*1 Association; Cooperative PJM Inter connection; Allegheny Path Trans Realty prepare legal 7. Federal Company, LLC; mission Path West agreement for First National’s re- Virginia Company, Transmission agreement. view to finalize the LLC; Diego Electric San Gas & Com agreement Effective date of as of pany; Southern California Edison vacating premises. date of Company; The Potomac Edison Com agreement ac- 9. The above must be pany; Trans-Allegheny Interstate via fax to 408-249-9214 cepted no Company; Line West Penn Power a.m. later than 10:00 California time Company, Intervenors-Respondents- 25, 2000, August on at which time Intervenors. automatically this counter offer will Virginia; Commonwealth of Robert F. expire. McDonnell, Governor; T. Kenneth hereby accepted by The above terms are Cuccinelli, Attorney General, Peti parties subject only approval tioners, agree- terms and conditions of formal ment. Society; Desert Protection Center Community Action and Environmen Justice; Backcountry Against tal Dumps; Council; Desert Protective Morongo Basin Conservation Associa tion; Responsible Energy Alliance for Policy; Charpied; Donna Laurence CALIFORNIA WILDERNESS COALI Charpied; Valley San Bernardino Au TION; Natural Resources Defense Society, Intervenors, dubon Council; Society, Inc., The Wilderness v. Petitioners, Department Energy U.S. and Samuel Bodman, Secretary Energy, Society; Desert Protection Center Respondents, Community Action and Environmen Allegheny Energy, Inc., Allegheny DBA Justice; Backcountry Against tal Power; Monongahela Compa Power Dumps; Council; Desert Protective ny, Allegheny Power; DBA Path Alle Morongo Basin Conservation Associa gheny Company, LLC; Transmission tion; Responsible Energy Alliance for Virginia Path West Transmission Policy; Charpied; Donna Laurence Company, LLC; Potomac Edison Charpied; Valley San Bernardino Au Company, Allegheny Power DBA Society, Intervenors, dubon Power; Trans-Allegheny Interstate Company; Line West Penn Power Company, Allegheny Power, dba Edi ENERGY, DEPARTMENT U.S. OF Institute; son Electric American Pub Respondent, Association; lic Power National Ru Allegheny Energy, Inc.; American Cooperative Association; Pub ral Electric Association;
lic Power Diego Edison Elec Company; San Gas & Electric Institute; Monongahela tric Company, Power Southern California Edison Company; Respondents-Intervenors. National Rural Electric *2 Morongo Utility Basin Conservation Associa
Pennsylvania Public Responsible Energy (“PAPUC”), tion; Alliance for Commission Policy; Charpied; Petitioner, Donna Laurence Valley Charpied; Au Bernardino San and Society, Intervenors, dubon Society; for Center Protection Desert v. Community Environmen Action and Energy Department of and Samuel U.S. Backcountry Against Justice; tal Bodman, Respondents. W. Council; Dumps; Protective Desert Morongo Associa Basin Conservation Pennsylvania and Commonwealth Energy Responsible tion; for Alliance Department of Environmental Policy; Charpied; Laurence Donna Protection, Petitioners, Valley Au Charpied; Bernardino San and Intervenors, Society, dubon Society; for Desert Protection Center v. Community and Environmen Action Energy and Department of Samuel U.S. Justice; Backcountry Against tal Bodman, Respondents. W. Council; Dumps; Protective Desert Morongo Basin Conservation Associa York, Petitioner, of New State tion; Responsible Energy Alliance for Policy; Charpied; Laurence Donna Society; for Center Desert Protection Valley Charpied; Bernardino Au San Community Environmen Action and Intervenors, Society, dubon Backcountry Against Justice; tal v. Council; Dumps; Desert Protective Energy, Department of U.S. Morongo Associa Basin Conservation Respondent. Energy tion; Responsible Alliance for Policy; Charpied; Laurence Donna Commission of Public Utilities Valley Au Charpied; Bernardino San California, Petitioner, State Intervenors, Society, dubon Public Commission State Service v. York, Petitioner- New Energy Department Samuel U.S. Intervenor, Bodman, Respondents.
W. Council; Na Environmental Piedmont Society; Center for Protection Desert Preservation; Trust for Historic tional Community Action and Environmen Associa Parks Conservation National Justice; Backcountry Against tal Trust; tion; Preservation Civil War Council; Dumps; Desert Protective Association; Pennsylvania Land Trust Morongo Basin Conservation Associa County Fauquier, Virginia, Pe Energy tion; Responsible Alliance titioners, Policy; Charpied; Laurence Donna Valley Charpied; Bernardino Au San Intervenors, Society, dubon Society; Center Protection Desert Community and Environmen Action Energy and Backcountry Against Department of Samuel Justice; U.S. tal Bodman, Respondents, Council; W. Dumps; Protective Desert Company, People Edison Southern California of the State of New York and Respondent-Intervenor. Public Service Commission of the York, Petitioners, State of New Imperial Irrigation District, Petitioner, *3 v. Department Energy U.S. of and Samuel Society; Desert Protection Center Bodman, Secretary Energy, of Community Action and Environmen Respondents. Justice; Backcountry Against tal Dumps; Council; Desert Protective Jersey New Board of Public Morongo Basin Conservation Associa Utilities, Petitioner, tion; Responsible Energy Alliance for Policy; Charpied; Donna Laurence v. Charpied; Valley San Bernardino Au Department Energy, U.S. Society, Intervenors, dubon Respondent, v. Department Energy U.S. and Samuel Company; Southern California Edison Bodman, Respondents, W. Institute; Edison Electric American Association; Public Power National Cooperative Rural Electric Associa Company. Southern California Edison tion; Monongahela Company; Power Corporation Commission, Arizona Company; Potomac Edison West Petitioner, Company; Penn Power Trans-Alle gheny Company; Interstate Line Alle gheny Energy, Inc.; Allegheny Path Public Service Commission of the State Company, LLC; Transmission Path York, of New Desert Protection Soci Virginia West Compa Transmission ety; Community Center Action ny, LLC; Diego San Gas & Electric Justice; and Environmental Back Company, Respondents-Intervenors. country Against Dumps; Desert Pro Council; Morongo tective Basin Con Brothers, Inc., Petitioner, Toll Association; servation Alliance for Responsible Energy Policy; Donna v. Charpied; Charpied; Laurence San Department Energy, U.S. Valley Society,
Bernardino Audubon Respondent. Intervenors, 08-71074, 08-71823, 08-71829, Nos. 08- v. 71831, 08-71845, 08-71870, 08-71872, Department Energy U.S. and Samuel 08-71884, 08-71908, 08-72423, 08-72644, Bodman, Respondents, W. 08-72717, 08-72835. United States Appeals, Court of Southern Company. California Edison Ninth Circuit. Against Regional Communities Argued and Submitted June 2010. Interconnect, Petitioner, Filed Feb. Department Energy, U.S.
Respondent. *6 Pennsylvania
G. Rendell and the Depart- Protection, ment of Environmental New Jersey Utilities, Board of Public State of York, New Public Service Commission of York, the State of New and Common- Virginia. wealth of Anjali Wald, I. Jaiswal and Johanna H. Council, Jonathan D. Feinberg,
Natural Resources Defense San State of New Francisco, CA, Department York Stephan Service, C. Volker and Public Office Harris, Oakland, CA, Counsel, Cuomo, Joshua General Caleb A. Andrew M. Jaffe, New York Attorney General, Southern Environmental State Law Cen- Mau- ter, Charlottesville, VA, reen F. Leary (argued), William A. Assistant Attor- II, Mullen, ney Hartman, Anderson General and Williams James B. Denise A. As- Dougherty General, sistant (argued), Merritt, NY, Elizabeth Solicitor Albany, S. Melia, Deputy Counsel, James P. General National Trust John Levine and Steven Preservation, Bainbridge, Pennsylvania Historic Andrea Fer- Utility C. Public ster, Commission, Washington, D.C., Perry, Pennsylvania for Petitioners Scott Department Society, Protection, Wilderness Natural Re- Environmental Council, PA, Harrisburg, sources Defense Wagner California Wil- Janet Nancy Scott, Coalition, derness Arizona Corporation Commission, Piedmont Environmen- Council, Legal Division, Phoenix, AZ, tal National Trust for Historic Anne Mil- Preservation, gram, National Jersey Parks Conservation New State Attorney General Association, Sheehan, Trust, Civil War Kenneth J. Deputy Preservation Attorney Pennsylvania General, Association, Department Land Trust of Law & Public Fauquier County, Safety, Newark, NJ, Virginia, Riley and Toll Maureen Mat- Inc., sen, D. Brothers Roussy, Intervenors Desert Mathias and C. Meade Browder, Protection Society, General, et al. Office Attorney Richmond, VA, (ar- Laurence G. Chaset James P. Melia and Steven K. Bain- gued), California Public Utilities Commis- *7 bridge, Pennsylvania Utility Public Com- Division, sion Legal Francisco, CA, San for mission, Perry, Scott R. Commonwealth of Pennsylvania Petitioners Utility Public Pennsylvania, Department of Environmen- Commission, Governor Edward G. Rendell Protection, tal PA, Harrisburg, Maureen Pennsylvania and the Department of Envi- Riley Matsen, C. Meade Browder and D. Protection, ronmental Jersey New Board Roussy, Mathias Office of the Attorney Utilities, of York, Public State of New General Virginia, Richmond, VA, An- Public Service Commission of the State of Cuomo, drew M. Attorney General of the York, New Virginia, Commonwealth of State of New York and Maureen F. Leary Public Utilities Commission of the State of (argued), Attorney Office of the General California, Corporation Arizona Commis- Bureau, Environmental Protection Jona- sion. Solicitor, than Feinberg, Public Services York, Commission of the State of New Harvey Y. Morris and Laurence G. Cha- NY, Albany, Milgram, Anne Attorney (argued), Division, Gen- set Legal California eral Jersey of New Sheehan, and Kenneth Utilities, Francisco, CA, Public San Debo- Deputy General, Attorney Jersey New De- rah A. Benson, Swanstrom and Erika D. partment of Law and Safety, Public Boggs, LLP, New- Patton D.C., Washington, ark, NJ, for Pennsylvania Petitioners Stephen Keene, Pub- Imperial J. Irrigation Dis- Utility Commission, lic trict, CA, Imperial, Governor Edward Janet Wagner and Scott, Arizona Nancy Corporation Com- AZ,
mission, Phoenix, for Petitioners Pub- of the State of
lic Commission Utilities District, California, Imperial Irrigation CANBY, JR., Before: WILLIAM C. Corporation Arizona Commission. M. CALLAHAN and CONSUELO IKUTA, Judges. S. SANDRA Circuit Truden, Acting Assistant Attor- John C. General, Environmental & Natural ney CALLAHAN; Opinion by Judge Hertz, Division, Michael F. Act- Resources Judge Dissent IKUTA. General, Attorney Civil Divi- ing Assistant Person, sion, Stacey L. Smeltzer W. John OPINION Dana J. Mar- Mark B. Stern and (argued), CALLAHAN, Judge: Circuit Justice, (argued), Department of Betti- tin Cooke, Department Mumme Lot na petitions for These thirteen review chal- Counsel, of General Wash- Energy, Office lenge Department Energy’s Respondents United ington, D.C. (“DOE”) implementation Energy et al. Department Energy, States (“EPAct”), Policy Act of which added a new section to the Federal Power (argued), Wright Brian R. Davis Gish (“FPA”), § Act 824p codified as 16 U.S.C. D.C., LLP, Washington, Randall Tremaine (sometimes 216”). “§ referred to as Peti- Inc., Palmer, Energy, Allegheny B. three challenges tioners offer distinct Cohen, PA, Greensburg, Sharon Lisa E. (1) DOE’s actions: DOE failed to consult J. Newlan- Gregory Barnes Jonathan undertaking with the affected States in der, Sempra Energy Department, Law Study Congestion required CA, Loughran, Diego, Alice Elizabeth San (2) 824p(a)(l); to properly DOE failed Johnson, LLP, Spector Steptoe Barry & S. potential consider the environmental con- & Thompson, Wright and Michael Talis- J. sequences designation of its national P.C., man, L. Alden Atkins and David E. interest electric transmission corridors Hawkins, LLP, Elkins, Vinson and Wash- (“NIETCs”); and desig- DOE’s actual D.C., Valdberg Anna Jennifer ington, of the Mid-Atlantic Area National nations Kang, Robert Southern California Edison and the Southwest Area National Corridor Rosemead, CA, Division, Company Legal capricious, are arbitrary, Corridor Respondents-Intervenors Allegheny supported by We evidence. determine Inc., Energy, American Public Power As- failed to properly consult with Institute, sociation, Edison Electric Mo- conducting States in affected Con- *8 National Ru- nongahela Company, Power gestion Study and to failed undertake Association, Cooperative ral Electronic study Desig- environmental for NIETC Interconnection, LLC, Path Alleghe- PJM required by nation the National Envi- as LLC, ny Company, Path Transmission (“NEPA”), Policy ronmental Act 42 U.S.C. Virginia Company, Transmission West 4332(C). § We also determine that these LLC, Diego Company, San &Gas Electric failings were not harmless Ac- errors. Company, The Southern California Edison Congestion Study we vacate the cordingly, Company, Trans-Alleghe- Potomac Edison designation and NIETC and remand the Line ny Company, Interstate West proceedings. cases to the DOE for further Company. Penn Power designa- vacate NIETC Because we the
