Tag: Preemption

California Supreme Court Holds that CEQA is Not Preempted by the Federal Power Act When Used to Make Decisions that are Outside Federal Jurisdiction or Compatible with the Federal Government’s Licensing Authority

In County of Butte v. Department of Water Resources (2022) 13 Cal.5th 612, the California Supreme Court partially reversed an opinion from the Third District Court of Appeal that CEQA is completely preempted by the Federal Power Act (FPA), finding instead that CEQA is only partly preempted. Specifically, the Supreme Court held the FPA preempts an agency’s application of CEQA to the extent that it interferes with the federally established licensing process, but not when CEQA is used to make decisions concerning matters outside federal jurisdiction or those compatible with the federal government’s exclusive licensing authority.


This consolidated litigation addresses a license renewal for the Oroville Facilities, a collection of public works projects, including hydroelectric facilities, in Butte County. As part of the renewal process, the California Department of Water Resources (DWR) engaged the alternative licensing process (ALP) authorized by the Federal Energy Regulatory Commission (FERC) prior to applying for relicensing. The ALP process allowed DWR to engage with stakeholders and develop a settlement agreement addressing their concerns, which effectively functions as a first draft of the FERC license. Following five years of negotiations, all but two of the stakeholders signed on to the settlement agreement, which DWR submitted to FERC. The Counties of Butte and Plumas did not sign the agreement. Following submission of the settlement agreement and licensing application by DWR, FERC prepared an Environmental Impact Statement (EIS) pursuant to NEPA, which considered several alternatives, including a “staff alternative” with modifications from the FERC staff. The EIS concluded the “staff alternative” was the preferred alternative.

Also following submittal of the relicensing application, DWR prepared an EIR pursuant to CEQA, analyzing implementation of the settlement agreement and continued operation of the Oroville Facilities as the “project” under CEQA and the same alternatives considered by FERC. DWR prepared the EIR to comply with additional permitting requirements under the Clean Water Act, for which the State Water Resources Control Board was the lead agency, and to help DWR determine whether to accept a license containing the original terms or the “staff alternative.”

Procedural History

Butte County and Plumas County separately filed petitions for writ of mandate, each challenging DWR’s compliance with CEQA in connection with the relicensing of Oroville Facilities. The cases were later consolidated.

The trial court found DWR’s EIR adequate, and the Counties appealed. On appeal, the Third District declined to reach the merits of the case, holding that the Counties’ CEQA claims were entirely preempted by the FPA, the purpose of which is to “facilitate the development of the nation’s hydropower resources” by centralizing regulatory authority over dams, reservoirs, and hydroelectric power plants in the federal government. The California Supreme Court granted the Counties’ petition for review but subsequently transferred the matter back to the Court of Appeal for reconsideration in light of Friends of the Eel River v. North Coast Railroad Authority (2017) 3 Cal.5th 677 (Friends), which held that the Interstate Commerce Commission Termination Act (ICCTA) does not necessarily preempt a State agency’ compliance with CEQA for a new railroad project, and that State, as a railroad operator, could voluntarily subject itself to compliance with CEQA without conflicting with the ICCTA. On remand, the Third District affirmed its earlier holding that CEQA was preempted by the FPA.

The California Supreme Court again granted the Counties’ petition for review to determine whether the FPA preempts CEQA when the state is acting on its own behalf and exercising discretion in relicensing a hydroelectric dam.

The California Supreme Court’s Decision on Preemption

A five justice majority of the California Supreme Court held that CEQA claims are preempted insofar as they conflict with the FPA’s licensing scheme, but not where CEQA is used to make decisions concerning matters outside federal jurisdiction or those compatible with the federal government’s exclusive licensing authority. Specifically, the court determined that any CEQA challenge to the ALP and the terms of the settlement agreement and license being considered by FERC were preempted by the FPA. However, because DWR’s compliance with CEQA was not limited to the FERC relicensing, the Counties’ broader challenges to the adequacy of DWR’s EIR were not preempted. The Court concluded that DWR could use the environmental conclusions reached through the CEQA process to aid its decision whether to accept FERC’s “staff alternative” or request modification to the terms of the license issued by FERC, which the FPA allows.

