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Rainsong Co. v. Federal Energy Regulatory Comm'n

ELR Citation: 26 ELR 20832
Nos. No. 93-71035, 78 F.3d 1521/(9th Cir., 03/19/1996)

The court holds that the Federal Energy Regulatory Commission (FERC) failed to comply with Federal Power Act (FPA) §4(e) in denying an application for a license to build a hydroelectric plant in the Olympic National Forest. The court first holds that as amended, §4(e) requires FERC to analyze whether a proposed hydropower project will be consistent with the purposes of the forest. This analysis requires that FERC balance development and nondevelopment factors. The balancing of values is an integral part of FERC's application review process. The court holds that FERC did not comply with §4(e) when it denied the license application based on an environmental assessment (EA) it prepared with the U.S. Forest Service. Also, FERC erred when it declared in its order denying the license application that it need not reach a balancing test. The EA that FERC relied on did not balance the benefits of hydroelectric power with its environmental impact. Although silence does not prove that FERC violated §4(e), there is no substantial evidence in the record to support the conclusion that FERC did balance the competing values. Finally, the court holds that FERC and the Forest Service should focus their analysis on the statutorily prescribed purposes of the forest reservation, rather than looking only to the 1990 forest plan. The court remands the action so that FERC may engage in balancing development and nondevelopment issues raised by the proposed project while carrying out its statutory duty to decide whether the project is consistent with the purposes of the Olympic National Forest.

Counsel for Petitioner
Christopher D. Williams
7 N. Main St., San Andreas CA 95249
(209) 754-3883

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

Before Goodwin, Sneed, and Kleinfeld, JJ.