PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PIEDMONT ENVIRONMENTAL COUNCIL, 

Petitioner,

PUBLIC SERVICE COMMISSION OF THE

STATE OF NEW YORK (NYPSC);

MINNESOTA PUBLIC UTILITIES

COMMISSION,

Intervenors,

v.

FEDERAL ENERGY REGULATORY

COMMISSION,

Respondent,

SOUTHERN CALIFORNIA EDISON

COMPANY; ALLEGHENY POWER;

TRANS-ALLEGHENY INTERSTATE LINE  No. 07-1651

COMPANY; EDISON ELECTRIC

INSTITUTE; AMERICAN PUBLIC POWER

ASSOCIATION; NATIONAL RURAL

ELECTRIC COOPERATIVE

ASSOCIATION; AMERICAN WIND

ENERGY ASSOCIATION; SAN DIEGO

GAS & ELECTRIC COMPANY; PPL

ELECTRIC UTILITIES CORPORATION,

Intervenors.

STATE OF NEW YORK; STATE OF

ARIZONA; STATE OF CALIFORNIA;

STATE OF CONNECTICUT; STATE OF

DELAWARE; STATE OF ILLINOIS; 
STATE OF IOWA; STATE OF 

KENTUCKY; STATE OF NEW

HAMPSHIRE; STATE OF OHIO;

STATE OF PENNSYLVANIA; STATE OF 

RHODE ISLAND; STATE OF WEST

VIRGINIA; STATE OF WYOMING,

Amici Supporting Petitioner. 

PUBLIC SERVICE COMMISSION OF THE 

STATE OF NEW YORK (NYPSC);

PEOPLE OF THE STATE OF NEW

YORK,

Petitioners,

v.

FEDERAL ENERGY REGULATORY

COMMISSION,

Respondent,

SOUTHERN CALIFORNIA EDISON

COMPANY; ALLEGHENY POWER;

TRANS-ALLEGHENY INTERSTATE LINE  No. 07-1864

COMPANY; EDISON ELECTRIC

INSTITUTE; AMERICAN PUBLIC POWER

ASSOCIATION; NATIONAL RURAL

ELECTRIC COOPERATIVE

ASSOCIATION; AMERICAN WIND

ENERGY ASSOCIATION; SAN DIEGO

GAS & ELECTRIC COMPANY,

Intervenors.

STATE OF NEW YORK; STATE OF

ARIZONA; STATE OF CALIFORNIA; 

2 PIEDMONT ENVTL COUNCIL v. FERC
STATE OF CONNECTICUT; STATE OF 

DELAWARE; STATE OF ILLINOIS;

STATE OF IOWA; STATE OF

KENTUCKY; STATE OF NEW

HAMPSHIRE; STATE OF OHIO; 

STATE OF PENNSYLVANIA; STATE OF

RHODE ISLAND; STATE OF WEST

VIRGINIA; STATE OF WYOMING,

Amici Supporting Petitioners. 

MINNESOTA PUBLIC UTILITIES 

COMMISSION,

Petitioner,

v.

FEDERAL ENERGY REGULATORY

COMMISSION,

Respondent,

SOUTHERN CALIFORNIA EDISON

COMPANY; ALLEGHENY POWER;

TRANS-ALLEGHENY INTERSTATE LINE

COMPANY; EDISON ELECTRIC  No. 07-1865

INSTITUTE; AMERICAN PUBLIC POWER

ASSOCIATION; NATIONAL RURAL

ELECTRIC COOPERATIVE

ASSOCIATION; AMERICAN WIND

ENERGY ASSOCIATION; SAN DIEGO

GAS & ELECTRIC COMPANY; PPL

ELECTRIC UTILITIES CORPORATION,

Intervenors.

STATE OF NEW YORK; STATE OF

ARIZONA; STATE OF CALIFORNIA; 

PIEDMONT ENVTL COUNCIL v. FERC 3
STATE OF CONNECTICUT; STATE OF 

DELAWARE; STATE OF ILLINOIS;

STATE OF IOWA; STATE OF

KENTUCKY; STATE OF NEW

HAMPSHIRE; STATE OF OHIO; 

STATE OF PENNSYLVANIA; STATE OF

RHODE ISLAND; STATE OF WEST

VIRGINIA; STATE OF WYOMING,

Amici Supporting Petitioner. 

COMMUNITIES AGAINST REGIONAL 

INTERCONNECT,

Petitioner,

v.

FEDERAL ENERGY REGULATORY

COMMISSION,

Respondent,

ALLEGHENY POWER; TRANSALLEGHENY INTERSTATE LINE

COMPANY; EDISON ELECTRIC

INSTITUTE; AMERICAN PUBLIC POWER  No. 07-1866

ASSOCIATION; NATIONAL RURAL

ELECTRIC COOPERATIVE

ASSOCIATION; AMERICAN WIND

ENERGY ASSOCIATION; SAN DIEGO

GAS & ELECTRIC COMPANY; PPL

ELECTRIC UTILITIES CORPORATION,

Intervenors.

STATE OF NEW YORK; STATE OF

ARIZONA; STATE OF CALIFORNIA; 

4 PIEDMONT ENVTL COUNCIL v. FERC
STATE OF CONNECTICUT; STATE OF 

DELAWARE; STATE OF ILLINOIS;

STATE OF IOWA; STATE OF

KENTUCKY; STATE OF NEW

HAMPSHIRE; STATE OF OHIO; 

STATE OF PENNSYLVANIA; STATE OF

RHODE ISLAND; STATE OF WEST

VIRGINIA; STATE OF WYOMING,

Amici Supporting Petitioner. 

On Petition for Review of an Order of

the Federal Energy Regulatory Commission.

(RM06-12-001)

Argued: September 24, 2008

Decided: February 18, 2009

Before MICHAEL and TRAXLER, Circuit Judges, and

Richard L. VOORHEES, United States District Judge for

the Western District of North Carolina, sitting by

designation.

Reversed in part, affirmed in part, vacated in part, dismissed

in part without prejudice, and remanded by published opinion.

Judge Michael wrote the opinion, in which Judge Voorhees

joined. Judge Traxler wrote a separate opinion concurring in

part and dissenting in part.

COUNSEL

ARGUED: Jonathan D. Feinberg, NYS PUBLIC SERVICE

COMMISSION, Albany, New York; Belina Anderson, GILPIEDMONT ENVTL COUNCIL v. FERC 5
BERTI, STINZIANO, HEINTZ & SMITH, P.C., New York,

New York, for Petitioners. Robert Harris Solomon, FEDERAL ENERGY REGULATORY COMMISSION, Washington, D.C., for Respondent. Brian R. Gish, DAVIS, WRIGHT

& TREMAINE, L.L.P., Washington, D.C., for Intervenors.

ON BRIEF: John W. Montgomery, Jr., MONTGOMERY &

SIMPSON, L.L.P., Richmond, Virginia, for Petitioner Piedmont Environmental Council; Peter McGowan, Acting General Counsel to the Public Service Commission of the State of

New York, Sean Mullany, Assistant Counsel, NYS PUBLIC

SERVICE COMMISSION, Albany, New York, for Petitioners Public Service Commission of the State of New York

(NYPSC) and People of the State of New York; Lori Swanson, Attorney General, Kari Zipko, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF

MINNESOTA, St. Paul, Minnesota, for Petitioner Minnesota

Public Utilities Commission. Kevin C. Murphy, Brenda D.

Colella, GILBERTI, STINZIANO, HEINTZ & SMITH, P.C.,

Syracuse, New York, for Petitioner Communities Against

Regional Interconnect. Cynthia A. Marlette, General Counsel,

Lona T. Perry, Senior Attorney, FEDERAL ENERGY REGULATORY COMMISSION, Washington, D.C., for Respondent. Barbara D. Underwood, Solicitor General, Benjamin N.

