Friends of Keeseville, Inc. v. F.E.R.C.
| Decision Date | 07 October 1988 |
| Docket Number | No. 87-1691,87-1691 |
| Citation | 859 F.2d 230 |
| Parties | FRIENDS OF KEESEVILLE, INC. v. FEDERAL ENERGY REGULATORY COMMISSION. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
William J. Kenney, for petitioner.
Hanford O'Hara, Atty., F.E.R.C., with whom Catherine C. Cook, Gen. Counsel and Jerome M. Feit, Sol., F.E.R.C., Washington, D.C., were on the brief, for respondent.
William J. Kenney also entered an appearance for intervenor, Village of Keeseville, N.Y.
Before WALD, Chief Judge, and STARR and WILLIAMS, Circuit Judges.
Opinion for the Court filed by Chief Judge WALD.
Petitioner, Friends of Keeseville ("Friends"), challenges certain orders of the Federal Energy Regulatory Commission ("FERC"). FERC contends that the orders were proper and that Friends is not currently aggrieved by the Commission's actions. We have concluded that this case is partly moot and partly unripe, and that adjudication at this time is therefore inappropriate. The petition is accordingly dismissed.
This case involves the efforts of various parties to develop a hydroelectric power project on the Ausable River in upstate New York. In 1981, the Village of Keeseville, New York and Essex County, New York filed an application for a preliminary permit. 1 The Commission issued the permit on March 31, 1982. County of Essex and Village of Keeseville, 18 F.E.R.C. p 62,551 (1982). On August 31, 1982, the County petitioned the Commission for permission to withdraw as co-permittee. The preliminary permit expired by its terms on February 29, 1984. During the pendency of the preliminary permit, the Village authorized the formation of Friends of Keeseville, Inc., a non-profit corporation designed to facilitate the financing and development of the Ausable River project. On March 2, 1984, immediately following the expiration of the Village's preliminary permit, Friends filed an application for an exemption. 2
On July 27, 1984, the Commission issued an order directing Friends to show cause why its exemption application was not an abuse of municipal preference. 3 Friends of Keeseville, Inc., 28 F.E.R.C. p 61,158 (1984). The Commission evidently believed that the Village had functioned as a "proxy" for Friends, allowing Friends to gain an advantageous first-filed position by submitting an application immediately upon the expiration of the Village's permit. The Commission explained:
[A]buse of the municipal preference is established by evidence indicating that the actions of a municipality and a non-municipality were coordinated in a manner that used the municipal preference Id. at 61,297. Friends' response to the show cause order was evidently unsatisfactory to the agency: on July 24, 1985, the Commission issued an order which dismissed the exemption application and imposed a one-year ban on any filings by Friends or the Village proposing development of the Ausable River site. Friends of Keeseville, Inc., 32 F.E.R.C. p 61,111 (1985). Friends did not seek rehearing of this order. 4
available to the municipality alone to place the non-municipal applicant in a competitively advantageous position.
On December 31, 1985, Cash Flow Systems ("CFS") submitted its own application for a preliminary permit for the Ausable River site. The Commission set July 7, 1986, as the deadline for competing applications. On June 2, 1986, Friends filed a motion for reconsideration of the July 24, 1985 order, requesting that the agency reverse its earlier decision and accept its exemption application as of March 2, 1984. 5 On July 11, 1986, the Commission's Secretary denied the request for reconsideration on the ground that it was in substance an untimely request for rehearing of the July 24, 1985 order. On July 30, 1986, a preliminary permit was granted to CFS.
On August 11, 1986, Friends appealed the Secretary's denial of its request for rehearing, challenged the grant of the permit to CFS, and filed its own new license application for the Ausable River site. These challenges were all rejected in the Commission's order of June 5, 1987. Friends petitioned FERC for rehearing of that order, and on October 23, 1987, the agency denied rehearing. Friends of Keeseville, Inc., 41 F.E.R.C. p 61,071 (1987). This appeal followed.
On March 23, 1988, the CFS permit was cancelled by the agency after CFS failed to submit a required progress report. CFS did not appeal this order, and the cancellation became final.
