Conservation Law Found. v. Fed. Energy Regulatory Comm'n, Nos. 99-1035

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtRandolph
Citation216 F.3d 41
Parties(D.C. Cir. 2000) Conservation Law Foundation, et al.,Petitioners v. Federal Energy Regulatory Commission, Respondent State of Maine; Great Northern Paper, Inc.,Intervenors os. 99-1159, 99-1161 & 99-1162
Decision Date23 June 2000
Docket NumberN,Nos. 99-1035

Page 41

216 F.3d 41 (D.C. Cir. 2000)
Conservation Law Foundation, et al.,Petitioners
v.
Federal Energy Regulatory Commission, Respondent
State of Maine; Great Northern Paper, Inc.,Intervenors
Nos. 99-1035, Nos. 99-1159, 99-1161 & 99-1162
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 20, 2000
Decided June 23, 2000

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Copyrighted Material Omitted

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On Petitions for Review of Orders of theFederal Energy Regulatory Commission

Sean H. Donahue, Attorney, U.S. Department of Justice, argued the cause for the federal petitioners. With him on the briefs were Lois J. Schiffer, Assistant Attorney General, Peter Coppelman, Acting Assistant Attorney General, James C. Kilbourne, Ellen Durkee, and M. Alice Thurston, Attorneys. Ellen D. Katz, Attorney, entered an appearance.

Carol A. Blasi argued the cause for petitioner Conservation Law Foundation, et al. With her on the briefs was Alexander W. Sierck. Mona M. Janopaul entered an appearance.

Kaighn Smith, Jr. argued the cause for petitioner Penobscot Indian Nation. With him on the briefs was Mark Chavaree.

Beth G. Pacella, Attorney, Federal Energy Regulatory Commission, argued the cause for respondent. With her on the

Page 44

brief were John H. Conway, Acting Solicitor, and Timm L. Abendroth, Attorney.

Andrew Ketterer, Attorney General, and Paul Stern, Deputy Attorney General, were on the brief for intervenor State of Maine.

Catherine R. Connors and Matthew D. Manahan were on the brief for intervenor Great Northern Paper, Inc.

Before: Randolph, Tatel, and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Randolph.

Randolph, Circuit Judge:

The Department of the Interior and the Environmental Protection Agency, conservation groups,1 and the Penobscot Indian Nation petition for review of the Federal Energy Regulatory Commission's relicensing of a hydroelectric project in north-central Maine. The issues presented go mainly to the adequacy of the Commission's consideration of the various factors governing license renewals. Because the Commission gave sufficient attention to these factors and carefully explained its conclusions, the petitions are denied.

I

Located on the West Branch of the Penobscot River, the Ripogenus and Penobscot Mills Hydroelectric Projects produce approximately 108 megawatts of power for Great Northern Paper mills in Millinocket and East Millinocket, Maine.The projects consist of a series of reservoirs, dams, and powerhouses. This case focuses on one of the dams--the 1262 foot long Stone Dam, which is part of the Penobscot Mills Project.2 Constructed in 1899, Stone Dam diverts water through a canal to a 37 megawatt powerhouse. This diversion blocks the main channel of the Penobscot's West Branch for a 4.5 mile stretch known as the "Back Channel."Because of Stone Dam, the Back Channel receives only leakage flows of 2 to 5 cfs (cubic feet per second), except for occasional "spillage" when flows exceed power requirements.

The Penobscot Mills Project, like any project used for the "development, transmission, and utilization of power across, along, from, or in any of the streams or other bodies of water over which Congress has jurisdiction," requires a license from the Federal Energy Regulatory Commission. 16 U.S.C. 797(e). When the original license for Penobscot Mills expired at the end of 1993, Great Northern applied for a new one. The Commission issued a Final Environmental Impact Statement analyzing three different proposals regarding the new license: the "Applicant's Proposal," in which Great Northern would "operate the project[ ] nearly as it has over the past 50 years" with some new environmental and recreational enhancements but no increased flows in the Back Channel; "Alternative 1," which reflected the Interior Department's recommendations for enhancements including minimum flows of 350 to 500 cfs in the Back Channel;3 and "Alternative 2," recommending "enhancement measures intermediate between those proposed by GNP and those in Alternative 1." FEIS at xix. As a baseline for comparison, the Commission adopted the terms and conditions of the existing license as the "no action" option. The impact statement recommended a modified version of Alternative 2 that did not include

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flow requirements for the Back Channel. See FEIS at xxiii.

Shortly after issuance of the final impact statement, the Commission granted a new license for Penobscot Mills.4 See 77 F.E.R.C. p 61,068 (1996). The order conditioned the license on Great Northern's commitment to wetland enhancements, project boundary expansion, and increased flows into Millinocket Stream. See id. at 61,275-79. As to the Back Channel, the Commission decided not to order minimum flows "given the modest fisheries benefit likely to occur and the significant adverse impact on the project's energy benefits," id. at 61,276, a decision it affirmed on rehearing, see 85 F.E.R.C. p 61,316 (1998), and reconsideration, see 86 F.E.R.C. p 61,184 (1999).

