Environmental Law

Groups Bring Challenges to Federal Transmission Corridor Designations

By Dennis Pfaff and Kevin Livingston, Editors

Environmental groups are pursuing a slew of lawsuits against a U.S. Department of Energy determination that large areas in the Southwest and Mid-Atlantic states could suffer from electric transmission congestion. The energy department action opens the regions to a process under which federal regulators can approve new transmission lines, even if states object.

The latest case (see docketing statement and petition for review), filed a few days ago in the 9^th U.S. Circuit Court of Appeals headquartered in San Francisco, opens a new front in the legal battle over the energy department's designation of two National Interest Electric Transmission Corridors.  Environmental groups earlier this year filed similar lawsuits in lower federal courts in Los Angeles and Pennsylvania separately challenging each of the corridor delineations.

All of the cases raise allegations that the energy department's decision violated the National Environmental Policy Act and the Energy Policy Act of 2005 when it designated the transmission corridors. Those are areas the department determines to be facing transmission congestions or constraints that harm consumers. The Los Angeles lawsuit, filed by the Center for Biological Diversity, was recently amended (see press statement) to include a claim under the Endangered Species Act, like its sister case in Pennsylvania. Additionally, the Pennsylvania lawsuit cites the National Historic Preservation Act.

A department spokeswoman said Wednesday the designations didn't themselves affect the environment and she insisted all parties had gotten a fair chance to comment.

According to the two earlier lawsuits, the designation of the Southwest corridor affects an area of 70,000 square miles in California and Arizona, while the Mid-Atlantic region covered by the department’s action includes “broad areas” of eight states and the District of Columbia.

The new move to the 9^th Circuit came after federal officials argued in the Pennsylvania case that such challenges could only be brought in the appeal courts. Although the initial filing in the appeals court did not include details of the plaintiffs’ allegations, a public statement from the organizations involved in the case outlined a number of objections, including the department’s alleged failure to fully consider public comments and alternatives.   

The cases stem from the department’s decision last October to designate the two corridors. The latest lawsuit came shortly after the department earlier this month denied requests to reconsider the order (see DOE press statement here).

Areas within the corridors could be subject to jurisdiction by the Federal Energy Regulatory Commission under the energy policy law, according to energy department documents.

“In practice, this will mean that if an applicant does not receive approval from a state to site a proposed new transmission facility within a national corridor, the applicant may then apply to FERC for a permit and authorization to construct the facility,” the energy department said in an information packet distributed at the time of the October decision. Once granted a permit, a builder could also use the power of eminent domain to acquire property rights for the lines, except if the land is owned by the state or federal governments, the department said.

Opponents of the department’s move saw numerous problems with it. The Pennsylvania lawsuit, charged, for instance:

“As a result of the Order, proposed utility and transmission line projects
within the Corridor will be subject to “fast-track” federal approval, bypassing
state-level processes for locating transmission infrastructure, overriding federal
environmental laws, and enabling federal condemnation of private land and
diversion of public land for new high voltage transmission lines.

By facilitating utility right-of-way creation and transmission line construction without a detailed analysis of the associated environmental impacts and without full consultation with the appropriate resource and land management agencies, DOE’s proposed corridor designation will have avoidable impacts on ecosystems, wildlife habitats and populations, historic resources and water quality.”

Anjali Jaiswal, an attorney for the Natural Resources Defense Council, one of the groups bringing the 9^th Circuit lawsuit, said the case was not about stopping transmission projects:

“We recognize the need for increased investment in transmission solutions across the country. But we need to ensure that these transmission corridor designations take place in compliance with federal environmental law.”

In its public statement released at the time of the rehearing denial, the energy department said it had “dismissed without merit” challenges raised by those seeking a new look at the decision. It also asserted that a number of federal statutes, including those cited in the lawsuits, were “not applicable” to the decision to designate the corridors. Rather, reviews under those laws would be conducted by FERC before issuing any construction permit.

Julie Ruggiero, a spokeswoman for the energy department, said Wednesday that the designation of the corridors "in and of itself has no environmental impact and instead shines a spotlight on areas of the country that are experiencing congestion and constraint." She said the department had also provided "all interested parties with fair and ample opportunities" to give their views.

Last month, the federal attorneys representing the energy department moved to dismiss the Pennsylvania case, arguing such challenges could only be heard in the court of appeals.

(Photograph of transmission lines in Oregon courtesy Department of Energy)

Full post as published by Climate Law Update on March 19, 2008 (boomark / email).