The Court discussed the federal and state law principles applicable to the case before it, including the presumption against preemption for a state-owned, or state-operated project. The FPA does not include an “express” preemption clause, so the issue was whether “conflict” or “field” preemption applied. The Court concluded that the distinction between the two types of preemption was not meaningful here, particularly considering the presumption that, absent a clear statement of Congressional intent that state regulation is preempted, federal law will not be interpreted as interfering with state-owned or state-operated projects. The Court also found federal caselaw applying “field” preemption to state regulatory schemes related to the FPA distinguishable because those cases addressed state attempts to regulate private actors seeking licensing under the FPA. The Court stated that CEQA, in the context of a state agency applying for a federal license, constitutes “self-governance” rather than traditional state regulation of private actors that has been held preempted in the past.

The Court acknowledged that state courts could not require a CEQA remedy inconsistent with federal law, including the FPA, but noted that the Counties had dropped their previous request to enjoin FERC’s licensing process pending DWR’s compliance with CEQA. The Court reasoned, however, that DWR’s compliance with both CEQA and the FPA was possible without creating any conflict. Specifically, DWR used CEQA analysis, in part, to determine whether it should accept a license from FERC containing the proposed terms or those modified by FERC staff. Similarly, the FPA allows applicants to amend their licensing applications or request that FERC modify the terms of the license. DWR could thus use the environmental conclusions reached in the CEQA process to make its own decisions and then make appropriate requests to FERC without intruding on FERC’s jurisdiction. Just as FERC was not required to issue a license wholly consistent with the terms of the settlement agreement, FERC retained jurisdiction to consider, but in no way be bound by, any subsequent requests from DWR. For these reason, environmental review at both levels of government did not overlap to invoke conflict preemption.

The Court also concluded that any preemption issues related to DWR’s adoption of specific mitigation measures demanded by the Counties were premature, as no court had ruled that any additional mitigation was required. The question before the Court was whether any CEQA challenge to DWR’s EIR was preempted by the FPA, the Court ruled such a challenge, in the abstract, was not inherently preempted. Additionally, the Court noted that it may be possible for DWR to adopt mitigation measures that are either outside of FERC’s jurisdiction or compatible with FERC’s licensing authority. Again, FERC could simply deny any request from DWR that conflicted with the FPA or FERC’s licensing authority.

In sum, where the Counties’ CEQA challenges seek to undermine a FERC license or associated terms, they are preempted by the federal government’s exclusive licensing authority under the FPA. However, Counties’ CEQA claims which implicate the sufficiency of an EIR to inform state self-governance and decision-making are not preempted.

The Concurring and Dissenting Opinion

Notably, the Chief Justice, and author of the Friends decision, filed a concurring and dissenting opinion. The Chief Justice agreed that any CEQA challenge to FERC’s licensing process including the settlement agreement was preempted but disagreed that broader CEQA challenges were not similarly preempted. The dissent reasoned that, in addition to “field” and “conflict” preemption, state law that constitutes an “obstacle” to the purposes and objectives of federal law would be similarly preempted. Here, given the history of federal caselaw concluding that state regulation of hydroelectric facilities is preempted by the FPA, and the express “savings clause” in the FPA reserving regulation of water rights to the states, the Chief Justice concluded that CEQA is an “obstacle” to the objectives and purpose of the FPA, particularly where the FPA licensing process included multiple equivalents of CEQA through the ALP and FERC’s compliance with NEPA and does not contemplate delays caused by state court review of CEQA compliance.

The dissent also concluded that CEQA was subject to “field” preemption because CEQA did not involve state regulation of water rights. The Chief Justice also noted that, while none of the federal FPA preemption cases addressed state-operated projects, the concept of “field” preemption (i.e., where Congress truly intends to “occupy the field”) is broad enough to preempt all state regulation, regardless of who the operator is.

Turning to Friends, the Chief Justice characterized her decision in that case as concluding that CEQA is exempt from preemption under the ICCTA as an example of “self-governance” by the State. Given the purpose of the ICCTA was to deregulate railroads, and thereby allow greater “self-governance” by railroad operators, the State’s voluntary compliance with CEQA was not preempted. In contrast, the dissent concluded that the FPA’s purpose and objectives is to vest exclusive regulation of hydroelectric facilities in FERC and to exclude all state regulation, with the exception of water rights. The Chief Justice concluded that, unlike the ICCTA, the FPA (including the federal caselaw interpreting the FPA) made it “unmistakably clear” that all state regulation of hydroelectricity facilities, except regulation of water rights, is preempted.