tion, the of we do not consider merits challenges specific na- petitioners’ 1080 necessary as a other than to sumers as national interest electric
tional corridors transmission corridor. that DOE’s failures to consult determine study an and to environmental undertake added). § 824p (emphasis 16 U.S.C. errors. were not harmless designation The of an area as “national
interest electric transmission corridor” (variously referred to as a “National Corri I. BACKGROUND dor,” “NIETC”) “NIET Corridor” or Statute, A. 16 The Critical U.S.C. approval makes a fast-track pro available § 824 cess to for seeking permits utilities trans mission lines within the corridor. See 16 of response In to a number electrical 824p(b)-(h). §§ In particular, U.S.C. the black-outs, Congress brown-outs Energy Federal Regulatory Commission EPAct, 109-85, Pub.L. No. passed the 119 (“FERC”) empowered grant permit (2005). The EPAct added a Stat. 594 new for a the transmission line within corridor provi- section 216 the FPA. first if, conditions, among other a state of section read: sions fails to approve permit application (a) Designation of national interest elec- year. 824p(b).1 § within a U.S.C. tric transmission corridors addition, EPAct, in providing for the (1) year August 8, later than 1 after Not permit, gives applicant issuance of a thereafter, every years right acquire rights-of-way through (referred Secretary Energy of to in this 824p(e). § eminent domain. 16 U.S.C. “Secretary”), section as consulta- Moreover, states, § 824p(j)(l) 16 U.S.C. States, tion with affected shall conduct “[E]xcept specifically provided, nothing as conges- electric transmission any requirement this section affects tion. States, an environmental law of the United considering After alternatives including National Environmental Poli- (42 par- cy recommendations from interested Act seq.).” §§ of 1969 et U.S.C. (including opportunity ties Congestion Study B. The States), comment from affected Secretary report, shall issue a based on Following the enactment of study, may designate any which gave presentations at a number confer- geographic experiencing area electric regarding ences the new law. Its first energy transmission capacity request constraints for comments or assistance from congestion adversely affects February con- others was a 2006 “Notice of (1)(C) 824p(b) part: Section reads in entity a State commission or other authority approve siting that has (b) permit Construction has— facilities (I) Except provided subsection this (I) approval year withheld than for more section, may, the Commission after notice filing application seeking after the of an opportunity hearing, and an issue one approval pursuant applicable law or 1 permits or more for the construction or year *9 designation the after the of relevant modification of electric transmission facili- national interest electric transmission corri- ties in a national electric interest transmis- dor, later; whichever is or by designated Secretary sion corridor (ii) approval its such a conditioned in man- (a) under subsection of this section if the proposed ner that the construction or modi- Commission finds that— significantly fication will not reduce trans- congestion mission in interstate commerce economically or is ... not feasible
1081 Congestion Study issued its in Au- DOE requesting providing comment and inquiry (the Reg- The in the 2006. notice Federal gust conference” of a technical notice Notice”). study “on requested 71 5660- comments “February Fed.Reg. 2 ister 2006). (Feb. 2, sought possible designation The national notice and on public electric transmission corridors.” information from the interest and “comment 2006). 45,047 8, electricity Fed.Reg. (Aug. for DOE concerning plans its study over comments on the Con- possible and received congestion transmission 7, 2007, Study. May Id. at DOE gestion On designation Corridors].”2 of [NIET sought to comments and February responded Notice stated 5660. “well on “draft Study was additional comments National Congestion work on the the two underway” pub- designations DOE to for Critical and that intended Corridor in the August Congestion Conges- Id. Areas identified study by 2006. lish Study: a tech- the draft Mid-Atlantic Area The Notice also stated that tion 5661. Corridor; Chicago, in and the draft would be held National South- nical conference Illinois, 29, 2006. at 5660. Area National Corridor.” 72 Fed. on March Id. west 2007) (the 25,840 (May “May 7 Reg. in conference was held The technical Notice”). a number of entities and State March in various participated and some attended objection in major A set forth the com- invitation-only A meet- separate panels. was the assertion had ments May 2006 and ing was held in to “review to consult with affected States. failed per- congestion analyses evaluate the 25,850. DOE it was responded contractors,” no but formed fulfilling obligation “committed to to were invited.3 states with States” but asserted that consult in practical to af- are difficulties conduct- that it reached out “there DOE asserts level of that some through meetings ing consultation fected States Utility in the of a this Regulatory context prefer Association National (“NARUC”) through and that “is difficult to magnitude,” Commissioners correspondence with are ‘affected’ until the know which States meetings other congestion study are conclusions individual State entities. fuels, eight prices generation growth demand February set draft 2. The 2 Notice forth (1) centers, identifying generation new NIET Corridors: the location of criteria load facilities, high generational to maintain reliabili- "action needed tech- or cost of new (2) econom- ty’'; (8) "action is needed achieve nologies”; and "the alternative means of consumers”; (3) are "actions ic benefits for mitigating question been the need in have electricity supply limitations needed ease sufficiently.” Fed.Reg. at 5662. addressed corridor, diversi- end markets served sources”; (4) "targeted area fy actions in the DOE, According invitation-only meet- energy independence of would enhance ing purposes: three had States"; (5) "targeted actions the United (1) to learn whether the results of the con- energy poli- further national the area would expected gestion modeling track actual and (6) "targeted area are cy”; actions in the (2) fidelity; grid with some conditions electricity reliability needed to enhance the congestion analysis find- learn whether the supplies to loads and facilities critical knowledge ings grid suggest and other vulnerability of such critical loads reduce project there are obvious or corridor electricity disas- infrastructure to natural (3) expansion; acts”; grid priorities for new pro- area’s ters or malicious "the needs) draft criteria (or learn whether DOE’s NIETC unduly contin- jected need (other suggest congestion) additional analytic than gent associated with on uncertainties expansion assumptions future needs. assumptions, e.g. about *10 known.” Id. DOE claimed to have met its but nonetheless had decided not to defer to (1) obligation “provided regional because it: had planning 25,- processes. at Id. States with opportunities numerous for in- 846-47. put meetings and held [] with officials A group third raised comments concern-
representing individual groups States and ing drawing of boundaries. Some (2) States;” had made Congestion comments advocated the specific use of Study 8, 2006; August available on and projects transmission to define national had, “in addition to [having made] boundaries, corridor suggested others draft National Corridor designations de- boundaries should be tailored to aid in the scribed this notice available for com- construction of specific viable transmission ment, ... simultaneously contacted] projects, and “numerous commenters” ar- Governors of each State which the draft gued that DOE “should draw National National Corridors would be located to Corridor boundaries to parks exclude arrange consultation meetings.” Id. other environmentally protected areas.” 25,847. Id. at In response, DOE first not- May
The 7 Notice also described a num- ed that provided “statute little di- ber of other comments that DOE received rection on how Department should be divided into four groups. A draw the boundaries of a National Corri- group first objections comments are 25,848. dor.” Id. at DOE observed that interpretation scope of its the selection of source areas “will neces- authority to designate Corridors, National sarily involve discretion and is not suited “congestion” definitions of and “con- ato formulaic straint,” approach.” Id. declining and the need for the Congestion any changes make in response Study to accommodate state poli- laws and comments, DOE noted: cies on portfolio renewable standards. Id. 25,842. to, In responding rejecting Department acknowledges that de- objections,
these termining stressed its discre- the exact perimeters for a tion 25,843. under 216. Id. at National It noted Corridor under a source-and- generally “there is no accepted approach sink under- more art than a standing of science, what constitutes ‘constraints or and there will rarely be a dis- congestion that adversely positive affects reason consum- to draw a boundary in ” ers’ and defended the place opposed definition one as adopted to some number of Congestion Study. 25,843-45. right Id. at miles to the or the left. The draw- ing of boundary ultimately a judg- A second group of comments concerned Secretary ment the must make based on the relationship regional between planning considerations, all relevant including the processes and the designation of national considerations identified in FPA section 25,846. corridors. Id. at For example, 216(a)(4), appropriate, available, argued NARUC that DOE grant should relevant data. single There is no bound- deference to the adequate results of re- ary line that can be determined based gional planning processes, and the Public solely upon analysis of the data. Utilities Commission of the State of Cali- 25,849. Id. at (“CPUC”) fornia argued that “designation is unwarranted unless there is evidence The fourth group of comments asserted that State regional processes are not required DOE was prepare a Pro- addressing the problem in a timely man- grammatic Impact Environmental State- ner.” Id. DOE indicated that it “supports pursuant ment to NEPA designat- before and encourages regional planning ing any efforts” 25,850. National Corridor.
1083 constraint congestion prob- NEPA electric or although re- responded DOE lems. impact statements environmental quires actions, designa- major “[t]he Federal
for
57,022.
at
Fed.Reg.
... does not
a National Corridor
tion of
2008,
in March
DOE issued an
Finally,
quality
hu-
affect
significantly
its
denying rehearing
Designation
order
environment,”
accordingly
a
man
(Mar.
12,959
11,
Fed.Reg.
Order.
designation is not a
“National Corridor
2008).
reiterated its determination
DOE
sig-
action
major
for a
Federal
‘proposal
study was needed
that no environmental
of the hu-
nificantly affecting
quality
highly
“it would
and further noted that
be
falls within the
man environment’
make
Department
to
speculative
25,851.
Id. at
of NEPA.”4
purview
whether, when, or
about
assumptions
might permit
transmission
where FERC
Designation Order
C.
12,969.
facilities.” Id.
2007,
5,
its
DOE issued
or-
October
On
NIETCs,
formally
two
designating
der
Proceedings
D. The Judicial
National Interest Elec-
Area
Mid-Atlantic
ac-
petition
The first
to review DOE’s
(the “Mid-At-
Corridor
tric Transmission
by
Society,
tions
filed
The Wilderness
Corridor”)
Southwest Area
lantic
14,
al. in
court on March
et
this
Electric Transmission
Interest
National
petitions for review were
Twelve other
Corridor”).
(the
“Southwest
Corridor
timely
in other
filed
Circuits. Pursuant
(Oct.
2007).
56,992
Fed.Reg.
ex-
petitions
all
thirteen
were
stipulations,
rejection of
perspective
its
and its
plained
in the
Circuit and are
consolidated
Ninth
recommending
ap-
different
comments
all
panel
before this
for consideration.
no envi-
reiterated that
proaches.5 DOE
necessary, explain-
study was
ronmental
REQUIREMENT
II. THE
FOR
ing:
CONSULTATION
designed
to examine
NEPA review
A.
of Review
Standards
foreseeable, measurable, and pre-
actions,
reviewing
we are
proposed
a
consequences
dictable
action;
of review estab-
guided by
it is
intended to
standard
Federal
USA, Inc. v.
