California Trout, Inc. v. F.E.R.C., 01-70787.
| Decision Date | 16 December 2002 |
| Docket Number | No. 01-70787.,01-70787. |
| Parties | CALIFORNIA TROUT, INC., Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION; Southern California Edison Company, Respondents. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John A. Slezak, Los Angeles, California, for the petitioner.
Timm Abendroth, Washington, D.C.; Nino J. Mascolo, Rosemead, California, for the respondents.
Petition to Review a Decision of the Federal Energy Regulatory Commission.
Before THOMPSON and RAWLINSON, Circuit Judges, and SCHWARZER,* Senior District Judge.
California Trout, Inc. ("Cal Trout") petitions for review of an order of the Federal Energy Regulatory Commission ("FERC" or the "Commission") denying its request for rehearing and for revocation of the annual license for Project 1933, operated by Southern California Edison ("Edison"). We must decide whether the Commission acted within its authority in issuing annual licenses for Project 1933 pursuant to Federal Power Act ("FPA" or "the Act") § 15(a), 16 U.S.C. § 808(a)(1), absent Edison's compliance with the State water quality certification requirement of the Clean Water Act ("CWA") § 401(a)(1). 33 U.S.C. § 1341(a)(1).
Edison operates Project 1933, the Santa Ana River Hydroelectric Project (the "Project") in San Bernardino County, California. The Project consists of two independent water conveyance and power generation systems located on the Santa Ana River and its tributaries in San Bernardino County, and partly occupies lands of the United States within the San Bernardino National Forest. The Project diverts water from the lower portion of the Santa Ana River for water supply and power generation. It has an average annual generation of nineteen gigawatt-hours, roughly enough power to serve 2000 people, and delivers water into a water distribution system in the San Bernardino Valley for municipal, domestic, and agricultural use.
The present controversy arises out of the 1996 expiration of Edison's fifty-year license for the Project, issued by the Commission's predecessor, the Federal Power Commission ("FPC"). In 1994, Edison filed an application for a new license for the project. At the same time, Edison requested water quality certification from the California State Water Resources Control Board ("California Board"). The California Board denied certification in 1995, stating that the request lacked sufficient information. Edison appealed the denial and requested that the matter be held in abeyance to facilitate discussion and possible resolution of water quality issues as well as other relicensing issues. The California Board granted Edison's request; the last abeyance ended March 19, 2002. Edison has now filed a new application for water quality certification for a new license, which remains pending.
On May 7, 1996, the Commission issued its Notice of Authorization for Continued Project Operation. The Notice referred to Edison's having filed an application for a new license for the Project pursuant to the FPA and stated:
[N]otice is hereby given that an annual license for Project No. 1933 is issued to Southern California Edison Company for a period effective May 1, 1996, through April 30, 1997, or until the issuance of a new license for the project or other disposition under the FPA, whichever comes first. If issuance of a new license ... does not take place on or before April 30, 1997, notice is hereby given that, pursuant to 18 C.F.R. 16.18(c), an annual license under Section 15(a)(1) of the FPA is renewed automatically without further order or notice by the Commission, unless the Commission orders otherwise.
On May 31, 2000, Cal Trout filed a petition for rehearing of the Commission's issuance of an annual license for the Project for the period from May 1, 2000, to May 1, 2001.1 In that petition it contended that the Commission should not have issued an annual license without first requiring Edison to obtain water quality certification from the California Board. It maintained that the Commission should therefore vacate the annual license for the Project and order it to cease operations pending receipt of water quality certification. On June 21, 2000, the Commission Secretary issued a notice rejecting the rehearing request. The ground for the rejection was that § 15(a)(1) of the FPA mandates issuance of an annual license on the terms and conditions of the existing license, that issuance of the annual license is a ministerial act and non-discretionary and not a licensing action under the FPA, and that it therefore entails no proceeding in which intervention and rehearing may be sought. On July 21, Cal Trout filed a request for rehearing of the June 21 Notice, arguing that the Secretary had improperly rejected its earlier rehearing request. On August 18, the Commission granted rehearing for further consideration (a tolling order). On March 19, 2001, the Commission finally issued the order presently under review in this proceeding.
We review de novo the Commission's interpretation of its statutory mandate. The Commission's interpretation of the CWA is not entitled to deference. American Rivers, Inc. v. FERC, 129 F.3d 99, 107 (2d Cir.1997) (). However, we do give Chevron deference to the Commission's interpretation of the FPA.
This court's jurisdiction to review an order of the Commission is founded on § 313(b) of the FPA which provides:
Any party to a proceeding ... 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 ... within sixty days after the order of the Commission upon the application for rehearing, a written petition....
16 U.S.C. § 825l(b).
On May 16, 2001, Cal Trout filed a petition to review the Commission's March 19, 2001 Notice, which denied the request for rehearing of the June 21, 2000, Order. That Notice, in turn, denied a petition for rehearing of the annual license for the period May 1, 2000, to May 1, 2001. The question is whether Cal Trout has met the jurisdictional prerequisites.
The Commission contends that the court lacks jurisdiction to consider Cal Trout's challenge to Edison's annual license based on lack of compliance with CWA's requirement of state water quality certification because Cal Trout failed to seek rehearing of the Commission's May 7, 1996, Notice.2 It was this Notice that established that annual licenses would be issued during the pendency of the relicensing proceeding based on Edison's existing license, which contains no CWA certification requirement. Because Cal Trout was aggrieved by the May 7, Notice, which established annual licensing without compliance with CWA certification, the Commission argues Cal Trout's failure to seek timely rehearing of this Notice now bars it from judicial review of the 2001 order.
We think the Commission takes an unduly cramped view of what constitutes an order for purposes of judicial review. Its May 7, 1996, Notice provides for the issuance of an "annual license" subject to being "renewed automatically ... unless the Commission orders otherwise." The Notice was issued pursuant to § 15(a)(1), which states that "[T]he Commission shall issue from year to year an annual license to the then licensee under the terms and conditions of the existing license...." Congress could readily have provided for the issuance of an interim license effective for the period of the relicensing proceedings, i.e., until issuance of a new license. It did not do so, and instead, provided for annual relicensing. Its choice of language must be given effect. Even though no writing manifests the annual issuance of a license and the issuance occurs automatically, it is nevertheless an exercise of the Commission's authority and, as the Notice states, is subject to its power to order otherwise. We conclude that the annual issuance of a license is the functional equivalent of an order and is subject to review from year to year.3
Our conclusion is consistent with the decision in Lac Courte Oreilles Band v. Federal Power Commission, 510 F.2d 198 (D.C.Cir.1975). There, the Commission had issued annual licenses in August 1971, 1972, and 1973. Petitioner filed an application for rehearing concerning the second of these licenses in 1972. Without questioning its jurisdiction, the court entertained the petition to review the issuance of this and a subsequent license.4
Our conclusion also makes sense as a matter of policy. The position taken by the Commission here would effectively render annual licenses immune to judicial review in perpetuity once the initial period for rehearing has passed. The Commission's argument wrongly assumes that any ground for rehearing necessarily exists only at the time of the original issuance. Yet circumstances may change or newly arise subsequent to the original issuance of the annual license that give grounds for rehearing and potentially for the imposition of conditions to the extent permitted by law. See Platte River Whooping Crane v. FERC, 876 F.2d 109, 114 (D.C.Cir.1989) ("Platte I") ().
We, therefore, conclude that we have jurisdiction to review the petition under § 825l(b).
The Commission issued annual...
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Case summaries.
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