ELR Citation: ELR 20015
No(s). 90-70448 (9th Cir. Sep 30, 1991)

The court holds that the environmental assessment (EA) and the finding of no significant impact (FONSI) prepared by the Federal Energy Regulatory Commission (FERC) satisfy the National Environmental Policy Act (NEPA) and the Federal Power Act after its licensing of a hydroelectric project was revoked and remanded for failure to consider the environmental impacts of the project. The court holds that FERC's EA satisfies the Federal Power Act's requirement that FERC prepare a comprehensive plan before issuing a license. The court holds that the EA fully supports FERC's decision not to prepare an environmental impact statement (EIS) and finding that the hydroelectric power facility will have no significant adverse consequences. The court holds that FERC did not apply an erroneous burden of proof or require petitioner to prove her claims to a scientific certainty in hearings before the agency. The court holds that FERC may allow modifications to the license based on post-licensing monitoring where FERC meets pre-licensing requirements. The court further holds that FERC properly considered the economic viability of the project. Finally, the court lacks jurisdiction to review a letter from the U.S. Forest Service to FERC requesting that FERC prepare an EIS. The court holds that the Forest Service did not violate NEPA by failing to prepare an EA or EIS on the project because FERC was the lead agency.

[A previous appeal in this case is published at 18 ELR 21276.]

Counsel for Petitioner
Glenn Kottcamp
308 Main St., Nevada City CA 95959
(916) 265-3093

Counsel for the Respondent
Jeffrey Kehne, Stuart Shelton
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Virginia Cahill
McDonough, Holland & Allen
555 Capitol Mall, Ste. 950, Sacramento CA 95814
(916) 444-3900

Brunetti, J. (before Schroeder and Norris, JJ.)