Natural
pro-
or unknowable
lished
Chevron
hypothetical
forecast
Council, Inc., 467 U.S.
or
National
des- Resources
posals
results.
Corridor
Defense
(1984),
impact.
tation with States.” DOE’s efforts to involve that we review more, a DOE to issue 824p(a)(2) directs preparation affected in the States the In- may designate National report which Congestion Study then evaluate the and corridors, alter- considering “[a]fter terest amount, efforts as DOE whether those inter- recommendations from natives and contends, Finally, to if we consultation. for (including opportunity an parties ested did not determine that DOE’s actions States).” from affected comment consultation, to must determine amount we any shortcoming constitutes whether such in step interpreting first “Our harmless error. the lan to determine whether statute is unambigu plain has a and guage at issue Robinson v. Oil meaning....”
ous
Shell
FAILED
III. DOE
TO CONSULT
337,
843,
Co.,
340, 117 S.Ct.
519 U.S.
(1997). This is “determined
L.Ed.2d 808
the
A. DOE’s interaction with
“af-
itself,
language
the
by reference
fected States”
language
in which that
specific context
sought
The record shows that DOE
used,
context of the stat
the broader
ways
input
affected
in three
but
the
States’
843.
ute as whole.”
at
S.Ct.
in
participating
also excluded them from
Morton,
467 U.S.
also
States
See
United
First,
significant respects.
on
several
822, 828,
“quasi-governmental that representatives fifty cludes of all “§ DOE claims that 216 does not FCC, v. states....” NARUC require more than notice-and-comment (D.C.Cir.1984). Moreover, 1497 n. 2 proceedings.” DOE asserts that because itself DOE meeting NARUC advised that Congress did not by define what it meant consulting with it was not the same as with “consultation,” we must defer to DOE’s the affected States.8 The record fails also However, interpretation of the term. we to support DOE’s assertion that those not do read the statute encompassing as with meetings were held certain State proffered definition, DOE’s and such def meaningful entities allowed for a exchange inition is contrary applicable rules of of information.9 statutory interpretation as it would render sum,
In
DOE’s claim that
it met
Congress’s
choice of language meaning
obligation to
Moreover,
consult with the affected less.
we find no
support
States is
argument
based on the
it
position
DOE’s
in the
case
relevant
law.
Congestion
7.
it had completed
After
the
by
9.
support
The e-mail cited DOE in
of meet-
Study,
governors
DOE did invite the
to con-
ings with New York Public Service Commis-
56,996
(“The
Fed.Reg.
sult. 72
n. 18.
sion
the Florida Public Service Commis-
Department sent a letter to the Governor of
simply
meetings
place.
sion
*15
all
supported by
the
This conclusion
gress intended that affected States would
statutory
of
construction.
applicable rules
in study
might ultimately
that
participate
statutory
context as
required by
It is
their
result in some limitation of
tradition
sections indi
juxtaposition
of the two
Indeed,
powers.
Supreme
Court
al
intended consultation
Congress
cates that
has
to these concerns.
been sensitive
See
responding to comments.
to be more than
Agency
Northern Cook
Solid Waste
of
Co., 519 U.S.
Robinson v. Shell Oil
See
Army Corps of Eng’rs,
v.
County U.S.
531
337,
843,
341, 117
[T]he overall record
report],”
tion
fish and
[a
wildlife
but
statutory duty
A
of consultation.
the agency
[report]
“issued the
before
report
draft of
first
was circulated
too,
the exhibit was submitted.” Id. Here
States,
offices,
regional
EPA
the As-
duty
had an affirmative
to con-
sociation of State and
Water
Interstate
sult and the affected
(“AS-
reasonably
States
Pollution Control Administrators
process
believed
consultation
IWPCA”),
would
other stakeholders
place, but DOE
November,
Congestion
take
issued the
1993, and was revised based
Study
engaging
without
meaningful
on comments received. EPA estab-
consultation with
States.
lished the Urban Wet Weather Flows
(“FACA
Advisory
Federal
Committee
perspective
Our
is also consistent with
Committee”), balancing membership be-
opinion
of the United States Court of
tween EPA’s various outside stakehold-
International Trade
Corp.
U.S. Steel
interests,
including
er
representatives
States,
United
29 C.I.T.
F.Supp.2d
States,
Tribes,
from
com-
municipalities,
(Ct.
2005).
Int’l
Trade
Addressing
sectors,
mercial and industrial
agricul-
notice, comment, and
require-
consultation
ture, and
in-
public
environmental and
ments, the
held
court
that “it not enough
68,724.
groups.
terest
Fed.Reg.
to prove
that the
solicited and re-
The 32 members of the
II
Phase
FACA
*16
ceived comments from the Domestic Pro-
Subcommittee, reflecting
bal-
the same
executing
ducers before
Suspension
the
interests,
ance of
met fourteen times
Agreement....
The agency must also
years
over three
state
munici-
and
and
give those comments meaningful consider-
pal representatives provided substantial
ation” and
engage
“must
the Domestic
input regarding
draft reports,
the
the
good
consultations,
Producers in
faith
in a
Rule,
ultimate Phase II
sup-
and the
timely fashion.” Id. at 40. The court
porting data.
found that:
Id. None of the efforts noted in Environ-
action,
Throughout this
the Government
mental
present
Center are
here.
Defense
persisted
has
in conflating Commerce’s
States,
No draft was
to
circulated
the
no
notice-and-comment obligations with its
committee
that
rep-
created
included
obligations. And,
consultation
to some
States,
resentatives from the
and
af-
the
extent, the Government has also conflat-
fected States were not given access to the
its
obligations
ed
consultation
under one
Thus,
supporting data.
DOE’s efforts
part of the statute with its consultation
here fall far short of the efforts that were
obligations under another part. Howev-
determined to
requirement
meet the
er, the statute is clear: Commerce’s con-
consultation in Environmental Defense
sultation obligations
separate
are
and
Center.
(albeit
to)
distinct from
related
its no-
&
Tribes Bands Yak-
Confederated
obligations.
tice-and-comment
FERC,
ima Indian Nation v.
same rule even it had C. The Failure to Consult Not Was procedures. APA To gutting avoid Error
Harmless
procedural requirements,
APA’s
harm-
analysis
less error
in administrative
we cannot
importantly,
More
con
rulemaking must therefore focus on the
clude that
DOE’s failure
consult was
process as well as the result. We have
Certainly,
harmless error.
Ra
American
held that
to provide
failure
notice
Relay
dio
League
notes that
failure to
only
and comment
harmless
where the
disclose information for public comment is
agency’s
“clearly
bearing
mistake
had no
subject
prejudicial
to the rule of
error.
procedure
on the
or
used
the substance
at 237. We
have held
also
that when
Sagebrush
decision reached.”
Rebel-
reviewing
APA,
agency action under the
lion,
Hodel,
Inc. v.
764-65
we must take “due account” of the harm
(9th Cir.1986).
Daniels,
less error rule.
Paulsen
(9th Cir.2005).
F.3d
Id. at 1487.
We have
stressed, however, that a court “must exer
applied
We have
this definition of
great
cise
in applying
caution
the harmless
“clearly
bearing
harmless
no
had
error —
error rule in the
rulemak
administrative
procedure
on the
used
substance
ing
Farms,
context.” Id.
Riverbend
decision reached” —in a number of cases
(9th
Inc. v. Madigan,
It’s that we a bearing used,” on the procedure great must exercise caution in applying commenting that the fact that “petitioners harmless error rule the adminis- had opportunity an to protest already rulemaking trative context. The reason effeetive rule prior to the time it ap is apparent: Harmless error is more plied to each of them does not render the *18 readily abused there than in the civil or harmless”); APA violation City Sausali of criminal agency context. An not O’Neill, (9th is re- to v. 1220 quired Cir.2004) to a adopt rule that conforms in (holding “in rulemaking that the any way context, to the presented comments to we exercise great caution in ap- (citation omitted). Id. at 236-37 congestion The court historical data related to from doz- fairly sources, (2) further observed that it "awas obvious developing projections ens of proposition upon agen- that studies which an (3) congestion, comparing future the cy promulgating in relies a rule be must made Moreover, consistently two.” reiterates during rulemaking available the in order to impacts persistent that congestion from "are persons meaningful afford interested notice readily subject empirical not measure- opportunity and an for comment.” Id. at drawing ment” and that the "task bound- 237. 'geographic experiencing around aries areas’ congestion constraints or is not one that lends 13. DOE states that it "evaluated electric precision.” itself to technical congestion by: transmission reviewing
1091
rule,
why the error
holding
explain
[was]
claimant to
the
the
error
plying
harmless
Id. at 1705.
and comment harmless.”
provide
notice
that failure
the
mis-
only
agency’s
where
is harmless
Court, however,
not
The
did
redefine
bearing
proce-
no
on the
had
clearly
take
error,”
embraced a
“harmless
but rather
of decision
used or the substance
dure
approach
concept.
to the
commonsense
reached”) (internal
marks and
quotation
say
has the “bur-
To
that the claimant
omitted);
Pinchot Task
citations
Gifford
that an error was harm-
showing
den” of
Service,
v. U.S. Fish and
Force
Wildlife
Cir.2004)
system of
impose
complex
ful is
a
not
(9th
(noting
F.3d
particularly
rules
a
shifting”
or
“burden
review,
the
in
context of
that
the
ordinary civil
requirement.
In
onerous
of harmless error
constrained
role
appellant will
appeals,
example,
the
only “when a mistake
may
employed
be
rulings by
judge
the trial
point clearly
body is one that
the administrative
erroneous, say,
claims are
appellant
the
bearing
procedure
on the
used
no
had
excluding favorable evidence.
ruling
a
reached”); and
of decision
the substance
the
circumstances of
case will
Often the
Schweiker,
F.2d
Buschmann
appellate judge
make clear
Cir.1982)
(9th
(holding
an agency
erroneous,
was harmful and
ruling,
the
a
only
error
when
rely on harmless
can
But, if
further need be said.
nothing
body
one
administrative
mistake
not,
party seeking
reversal nor-
then
bearing
no
the proce-
had
on
clearly
mally
why the erroneous
explain
must
of decision
used or
substance
dure
If,
ruling
example,
caused harm.
reached) (internal
quotations marks
seeking
affirmance makes
party
an
omitted).14
citations
strong
the evidence on
argument
however,
dissent,
posits that
The
overwhelming regardless,
point
decision
Shin-
Supreme Court’s recent
party
ask
normally
it
makes sense to
—
Sanders,
-,
U.S.
S.Ct.
seki v.
provide
explana-
an
seeking reversal to
(2009), requires a
1696,
our
case law
of
consistent
failure
notice had no effect on the deter-
requires a
“harmless error”
determination
claim,
disability
mination of the
there could
“had
on
bearing
the error
no
the
harm;
by
be no
the failure of notice
itself
procedure
or the substance
used
of[the]
consequence.
was
noof
Paulsen,
decision reached.”
F.3d
413
at
contrast, here,
In
as in Riverbend
(quoting
790
at
Sagebrush,
F.2d
764- Farms,
congressional
the
require-
notice
65).
Gammie,
In Miller v.
