As part of the Energy Policy Act of 2005 (Act), the Department of Energy (DOE) was directed to identify NIETCs—which are essentially corridors with a pressing need for more transmission capacity for electricity.  The Act allows utilities a fast-track approval process for permits for transmission lines within an NIETC.  Notably, the Federal Energy Regulatory Commission (FERC) may grant a permit for transmission lines within an NIETC if, among other things, a state agency fails to approve the permit application within a year. 

On February 1, the Ninth Circuit struck down the DOE’s designation of NIETCs, holding that the DOE failed to adequately consult with the affected states as the Act requires and failed to comply with NEPA.  So six years after Congress passed this legislation to expedite the construction of critical transmission infrastructure, DOE must return to square one, and begin the administrative proceedings to designate NIETCs anew. 

The Act specifically provides that it does not affect the need to comply with environmental laws, including NEPA.  And the case highlights the difficulty the Federal Government has had in trying to expedite infrastructure projects, including those related to renewable energy, without exempting them from NEPA and other environmental laws. 

The full case can be read here. (PDF)