National Wildlife Federation v. F.E.R.C.
| Decision Date | 30 September 1986 |
| Docket Number | No. 84-7325,84-7325 |
| Parties | 17 Envtl. L. Rep. 20,111 NATIONAL WILDLIFE FEDERATION, Idaho Wildlife Federation, Petitioners, and The Nez Perce Tribe, Intervenor-Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Terence L. Thatcher, Portland, Or., for petitioners.
Wilfrid Longeteig, Strom & Longeteig, Craigmont, Idaho, for intervenor-petitioner Nez Perce Tribe.
Kenneth O. Eikenberry, Atty. Gen., D. Anthony Weeks, Asst. Atty. Gen., Olympia, Wash., for amicus curiae Washington State Dept. of Fisheries & Game.
Joshua Z. Rokach, General Counsel, F.E.R.C., Washington, D.C., for respondent.
Frank W. Ostrander, Douglas J. Balfour, Northwest Power Planning Council, Portland, Or., for amicus curiae Northwest Power Planning Co.
Appeal from a Decision of the Federal Energy Regulatory Commission.
Before BROWNING, Chief Judge, ALARCON, Circuit Judge, and STEPHENS, * District Judge.
I
The Director of the Office of Electric Power Regulation of the Federal Energy Regulatory Commission ("Commission") issued seven preliminary permits to develop license applications for hydroelectric power projects along the Salmon River, flowing in a 420 mile-long arc through central Idaho. The Nez Perce Tribe ("Tribe"), and the National Wildlife Federation and Idaho Wildlife Federation (jointly referred to as "the Federation"), appealed to the Commission. The Commission affirmed the Director's action, 25 F.E.R.C. p 61,410 (1983), and denied rehearing. 26 F.E.R.C. p 61,330 (1984). Petitioners sought review.
The Federation contends the Commission violated the Federal Power Act, 16 U.S.C. Secs. 791a-793, 796-818, 820-825u (1982), the National Environmental Policy Act ("NEPA"), 42 U.S.C. Secs. 4321-4370a (1982), and the Pacific Northwest Electric Power Planning and Conservation Act ("Northwest Power Act"), 16 U.S.C. Secs. 839-39h (1982). The Nez Perce Tribe argues that the Commission has breached its obligations under the Nez Perce Treaty, 12 Stat. 957 (1855). We conclude the order must be set aside and the matter remanded to the Commission for further consideration. 1
II
The Federation contends the Federal Power Act, 16 U.S.C. Sec. 803(a), requires the Commission to develop a comprehensive plan for hydroelectric development in the Salmon River Basin before granting preliminary permits for particular projects, to direct permittees to conduct studies that would provide data necessary to evaluate the cumulative impacts of proposed projects, to impose uniform study guidelines, and to collect baseline environmental data. The Commission concedes the Federal Power Act requires development of a comprehensive plan and consideration of cumulative impacts before licenses are issued, but denies the necessity for these steps before preliminary permits are issued. The question presented is whether the Commission's decisions not to develop a comprehensive plan, not to require permittees to study cumulative impacts, not to impose uniform study guidelines on permittees, and not to collect baseline environmental data, were arbitrary, capricious, not in accordance with law, or unsupported by the record.
Congress' commitment to coordinated study and comprehensive planning along an entire river system before hydroelectric projects are authorized is a central feature of the Federal Power Act. This concern is reflected in the legislative histories of the Federal Power Act and its precursors. The General Dam Act of 1910 "provided that there should be a comprehensive plan for the development of a river and waterway system; that each particular dam project should be given consideration not only with a view to the locality where constructed but with reference to the entire water system of which it constituted a part...." 2 The Newlands Act of 1917, which was directed at the same purposes as the Federal Power Act, 3 required "the making ... [of] a comprehensive plan for the doing of whatever may be required to control and regulate the flow of that river, prevent floods, and standardize the navigable stage of the river throughout the year...." 4 As the Federal Power Commission has recognized, "the concept of considering a particular water-shed as a whole is the backbone of the Federal Power Act." The California Oregon Power Co., 23 F.P.C. 59, 61 (1960). 5
The Federal Power Act requires that a comprehensive plan for river basin development be available before licensing. 6 The Act contains no express provision that such a plan must be developed before issuance of preliminary permits. Petitioners assert, however, that whether in every case the Commission must develop a comprehensive plan before issuing preliminary permits, in this case the Commission can discharge its statutory duties only by doing so.