1093
(internal
here, the
to
Similarly,
opportunity
marks
tice.
quotation
opportunity.”
omitted).
completed Congestion
The
as-
dissent
comment on DOE’s
citations
adopted
have
a
circuits
lost
Study
compensate
that other
for the
serts
does not
showing prejudice
approach
similar
consulting
of
with DOE in the
opportunity
errors.17
procedural
from
study.18
of that
formation
compelled
follow our
Although
are
to
we
ap-
of the dissent’s
Another drawback
law,
reach the same
case
we would
prior
appreciate
is its failure to
proach
proffered
the
applying
conclusion
standard
substantive,
failure to consult has a
DOE’s
petition-
find that the
by the dissent. We
procedural
The
component.
as well as
ex-
they
were
ers have demonstrated
the
of the affected States from
exclusion
process,
decisionmaking
the
cluded from
only limited
decisionmaking process not
and informa-
indicated what evidence
have
DOE,
al-
available to
it
the information
provided
given
the
they
tion
would have
its
way
tered the
which DOE made
have shown how their
opportunity, and
v.
discretionary decisions.
In Kurzon
their
by
harmed
exclusion.
interests were
Service,
States Postal
539 F.2d
United
showing
Placing the
of
burden
(1st Cir.1976), the First Circuit indicated
failure to consult was not harmless
alleged
that where there was an
substan-
the
petitioners,
on
we determine that
the
error,
“only
it would
if the
tive
remand
have shown that DOE’s
affected States
the
court is
substantial doubt whether
Congress’s mandate
comply
failure to
with
agency would
made
administrative
have
First,
note that
§in
216 was harmful.
we
the
finding
the same ultimate
with
errone-
although
nature of consultation makes
the
finding
picture.”
from the
ous
removed
precise
conse-
to determine
difficult
(internal quotation
at 796
marks and
absence,
prejudice
quences of its
to
omitted). Here,
are
citations
we
left
party excluded is obvious. Consultation
substantial doubt as to whether DOE
exchange
of information and
requires
findings
would have made the same
had it
a
opinions before the
makes
deci-
consulted with the affected States.
requirement
from
sion. This
distinct
on
opportunity to offer comments
Second,
impact
lack
agency’s
verity
essential
decision.
consultation before a decision is made as
posing
this distinction is illustrated
commenting
contrasted
after
any attorney forgo the
question: would
a
particularly
has made
decision is
severe
opportunity
argue
his client’s case be-
because,
admits,
here
as DOE
its decisions
a
in favor of
judge
fore
renders
decision
part discretionary.
In
were for
most
seeking
judge
reconsideration after
7, 2007, Notice,
not;
stated that
May
made a decision? Of course
such
has
generally accepted
“there is no
under-
might
malprac-
well amount to
decision
Found,
empirically
generalizations
times make
based
17. The dissent cites Conservation Law
21,
(1st
Evans,
Cir.2004);
likely,
29-30
v.
F.3d
what
error are
as a
about
kinds of
(5th
Lyng,
matter,
F.2d
Cir.
Texas
prove
factual
harmful.’’ 129 S.Ct.
EPA,
1989);
Cnty. v.
529 F.3d
Miami-Dade
argument
A
can made
at 1707.
reasonable
be
(11th Cir.2008);
Owner-Oper
prior
making
that a failure to consult
Ass'n,
Indep.
Inc. v. Fed. Motor
ator
Drivers
decision,
discretionary
when such consulta
Admin.,
Safety
202-03
Carrier
law,
type
error
tion is mandated
(D.C.Cir.2007).
However,
likely
prove
that is
harmful.
showing
light
preju
of the affected States’
Sanders,
the Court noted that
it had
argument.
dice we need not consider such an
“previously made clear that courts
some-
*21
standing
Congestion
of what constitutes ‘constraints or
reefed DOE to
a
conduct
adversely
that
affects consum-
congestion
They
themselves,
Study.
protect
to
had
”
25,843,
ers,’
Fed.Reg.
and noted
perhaps try
potential
to reduce the
provides
that
statute
little direction
“[t]he
consultation,
harm from a lack of
by re-
Department
on how the
should draw the
sponding
request
to DOE’s
for comments.
Corridor,”
of a National
id. at
boundaries
But, contrary
suggestion,
to the dissent’s
25,848. Thus,
that
DOE admits
its deter-
there is no evidence that DOE ever con-
Conges-
and conclusions in the
minations
sulted with
State.20
Study
compelled by
tion
were not decisions
Finally,
objections
a
review the
filed
formulae,
impor-
some mathematical
but
by the affected States and others reveals
discretionary
tant
for which
decisions
that
DOE’s failure
with the af-
guidance.19
little
consult
there was
value of
consulting
agency
an
before it
in developing
Congestion
with
makes
fected States
the
a
greatest
agency
is
when the
Study
decision
was not harmless error and that
adopting
approach”
tasked
“novel
consultation
probably
would
have resulted
that
then affect all
will
stakeholders.
study.21
a different
Among the over 400
situation,
here,
such a
as
a court can hard-
that
pub-
comments
DOE received
it
when
ly
agency’s
conclude that
the
refusal
Congestion Study
lished the
were asser-
consult with the affected States had no
(1)
tions that:
Congestion
“the focus of the
bearing on the substance of the decision study is too narrow to accommodate State
Paulsen,
reached. See
that consultation to agency’s action failed follow Con Rather, to responses DOE’s variations. appropriate clear mandate the gress’s “discretion,” im- its the comments stress See, remedy e.g., to vacate that action. is might that consultation recognizing plicitly EPA, Advocates v. Nw. Envtl. in different decisions. have resulted Cir.2008) well (9th (explaining 1026-27 re- the first line of DOE’s example, For court’s decision to vacate that the district gives § it “discre- that sponse stresses proper remedy the EPA’s action was 25,843. It admits that the Id. at tion.” authority EPA acted outside its when congestion or that ad- “constraints term intent). Congress’s clear defiance ambigu- ... versely affects consumers promulgat a Similarly, regulation where attaches no modifiers and the statute ous APA of the and the violation ed violation particular type specify to the term to harmless, remedy is to invalidate is not effect intended.” of adverse magnitude Paulsen, 413 F.3d at regulation. See ambig- that a term is DOE’s admission Accordingly, as we have determined little provides uous and that the statute required more than the notice- indicates interpretation in its guidance DOE, procedure adopted by and-comment have been altered might decisions well failure to consult with the DOE’s affected with the through consultation error, not harmless affected States was States. require that we va precedent and reason Study and remand for Congestion cate the that consultation would
The likelihood Congestion Study prepare the DOE seen, may be different results produce with the affected States.” “in consultation objections to example, petitioners’ in the the entire Mid-At- designation of DOE’s might that we vacate suggestion and to as a NIETC Corridor region lantic Congestion of the only portions those that DOE failed consid- their assertions have shown Study for which the States energy to address con- regional efforts er misconstrues the nature prejudice, congestions. This is not straints and defer- consultation as well as the right to were that DOE’s determinations suggest decisions. As not- ence we owe to DOE’s Rather, pe- it appears unreasonable. ed, to determine the impossible it is almost frivolous, may objections are not titioners’ failure impact of a decisionmaker’s precise merit, thus, we cannot have well some discretionary making prior to consult DOE, it to exercise its conclude that were Congestion Study Because the decision. informed consultation when discretion for which sound discretion invokes DOE’s States, modify would with the affected criteria, few, objective any, we there are its decisions. have know what DOE would simply cannot considered the affected had it was not some decided
The failure to consult completed it before perspectives error, resulted a decision- State’s but technical decide foretell what will contrary study, that was making process consulting with the affected States. after Congress and one that de- mandated Applicable A. The Law Accordingly, prepare Conges- DOE must *23 with the Study tion in consultation affected parties agree pursuant All may judicially which thereafter be States Act, Policy National Environmental opinion no as to the express reviewed. We 4882(2)(C), DOE, any U.S.C. like other In- form or results of the collaboration. agency, every federal must include “in rec- could, deed, in the exer- presumably DOE report or proposals ommendation on discretion, cise of its sound come to the legislation major and other Federal actions conclusions that it did in same or similar significantly affecting quality of the course, study. it might the initial Of reach environment, human a detailed statement very different conclusions. What is critical by responsible potential official on” the is that it follow the statute’s mandate and consequences environmental of the ac- States, particularly consult with affected tion.22 Id. requires prepare §as a con- Oregon In Marsh Natural Resources
gestion study every years. three Council, 360, 1851, 490 U.S. 109 S.Ct. (1989), Supreme
L.Ed.2d 377
Court
promotes
sweeping
noted
“NEPA
V. THE FAILURE TO UNDERTAKE
prevent
commitment to
or eliminate dam-
AN ENVIRONMENTAL STUDY
age
biosphere by
to the environment and
We next address DOE’s failure to focusing Government and
attention
public
an
prepare
Impact
Environmental
State
on the
proposed
environmental effects of
(“EIS”)
ment
or an Environmental Assess
“agency
action” so that the
will not
(“EA”)
ment
for either of the NIETCs.
information,
incomplete
act on
only to re-
First,
We do so for two reasons.
even
gret
its decision
after
is too late to
we had not determined that the Conges
(inter-
correct.” Id. at
environmental
ers do not significantly affect the environ-
apply
We
standards to DOE’s as-
these
ment,” we held that the contracts raised
that, although
applies,
NEPA
sertion
far greater
“considerations of
historic and
required
was not
to undertake
review
regional import
significantly
affect the
potential
consequences
environmental
Accordingly,
environment.”25 Id. at 682.
have
because the NIETCs do not
envi-
we concluded that BPA’s action was not
are compelled
ronmental effects.23 We
sufficient and
required
preparation of
reject DOE’s assertion because
its con-
an EIS. Id. at 686.
clusory
statement does
allow us to
*25
recognizes
relevancy
DOE
of Fore-
determine whether
took a
DOE
“hard
laws, but
distinguish
seeks to
the case on
potential
look” at the
environmental conse-
ground
authority
DOE has no
quences;
although
and
the effects of
site electric transmission facilities. This
may
the NIETCs
be uncertain and diffi-
persuasive
distinction is not
because the
quantify,
potential
cult to
consequences
NIETCs,
essence,
influence
in
the areas
of such
significant enough
effects are
which electric transmission facilities will be
conclusory
undermine DOE’s
determina-
located,
though they
even
do not deter-
prepared.24
tion that no EA need be
precise
mine the
locations of the facilities.
Forelaws,
inAs
the locations of those ar-
1. The NIETCs do not determine the
great
eas could have
historic
regional
siting
any particular facility
consequences
significantly
affect the
argues
that the NIETCs do
Thus,
environment.
fact
any
not have
environmental effect because
do not approve
sitings
NIETCs
the actual
they
approve
siting
do not
any
specific
transmission facilities does not
furthermore,
facility,
any
transmission
excuse
considering
DOE from
particular siting
subject
will be
to NEPA
impacts.
NIETCs’ environmental
however,
precedent,
review. Our
provides
Furthermore, Forelaws does not stand
agency
“major
action
constitute a
alone in holding
agency pro-
that broad
Federal action”
though
program
even
grams may
“major
constitute
Federal ac-
does not direct
ground
immediate
tions,”
though
programs
even
do not
breaking activity.
direct
ground-disturbing
immediate
Johnson,
In Forelaws on Board v.
activity.
743
Oregon
See
Natural Desert Ass’n
(9th Cir.1984),
BLM,
(9th
677
petitioners
Cir.2008)
F.2d
v.
1116
57,022;
12,-
Fed.Reg.
Fed.Reg.
23. See 72
"by defining
system
the federal base
and ‘new
968.
large single
help
loads’ the contracts
deter-
magnitude
power obligations
mine the
of BPA
reasons,
24. For these
as elaborated in the
in the future
impact
and thus will
have
sections,
following
although recognizing that
upon long-range regional energy plans” case,
disagree
this is a close
we
with the
significantly
that "the contracts
affect the en-
perspective
Designation
dissent's
that the
Or-
they
important
vironment because
involve
(dissent
adequate
der constitutes an
EA
at
policy
affecting energy
choices
conservation.”
