Global Transactions Practice Group
1 of 3
February 15, 2011
Ninth Circuit Vacates DOE’s Transmission Congestion Study and
National Interstate Electric Transmission Corridor Designations
On February 1, 2011, in California Wilderness Coalition v. U.S. Dept. of
Energy,i the United States Court of Appeals for the Ninth Circuit (Ninth
Circuit) granted petitions for review challenging the implementation by the
United States Department of Energy (DOE) of Section 216 of the Federal
Power Act (FPA). Under Section 216 of the FPA, DOE is required to
undertake a congestion study and designate National Interstate Electric
Transmission Corridors (NIETCs). DOE released its first congestion study in
2006 and made its first two NIETC designations in 2007. Thirteen petitions
for review of DOE’s determinations were filed with the Ninth Circuit, which
vacated both the study and the NIETC designations. The Ninth Circuit
determined that DOE failed to consult with affected States in undertaking the
congestion study as required by FPA Section 216, and failed to perform an
environmental analysis in connection with the NIETC designations as
required by the National Environmental Protection Act (NEPA).ii Having
vacated the NIETC designations, the Ninth Circuit did not consider the merits
of challenges to the specific NEITCs.
Background
Section 216 was added to the FPA by the Energy Policy Act of 2005 (EPAct
2005), and gives the Federal Energy Regulatory Commission (FERC)
backstop siting authority with respect to transmission lines located within
NIETCs designated by DOE based on a congestion study to be performed by
DOE.iii It also gives the applicant the right to acquire rights-of-way through
eminent domain. Section 216 charges the Secretary of Energy with
designating NIETCs following, among other things, a congestion study “in
consultation with affected States.”iv Section 216 further states that, except as
specifically provided, it does not affect requirements under environmental
laws, including NEPA,v which requires a statement on the potential
environmental consequences of all “major Federal actions significantly
affecting the quality of human environment.”vi
DOE completed its first congestion study in 2006 and received over 400
comments on its contents. In May 2007, DOE responded to comments on the
2006 congestion study and sought additional comments on its draft NIETC
designations. On October 5, 2007, DOE issued its order formally designating
the Mid-Atlantic Area National Corridor (Mid-Atlantic Corridor) and the
Southwest Area National Corridor (Southwest Corridor), and responding to
comments recommending different approaches.
For more information, contact:
Neil L. Levy
+1 202 626 5452
nlevy@kslaw.com
David G. Tewksbury
+1 202 626 5454
dtewksbury@kslaw.com
Bruce L. Richardson
+1 202 626 5510
brichardson@kslaw.com
Brandon C. Johnson
+1 202 626 5409
bcjohnson@kslaw.com
Grace Su
+1 202 626 2952
gsu@kslaw.com
King & Spalding
Washington, D.C.
1700 Pennsylvania Avenue, NW
Washington, D.C. 20006-4706
Tel: +1 202 737 0500
Fax: +1 202 626 3737
www.kslaw.com
