ELR Citation: ELR 20036
No(s). s. 07-1651 et al (4th Cir. Feb 18, 2009)

The Fourth Circuit held that the Federal Power Act (FPA) does not grant the Federal Energy Regulatory Commission (FERC) permitting jurisdiction when a state denies approval of a permit application within one year. Two state utilities commissions and two community interest organizations challenged several rulemaking decisions made by FERC in connection with its implementation of the new §216 of the Federal Power Act (FPA) and the National Environmental Policy Act (NEPA). Section 216 of the FPA, which was added in 2005, gives FERC jurisdiction in certain circumstances to issue permits for the construction or modification of electric transmission facilities in areas designated as national interest corridors by the Secretary of Energy. The court reversed FERC's expansive interpretation of the language in FPA §216(b)(1)(C)(i) that grants FERC permitting jurisdiction when a state commission has withheld approval of a permit application for more than one year. FERC's interpretation is contrary to the plain meaning of the statute. The statute does not give FERC permitting authority when a state has affirmatively denied a permit application within the one-year deadline. The court also held that FERC violated Council on Environmental Quality (CEQ) regulations when it failed to consult with the CEQ before amending its NEPA-implementing regulations to cover §216 permit applications. FERC's amendments to the NEPA regulations were therefore vacated and remanded. However, the court upheld FERC's determination that it was not required to prepare an EA or EIS in connection with its issuance of procedural regulations dealing with the content of permit applications under §216 of the FPA.