1117).
review is
under the
review
major
are
2. The NIETCs
APA,
agency’s
provision of the
decision
*26
actions
agency
a final
action and the
must be
federal
they
“must
have suf-
plaintiffs
establish
Environmental
a. Northcoast
wrong,
adversely
or will
legal
fered a
be
Center v. Glickman
aggrieved
meaning
or
within the
affected
NIETCs are not
asserts that the
proceed-
the relevant statute.” Id. We
it
be
actions because would
major federal
agency
that
action
ed to comment
(2)
(3)
(1)
their environ-
speculation
predict
federal,
‘major’,
pure
and
“must
be
Citing Northcoast Envi-
im-
impacts.
significant
mental
a
environmental
have
Glickman,
F.3d
focused on the
pact.”28
opinion
Id. The
ronmental Center
that the
(9th
We concluded
Cir.1998),
requirement.
that an third
DOE asserts
Yosemite,
to act on site
decision has been made
recognized that:
critical
we
26.
In Friends of
(internal quotation marks
development.” Id.
management
agency’s planning and
[A]n
omitted).
citations
admin-
and
occur at two distinct
decisions
(1)
"programmatic lev-
istrative levels:
signifi-
“project may
We
that a
have
27.
noted
[agency] develops alterna-
el” at which
impacts
effects
management
responsive to
environmental
where its
scenarios
cant
tive
costs,
concerns, analyzes
public
unique
bene-
highly
involve
or un-
are
uncertain or
consequences of each alternative
fits and
general
“warned that
state-
known risks” and
[EIS],
adopts
[man-
an amendable
an
possible’
risk’
effects
'some
ments about
guide management of
agement] plan to
justifi-
absent a
not constitute a ‘hard look’
do
resources;
imple-
multiple
use
regarding why
definitive infor-
cation
more
stage during which individual
mentation
provided.” Blue Moun-
could not be
mation
specific projects, consistent with
site
tain,
(quotation
at 1213
marks
161 F.3d
plan,
proposed and as-
[management]
are
omitted).
citations
sessed.
recognized
an
We
F.3d at 800.
also
an "EIS is not nec-
We further noted that
28.
prepare
EIS at each level.
agency
an
must
would
essary
proposed
federal action
where
(such
programmatic plan
as the
"An EIS for
quo.”
F.3d at 668.
change
the status
CMP)
provide
detail to foster
sufficient
must
question that the NIETCs
there is no
Here
site-specific
decision-making, but
informed
quo.
change the status
fully
impacts
evaluated until
need not be
“properly recognized”
quirement
district court
“significant
the action have
none of the activities had an actual or
environmental impact,” or whether the lat-
immediately threatened effect on the envi-
ter was treated
element of the for-
“correctly
ronment and
decided” that the
event,
mer.
opinion certainly
“reasonably
FS
found” that its actions did
implies
program
did have a
not “significantly
quality
affect the
of hu-
significant environmental
impact, would
man environment.”29 Id. at 669-70. Al-
“major”
have been a
federal action.
though sympathetic
plaintiffs’
concern
that agencies should conduct a full NEPA
Third, although Northcoast states
analysis
management
when
plans are im-
agency
that an
prepare
need not
an envi
plemented
proposed,
concluded that
we
ronmental
when its action does not
management
programs
current forest
significant
have a
environmental impact, it
specific
did not “call for
enough action to
also holds that the record must be suffi
trigger
procedural requirements,”
NEPA’s
cient to allow the court to determine that
and noted that plaintiffs
“challenge
could
agency’s
conclusion was reasonable.
sufficiency
agency
of an
EIS when
See
670.
discrete
action is called for.” Id. at
670.
Here, the NIETCs are undoubtedly final
agency actions. The NIETCs conclude
points
Northcoast offers several
responsibilities
They
under
First,
guidance.
in determining whether
establish the boundaries for two national
program
significant
had a
environmen
electric transmission- corridors. Once the
tal impact,
implicitly
we
pro
held that the
final, any
NIETCs become
question as to
gram
subject
was a final
action
the actual siting
facility
of a
within the
APA,
review
though
under the
even
we
corridors will be addressed to FERC. See
recognized
plaintiffs
“challenge
could
*27
(“DOE
12,969
Fed.Reg.
agrees that
sufficiency
agency
of an
EIS when
the effect of a National Corridor is to
agency
discrete
action is called for.”30 Id.
geographic
which,
delineate
Second,
areas within
we
program
determined
was,
circumstances,
under certain
potentially,
“major”
least
FERC
Federal
ultimately
action.
It
is not clear
authorize the
whether the re
construction or
quirement
agency
“major”
modification
action be
of electric transmission facili-
ties.”).
separately
considered
from the re-
29. We
Therefore,
noted:
ical environment.
we find the
reasonably
Secretaries
decided that an EIS
The FS
Items/Objec-
Action Plan's “Action
required
was not
manage-
for their POC
tives” section does not create activities
programs.
ment
impact
physical
which
environment.
Rather,
HOI along preselected routes. DOE claims impact the intent and Both they that these decisions remain to be made support the conclusion NIETCs actors, major They multiple independent given action. Federal constitute range options Interest” corridors to ad- available ... create “National “the vast predict concerns. The NIETCs pure speculation national would be envi- dress (as in ten assign a 100 million acres impacts cover over ronmental them causation) Moreover, they create new federal Designation matter of States. of eminent do- rights, including power further asserts that under Order.” DOE to, do, main, curtail § that are intended limited task was to “determine 216 its traditionally by the states and rights availability held of a federal fo- the conditional 16 U.S.C. governments. projects,” local See siting rum for transmission (e). sum, that the 824p(b), we hold premature it would have been for DOE “to are final actions that con- potential NIETCs environmental im- evaluate major Federal actions. pacts stitute of new transmission facilities when deciding merely whether a federal forum significant The NIETCs raise b. made DOE also con- should be available.” impacts environmental tends that even the NIETCs were cer- specific projects being tain to result wheth remaining question FERC, DOE was not re- submitted significant could have envi er the NIETCs or, quired prejudge potential impacts “to accurately, impacts more ronmental project-specif- because a projects” of those created a record suffi whether DOE has required per- ic NEPA review is before a whether its to allow us to evaluate cient mit issues. determination is reasonable. “no effects” Second, DOE claims that the NIETCs against proffers arguments four programmatic have no foreseeable effects. being required to undertake environ- that in NEPA First, DOE admits some instances study. DOE contends that mental may require “programmatic” review of de- are potential project-specific impacts no actions, prescribe future even cisions that reasonably foreseeable or caused NEPA will though project-specific review NIETCs. DOE contends particular project occur before a is under- transmis- NIETCs are not decisions add Nonetheless, taken.31 DOE maintains capacity problems to solve the of con- sion programmatic are not deci- gestion or to site transmission facilities the NIETCs *28 1508.18(b), (3) Adoption programs, group § which such as a 31. DOE cites 40 C.F.R. implement specific reads: of concerted actions to a (b) policy plan; systematic and connected tend to fall within one or Federal actions following categories: allocating agency re- decisions (1) Adoption policy, such as of official implement specific statutory sources to rules, regulations, interpretations program or executive directive. adopted pursuant to the Administrative Pro- projects, Approval specific such as Act, seq.; et cedure 5 U.S.C. 551 treaties management or activities lo- construction agree- international conventions or geographic cated in a defined area. Pro- ments; establishing an formal documents approved by permit jects or include actions agency's policies will result in or which regulatory other decision as well as federal substantially agency programs. alter federally assisted activities. (2) Adoption plans, as offi- of formal such appears recognize that Id. DOE NIETCs prepared approved by cial documents or may be federal actions under subsection guide prescribe agencies which or federal (b)(3). resources, upon alternative uses of Federal future actions will be based. which reasonably-foreseeable conservation, discourage sions with future corridor will opin- plan ing not a “might readily spur effects because each NIETC “is a NIETC guide management energy poli- expansion parks land and conservation decisions,” Corridors, cy “merely makes available but easements within the as inter- (i.e., remedy a federal a forum procedural parties protect ested seek to sensitive re- for the trans- argues consideration interstate sources.”32 DOE further lines), potential fragmentation mission in the event that FERC claims of habitat within a corridor meaningfully finds relevant State forums to be inade- cannot be quate per many reviewed because of the Congress.” the standards set variables range and wide of alternatives. DOE maintains that the “addition of a DOE any claims that suggestion that environ- backstop federal forum” does not mean mentally might sensitive areas be excluded approve States and FERC will from the corridors “confuses greater projects number of and it “does (designating threshold task areas with con- not favor transmission solutions over non- gestion problems) with the States’ and ... particu- transmission alternatives nor subsequent FERC’s (evaluating pro- task generation lar sources over others.” DOE solutions).” posed recognizes that it is choosing tasked with geographic boundaries of the Nation- Fourth, argues that the NIETCs Corridors, pe- al-Interest but asserts that any legal do not diminish protections be- titioners have failed to show that these cause “Congress provided that nothing boundaries circumscribe relevant alterna- § laws, 216 alters federal environmental they place tives as no limits on siting State laws including requiring special authoriza- authorities. tion for use of federal lands or federal permits for impacting air and water re-
Third, DOE denies that the NIETCs sources.” NIETCs do not allow pow- could impacts have on sensitive areas er companies away” “to run from state and such as critical endangered spe- habitat for federal environmental and land use laws cies, rivers, areas, scenic wilderness they, themselves, because have “no points historic sites. DOE out that an effect, preemptive authority and FERC’s prepared EIS must be whenever substan- 216(b) preempt State law under questions tial are raised about whether project-specific and limited to circum- specific project may significant have a ef- stances Congress.” enumerated Ac- fect. DOE further petitioners asserts that DOE, cording to there are no “foreseeable have the burden of showing poten- adverse effects from the mere threat of tial impacts to sensitive resources are a federal intervention” “potential because ac- “reasonably foreseeable” result of the des- proceedings celeration of State does not ignations. very DOE maintains that “[t]he dictate the proceedings” outcome of those designations breadth of these belies and because DOE “any does not have dis- suggestion impacts can be meaning- *29 statutory frames,” cretion to alter the time fully designation evaluated at the stage, might preclude which meaningful “review even it is assumed that designation potential of their effects.” prompt will additional pro- transmission jects.” disagrees DOE with petitioners’ may There be merit to some of DOE’s claim that the inclusion of within a arguments land in limiting scope terms of of efforts, argument exposes threatening This a they weakness in as conservation will essence, position. DOE’s “protect DOE here rea- redouble their efforts to sensitive re- people Designation sons that because see the sources.”