Lastly, the dissent concluded that finding CEQA only partially preempted was unworkable because a ruling that DWR’s CEQA compliance deficient would not impact FERC’s decision on whether to issue the license. Forcing DWR to perform additional analysis or consider additional mitigation or alternatives would be an exercise in generating paper, without any practical effect. As the Majority Opinion acknowledges, FERC has complete discretion to deny any request to alter the terms of the license, regardless of whether DWR believes such changes to be necessary to comply with CEQA. The dissent also found that requiring CEQA compliance in this case, where multiple environmental studies have been prepared for FERC’s consideration during the licensing process, would be redundant and have little practical benefit.

By Jordan Wright and Nathan George

California Supreme Court Holds that State Agency Compliance with CEQA is Not Preempted By the ICCTA

In Friends of the Eel River v. North Coast Railroad Authority (2017) 3 Cal.5th 677, the California Supreme Court held that the Interstate Commerce Commission Termination Act (ICCTA) does not preempt CEQA when a California public agency decides to undertake a new railroad project, even if the state agency later authorizes a private entity to operate the new rail line. The Court therefore concluded that the North Coast Railroad Authority (NCRA) was required to comply with CEQA prior to taking steps to reinitiate rail service on a segment of an interstate rail line that had gone out of operation for many years. The Court declined, however, to enjoin the ongoing operations of the railroad by NWPCo, the private operator. Because these operations had been occurring during the course of the litigation against NCRA, any such injunction would intrude into an area of activity that is preempted by the ICCTA, namely, private railroad operations.

The NCRA is a state agency created in 1989 for the purpose of resuming railroad freight service along a previously-abandoned route through Napa and Humboldt Counties. The northern portion of the line runs along the Eel River, while the southern portion, at issue in the case, runs along the Russian River.  In 2000, the Legislature authorized funding for NCRA’s program, with the express condition of CEQA compliance. NCRA subsequently contracted with NWPCo, a private company, to run the railroad. As part of the lease agreement between the two entities, NWPCo agreed that CEQA compliance by NCRA was a precondition to resumed operation. Accordingly, in 2007, NCRA issued a notice of preparation, and in June 2011, it certified a Final EIR. In July 2011, petitioners sued, challenging the adequacy of the EIR on a number of grounds. Concurrently, NWPCo commenced limited freight service along the Russian River. In 2013, NCRA took the unusual step of rescinding its certification of the Final EIR, asserting in explanation as follows: that ICCTA preempted California environmental laws; that the reinitiation of rail service was not a “project” under CEQA; and that the EIR NCRA had prepared had not been legally required. Although NCRA successfully removed the case to federal court, the case subsequently sent back to state court for a resolution of both the state CEQA claims and NCRA’s ICCTA preemption defense. The Court of Appeal sided with NCRA, finding that ICCTA was broadly preemptive of CEQA. The Supreme Court granted review.

Federal preemption is based on the Supremacy Clause of the United States Constitution, which provides that federal law is the supreme law of the land. Preemption can occur expressly, through the plain words of a federal statute, or can be implied, as when a court discerns that Congress intends to occupy an entire field of regulation, or when a court concludes that a state law conflicts with a federal purpose or the means of achieving that purpose. A federal statute can be preemptive on its face or as applied. There is a presumption against preemption, particularly in areas traditionally regulated by the states, which can only be overcome by a clear expression of intent (the Nixon/Gregory rule). The market participant doctrine is a related concept and holds that a public agency has all the freedoms and restrictions of a private party when it engages in the market (provided that the state does not use tools that are unavailable to private actors). The courts presume that Congress did not intend to reach into and preempt such proprietary marketplace arrangements, absent clear evidence of such expansive intent.

The Court began by recognizing that ICCTA does preempt state environmental laws, including CEQA, that interfere with private railroad operations authorized by the federal government. ICCTA contains an express preemption clause giving the federal Surface Transportation Board (STB) jurisdiction over railroad transportation (including operation, construction, acquisition, and abandonment). ICCTA’s purpose was both unifying (to create national standards) and deregulatory (to minimize state and federal barriers). Although ICCTA is a form of economic regulation, state environmental laws are also economic in nature when they facially, or as applied, dictate where or how a railroad can operate in light of environmental concerns. Such state laws act impermissibly as “environmental preclearance statutes.” These legal principles, however, did not extend to the actions of NCRA in this case. Just as a private railroad company may make operational decisions based on internal policies and procedures, and may even modify its operations voluntarily in order to reduce environmental risks and effects, so too may a state, in determining whether to create a new railroad line, subject itself to its own internal requirements aimed at environmental concerns. In the latter context, though, a state operates through laws and regulations, as opposed to purely private policies. When a state acts in such a manner, its laws and regulations are a form of self-governance, and are not regulatory in character. CEQA is an example of such an internal guideline that governs the process by which a state, through its subdivisions, may develop and approve projects that affect the environment. Viewed in this context, CEQA is part of state self-governance, and is not a regulation of private activity.