Gutman, Deputy Solicitor General, Denise A. Hartman,

Assistant Solicitor General, Maureen F. Leary, Assistant

Attorney General of Counsel, Lisa M. Burianek, Assistant

Attorney General of Counsel, Andrew M. Cuomo, Attorney

General of the State of New York, Albany, New York; Terry

Goddard, Attorney General of the State of Arizona, Phoenix,

Arizona; Christopher Kempley, Chief Counsel, Janice

Alward, Keith Layton, Arizona Corporation Commission,

Phoenix, Arizona; Edmund G. Brown, Jr., Attorney General

of the State of California, Tim Patterson, Deputy Attorney

General, San Diego, California; Richard Blumenthal, Attorney General of the State of Connecticut, Michael Wertheimer,

Kimberly P. Massicotte, Hartford, Connecticut; Joseph R.

Biden, III, Attorney General of the State of Delaware, Kevin

6 PIEDMONT ENVTL COUNCIL v. FERC
P. Maloney, Deputy Attorney General, Delaware Department

of Justice, Wilmington, Delaware; Lisa Madigan, Attorney

General of the State of Illinois, Jane Elinor Notz, Deputy

Solicitor General, Chicago, Illinois; Tom Miller, Attorney

General of the State of Iowa, Eric J. Tabor, Chief of Staff,

Iowa Attorney General’s Office, Des Moines, Iowa; Gregory

D. Stumbo, Attorney General of the Commonwealth of Kentucky, Douglas Scott Porter, Assistant Attorney General,

Frankfort, Kentucky; Catherine Cortes Masto, Attorney General of the State of Nevada, James T. Spencer, Chief Deputy

Attorney General, Carson City, Nevada; Kelly A. Ayotte,

Attorney General of the State of New Hampshire, Concord,

New Hampshire; Marc Dann, Attorney General of the State

of Ohio, Benjamin C. Mizer, Deputy Solicitor General,

Columbus, Ohio; Hardy Myers, Attorney General of the State

of Oregon, Philip Schradle, Special Counsel, Salem, Oregon;

Scott Perry, Assistant Counsel, Pennsylvania Department of

Environmental Protection, Harrisburg, Pennsylvania; John A.

Levin, Assistant Counsel, Pennsylvania Public Utility Commission, Harrisburg, Pennsylvania; Patrick C. Lynch, Attorney General of the State of Rhode Island, Rebecca Tedford

Partington, Deputy Chief, Civil Division, Providence, Rhode

Island; Darrell V. McGraw, Jr., Attorney General of the State

of West Virginia, Fran Hughes, Chief Deputy Attorney General, Office of the Attorney General, Charleston, West Virginia; Bruce A. Salzburg, Attorney General of the State of

Wyoming, Cheyenne, Wyoming, for the States of New York,

Arizona, California, Connecticut, Delaware, Illinois, Iowa,

Kentucky, Nevada, New Hampshire, Ohio, Oregon, Pennsylvania, Rhode Island, West Virginia, and Wyoming, Amici

Supporting Petitioners. Daniel M. Adamson, DAVIS,

WRIGHT & TREMAINE, L.L.P., Washington, D.C., for

Intervenors Edison Electric Institute, American Public Power

Association, National Rural Electric Cooperative Association,

American Wind Energy Association, and San Diego Gas &

Electric Company; Edward H. Comer, Vice President and

General Counsel, Henri D. Bartholomot, Director, Regulatory

PIEDMONT ENVTL COUNCIL v. FERC 7
Legal Issues, EDISON ELECTRIC INSTITUTE, Washington, D.C., for Intervenor Edison Electric Institute; Susan N.

Kelly, Vice President of Policy Analysis and General Counsel, AMERICAN PUBLIC POWER ASSOCIATION, Washington, D.C., for Intervenor American Public Power

Association; Robert E. Gramlich, Policy Director, AMERICAN WIND ENERGY ASSOCIATION, Washington, D.C.,

for Intervenor American Wind Energy Association; Wallace

Tillman, Vice President and General Counsel, Richard Meyer,

Senior Regulatory Counsel, NATIONAL RURAL ELECTRIC COOPERATIVE ASSOCIATION, Arlington, Virginia,

for Intervenor National Rural Electric Cooperative Association; E. Gregory Barnes, SAN DIEGO GAS & ELECTRIC

COMPANY, San Diego, California, for Intervenor San Diego

Gas & Electric Company; Anna J. Valdberg, SOUTHERN

CALIFORNIA EDISON COMPANY, Rosemead, California,

Alice E. Loughram, Jennifer L. Key, STEPTOE & JOHNSON, L.L.P., Washington, D.C., for Intervenor Southern California Edison Company; Donald A. Kaplan, John L.

Longstreth, William M. Keyser, III, KIRKPATRICK &

LOCKHART PRESTON GATES ELLIS, L.L.P., Washington, D.C., for Intervenor PPL Electric Utilities Corporation;

Tegan M. Flynn, Stephen Angle, Andrew N. Beach, VINSON

& ELKINS, Washington, D.C., for Intervenors Allegheny

Power and Trans-Allegheny Interstate Line Company.

OPINION

MICHAEL, Circuit Judge:

Two state utilities commissions and two community interest organizations petition for review of several rulemaking

decisions made by the Federal Energy Regulatory Commission (FERC or the Commission) in connection with FERC’s

implementation of the new § 216 of the Federal Power Act

(FPA) and the National Environmental Policy Act (NEPA).

8 PIEDMONT ENVTL COUNCIL v. FERC
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.

Our decision is as follows. First, we reverse 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 1 year." The phrase does not include, as FERC

held, the denial of an application. Second, we affirm FERC’s

determination that it was not required to prepare an environmental assessment or an environmental impact statement in

connection with its issuance of procedural regulations dealing

with the content of permit applications under § 216 of the

FPA. Third, we conclude that FERC violated Council on

Environmental Quality (CEQ) regulations when it failed to

consult with the CEQ before amending its (FERC’s) NEPAimplementing regulations to cover § 216 permit applications.

We therefore vacate the amendments to the NEPA regulations

and remand for FERC to engage in the required consultation

with the CEQ. And fourth, we dismiss without prejudice,

because it is not ripe, the part of one petition for review that

seeks to challenge the content of the amendments (which we

are vacating) to FERC’s NEPA-implementing regulations.

I.

The states have traditionally assumed all jurisdiction to

approve or deny permits for the siting and construction of

electric transmission facilities. As a result, the nation’s transmission grid is an interconnected patchwork of stateauthorized facilities. In recent times increasing concerns have

been expressed about the capacity and reliability of the grid.

Congress has reacted to these concerns by adding a new section (§ 216) to the FPA when it passed the Energy Policy Act

of 2005, Pub. L. No. 109-58, 119 Stat. 594 (2005).

PIEDMONT ENVTL COUNCIL v. FERC 9
FPA § 216 authorizes the Secretary of Energy to designate

areas with electric transmission constraints affecting consumers as national interest electric transmission corridors. 16

U.S.C. § 824p(a).1 Section 216 gives FERC the authority in

national interest corridors to issue permits for the construction

or modification of transmission facilities in certain instances,

including the one at issue here: when a state entity with

authority to approve the siting of facilities has "withheld

approval for more than 1 year after the filing of an application" for a permit. Id. §§ 824p(b), 824p(b)(1)(C)(i).

FPA § 216(c)(2) directed FERC to issue rules specifying

the form of, and the information to be contained in, an application for construction or modification of electric transmission facilities in a national interest corridor. Id. § 824p(c)(2).

On June 26, 2006, FERC issued a notice of proposed rulemaking, proposing regulations to fulfill this statutory requirement. Regulations for Filing Applications for Permits to Site

Interstate Electric Transmission Corridors, 71 Fed. Reg.

36,258 (June 16, 2006) (Notice of Proposed Rulemaking).

The notice also included proposed amendments to FERC’s

regulations implementing its responsibilities under NEPA

with respect to the siting of electric transmission facilities.