H03 EA involved in the DOE. why in an and the area NIETCs explaining an EIS or they Thus, prepared, alleged impact be but of the an EIS should NIETCs’ not law and fact to as a matter of particular fail both inclusion of areas as within the failure to undertake justify corridors, DOE’s areas, and the exclusion of other im- study potential environmental of subject are to review for environmental pacts. impacts at this time or not at all. primary argument appears be
DOE’s approve that because the NIETCs do not c. The relevance the environmental of sites, they meaningful have no any specific the West-unde Corridors for impact. perspective environmental This Any remaining doubt as to whether it is that a decision to en- appreciate fails to im- possible to consider the environmental incentives, courage, through a number of pacts dissipates light of the NIETCs of of facilities in one siting transmission preparation Programmatic of a En- rather than another has ef- municipality (“PEIS”) Impact vironmental Statement of the municipalities fects in both terms designation West-wide Corri- proposed potential land and values of dors for federal lands in eleven western may of land. The effects be difficult uses Department Energy states. See U.S. of et ulti- to measure and be determined al., Programmatic Impact Environmental mately imprecise to be too to influence the Statement, Designation Energy Corri- precisely type Designation, but this is dors on Federal Land in the Western only can be intelli- of determination (hereinafter (DOE/EIS-0386), of at States gently preparation made after the “PEIS”). separate EA. A provi- least an and distinct EPAct, § Energy sion 368 of the consequences of these flow- Recognition (Pub.L. 109-58, Policy Act of 2005 No. from the NIETCs defeats most of ing § 119 Stat. at 42 U.S.C. codified an EA or preparing DOE’s reasons for not 15926), § land-management directs federal study, impossi- such a it is EIS. Without agencies identify rights-of-way across project- fairly ble to determine whether they energy administer to serve as lands reasonably specific impacts are foresee- points DOE out that the stat- corridors. able, are ef- “programmatic whether there provides designated ute “corridor fects,” Designation and whether the has minimum, shall, this section at a under areas. Further- any impact on sensitive centerline, width, specify compati- more, legal pro- the NIETCs do diminish ble uses the corridor.” U.S.C. any particu- as to whether tections least 15926(e). § Together Depart- with the included in a geographic lar area should be Interior, prepared ment of the re- particular siting trans- corridor. 15926(a)(2) quired PEIS. See U.S.C. facility may challenged be before a mission FERC, “any (providing preparation for the en- challenge spe- or but a State that may required the inclusion of vironmental reviews be challenge cific site cannot Here, Designation energy policy. argument "is ment or the converse is 33. DOE's remedy part created 'programmatic' because it "is true. The federal not a decision” Moreover, energy plan. Designation plan guide management ener- land "procedural” remedy "merely than a because gy policy makes avail- is more decisions” (by procedural remedy” authority federal action does not it also creates able a federal *30 FERC) authority previously scrutiny. argument assumes where no such withstand This existed, authority pow- making "procedural” and arms with available a federal guide manage- domain. remedy plan a land er of eminent is not to environmental, major land designation of such corri- avoid known complete to (such dors”). use, regulatory and constraints as areas, topography, wilderness cultural in issued the PEIS agencies The federal resources, military training test and ar- of the PEIS aspects Two October 2007. eas, and Tribal and state natural and to this case. relevance particular are of etc.).... areas, cultural resource “why First, question response in in a preliminary revision resulted West- review under conduct an environmental energy wide corridor network that analy- programmatic prepare NEPA and lands, private, avoided state and Tribal sis,” summary states: the PEIS’s executive many important known natural and cul- Agencies requires Section 368 resources, many tural incom- areas reviews” any conduct “environmental patible energy transport corridors designation necessary complete regulatory because of or land use con- energy pro- corridors. The Section 368 meeting requirements straints while posed designation energy of Section 368 objectives of Section 368. result in direct corridors would not ground may signifi- on the impacts PEIS, supra, ES.12.2.1. cantly quality affect the of the human recognize that and the We the PEIS environment. Designation West-wide were undertaken Nevertheless, Agencies have decided pursuant provi- a separate and distinct a PEIS to conduct detailed prepare Nonetheless, sion of the EPAct. the cre- analysis program- at the environmental impact ation of the PEIS and its on the integrate matic level and to NEPA at resulting strong designation corridor ev- possible the earliest time.34 possible idence both that it is to determine
PEIS, Summary, at supra, Executive ES.8 impacts proposed the environmental of a omitted). (footnote energy corridor and that the of such “ Second, identifying after ‘unre- impacts may environmental result in modi- conceptual network of stricted’ West-wide fications of corridor’s boundaries. The energy transport paths,” the executive Designation, Corridors West-wide like summary explained: Designation, not approve NIETC did
Next, sites, seg- locations of specific designated specific individual but areas Nonetheless, the conceptual agencies, ments of network defined for sites. the lead DOE, Step including 1 were reshaped examined revised the corridors summary goes pro- prepare 34. The executive on to state: The decision to an EIS for a grammatic action such that described agencies pre- requires NEPA that federal supported by Section 368 is Council on pare major a "detailed statement for federal (CEQ) Quality regulations Environmental significantly affecting quality actions 1502.4(b), Title Part of the Code Fed- Here, Agen- the human environment. (40 1502.4(b)), Regulations eral C.F.R. preparing cies have concluded that a PEIS Impact states that "Environmental which region-wide at this time to examine envi- prepared Statements be and are some- appropriate, ronmental concerns is even in required times federal broad action on-the-ground the absence of environmen- adoption agency pro- such as the of new impacts resulting designation. tal from the (section 1508.8). grams regulations impacts Actual local environmental must Agencies prepare shall statements on broad site-specific inevitably proposals await they policy action so that are relevant to required site-specific environmental re- meaningful and are timed to coincide with points agency planning view. and decision making.”
HQ5
event,
any
In
to the PEIS to exclude certain EIS.
DOE has failed to
response
present
necessary
§
the documentation
Certainly
15926 con-
lands.
sensitive
allow us to determine that
there are no
requirement
for a
specific
tains a more
impacts
environmental
DOE' took a
than
study
impacts
of environmental
at the environmental impacts.
“hard look”
a
ability
§
to undertake
but
Corridors, and to
PEIS for West-wide
4. The
to undertake an
failure
PEIS,
on the
modify the boundaries based
study
environmental
is not
pos-
that it is not
undermines its assertion
harmless error
im-
to evaluate the environmental
sible
Finally,
suggests, citing
DOE
a
pacts of NIETC.
1500.3,
§
that even if
C.F.R.
we were to
adequately
has not
DOE
that a
EA
required
determine
formal
documented its decision
to document DOE’s “no effects” determi
nation,
was,
DOE’s failure to do so
at
adequately
DOE also asserts that
has
most, harmless error. As
in
noted
Section
not to
documented its decision
undertake
C, supra, following
III
the issuance of the
It
argues
review under NEPA.
Supreme
Sanders,
in
opinion
Court’s
Northcoast,
to the situation in
nei
similar
place
peti-
S.Ct.
we
the burden on
“specific proposal
ther NIETC is a
tioners to show that the failure to under-
consequences
environmental
that can be
take an environmental
is not harm-
evaluated at this time.” 136
meaningfully
Here,
cursory
less error.
even a
review of
omitted).
(internal quotations
at
F.3d
petitioners’ contentions raises “substantial
that a
is similar to the
We doubt
NIETC
questions ... as to whether [the NIETCs]
in
management guidelines
issue North-
significant
cause
degradation of some
coast,
engage
but even we were
this
human environmental factor.” Klamath
fiction, this case does not contain the criti
Wildlands,
(in-
Siskiyou
VI. ENDANGERED SPECIES ACT AND THE NATIONAL HIS- VII. CHALLENGES TO SPECIFIC
TORIC PRESERVATION ACT OF THE ASPECTS NIETCs argue Petitioners also that DOE violated (“ESA”), Endangered Species Act Petitioners have raised numerous chal- § by failing U.S.C. to consult with lenges particular aspects of the Mid- Secretary pursuant of Interior to 16 Atlantic Corridor and the Southwest Cor- 1536(a)(2). However, recently U.S.C. We have ridor. Designation as the vacated, stated that triggering “[t]he threshold for these corridors is challenges these Endangered Species relatively Act are moot and need not them. we address low; consultation required whenever a Petitioners will have the opportunity to mandate, gress’s appropriate Northwest Environmental Advocates v. clear reme- EPA, dy we noted that when the EPA acted out- to vacate F.3d that action. 537 (9th Cir.2008). authority side its and failed to follow Con- 1026-27
H07 pro- their concerns to DOE in the ter is REMANDED present proceed- for further *33 ings on remand. are confident ceedings opinion. We consistent with this takes, that whatever actions DOE the sub- IKUTA, Circuit Judge, dissenting: (if challenges any) to those actions sequent turn, part, at least in on will facts and First, This is a tale of two errors. that are not arguments before us now. consulting DOE erred with affected massive,
states the threshold of a year CONCLUSION long, study nationwide of electric transmis congestion. sion But this error was harm 2005, Policy In Energy Act of Con- less. Petitioners have not shown that gress specifically directed DOE to under- prevented DOE’s error them from submit Congestion Study “in take consultation ting information or making arguments to with affected States.” 16 U.S.C. DOE, they nor have shown that DOE § It 824p(a)(l). further directed that in would have amade different decision ab undertaking this and in designating short, sent the In they error. have failed any national electric interest transmission to offer even a scintilla of evidence to corridors, comply DOE was prejudice. establish controlling Under Su NEPA. We determine that DOE failed to preme therefore, Court precedent, we prior consult with the affected States must uphold DOE’s actions. Shinseki v. issuing Congestion Study its this — Sanders, -, 1696, U.S. 129 S.Ct. prejudicial failure was to the States. Ac- 1704-06, 173 (2009). L.Ed.2d 532 cordingly, Congestion Study is vacated. We further find that DOE’s statement that But here is where the second error designation sig- of NIETCs “does not in, namely, majority’s comes ruling nificantly quality affect of the human complete DOE must pro- entire environment” is not supported by suffi- again cess though even its consultation cient evidence to show that DOE has taken error caused no harm. recog- Instead of requisite “hard look” at the environ- nizing rejected that Sanders the presump- consequences. mental Kleppe See v. Sier- prejudice tion of articulated Riverbend Club, ra at 410 n. U.S. 96 S.Ct. Farms, Madigan, Inc. v. 958 F.2d 2718; Lockyer, ex rel. (9th Cir.1992), majority employs California at 1012. We further find that the record approach nullify this discredited DOE’s does not allow us to conclude that so, doing efforts. In majority inflicts failure to take hard look at the environ- only injury saga. real in this I re- consequences mental Ac- harmless. spectfully dissent.
cordingly, Designation of the NIETCs light is vacated. of our I vacation of the Congestion Study and the Desig- NIETCs Motivated concerns about the relia- nation, petition- we decline to consider the bility of electricity system, the national (1) challenges ers’ under the Endangered Congress instructed DOE to conduct “a (2) Act, Species under the National Histor- study of electric congestion” transmission Act, ic specific Preservation and use it “designate any geographic aspects of the Mid-Atlantic Corridor and experiencing energy area electric trans- the Southwest Corridor. capacity mission congestion constraints or petitions for review are that adversely GRANT- affects consumers as a na- ED, Study the Congestion Designation tional interest electric transmission corri- VACATED, (2). are 824p(a)(l), NIETCs and the mat- dor.” 16 U.S.C. 1704-06, in hold- majority and the errs Congestion Study, in the resulted efforts 8, 2006), otherwise. 45,047 ing and the (Aug. Fed.Reg. 56,992 Order, Fed.Reg. Designation II
(Oct.
2007),
congestion
which examined
150,000
transmission lines
miles of
in over
Act
The Administrative Procedure
119 million acres over
designated over
(APA)
that, in
informs federal courts
re-
interest electric
national
ten states as
actions,
account shall
viewing
“due
*34
(NIETCs).
transmission corridors
prejudicial
taken of the rule of
error.”
be
requires
§
5 U.S.C.
706. This section
that
majority
Although agree
I
with
in
error rule
apply
courts to
the harmless
“in consultation
engage
failed to
the DOE
reviewing challenges
to administrative
States,”
824p,
the record
with affected
See,
agency
e.g., Nat’l Ass’n
proceedings.
impacted
that
this failure neither
shows
Wildlife,
v.
Home Builders Defenders of
nor
designation process
the outcome of the
644, 659-60,
2518,
127
168
551 U.S.
S.Ct.
required oppor-
deprived petitioners of
(2007) (“In
law,
L.Ed.2d 467
administrative
comments, facts,
all
tunity to contribute
litigation,
criminal
as
federal civil and
they wished to submit.
analysis
(quoting
there is a harmless error rule.”
actual notice
The affected states had
Labs.,
362 F.3d
PDK
Inc. v. U.S. DEA
study
congestion
producing
DOE was
(D.C.Cir.2004))).
786,
Although Sec-
799
designate
inform its decision
would
specify
tion 706 of the APA does not
which
NIETCs,
actually
two of them
and all but
showing that
party bears the burden of
by di-
participated
provided
feedback
prejudice
alleged agency
resulted from
er-
interacting
personnel
with DOE
rectly
ror,
general
party
rule is
conferences, one-on-one
in-person
various
rul-
challenging
procedure
an erroneous
or
calls, by
conference
submit-
meetings, or
See,
ing
carry
e.g.,
must
the burden.
comments,
byor
some combi-
ting written
NLRB v.