Although the market participant doctrine does not directly apply, being mainly applicable in Commerce Clause jurisprudence, the doctrine supports by analogy the view that that California was not acting in a regulatory capacity in this case. CEQA is analogous to private company bylaws and guidance to which corporations voluntarily subject themselves. By imposing CEQA requirements on the NCRA, the state was not “regulating” any private entity, but rather was simply requiring that NCRA, as one of its subdivisions, conduct environmental review prior to making a policy decision to recommence the operation of an abandoned rail line. If Congress had intended to preempt the ability of states to govern themselves in such a fashion, any such intention should have been clear and unequivocal. The Court found no such intent in the ICCTA.

The Court’s remedy, however, was cognizant of the narrowness of its holding. The Court concluded that, because NWPCo is currently operating the line, the California Judiciary could not enjoin that private entity’s operations even if, on remand, the lower state courts found problems with NCRA’s CEQA documentation. An injunction under CEQA against NWPCo would act as a regulation, by having the state dictate the actions to private railroad operator. Such action would go beyond the state controlling its own operations.

James G. Moose & Sara Dudley

Supreme Court will hear Friends of the Eel River

The California Supreme Court has granted a petition for review of Friends of the Eel River v. North Coast Railroad Authority. We previously wrote about the case here.

Friends of the Eel River and Town of Atherton created an appellate court split on the issue of federal preemption of railway projects. The court in Atherton held that the market participant doctrine, whereby proprietary state actions are protected from federal preemption, applies to the High Speed Rail. Friends of the Eel River disagreed. The court held that even if the decision to prepare an EIR were proprietary, a writ proceeding by a private group challenging the adequacy of that review would be regulatory, and not part of the proprietary action.

Recently, the Surface Transportation board issued a decision holding that federal law preempts application of CEQA to a portion of the High Speed Rail line. In reading this conclusion, the court sided with Friends of the Eel River and disagreed with Atherton on the market participant issue.

Appellants are set to file their opening brief on the merits at the end of February.

On Remand, Trial Court Must Consider Whether Federal Mining Law Preempts California’s Moratorium on Suction Dredge Mining

In the recently published decision of The People v. Rinehart (Oct. 8, 2014) Case No. C074662, the Third District Court of Appeal considered whether criminal enforcement provisions of the Fish and Game Code addressing suction dredge mining are preempted by federal law. Although the court did not conclude that California’s ban on dredge and suction mining is preempted, the court left open the possibility that it is.

Section 5653 of the Fish and Game Code requires those operating vacuum or suction dredge mining equipment to obtain a permit from the California Department of Fish and Wildlife. A permit may be issued if the Department determines the proposed suction dredge mining “will not be deleterious to fish.”

In 2009, the Governor signed Senate Bill 670, prohibiting the Department from issuing new permits under 5653, and imposing a statewide moratorium on instream suction dredge mining until the Department has undertaken the conditions required by Fish and Game Code section 5653.1. Under that provision, the Department must satisfy numerous requirements, including environmental review of the standing 1994 suction dredge mining regulations, before the moratorium is lifted.

This case began when the District Attorney of Plumas County filed a criminal complaint against Defendant Rinehart alleging that he violated Fish and Game Code section 5653 by operating suction dredge mining equipment in waters closed to that type of equipment. Rinehart demurred to the complaint and argued that Fish and Game Code sections 5653 and 5653.1 operated together to create a de facto ban on suction dredge mining in California. Rinehart reasoned that this de facto ban was an unconstitutional interference with his federally-protected mining rights under the Mining Act of 1872. The trial court overruled the demurrer, holding that Fish and Game Codes sections 5653 and 5653.1 were not preempted by federal law. The trial court thereafter convicted Rinehart for possessing and using vacuum and suction dredge equipment without a permit. Rinehart appealed.

