Nat'l Parks Conservation Ass'n v. Fed. Energy Regulatory Comm'n, 19-72915

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Citation: 6 F.4th 1044
• Docket Number: No. 19-73079,No. 19-72915,19-72915
• Parties: NATIONAL PARKS CONSERVATION ASSOCIATION, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Eagle Crest Energy Company, Respondent-intervenor. In re National Parks Conservation Association, National Parks Conservation Association, Petitioner, v. Federal Energy Regulatory Commission, Respondent, Eagle Crest Energy Company, Respondent-Intervenor.
• Decision Date: 28 July 2021

6 F.4th 1044

NATIONAL PARKS CONSERVATION ASSOCIATION, Petitioner,

v.FEDERAL ENERGY REGULATORY COMMISSION, Respondent,Eagle Crest Energy Company, Respondent-intervenor.

In re National Parks Conservation Association,

National Parks Conservation Association, Petitioner,

v.Federal Energy Regulatory Commission, Respondent,Eagle Crest Energy Company, Respondent-Intervenor.

No. 19-72915

No. 19-73079

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 13, 2020 San Francisco, California

Filed July 28, 2021

Amanda Zerbe (argued), Ryan Gallagher (argued), C.J. Biggs, Michael Golz, and Joseph Zabel, Certified Law Students; Deborah Ann Sivas (argued), Matthew J. Sanders (argued), and Alicia E. Thesing, Supervising Attorneys; Environmental Law Clinic, Stanford, California; for Petitioner.

Jared Fish (argued), Attorney; Robert H. Solomon, Solicitor; David Morenoff, Acting General Counsel; Federal Energy Regulatory Commission, Washington, D.C.; for Respondents.

Joshua E. Adrian and Donald H. Clarke, Duncan Weinberg Genzer & Pembroke P.C., Washington, D.C., for Respondent-Intervenor.

Before: M. Margaret McKeown and Jacqueline H. Nguyen, Circuit Judges, and Robert H. Whaley,^* District Judge.

McKEOWN, Circuit Judge:

In this petition for review, we consider whether the Federal Energy Regulatory Commission (the "Commission") acted arbitrarily or capriciously, or abused its discretion, in denying National Parks Conservation Association's (the "Association") motion to intervene in post-licensing deadline extension proceedings. We conclude that it did not and that the Commission did not violate the Federal Power Act ("FPA") in failing to provide public notice. Accordingly, we deny the petition.

BACKGROUND

At the heart of this dispute is the Eagle Mountain Pumped Storage Hydroelectric Project in California (the "Project"). On June 19, 2014, the Commission issued Eagle Crest Energy Company ("Eagle Crest") an original license to construct, operate, and maintain the Project pursuant to sections 4(e) and 15 of the FPA (the "License"). See 16 U.S.C. §§ 797(e), 808. The Project would serve as a closed-loop pumped storage facility to provide system peaking capacity and transmission regulating benefits to Southern California's regional electric utilities. It is set to occupy approximately 2,500 acres of an abandoned mine site, on private and Bureau of Land Management ("BLM") lands situated near the eastern boundary of Joshua Tree National Park.

The chronology of the proceedings following the original licensing is illuminating. Article 301 of the License required Eagle Crest to commence Project construction within two years of the License's issuance and to complete construction within seven years of the License's issuance. Approximately four months before the deadline to commence construction, Eagle Crest requested an extension to commence construction. Under Section 13 of the FPA, 16 U.S.C. § 806, as it existed at that time, the Commission was authorized to issue a single, two-year extension of time. The Commission granted Eagle Crest's request and set June 19, 2018 as the new deadline.

Eagle Crest again failed to commence construction by the new deadline. On the same day that the extended deadline expired, the Association requested that the Commission issue a notice of probable termination of the License, noting that Eagle Crest had exhausted the number of statutory extensions allowed by Section 13 of the FPA. The Commission never acted on the Association's request.

Later, on October 23, 2018, Congress enacted the America's Water Infrastructure Act of 2018 (the "Infrastructure Act"). The Infrastructure Act amended Section 13 of the FPA by changing the maximum number of extensions a licensee could receive from a one-time, two-year extension to any number of extensions totaling "not more than 8 additional years." Infrastructure Act, Pub. L. No. 115-270, § 3001(b), 132 Stat. 3765, 3862 (2018).

