Supreme Court denies Electric Companies’ Request for Certiorari Regarding Federal Transmission Siting

On January 18, 2010, the Supreme Court of the United States (“Supreme Court”) denied a request for certiorari by Edison Electric Institute (“EEI”) of a United States Court of Appeals for the Fourth Circuit (“Court of Appeals”) decision which limited the backstop authority of FERC to instances where a state commission withheld approval of certain interstate electric transmission projects for more than 1 year after the filing of an application for a permit (see the February 20, 2009 edition of the WER).

FERC’s backstop authority to site transmission lines in National Interest Electric Transmission Corridors rises out of the Energy Policy Act of 2005 and Section 216(b) to the Federal Power Act. The contested language in 216(b) allows FERC to permit the siting and construction of new transmission lines when the state authority “has withheld approval for more than 1 year after the filing of an application seeking approval.” FERC interpreted this language to allow for siting where the state authority denied a project application after 1 year. The Court of Appeals reversed FERC’s statutory interpretation and stated that “withheld approval for more than 1 year” means an “action has been held back continuously” for one year. Therefore, a state authorities’ denial of the application was an affirmative action that did not trigger FERC’s backstop siting authority (see April 10, 2009 edition of the WER).

On September 17, 2009, EEI and a group of power companies filed a petition for writ of certiorari, challenging the ruling by the Court of Appeals that FERC cannot assert its backstop authority when a state denies a transmission line project. The Supreme Court denied the cert petition without issuing a written opinion.

A copy of the docket in this case is available at the Supreme Court’s website at: http://origin.www.supremecourtus.gov/docket/09-343.htm