Grand Council of the Crees v. Federal Energy Regulatory Commission

No. 98-1280 (198 F.3d 950) (D.C. Cir. January 11, 2000)

The court holds that a Native American council and an environmental group lack standing under the Federal Power Act (FPA) and the National Environmental Policy Act (NEPA) to challenge a Federal Energy Regulatory Commission (FERC) order authorizing a Canadian power generator to sell power in the United States at market-based rates. The council and group allege that FERC should have considered the environmental effects of the rates. The court first holds that the FPA imposes prudential standing requirements, as Congress did not dispose of this requirement when it enacted the FPA. The court next holds that the council's and group's claim under FPA § 205(a)'s rate schedule provision falls outside the relevant zone of interests. FERC's refusal to consider environmental issues under FPA § 205(a) is valid, and additional focus on environmental elements would complicate an already complex process, with little or no offsetting benefit to the public. Moreover, the council's and group's environmental interests are not congruent with and may frustrate § 205(a)'s purpose of balancing the interests of power consumers and producers. The court further holds that FERC's order will not preempt state regulation from which the group's members benefit. The FPA explicitly provides that state regulation of energy sold between a state and a foreign country is only preempted when it conflicts with statutory requirements relating to the export of energy, not imports.

The court also holds that the council's and the group's environmental interests are not within NEPA § 102(2)(c)'s zone of interests as applied to FPA § 205. NEPA § 102(2)(c) does not impose any additional substantive requirements on FERC, but merely ensures that FERC consider the environmental concerns that it is already authorized to consider by the FPA.

The full text of this opinion is available from ELR (10 pp., ELR Order No. L-151).

Counsel for Petitioners
William A. Nelson
Law Offices of William A. Nelson
601 King St., 4th Fl., Alexandria VA 22314
(703) 768-8870

Counsel for Respondent
Larry D. Gasteiger
Federal Energy Regulatory Commission
825 N. Capitol St. NE, Washington DC 20426
(202) 208-0200

[30 ELR 20271]

[NO TEXT IN ORIGINAL]