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Platte River Whooping Crane Critical Habitat Maintenance Trust v. Federal Energy Regulatory Comm'n

Citation: 19 ELR 20883
No. No. 88-1425, 876 F.2d 109/(D.C. Cir., 05/19/1989) Remand for evaluation of license conditions

The court holds that the Federal Energy Regulatory Commission's (FERC's) refusal of a request to assess the need for conditions to protect wildlife in two hydroelectric interim licenses was an abuse of discretion under the Federal Power Act (FPA). Petitioner, a trust formed as part of a litigation settlement, represents wildlife interests in the Platte River region and asked to intervene in FERC proceedings considering the applications of two public power districts for renewal of their long-term hydroelectric operating licenses. FERC denied the trust's petition, which asked that the Commission consider the need for environmental protective conditions in the interim annual licenses to be issued pending completion of the long-term renewal applications. The court initially observes that it might not have jurisdiction under the FPA to review petitioner's claims challenging the five-year delay in completing the relicensing proceeding and FERC's failure to consult with the Fish and Wildlife Service (FWS) under the Endangered Species Act (ESA) before issuing the annual licenses, since neither issue was raised in the petition to FERC. Since the court is able to resolve the appeal based on the claim that petitioner did raise before FERC, it declines to decide either of these two issues.

The court holds that although issuance of interim licenses pending completion of renewal proceedings is a ministerial, nondiscretionary act, FERC does have authority to negotiate conditions on interim licenses. On one of the licenses at issue, FERC actually had authority to impose conditions unilaterally, due to an express reservation of such authority in the original long-term license. The court holds that FERC's refusal to consider the need for protective conditions was an abuse of discretion under the FPA. FERC's argument that it lacked sufficient information under the FPA's substantial evidence standard of review to exercise its authority to formulate license conditions is inapposite, since petitioner was not asking for the imposition of specific conditions but rather for the commencement of a review to assess the need for such conditions. The FPA's substantial evidence standard is no more than the application of the arbitrary and capricious standard to factual findings, and FERC's refusal to consider the need for protective conditions fails to satisfy that standard. FERC had considerable evidence that protective conditions might be appropriate, and petitioner offered to present additional evidence if given the opportunity. FERC was already aware that the two hydroelectric projects presented serious environmental threats to wildlife, as a result of explicit congressional determinations madeduring the 1986 FPA amendment process and earlier FERC proceedings. Moreover, although assessment of the need for protective conditions will be considered in the relicensing proceedings, that process had already been delayed for several years when petitioner made its request, and FERC knew the proceedings would continue to be delayed. A promise to consider the issue in the relicensing proceedings is, in any case, insufficient, since irreversible environmental damage could occur in the interim period. This conclusion is supported by the Department of the Interior's request to FERC that it enter into formal consultation with the FWS under the ESA with respect to issuance of the annual licenses and Congress' explicit endorsement in the 1986 FPA amendments of the view that FERC should consider environmental values when granting annual licenses.

Counsel for Petitioner
Abbe David Lowell, Peter J. Kirsch
Brand & Lowell
923 15th St. NW, Washington DC 20005
(202) 662-9700

Counsel for Respondent
Hanford O'Hara
Federal Energy Regulatory Commission
825 N. Capitol St. NE, Rm. 3000, Washington DC 20426
(202) 357-5200

Before: WALD, Chief Judge and EDWARDS and SILBERMAN, Circuit Judges.