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LaFlamme v. Federal Energy Regulatory Comm'n

Citation: 18 ELR 21276
No. No. 85-7571, 852 F.2d 389/27 ERC 2018, 2232/(9th Cir., 03/18/1988, 07/05/2088) FERC license revoked

The court holds that the Federal Energy Regulatory Commission (FERC) violated the National Environmental Policy Act (NEPA) and the Federal Power Act (FPA) by issuing a hydroelectric project license without first preparing an environmental impact statement (EIS) and creating a comprehensive development plan for the whole waterway. The court first holds that the FPA requirement that construction commence within two years after issuance of a license does not justify FERC's failure to comply with NEPA before issuance. The court also holds that leaving this license in effect pending FERC's reconsideration would not necessarily avert the irreparable financial harm alleged by the project operator, because other conditions for the project's profitable operation remain unsatisfied. The court amends an earlier ruling to suspend, rather than vacate, the license pending FERC's reconsideration of the issues raised by the petitioner.

The court holds that FERC's decision not to file an EIS was not reasonable. FERC must prepare an EIS if substantial questions are raised as to whether a project may cause significant environmental degradation. The petitioner raised such substantial questions based on the project's site-specific impacts on recreational use and visual quality and its cumulative impacts with other projects in the area, and FERC did not adequately address those questions. The court holds that FERC violated NEPA's procedural requirements by failing to prepare either an environmental assessment or a finding of no significant impact justifying its decision not to prepare an EIS. The court also holds that FERC violated NEPA by failing adequately to explain how the license's mitigation conditions will render the project's adverse impacts on recreational use and visual quality insignificant. In fact, those impacts have not yet even been identified. FERC also violated its duty to assess the project's consequences independently by adopting the project operator's proposed mitigation measures verbatim. The court also holds that FERC improperly relied on a planned post-licensing study. NEPA requires consideration of environmental impacts and the effectiveness of mitigation measures before a licensing decision is made; FERC proposes to obtain information essential to that consideration only after the decision is made. The court also holds that the public controversy over the project indicates that substantial questions have been raised regarding whether it may significantly degrade the environment. FERC has not satisfied NEPA's requirement that it explain why the petitioner's arguments do not create a public controversy based on potential environmental consequences.

The court holds that FERC improperly relied on an EIS previously prepared for another project to evaluate the cumulative impacts of all the proposed projects in the area. The previous EIS evaluated only the impacts of that project. The court also holds that FERC improperly concluded that the proposed project does not have the potential for significant adverse cumulative environmental impacts. FERC considered the project in isolation, without regard to its cumulative impacts, and its decision not to prepare an EIS on those impacts was unreasonable.

The court holds that FERC violated the FPA requirement that it prepare a comprehensive plan for developing the waterway as a whole. The record does not include a comprehensive analysis or even refer to the entire water system of which the project is a part. Therefore, it does not show that FERC considered all issues relevant to the public interest, as the FPA requires.

Counsel for Petitioner
Glenn M. Kottcamp
1754 E. Bullard Ave., Fresno CA 93710
(209) 225-3447