# Amicus Curiae Brief — Edison Electric Institute v. Piedmont Environmental Council (No. 09-343)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2009

## Text

Supreme Court, U.S.
FILED

OCT 2 1 2009

OFFICE OF THE CLERK

No. 09-343

‘

IN THE
Supreme Court of the Anited States

EDISON ELECTRIC INSTITUTE, ET AL.
U.
PIEDMONT ENVIRONMENTAL COUNCIL, ET AL.

On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Fourth Circuit

BRIEF OF AMICI CURIAE
THE HONORABLE
JOSEPH T. KELLIHER,
ELIZABETH ANNE MOLER,
PATRICK HENRY WOOD III, AND
JAMES J. HOECKER
IN SUPPORT OF PETITION FOR
WRIT OF CERTIORARI

Joseph T. Kelliher

Counsel of Record
FPI. Group, Inc.
801 Pennsylvania Ave., N.W.
Washington, D.C. 20004
202-347-7082

Attorney for Amict Curtae

Iecat Pararreme 110 Wachingcsean TM’ a 30?.747-2400 o lecalanenrce cam

TABLE OF CONTENTS

Page
TABLE OF CITED AUTHORITIES .................... iii
INTEREST OF AMICI CURTAE................cseeceseeeees 1
SUMMARY OF ARGUMENT. ........0........ceeseeeecceeees 2
PS citi cles dadanassiansinainchasdestiatinaeavinnen a
I EFFECTIVE FEDERAL TRANSMISSION

Il.

SITING IS IN THE NATIONAL INTEREST

A.

The National Interest in the Interstate
Transmission System Has Evolved........ 6

. Effective Federal Transmission Siting

Is Essential to a National Clean
I I iiss cc caccuksnincdadankcsencsxendenes 10

. State and Local Siting of Interstate

Transmission Facilities Has Proven
Inadequate to Meet the
I i s cuisneasenenesecs 14

CONGRESS INTENDED TO GRANT FERC
SITING AUTHORITY WHERE STATES
HAVE DENIED PROJECT APPROVAL.... 19

11

A. National Energy Policy Identified
State Rejection of Siting Approval as
a National Problem and Proposed
Federal Preemption .............cccccccesecscssseee 19

B. Legislative History Manifests
Congressional Intent to Grant FERC
Authority to Site Transmission When
States Have Denied Approval ............... 21

C. Congress Did Not Intend a Nullity ...... 27

CON CLUSION ocecessccciis alae tesccsescccssensccsees 28

lil
TABLE OF CITED AUTHORITIES
Page
Federal Cases:

Consumers Union of the United States v. Sawhill,
Sis F.Oe LEED Ce: BD. LTO vasscsoniisesaversissvssemsn 27

FPC v. Florida Power & Light Co., 404 U.S. 453
sR MERTON A Onde eee uae. Res: 6

Morgan Stanley Capital Group Inc. v. Public Util.
Dist. No. 1 of Snohomish Cty, 554 U.S. __, 128 S.

OR: Tee iva hxckddavecexdasieinkceisinicnev 8
New York v. FERC, 535 U.S. 1 (2002).................2.. 3,6
Piedmont Envtl. Council v. FERC, 558 F.3d 304

CP EE vs Ss So ccns ek deceneccsnessccusicucvecaatiere 4, 14, 18, 27

Federal Statutes:

Energy Policy Act of 1992,
aad. 5. BR Rete I wi sik v cee chen staneikassescterannees 7

Energy Policy Act of 2005, Pub. L. No. 109-58, §
1221 (2005) (codified at
1G U.S.C. © CG CD io vvvnnevccccstanvacecicccassassssscte Oe Oe

Federal Power Act § 201,
1G U.S. © Be Ce is vce sc venedascsnsendsisssustachsn tebe 14

1V

Federal Power Act § 216(a),
ee I I id cae nd vesieheixcd U.S.-Canada Power System Outage Task Force, Final Report on
the August 14, 2003 Blackout in the United States and Canada:
Causes and Recommendations, Chapter 7 (2004).

