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Granholm ex rel. Mich. Dep't of Natural Resources v. Federal Energy Regulatory Comm'n

Citation: 29 ELR 21257
No. No. 98-1276, 180 F.3d 278/(D.C. Cir., 06/11/1999)

The court holds that a state's failure to seek rehearing of the Federal Energy Regulatory Commission's (FERC's) order on remand in a case involving a hydroelectric power license application deprives the court of jurisdiction. After denying the state's initial motions for rehearing, FERC filed an unopposed motion for voluntary remand so that it could reconsider its decision in light of new case law. FERC's motion was granted, and it issued an order on remand further elucidating, but adhering to, its prior ruling. Without seeking rehearing of the remand order, the state again petitioned for judicial review, asserting that FERC should have considered its environmental recommendations under Federal Power Act (FPA) § 10(j).

The court first holds that the state's failure to seek rehearing of FERC's order on remand deprives the court of jurisdiction. FPA § 313(a) provides that no proceeding to review any order of FERC may be brought by any person unless such person has made an application to FERC for a rehearing. This petition-for-rehearing requirement is mandatory, even if the point sought to be appealed was raised, considered, and rejected in the original proceeding. The court, therefore, dismisses the case.

Counsel for Petitioner
Pamela J. Stevenson, Ass't Attorney General
Attorney General's Office
Law Bldg.
525 W. Ottawa, Lansing MI 48909
(517) 373-1110

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

Before Ginsburg and Sentelle, JJ.