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Sierra Ass'n for Env't v. Federal Energy Regulatory Comm'n

Citation: 17 ELR 20018
No. No. 85-7390, 791 F.2d 1403/(9th Cir., 06/17/1986)

The court holds that petitioner's failure to seek rehearing before the Federal Energy Regulatory Commission (FERC) within 30 days of FERC's order staying the effective date of a hydroelectric project license is a jurisdictional bar to judicial review of the order. The court observes that the Federal Power Act affords it jurisdiction to hear a challenge to FERC orders only if the petitioner sought rehearing before FERC within 30 days of the order and filed for judicial review within 60 days after FERC's final order on the rehearing application. The court holds that petitioner failed to file petitions for rehearing and for judicial review within the statutory deadlines. Petitioner's request to terminate the hydroelectric project license, filed nine months after FERC issued the stay, was not intended as a timely petition for rehearing of FERC's stay order. The request to terminate was a demand that FERC perform statutory duties, not a request to reconsider its stay order. Even if the Sierra Association for Environment could bootstrap its objections to the license to the applicant's timely petitions for rehearing and reconsideration of the stay order, petitioner never presented its specific arguments in an application for rehearing directed to FERC. The court holds that petitioner's timely petition for rehearing of FERC's February 1985 order denying petitioner's request to terminate the applicant's license is an improper collateral attack on the earlier stay order. The request to terminate the license, based upon the fact that construction did not begin by a specified deadline, cannot succeed unless the earlier order staying the effective date of the license is vacated. The Federal Power Act does not allow a timely petition for review to apply to another FERC order for which time limitations have run.

Counsel for Petitioner
Glenn M. Kottcamp
616 P St., Fresno CA 93721
(209) 264-5000

Counsel for Respondent
Joshua Z. Rokach
825 N. Capitol St. NE, Rm. 3345, Washington DC 20426
(202) 357-8233

Counsel for Intervenor
Christopher D. Williams
McCarty, Noone & Williams
Suite 3206, 490 L'Enfant Plaza East, Washington DC 20024
(202) 554-2955

Before Sneed and Poole, JJ.