Platte River Whooping Crane Critical Habitat Maintenance Trust v. Federal Energy Regulatory Comm'n

Nos. 90-1397 et al. (D.C. Cir. September 11, 1992)

The court denies a request for rehearing en banc of its prior decision, which held that the Federal Energy Regulatory Commission (FERC) reasonably exercised its authority to impose wildlife protective conditions and flow rates in the annual licenses issued to two hydroelectric power facilities. A judge concurring in the denial notes that the court's misplacement of part of the petitioner's filings, which caused the original panel to indicate erroneously that petitioners at that stage had not raised the issue of whether FERC properly consulted with the U.S. Department of the Interior concerning the environmental conditions FERC placed on annual licenses, is not a significant error. The concurring judge also notes that although the case involves the underlying jurisdictional issue of whether a party has standing to challenge the failure of one government agency to consult with another government agency when required by statute, the consultation issue was raised only tangentially and is therefore inappropriate for decision.

[The court's prior decisions in this case are published at 19 ELR 20883 and 22 ELR 21167.]

Counsel for Petitioner
Abbey Lowell
Brand & Lowell
923 15th St. NW, Washington DC 20005
(202) 662-9700

Counsel for Respondent
Jerome M. Feit, Solicitor
Federal Energy Regulatory Commission
825 N. Capitol St. NE, Washington DC 20426
(202) 208-0177

Before: MIKVA, Chief Judge, WALD, EDWARDS, RUTH B. GINSBURG, SILBERMAN, BUCKLEY, WILLIAMS, D.H. GINSBURG, SENTELLE, HENDERSON and RANDOLPH, Circuit Judges.

[22 ELR 21496]

ORDER

Petitioner's Suggestion for Rehearing En Banc and the responses thereto have been circulated to the full court. The taking of a vote was requested. Thereafter, a majority of the judges of the court in regular active service did not vote in favor of the suggestion. Upon consideration of the foregoing it is

ORDERED, by the Court en banc, that the suggestion is denied.

Per Curiam

For the Court:

Ron Garvin

Clerk

Circuit Judge RUTH B. GINSBURG did not participate in this matter.

Circuit Judges WALD and BUCKLEY would grant the suggestion for rehearing en banc.

Separate statement filed by Circuit Judge SILBERMAN, concurring in the denial of rehearing en banc.

SILBERMAN, Circuit Judge, concurring in the denial of rehearing en banc: Petitioner's two requests for rehearing seek to make the proverbial mountain out of a molehill. The petitioners raised only peripherally the issue whether FERC properly consulted with the Department of Interior concerning the environmental conditions FERC placed on the annual licenses. And, asthe panel opinion notes, FERC did consult (albeit informally) with, and largely followed the advice of, the Department. The court misplaced part of petitioner's filings, which caused the original panel opinion's footnote to indicate erroneously that petitioner had not raised the issue on appeal. It seems, however, that petitioner has sought to exaggerate the significance of the error in subsequent filings.

There is, however, an underlying jurisdictional issue of some significance presented which we do not decide and which this court has skirted before. Platte River Whooping Crane Critical Habitat Maintenance Trust v. FERC, 876 F.2d 109, 113 n.4 (D.C. Cir. 1989). Does a private party have standing to challenge a failure of one government agency to consult (or consult adequately) with another government agency when required to by statute? It would be difficult to establish that any injury suffered by a plaintiff was due to a failure to consult adequately unless plaintiff could show: what the second agency would advise; that the first agency would accept the advice; and that implementation of the advice would remedy the injury. In other words, it is difficult to make out a causal connection between the plaintiff's injury and the alleged inadequate consultation. Although the failure to consult is a procedural violation of a statute, that does not seem adequate to establish Article III standing. Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2144-45 (1992).

Since the consultation issue was raised so tangentially, I think it unwise to decide the difficult jurisdictional question in this case.