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Missouri Coalition for the Env't v. Federal Energy Regulatory Comm'n

ELR Citation: 38 ELR 20263
Nos. No. 08-1390, (8th Cir., 10/23/2008)

The Eighth Circuit denied a petition for review of a Federal Energy Regulatory Commission (FERC) order authorizing the reconstruction of the Taum Sauk Pumped Storage Project, a hydroelectric generating plant in the Missouri Ozarks. In 2005, the upper reservoir of the project collapsed, and the operator sought authorization to reconstruct it. FERC issued an environmental assessment (EA) concluding that the reconstruction would not be a major federal action significantly affecting the quality of the human environment. It therefore approved the operator's request to reconstruct the upper reservoir. Because the license authorizing the project will be up for renewal in 2010, environmental groups filed suit challenging FERC's decision to only consider impacts of reconstruction in its EA. The petitioners argued that FERC's decision not to include the impacts of a relicensed operation in its EA was arbitrary and capricious under the National Environmental Policy Act. Relicense of the operation, however, is not a reasonably foreseeable future action. Moreover, the compliance regulations governing reconstruction are separate and distinct from the more stringent regulations governing relicensing.