10

B. Effective Federal Transmission Siting Is
Essential to a National Clean Energy
Policy.

The United States Government is in the process of
implementing a new energy and environmental policy
designed to sharply reduce carbon emissions from
electric generation facilities and other sources, while
assuring adequate electricity supply at a reasonable
cost.1. This reduction will be accomplished in large
part by changing U.S. electricity supply away from use

4 President’s Remarks on Energy Legislation, Daily Comp. Pres.
Doc. (June 26, 2009), available at
http://www.gpoaccess.gov/presdocs/2009/DCPD-20090041 3. pdf;
Statement of Admunistration Policy on H.R. 2454, American
Clean Energy and Security Act of 2009, Executive Office of the
President, Office of Management and Budget (June 26, 2009),
available at
http://www.whitehouse.gov/omb/assets/sap_111/saphr2454h_2009
0626.pdf; Proposed Endangerment and Cause or Contribute
Findings for Greenhouse Gases Under Section 202(a) of the Clean
Air Act, 74 Fed. Reg. 18886 (proposed Apr. 24, 2009) (to be
codified at 40 C.F.R. ch. 1); Proposed Rulemaking to Establish
Light Duty Vehicle Greenhouse Gas Emission Standards and
Corporate Average Fuel Economy Standards, 74 Fed, Reg. 49454
(proposed Sept. 28, 2009) (to be codified at 40 C.F.R. pts. 86 and
600); Prevention of Significant Deterioration and Title V
Greenhouse Gas Tailoring Rule, 74 Fed. Reg. ___ (proposed Sept.
30, 2009) (to be codified at 40 C.F.R. pts. 51, 52, 70, 71);
Mandatory Reporting of Greenhouse Gases, 40 C.F.R. pts. 86, 87,
8Y, YO, 94, YR, 1084, 1039, 1042, 1045, 1048, 1061, 1054, 1065
(2009); American Clean Energy and Security Act of 2009, H.R.
2454, 111t Cong. § 311 (2009); Clean Energy Jobs and American
Power Act, S. 1733, 111% Cong. tit. I (2009).

1]

of fossil fuels, in part by technology deployment, in
part by other means.®

If the U.S. electricity supply is going to change, the
grid must also change, since the grid is merely a
delivery system. The central challenge facing U.S.
transmission policy now is the need to develop a clean
energy grid that can efficiently delwer an entirely
different electricity supply across regional power
markets.

Renewable energy or clean energy potential is not
evenly distributed in the United States, and some
regions have a much greater endowment than others.
Wind Energy Study at 24. This is illustrated by a map
of solar and wind resources prepared by the National
Commission on Energy Policy, Ending the Energy
Stalemate, Table 4-14 (2004):

U.S. Energy Info. Admin., Energy Market and Economic
Impacts Of H R. 2454, The American Clean Energy and Security
Act of 2009 ix (2009); Electric Power Research Inst., Creating Our
Future: Meeting The Electricity Technology Challenge 20 (2009),
available at
http://mydocs.epri.com/docs/SummerSeminar09/SpeckerO9SumSe
m.pdt; McKinsey & Co., Reducing U.S. Greenhouse Gas

Emissions: How Much at What Cost”? xv, 58-66 (2007).

Average Solar Radiation (kWh/m?/day) Wind Power Class
MMB sseoo MMB 604s HM 65-70 oe = Me
Good Better Best Good Botte + Best

Duta Source. Adapted trom National Renowablo nergy lahorstory, 204

Regions with the greatest natural endowment of
renewable energy potential tend to be remote from the
interstate power grid, isolated by transmission
constraints. Wind Energy Study at 75. Maximizing
U.S. renewable energy supplies is a core element of
clean energy and environmental policy. Jd. at 13-14,
107; Midwest Independent ‘Transmission System
Operator, Inc., et al., Joint Coordinated System Plan
‘08 at 7.

If the United States is going to maximize its
renewable energy supply, it must build out a clean
energy grid and remove those constraints. Wind
Energy Study at 2, 10-12, 93, 95-98; Joint Coordinated
System Plan ‘08 at 4-9. Effective federal siting of
transmission facilities is necessary to develop that grid
in the timeframe envisioned by carbon policy.

