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

ELR Citation: 31 ELR 20702
Nos. No. 99-70373, 253 F.3d 1161/(9th Cir., 06/14/2001)

The court denies environmental groups' petitions to review the Federal Energy Regulatory Commission's (FERC's) decision not to bring an enforcement action against a city for violating the terms of an operating license for a hydroelectric project on the Cowlitz River in Washington. In 1967, the city and a Washington State environmental agency entered into an agreement whereby the city agreed to maintain specified levels of fish populations in the river. Thirty years later, environmental groups filed a complaint before FERC alleging that the city was in violation of the agreement. FERC summarily dismissed the complaint because the agreement was a private contract between the city and the state agency, thus, violations of the agreement did not amount to violations of the license. The court first holds that although FERC was correct in concluding that any violations of the agreement did not constitute violations of the license, it erred in summarily dismissing the groups' complaint. The groups raised material issues of fact that would, if proven true, amount to license violations. Moreover, FERC's preference for addressing the problem of potential license violations and declining fish stocks through the relicensing process does not constitute a valid legal basis for disposing of the complaint. Nevertheless, the court holds that FERC did not err in failing to bring an enforcement action against the city. An agency's decision not to take enforcement action is presumed to be immune from judicial review unless Congress has provided guidelines for the agency to follow in exercising its enforcement powers. No such guidelines are provided in the Federal Power Act; thus, the court lacks jurisdiction to compel FERC to enforce the terms of the license. Likewise, the court holds that FERC did not abuse its discretion in failing to investigate the groups' complaint or to hold an evidentiary hearing.

Counsel for Petitioners
Jonathan I. Feil
Simburg, Ketter, Sheppard & Purdy
999 Third Ave., Ste. 2525, Seattle WA 98104
(206) 382-2600

Counsel for Respondent
Douglas W. Smith, General Counsel
Federal Energy Regulatory Commission
825 N. Capitol St. NE, Washington DC 20426
(202) 208-0200

Fletcher, J. Before Fisher and Schwarzer,1 JJ.