Piedmont Environmental Council v. Federal Energy Regulatory Commission

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;

2 PIEDMONT ENVTL COUNCIL v. FERC

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;

 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 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
INSTITUTE; AMERICAN PUBLIC POWER
 No. 07-1865
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.

COMMUNITIES AGAINST REGIONAL 
INTERCONNECT,
Petitioner,
v.
FEDERAL ENERGY REGULATORY
COMMISSION,
Respondent,
ALLEGHENY POWER; TRANS-
ALLEGHENY 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;

 PIEDMONT ENVTL COUNCIL v. FERC 5

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, GIL-
6 PIEDMONT ENVTL COUNCIL v. FERC
BERTI, STINZIANO, HEINTZ & SMITH, P.C., New York,
New York, for Petitioners. Robert Harris Solomon, FED-
ERAL ENERGY REGULATORY COMMISSION, Washing-
ton, 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 Pied-
mont Environmental Council; Peter McGowan, Acting Gen-
eral Counsel to the Public Service Commission of the State of
New York, Sean Mullany, Assistant Counsel, NYS PUBLIC
SERVICE COMMISSION, Albany, New York, for Petition-
ers Public Service Commission of the State of New York
(NYPSC) and People of the State of New York; Lori Swan-
son, Attorney General, Kari Zipko, Assistant Attorney Gen-
eral, 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 REG-
ULATORY COMMISSION, Washington, D.C., for Respon-
dent. 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, Attor-
ney 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
 PIEDMONT ENVTL COUNCIL v. FERC 7
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 Ken-
tucky, Douglas Scott Porter, Assistant Attorney General,
Frankfort, Kentucky; Catherine Cortes Masto, Attorney Gen-
eral 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 Com-
mission, Harrisburg, Pennsylvania; Patrick C. Lynch, Attor-
ney 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 Gen-
eral, Office of the Attorney General, Charleston, West Vir-
ginia; 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, Pennsyl-
vania, 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
8 PIEDMONT ENVTL COUNCIL v. FERC
Legal Issues, EDISON ELECTRIC INSTITUTE, Washing-
ton, D.C., for Intervenor Edison Electric Institute; Susan N.
Kelly, Vice President of Policy Analysis and General Coun-
sel, AMERICAN PUBLIC POWER ASSOCIATION, Wash-
ington, D.C., for Intervenor American Public Power
Association; Robert E. Gramlich, Policy Director, AMERI-
CAN 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 ELEC-
TRIC COOPERATIVE ASSOCIATION, Arlington, Virginia,
for Intervenor National Rural Electric Cooperative Associa-
tion; 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 & JOHN-
SON, L.L.P., Washington, D.C., for Intervenor Southern Cali-
fornia Edison Company; Donald A. Kaplan, John L.
Longstreth, William M. Keyser, III, KIRKPATRICK &
LOCKHART PRESTON GATES ELLIS, L.L.P., Washing-
ton, 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 inter-
est organizations petition for review of several rulemaking
decisions made by the Federal Energy Regulatory Commis-
sion (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).
 PIEDMONT ENVTL COUNCIL v. FERC 9
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 expan-
sive interpretation of the language in FPA § 216(b)(1)(C)(i)
that grants FERC permitting jurisdiction when a state com-
mission 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 environ-
mental 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) NEPA-
implementing 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 trans-
mission grid is an interconnected patchwork of state-
authorized 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 sec-
tion (§ 216) to the FPA when it passed the Energy Policy Act
of 2005, Pub. L. No. 109-58, 119 Stat. 594 (2005).
10 PIEDMONT ENVTL COUNCIL v. FERC
FPA § 216 authorizes the Secretary of Energy to designate
areas with electric transmission constraints affecting consum-
ers 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 applica-
tion" 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 appli-
cation for construction or modification of electric transmis-
sion facilities in a national interest corridor. Id. § 824p(c)(2).
On June 26, 2006, FERC issued a notice of proposed rule-
making, proposing regulations to fulfill this statutory require-
ment. 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 oth-
ers submitted comments requesting that the Commission con-
firm 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
1
When citations to the new section are required, we will refer to the
U.S. Code instead of the FPA.
 PIEDMONT ENVTL COUNCIL v. FERC 11
land use and socioeconomic impacts or sufficient consider-
ation of non-transmission alternatives. On November 16,
2006, FERC issued its final rule, which contained the Com-
mission’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 proceed-
ing—Piedmont Environmental Council (Piedmont), the Pub-
lic 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 applica-
tion] for more than 1 year" includes a denial. Petitioner CARI
raised additional challenges in its rehearing request, contend-
ing that FERC (1) violated NEPA by issuing the final rule
without preparing an environmental assessment or an environ-
mental impact statement; (2) erred in revising its NEPA-
implementing regulations without first consulting with the
CEQ; and (3) arbitrarily and capriciously issued regulations
that unduly restrict application requirements for the evalua-
tion of a proposed project’s environmental impacts, particu-
larly 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 petition-
12 PIEDMONT ENVTL COUNCIL v. FERC
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 con-
clusion. 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 consulta-
tion 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 issu-
ance of the final rule because the new regulations are proce-
dural 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 construc-
tion. 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 alter-
natives. 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 envi-
ronmental 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 peti-
tions filed in the Second and D.C. Circuits were transferred to
this circuit and thereafter consolidated with the Piedmont peti-
tion. 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
 PIEDMONT ENVTL COUNCIL v. FERC 13
environmental impacts and project alternatives permit appli-
cants 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 constru-
ing § 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 author-
ity, "we must interpret the statute to determine whether Con-
gress 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
14 PIEDMONT ENVTL COUNCIL v. FERC
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 con-
struction 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." Rob-
inson 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 applica-
tion within one year. We conclude that FERC’s interpretation
is contrary to the plain meaning of the statute. Simply put, the
statute does not give FERC permitting authority when a state
has affirmatively denied a permit application within the one-
year deadline.