In response to FERC’s proposed rulemaking, petitioner

Communities Against Regional Interconnect (CARI) and others submitted comments requesting that the Commission confirm that § 216(b)(1)(C)(i)’s phrase "withheld approval for

more than 1 year" does not include a state’s outright denial of

a permit application within the one-year deadline. CARI also

commented that certain of the proposed amendments to the

regulations implementing NEPA unduly restricted application

requirements for the evaluation of the environmental impacts

of a proposed project. According to CARI, the amendments,

among other things, did not require an adequate assessment of

1When citations to the new section are required, we will refer to the

U.S. Code instead of the FPA. 

10 PIEDMONT ENVTL COUNCIL v. FERC
land use and socioeconomic impacts or sufficient consideration of non-transmission alternatives. On November 16,

2006, FERC issued its final rule, which contained the Commission’s substantive interpretation of § 216(b)(1)(C)(i)’s

phrase "withheld approval for more than 1 year." Regulations

for Filing Applications for Permits to Site Interstate Electric

Transmission Facilities, 71 Fed. Reg. 69,440 (Dec. 1, 2006)

(Final Rule). FERC interpreted the phrase to include a state’s

denial of a permit within the one-year statutory time frame.

In dissenting in part, Commissioner Kelly concluded that the

majority’s interpretation was contrary to the plain language of

the statute. Id. at 69,476 (Comm’r Kelly, dissenting). The

final rule also contained the regulations governing permit

applications under § 216(b) of the FPA and implementing

NEPA with respect to § 216(b) applications.

In mid-December 2006 the four petitioners in this proceeding—Piedmont Environmental Council (Piedmont), the Public Service Commission of the State of New York (NYPSC),

the Minnesota Public Utilities Commission (Minnesota PUC),

and CARI—filed requests for rehearing on FERC’s final rule.

All argued to FERC that it had erred in holding that

§ 216(b)(1)(C)(i)’s phrase "withheld approval [of an application] for more than 1 year" includes a denial. Petitioner CARI

raised additional challenges in its rehearing request, contending that FERC (1) violated NEPA by issuing the final rule

without preparing an environmental assessment or an environmental impact statement; (2) erred in revising its NEPAimplementing regulations without first consulting with the

CEQ; and (3) arbitrarily and capriciously issued regulations

that unduly restrict application requirements for the evaluation of a proposed project’s environmental impacts, particularly in the areas of land use, socioeconomics, and the

assessment of non-transmission alternatives. On May 17,

2007, FERC issued an order denying rehearing. Regulations

for Filing Applications for Permits to Site Interstate Electric

Transmission Facilities, 119 FERC ¶ 61,154 (2007) (Order

Denying Rehearing). The Commission rejected the petitionPIEDMONT ENVTL COUNCIL v. FERC 11
ers’ arguments about the meaning of § 216(b)(1)(C)(i), saying

that it "continue[d] to believe that a reasonable interpretation

of the language of the legislation support[ed]" its earlier conclusion. Id. at 61,979. Commissioner Kelly again dissented on

this issue. Id. at 61,988. The Commission also rejected

CARI’s additional arguments. First, FERC said that consultation with CEQ about the amendments to the Commission’s

NEPA regulations was not necessary because it was simply

developing regulations to implement the FPA, not NEPA.

Second, FERC concluded that no environmental assessment

or impact statement was required in connection with the issuance of the final rule because the new regulations are procedural in nature, that is, they deal with notice and filing

requirements for permit applications. Moreover, FERC noted

that the regulations themselves do not authorize any construction. Third, FERC addressed CARI’s argument that the

NEPA-implementing regulations arbitrarily and capriciously

restrict application requirements for the evaluation of land use

impacts, socioeconomic impacts, and non-transmission alternatives. The Commission said that its regulations in these

areas set forth only the minimum initial information required

for filing an application; the regulations do not limit the environmental analysis that might be required with respect to a

particular project proposal.

Piedmont filed in this circuit a petition for review of

FERC’s final rule and its order denying rehearing. Thereafter,

petitions for review of the final rule and order were filed by

the NYPSC in the Second Circuit, by the Minnesota PUC in

the D.C. Circuit, and by CARI in the D.C. Circuit. The petitions filed in the Second and D.C. Circuits were transferred to

this circuit and thereafter consolidated with the Piedmont petition. All petitioners challenge FERC’s interpretation of

§ 216(b)(1)(C)(i). In addition, CARI challenges (1) FERC’s

failure to prepare an environmental assessment or impact

statement before issuing its final rule, (2) FERC’s failure to

consult the CEQ before revising its NEPA regulations, and (3)

FERC’s restriction, in the revised NEPA regulations, of the

12 PIEDMONT ENVTL COUNCIL v. FERC
environmental impacts and project alternatives permit applicants are required to evaluate.

II.

Section 216(b)(1)(C)(i) of the FPA grants FERC the

authority to issue permits for the construction or modification

of electric transmission facilities in national interest corridors

when a state commission has "withheld approval for more

than 1 year after the filing of an application." 16 U.S.C.

§ 824p(b)(1)(C)(i). The petitioners challenge FERC’s broad

interpretation of this jurisdiction-granting provision.

A.

The petitioners argue that because the authority to site

transmission facilities has traditionally been left to the states,

we must apply the presumption against preemption in construing § 216(b)(1)’s grant of siting jurisdiction to FERC. This

presumption "start[s] with the assumption that the historic

police powers of the States were not to be superseded . . .

unless that was the clear and manifest purpose of Congress."

Hillsborough County v. Automated Med. Labs., Inc., 471 U.S.

707, 715 (1985) (internal quotation marks omitted). The

Supreme Court made clear, however, in New York v. FERC,

535 U.S. 1 (2002), that the presumption against preemption

does not apply in a case like the one before us today. New

York held that when Congress has conferred authority upon a

federal agency to act in an area of preexisting state regulation,

and there is simply a question about the scope of that authority, "we must interpret the statute to determine whether Congress has given [the agency] the power to act as it has, and we

do so without any presumption one way or the other." 535

U.S. at 18.

We will therefore review FERC’s construction of § 216(b)

of the FPA without applying any presumption, and our review

will be guided by Chevron U.S.A. v. Natural Resources

PIEDMONT ENVTL COUNCIL v. FERC 13
Defense Council, 467 U.S. 837 (1984). Under Chevron we

first determine whether Congress has "directly spoken to the

precise question at issue. If the intent of Congress is clear,

that is the end of the matter." 467 U.S. at 842. On the other

hand, if we conclude that "the statute is silent or ambiguous

with respect to the specific [question]," we then determine

"whether the agency’s answer is based on a permissible construction of the statute." Id. at 843. In determining "[t]he

plainness or ambiguity of statutory language," we refer "to the

language itself, the specific context in which that language is

used, and the broader context of the statute as a whole." Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997).

B.

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 oneyear deadline.

We begin with the word "withhold," which means "to hold

back : keep from action" or "to desist or refrain from granting,

giving, or allowing." Webster’s Third New Int’l Dictionary

(Webster’s) 2627 (2002). We must, of course, consider the

word "withheld" in the context of the statutory phrase in

which it is used — "withheld approval for more than 1 year."

The phrase, read as a whole, means that action has been held

back continuously over a period of time (more than one year).

The continuous act of withholding approval for more than a

year cannot include the finite act of denying an application

within the one-year deadline. The denial of an application is

a final act that stops the running of time during which

approval was withheld on a pending application.

14 PIEDMONT ENVTL COUNCIL v. FERC
To support its interpretation that withholding approval

includes the denial of a permit, FERC relies on the dictionary

definition of "deny" and a thesaurus entry under "refusal."

Specifically, FERC quotes the following definition of "deny":

"to refuse to grant : WITHHOLD." Webster’s at 603 (capitalization in original). The thesaurus paragraph for "refusal" that

FERC relies upon lists "deny" and "withhold" as synonyms.

