In County of Butte v. Department of Water Resources, the Supreme Court unanimously concludes that the Federal Power Act to some extent preempts California environmental regulations regarding the state Department of Water Resources’ application to renew its federal license to operate hydroelectric projects. But the scope of the preemption is disputed, with the 5-justice majority finding less preemption than the dissenters.

The justices all agree the California Environmental Quality Act can’t interfere with a settlement agreement reached as part of licensing proceedings with the Federal Energy Regulatory Commission. But the majority opinion by Justice Goodwin Liu holds CEQA can require that DWR consider in an environmental impact report whether to seek certain mitigation measures by amending its license application or by seeking reconsideration once FERC has issued a license.

In a 38-page concurring and dissenting opinion that is longer than the court’s opinion, Chief Justice Tani Cantil-Sakauye, joined by Justice Carol Corrigan, writes that “[t]he scope of preemption . . . is considerably broader” than the majority finds. The Chief Justice asserts “[t]he mitigation measures required by CEQA, enforced by the equally compulsory mitigation monitoring program, create a competing state regulatory regime that stands as a direct obstacle to the accomplishment of the congressional purpose and objective of vesting unchallenged regulatory authority over hydropower in FERC.”

The court affirms in part and reverses in part the Third District Court of Appeal opinion it depublished when it granted review.


Bob Egelko in the San Francisco Chronicle: “State can seek environmental safeguards for Oroville Dam beyond federal regulations, California Supreme Court rules.”

CEQA not preempted by federal railroad law for state-owned railroads.