13

National carbon and clean energy policy, expressed in
pending legislation and regulatory orders issued by
the U.S. Environmental Protection Agency (EPA),
envisions significant reductions of carbon emissions
beginning as soon as 2012.6 Significantly, EPA has
initiated a series of actions to implement this new
national policy,’ and legislation has advanced in

|
Conegress.®

There are important policy consequences to
continued reliance on state and local transmission
siting procedures and the lack of effective federal
transmission siting. It means the U.S. will expand
grid capacity at a much slower rate than would be
possible under federal transmission siting. It means
development of the highest-quality, low-cost renewable
energy potential in regions remote from the grid will
be forestalled or postponed. It also means the change
in U.S. electricity supply will occur much more slowly
than would be possible under federal siting.

®° American Clean Energy and Security Act of 2009 § 311; Clean
Energy Jobs and American Power Act tit. 1; Proposed Rulemaking
to Establish Light Duty Vehicle Greenhouse Gas Emission
Standards and Corporate Average uel Economy Standards, 74
Fed. Reg. 49454, 49460 (proposed Sept. 28, 2009) (to be codified at
40 C.F.R. pts. 86 and 600).

7 See supra note 4

8 The U.S. House of Representatives passed H.R. 2454, supra note
4, on June 26, 2009, and bills are pending in the Senate.

14

C. State and Local Siting of Interstate
Transmission Facilities Has Proven
Inadequate to Meet the Evolving Need.

Until enactment of the Energy Policy Act of 2005,
the United States sited electric transmission facilities
under a 1935 statute that reflected the nature of the
grid as it was at the time, relying on state and local
siting of privately owned transmission lines.
Piedmont, 558 F.3d at 310. In 1935, electricity
delivery was essentially local in nature, and it is thus
not surprising that the Federal Power Act did not
provide for federal transmission siting by the Federal
Power Commission, the predecessor agency to the
FERC. Instead, Congress reserved siting of
transmission facilities to the states. Federal Power
Act § 201, 16 U.S.C. § 823c (2008). State siting
authorities and policies vary substantially, with some
states vesting sole authority in a single state agency or
public utility commission while others delegate it to a
host of affected local governments. Nat’ Council on
Elec. Policy, Electricity Transmission: A Primer 11
(2004).

State and local siting can be an efficient way to site
certain transmission facilities, particularly smaller
single state projects that benefit the siting state.
National Transmission Grid Study at E-7, E-42. But
state and local siting is poorly designed to site large
interstate transmission projects whose benefits extend
to an entire region or the nation. Jd. at 53, E-42; Wind
Energy Study at 99. However, it is precisely this
category of transmission project that needs to be built
to meet national energy and environmental policy

15

goals, including supporting competitive markets, by
removing constraints that result in higher prices and
greater price volatility, assuring grid reliability, and
maximizing renewable energy development. National
Transmission Grid Study at 58; Midwest Independent
Transmission System Operator, Inc., et al., Joint
Coordinated System Plan ’08, 7, 9 (2008).

There are two principal problems with state and
local siting of large interstate transmission projects.
First, state and local transmission siting proceedings
of large projects take too long, especially when
approval is needed from multiple jurisdictions. It can
take more than ten years to obtain siting approval for
transmission projects that cross multiple states. For
example, the Jacksons Ferry transmission line
between Virginia and West Virginia, involving two
state commissions and a federal land agency, took 13
years to site, and less than three years to construct.
That is true even though the project was recognized as
critical to the reliability of the Eastern grid. U-S.
Dep’t of Energy, Electric Power Outages in the
Western United States, July 2-3, 1996, 82, 85 (1996).

The great length of the transmission siting process
is a particular problem for renewable energy projects
such as wind and solar farms. Renewable resources
are typically located in remote areas of the country.?
Renewable projects can be built quickly, but are
unlikely to be built in locations where they lack access

” Wind Energy Study at 75

16

to an unconstrained interstate power grid and would
face unpredictable curtailments that interrupt sales.

