California Wilderness Coalition v. U.S. Department of Energy
631 F.3d 1072
9th Cir.2011Background
- EPAct of 2005 added FPA § 216, requiring DOE to study congestion in consultation with affected States and designate NIETCs if appropriate.
- DOE issued the Congestion Study (Aug. 2006) and later designated two NIETCs (Mid-Atlantic, Southwest) in Oct. 2007, rejecting NEPA review.
- Petitioners argued DOE failed to consult adequately with affected States and failed to prepare NEPA analyses for NIETCs.
- Court held DOE violated the consultation mandate and NEPA, and those failures were not harmless; we vacated the Congestion Study and NIETCs.
- Remanded for DOE to conduct a new Congestion Study in consultation with affected States and to prepare NEPA analyses for NIETCs.
- As a consequence, challenges to the specifics of the corridors were moot except to the extent needed for remand proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did DOE consult with affected States as required by § 824p(a)(1)? | Petitioners: DOE failed to consult with affected States prior to Congestion Study. | DOE: consultation accomplished via meetings, notices, and invite-for-comment; formal consultation not required. | No; DOE failed to meaningfully consult; remand and vacatur ordered. |
| Does NEPA require environmental review of NIETC designations? | Petitioners: NIETCs have potential environmental impacts; NEPA analysis required. | DOE: NIETCs themselves do not have environmental impacts; no EIS/EA necessary at designation. | Yes; NIETC designation requires NEPA analysis; NIETCs vacated. |
| Were the Congestion Study and NIETC designations arbitrary or unsupported by evidence? | Petitioners: designations relied on discretionary judgments without adequate process and data. | DOE: discretion to define congestion and boundaries within statutory limits; decisions supported by data. | Arbitrary/unsupported due to flawed process; vacated and remanded. |
| Were the errors harmless under the APA? | Petitioners: failure to consult and NEPA analysis prejudiced States; not harmless. | DOE: any error harmless or not; record shows no prejudice parameters. | Not harmless; prejudicial under Sanders/ Riverbend standards; remand required. |
Key Cases Cited
- Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) (two-step test for agency interpretations of statutes)
- Environmental Defense Center v. EPA, 344 F.3d 832 (9th Cir. 2003) (consultation must be meaningful and structured)
- Confederated Tribes & Bands of Yakima Indian Nation v. FERC, 746 F.2d 466 (9th Cir. 1984) (affirmative duty to consult, not mere notice)
- Northcoast Environmental Center v. Glickman, 136 F.3d 660 (9th Cir. 1998) (programs can be major actions; NEPA analysis may be required)
- Forelaws on Board v. Johnson, 743 F.2d 677 (9th Cir. 1984) (programs can be major actions with environmental impact)
- Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479 (9th Cir. 1992) (harmless error standard in APA notice/consultation cases)
- Kleppe v. Sierra Club, 427 U.S. 390 (1976) (hard-look NEPA review standard)
- Sanders v. Shinseki, 129 S. Ct. 1696 (2009) (burden to prove harmful error lies normally with the challenger)
- Am. Radio Relay League v. FCC, 524 F.3d 227 (D.C. Cir. 2008) (disclosure of technical data required in rulemaking)
- Piedmont Environmental Council v. FERC, 558 F.3d 304 (4th Cir. 2009) (programmatic EIS considerations for corridors on federal lands)
- Northwest Environmental Advocates v. EPA, 537 F.3d 1006 (9th Cir. 2008) (remedial vacatur for action beyond statutory mandate)