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.
 PIEDMONT ENVTL COUNCIL v. FERC 15
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 (capital-
ization 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 back-
ward approach to its desired result when it relies on the mean-
ing 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 interchange-
able. 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 "de-
nied" 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
16 PIEDMONT ENVTL COUNCIL v. FERC
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 con-
sider 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 end-
use customers in that state, id. § 824p(1)(B); (4) (the circum-
stance 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, which-
ever 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 inter-
state commerce, id. § 824p(b)(1)(C)(ii).

If the circumstance of withholding permit approval is set
aside, the remaining four circumstances allow FERC jurisdic-
tion 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 "with-
held [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 propor-
tion 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 juris-
diction 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 tradi-
tional considerations like cost and benefit, land use and envi-
ronmental impacts, and health and safety. It would be futile,
in other words, for a commission to do its normal work. When
 PIEDMONT ENVTL COUNCIL v. FERC 17
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 pro-
viding 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 interpreta-
tion 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 oner-
ous state approvals that scuttle projects in national corridors,
and yet intentionally bar federal review where the state out-
right 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 appli-
cation outright, it acts with transparency and engages in a
legitimate use of its traditional powers. There is thus no logi-
cal inconsistency between authorizing FERC to assume juris-
diction in the case of permit approvals with overburdensome
conditions but not in the case of outright denials.2
2
The 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)
18 PIEDMONT ENVTL COUNCIL v. FERC
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 applica-
tion in a national interest corridor, fails to act in a timely man-
ner, or acts inappropriately by granting a permit with project-
killing conditions. The broader context of § 216(b) thus con-
firms 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 con-
tinuous act of withholding approval does not include the final

authorizes three or more contiguous states to enter into an interstate com-
pact 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 disagree-
ment." 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 mis-
reads Congress’s intent. The two sections are in harmony, but not in the
way the dissent suggests. An interstate compact agency does not lose juris-
diction 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 eco-
nomically 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 juris-
diction to FERC.
 PIEDMONT ENVTL COUNCIL v. FERC 19
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 detail-
ing 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 signifi-
cantly 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 fed-
eral 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 regula-
tions, "[f]ederal actions tend to fall within one of the follow-
ing categories": (1) adoption of official policy (rules,
regulations, and interpretations), (2) adoption of formal plans,
(3) adoption of programs, and (4) approval of specific proj-
ects. Id. §1508.18(b). FERC relied on one of its own NEPA-
implementing 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 nei-
ther 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
20 PIEDMONT ENVTL COUNCIL v. FERC
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 Wild-
life 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 ‘seg-
ment’ the overall program, thereby unreasonably constricting
the scope of . . . environmental evaluation?" Id. at 889. CEQ
regulations provide that a programmatic EIS should be pre-
pared 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 environmen-
tal effects, id. § 1508.25(a)(3).

With respect to the D.C. Circuit’s first question, we con-
clude that a programmatic EIS could not be sufficiently for-
ward looking to contribute to FERC’s basic planning for the
overall program, that is, the Commission’s permitting pro-
gram 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 infor-
mation about the ultimate geographic footprint of the permit-
ting program. Without such information a programmatic EIS
would not present a credible forward look and would there-
fore 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 applica-
tions, are not designed to segment the overall program in
 PIEDMONT ENVTL COUNCIL v. FERC 21
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 pro-
grammatic EIS when federal actions are connected, cumula-
tive, 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 trig-
ger 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 indepen-
dent 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 con-
struction. There are thus no cumulative actions with signifi-
cant environmental effects.
22 PIEDMONT ENVTL COUNCIL v. FERC
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 environ-
mental 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 lat-
ter involves the substantive review of the merits and conse-
quences 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 envi-
ronmental assessments may be challenged at the appropriate
time.

As of today, FERC has only promulgated regulations speci-
fying 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 pre-
pare an EA or an EIS in connection with its issuance of the
regulations.3
3
Because we have rejected FERC’s interpretation of the phrase "with-
held 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.
 PIEDMONT ENVTL COUNCIL v. FERC 23
IV.