The Court of Appeal reversed and remanded the case to the trial court for further consideration of the preemption issue. In an opinion authored by Justice Hull, the court explained the constitutional principles at play, noting that Congress has authority over the regulation of federal lands under the United States Constitution Property Clause. But not all state regulation of federal land is preempted under the Property Clause. States are free to enforce state criminal and civil law on federal lands so long as the state law does not conflict with the “operation or objectives of federal law.” In this case, the Mining Act of 1872 sets forth the federal government’s stance on mining and mineral exploration on federal land. The act encourages surveying and mining for valuable minerals, and if a private citizen perfects a claim in compliance with the act, the claimant secures exclusive right of possession (but not title) and use of the claim.

The Court of Appeal concluded that the factual record before it insufficient to reach a decision. Instead, the court identified two discrete issues for the trial court to address on remand: (1) Does Fish and Game Code section 5653.1 operate to prohibit the issuance of permits required by section 5653; and if so, (2) does this prohibition on dredge mining permits render the defendant’s exercise of federal mining rights impracticable? Although the court remanded the issue to the trial court for further consideration, the decision nevertheless represents a considerable victory for proponents of dredge mining in the state.

First District Holds CEQA Review of Freight Operations Preempted by Federal Law

On September 29, 2014, the First District Court of Appeal affirmed the trial court’s determination that federal law preempted review of the EIR certified by North Coast Railroad Authority (NCRA) approving Northwestern Pacific Railroad Company’s (NWPRC) freight operations on NCRA’s tracks. The court also rejected petitioners’ claims that NCRA and NWPRC were estopped from arguing that CEQA did not apply. Friends of the Eel River v. North Coast Railroad Authority, Case No. A139222 (September 29, 2014).

The Interstate Commerce Commission Termination Act (ICCTA) was enacted to eliminate outdated, burdensome regulatory restrictions on the rail industry. ICCTA grants the Surface Transportation Board (STB) exclusive jurisdiction over rail operations, whether or not they take place entirely within one state. The rail line at issue in this dispute was the Northwest Pacific Railroad line, which extends from Arcata to Lombard, with its geographical center in Willits. Above Willits lies the Eel River Division of the line, and below is the Russian River Division. The line, in serious disrepair, secured state funds for repair work on the Russian River Division. NCRA indicated it would issue a categorical exemption for the repair work, but would prepare an EIR for the freight operations within that Division. As part of a 2008 settlement with the City of Novato, which had challenged the notice of exemption, the parties entered a consent decree requiring NCRA to perform certain work and comply with CEQA in doing so. In 2011, NCRA certified an EIR approving resumed freight rail service from Willits to Lombard. Petitioners challenged this certification and sought to halt rail operations pending additional CEQA review. In 2013, NCRA passed a resolution rescinding the EIR certification, stating that the EIR was not a legal prerequisite to NWPRC’s operation of the line, given STB’s exclusive jurisdiction over the line. Petitioners challenged the railroads’ claim of federal preemption, and argued in the alternative that the railroads were estopped from asserting preemption given their prior agreement to comply with CEQA. The court held that a state statute requiring environmental review as a condition to railroad operations is preempted by ICCTA. The court only found support for its holding in lower court decisions, but noted there was no contradictory federal appellate court decision. In concluding that ICCTA expressly preempts CEQA review of proposed railroad operations, the court distinguished the recent Third District decision in Town of Atherton v. California High Speed Rail Authority (2014) 228 Cal.App.4th 314, which required CEQA analysis as part of the process for determining where to place a rail line, noting that the issue in Atherton differed from this case’s issue of resuming rail operations. The court was not persuaded that the market participant doctrine, which counteracts preemption where government agencies act as property owners or purchasers, applied here. The court noted that the doctrine is typically used defensively. Even if the decision to prepare an EIR were proprietary, a writ proceeding by a private citizen’s group challenging the adequacy of the review would be regulatory in nature and would not be part of that proprietary action. The court acknowledged that its holding contradicted Atherton, and respectfully disagreed with the Atherton court’s analysis of the market participant doctrine.

On the issue of judicial estoppel, the court noted that estoppel was an equitable doctrine and thus its application was discretionary. Regardless, the court found NCRA and NWPRC never asserted a contrary position on federal preemption in a prior judicial or quasi-judicial proceeding. Even if the elements of judicial estoppel were satisfied, the trial court had declined to apply the doctrine due to policy reasons, stating that estoppel would burden STB’s exclusive jurisdiction to regulate freight operations. Neither could NCRA’s preparation of an EIR estop its current position that no EIR was required, as there was no final ruling on the merits on the issue of federal preemption of CEQA with respect to railroad operations.