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Mt. Lookout-Mt. Nebo Property Protection Ass'n v. Federal Energy Regulatory Comm'n

Citation: 28 ELR 21258
No. 97-1376 et al., 143 F.3d 165/(4th Cir., 05/01/1998)

The court holds that the Federal Energy Regulatory Commission's (FERC's) decision to approve a city's application to amend a hydroelectric power license did not violate the National Environmental Policy Act (NEPA) or the Federal Power Act (FPA). The application proposed the running of a 9.6-mile powerline across the Meadow River in West Virginia. The court first holds that the city and FERC satisfied the notice requirements of the FPA. The city's application asserts that it notified each property owner whose property would be crossed by the proposed powerline, as well as state and federal agencies, of its application. Moreover, FERC found that these notices were in fact provided. In addition, the record shows that FERC consulted with the county where the powerline would run, and the county approved of the project and took affirmative steps in support of it. Likewise, the city contacted the National Park Service and acted on its suggestions to move the location of the powerlines.

The court next holds that it will not disturb FERC's conclusion that no environmental impact statement (EIS) was required for the application because FERC's analysis is reasonable and supported by the record. In compliance with NEPA, FERC prepared an environmental assessment in which it evaluated the impact of the proposed revisions. Following its lengthy analysis, FERC concluded that both of the proposed powerline routes would impact the environment similarly, and neither would impact it significantly. The court also holds that FERC considered alternatives as required by NEPA, and the range of alternatives it considered was reasonable, particularly in view of the marginal difference in environmental impact between the two viable alternatives. Between the city's proposal and the environmental groups' proposal, FERC found that the route proposed by the city was preferable because it was shorter, less costly, and would reduce the short-term and long-term impacts of the project by 12 percent. The court then holds that the environmental groups do not have a right to challenge the city's visual resource protection plan for the project, Last, the court holds that it will not review several arguments raised by the environmental groups on appeal because they were not raised before FERC.

Counsel for Petitioner
Richard Roos-Collins
Natural Heritage Institute
114 Sansome St., Rm. 1200, San Francisco CA 94104
(415) 288-0550

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

Before Murnaghan and Motz, JJ.