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Shafer & Freeman Lakes Environmental Conservation Corp. v. Federal Energy Regulatory Commission

ELR Citation: 51 ELR 20051
Nos. 19-1066, (D.C. Cir., 03/26/2021)

The D.C. Circuit granted in part, denied in part, and dismissed in part a petition to review FERC's approval of changes to dam operations in northwest Indiana after determining that the hydroelectric dam partially caused mussel deaths, as well as FWS' biological opinion (BiOp) upon which the Commission relied when issuing its approval. Municipalities and a nonprofit group argued that FWS used a "flawed foundation" in its scientific analysis for the BiOp and that FERC had erred by "blindly accepting" the BiOp as representing the "best science." The court found that many of the petitioners' challenges to the validity of the BiOp were not raised on rehearing before FERC and thus were not properly before the court; nor did it find error in the agencies' expert scientific analyses. It did, however, find the agencies failed to adequately explain why the new dam procedures did not violate a regulation prohibiting FWS from requiring more than "minor" changes to the Commission's proposal for dam operations. It therefore granted in part, denied in part, and dismissed in part the petition for review, and remanded to FERC without vacatur for further proceedings.