City of Ocon to Falls v. Fed. Energy Comm'n, s. 98-1594,99-1065

Decision Date07 March 2000
Docket NumberNos. 98-1594,99-1065,s. 98-1594,99-1065
Citation204 F.3d 1154
Parties(D.C. Cir. 2000) City of Ocon to Falls, Wisconsin, Petitioner v. Federal Energy Regulatory Commission, Respondent City of Oswego, New York and N.E.W. Hydro, Intervenors State of Wisconsin, Petitioner v. Federal Energy Regulatory Commission, Respondent , N.E.W. Hydro, Intervenor
CourtU.S. Court of Appeals — District of Columbia Circuit

[Copyrighted Material Omitted] On Petitions for Review of Order of theFederal Energy Regulatory Commission

Carolyn Elefant argued the cause for petitioner City of Oconto Falls, Wisconsin.

Lorraine C. Stoltzfus, Assistant Attorney General, State of Wisconsin, argued the cause for petitioner State of Wisconsin.James E. Doyle, Attorney General, State of Wisconsin, was on brief for petitioner State of Wisconsin.

Judith A. Albert, Attorney, Federal Energy Regulatory Commission, argued the cause for the respondent. Timm L. Abendroth, Attorney, Federal Energy Regulatory Commission, was on brief for the respondent.

Paul Vincent Nolan entered an appearance for intervenor City of Oswego, New York in No. 98-1594.

Donald H. Clarke entered an appearance for intervenor N.E.W. Hydro, Inc. in Nos. 98-1594 and 99-1065.

Before: Silberman, Henderson and Garland, Circuit Judges.

Opinion for the court filed by Circuit Judge Henderson.

Karen LeCraft Henderson, Circuit Judge:

On November 13, 1997 the Federal Energy Regulatory Commission (Commission, FERC) issued a license order awarding the Oconto Falls (Wisconsin) hydroelectric project to N.E.W. Hydro (NEW). See 81 FERC p 61,238 (1997). Both the City of Oconto Falls (City) and the Wisconsin Department of Natural Resources (WDNR) challenge the Commission's action.WDNR argues that the Commission breached its statutory obligation under section 10(j) of the Federal Power Act (FPA), 16 U.S.C. 803(j), to give "due weight" to WDNR's recommendations to protect fish. The City argues that the Commission improperly determined that: (1) the City's license application was "essentially equal" to NEW's application under section 15(a)(2) of the FPA, 16 U.S.C. 808(a)(2);(2) the Commission's "first to file" tie-breaker procedure applied; and (3) NEW's application need not be dismissed for anticompetitive activity with Wisconsin Electric Power Company, allegedly resulting from the Commission's licensure of NEW. In turn, the Commission challenges the court's jurisdiction over WDNR's petition for review because WDNR identified only the rehearing order, 85 FERC p 61,222 (1998), not the license order in its petition. For the reasons set forth infra, we conclude that we have jurisdiction to review WDNR's petition and, based on our review, the Commission satisfied its duty under section 10(j) of the FPA to give WDNR's recommendations "due weight." We further conclude that the Commission's factual determination that both NEW's and the City's applications were "essentially equal" is supported by substantial evidence, that the "first to file" tiebreaker procedure did not unfairly prejudice the City and that the Commission correctly declined to dismiss NEW's application. Accordingly, we deny both WDNR's and the City's petitions for review.

I.

In 1977 the Federal Power Commission issued Wisconsin Electric Power Company (WEPCO) a license to operate a hydroelectric project (Oconto Falls Project) located on the Oconto River near Oconto Falls, Wisconsin, to expire December 31, 1993. In 1988 WEPCO filed a notice of intent to refile an application for relicensure but it failed to file its application before the December 31, 1991 deadline. Instead, WEPCO initiated discussions to sell the Oconto Falls Project to NEW. The sale was not completed by the December 31, 1991 deadline, however, and because no other party filed a notice of intent to file an application, the Oconto Falls Project became orphaned.1 In February 1992 the Commission issued a public notice pursuant to Part I of the FPA, 16 U.S.C. 791a-823a, to solicit license applications. At that time NEW informed the Commission of its intent to file an application. In May 1992 the City informed the Commission of its intent to file a competing application. In addition the City petitioned FERC for an order declaring that any license application for the Oconto Falls Project was subject to a municipal preference pursuant to section 7(a) of the FPA, 16 U.S.C. 800(a).2 The Commission ruled instead that section 15 of the FPA, 16 U.S.C. 808, governs an orphan proceeding and therefore declared the municipal preference inapplicable.3 This court subsequently affirmed the Commission's decision. See Oconto Falls v. FERC, 41 F.3d 671, 674-75 (D.C. Cir. 1994).

In the meantime WEPCO accepted NEW's offer to acquire the Oconto Falls Project conditioned on NEW's licensure by the Commission. See License Order, 81 FERC at 61,982.On August 21, 1992 NEW requested the Commission to waive the "first stage" pre-filing consultation requirement to provide "the relevant Federal, State and interstate resource agencies" detailed studies, data and documentation on the Oconto Falls Project, see 18 C.F.R. 16.8(a)(1), (b), inasmuch as WEPCO had already completed the consultation requirement and had transferred all of the relevant materials to NEW. On September 1, 1992 the Commission Director granted NEW's request. In November 1992 the City requested a copy of WEPCO's Initial Consultation Package (ICP), which contained not only WEPCO's detailed studies and data but also the resource agencies' comments detailing the studies and methodologies they recommended WEPCO to use. NEW planned to use WEPCO's ICP to prepare its license application but WEPCO refused to make it available. The City subsequently petitioned the Commission for a copy of WEPCO's ICP to obtain the data it needed to prepare its application. In August 1993 NEW filed an application for a license with the Commission. Two months later the Commission ordered WEPCO to make its ICP publicly available and it did so in November 1993. Finally, in August 1994 the City filed a competing application for licensure with the Commission. Several months later, while the applications were pending, the City filed a complaint with FERC alleging anticompetitive activity by NEW and WEPCO, asking the Commission both to order them to cease the activity and to dismiss NEW's application.

