Save Our Sebasticook v. Federal Energy Regulatory

• Decision Date: 09 December 2005
• Docket Number: No. 04-1221.,04-1221.
• Parties: SAVE OUR SEBASTICOOK, Petitioner v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent American Rivers, et al., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

431 F.3d 379

SAVE OUR SEBASTICOOK, Petitioner v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent

American Rivers, et al., Intervenors.

No. 04-1221.

United States Court of Appeals, District of Columbia Circuit.

Argued October 14, 2005.

Decided December 9, 2005.

On Petition for Review of Orders of the Federal Energy Regulatory Commission.

Anthony W. Buxton argued the cause for petitioner. With him on the briefs was Linda S. Lockhart.

Lona T. Perry, Attorney, Federal Energy Regulatory Commission, argued the cause for respondent. With her on the brief were Cynthia A. Marlette, General Counsel, and Dennis Lane, Solicitor.

John L. Smeltzer and Anna T. Katselas, Attorneys, U.S. Department of Justice, were on the brief for intervenor United States Department of the Interior.

Charles Owen Verrill, Jr., M. Evan Corcoran, and Sarah E. Tomalty were on the brief for intervenors American Rivers, et al.

Before: GINSBURG, Chief Judge, and HENDERSON and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge.

In an application to the Federal Energy Regulatory Commission, the owner and operator of a hydroelectric project sought to surrender its license and remove part of its dam on the Sebasticook River in Maine. Over the objection of nearby landowners, the Commission granted the application and denied the landowners' petition for rehearing. FPL Energy Maine Hydro, LLC, 106 F.E.R.C. ¶ 61,038 (Initial Order), reh'g denied, 107 F.E.R.C. ¶ 61,120 (2004) (Rehearing Order).

The owner of the hydroelectric project, FPL Energy Maine Hydro, LLC, determined that installation of a fish passage device, at a capital cost of $4.1 million with $130,000 in annual operating expenses, rendered the project economically infeasible. (The project's annual revenues were approximately $165,000 to $265,000.) Installation of the device — a fish lift — became a condition on FPL's license after the Commission amended the license to include the terms of a settlement agreement entered into by the project's previous owner, federal and state agencies, and conservation groups. See Edwards Mfg. Co., 84 F.E.R.C. ¶ 61,227, at 62,092-93, 62,097 (1998).

Save Our Sebasticook (SOS), the landowners' association, complained that breaching the dam would drain the century-old reservoir behind it, diminishing property values and depriving SOS's members of the reservoir's recreational benefits. SOS urged the Commission to require FPL to install a less expensive fish passage device — a "Canavac" fish pump — and to continue operating the project. There was some doubt whether the fish pump was a viable alternative. At the Commission's direction, FPL consulted with other signatories to the agreement and reported back that most of the parties, including the United States Department of the Interior, insisted on installation of the fish lift or partial removal of the dam to allow fish passage.

After further proceedings unnecessary to recount, the Commission granted FPL's surrender application pursuant to section 6 of the Federal Power Act, 16 U.S.C. § 799, which provides that licenses "may be altered or surrendered only upon mutual agreement between the licensee and the Commission." See Initial Order, 106 F.E.R.C. at 61,143. Among the reasons for its decision, the Commission stated that "a licensee is not compelled to continue operating a project if it wishes to surrender its license." Id. While the Commission had the options of conditioning surrender on "partial or total dam removal or to approve it without dam removal," id. at 61,143-44, it believed that partial dam removal would be in the public interest in light of the "long-standing fisheries goal in this river basin," id. at 61,144. In this initial order, and in its order denying SOS's rehearing petition, the Commission rejected the plea that it amend FPL's license to require installation of a fish pump, something the Commission thought it could not do unless FPL had applied for an amendment to its license, which it had not. See id. at 61,142-43; Rehearing Order, 107 F.E.R.C. at 61,404.

SOS's petition for judicial review raises four objections to the Commission's orders: (1) the Commission erred in concluding that it had no discretion to deny the surrender application or to force FPL to continue operating the project with license modifications; (2) the Commission should have evaluated its options under the "best adapted to a comprehensive plan" standard instead of the "public interest" standard; (3) the Commission's decision misinterprets section 6 of the Federal Power Act; and (4) the Commission improperly allowed the agreement between FPL and the federal and state agencies and conservation groups to affect its judgment.

Only the fourth of these objections is properly before us. Neither SOS nor the individual landowners raised the other three in their rehearing requests. Under section 313(b) of the Federal Power Act, "[n]o objection to the order of the Commission shall be considered by the court unless such objection shall have been urged before the Commission in the application for rehearing unless there is reasonable ground for failure so to do." 16 U.S.C. § 825l(b). Enforcement of this provision, which we have considered to pose a jurisdictional bar, see, e.g., City of Orrville v. FERC, 147 F.3d 979, 990 (D.C.Cir.1998); Kelley ex rel. Mich. Dep't of Natural Res. v. FERC, 96 F.3d 1482, 1487 (D.C.Cir.1996); Town of Norwood v. FERC, 906 F.2d 772, 774 (D.C.Cir.1990), enables the Commission to correct its own errors, which might obviate judicial review, or to explain why in its expert judgment the party's objection is not well taken, which facilitates judicial review. See, e.g., Granholm ex rel. Mich. Dep't of Natural Res. v. FERC, 180 F.3d 278, 281 (D.C.Cir.1999); Nw. Pipeline Corp. v. FERC, 863 F.2d 73, 77-78 (D.C.Cir.1988). SOS asks us to construe its claims on rehearing liberally because the organization was not then represented by counsel. But even the most generous construction would not have alerted the Commission to the legal arguments SOS now raises before us. The statement in SOS's rehearing petition reminding the Commission of its "duty to consider all relevant facts" did not satisfy 16 U.S.C. § 825l(b). See Entergy Servs., Inc. v. FERC, 391 F.3d 1240, 1247 (D.C.Cir.2004). To hold that this empty generality adequately raised SOS's legal objections would be to disregard the provision and the reasons underlying it.

Nor do we believe that SOS has presented, in the words of the statute, a "reasonable ground for [its] failure" to raise these objections on rehearing. 16 U.S.C. § 825l (b). This exception is reserved for an "extraordinary situation." Wis. Power & Light Co. v. FERC, 363 F.3d 453, 460 (D.C.Cir.2004) (internal quotation marks omitted); see also ASARCO, Inc. v. FERC, 777 F.2d 764, 774 (D.C.Cir.1985) (interpreting identical language in the Natural Gas Act). SOS reasons that it would have done no good for it to present its objections in a rehearing petition because the Commission would have rejected them. This involves the troubling proposition that the less convincing the party's objection, the more...