One way to demonstrate the failure of state and
local transmission siting of large interstate
transmission projects is to contrast it with what is
possible under federal siting of interstate natural gas
pipelines, where federal siting authority is exclusive
and preemptive.'!° In recent years FERC has sited
thousands of miles of interstate natural gas
pipelines,!! while states have sited very little multi-
state electric transmission lines.!* Furthermore, it is
possible to site very large interstate natural gas
pipelines in a matter of months, while it can take
years for states to site much smaller electric

0 Natural Gas Act § 7(h), 15 U.S.C. § 717f (h) (2008). The
original Natural Gas Act also reserved siting of interstate natural
gas pipelines to the states. But in 1947 Congress concluded that
reliance on state and local siting of these interstate facilities had
failed and amended the Act to provide for exclusive and
preemptive federal siting. Natural Gas Act Amendments of 1947,
Pub. L. No. 80-245, 61 Stat. 459 (1947).

'! Between 1997 and 2002, FERC sited 9,316 miles of interstate
natural gas pipelines. Fed. Energy Regulatory Comm'n,
Approved Pipeline Projects (2009), available at

http://www .ferc.gov/industries/gas/indus-act/pipelines/approved
projects.asp.

2 Between 2000 and 2007, states sited 668 miles of cross-border
lines 230 kV and higher. Fed. Energy Regulatory Comm'n
Electnic Transmission Siting, presentation (2007), shde 2
avatlable at

http://www .ferc.gov/industries/electric/indus-act/siting/trans-

siting-present.pdf.

17

transmission facilities.’ Large natural gas pipelines
can be conceived, proposed, sited, constructed, and
begin operation in 2-3 years,'* while those steps can
take 10 years or longer for electric transmission
facilities of comparable size.

The second problem with = state and _ local
transmission siting is that siting large interstate
transmission projects necessarily involves balancing
local impacts against regional benefits, and state and
local officials cannot be expected to adequately weigh
regional or national benefits. The duty of a state or
local official is to a single state or local government,
not to a region or the nation. Prior state siting
decisions reflect an inability or unwillingness by state
and local officials to properly weigh benefits to
neighboring states in siting decisions. !5

'3 Rockies Express Pipeline—West, which crosses five states and
exceeded 700 miles, was sited by FERC in 11 months, and the
MidContinent pipeline, which crossed five states and exceeded
500 miles, was sited by FERC in 9 months. See supra note 11. As
noted above, siting the Jacksons Ferry transmission line, which
crossed two states and was only 90 miles long, took 13 years

\4 Rockies Express Pipeline—West took less than 3 years from
conception to operation Rockies Express Pipeline West,
avatlable at http://www.rexpipeline.com/index_west.htm|

'5 See e.g., Anzona Corp. Comm., /n the Matter of Southern
California Edison Co., Docket No. L-00O000A-06-0295-00130,
Decision No. 69638 (June 6, 2007), available at
http:/Amages.edocket.azcc.gov/docketpdf/00000 73735. pdf
(denying power line certificate in part because primary
beneficiary would be Califorma); Connecticut Siting Council
TransEnergie U.S. Ltd., Docket No. 197, Opinion (March 28
2001), available at

18

Even if there are countervailing regional bencfits,
the narrow focus of state and local review remains
local impacts. In the face of this lopsided balancing,
electric transmission projects may be abandoned or
withdrawn carly in the process, anticipating that
siting approval had become a Sisyphean task. A
prominent characteristic of state and _ local
transmission siting is its sheer unpredictability with
respect to length of state and local siting review, the
likelihood of success, and the influence of political
considerations on state and local siting decisions.
That stands in sharp contrast with the predictability
of the FERC natural gas pipeline siting process.

Congress recognized the problems associated with
state and local siting of interstate transmission
facilities, which is why the law was changed in 2005.
The federal role established in the Energy Policy Act of
2005 was manifestly preemptive, but not exclusive.
Even the Fourth Circuit recognized the federal siting
provisions of the Energy Policy Act of 2005 were
preemptive. Piedmont, 558 F.3d at 313. The only
debate is regarding the scope of federal preemption
intended by Congress.

http://www.ct.gov/csc/cwp/view asp?a=958&Q=247616 (denying
power line certificate in part because primary beneficiary would
be New York)

19

Il. CONGRESS INTENDED TO GRANT FERC
SITING AUTHORITY WHERE STATES HAVE
DENIED PROJECT APPROVAL.