When this petition for review was filed, the injury alleged was that CFS, rather than Friends, had received the Ausable River permit. Petitioner filed a timely challenge to the agency order which awarded a preliminary permit to CFS. The controversy concerning this order, however, has been rendered moot by the cancellation of the CFS permit.
The challenged order had the effect of awarding a license to CFS and denying Friends an opportunity to compete for it. Unquestionably the petitioner suffered legally cognizable injury as a result of the agency's decision. The case must nevertheless be dismissed as moot if "the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1951, 23 L.Ed.2d 491 (1969). In the present case, it is clear that Friends suffers no continuing judicially remediable injury as a result of the Commission's previous grant of the permit to CFS. 6
If this court were to hold that the agency acted arbitrarily and capriciously in awarding the permit to CFS, we could do no more than reverse that grant and order the Commission to consider the matter anew. Due to the cancellation of the CFS permit, judicial intervention is unnecessary: Friends will in any event have an opportunity to compete for development rights to the Ausable River site. The CFS permit, which is without current legal effect, has no present impact on Friends. 7
In addition, Friends asserts that the Commission acted arbitrarily and capriciously in refusing to reconsider its order of July 24, 1985, which rejected Friends' March 2, 1984 application and imposed a one-year ban on further filings. We cannot say that the dispute concerning this order is moot, since there exists at least the possibility that this order will affect the petitioner's interests at some point in the future. FERC argues that Friends "can accomplish now the same thing as it could accomplish if it succeeded in overturning the Commission's orders under review here: the unfettered opportunity to apply for a license or exemption." Respondent's Brief at 9. This is not entirely accurate. FERC's original basis for rejecting Friends' application and imposing the one-year ban on any subsequent attempts was that Friends had used the Village as a "proxy" in order to obtain an advantageous first-filed position. It seems somewhat contradictory then for the agency to contend at this juncture that the first-filed position would not have secured any advantage to Friends after all. We must acknowledge at least the possibility that Friends' chances of obtaining a license or exemption would be improved if the agency were compelled to treat its application as having been filed on March 2, 1984, rather than at some time in 1988. The question is whether a diminished chance of success in the application process, caused by the Commission's refusal to rescind its earlier orders, is an injury sufficiently concrete to warrant the invocation of judicial power.
The parties, we note, have provided little elucidation regarding the likelihood that a decision in petitioner's favor would affect the outcome of any future application process. We do not know whether any competing entity actually has applied for a permit (in which case Friends would have lost its opportunity to be the first-filed applicant). 8 At oral argument petitioner's counsel suggested that municipalities in the region might file competing applications, but counsel could offer no estimate of the likelihood that such competitors would emerge. If Friends still has the opportunity to file first, and if no municipality files a competing application, then the Commission's rejection of its earlier application may impose no burden on its current chances of obtaining a permit. If competitors have already filed, however, then it makes a great difference whether Friends' March 2, 1984 application is accepted. Even as the first-filed applicant, Friends In some situations, a diminished chance of success in the administrative process plainly constitutes a judicially cognizable injury. If an agency considers improper factors in reaching a decision, a challenger need not show with certainty that the outcome would have been different if the improper considerations had been eliminated. 10 Similarly, an appellant alleging trial court error is not required to prove that he would have prevailed below if the errors had not been present. A challenger must demonstrate that the errors alleged were not harmless, 11 but such a showing does not require proof that the errors necessarily changed the result of the proceedings below. The typical appellate reversal, in short, rests upon a judgment that the outcome of an earlier proceeding might have been different had the law been properly applied; or, in other words, that legal error materially diminished one party's chances of success. If this be "speculative," then speculation lies at the core of the appellate process.
might suffer injury from the denial of municipal preference if a municipality submits a competing application. 9 Clearly there exists a possibility that Friends will be injured by the Commission's orders, but we have little sense of how great that possibility is
Courts are less willing, however, to speculate as to the likely outcome of future events. This is not because such predictions are inherently...
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