Line Fishermen’s Un-
Seine &
various channels. More-
nation of these
(9th
Pedro,
F.2d
ion
San
over,
responded
DOE considered
(“
Cir.1967)
showing
burden of
‘[T]he
these comments when it issued its final
party
on the
prejudice has resulted’ is
order,
designation
and no state
rul-
claiming injury from the erroneous
now claims that it lacked notice of DOE’s
Hoffman,
ings.”) (quoting Palmer v.
spe-
invitation to solicit comments or had
109, 116,
L.Ed. 645
63 S.Ct.
U.S.
un-
arguments
cific
or studies that it was
(1943)).
fact,
petitioners
able to submit.
do
(and cannot)
any preju-
involving alleged
In a handful of cases
demonstrate
notice, com-
engage
agency
comply
from
failure to
in for-
failures to
dice
ment,
requirements, we
they
mal consultation:
cannot show that
and consultation
departed
long-standing
would have been different had
from this
rule.
the outcome
consulted,
justified
they
formally
they
departure
nor can
We
this
based on our
been
argu-
establishing
or
concern that
the burden for
point
specific
information
they
prejudice
heavy.
to submit
in such cases was too
As
ments that
were unable
Farms,
“if
explained
of the lack of consultation. Ac- we
Riverbend
because
below,
solely
error rule were to look
cordingly,
explained
detail
harmless
result,
it
always
actual harm
could
claim that
states’ failure to show
if
the same rule even
adopted
attributable to the lack of consultation would have
controlling
complied
procedures.”
with APA
dooms their claims under
Su-
had
Therefore,
Sanders,
H09 agency by presuming the burden to the Unless the circumstances of the case agency’s provide that an failure to notice appellate judge “make clear to the that the erroneous, prejudicial. ruling, harmful,” consultation was See Paul par- was (9th Daniels, ty seeking sen reversal must “marshal[] Cir.2005) (presuming that the Bureau of prejudice facts and evidence” to establish comply “explain why Prisons’s failure to with the APA’s and the erroneous ruling requirements notice and comment harm.” caused Id. at 1706. In this re- prejudicial shifting gard, and thus the burden to specifically disapproved the Court otherwise). prove challenger’s argument for “the creation special
of a
rule” that placed “upon the
agency the
proving
A
burden of
that a notice
Third,
error did not cause harm.” Id.
approach
The Riverbend Farms
is con-
“may
Court held that while courts
some-
trary
Supreme
Court’s recent deci-
*35
times
empirically
generaliza-
make
based
considering
sion in
In
Sanders.
the “rule
tions about what kinds of
likely,
errors are
context,
prejudicial
agency
of
error”
matter,
harmful,”
as a factual
prove
Supreme
repudiated
Court
the Federal
generalizations
such
must be based on
mandatory presumption
Circuit’s
that cer-
factors;
case-specific
they
rigid,
cannot be
types
tain
per
of notice errors were
se
mandatory presumptions.
Id. at 1707.
prejudicial.1 129
at 1704. Rejecting
S.Ct.
The factors that inform
generaliza-
such
a rule that when an agency provides a
tions are best left to the court that “sees
claimant with
notice
is “deficient
case-specific
sufficient
raw material” so as
any respect,”
agency
presume
should
empirical
draw such
conclusions.
Id.
1702,
prejudicial,
the error is
at
id.
Thus,
general
Sanders enunciated a number of
Sanders
appel-
instructs federal
First,
principles.
prohibited
the Court
re-
late courts that they
case-by-
must take a
mandatory
liance on a
presumption
approach
case
to determining whether an
error,
prejudice
doing
because
so would
agency’s
frustrate
whether procedural or sub-
stantive,
Congress’s express preference for deter-
has a harmful effect. Under
Sanders,
mining the
of an
harmlessness
error on
we
neither presume preju-
fact-specific, case-by-case basis.
Id. at
place
proof
dice nor
the burden of
on the
Second,
1705.
agency
disprove
the Court held that “the
prejudice. The Su-
showing
burden of
that an error
preme
is harmful
Court’s
apply
direction to
“the same
normally
upon
party
falls
attacking the
kind of ‘harmless-error’ rule that courts
agency’s
cases,”
determination.”
ordinarily apply
1704,
Id. at 1706.
in civil
id. at
Though
1.
Sanders addressed the
er
harmless
cation of the harmless error standard in other
See,
appeals
agency
e.g.,
ror standard in the context of
Apache
from
contexts.
Jicarilla
Interior,
1112,
Appeals
Dept.
the United States Court of
for Veter
Nation v. U.S.
613 F.3d
Claims,
(D.C.Cir.2010)
ans
made
(citing
applying
Court
clear that its
1121
applies
articulation of the harmless error rule
against
Sanders in a suit
an Indian tribe
Interior);
interpretation
Department
to our
of the APAin all admin
Chap
In re
man,
1330,
Specifically,
Supreme
(Fed.Cir.2010)
istrative contexts.
595 F.3d
1338-40
requirement
(citing
Court stated that the
applying
patent
that the
in the
Sanders
context).
Veterans Court "take due account of the rule
Commentators have also acknowl
error,”
7261(b)(2),
prejudicial
edged
§
38 U.S.C.
Sanders’s effect on the harmless error
interpreted
agency
should be
in the same manner as
rule in the administrative
context.
Sanders,
Smith,
Craig
706 in the APA.
Taking
B (D.C.Cir. Norton, 294 Gerber v. F.3d 173 majority’s insistence to the Despite *36 2002), example, the U.S. Fish & Wild 21, contrary, Maj. Op. at 1094 n. the con- per an take life Service issued incidental in that animated our rule the River- cern allowing developers mit real estate to build cases, namely it Farms line of that bend by endangered on an area inhabited impossible plaintiffs be to estab- would Al squirrel. Delmarva fox Id. at 175-76. prejudice procedural lish as a result of though published the draft the Service above, errors, was unwarranted. As noted permit, by failing publish take it erred burden-shifting presumption we based map proposed mitigation of the site for the that prejudice approach on concern 177, squirrels. Id. at 179. After conser virtually impossible it would be to mount a error, group challenged vation this challenge agency’s proce- successful to an challengers that D.C. Circuit held suc conclusion, turn, dural error. This in by cessfully prejudice demonstrated identi assumption petitioner based on the that a fying specific critiques permit three only by prejudice could demonstrate show- they they that provided would have had ing agency’s that an outcome would have In map. reaching seen the been different absent the error. River- conclusion, this the court articulated the Farms, at 1487. But as bend 958 F.2d “a prejudice, rule order show circuits, by assump- shown our sister this with plaintiff must indicate ‘reasonable party tion correct: a can also is not show specificity’ portions what of the documents that an prejudice establishing agency’s objects it might to and how have re procedural “prevented specific error facts sponded opportunity.” if Id. at given arguments being presented from to an (internal omitted). quotation marks agency into the and entered administrative Similarly, Owner-Operator Indep. Driv prevented record” or the error Ass’n, ers Inc. v. Fed. Motor Carrier petitioner mounting from a “credible chal- Safe Admin., Smith, held that the lenge” Craig ty the D.C. Circuit action. petitioner its burden of establish Taking Prej- “Dus Account” the APA’s satisfied Rule, 1727, ing prejudice by raising arguments L.Rev. udicial-Error Va.
HH
“amply
that it would have
demonstrate[d]
consider comments before promulgating a
challenge’
mounted a ‘credible
had it been
final rule was harmless because the sub-
opportunity
to do so.” 494
afforded
stance of the comments had been “exten-
(D.C.Cir.2007).2
F.3d
202-03
sively
on
commented
and discussed in pre-
rulemaking
vious
proceedings”).
adopted
Other circuits have likewise
showing prejudice
Circuit’s rule for
D.C.
sum,
a challenger
carry
can
its bur-
procedural
when the
has made a
den of showing prejudice from an agency’s
See, e.g.,
Cnty.
error.
Miami-Dade
v.
procedural
error
demonstrating “with
(11th Cir.2008)
EPA,
specificity”
reasonable
that it
pres-
could
(citing the
D.C. Circuit’s decision Own-
specific
ent
facts or arguments
agen-
to an
er-Operator
holding
that to
prej-
show
cy
“that
allow it to mount a credible
opportunity
udice from the lack of
to com-
challenge,” or can point
key
“omissions
rule,
a proposed
petitioner
ment on
in data and methodology” that makes the
specificity
“must indicate
reasonable
agency’s
Radio,
decision unreliable. Am.
aspect
objects
of the rule to which it
(internal
comment that were prevented from
making and would have made a differ- Ill result); ence in the Lyng, Texas v. *37 (5th Cir.1989) F.2d (holding that comply Rather than with Sanders in this agency’s procedural error was harmless case, majority the applies Riverbend “appellants explain because not what [did] superseded presumption Farm’s preju- of they response would have said in to the dice, holding that an error is not harmless ... report” identify not “[did] new unless it “clearly had no on bearing the they information would have submitted to procedure used or the substance of [the] agency given the opportunity”). Maj. decision Op. (quot- reached.” at 1090 Farms, 1487). Indeed, ing Riverbend applied we a 958 F.2d at princi have similar Aviation, Because ple on occasion. See this articulation of the Inc. harmless Safari (9th Garvey, 300 F.3d error rule requires agency prove Cir. a 2002) (concluding agency’s negative, “clearly failure to that an error had no nal) (internal Relay League, omitted)); quotation 2. See also Am. Radio Inc. v. marks U.S. FCC, 227, 230, (D.C.Cir. FCC, 524 F.3d 237-38 Telecom Ass’n v. 2008) (holding that the FCC's failure to com (D.C.Cir.2005) (holding challengers that the ply requirements with notice-and-comment prejudice had failed agen to show from the appellant was not harmless error because the cy's failure to label notice its as “Notice of portions reports showed that redacted of FCC Proposed Rulemaking” “they where cannot "appear[ed] to contain information in tension identify single they a additional comment that with the [Commission's] conclusion” and that labeling would have made but for the commentary it could offer that would illumi notice, deficiency nor other in the rule- strengths nate unaddressed and weaknesses making process.”). (second origi data of FCC’s alteration in decision, Specifically, majori- Maj. Op. at 1093. procedure on its bearing” its ty “admit[ted] claims DOE effectively presumes prejudice test in the agency prove and conclusions Con- to the determinations the burden shifts Indeed, only Study were not decisions com- language gestion this otherwise. formulae, it but prejudice, pelled by of also some mathematical presumption creates preju- important discretionary decisions procedural error suggests that se, guidance,” that an little and that it is doubtful which there was because per dicial situations, heavy value of consult- carry “[t]he burden such could ever agency “clearly an it makes a deci- procedural ing error with before proving that of words, the greatest.” used.” Id. In other bearing procedure on the sion had no added). Building by on this failure to consult states are harmed (emphasis that a fail- majority they opportunity indicates did not have the language, the because because per prejudicial Again, nothing to consult is se this is more ure to consult. process itself.”3 “the interactive presumption it affects than a restatement of the consult, Maj. at 1092. Op fails to it is when per prejudicial. se pre- majority’s adherence The rejected by prejudice Sanders sumption amply demon- As a review the record of how explanation its strates, is demonstrated majority complied with if the had proved case harm. petitioners this Sanders, 1704-06, placed 129 S.Ct. at First, majority, according to the the affect- showing prejudice on the burden they harm because ed states have shown states, concluded affected would have to consult opportunity not have an did First, harmless. that DOE’s error was Maj. finalized its decision. before DOE of DOE’s affected states were well aware (alteration original). at 1092-93 Op. designa- plans for the and NIETC (the affect- nothing tautology This is but a issuing conges- tion. Six months before harmed DOE’s failure to ed states were study, published tion DOE a Notice of the DOE failed to consult consult because Register seeking in the Federal Inquiry them), presumption prejudice and a information relevant comments and by another name.4 congestion plans conducting notice, request- study. Through this majority’s further explanation gauging criteria for ed “comments on draft prejudice states have shown the affected suitability geographic areas as discretionary made a deci- *38 because DOE public techni- sion, announce[d] NIETCs and when an makes a discre- decision, criteria for by concerning cal conference the tionary might be influenced consultation, areas as NIETCs.” just tautology. another evaluation of candidate fact, prior that "a failure to consult to ization[]” 3. Riverbend Farms did not hold that decision, engage in notice and comment discretionary the failure to making a when such per prejudicial: se it clarified such law, by type consultation is mandated pur- procedural error is where its harmless Maj. likely prove error that is harmful.” satisfied, pose id. at and con- has been Sanders, Op. (quoting S.Ct. at 1093 n. 18 agency’s comply cluded that failure 1707). majority offering But the is not requirement with a notice and comment in generalization,” permitted "empirically based Thus, that case was harmless. Id. at 1488. majority provides by no Sanders because indicating a failure to consult with the in empirical a failure to consult evidence that per prejudicial, majority goes states is se no such caused actual harm. There is beyond holding in Farms. Riverbend evidence in this case. Sanders, majority suggests per 4. The also general- "empirically it could make an based