Roget’s International Thesaurus, ¶ 776.4 (4th ed. 1984). The

word used in the statute is "withheld," so FERC takes a backward approach to its desired result when it relies on the meaning of a word it wishes to substitute for "withheld." The word

"deny" is broad enough to include "withhold" in its definition,

but the word "withhold" is not broad enough to include

"deny" in its definition. Compare Webster’s at 603 (definition

of deny) with Webster’s at 2627 (definition of withhold).

FERC therefore gets no real support from the dictionary.

Moreover, just because "deny" and "withhold" are listed as

synonyms does not mean that they are always interchangeable. Certainly they are not interchangeable here.

When FERC substitutes "denied" for "withheld," it ignores

the context in which "withheld" is used. With FERC’s word

substitution the statutory phrase would read "denied approval

[of an application] for more than 1 year." The substitution

renders the entire phrase nonsensical because, in the context

of dealing with a permit application, the final nature of "denied" conflicts with the continuing nature of "for more than

1 year." FERC would thus change the clear meaning of the

provision because the denial of a permit application within

one year ends the application process, and there is nothing

about that terminated process that would continue for more

than one year.

An examination of § 216(b)(1) as a whole, which is the

broader context in which the "withheld approval for more

than 1 year" phrase appears, confirms that the phrase does not

encompass the denial of a permit. Section 216(b)(1) provides

a carefully drawn list of five circumstances when FERC may

PIEDMONT ENVTL COUNCIL v. FERC 15
preempt a state and issue a permit for the construction or

modification of electric transmission facilities in a national

interest corridor. They are when: (1) a state in which the

transmission facilities are to be constructed or modified does

not have the authority to approve the siting, 16 U.S.C.

§ 824p(1)(A)(i); (2) a state does not have the authority to consider the expected interstate benefits to be achieved by the

proposed project, id. § 824p(1)(A)(ii); (3) a permit applicant

is a transmitting utility under the FPA, but does not qualify

for a permit in a particular state because it does not serve enduse customers in that state, id. § 824p(1)(B); (4) (the circumstance at issue here) a state commission has withheld approval

for more than one year after the filing of an application or the

designation of the relevant national interest corridor, whichever is later, id. § 824p(1)(C)(i); or (5) a state commission has

conditioned its approval in such a manner that the proposed

construction or modification is not economically feasible or

will not significantly reduce transmission congestion in interstate commerce, id. § 824p(b)(1)(C)(ii).

If the circumstance of withholding permit approval is set

aside, the remaining four circumstances allow FERC jurisdiction only when a state commission either is unable to act or

acts inappropriately by including project-killing conditions in

an approved permit. These are limited grants of jurisdiction to

FERC, and they indicate that Congress meant for the "withheld [permit] approval" circumstance to be limited as well.

FERC’s reading of the "withheld approval" circumstance to

include denial of a permit renders it completely out of proportion with the four other jurisdiction-granting circumstances in

§ 216(b)(1). 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. When

16 PIEDMONT ENVTL COUNCIL v. FERC
the five circumstances in § 216(b)(1) are considered together,

they indicate that Congress intended only a measured,

although important, transfer of jurisdiction to FERC. In providing for this measured transfer of jurisdiction, Congress

simply makes sure that there is a utility commission available

—if not a state commission, then FERC — to make a timely

and straightforward decision on every permit application in a

national interest corridor. 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.

FERC argues that its authority under § 216(b)(1)(C)(ii) to

take jurisdiction when a state commission approves a permit

but imposes project-sinking conditions supports its interpretation of "withheld approval" in § 216(b)(1)(C)(i) as a broad

grant of jurisdiction. According to FERC, Congress would not

"intentionally allow federal intervention in the event of onerous state approvals that scuttle projects in national corridors,

and yet intentionally bar federal review where the state outright denies the application, achieving the same result." FERC

Br. at 22 (emphasis in original). FERC’s argument overlooks

a crucial difference between the two situations. When a state

commission grants approval with project-killing conditions, it

misuses its authority, and the state licensing system has failed.

On the other hand, when a state commission denies an application outright, it acts with transparency and engages in a

legitimate use of its traditional powers. There is thus no logical inconsistency between authorizing FERC to assume jurisdiction in the case of permit approvals with overburdensome

conditions but not in the case of outright denials.2

2The dissent is mistaken when it says that § 216(i)’s interstate compact

provision supports its interpretation of § 216(b)(1)(C)(i). Section 216(i)

PIEDMONT ENVTL COUNCIL v. FERC 17
We have analyzed the phrase "withheld approval for more

than 1 year." Read by itself, the phrase does not include the

outright denial of a permit application within the one-year

deadline. We have also considered the phrase in the context

of the entire statutory provision in which it appears. A reading

of the entire provision reveals that Congress intended to act

in a measured way and conferred authority on FERC only

when a state commission is unable to act on a permit application in a national interest corridor, fails to act in a timely manner, or acts inappropriately by granting a permit with projectkilling conditions. The broader context of § 216(b) thus confirms that the meaning of "withheld approval for more than 1

year" is plain: it means that action on a permit application has

been held back continuously for more than one year. The continuous act of withholding approval does not include the final

authorizes three or more contiguous states to enter into an interstate compact establishing a regional transmission siting agency. 16 U.S.C.

§ 824p(i). FERC has "no authority to issue a permit for the construction

or modification of an electric transmission facility within a State that is a

party to a compact, unless the members of the compact are in disagreement." Id. § 824p(i)(4). The dissent contends that if Congress had intended

in § 216(b)(1)(C)(i) "to allow a single state to simply veto a transmission

facility," there would have been no reason "to provide [in § 216(i)(4)] that

states in [interstate] compacts must unanimously oppose the grant of an

application to deprive FERC of authority." Post at 35. The dissent misreads Congress’s intent. The two sections are in harmony, but not in the

way the dissent suggests. An interstate compact agency does not lose jurisdiction to FERC when it denies a permit, just as a single state commission

does not lose jurisdiction when it denies a permit on a timely basis. In

addition, § 216(i) imposes greater limitations on FERC authority than

those in § 216(b)(1)(C). FERC cannot step in if an interstate compact

agency, acting in conformity with § 216(i), considers an application for

more than a year or imposes permit conditions that make a project economically infeasible. Cf. 16 U.S.C. §§ 824p(b)(1)(C)(i), (ii). Both § 216(i)

and § 216(b)(1) confirm that FERC may take jurisdiction only in limited

circumstances. Nothing in § 216(i)’s interstate compact provision suggests

that § 216(b)(1)(C)(i) should be read to mean that a state commission must

grant a permit application in a national interest corridor or else lose jurisdiction to FERC. 

18 PIEDMONT ENVTL COUNCIL v. FERC
administrative act of denying a permit. Because Congress’s

intent is clear, our review under Chevron proceeds no further.

For these reasons, we reverse FERC’s interpretation of the

phrase "withheld approval for more than 1 year."

III.

Petitioner CARI claims that FERC was required to prepare

an environmental assessment (EA) or an environmental

impact statement (EIS) when it adopted its regulations detailing the information requirements for permit applications

under § 216 of the FPA. NEPA requires federal agencies to

prepare an EA or an EIS for all "major Federal actions significantly affecting the quality of the human environment." 42

U.S.C. § 4332(2)(C). FERC determined that its adoption of

the new regulations did not amount to major federal action

because the regulations were simply procedural. Thus,

according to FERC, neither an EA nor an EIS was required.

FERC’s determination is reviewed for reasonableness under

the circumstances. Sugarloaf Citizens Ass’n v. FERC, 959

F.2d 508, 512 (4th Cir. 1992).

CEQ regulations implementing NEPA define "major federal action" to include "actions with effects that may be major

and which are potentially subject to federal control and

responsibility." 40 C.F.R. § 1508.18. According to the regulations, "[f]ederal actions tend to fall within one of the following categories": (1) adoption of official policy (rules,

regulations, and interpretations), (2) adoption of formal plans,

(3) adoption of programs, and (4) approval of specific projects. Id. §1508.18(b). FERC relied on one of its own NEPAimplementing regulations in determining that neither an EA

nor an EIS was required in connection with the issuance of

the permit application rules. The regulation provides that neither of these statements will be prepared in connection with

the "promulgation of rules that are . . . procedural." 18 C.F.R.