II

"In deciding whether to issue any license [for hydroelectric projects,] the Commission, in addition to the power and development purposes for which licenses are issued, shall give equal consideration to the purposes of energy conservation, the protection, mitigation of damage to, and enhancement of, fish and wildlife (including related spawning grounds and habitat), the protection of recreational opportunities, and the preservation of other aspects of environmental quality." 16 U.S.C. 797(e). The Federal Power Act also requires the Commission to include conditions for the "protection, mitigation and enhancement" of fish and wildlife affected by the project, such conditions to be "based on recommendations received pursuant to the Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.) from the National Marine Fisheries Service, the United States Fish and Wildlife Service, and State fish and wildlife agencies." 16 U.S.C. 803(j)(1). The Commission retains authority to decide that recommended conditions are "inconsistent with the purposes" of the FPA or other laws, in which event it shall of course reject them. 16 U.S.C. 803(j)(2); see United States Dep't of the Interior v. FERC, 952 F.2d 538, 544 (D.C. Cir. 1992). While the Commission must give "equal consideration" to environmental factors, those factors do not have "preemptive force." 952 F.2d at 545. The Commission "still is charged with determining the 'public interest,' i.e., balancing power and non-power values." Id.

The petitioners contend that the Commission's rejection of minimum flow requirements in the Back Channel violates these Federal Power Act provisions and the National Environmental Policy Act, see 42 U.S.C. 4321 et seq. Their arguments can be grouped into two categories: that the Commission did not fully recognize the recreational and environmental (i.e., nonpower) benefits that would have resulted if it had imposed minimum flow requirements; and that the Commission inflated the economic costs Great Northern would incur from increased Back Channel flows.

A. Nonpower Issues

The main argument of the federal petitioners is that the Commission should not have treated existing conditions at Stone Dam as the baseline "no action" option because this caused "the Commission to ignore ongoing impacts directly attributable to the new license...." Brief for the Federal Petitioners at 29. We think there is nothing to this objection.The statute--16 U.S.C. 803(j)--invites a comparative inquiry. It charges the Commission with the duty of protecting, mitigating the damage to, and enhancing "fish and wildlife (including related spawning grounds and habitat) affected by the development, operation and management of the project."To do this properly the Commission must compare what might occur to fish and wildlife if the license does not include protection for nonpower resources against what will occur with conditions imposed.

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The statutory words "fish and wildlife ... affected" by the project seems to refer to the fish and wildlife currently existing in the vicinity of the project, which supports the Commission's choice of existing conditions as a baseline. The quoted language surely cannot refer to the animals inhabiting the area in 1899, when the project came into being. They are long gone and so cannot be "affected" by a Commission licensing decision in the 1990s.Granted, it is possible to treat the words "fish and wildlife" generically, so that it is not just the animals currently residing in the region that get protected or enhanced, but different species that might be introduced or reintroduced. But this view of 803(j) does not help petitioners because it says nothing about whether the baseline for the Commission's comparative inquiry should be today or sometime other than today. In other words, even if the statute refers generally to all "fish and wildlife" it hardly follows that the Commission must imagine the Back Channel as it existed before 1899 and assess the effect of relicensing by pretending that Stone Dam does not exist--at least when no one advocates decommissioning the Penobscot Mills Project and tearing down the dam.

Given the language of 803(j), the Commission certainly had the leeway to conduct its comparative assessments using existing conditions as a baseline. To the reasons just mentioned, we incorporate by reference those given in American Rivers v. FERC, 201 F.3d 1186, 1195-99 (9th Cir. 2000), which sustained the Commission's use of an existing conditions baseline as a reasonable construction of 803(j).

In any event, the baseline business has the whiff of a red herring. Baseline or no baseline, the question is whether the Commission has fully examined options calling for greater or lesser environmental protection. Here the Commission spoke of environmental "benefits" and the economic "costs" to Great Northern of options calling for stronger environmental protection. It could...

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    ...is actually a forgery. If the defendant were correct as a matter of fact, the court would lack jurisdiction. SeePhoenix Consulting, 216 F.3d at 41.Not without reason, Sudan points to Kilburn v. Socialist People's Libyan Arab Jamahiriya, 376 F.3d 1123 (D.C.Cir.2004), as an example of how the......
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    ...the [federal agency] has fully examined options calling for greater or lesser environmental protection." Conservation Law Found. v. FERC, 216 F.3d 41, 46 (D.C.Cir.2000). In this case, the agency's selection of a particular baseline did not prevent it from complying with NEPA because BLM ana......
  • Owens v. Republic of Sudan, Civil Action No. 01-2244 (JDB)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 23, 2016
    ...is actually a forgery. If the defendant were correct as a matter of fact, the court would lack jurisdiction. SeePhoenix Consulting, 216 F.3d at 41.Not without reason, Sudan points to Kilburn v. Socialist People's Libyan Arab Jamahiriya, 376 F.3d 1123 (D.C.Cir.2004), as an example of how the......
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    ...immunity from suit under the FSIA" instead of assuming the truth of the facts as alleged by plaintiff. See Phoenix Consulting, 216 F.3d at 41. 8. In Goodman Holdings, the D.C. Circuit found no direct effect because the defendant "might have paid [plaintiff] from funds in United States banks......

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