Pursuant to section 10(j) of the FPA, the Commission must include as license conditions any recommendations from "State fish and wildlife agencies" unless the Commission determines that the recommended conditions are "inconsistent with the purposes and requirements" of the FPA or other laws. 16 U.S.C. 803(j)(1), (2). During the licensing process, WDNR recommended that the Oconto Falls Project licensee be required to reduce fish entrainment, i.e., their passage into and through the turbines of the hydroelectric project. On November 13, 1997 the Commission issued an order granting NEW the Oconto Falls Project license. See 81 FERC p 61,238 (1997) (License Order). The Commission concluded that both NEW's and the City's license applications were essentially equal, that the "first to file" tie-breaker procedure was appropriate under the circumstances and that NEW and WEPCO had not engaged in anticompetitive activity. After finding no evidence that entrainment significantly adversely affected the fish populations, the Commission also declined to impose WDNR's proposed conditions to reduce fish entrainment. On November 13, 1998 the Commission denied both WDNR's and the City's petitions for rehearing. See 85 FERC p 61,222 (1998) (Rehearing Order). The City then petitioned for review of the Commission's License Order and Rehearing Order while WDNR petitioned the Seventh Circuit for review of the Commission's Rehearing Order. WDNR's petition was transferred to this court and the two cases were consolidated.

II.

The court upholds FERC's factual findings "if supported by substantial evidence" and upholds its order so long as it uses reasoned decision making. Texaco, Inc. v. FERC, 148 F.3d 1091, 1095 (D.C. Cir. 1999). The Commission's decision to award NEW the license is entitled to deference so long as the decision is supported by substantial evidence. See Bangor Hydro-Elec. Co. v. FERC, 78 F.3d 659, 663 (D.C. Cir. 1996).The court grants "considerable" deference to the Commission's interpretation of a statute it administers so long as its "interpretation is permissible." Oconto Falls, 41 F.3d at 674 (citations omitted).

A. Jurisdiction

The Commission challenges the court's jurisdiction to review WDNR's petition because it petitioned for review of the Rehearing Order instead of the License Order. Under section 313(b) of the FPA:

Any party to a proceeding under this chapter aggrieved by an order issued by the Commission in such proceeding may obtain a review of such order in the United States court of appeals ... by filing in such court, within sixty days after the order of the Commission upon the application for rehearing, a written petition praying that the order of the Commission be modified....

16 U.S.C. 825l(b). Section 313(b)'s plain language indicates that "the order of the Commission upon the application for rehearing" (rehearing order) which begins the sixty-day limitations period is different from the "order of the Commission" ("aggrieving" order) which the petitioner is to identify in its petition. Section 313(b) provides review of the "aggrieving" order but the rehearing order simply determines the accrual date of the sixty-day limitations period. It would make little sense to provide for relief from the "aggrieving" order but at the same time require the petitioner to specify the rehearing order in its petition.4 Thus, in order to properly petition for review of a Commission order, section 313(b) requires a petitioner to identify the "aggrieving" order which in this case is the License Order. In its petition for review,...

To continue reading

Request your trial
10 cases
  • Cent. Hudson Gas & Elec. Corp. v. Fed. Energy Regulatory Comm'n
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 2 d4 Abril d4 2015
    ...request for rehearing by adding new nuances or framing the argument in a slightly different way. See, e.g., City of Oconto Falls v. FERC, 204 F.3d 1154, 1162 n. 5 (D.C.Cir.2000). But the NYPSC's failure even to mention to FERC that quantifying price impacts was required led FERC (quite unde......
  • Sinclair Broadcast Group, Inc. v. F.C.C.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 2 d2 Abril d2 2002
    ...it had jurisdiction to review the underlying order because the petitioner's intent could be fairly inferred. See City of Oconto Falls v. FERC, 204 F.3d 1154, 1160 (D.C.Cir.2000). The Commission, relying on Entravision, Small Business in Telecommunications, and Southwestern Bell, maintains t......
  • Safety v. Fed. Energy Regulatory Comm'n
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 15 d5 Agosto d5 2014
    ...plan for site). Particularly in view of the deference owed FERC's interpretation of its own regulations, see City of Oconto Falls, Wis. v. FERC, 204 F.3d 1154, 1162 (D.C.Cir.2000), we reject Petitioners' argument that the Minisink Project violates the siting guidelines.C. As a final offensi......
  • Dte Energy Co. v. F.E.R.C.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 14 d5 Janeiro d5 2005
    ...for review, the court cannot consider DTE's challenge to the Commission's November 17, 2003 Rehearing Order. City of Oconto Falls v. FERC, 204 F.3d 1154, 1159-60 (D.C.Cir.2000). Consequently, only Detroit Edison's petition for review of the March 13, 2003 Order and November 17, 2003 Reheari......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT