FERC Effort to Override State Transmission Siting Decisions Rejected by Federal Appeals Court

We previously discussed FERC's assertion of power to override state transmission line siting decisions. See FERC Adopts Electricity Transmission Siting Rules: Says it Can Reverse State Denials, PULP Network, December 16, 2006. The Court of Appeals for the Fourth Circuit rejected FERC's effort which would have enabled it to preempt state transmission line authority, stating in its decision:

FERC interprets § 216(b)(1)(C)(i)’s phrase "withheld approval for more than 1 year after the filing of [a permit] application" to include a state’s outright denial of an application within one year. We conclude that FERC’s interpretation is contrary to the plain meaning of the statute. Simply put, the statute does not give FERC permitting authority when a state has affirmatively denied a permit application within the one year deadline. * * * *

The Commission’s reading would mean that Congress has told state commissions that they will lose jurisdiction unless they approve every permit application in a national interest corridor. Under such a reading it would be futile for a state commission to deny a permit based on traditional considerations like cost and benefit, land use and environmental impacts, and health and safety. It would be futile, in other words, for a commission to do its normal work. * * * * In short, § 216(b)(1), read as a whole, does not indicate that Congress intended to bring about the sweeping transfer of jurisdiction suggested by FERC. Indeed, if Congress had intended to take the monumental step of preempting state jurisdiction every time a state commission denies a permit in a national interest corridor, it would surely have said so directly.

Piedmont Environmental Council, et al. v. FERC, (4th Cir. No. 07-1651, Feb. 18, 2009). This decision means that if the New York Public Service Commission denies an application for builing a new electric transmission line, the state decision cannot be trumped by FERC. See Court Ruling Hailed by NYRI Opponents.