The Federal Power Act and the regulations implementing the permit process demonstrate that the primary purpose for issuing preliminary permits is to induce the permittees to gather the information necessary for licensing. 7 Section 797(f) of the Act authorizes issuance of preliminary permits only "for the purpose of enabling applicants for a license hereunder to secure the data and to perform the acts required by section 802 of this title," which stipulates the requirements for filing a satisfactory license application.
The regulations specify the nature, form, and extent of the information a license applicant must gather at the permit stage. See 18 C.F.R. Secs. 4.38-4.71 (1986). All preliminary permit applications must contain "a description of studies conducted or to be conducted." Id. at Sec. 4.81(c). Certain studies are required in all cases. Id. The Commission usually specifies other studies that must be conducted in the particular case. The Commission uses its control over the content of permit articles to require permittees to conduct "the type of permit studies that will elicit necessary information for licensing proceedings." Commission's brief at 9.
As the Federal Power Commission has said:
The purpose of a preliminary permit is to enable an applicant to make his investigations, examinations and surveys, prepare his maps, plans and specifications, and estimates, make his financial arrangements, and gather whatever other data is required in order to obtain a license. The intent of the Federal Power Act is to have applicants act diligently and complete all the necessary investigations during the period of the preliminary permit.
Robert P. Wilson, 28 F.P.C. 571, 573 (1962) (citation omitted). The Commission licensing decision is to be based on "the detailed studies and agency consultation to be conducted under the permit." Appomattox River Water Authority v. FERC, 736 F.2d 1000, 1003 (4th Cir.1984) (quoting John J. Hockberger, Sr., 20 F.E.R.C. p 61,087 (1982)).
If the needed information can be collected by permittees in the absence of a comprehensive plan, it may not be necessary to develop such a plan before preliminary permits are issued. If, on the other hand, the necessary information cannot be obtained unless a comprehensive plan is first developed, the Commission would abuse its discretion if it issued a preliminary permit without first developing a comprehensive plan. Permits issued in such circumstances could not serve the purpose defined by the statute and regulations. 8 Similarly, if the cumulative impacts of potential projects can be determined only by requiring permittees to conduct studies or collect data necessary to evaluate such impacts, the Commission would abuse its discretion if it failed to require permittees to make such studies or gather such data, absent some sound reason for the omission. 9
In short, the issue before the Commission was whether the ecological system in the Salmon River Basin was so complex and the proposed power projects so numerous 10 that the Commission should have taken any of the following steps requested by petitioners before issuing the preliminary permits: (1) prepared a comprehensive plan; (2) required permittees to conduct studies to provide data by which cumulative impacts of proposed projects could be assessed; (3) collected baseline environmental data and furnished it to permittees; (4) included uniform study criteria and guidelines in the permit articles. The issue before the court is whether, given the evidence before it, the Commission abused its discretion in concluding that none of these measures was necessary to provide the Commission with the information needed to make a properly-informed licensing decision. Resolving this issue requires an examination of the events preceding the Commission's issuance of the permits in question.
Anticipating the large number of permit applications for hydroelectric development in what all concede is an ecologically sensitive area, the Federation sought to intervene in some of the early applications for permits and requested the Commission to prepare a comprehensive plan for the Salmon River Basin, to require permittees to conduct studies designed to produce information from which the Commission could assess the likely cumulative impacts of proposed hydropower development, to require uniform study guidelines as a condition of the permit articles, and to collect baseline environmental data. 11
The Commission created a special docket number for the petitions requesting coordination, comprehensive planning, and study of cumulative impacts. The Commission staff prepared two draft documents: one describing a methodology for assessing effects of hydroelectric development of the Salmon River Basin and the other outlining a system for classifying projects based on cumulative adverse environmental impact.
The Commission held public hearings on these documents in Boise, Idaho and Everett, Washington. 12 The Commission began the hearings by identifying their purpose as follows:
The goal of these sessions...
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