• Ninth Circuit Vacates DOE’s Transmission Congestion Study and National Interstate Electric Transmission Corridor Designations
  • February 21, 2011 | Authors: Brandon Johnson; Neil L. Levy; Bruce L. Richardson; Grace Su; David G. Tewksbury
  • Law Firm: King & Spalding LLP - Washington Office
  • On February 1, 2011, in California Wilderness Coalition v. U.S. Dept. of Energy, 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). Having vacated the NIETC designations, the Ninth Circuit did not consider the merits of challenges to the specific NEITCs.