§ 380.4(a)(2)(ii). FERC, of course, emphasizes that it will, at

the appropriate time, undertake a full environmental analysis

PIEDMONT ENVTL COUNCIL v. FERC 19
for every proposed transmission project. CARI argues that

project-specific environmental assessments will not be

enough. Rather, CARI says, a programmatic EIS is required

at this stage. 

As the D.C. Circuit has explained, "a programmatic EIS

reflects the broad environmental consequences attendant upon

a wide-ranging [and systematic] federal program." Nat’l Wildlife Fed’n v. Appalachian Reg’l Comm’n, 677 F.2d 883, 888

(D.C. Cir. 1981). The D.C. Circuit suggests two questions that

are "helpful in reviewing [a federal agency’s] decision not to

prepare a programmatic EIS." Id. at 889. The questions are:

"[1] Could the programmatic EIS be sufficiently forward

looking to contribute to the [agency’s] basic planning of the

overall program? and, [2] Does the [agency] purport to ‘segment’ the overall program, thereby unreasonably constricting

the scope of . . . environmental evaluation?" Id. at 889. CEQ

regulations provide that a programmatic EIS should be prepared when federal actions are connected or cumulative, 40

C.F.R. § 1508.25(a)(1)-(2), or when actions are similar, and a

single statement is the best vehicle for assessing environmental effects, id. § 1508.25(a)(3).

With respect to the D.C. Circuit’s first question, we conclude that a programmatic EIS could not be sufficiently forward looking to contribute to FERC’s basic planning for the

overall program, that is, the Commission’s permitting program for transmission facilities in national interest corridors.

Because permit applications will come from private parties,

FERC cannot now identify projects that are likely to be sited

and permitted. By the same token, FERC does not have information about the ultimate geographic footprint of the permitting program. Without such information a programmatic EIS

would not present a credible forward look and would therefore not be a useful tool for basic program planning. With

respect to the D.C. Circuit’s second question, we conclude

that FERC’s rules, which require individual project applications, are not designed to segment the overall program in

20 PIEDMONT ENVTL COUNCIL v. FERC
order to constrict environmental evaluation. Separate and

detailed permit applications for each project should facilitate,

not impede, adequate environmental assessment. Moreover,

FERC could group individual projects under a single EIS as

appropriate.

We turn next to the CEQ regulations that call for a programmatic EIS when federal actions are connected, cumulative, or similar. See 40 C.F.R. § 1508.25. First, actions are

connected if they "[a]utomatically trigger other actions which

may require environmental impact statements." Id.

§ 1508.25(a)(1)(i). FERC’s actions in issuing its procedural

regulations for permit applications do not automatically trigger any further action by the Commission. Of course, private

parties will no doubt file permit applications that conform to

the regulations, and FERC may issue permits that require it to

prepare EISs. But FERC’s issuance of a permit requiring an

EIS is not an action that would be triggered automatically by

its earlier action of issuing procedural regulations. Actions are

also connected if they (1) "[c]annot or will not proceed unless

other actions are taken previously or simultaneously" or (2)

"are interdependent parts of a larger action and depend on the

larger action for their justification." Id. § 1508.25(a)(1)(ii)-

(iii). FERC’s action in issuing the regulations is an independent action which stands alone and did not depend on any

prior or simultaneous action by the Commission. Moreover,

the action in issuing the regulations does not share mutual

dependence with any larger FERC action that requires an EIS.

Second, cumulative actions are those "which when viewed

with other proposed actions have cumulatively significant

impacts and should therefore be discussed in the same impact

statement." Id. § 1508.25(a)(2). The regulations themselves

did not authorize a project of any kind and do not authorize

any alteration of the natural physical environment. Moreover,

FERC has not proposed to issue any specific permit for construction. There are thus no cumulative actions with significant environmental effects.

PIEDMONT ENVTL COUNCIL v. FERC 21
Third, similar actions are those, "which when viewed with

other reasonably foreseeable or proposed agency actions, have

similarities that provide a basis for evaluating their environmental consequences together." Id. § 1508.25(a)(3). FERC’s

action in issuing regulations specifying the content of permit

applications is not similar to the action of issuing a permit.

The former action adopts application procedures while the latter involves the substantive review of the merits and consequences of a specific project proposal. 

In sum, the standards and regulations that govern when a

programmatic EIS should be issued do not indicate that one

was required in this instance.

CARI’s further argument that FERC must be required to do

an EIS now, lest the Commission shirk its responsibilities

later when project-specific EISs are required, is also without

merit. Once FERC receives a permit application, it will be

required under NEPA to assess the environmental effects of

the project. The assessment will likely prompt the preparation

of an EIS or an EA. Any deficiencies in project-specific environmental assessments may be challenged at the appropriate

time.

As of today, FERC has only promulgated regulations specifying the content of permit applications under § 216(b). This

action, as the Commission reasonably determined, is not a

major federal action significantly affecting the quality of the

human environment. FERC therefore was not required to prepare an EA or an EIS in connection with its issuance of the

regulations.3

3Because we have rejected FERC’s interpretation of the phrase "withheld approval for more than 1 year," we do not reach CARI’s argument

that the interpretation itself was a major federal action that required an

EIS. 

22 PIEDMONT ENVTL COUNCIL v. FERC
IV.

Petitioner CARI further contends that FERC violated CEQ

regulations when it revised its own NEPA-implementing regulations without first consulting with the CEQ. This claim

raises a question of law that we review de novo. North Carolina v. Fed. Aviation Admin., 957 F.2d 1125, 1128 (4th Cir.

1992).

The CEQ has promulgated regulations to implement the

requirements of NEPA. See 40 C.F.R. § 1500 et seq. These

implementing regulations require that "each [federal] agency

shall as necessary adopt procedures to supplement [the

CEQ’s] regulations." Id. § 1507.3(a). "Each agency shall consult with the Council [CEQ] while developing its procedures

and before publishing them in the Federal Register." Id. In

addition, "[a]gencies shall continue to review their policies

and procedures and in consultation with the Council to revise

them as necessary to ensure full compliance with the purposes

and provisions of [NEPA]." Id. CEQ regulations are binding

on federal agencies. Andrus v. Sierra Club, 442 U.S. 347, 358

(1979); Sugarloaf Citizens Ass’n, 959 F.2d at 512 n.3. 

FERC’s NEPA-implementing regulations, promulgated to

supplement those of the CEQ, are found at 18 C.F.R. part 380.

When FERC issued its final rule with regulations for filing

applications for permits under § 216 of the FPA, the Commission included a number of substantial amendments to its

NEPA-implementing regulations. See Final Rule, 71 Fed.

Reg. at 69,470-75. These amendments include revisions or

additions to 18 C.F.R. § 380.3 (adding electric transmission

projects to the list of actions for which applicants must submit

environmental information); § 380.5 (listing projects that

require an environmental assessment); § 380.6 (listing projects, including those involving major electric transmission

facilities, that require an environmental impact statement),

§ 380.8 (making the preparation of environmental documents

for electric transmission facilities in national interest corridors

PIEDMONT ENVTL COUNCIL v. FERC 23
the responsibility of FERC’s Office of Energy Projects);

§ 380.10 (allowing motions to intervene by third parties once

an application has been filed); and § 380.15 (detailing siting

and maintenance requirements). The final rule also adds a

new section to FERC’s NEPA regulations, § 380.16, which

sets forth the various categories of information that must be

included in the environmental report submitted with an application.