A. National Energy Policy Identified State
Rejection of Siting Approval as a
National Problem and Proposed Federal
Preemption.

It is not a simple matter to mark the beginning of a
legislative process that resulted in enactment of new
law. However, the legislative history of the federal
transmission siting provisions of the Energy Policy Act
of 2005 can be traced back to May 2001. It was on
May 16, 2001 that the Bush Administration issued the
National Energy Policy proposal in part to modernize
our energy infrastructure. Nat'l Energy Policy Dev.
Group, National Energy Policy at xi (May 16, 2001).
The National Energy Policy proposed a series of
electricity legislative reforms that resulted in the
electricity provisions in the Energy Policy Act of 2005.
Id. at 5-21, 7-17.

One of the most important policy proposals in the
National Energy Policy was the recommendation that
the President direct the Secretary of Energy to
“develop legislation to grant authority to obtain rights-
of-way for electricity transmission lines, with the goal
of creating a reliable national transmission grid.
Similar authority already exists for natural gas
pipelines in recognition of their role in interstate
commerce.” /d. at 7-17. This recommendation began
the first serious legislative effort to change the siting
process for clectric transmission since the 1930s, and

20

led to enactment of the federal siting provisions of the
Energy Policy Act of 2005.

The National Energy Policy also identified state
and local transmission siting as a causal factor in the
development of constraints in the power grid. Id. at 7-
7. Importantly, the National Energy Policy specifically
identified state rejections of transmission projects as a
causal factor in transmission constraints, specifically
citing state rejection of a proposed line between
Connecticut and Long Island!6 and identifying state
rejections of proposed transmission projects as a
problem to be remedied by federal legislation.!7

The express reference to the natural gas pipeline
statutory model in the National Energy Policy, the
discussion of state rejections of siting approvals as a
causal factor in grid constraints, and the proposal for
federal legislation to establish effective federal siting
authority modeled on the preemptive natural gas
siting model, all demonstrate that preempting state
rejections of siting approvals was an objective of
federal transmission siting legislation from the very

loo

16 National Energy Policy at 7-7 (“State decisions on where to
locate transmission lines often do not recognize the importance of
proposed transmission facilities to the interstate grid. For
example, a recent decision by regulators in Connecticut to block a
proposed transmission line to Long Island did not recognize the
need for electricity on Long Island.”) (emphasis added).

17 Id. (‘Some state siting laws require that the benefits of a
proposed transmission facility accrue to the individual state,
resulting 1n the rejection of transmission proposals that benefit an
entire region, rather than a single state.’) (emphasis added).

21

beginning of the legislative process that led to
enactment of the Energy Policy Act of 20085.

B. Legislative History Manifests
Congressional Intent to Grant FERC
Authority to Site Transmission When

tates Have Denied Approvai.

Altogether, Congressional consideration of
legislation based on the National Energy Policy
proposal that resulted in the Energy Policy Act of 2005
took about four years and spanned three Congresses.
Congressional intent with respect to the grant of
federal transmission siting authority is made plain
through a review of the relevant legislative history.
Federal transmission siting legislation took two forms
during this period. From December 2001 until June
2004, the relevant legislative provisions authorized
FERC to site transmission when a state has “withheld
approval” or has “delayed final approval for more than
1 year after the filing of an application seeking
approval.”18 From June 2004 through enactment of
the Energy Policy Act of 2005, the legislation used the
final form that is in section 216 as enacted, namely
authorizing FERC siting where a state “withheld
approval for more than 1 year after the filing of an
apphication.”19 Unfortunately, the Fourth Circuit

8 H.R. 3406, 107' Cong. § 402 (2001); H.R. 6, 108 Cong. § 16012
(2003): H.R. 1644, 108th Cong. § 7012 (2003).

" H.R. 4503, 108% Cong. § 1221(a) (2004): S. 2095, 108% Cong. §
122. 1(a) (2004): H.R. 6, 109 Cong. § 1221(a) (2005).

