Eastern Niagara Public Power Alliance v. F.E.R.C.
| Decision Date | 13 March 2009 |
| Docket Number | No. 07-1472.,07-1472. |
| Citation | 558 F.3d 564 |
| Parties | EASTERN NIAGARA PUBLIC POWER ALLIANCE AND PUBLIC POWER COALITION, and Their Respective Individual Members, Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, New York Power Authority, et al., Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Carolyn Elefant argued the cause for petitioners. With her on the briefs was Paul V. Nolan.
Robert M. Kennedy Jr., Attorney, Federal Energy Regulatory Commission, argued the cause for respondent. With him on the brief were Cynthia A. Marlette, General Counsel, and Robert H. Solomon, Solicitor.
Jay T. Ryan and Charles R. Sensiba were on the brief for intervenor Power Authority of the State of New York in support of respondent.
Before HENDERSON, BROWN and KAVANAUGH, Circuit Judges.
Opinion for the Court filed by Circuit Judge KAVANAUGH.
From 1958 to 2007, the New York Power Authority operated the Niagara Power Project pursuant to a 50-year license granted by what is now the Federal Energy Regulatory Commission. In 2007, FERC approved NYPA's relicensing application and granted a new 50-year license. Several communities in western New York have challenged FERC's 2007 licensing decision as arbitrary and capricious and unsupported by substantial evidence. We deny their petition because FERC's decision to issue the new license was reasonable and reasonably explained.
The Niagara Power Project is a hydroelectric facility about five miles downriver from Niagara Falls. The project serves as a major source of electricity for upstate New York.
In 1958, the New York Power Authority obtained a 50-year license from the Federal Power Commission (now the Federal Energy Regulatory Commission). In 2005, as the end of the 50-year license period approached, NYPA filed a relicensing application with FERC. In 2007, based on review of the application and its own independent study, FERC granted NYPA a new 50-year license. Although many affected communities in the area supported relicensing, some towns, cities, and school districts in Niagara County and a group of communities along the Niagara River objected to it and have sought judicial review of FERC's decision.
Federal law directs FERC to issue licenses for the construction, operation, and maintenance of hydroelectric projects on certain U.S. waters. See 16 U.S.C. § 797(e). In ruling on licensing applications for hydroelectric facilities like the Niagara Power Project, FERC must consider an array of broad and partially overlapping criteria. For example, under § 797(e), FERC must consider energy conservation, the protection of fish and wildlife, recreational opportunities, and environmental quality. And the statute adds more considerations for relicensing applications: For example, under § 808, FERC must consider such factors as the project's safety, efficiency, and reliability, as well as its effect on the communities it is to serve.
Petitioners do not argue that FERC violated any specific law applicable to licensing decisions. Rather, petitioners contend that FERC, in considering the diverse statutory factors, acted in a manner that was arbitrary and capricious and unsupported by substantial evidence under the Administrative Procedure Act. See 5 U.S.C. § 706. In other words, this is a State Farm case, not a Chevron case. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983); Chevron USA, Inc. v. NRDC, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). In reviewing licensing decisions under the APA, our role is "quite limited" and "narrowly circumscribed." Brady v. FERC, 416 F.3d 1, 5 (D.C.Cir.2005); Dep't of Interior v. FERC, 952 F.2d 538, 543 (D.C.Cir. 1992).
Petitioners raise five specific concerns, none of which we find persuasive.
First, petitioners argue that a 50-year license is too long and inconsistent with agency practice regarding the terms of licenses. But FERC possesses express statutory authority to set license terms between 30 and 50 years. 16 U.S.C. § 808(e). And under its longstanding policy, FERC typically issues longer licenses when license conditions impose greater costs on license-holders. Here, FERC reasonably followed that practice. The project's license conditions will impose annualized costs of about $4.5 million—which suffices to warrant a 50-year license under FERC precedents. Cf. Power Auth. of N.Y., 105 FERC ¶ 61,102, at 61,595 (2003). We find no basis to disturb FERC's judgment regarding the length of the license.
Second, petitioners argue that FERC undervalued the project's output in considering the appropriate length of the new license. Because the project operates during both peak times (when rates are high) and off-peak times (when rates are low), FERC projected the value of the project using an average of peak and off-peak rates. Petitioners complain that FERC should...
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Niagara Pres., Coal., Inc. v. Fed. Energy Regulatory Comm'n
...an APA challenge in which the Circuit upheld an agency decision to grant a 50–year license for a hydroelectric project. 558 F.3d 564, 567–68 (D.C.Cir.2009). However, plaintiff's reliance on Eastern Niagara is misplaced, as the Circuit, not the District Court, has jurisdiction to hear challe......
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Andersen v. Fed. Energy Regulatory Comm'n
...FERC has previously required licensees to mitigate erosion caused only by the licensed project. See, e.g., E. Niagara Pub. Power Alliance v. FERC, 558 F.3d 564, 567 (D.C. Cir 2009) (holding that FERC reasonably determined that shorelineerosion was insignificant and that licensee did not nee......