FERC argues that the regulations listed above were issued

to implement § 216 of the FPA, not NEPA. This argument has

no support whatsoever; indeed, it is contrary to statements

made by FERC during the rulemaking process. In its notice

of proposed rulemaking, FERC said: "Part 380 [18 C.F.R.] of

the Commission’s regulations implements its responsibilities

under NEPA. The Commission proposes to revise those regulations by adding sections dealing with its new responsibilities

with respect to the siting of electric transmission facilities."

Notice of Proposed Rulemaking, 71 Fed. Reg. at 36,265. This

statement by FERC and especially the content of the amendments to 18 C.F.R. part 380 leave no doubt that FERC was

also implementing NEPA, not just § 216 of the FPA, when it

amended its NEPA regulations in the final rule. 

FERC argues in the alternative that § 1507.3(a) of the CEQ

regulations only require an agency to consult with the CEQ

when the agency develops its initial NEPA-implementing regulations. This argument also fails. Under § 1507.3(a) an

agency has a continuing duty to review its procedures (or regulations) "and in consultation with the [CEQ] to revise them

as necessary to ensure full compliance with the purposes and

provisions of [NEPA]." 40 C.F.R. § 1507.3(a). FERC violated

§ 1507.3(a) when it failed to consult with the CEQ before

revising its NEPA regulations in the final rule. We therefore

vacate the amendments to FERC’s NEPA regulations, 18

C.F.R. part 380, that are set forth in the final rule. Once FERC

consults with the CEQ, FERC may, if it determines that no

modifications are warranted, enter an order reinstating the

24 PIEDMONT ENVTL COUNCIL v. FERC
amendments. If, however, the Commission proposes to make

modifications after the consultation, it may pursue appropriate

rulemaking procedures.

V.

Finally, CARI argues that FERC’s amended NEPA regulations arbitrarily and capriciously restrict the environmental

impact information that must be submitted in an application

for construction of transmission facilities under § 216(b).

CARI attacks the amended regulations in four areas.

First, CARI contends that the new provision at 18 C.F.R.

§ 380.16(j) unduly restricts the evaluation of impacts on land

use, recreation, and aesthetics to those within one-quarter mile

of the proposed transmission line right-of-way. According to

CARI, a fair definition of an overhead transmission line’s area

of impact should begin with a minimum range of one-half

mile and be extended, if appropriate, in specific cases.

Second, CARI contends that new § 380.16(k) of the NEPA

regulations unduly restricts the range of non-transmission

alternatives that an applicant must consider. The regulation

requires "[d]iscuss[ion of] the ‘no action’ alternative and

other alternatives given serious consideration" by the applicant. 18 C.F.R. § 380.16(k)(1). CARI argues that all reasonable alternatives must be examined.

Third, CARI contends that FERC inappropriately eliminated a proposed § 380.16(g)(7), set forth in its notice of proposed rulemaking, that would have required the applicant to

undertake a property value analysis for residential properties

located adjacent to or abutting the proposed right-of-way. See

Notice of Proposed Rulemaking, 71 Fed. Reg. at 36,273. This

deletion, CARI says, violates CEQ regulations, which require

an evaluation of economic or social effects when they are

interrelated with the project’s effects on the natural or physical environment. See 40 C.F.R. § 1508.14.

PIEDMONT ENVTL COUNCIL v. FERC 25
Fourth, CARI contends that FERC fails to require applicants to evaluate a proposed project’s effect on the cost of

electricity to the consumer, in violation of 40 C.F.R.

§ 1508.14, which requires the evaluation of a project’s economic effects to the extent they are interrelated with natural

or physical effects. According to CARI, the consideration of

a project’s effect on consumer electricity prices should not be

deferred entirely for post-project ratemaking procedures;

rather, this important effect should be considered before a

project is built.

In part IV, supra, we decided to vacate FERC’s amendments to its NEPA regulations, which are included in the final

rule. Our decision will allow FERC to engage in the required

consultation with the CEQ. Until that consultation takes place,

and any necessary proceedings before the Commission occur,

we will not know the exact content of FERC’s amendments

to it NEPA regulations. As a result, CARI’s specific challenges relating to those amendments are not ripe for consideration and resolution at this time. We will therefore dismiss

CARI’s petition for review without prejudice insofar as it

challenges the content of FERC’s amendments to its NEPA

regulations.

VI.

In conclusion, the petitions for review in cases No. 07-1651

(filed by Piedmont), No. 07-1864 (filed by the NYPSC), and

No. 07-1865 (filed by the Minnesota PUC) are granted. These

petitions challenge FERC’s interpretation of the phrase "withheld approval for more than 1 year" in § 216(b)(1)(C)(i) of the

FPA. The petition in case No. 07-1866 (filed by CARI) is also

granted to the extent it raises this same issue. Here, we

reverse FERC’s interpretation. The phrase "withheld approval

for more than 1 year"—under its plain meaning—does not

give FERC jurisdiction under § 216(b)(1) when a state commission denies a permit application for the construction or

26 PIEDMONT ENVTL COUNCIL v. FERC
modification of electric transmission facilities in a national

interest corridor. 

The petition for review in No. 07-1866 (filed by CARI) is

granted insofar as it challenges FERC’s decision not to prepare an environmental assessment or an environmental impact

statement before issuing its final rule that includes regulations

for filing permit applications under § 216(b). On this issue we

affirm FERC’s decision not to prepare an EA or an EIS.

The petition for review in No. 07-1866 (filed by CARI) is

granted insofar as it challenges FERC’s failure to consult with

the CEQ before issuing amendments to its (FERC’s) regulations implementing NEPA. With respect to this challenge, we

hold that consultation was required, and, we therefore vacate

the amendments to FERC’s NEPA regulations. Consultation

may be pursued on remand.

The petition for review in No. 07-1866 (filed by CARI) is

dismissed without prejudice insofar as it raises specific challenges to the content of amendments to FERC’s NEPA regulations. These challenges are not ripe for consideration.

The cases are remanded to FERC.

REVERSED IN PART, AFFIRMED IN PART,

VACATED IN PART, DISMISSED IN PART 

WITHOUT PREJUDICE, AND REMANDED

TRAXLER, Circuit Judge, concurring in part and dissenting

in part:

I concur in Parts III, IV, and V of the majority opinion

(with the exception of footnote 3). However, because I

believe that FERC correctly interpreted "withheld approval

[of a permit application] for more than 1 year" in 16 U.S.C.A.

§ 824p(b)(1)(C) (West Supp. 2008) to include the failure or

refusal to grant a permit application for more than one year

PIEDMONT ENVTL COUNCIL v. FERC 27
in cases in which the permit application was denied, I respectfully dissent from the contrary holding. 

I.

A.

Before examining the specific statutory language in question, I pause briefly to discuss the circumstances that brought

about the legislation. Most important among these circumstances is the shift, since the enactment of the Federal Power

Act, in the way that electricity has been produced and delivered to consumers, from it being generated and consumed in

the same general geographic area to it being transmitted great

distances from the area in which it was generated. 

[U]nlike the local power networks of the past, electricity is now delivered over three major networks,

or "grids," in the continental United States . . . . It is

only in Hawaii and Alaska and on the "Texas Interconnect"—which covers most of that State—that

electricity is distributed entirely within a single state.

In the rest of the country, any electricity that enters

the grid immediately becomes part of a vast pool of

energy that is constantly moving in interstate commerce. As a result, it is now possible for power companies to transmit electric energy over long distances

at a low cost.

New York v. FERC, 535 U.S. 1, 7-8 (2002) (footnote omitted). A study issued in May 2002 by the Department of

Energy noted, however, that construction of new transmission

facilities has been unable to keep up with increasing demands

for electricity, resulting in transmission bottlenecks that have

increased consumer costs as well as the chances of blackouts.