22

ignored the first part of the legislative history of the
federal transmission siting provisions of the Energy
Policy Act of 2005, and based its conclusions regarding
Congressional intent on an incomplete legislative
history.

In the wake of the National Energy Policy, the
Bush Administration sent its legislative
recommendations for’ electricity legislation to
Congress, including a recommendation for federal
transmission siting authority both where a state
“withholds approval, conditions approval to make a
project economically infeasible, or delays approval.”2?
Legislation was introduced shortly thereafter that
closely mirrored that Bush Administration
recommendation.?! That bill was the first legislative
step in the process that led to the Energy Policy Act of
2005. Significantly, that bill included federal
transmission siting provisions that authorized FERC
to site transmission where a state “has withheld
approval, conditioned its approval in such a manner
that the proposed construction or modification is not
economically feasible, or delayed final approval for
more than one year after the filing of an application
seeking approval.” 22

20 Letter from the Honorable Dan Brouillette, Assistant Sec’y of
Energy for Congressional and Intergovernmental Affairs, U.S.
Dep't of Energy, to The Honorable Jeff Bingaman, Chairman, S.
Comm. on Energy and Natural Resources 2 (Oct. 9, 2001).

21 Electric Supply and Transmission Act, H.R. 3406, 107» Cong. §
402 (2001).

22 Id. § 402 (emphasis added).

23

It is important to note that this initial bill
distinguished between “withholding approval” and
“delaying final approval,” which is at the heart of the
dispute in Piedmont. There are three important
conclusions that must be drawn by comparing this
legislation to section 216. First, in this context,
“aithholding approval” must mean somcthing
different than “delaying final approval,” or the bill
would not have provided separate authorizations.
Second, “withholding approval’ in this context must
mean denial of approval, rather than “delaying final
approval,” otherwise authorizing federal siting where
states “delayed final approval’ would be superfluous.
Third, the authorization for FERC to site transmission
where a state has “withheld approval” was not limited
to a one-year period. That time limitation applied only
to “delaying final approval.”

Congress held hearings on this bill, and clearly
understood the meaning of these terms.?3 Specifically,
the scope of federal preemption under the original
version of the legislation, and whether the legislation
authorized FERC to site transmission in the face of
state denials, was discussed at the Congressional

23 Electric Supply and Transmission Act of 2001, Hearings Before
the H. Comm. on Energy and Committee, Sub. on Energy and Air
Quality, 107th Cong. 4-5, 8, 18, 32, 39, 43, 56-7, 78-80, 115-16,
122-23, 124, 133 (statements of Reps. Boucher, Shimkus, Sawyer,
Wilson, Bryant, Barton) (2001).

24

hearings.?4 Statements made by subcommittee
members indicate they understood the “withheld
approval” language would authorize FERC to site
transmission even where states had _ rejected
transmission projects.25 One subcommittee member
stated the siting language would allow FERC to review
“every” siting decision made by states, including
rejyections.26 The following exchange between another
subcommittee member and the Deputy Secretary of
Energy about interpretation of the legislative language
is revealing:

MR. ALLEN: [A]s I read the transmission
provisions, it seems to say that States that say
no to a transmission project that the Secretary
of Energy considers vital to solve interstate
[transmission] congestion areas, will lose their
right to say no in the future. ...

MR. McSLARROW: ... I believe that you are
correct.?2?

24 Comprehensive National Energy Policy, Hearings Before the H.
Comm. on Energy and Committee, Sub. on Energy and Air
Quality, 108th Cong. 13, 59, 67-8, 297, 303 (statements of Reps.
Brown, Allen, Boucher, Dingell) (2003).

25 Td.

26 Id. at 13 (statement of Rep. Brown).

27 Id. at 67-8 (statements of Rep. Allen and Dep. Secretary
McSlarrow).

25

This remained the form of federal transmission
siting legislation for more than two and a half years.28
The legislative history of bills with the initial
formulation of federal transmission siting language
makes plain that Congress intended to authorize
FERC to site transmission where states have denied
approval. H.R. Rep. No. 108-65, Part I, at 170, 342
(2003). Legislation that included these _ siting
provisions passed the U.S. House of Representative on
April 11, 20038.

