In 2007, the U.S. Department of Energy designated two National Interest Electric Transmission Corridors (NIETCs), where energy companies were granted unprecedented access to federal eminent domain authority for the fast track siting of transmission lines. These “corridors” spanned 100 million acres, and the larger of the two, in the eastern part of the country, extended from New York to Virginia and included six of PEC’s nine counties: Clarke, Culpeper, Fauquier, Loudoun, Madison and Rappahannock.
From the first draft designation in 2006, PEC spearheaded a campaign to stop this usurpation of authority from the states, which gave energy companies a major advantage in transmission line cases. Now, the NIETC designations have been vacated, since PEC and our partners won our case in federal court!
In its decision, the Ninth Circuit Court of Appeals found that the Department of Energy failed to consult with affected states when it conducted the congestion study that formed the basis for the corridors, as required by the Energy Policy Act of 2005, and that it failed to prepare an environmental impact statement, as required by the National Environmental Policy Act. Excerpts from the court’s decision read:
We cannot accept DOE’s unsupported conclusion that its final agency action that covers ten States and over a 100 million acres does not, as a matter of law, have some environmental impact. (p. 1965)
Both the intent and impact of the NIETCs support the conclusion that they constitute major Federal action. They create “National Interest” corridors to address national concerns. The NIETCs cover over a 100 million acres in ten States. Moreover, they create new federal rights, including the power of eminent domain, that are intended to, and do, curtail rights traditionally held by the states and local governments. (p. 1957)
The court’s ruling strikes down the corridor designations, and remands the case back to the Department of Energy for a new congestion study. While this decision comes too late to change the outcome of the TrAIL line, which was built last year, it will affect future applications.
Back in 2006, NIETCs debuted with little fanfare — a significant reconfiguration of authority over the nation’s energy infrastructure drawn up while no one outside the industry was paying attention. PEC was one of the first groups in the country to call attention to the issue. PEC testified before Congress on the corridors and engaged local citizens with this seemingly arcane federal policy. Many Piedmont residents made the trip to Arlington to testify against the designation during a 2006 public hearing. As the corridor designations moved forward, PEC helped to build an impressive coalition of opponents, bringing together numerous conservation groups and government entities that included Fauquier County and agencies representing the states of California, New Jersey, New York, Pennsylvania and Virginia. When the case went to hearing, there were a total of 25 petitioners.
Cale Jaffe of the Southern Environmental Law Center, one of the attorneys who represented this coalition, says of the victory: “This is a complete vindication of what we have been saying since 2006. The Department of Energy cannot fast-track the construction of massive coal-by-wire power lines while thumbing its nose at the National Environmental Policy Act.”
“This is a game-changing decision,” says PEC President Chris Miller. “It established what we have been saying all along: we cannot be willing to sacrifice long established environmental laws in our haste to build new transmission lines. Those environmental laws were carefully developed, well thought out expressions of our desire to protect precious resources. A ‘hurry up and build’ approach to energy transmission should not supersede existing law.”
This is PEC’s second federal court victory on NIETCs. In 2009, we won a case that gave states back their right to say no to proposed transmission lines. The 2009 decision established that NIETC designation would allow a utility to appeal to federal authority only if a state failed to rule on a proposed transmission line within a specific period of time, not if a state denied the line.
PEC’s Senior Energy Policy Analyst, Rob Marmet, says “Since these corridors were first introduced, PEC has taken the initiative to reform an out-of-line federal policy that could have a dramatic affect not just on our communities but on communities across the nation.”
Mr. Marmet added, “The Department of Energy or the industry could appeal this decision, but the majority of the panel clearly concluded that the Department had failed to follow Congress’ directions.”