See U.S. Dep’t of Energy, National Transmission Grid Study

(May 2002) ("Study"), at xi, 5-6 available at http://

28 PIEDMONT ENVTL COUNCIL v. FERC
www.ferc.gov/industries/electric/gen-info/transmissiongrid.pdf. The Study further determined and recommended:

Rules and regulations that will improve procedures

for the siting and permitting of transmission lines

should be implemented immediately. The FERC

should play a limited role focused on supporting

state and regional efforts, but should also possess

backstop authority to ensure that transmission facilities that eliminate national interest transmission bottlenecks are sited and constructed. The FERC should

act if state and regional bodies are unsuccessful in

siting and permitting national interest transmission

lines.

Study at 58-59. In this regard, Senate Energy and Natural

Resource Committee Chairman Domenici stated on the Senate floor concerning pending legislation that eventually would

become the Energy Policy Act of 2005 ("EPAct 2005"), Pub.

L. No. 109-58, 119 Stat. 594 (2005):

To avoid future blackouts and provide our industry

and consumers with the reliable electricity they need,

we need to invest in critical transmission infrastructure; provide limited Federal siting authority of

transmission lines to ensure the transmission of

national interest lines, and avoid the most significant

areas where we had gridlock; [and] streamline the

permitting of siting for transmission lines to assure

adequate transmission. . . . We need all these parts

of the Energy bill.

150 Cong. Rec. S3732 (daily ed. April 5, 2004) (statement of

Sen. Domenici). It was in this context that Congress enacted

EPAct 2005. 

B.

I agree for the reason explained by my colleagues that our

review of the statutory language at issue must be guided by

PIEDMONT ENVTL COUNCIL v. FERC 29
Chevron U.S.A., Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837 (1984). See ante at 13-14. Under Chevron,

we must first determine "whether Congress has directly spoken to the precise question at issue." Chevron, 467 U.S. at

842. If so, we need go no further. See id. On the other hand,

"if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s

answer is based on a permissible construction of the statute."

Id. at 843. We would not need to conclude that the agency’s

interpretation is "the only one it permissibly could have

adopted to uphold the construction, or even the reading the

court would have reached if the question initially had arisen

in a judicial proceeding." Id. at 843 n.11. Rather, to uphold

the agency’s construction, we need only find that it was "reasonable." Id. at 844. In my view, the language of the statute,

when considered in the context of the statute’s purpose and

other provisions in the statute, is susceptible to only one interpretation, the one that FERC adopted. 

Section 824p(b) allows FERC, after notice and an opportunity for hearing, to issue permits for construction or modification of electric transmission facilities in areas the Secretary of

Energy has designated as national interest electric transmission corridors if it finds that

(1)(A) a State in which the transmission facilities

are to be constructed or modified does not have

authority to—

(i) approve the siting of the facilities; or

(ii) consider the interstate benefits

expected to be achieved by the proposed

construction or modification of transmission facilities in the State;

(B) the applicant for a permit is a transmitting utility under this chapter but does not qualify to apply

30 PIEDMONT ENVTL COUNCIL v. FERC
for a permit or siting approval for the proposed project in a State because the applicant does not serve

end-use customers in the State; or

(C) a State commission or other entity that has

authority to approve the siting of the facilities has—

(i) withheld approval for more than 1

year after the filing of an application seeking approval pursuant to applicable law or

1 year after the designation of the relevant

national interest electric transmission corridor, whichever is later; or

(ii) conditioned its approval in such a

manner that the proposed construction or

modification will not significantly reduce

transmission congestion in interstate commerce or is not economically feasible;

(2) the facilities to be authorized by the permit

will be used for the transmission of electric energy

in interstate commerce;

(3) the proposed construction or modification is

consistent with the public interest;

(4) the proposed construction or modification will

significantly reduce transmission congestion in interstate commerce and protects or benefits consumers;

(5) the proposed construction or modification is

consistent with sound national energy policy and

will enhance energy independence; and 

(6) the proposed modification will maximize, to

the extent reasonable and economical, the transmission capabilities of existing towers or structures.

PIEDMONT ENVTL COUNCIL v. FERC 31
16 U.S.C.A. § 824p(b) (emphasis added).

"The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context

in which that language is used, and the broader context of the

statute as a whole." Robinson v. Shell Oil Co., 519 U.S. 337,

341 (1997). We begin with the statutory text. See Tidewater

Fin. Co. v. Williams, 498 F.3d 249, 254 (4th Cir. 2007). "In

the absence of a definition from Congress in a statute, or a

clear congressional intent to the contrary, we accord words in

a statute their ordinary, contemporary, common meaning."

Worden v. SunTrust Banks, Inc., 549 F.3d 334, 345 (4th Cir.

2008) (citation & internal quotation marks omitted). Applying

the common meaning of the word "withhold" yields a

straightforward rule that a state has "withheld approval for

more than 1 year" when one year after approval has been

sought, the state still has not granted it, regardless of the reason. See Funk & Wagnalls Standard Dictionary 936 (1980)

(defining "withhold" in part as "[t]o keep back; decline to

grant"). Indeed, this is the construction that FERC adopted.

Despite the apparent clarity of the words "withhold" and

"approval," Petitioners maintain that even if a state has not

granted approval more than a year after an application has

been submitted, it has not "withheld approval for more than

1 year" if it has affirmatively denied the application. Petitioners argue that denying approval cannot constitute "withh[olding] approval" because a denial is a discrete event and it

therefore makes no sense to speak of "denying approval for

more than 1 year." 

In my opinion, this argument is not sound. Under FERC’s

interpretation, the discrete event of denial does not constitute

the withholding of approval that extends for more than one

year after the application is received. The denial is merely one

event that may occur during the more-than-one-year period in

which approval is withheld. Under the common meaning of

the words "withhold" and "approval," approval is withheld,

32 PIEDMONT ENVTL COUNCIL v. FERC
i.e., not granted, every day that no decision is issued granting

approval, and it continues to be withheld on the day an application is denied (as well as every day that such a denial is not

reconsidered). Thus, if a state denies an application, and then,

ten months after submission of the application, reverses

course and grants the application, it would certainly be the

case that the state "withheld approval" for ten months before

granting it. Similarly, if one year and one day after submission of an application a state has denied an application (and

not reconsidered its decision), it has "withheld approval for

more than 1 year." There is no other reasonable way to interpret those words.1

Not surprisingly, an examination of the context in which

these words are used and the context of the statute as a whole

confirms that Congress meant its words to be given their common meaning. First and foremost is the subsection directly

following 16 U.S.C.A. § 824p(b)(1)(C)(i), which gives FERC

authority when a state has granted approval but "conditioned

its approval in such a manner that the proposed construction

or modification will not significantly reduce transmission

1Petitioners contend that had Congress intended that a state could have

"withheld approval for more than 1 year" in a case in which the application was denied during the one-year period, it could have conveyed that

notion more clearly had it substituted "denied an application or failed to

act for more than one year," for "withheld approval." Petitioners note that

Congress actually employed such language in another part of the statute,

see 16 U.S.C.A. § 824p(h)(6)(A) (West Supp. 2008) ("If any agency has

denied a Federal authorization required for a transmission facility, or has

failed to act by the deadline established . . ."), and Petitioners suggest that

its decision not to do so here creates some doubt as to what Congress

intended. Petitioners’ point might have some force if the language Congress did choose were reasonably susceptible to more than one meaning,

but it is not, as I have explained. Moreover, had Congress simply meant

"failed to act on an application for more than 1 year," and not meant the

statute to include outright denials, it could easily have used words that

actually had that meaning, as it did in another part of EPAct 2005. See 16

U.S.C.A. § 824b(a)(5) (West Supp. 2008) ("If the Commission does not

act within 180 days [on an application] . . ."). 

PIEDMONT ENVTL COUNCIL v. FERC 33
congestion in interstate commerce or is not economically feasible." 16 U.S.C.A. § 824p(b)(1)(C)(ii). Read together, the

two subsections provide that while a state has a full year to

consider and act on an application without interference from

FERC, FERC nevertheless has the authority to ensure that a

state does not frustrate the goal of significantly reducing

transmission congestion in a national interest corridor. Petitioners, however, suggest that Congress did not intend to

essentially "trump" the states’ permitting decisions in order to

accomplish this goal. That suggestion is completely belied,

however, by Congress’s undisputed willingness to do just that

when a state grants a permit under conditions FERC determines to be unreasonable. See 16 U.S.C.A.

