Jump to Navigation
Jump to Content

Friends of the River v. Federal Energy Regulatory Comm'n

ELR Citation: 13 ELR 21020
Nos. No. 82-2022, 720 F.2d 93/(D.C. Cir., 10/11/1983)

The court rules that the Federal Energy Regulatory Commission's (FERC's) failure to discuss reasonable alternatives to a hydroelectric project in its environmental impact statement (EIS) did not require remand of the project's license, since FERC cured the defect by discussing the alternatives in an administrative order. The court first rules that FERC complied with the Federal Power Act (FPA) in granting the license. Substantial evidence in the record supports FERS's finding that the project is needed to meet local power demand and that alternative power sources are inadequate. FERC was within its discretion in not considering the alternative of purchasing power from other regions.

Turning to the National Environmental Policy Act (NEPA) challenges, the court rules that FERC need not have considered the project's impact on water supply, since the water management plans involving the project are not concerte enough to merit review. The court then rules that NEPA did not require FERC to consider purchase of power from outside the region as an alternative to licensing the project. FERC's decision to consider only instate alternatives was reasonable given FERC's limited manpower and the difficulties of forecasting the availability of out-of-state power. However, the agency violated NEPA because it did not include its analysis of power purchasing alternatives in the EIS. The court declines to remand the license, though, holding that a remand would not further the policies of NEPA because FERC presented an analysis in the order denying a rehearing on the license. Finally, the court rules that FERC need not prepare a supplemental EIS in light of revised energy forecasts released after the administrative record had closed.

A dissent would hold that FERC violated the FPA by arbitrarily and capriciously setting limits on its consideration of the availability of out-of-state power, and violated NEPA by failing to consider the reasonable alternative of purchasing out-of-state power. Further, the dissent would hold that the order denying rehearing did not cure the fault in the EIS since the order failed to discuss reliance on out-of-state utilities and the order was not circulated for public comment.

Counsel for Petitioners
Michael B. Freund, Michael R. Sherwood
Sierra Club Legal Defense Fund, Inc.
2044 Fillmore St., San Francisco CA 94115
(415) 567-6100

Counsel for Respondent
Barbara J. Weller, Deputy Solicitor; Joshua A. Rokach
Office of the General Counsel
Federal Energy Regulatory Commission, Washington DC 20426
(202) 357-8470

Counsel for Intervenors
Robert C. McDiarmid, Frances E. Francis, Marc R. Poirier
Spiegel & McDiarmid
2600 Virginia Ave. NW, Washington DC 20037
(202) 333-4500

Before: GINSBURG and SCALIA, Circuit Judges, and BAZELON, Senior Circuit Judge.