1H3 (Feb. 2006). Columbia, FecLReg. Rico, Puerto and the Virgin Is- lands, that it specifically DOE stated would “con- and whose membership represents well-supported sider recommendations all of the state responsible commissions parties from affected States and interested economic and safety regulation of the re- throughout study process regarding tail operations Similarly, of utilities. DOE urgent participated areas believed to merit attention in conference calls with repre- Department.” entities, from the Id. at 5661. The sentatives from state and met and notice also contained lists of “transmission corresponded with the New York Public plans already and studies” under review Service Commission and the Florida Public DOE, by Commission, and asked the public send Service the Connecticut De- “existing, specific partment Control, information about trans- Utility Public plans,” and other Jersey Utilities, mission studies New Board of Public Commission, DOE should review. Id. California Public Utilities Pennsylvania Public Utilities Commis- Second, only op- the states not had the sion. portunity to comment on how the conducted, they undisputed should be but used the Given the fact that the af- opportunity Many to do so. states and fected ample opportunity states had provide DOE, state entities submitted comments re- their Maj. views to Op. at notice, sponse including 1090-91, to DOE’s most of which received and considered petitioners them,5 the state petitioners this case and enti- must show some other Specifically, repre- ties from those states. basis for their claim that DOE’s failure to from Energy sentatives the California They consult was harmful. have failed to Commission, carry Indeed, California Public Utilities this petitioners’ burden. Commission, Arkansas Public barely Service briefs preju- address the issue of Commission, dice, and Illinois Commerce Com- let alone marshal showing evidence panelists mission were petitioners suffered, conference at a what harm the what public technical conference where specific they DOE information pro- would have discussed issues raised record, commenters re- vided that was not already garding the ongoing Congestion Study. or how consultation would have affected participants Conference also included offi- the outcome of decisionmaking pro- Iowa, York, California, cials from New Illi- cess. nois, Arkansas, Florida, Wyoming, Penn- merely The Western States assert sylvania, Michigan, Kentucky, Jersey, New failed respond request DOE
Vermont, Idaho, Mexico, Utah, New consultation five Arizona commission- District Columbia. more, ers. Without this fails to show that also reached out to affected states the Western States suffered harm. through multiple meetings with the Na- provide And the Western States do *39 Regulatory tional Association of Utility any further prejudice: they evidence of do (NARUC), Commissioners a quasi-govern- not state how consultation would have af- organization mental repre- includes fected the Congestion outcome of DOE’s states, sentatives of all fifty Study the District of designation, they or NIETC nor do Indeed, petitioners Congestion the state Study. suggested concede that Neither state states, Arizona, only Virginia two and did not it did not have actual notice of DOE’s Congestion Study, submit or alleged comments otherwise avail them- and neither state it opportunities pre- selves of the consultation af- had new information that it would have by during forded DOE by its creation of the sented had it been DOE. consulted Study’s Congestion to the sim- comparable what specificity” explain with “reasonable congestion they ulation results” because arguments or information additional forward-looking study simulations reflect they been consulted. made had could have Cal, on real-time con- data while NYISO relied R.R. Comm’n Ry. Mkt. See St 25,858. addition, In 561-62, gestion data. Id. at S.Ct. 324 U.S. Study sim- explained, Congestion its (holding the Railroad DOE L.Ed. “planning” “in ulations reflected NYISO’s harmless the ab- error Commission’s data, report NYISO’s was based ... whereas any showing prejudice” sence of Finally, data. Id. ac- “operational” on its “[n]o who made contention petitioners DOE, cording Congestion Study to the was erroneous or ... that the information Commission, generation capacity accounted for new by the misunderstood was study, after NYISO’s and con- Company ... that the was added no contention capacity as well. explained away or sidered future additions disproved have could 25,859. for which the purpose effect for the it”). Having used failed to Commission the Eastern Because DOE considered cannot prejudice, the Western States show concerns and offered a reasonable States’ merely DOE prevail on their claim because explanation discrepancies for the identified a technical error. made NYSPC, the by the Eastern States have similarly fail to failed to show that had DOE consulted The Eastern States so, York, with would have inter- prejudice. attempting In to do New DOE show namely preted differently this or reached a they only single argument, raise data incorrectly interpreted “as different decision. Nor do the Eastern that DOE data magnitude conges- identify location and States additional facts and they supplied, have in New York.” The Eastern States information would tion arguments they would have argue that DOE’s “incorrect and flawed” different made, they There- interpretation documentation and of data had been consulted. fore, the Eastern States have not carried prevented could have been DOE had they showing York Public their burden of were consulted the New Ser- (NYSPC), prejudiced by which could DOE’s failure consult. vice Commission have between data discrepancies identified In holding that DOE’s failure consult Congestion Study from the and the 2005 per prejudicial, with the states was se prepared by the Market Report State of failure to despite the states’ demonstrate System Independent Opera- the New York harm, majority employs the sort of (NYISO). tor mandatory presumption rejected Sand- argument majority attempts distinguish the record. ers. The
This belied Study ground that it Congestion complete, After the Sanders on involved alleged ma- notice error rather than a consultation er- NYSPC informed DOE about 1090-91, ror, discrepancies Maj. Op. asserting terial between DOE’s see only harmful if it report produced by the 2005 NYISO. a notice error is affects decisionmaking, response, explained that the dis- the outcome of error is harmful crepancies reporting errors identified while consultation analysis Congress intended for there by New York “did not affect the itself because consultation, error findings Congestion Study.” 72 to be and a consultation 2007). 25,838, 25,859 (May opportunity to con- Fed.Reg. deprives parties *40 But Maj. Op. sult. at 1090-91. Sanders’s Specifically, explained DOE “NYISO cannot be so congestion directly prejudicial principles market data on are not error
1H5
considering
confined. In
whether an error
in,
and the resource commitments involved
harmless,
principled
to,
is
there is no
basis for
and the
activity.”
alternatives
such
Club,
distinguishing among any
steps
of the
an Kleppe
390, 402,
v. Sierra
427 U.S.
(1976).
reaching
must take before
its final 96 S.Ct.
States Postal
1117 that an EA required flawed, To the extent equally mental law is ignoring both regulations, under DOE’s 40 C.F.R. controlling Supreme precedent Court 1501.4(b), § DOE satisfied that require common sense. I respectfully dissent. Designation ment Order itself. An public
EA is “a concise document” that
provides “sufficient evidence analysis determining whether to
prepare an environmental impact state finding significant impact.”
ment or a of no R.P., husband on behalf of his minor 1508.9(a)(1). § 40 explained C.F.R. As son, C.P.; J.P., wife, on behalf of her above, Designation provided Order son, C.P., Plaintiffs-Appellants, minor reasoned discussion of the relevant factors v. and concluded that an EIS was not re PRESCOTT UNIFIED SCHOOL DIS quired because DOE could not meaningful TRICT, an Arizona District; School ly impacts evaluate environmental at this Kapp, Kevin Superintendent, J. Pres juncture. In light of DOE’s reasoned District; cott Unified School John statements, majority suggest errs in Does, I-V; Does, I-V; Jane Black and ing that DOE did not “adequately explain Corporations, I-X, White Defendants- Maj. Op. its decision.” (quoting 1097 Appellees. Serv., Alaska Ctr. Env’t v. U.S. Forest (9th 851, Cir.1999)).6 F.3d Again, 859 R.P., husband on behalf of his minor majority departs from the Supreme son, C.P.; J.P., wife, on behalf of her Court’s direction that courts should not son, C.P., minor Plaintiffs-Appellants, function as “citadels of technicality” that automatically reverse action for er Sanders, impact. rors have no actual District, Prescott Unified School an Ari- Kotteakos, (quoting S.Ct. District; zona School Kapp, Kevin J. 759, 1239); U.S. at 66 S.Ct. see also Mc Superintendent, Prescott Unified
Donough Power Equip., Inc. v. Green District; Does, I-V; School John Jane wood, 548, 553, 845, 464 U.S. 104 S.Ct. Does, I-V; Black Corpora- and White (1984). L.Ed.2d 663 tions, I-X, Defendants-Appellees. V 09-15651, Nos. 09-16786. taking Instead of ap- common sense United States Court Appeals, proach Supreme mandated Court in Ninth Circuit. action, reviewing agency majority here important invalidates two studies because Argued April 2010. procedural technical error that had no April Submitted 2010. adverse majority effect. The takes this Filed Feb. 2011. step precedent reliance on that has been superseded by Supreme Court. Its
unnecessary exposition of federal environ- Though majority statutory does not reach the obligations that DOE's were not arguments states' that DOE triggered violated the En- under either statute because the ef- Act, dangered Species 1536(a)(2), § 16 U.S.C. Designation fects of the endangered Order on habitats, and the National Historical species, Preservation Act proper- critical and historic (NHPA), 470f, 16 U.S.C. I speculative. would also hold ties were too notes took the each of States the within draft National is no There identification of which individuals Mayor Corridors and the of the District of meetings attended the subject or the of the 26, 2007, April requesting Columbia on meetings. meetings At the cited with the opportunity to with consult them on the draft Department Utility Connecticut of Public Con- designations.”). trol, Utilities, the Jersey New Board of Public Pennsylvania and the Utility Public Commis- 8. NARUCwrote: sion, represented by DOE was Ellen Lutz. In Because the statute directs the to de- DOE e-mail, explains the she is she DOE's velop congestion study the “in consultation Interconnect,” "Representative to the Eastern States,” affected with had an position began that this “is a new that I obligation input affirmative to seek the January,” process late and that she is "in the potentially Congestion States affected coming up speed to on the issues.” Since Study. purpose of this consultation is e-mail, 8, 2006, time of this March critique clear—States should be able to Congestion Study nearly complete, it preliminary findings analyses unlikely meetings provided any seems that the they are evolving. Although certainly DOE Also, opportunity real for consultation. during conducted to outreach NARUC support cited to development document DOE its conten- congestion study, it only that it comply failed to tion met with CPUC with this indicates mandate with comments, respect (for regions CPUC States in certain ex- submitted further ample, England). New any meeting does state that was held. do”) Cooper Indus. (quoting are loath “consultation” The definition of Servs., 157, 166, U.S. Aviall S.Ct. con- ordinary An word meaning (2004)). 160 L.Ed.2d548 from information or advice sult to “seek (someone in a expertise particular with Moreover, actually requiring DOE area)” or confer or to “have discussions affected is consis confer with the States (someone), undertak- typically with before the EPAct. In purpose tent of action.” The New ing course Oxford brown-outs, reaction black-outs added). (2001) (emphasis Dictionary 369 give gov sought to the federal Congress this the definition that conclude that We greater development in the ernment role it Congress intended when directed lines and to of transmission circumscribe Study “in con- Congestion prepare authority traditional somewhat the States’ Thus, with the affected States.” sultation placement over the and construction of affected to confer with the DOE was recognition impact power lines. this completed study. States before authority, on traditional Con the States’