Petitioner CARI further contends that FERC violated CEQ
regulations when it revised its own NEPA-implementing reg-
ulations without first consulting with the CEQ. This claim
raises a question of law that we review de novo. North Caro-
lina 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 con-
sult 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 Commis-
sion 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 proj-
ects, 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
24 PIEDMONT ENVTL COUNCIL v. FERC
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 appli-
cation.

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 regu-
lations 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 amend-
ments 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 reg-
ulations. This argument also fails. Under § 1507.3(a) an
agency has a continuing duty to review its procedures (or reg-
ulations) "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
 PIEDMONT ENVTL COUNCIL v. FERC 25
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 regula-
tions 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 appli-
cant. 18 C.F.R. § 380.16(k)(1). CARI argues that all reason-
able alternatives must be examined.

Third, CARI contends that FERC inappropriately elimi-
nated a proposed § 380.16(g)(7), set forth in its notice of pro-
posed 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 physi-
cal environment. See 40 C.F.R. § 1508.14.
26 PIEDMONT ENVTL COUNCIL v. FERC
Fourth, CARI contends that FERC fails to require appli-
cants 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 eco-
nomic 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 amend-
ments 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 chal-
lenges relating to those amendments are not ripe for consider-
ation 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 "with-
held 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 com-
mission denies a permit application for the construction or
 PIEDMONT ENVTL COUNCIL v. FERC 27
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 pre-
pare 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) regula-
tions 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 chal-
lenges to the content of amendments to FERC’s NEPA regu-
lations. 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
28 PIEDMONT ENVTL COUNCIL v. FERC
in cases in which the permit application was denied, I respect-
fully dissent from the contrary holding.

I.

A.

Before examining the specific statutory language in ques-
tion, I pause briefly to discuss the circumstances that brought
about the legislation. Most important among these circum-
stances is the shift, since the enactment of the Federal Power
Act, in the way that electricity has been produced and deliv-
ered 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, elec-
tricity 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 Inter-
connect"—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 com-
merce. As a result, it is now possible for power com-
panies to transmit electric energy over long distances
at a low cost.

New York v. FERC, 535 U.S. 1, 7-8 (2002) (footnote omit-
ted). 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://
 PIEDMONT ENVTL COUNCIL v. FERC 29
www.ferc.gov/industries/electric/gen-info/transmission-
grid.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 facili-
ties that eliminate national interest transmission bot-
tlenecks 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 Sen-
ate 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 infrastruc-
ture; 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
30 PIEDMONT ENVTL COUNCIL v. FERC
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 spo-
ken 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 spe-
cific 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 "rea-
sonable." 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 inter-
pretation, the one that FERC adopted.

Section 824p(b) allows FERC, after notice and an opportu-
nity for hearing, to issue permits for construction or modifica-
tion of electric transmission facilities in areas the Secretary of
Energy has designated as national interest electric transmis-
sion 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 transmis-
sion facilities in the State;

(B) the applicant for a permit is a transmitting util-
ity under this chapter but does not qualify to apply
 PIEDMONT ENVTL COUNCIL v. FERC 31
for a permit or siting approval for the proposed proj-
ect 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 seek-
ing approval pursuant to applicable law or
1 year after the designation of the relevant
national interest electric transmission corri-
dor, 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 com-
merce 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 inter-
state 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 transmis-
sion capabilities of existing towers or structures.
32 PIEDMONT ENVTL COUNCIL v. FERC
16 U.S.C.A. § 824p(b) (emphasis added).

"The plainness or ambiguity of statutory language is deter-
mined 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 rea-
son. 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. Petition-
ers argue that denying approval cannot constitute "withh[old-
ing] 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,
 PIEDMONT ENVTL COUNCIL v. FERC 33
i.e., not granted, every day that no decision is issued granting
approval, and it continues to be withheld on the day an appli-
cation 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 submis-
sion 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 inter-
pret 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 com-
mon 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
1
Petitioners contend that had Congress intended that a state could have
"withheld approval for more than 1 year" in a case in which the applica-
tion 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 Con-
gress 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] . . .").
34 PIEDMONT ENVTL COUNCIL v. FERC
congestion in interstate commerce or is not economically fea-
sible." 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. Peti-
tioners, 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 deter-
mines 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 per-
mits 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 tradi-
tional 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
 PIEDMONT ENVTL COUNCIL v. FERC 35
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 transmis-
sion congestion in national interest electric transmission corri-
dors 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 estab-
lish 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’ con-
struction—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 applica-
tion 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 propos-
2
For the same reason, in my view, the conclusion that the four circum-
stances 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.
36 PIEDMONT ENVTL COUNCIL v. FERC
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. Nev-
ertheless, 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 applica-
tion conditions that FERC is powerless to overturn so long as
the conditions are economically feasible and would not pre-
vent 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 pur-
sue 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
 PIEDMONT ENVTL COUNCIL v. FERC 37
"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 Repre-
sentative Shays noted that the bill allows FERC "to preempt
state siting authorities when it is determined that a high-
voltage 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 inappro-
priately." 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 giv-
ing 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 lim-
ited 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
38 PIEDMONT ENVTL COUNCIL v. FERC
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

3
Because 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).