconnect (CARI) and others submitted comments requesting that the Commission confirm that § 216(b)(l)(C)(i)’s phrase “withheld approval for more than 1 year” does not include a state’s outright denial of a permit application within the one-year deadline. [311]*311CARI also commented that certain of the proposed amendments to the regulations implementing NEPA unduly restricted application requirements for the evaluation of the environmental impacts of a proposed project. According to CARI, the amendments, among other things, did not require an adequate assessment of land use and socioeconomic impacts or sufficient consideration of non-transmission alternatives. On November 16, 2006, FERC issued its final rule, which contained the Commission’s substantive interpretation of § 216(b)(l)(C)(i)’s phrase “withheld approval for more than 1 year.” Regulations for Filing Applications for Permits to Site Interstate Electric Transmission Facilities, 71 Fed.Reg. 69,440 (Dec. 1, 2006) (Final Rule). FERC interpreted the phrase to include a state’s denial of a permit within the one-year statutory time frame. In dissenting in part, Commissioner Kelly concluded that the majority’s interpretation was contrary to the plain language of the statute. Id. at 69,476 (Comm’r Kelly, dissenting). The final rule also contained the regulations governing permit applications under § 216(b) of the FPA and implementing NEPA with respect to § 216(b) applications.

In mid-December 2006 the four petitioners in this proceeding — Piedmont Environmental Council (Piedmont), the Public Service Commission of the State of New York (NYPSC), the Minnesota Public Utilities Commission (Minnesota PUC), and CARI — filed requests for rehearing on FERC’s final rule. All argued to FERC that it had erred in holding that § 216(b)(l)(C)(i)’s phrase “withheld approval [of an application] for more than 1 year” includes a denial. Petitioner CARI raised additional challenges in its rehearing request, contending that FERC (1) violated NEPA by issuing the final rule without preparing an environmental assessment or an environmental impact statement; (2) erred in revising its NEPA-implementing regulations without first consulting with the CEQ; and (3) arbitrarily and capriciously issued regulations that unduly restrict application requirements for the evaluation of a proposed project’s environmental impacts, particularly in the areas of land use, socio-economics, and the assessment of non-transmission alternatives. On May 17, 2007, FERC issued an order denying rehearing. Regulations for Filing Applications for Permits to Site Interstate Electric Transmission Facilities, 119 FERC ¶ 61,154 (2007) (Order Denying Rehearing). The Commission rejected the petitioners’ arguments about the meaning of § 216(b)(1)(C)®, saying that it “continue[d] to believe that a reasonable interpretation of the language of the legislation supported]” its earlier conclusion. Id. at 61,979. Commissioner Kelly again dissented on this issue. Id. at 61,988. The Commission also rejected CARI’s additional arguments. First, FERC said that consultation with CEQ about the amendments to the Commission’s NEPA regulations was not necessary because it was simply developing regulations to implement the FPA, not NEPA.

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Bluebook (online)
558 F.3d 304, 39 Envtl. L. Rep. (Envtl. Law Inst.) 20036, 68 ERC (BNA) 1324, 2009 U.S. App. LEXIS 2944, 2009 WL 388237, Counsel Stack Legal Research, https://law.counselstack.com/opinion/piedmont-environmental-council-v-federal-energy-regulatory-commission-ca4-2009.