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According to the two earlier lawsuits, the designation of the Southwest corridor affects an area of 70,000 square miles in California and Arizona, while the Mid-Atlantic region covered by the department’s action includes “broad areas” of eight states and the District of Columbia.

The new move to the 9^th Circuit came after federal officials argued in the Pennsylvania case that such challenges could only be brought in the appeal courts. Although the initial filing in the appeals court did not include details of the plaintiffs’ allegations, a public statement from the organizations involved in the case outlined a number of objections, including the department’s alleged failure to fully consider public comments and alternatives.   

The cases stem from the department’s decision last October to designate the two corridors. The latest lawsuit came shortly after the department earlier this month denied requests to reconsider the order (see DOE press statement here).

Areas within the corridors could be subject to jurisdiction by the Federal Energy Regulatory Commission under the energy policy law, according to energy department documents.

“In practice, this will mean that if an applicant does not receive approval from a state to site a proposed new transmission facility within a national corridor, the applicant may then apply to FERC for a permit and authorization to construct the facility,” the energy department said in an information packet distributed at the time of the October decision. Once granted a permit, a builder could also use the power of eminent domain to acquire property rights for the lines, except if the land is owned by the state or federal governments, the department said.

Opponents of the department’s move saw numerous problems with it. The Pennsylvania lawsuit, charged, for instance:

“As a result of the Order, proposed utility and transmission line projects
within the Corridor will be subject to “fast-track” federal approval, bypassing
state-level processes for locating transmission infrastructure, overriding federal
environmental laws, and enabling federal condemnation of private land and
diversion of public land for new high voltage transmission lines.

By facilitating utility right-of-way creation and transmission line construction without a detailed analysis of the associated environmental impacts and without full consultation with the appropriate resource and land management agencies, DOE’s proposed corridor designation will have avoidable impacts on ecosystems, wildlife habitats and populations, historic resources and water quality.”

Anjali Jaiswal, an attorney for the Natural Resources Defense Council, one of the groups bringing the 9^th Circuit lawsuit, said the case was not about stopping transmission projects:

“We recognize the need for increased investment in transmission solutions across the country. But we need to ensure that these transmission corridor designations take place in compliance with federal environmental law.”

The lead plaintiff in the case was the Wildnerness Society. The California Wilderness Coalition also joined the litigation. 

In its public statement released at the time of the rehearing denial, the energy department said it had “dismissed without merit” challenges raised by those seeking a new look at the decision. It also asserted that a number of federal statutes, including those cited in the lawsuits, were “not applicable” to the decision to designate the corridors. Rather, reviews under those laws would be conducted by FERC before issuing any construction permit.

Julie Ruggiero, a spokeswoman for the energy department, said Wednesday that the designation of the corridors "in and of itself has no environmental impact and instead shines a spotlight on areas of the country that are experiencing congestion and constraint." She said the department had also provided "all interested parties with fair and ample opportunities" to give their views.

Last month, the federal attorneys representing the energy department moved to dismiss the Pennsylvania case, arguing such challenges could only be heard in the court of appeals.

(Photograph of transmission lines in Oregon courtesy Department of Energy)

Later, officials of the federal agency told news outlets, including the Great Falls Tribune, that the White House's Office of Management and Budget had put loans for baseload generation on hold. Separately, the USDA recently announced it was accepting applications for $220.9 million in loan and grant applications for renewable energy and energy efficiency projects. 

The government's retreat from coal projects could have far-reaching implications, according to Earthjustice, an Oakland, California nonprofit law firm representing envronmental groups that had filed a lawsuit against the government's involvement in the Montana plant. That litigation had also raised concerns about  other projects financed via the USDA agency. Earthjustice, in statement in early March, said the federal agency's move would affect at least five other proposed coal plants in Kentucky, Illinois, Arkansas, Texas and Missouri. Would-be operators of the Missouri plant have already suspended plans for the project.

"This is a big decision," Abigail Dillen, a Earthjustice lawyer said in the statement. "It says new coal plants can't go to the federal government for money at least for the next couple years, and these are make or break times to get these plants built." 

"We're counting it as a victory" in the lawsuit, said Brian Smith, an Earthjustice spokesman.  

The Missouri plant appeared to be an early victim of the federal decision. On March 3, the cooperative that had planned to build the facility announced it was "delaying indefinitely" the project, citing the lack of financing from the utilities service, as well as regulatory uncertainty.

Regarding the Montana project, Andrew's letter cited "the uncertainty of the litigation now filed." But a spokesman for the service said the primary reason for rejecting the plant's funding was its quickly escalating expense. The utility service, which traces its roots to the Depression-era Rural Electrification Act, helps provide funding for projects serving rural areas by issuing loans and loan guarantees.

"The decision was based on one very significant and primary factor and that was cost," said the spokesman, Jay Fletcher. He said when the plant was proposed in 2004 it carried an estimated price tag of $450 million, a figure which had since grown to $750 million. Opponents of the Montana project had also cited the plant's price tag, contending that affordable wind power alternatives were available. An official of the Montana cooperative could not be reached for comment, but the Great Falls newspaper reported the utility would seek private financing.

Meanwhile, officials at the East Kentucky Power Cooperative were grappling with fallout from the service's funding decision. The cooperative has plans for a new 268-megawatt coal plant, new gas-fired peaker plants and transmission lines deliver the power. Elements of the project had already been targeted in a separate court challenge brought by environmentalists.

While the Kentucky lawsuit does not mention global warming implications of the plant, that's clearly one of the concerns of the plaintiffs. In a statement they warned:

"Coal-fired power plants emit large quantities of harmful soot, heavy metals such as mercury, and greenhouse gases into the environment. This pollution can result in an increase in respiratory problems, heart disease, and other health impacts. Coal prices are also rising; economists say that the price has risen 400 percent in the past six years, and the risks of increased regulations on dangerous carbon dioxide emissions are likely to drive those costs much higher."

The lawsuit, however, was brought on more technical grounds, in effect charging that the National Environmental Policy Act was violated because the environmental impacts of a 36-mile transmission line project were not considered together with the two proposed power plant units the lines would serve. The RUS that the transmission project would pose no significant impact to the environment.  A separate environmental impact statement for the generating units is being prepared, according to the lawsuit.

Anne Mayberry, also a spokeswoman for the federal program, declined to comment on the lawsuit targeting the Kentucky facilities. However, Nick Comer, a spokesman East Kentucky Power, said both the cooperative and the federal agency had followed the law. The cooperative has described the generating project as using "clean coal" technology. But according to local news reports, environmentalists who in February proposed a greater reliance renewable energy, have criticized that as doing little to reduce carbon dioxide emissions.

Comer said that the cooperative continues to study renewable and alternative energy sources and already has projects generating power from landfills. But he noted that the region served by his cooperative -- which also lies close "to a lot of coal mines" -- is growing faster than the national average. Comer said it was too early to tell what the loss of federal financing might mean, although he said the possibility of going to the private market was being discussed.

"Coal," Comer said said, "has to be part of the picture."      

 (Department of Energy photo showing construction of clean coal plant in Florida)