ELR Citation: 41 ELR 20078
No(s). s. 08-71074 et al (9th Cir. Feb 1, 2011)

The Ninth Circuit vacated and remanded DOE's energy transmission congestion study and national interest electric transmission (NIET) corridor designations prepared under the Energy Policy Act of 2005 (EPAct). The EPAct added §216 to the Federal Power Act, requiring DOE to prepare the congestion study "in consultation with affected States." Yet, here, DOE failed to consult with the affected states prior to issuing its study. This failure was prejudicial to the states, and so the study was vacated. The EPAct also required DOE to comply with NEPA in designating any NIET corridors. But DOE's statement that its designation of NIET corridors "does not significantly affect the quality of the human environment" is not supported by sufficient evidence to show that DOE has taken the requisite "hard look" at the environmental consequences. This failure was not harmless. Accordingly, the NIET corridor designations were vacated as well.