The form of the siting provisions changed in June
2004, with introduction of H.R. 4503, the “Energy
Policy Act of 2004.” Energy Policy Act of 2004, 108th
Cong. § 1221(a) (2004). This bill was the first measure
that used the transmission siting language reflected in
section 216, namely “withheld approval for more than
1 year.” The legislative history of this bill is sparse,
lacking a committee report and relevant House floor
debate.

But the intent of the new language becomes clear
by comparing it to the earlier version and tracking the
changes. In the earlher bill, “withheld approval”
unambiguously did not mean “delay approval,” since
that bill contained a separate authorization for FERC
to site transmission where states “delayed final
approval.” Given that separate authorization,
“withheld approval” meant “denial.” Previously, the
time limitation of “more than 1 year” applied only to

28 H.R. 3406, 107% Cong. § 402 (2001); H.R. 6, 108 Cong. § 16012
(2003); H.R. 1644, 108» Cong. § 7012 (2003).

26

“delaying final approval,” not on “withholding
approval.” The revised language dropped the
reference to “delaying final approval” altogether, and
moved the time limitation to the “withheld approval”
term for the first time.

The most reasonable interpretation is that when
Congress struck “delayed final approval” from the new
formulation and attached the time limitation to
“withheld approval” beginning in June 2004, it did not
intend to limit federal siting to circumstances where
states had failed to act. For two and a half years,
“withheld approval” had never meant “delayed final
approval” and had consistently meant FERC would be
authorized to site transmission where states have
denied approval. There is no basis to believe that
Congress intended that “withheld approval’ in this
new formulation would suddenly serve as a synonym
for “delayed final approval.” If that is what Congress
had intended, it would have been a simple matter to
strike “withheld approval” instead of “delayed final
approval” and use the latter term instead. But that is
not what Congress did, and that choice is meaningful.
Congress retained “withheld approval,” deleted
“delayed final approval” and applied the _ time
limitation of the latter to the former. In that light, the
conclusion must be drawn that when Congress began
to use the term “withheld approval for more than 1
year’ Congress intended that “withheld approval”
would continue to include denials, but it also intended
to expand the meaning of the term to include “delaying
final approval,” or else applying the time limitation
would be nonsensical.

27

C. Congress Did Not Intend a Nullity.

If the Fourth Circuit’s decision is left standing,
FERC will have to amend its rule and strip out the
provisions that authorize federal siting where states
have denied siting approval. Doing so would eliminate
most of the preemptive effect in a statute that even the
Fourth Circuit recognized was preemptive. Piedmont,
558 F.3d at 313. That will entirely change the
character of section 216. The end result of the Fourth
Circuit decision is that federal transmission siting will
become a very unlikely event, restoring the law to the
status quo ante that governed before enactment of the
Energy Policy Act of 2005, a status quo that Congress
found unacceptable and had resolved to change. When
engaged in statutory construction “Congress will not
be presumed to have done a useless, ineffective, or
absurd thing.” Consumers Union of the United States
v. Sawhill, 512 F.2d 1112, 1126 (Em. App. 1975).

Incorrect construction of section 216 by the Fourth
Circuit has great national importance. Whatever
improvement was made in federal transmission siting
by Congress with enactment of the Energy Policy Act
of 2005 would be lost under the Piedmont decision. By
interpreting “withheld approval” to mean FERC can
only site transmission when states withhold approval
by delaying action, rather than by denying approval,
the Fourth Circuit has rendered section 216 useless.

28
CONCLUSION

The petition for a writ of certiorari should be
granted.

Respectfully submitted,

Joseph T. Kelliher

Counsel of Record
FPL Group, Inc.
801 Pennsylvania Ave., N.W.
Washington, D.C. 20004
202-347-7082

Attorney for Amict Curtae

October 21, 2009

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1016%3A6. Public record. Not legal advice.