Pre-Enforcement Review of Agency Decision

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7^th Circuit Court of Appeals

Case Name: Driftless Area Land Conservancy v. Rural Utilities Service

Case No.: 22-1737

Officials: Easterbrook, Hamilton, and Brennan, Circuit Judges

Focus: Pre-Enforcement Review of Agency Decision

The Cardinal-Hickory Creek Project is a planned electric transmission line that would deliver wind energy from Iowa to Southern Wisconsin. The utility companies in charge of the planned electric transmission line requested permission from the Fish and Wildlife Service (FWS) to construct it through the Upper Mississippi River National Wildlife and Fish Refuge, along an existing road and railroad. The Rural Utilities Service conducted an environmental impact statement under the National Environmental Policy Act (NEPA), 42 U.S.C. 4332(2)(C), which was adopted by the FWS, leading to the issuance of a right-of-way permit.

During ongoing litigation, the utility companies proposed a slight alteration to the route and asked the FWS to consider a land exchange. However, it was later discovered that the FWS had based its original decision on incorrect easement documents. Consequently, the FWS revoked the initial determination and permit but agreed to review the proposed land exchange. The district court ruled in favor of the environmental groups but did not halt the construction of the project on private land outside the Refuge.

The Seventh Circuit partially vacated the ruling, rejecting arguments claiming that the case had become moot. While the FWS had revoked the compatibility determination, it had not categorically ruled out issuing a new permit, and its current position lacked finality. The hardships faced by the plaintiffs were not solely due to the FWS’s consideration of a land exchange, but rather from the Utilities’ decision to build on their own land. Thus, the district court erred in evaluating the merits of the proposed land exchange. Additionally, the plaintiffs’ request for relief against the Utilities under NEPA was deemed premature because adopting the environmental impact statement did not constitute a conclusive decision-making process.

Decided 07/19/23

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