(CN) – The 9th Circuit on Tuesday scrapped a government plan to fast-track the construction of power lines across national parks and forests, finding that the Department of Energy ignored federal environmental laws and left states out of the decision-making process.
The federal appeals panel in Seattle granted the petitions of 13 states, agencies and environmental groups seeking review of the Department of Energy’s implementation of the Energy Policy Act of 2005, which called for the creation of “national interest electric transmission corridors” in response to several electrical brownouts and blackouts. The department designated two of the corridors and created a streamlined approval process for construction.
In 2006, the department released a “congestion study,” required by the Act, which provided data for the agency’s subsequent designation of the Mid-Atlantic Area National Interest Electric Transmission Corridor and the Southwest Area National Interest Electric Transmission Corridor. Both corridors include stretches that cut through national parks and monuments, wildlife refuges, state beaches and recreation areas, national reserves, historic properties and “environmentally sensitive lands, according to the ruling.
The purpose of the corridors was to designate areas of electrical congestion where utilities could apply for fast-track approval of permits to build transmission lines and to acquire easements through eminent domain.
The Act required that the department consult with affected states while completing the congestion study and designating the corridors, but the petitioners argued that it failed to do so.
The three-judge appeals panel agreed, and also found that the agency had failed to take the required “hard look” at possible environmental implications when it declined to prepare an environmental impact study for the corridors.
The department claimed that it requested comments on the study and held several conferences on the plan, which was all the consultation that the Act required. But the court found that the department overstepped its authority by failing to consult closely with affected states and by refusing to share its modeling data until after the study was complete.
“In reaction to black-outs and brown-outs, Congress sought to give the federal government a greater role in the development of transmission lines and to circumscribe somewhat the states’ traditional authority over the placement and construction of power lines,” Judge Consuelo Callahan wrote for the panel. “In recognition of this impact on the states’ traditional authority, Congress intended that affected states would participate in a study that might ultimately result in some limitation of their traditional powers. Indeed, the Supreme Court has been sensitive to these concerns. A recognition of the sensitivity of these issues supports our determination that where, as here, Congress has directed an agency to consult with states before taking action that may curtail traditional state powers, we must require that the agency heed Congress’s direction.”
The department argued that it did not prepare an environmental review of the corridor designations because at that stage it was not a “major federal action” and therefore review under the National Environmental Policy Act would take place later in the process. The agency also claimed that the corridor designations were unlikely to have significant environmental impacts.
But he panel disagreed.
“For example, petitioners note that the Southwest Corridor includes the Joshua Tree National Park and the Sonoran Desert National Monument,” the ruling states. “It includes more than three million acres of national wildlife refuge as well as national parks and 57 state beaches, reserves and recreational areas. The Mid-Atlantic Corridor encompasses four national forests, over a million acres of national reserves, historic properties, and environmentally sensitive lands. . . . We cannot conclude that the DOE’s failure to undertake a study of the NIETCs’ environmental impacts constitutes harmless error.”
The panel vacated the study and the corridor designations, and remanded the case back to the department for another look.
Writing in dissent, Judge Sandra Ikuta agreed that the department failed to properly consult with the affected states on the study and corridor designations, but argued that the error was harmless.
“Petitioners have not shown that DOE’s error prevented them from submitting information or making arguments to DOE, nor have they shown that DOE would have made a different decision absent the error,” she wrote. “In short, they have failed to offer even a scintilla of evidence to establish prejudice. Under controlling Supreme Court precedent, therefore, we must uphold DOE’s actions.”