Rainsong Co. v. F.E.R.C.
| Citation | 78 F.3d 1435 |
| Decision Date | 19 March 1996 |
| Docket Number | No. 93-71035,93-71035 |
| Parties | Util. L. Rep. P 14,096, 26 Envtl. L. Rep. 20,832, 96 Cal. Daily Op. Serv. 1871, 96 Daily Journal D.A.R. 3198 RAINSONG COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Christopher D. Williams, San Andreas, California; William Devine, pro se, Maple Falls, Washington, for the petitioner.
Timm L. Abendroth, Federal Energy Regulatory Commission, Washington, D.C., for the respondent.
Appeal from the Federal Regulatory Commission.
Before: GOODWIN, SNEED, and KLEINFELD, Circuit Judges.
Rainsong Company, following denial of its petition for rehearing by the Federal Energy Regulatory Commission (the Commission), seeks review of an order rejecting Rainsong's application for a hydropower license on a stream within the Olympic National Forest.
Rainsong's efforts to build a hydroelectric power plant (the project) began in 1981. Rainsong applied for a license from the Commission pursuant to the Federal Power Act (FPA), 16 U.S.C. §§ 791a et seq. The license application proposed building the project on Lena Creek.
The first application was denied by order of the Director of the Commission's Office of Hydropower Licensing on June 29, 1987. The denial was based on the conclusion of the Secretary of Agriculture, relying on the Forest Service's staff reports, that the project would interfere and be inconsistent with the purpose of the Olympic National Forest.
Rainsong appealed that order, and the Commission granted its appeal on January 25, 1990. 1 The order reinstated Rainsong's application and gave Rainsong six months to try to resolve the Forest Service's objections and to amend the license application if needed. 2 Rainsong filed an amended application on July 23, 1991. The application proposed The staffs of the Forest Service and the Commission jointly prepared an Environmental Assessment (EA) of the project. The EA concluded that the project would be inconsistent with the Forest Service's 1990 Land Resource Management Plan for the Olympic National Forest (Forest Plan), which designates the Lena Creek area for recreation in a natural, undeveloped setting. 3
construction of a five-megawatt hydroelectric plant. The project would consist of a ten-foot-high, 120-foot-wide concrete dam to divert water from Lena Creek through an intake structure, which would include a 2,300-foot-long steel pipeline and a 1,500-foot-long "penstock." The water would flow through a penstock into a large, concrete power house, and then out through a 150-foot-long tailrace into the Hamma Hamma River. The project would also require a six-mile underground transmission line, a fifty-foot connecting road from the powerhouse to an existing Forest Service road, and other facilities
The EA delivered its opinion that the project would detract from the natural appearance of the area, parts of which could be seen from a popular hiking trail. The EA did not add, however, that a substantial number of clear cuts could also be viewed from the same trail. The EA asserted that the project would create an attractive nuisance, warning signs and fences would be needed to prevent vandalism and possible injury to persons who might not heed warnings signs, all of which would impact the pre-construction scenic beauty. The EA also asserted that the diversion of water at the intake facility would reduce the pleasant sights and sounds of Lena Creek's rushing water. Moreover, the EA concluded that the project would be inconsistent with the Forest Service's Spotted Owl Plan, which restricts development in areas of owl habitat, including Lena Creek. Based on the foregoing conclusions, the Commission issued an order denying Rainsong's license application. Id.
Rainsong again filed a request for rehearing, arguing that the EA's factual conclusions were erroneous and that the Commission had failed to balance developmental considerations with the non-developmental ones. On October 22, 1993, the Commission denied the request for rehearing. 4 Rainsong timely petitioned for review. This court has jurisdiction pursuant to the FPA, § 313(b), 16 U.S.C. § 825l(b).
STANDARD OF REVIEW
Our review of agency licensing decisions is limited to asking whether the agency's action was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law, or if it was taken without observance of procedure required by law. Loomis Cabinet Co. v. OSHRC, 20 F.3d 938, 941 (9th Cir.1994). An agency's interpretation of a statutory provision or regulation it is charged with administering is entitled to a high degree of deference. Todd Shipyards Corp. v. Director, Office of Workers Compensation Programs, 950 F.2d 607, 610 (9th Cir.1991). Courts must, however, reject administrative orders that are contrary to congressional intent. Id. Here we have a competition between two environmental values. Water power using abundant rainfall and favorable topography reduces negative environmental consequences of burning fossil fuel. However, water power engineering in a pristine forest has its own environmental consequences.
The Federal Energy Regulatory Commission shall be guided by § 4(e) of the FPA when considering project applications. Two provisions of § 4(e) are central to our analysis. The first states:
"[The Commission is authorized] to issue licenses ... for the purpose of constructing, operating, and maintaining ... project works necessary or convenient for the ... development, transmission, and utilization of power ... Provided, That licenses shall be issued within any reservation only after a finding by the Commission that the license will not interfere or be inconsistent with the purpose for which such reservation was created or acquired ..." 6
Section 4(e) was amended in 1986 in the Electric Consumers Protection Act (ECPA), Pub.L. 99-495, § 3(a). The amended provision states:
In deciding whether to issue any license under this Part for any project, 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. 7
The parties' respective interpretations of § 4(e) may be summarized as follows. The Commission contends that the 1986 amendment need be considered only if it first finds the project "consistent" with the purposes of the forest reservation. 8 Rainsong, on the other hand, contends that both provisions of the statute must be addressed and that the Commission's refusal to consider the latter provision amounts to a failure to comply with the mandate that the Commission shall equitably weigh the benefits of hydroelectric power with environmental impact.
An agency's interpretation of a legislative delegation is entitled to deference where Congress' intent on the issue is not explicit. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 2782-83, 81 L.Ed.2d 694 (1984). "[A] court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency." Id. However, courts have the duty to make sure that the agency followed the relevant statute. Bureau of Alcohol, Tobacco and Firearms v. Federal Labor Relations Authority, 464 U.S. 89, 104 S.Ct. 439, 78 L.Ed.2d 195 (1983) ().
If competing statutory intentions point generally in a common direction, it is the task of the agency to pursue a middle course that vitiates neither stated intent but implements to the fullest extent possible the directives of each, and it is the task of the reviewing court to ensure that the agency has effectively and appropriately harmonized We look first to the plain meaning of § 4(e). We do not find it to be ambiguous and, thus, we will defer to the Commission's interpretation of § 4(e) only if it is compatible with Congress' clear intent as expressed by the plain meaning of the statute.
the provisions while remaining within the bounds of that agency's statutory authority. Citizens to Save Spencer County v. EPA, 600 F.2d 844, 871 (D.C.Cir.1979). In order for this Court to affirm the Commission's interpretation of § 4(e), we must either hold that the agency gave effect to the intent of Congress or, in the alternative, that the statute is inherently ambiguous, making the Commission's interpretation reasonable and worthy of deference.
The Commission contends that § 4(e), with respect to the two cited provisions, establishes a procedure whereby the Commission will apply the second provision only if it is satisfied that the proposed development plan meets the conditions set forth in the first provision. The Commission points to the language of the statute, which states as a proviso that "licenses shall be issued within any reservation only...
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Rainsong Co. v. F.E.R.C., 93-71035
...Proj. No. 6287-007. Before: GOODWIN, SNEED, and KLEINFELD, Circuit Judges. ORDER The opinion filed March 19, 1996, appearing at 78 F.3d 1435 (9th Cir.1996), is GOODWIN, Circuit Judge: Rainsong Company, following denial of its petition for rehearing by the Federal Energy Regulatory Commissio......
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