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Conservation Law Found. v. Federal Energy Regulatory Comm'n

Citation: 30 ELR 20693
No. No. 99-1035, 216 F.3d 41/(D.C. Cir., 06/23/2000)

The court denies petitions to review the Federal Energy Regulatory Commission's (FERC's) relicensing of a hydroelectric project in Maine. The petitioners argue that FERC's rejection of minimum flow requirements in a branch of the Penobscot River that is blocked from receiving water due to a dam located in the project area, violated the Federal Power Act and the National Environmental Policy Act (NEPA). The court first holds that FERC properly treated the existing conditions at the channel as the baseline "no action" option. The language of the Federal Power Act gives FERC the leeway to conduct its comparative assessments using existing conditions as a baseline. The court next holds that FERC gave equal consideration to environmental and recreational (nonpower) values, even though it did not assess them in economic terms. The fact that FERC assigned dollar figures to some costs does not require that it do the same for nonpower benefits. The court additionally holds that FERC considered the alternative of energy conservation, but concluded that mills on the river had recently increased energy efficiency and that no reliable evidence supported petitioners' view that enormous conserved power potential still existed at the mills. Moreover, FERC did not rely on unsupported claims that the increased cost of channel flows would result in job losses at the mills. Finally, the court holds that FERC did not err in failing to make a Native American tribe a consulting party in the renewal process because the tribe did not establish legal title to islands in the river.

Counsel for Petitioners
Carol A. Blasi
Conservation Law Foundation
21 E. State St., Montpelier VT 05602
(802) 223-5992

Counsel for Respondent
Beth G. Pacella
Federal Energy Regulatory Commission
825 N. Capitol St. NE, Washington DC 20426
(202) 208-0200

Before Tatel and Garland, JJ.