In County of Butte v. Dep’t of Wat. Resources (2022) 13 Cal.5th 612, issued on August 1, 2022, the California Supreme Court carved out a role for the California Environmental Quality Act (“CEQA”) even where the project is largely governed by a federal proceeding. The case arose in connection with the relicensing of the Oroville Dam by the Federal Energy Regulatory Commission (“FERC”). The Federal Power Act (“FPA”) (16 U.S.C. § 791, et seq.) delegates to FERC the authority to license hydroelectric dams; the FPA has “a significant preemptive sweep.” Despite a comprehensive federal process for licensing dams, the Supreme Court held that state agency review under CEQA was not entirely preempted. As significant as the ruling itself is the strident dissent, penned by outgoing Chief Justice Cantil-Sakauye.
Preemption
“The Supremacy Clause provides that ‘the Laws of the United States’ (as well as treaties and the Constitution itself) ‘shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.’” (U.S. Const.] Art. VI, cl. 2.) As such, Congress may preempt—or invalidate—state law through federal legislation.
In a recent California Supreme Court case, Friends of the Eel River v. North Coast Railroad Authority (2017) 3 Cal.5th 677 (“Eel River”), the Court held that “when it comes to considering preemption of state-owned or state-operated projects, we apply a presumption that ‘protects against undue federal incursions into the internal, sovereign concerns of the states.’” More specifically, the Court provided that “[t]o determine the reach of the federal law preempting state regulation of a state-owned [project,] we must consider a presumption that, in the absence of unmistakably clear language, Congress does not intend to deprive the state of sovereignty over its own subdivisions to the point of upsetting the usual constitutional balance of state and federal powers.” In Eel River, the court concluded that CEQA was not preempted by the Interstate Commerce Commission Termination Act of 1955 (“ICCTA”).
Background
Prior to the expiration of Oroville Dam’s existing FERC license, the California Department of Water Resources (“DWR”), the operator of the Oroville Dam, and other stakeholders negotiated a settlement agreement governing operations of the dam for submission in FERC’s relicensing proceeding. In 2006, FERC issued an environmental impact statement (“EIS”), as required by the National Environmental Policy Act (“NEPA”). After DWR entered the settlement agreement, DWR prepared and published an environmental impact report (“EIR”) under CEQA. The EIR served to inform DWR’s decision-making regarding the particular terms it should request from FERC in the...