Relying on the newly amended version of Section 13 of the FPA, and almost five months after expiration of its extended deadline, Eagle Crest, on November 6, 2018, requested a second two-year extension to commence construction.¹ The company did not seek any other changes to the Project or the License. Although the Commission did not issue public notice of this request, the Association moved to intervene in the deadline extension proceedings and filed comments arguing that the Commission could not apply the Infrastructure Act to a license that, in the Association's view, had already expired. No person or entity opposed the Association's intervention motion. On December 18, 2018, Eagle Crest requested a corresponding two-year extension to complete construction.

The Commission issued an order granting an extension of the deadlines to commence and complete construction and denying the Association's motion to intervene on May 7, 2019 (the "Extension Order").² As to the motion to intervene, the Commission explained that, according to Commission precedent, "a request to extend the deadline for the commencement of project construction is generally not an action subject to intervention" and that the Association had not otherwise "explained how it would be adversely affected by the proposed extension." Eagle Crest Energy Co. , 167 FERC ¶ 61,117, 61,631 (2019). One Commissioner dissented from the denial of the motion to intervene. Id. at 61,631–32.

The Association timely sought rehearing and requested a stay of the Extension Order, claiming that the Commission violated Rule 214 of the Commission's regulations in denying intervention and Section 6 of the FPA in failing to issue a public notice of the deadline extension proceedings. See 18 C.F.R. § 385.214 ; 16 U.S.C. § 799.

On September 19, 2019, the Commission issued an order denying the requests for rehearing and a stay (the "Rehearing Order"). The Commission concluded that Rule 214, the relevant intervention regulation, was inapplicable because post-licensing deadline extension proceedings are not proceedings where the Commission permits intervention, the extension-of-time request was not a material amendment to the License such that an exception to its precedent was warranted, and the Commission did not violate the FPA's notice requirements. One Commissioner again partially dissented. The Association filed a petition for review of the orders.³

ANALYSIS

Our review of Commission orders, governed by the FPA, is highly deferential. Cal. Trout v. FERC , 572 F.3d 1003, 1012 (9th Cir. 2009). We examine only whether the Commission's decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A) ; see also Cal. Pub. Utils. Comm'n v. FERC , 879 F.3d 966, 973 (9th Cir. 2018). Under the arbitrary and capricious standard, "[a] court is not to ask whether a regulatory decision is the best one possible or even whether it is better than the alternatives." FERC v. Elec. Power Supply Ass'n , 577 U.S. 260, 292, 136 S.Ct. 760, 193 L.Ed.2d 661 (2016). While we are "not to substitute [our] judgment for that of the agency," the Commission nevertheless "must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made." Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (internal quotation marks omitted). We do not disturb the Commission's factual findings unless they are unsupported by substantial evidence. 16 U.S.C. § 825l (b) ; see also Am. Rivers v. FERC , 201 F.3d 1186, 1194 (9th Cir. 1999).

I. MOTION TO INTERVENE

We first address whether the Commission erred in denying the Association's motion to intervene. Although the Association was not a party to the proceedings, we have jurisdiction to address this question because a non-party petitioner is "considered a party for the limited purpose of reviewing the agency's basis for denying party status." Covelo Indian Cmty. v. FERC , 895 F.2d 581, 586 (9th Cir. 1990) (per curiam) (citation omitted); see also 16 U.S.C. § 825l (a) – (b) (providing that only a "party" to Commission proceedings may seek administrative or judicial review of the Commission's final orders); 18 C.F.R. § 385.102(c) (defining "party" as "[a]ny respondent to a proceeding" or "[a] person whose intervention in a proceeding is effective under Rule 214").⁴

Section 308 of the FPA grants the Commission the authority to promulgate rules and regulations governing the process through which interested persons become "parties" to a Commission proceeding:

In any proceeding before it, the Commission, in accordance with such rules and regulations as it may prescribe , may admit as a party any interested State, State commission, municipality, or any representative of interested consumers or security holders, or any competitor of a party to such proceeding, or any other person whose participation in the proceeding may be in the public interest.

16 U.S.C. § 825g(a) (emphasis added).

The rule at issue here is the Commission's Rule 214, which governs intervention:

(a) Filing.

...

(3) Any person seeking to intervene to become a party ... must file a motion to intervene.

...

(b) Contents of motion.

(1) Any motion to intervene must state, to the extent known, the position taken by the movant and the basis in fact and law for that position.

(2) A motion to intervene must also state the movant's interest in sufficient factual detail to demonstrate that:

(i) The movant has a right to participate which is expressly conferred by statute or by Commission rule, order, or other action; (ii) The movant has or represents an interest which may be directly affected by the outcome of the proceeding ...; or

(iii) The movant's participation is in the public interest.

(3) If a motion to intervene is filed after the end of any time period established under Rule 210, such a motion must, in addition to complying with p

...