California Supreme Court Grants Review of Third District’s Preemption Decision

Downey Brand LLP

On December 11, 2019, the California Supreme Court granted review of the Third District’s decision in County of Butte v. Department of Water Resources, dismissing a CEQA challenge to DWR’s relicensing application to the Federal Energy Regulatory Commission (FERC) for the Oroville Dam on the basis that the claim was preempted by federal law. The Court of Appeal held the Federal Power Act (FPA) exclusively occupies the field of dam licensing and preempts state regulation, and accordingly found that it had no jurisdiction to consider the case.

The Court of Appeal’s decision came on the heels of a lengthy and complicated procedural history. In an earlier opinion, the Court of Appeal had found that its authority to review the EIR was preempted by the FPA, but the California Supreme Court granted review of the case and sent it back to the Third District with directions to reconsider the case in light of Friends of the Eel River v. North Coast Railroad Authority (2017) 3 Cal.5th 677. The Court of Appeal considered the case but found that Friends was distinguishable because of material differences between the FPA and the Interstate Commerce Commission Termination Act of 1955, the federal law at issue in that case. The Supreme Court also directed that this appellate decision be depublished.

The case, which is currently fully briefed, presents two issues to the California Supreme Court. The first is to what extent the FPA preempts CEQA when the state is acting on its own behalf and exercising its discretion in pursuing a license for such a project. The second is whether the FPA preempts state court challenges to an EIR with regard to its use for purposes beyond the relicensing application—here, a water quality certification under section 401 of the federal Clean Water Act. While the specific issues presented are narrow, the Court’s opinion may have broader implications in the application of the preemption doctrine to any CEQA document prepared for a project with a clear federal purpose.

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Downey Brand LLP

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