The opinion of the court was delivered by: William W. Caldwell United States District Judge
We consolidated these three cases because they present common issues of law. We will treat the plaintiffs and the defendants collectively. The plaintiffs are challenging the order of the Department of Energy (DOE) designating the Mid-Atlantic Corridor. The designation would permit the construction of electrical transmission lines over the objection of the states in which the lines would be located. Under the applicable law, the Energy Policy Act of 2005, DOE was supposed to have based the designation on, among other factors, the interests of national energy independence, national defense, and homeland security. The complaints allege that in making the designation DOE failed to comply with that law, along with other federal laws, including environmental ones.
We are considering the defendants' motions to dismiss the three complaints for lack of jurisdiction under Fed. R. Civ. P. 12(b)(1). Defendants argue that jurisdiction to review DOE's order is exclusively in the courts of appeals under section 313 of the Federal Power Act, 16 U.S.C. § 825l(b). In opposition, the plaintiffs argue that jurisdiction is exclusively in the district courts under section 317 of the Federal Power Act, 16 U.S.C. § 825p.
Defendants also argue in regard to plaintiff, Pennsylvania Public Utility Commission's, complaint that its claims are not yet ripe because any transmission-line construction must first be approved by the Federal Energy Regulatory Commission (FERC).
We need not deal with the ripeness argument because we agree with the defendants that we lack jurisdiction to review DOE's order and that the plaintiffs must seek review in an appropriate court of appeals.*fn1
In the Energy Policy Act of 2005, P.L. No. 109-58, 119 Stat. 594, Congress amended the Federal Power Act (FPA) by adding new section 216, codified at 16 U.S.C. § 824p. In pertinent part, this section requires the Secretary of Energy "in consultation with affected States" to "conduct a study of electric transmission congestion." Id., § 824p(a)(1). After doing so, and after consultation with interested parties, including affected states, "the Secretary shall issue a report, based on the study, which may designate any geographic area experiencing electric energy transmission capacity constraints or congestion that adversely affects consumers as a national interest electric transmission corridor." Id., § 824p(a)(2).*fn2
As presented in the defendants' brief in support of their motion to dismiss in Nat'l Wildlife Federation,*fn3 on May 7, 2007, DOE's Office of Electricity Delivery and Energy Reliability published its Draft National Interest Electric Transmission Corridor Designations ("Draft Report"). See 72 Fed. Reg. 25838 (May 7, 2007). In that Draft Report, the Secretary preliminarily found that the Mid-Atlantic region was critically congested and warranted designation as a National Corridor. Id. at 25884-96. The Mid-Atlantic Corridor includes fifty-two of the sixty-seven counties in Pennsylvania. 72 Fed. Reg. at 25909; see also 72 Fed. Reg. at 31571.
Thereafter, DOE opened a 60-day comment period and held public meetings across the country. See 72 Fed. Reg. at 25838. DOE received numerous public comments, including comments submitted by at least three of the Plaintiffs, regarding the proposed designation of the Mid-Atlantic Corridor. See, e.g., October 5, 2007, Report and Order, 72 Fed. Reg. 56992, 57002 and n.54 (referring to comments by Pennsylvania Public Utility Commission and Piedmont Environmental Council); 57003 n.58; 57011 n.84 and 57023 (referring to comments by the Sierra Club).
In its October 5, 2007, Report and Order, DOE retained the Mid-Atlantic Corridor designation without modification. See id. at 56992. DOE stated that it would consider as parties to the proceedings all persons or entities who had submitted written comments in accordance with the procedure outlined in its May 7, 2007. See id. at 57000.
Following the issuance of DOE's October 5, 2007, Order, various groups and individuals petitioned DOE for rehearing under 16 U.S.C.§ 825l(a), raising, among other issues, the same types of claims as those in Plaintiffs' complaint. On December 7, 2007, DOE entered an order granting rehearing for the purpose of giving further consideration to all timely filed requests challenging the Mid-Atlantic designation. See 72 Fed. Reg. 69202 (Dec. 7, 2007). On March 11, 2008, DOE issued an order declining to reconsider the designation of the Mid-Atlantic Corridor. See 73 Fed. Reg. 12959 (March 11, 2008).*fn4
After DOE issued its order, petitions for review were filed in the United States Courts of Appeals for the Fourth and Second Circuits challenging the designation of the Mid-Atlantic Corridor. In the Second Circuit, the petitioner was the Pennsylvania Public Utility Commission, one of the plaintiffs before this court. See Pa. Pub. Util. Comm'n v. U.S. Dep't of Energy, No. 08-1216-AG (2d Cir.)(filed March 14, 2008). See also Virginia v. U.S. Dep't of Energy, No. 08-1341 (4th Cir.)(filed March 20, 2008); and New York v. U.S. Dep't of Energy, No. 08-1283-AG (2d Cir.)(filed March 17, 2008).*fn5
In the three cases filed in this court, the plaintiffs have alleged that DOE violated section 824p, and other federal laws: the Endangered Species Act, 16 U.S.C. § 1531 et seq.; the National Environmental Policy Act, 42 U.S.C. § 4321, et seq.; the National Historic Preservation Act, 16 U.S.C. § 470f; and the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq.
The changing nature of the federal government's statutory framework for handling the country's energy needs is relevant to the jurisdictional issue, so we briefly recite it here, taking it from the plaintiffs' opposition briefs.
The FPA created the Federal Power Commission (the "FPC") in 1920. The FPC had the authority to issue licenses to operate and maintain dams, water conduits, reservoirs, power houses, transmission lines and related facilities. 16 U.S.C. § 797(e). The Department of Energy Organization Act of 1977 (the "DOE Act") abolished the FPC and created the cabinet-level Department of Energy. It also created the Federal Energy Regulatory Commission (FERC), placing FERC within DOE. FERC inherited the FPC's functions of issuing licences to build transmission lines and the other facilities listed in section 797(e). See 42 U.S.C. § 7172(a)(1). DOE inherited the functions of the FPC not otherwise transferred to FERC. See 42 U.S.C. § 7151(b). DOE inherited still other functions assigned to other agencies.
The DOE Act did not contain a section dealing with judicial review. Instead, the act provided that judicial review would be as specified in the statute conferring functions on DOE or FERC or as specified in the statute from which DOE or FERC inherited certain functions as part of the DOE Act's consolidation of authority in DOE. Specifically, as codified at 42 U.S.C. § 7192, the DOE Act provided, in pertinent part, as follows:
(a) Agency action Judicial review of agency action taken under any law the functions of which are vested by law in, or transferred or delegated to the Secretary, the Commission or any officer, employee, or component of the Department shall, notwithstanding such vesting, ...