§ 824p(b)(1)(C)(ii). The notion that Congress would have

been willing to "trump" states when they thwart the goal of

significantly reducing transmission congestion in a national

interest corridor by granting permits subject to conditions

FERC determines to be unreasonable but would not be willing

to do so when states thwart the same goal by denying the permits outright makes no sense to me in light of the purpose of

the legislation.

The argument that Petitioners’ interpretation can be

squared with § 824p(b)(1)(C)(ii) because "[w]hen a state

commission grants approval with project-killing conditions, it

misuses its authority, and the state licensing system has

failed," but when a state simply denies an application, it "acts

with transparency and engages in a legitimate use of its traditional powers," ante at 17, is not correct in my view. With all

due respect, such a misuse of authority would occur only if a

state granted its approval with conditions that it imposed for

the purpose of killing the project. Section 824p(b)(1)(C)(ii) is

not so narrow as to limit FERC’s jurisdiction to cases in

which such intentionally deceptive action has occurred.

Rather, it clearly allows FERC to exercise jurisdiction based

34 PIEDMONT ENVTL COUNCIL v. FERC
on simple differences of opinion between FERC and the state

regarding the impact of the conditions imposed.2

Nor can I square 16 U.S.C.A. § 824p(i) (West Supp. 2008)

with Petitioners’ suggestion that Congress intended to allow

a single state to impede Congress’s goal of reducing transmission congestion in national interest electric transmission corridors by simply denying an application outright. That

subsection allows three or more contiguous states to enter into

an interstate compact, subject to Congress’s approval. States

that have entered into such compacts are authorized to establish regional transmission siting agencies that can facilitate

siting of electric transmission facilities within those states and

carry out their siting responsibilities. FERC has no authority

to issue permits for construction or modification of electric

transmission facilities within such states so long as all states

in the compact agree that the permit should not be issued. See

16 U.S.C.A. § 824p(i)(4). Had Congress been inclined to

allow a single state to simply veto a transmission facility for

purely local reasons—as it could do under Petitioners’ construction—there would have been no reason to provide for

these interstate compacts or to provide that states in such

compacts must unanimously oppose the grant of an application to deprive FERC of authority. 

I recognize that several states participating in this appeal as

amici curiae contend that FERC’s interpretation would render

the states’ consideration of applications irrelevant. Even if the

contention were true, it would not create an ambiguity in the

statute, especially considering the critical national energy

interests that Congress sought to protect with this legislation.

FERC brings a broader national perspective to siting propos2For the same reason, in my view, the conclusion that the four circumstances other than § 824p(b)(1)(C)(i) "allow FERC jurisdiction only when

a state commission either is unable to act or acts inappropriately," ante at

16 (emphasis added), is not correct with respect to § 824p(b)(1)(C)(ii) if

"inappropriately" refers to a misuse of authority. 

PIEDMONT ENVTL COUNCIL v. FERC 35
als in national interest electric transmission corridors than

individual states possess, and Congress clearly intended that

FERC would be authorized to act from that perspective. Nevertheless, the contention that FERC’s interpretation makes the

states’ permitting decisions irrelevant is not correct. FERC

has explained that it takes into consideration a state’s decision

in making its own permitting determinations. Furthermore, a

state has the authority to impose on any grant of an application conditions that FERC is powerless to overturn so long as

the conditions are economically feasible and would not prevent the significant reduction of transmission congestion in

interstate commerce. See 16 U.S.C.A. § 824p(b)(1)(C)(ii). By

considering the states’ decisions and allowing states to impose

reasonable conditions upon application grants, FERC can pursue important national energy interests while at the same time

respecting, to some degree, the interests and judgments of the

states. Thus, FERC’s interpretation is strongly supported by

the framework of the statutory scheme as a whole.

C.

Although it is not determinative, it is nonetheless worth

noting that FERC’s construction, which I believe to be the

only plausible reading of the statute, is also buttressed by the

applicable legislative history. The plainest statements from

the House of Representatives are from the House Committee

Report on bill H.R. 1640, which contained language identical

to the bill the President eventually signed, H.R. 6. The House

Report described the bill as allowing FERC authority "if, after

one year, a state, or other approval authority is unable or

refuses to site the line." H.R. Rep. No. 109-215(I), at 261

(2005). Indeed, the House Report also contains "Dissenting

Views" of members who understood the bill to have the very

same meaning. See id. at 494 (noting that bill would "preempt

. . . state decisions about whether new or expanded lines

should be built"). At least two congressmen, in discussing the

merits of the siting provisions of the bill, recognized the clear

import of the language. Representative Dingel stated that it

36 PIEDMONT ENVTL COUNCIL v. FERC
"eliminates . . . deference to the States in decisions about the

siting of electric transmission lines and natural gas facilities,"

151 Cong. Rec. H2193 (daily ed. Apr. 20, 2005), and Representative Shays noted that the bill allows FERC "to preempt

state siting authorities when it is determined that a highvoltage power line is of ‘national significance,’" id. at H2196.

Similarly, a Senate committee report summarizing a bill, S.

10, that contained relevant language identical to that of

§ 824p(b)(1)(C)(i), described the bill as "authoriz[ing] FERC

to issue siting permits if a State withholds approval inappropriately." S. Rep. No. 109-78, at 5 (2005) (emphasis added).

The use of the term "inappropriately" strongly suggests that

the Committee primarily had in mind situations in which a

state denied a permit that was necessary to ensure reliability

of the national transmission grid, not simply situations where

a state had not ruled on an application for a certain period of

time. 

Petitioners maintain that FERC’s authority in the legislative

history is often described as "limited" or "backstop," which

they believe indicates that FERC lacks authority when a state

denies a permit outright. But that is simply not the case. This

characterization merely recognizes what I have already

explained—that Congress sought to achieve a balance in giving the states an opportunity to dispose of permit applications

without involvement by FERC, by allowing the states to place

reasonable conditions on the grant of such permits that could

not be overruled, and by allowing them to form compacts of

three or more contiguous states whose unanimous denials also

could not be overridden. That FERC’s authority may be limited does not even suggest that Congress would not have

authority to grant applications in some situations in which

states had denied them. See Study, at 59 ("The FERC should

play a limited role focused on supporting state and regional

efforts, but should also possess backstop authority to ensure

that transmission facilities that eliminate national interest

transmission bottlenecks are sited and constructed. The

FERC should act if state and regional bodies are unsuccessful

PIEDMONT ENVTL COUNCIL v. FERC 37
in siting and permitting national interest transmission lines.")

(emphasis added).

II.

In sum, the reasons are numerous for concluding that

§ 824p(b)(1)(C)(i) plainly has the meaning that FERC

adopted. Only FERC’s interpretation gives Congress’s words

their common meaning, and only FERC’s interpretation

makes sense in the context in which the language is used and

in the context of the statute as a whole. Indeed, as I have

explained, that plain meaning is also the one indicated in the

applicable legislative history. Finally, even assuming

arguendo that the statute’s meaning were not plain, I would

conclude that FERC’s interpretation was reasonable at the

very least, and therefore entitled to deference under Chevron.

I would therefore affirm FERC’s interpretation.3

3Because I would affirm FERC’s construction, I would need to address

the claim of Petitioner Communities Against Regional Interconnect that

FERC was required to prepare an environmental assessment ("EA") or an

environmental impact statement ("EIS") when it adopted its interpretation.

I would hold that FERC’s decision not to prepare an EA or an EIS was

reasonable. See Sugarloaf Citizens Ass’n v. FERC, 959 F.2d 508, 512 (4th

Cir. 1992) (stating standard of review). 

38 PIEDMONT ENVTL COUNCIL v. FERC