Sugarloaf Citizens Ass'n v. F.E.R.C., No. 91-2905

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtBefore HALL and MURNAGHAN; ALEXANDER HARVEY, II
Citation959 F.2d 508
Decision Date13 March 1992
Docket NumberNo. 91-2905
PartiesSUGARLOAF CITIZENS ASSOCIATION; Karen Kalla; J. Houston Miller; Beverly Thoms; James Buchanan; Faye Buchanan; Taylorstown Community Association, Incorporated; National Trust for Historic Preservation in the United States, Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Northeast Maryland Waste Disposal Authority; Montgomery County, Maryland, Intervenors.

Page 508

959 F.2d 508
SUGARLOAF CITIZENS ASSOCIATION; Karen Kalla; J. Houston
Miller; Beverly Thoms; James Buchanan; Faye Buchanan;
Taylorstown Community Association, Incorporated; National
Trust for Historic Preservation in the United States, Petitioners,
v.
FEDERAL ENERGY REGULATORY COMMISSION, Respondent,
Northeast Maryland Waste Disposal Authority; Montgomery
County, Maryland, Intervenors.
No. 91-2905.
United States Court of Appeals,
Fourth Circuit.
Argued Oct. 29, 1991.
Decided March 13, 1992.

Page 509

Andrea Carol Ferster, Asst. Gen. Counsel, Nat. Trust for Historic Preservation in the U.S., Washington, D.C., argued (David A. Doheny, Vice President and General Counsel, Elizabeth S. Merritt, Associate General Counsel, Nat. Trust for Historic Preservation in the U.S., Ronald J. Wilson, Sierra Club Legal Defense Fund, on brief), for petitioners.

Thomas J. Lane, F.E.R.C., Washington, D.C., argued (William S. Scherman, General Counsel, Jerome M. Feit, Sol., Joseph S. Davies, Deputy Sol., F.E.R.C., on brief), for respondent.

Mary Fisher Edgar, Piper & Marbury, Washington, D.C., argued (Toni K. Allen,

Page 510

Norman L. Rave, Jr., Piper & Marbury, Washington, D.C., Paul A. Tiburzi, Piper & Marbury, Baltimore, Md., on brief), for intervenor Northeast Maryland Waste Disposal Authority (Joyce R. Stern, County Atty., Diane R. Kamer, Associate County Atty., Montgomery County, Rockville, Md., on brief), for intervenor Montgomery County.

Before HALL and MURNAGHAN, Circuit Judges, and HARVEY, Senior United States District Judge for the District of Maryland, sitting by designation.

OPINION

ALEXANDER HARVEY, II, Senior District Judge:

This appeal seeks a review of Orders of the Federal Energy Regulatory Commission (the FERC). By Order dated November 1, 1990, the FERC granted the application of the Northeast Maryland Waste Disposal Authority (the "Authority") which sought certification of a resource recovery facility (the "Facility" or "Incinerator") as a qualifying small power production facility (qualifying facility or "QF") under § 210 of the Public Utility Regulatory Policies Act (PURPA), 16 U.S.C. § 824a-3. By Order dated January 24, 1991, the FERC denied rehearing.

As intervenors in the FERC certification proceedings, 1 Petitioners, the Sugarloaf Citizens Association, Karen Kalla, J. Houston Miller, Beverly Thoms, James and Faye Buchanan, the Taylorstown Community Association, and the National Trust for Historic Preservation, had requested that the FERC conduct a review of the environmental impact of the Facility under the National Environmental Policy Act ("NEPA") and also of the impact of the Facility on historic structures under the National Historic Preservation Act ("NHPA"). The FERC denied these requests in its Order of November 1, 1990, ruling that certification under PURPA was neither a "major Federal action," triggering review under NEPA, nor a federal "undertaking," triggering review under NHPA. Petitioners subsequently filed a petition for a rehearing, which was also denied.

Concluding that the agency determinations were reasonable under all the circumstances, we affirm the Orders of the FERC.

I

In order to address its solid waste disposal problems, Montgomery County planned the construction of a waste-to-energy facility which would preserve resources by producing energy without consuming natural resources. The County decided to locate the Facility in Dickerson, Maryland, adjacent to an existing generating station operated by Potomac Electric Power Company ("PEPCO"). To help defray the cost of waste disposal, the Facility was designed to utilize the heat produced by incinerating waste to generate electricity which would be sold to PEPCO.

The Facility was to be owned and operated by the Authority. The Authority is an independent state agency created by the Maryland General Assembly in 1980 to assist jurisdictions like Montgomery County in the development of adequate waste disposal facilities, including those that provide for energy generation and resource recovery. The Facility was to be constructed and operated by the Authority in cooperation with the County.

Petitioners assert that Dickerson, Maryland, the planned location of the Incinerator, is an environmentally sensitive and historically unique region. The 35-acre site near Dickerson lies in Montgomery County's Agricultural Preserve, which includes the Sugarloaf Mountain Historic District. Sugarloaf Mountain is a registered National Natural Landmark. In asking the FERC to review the application under NEPA and NHPA, Petitioners expressed concerns that the Incinerator, in conjunction with the existing

Page 511

generating station operated by PEPCO, would severely impact upon the historical, cultural, and recreational resources in the area. They press those arguments here.
II

PURPA was enacted by Congress in 1978 for the purpose of encouraging the development of cogeneration facilities 2 and small power production facilities. To encourage this development, PURPA confers certain benefits on this type of facility. 16 U.S.C. § 824a-3. Qualifying facilities are exempt from most federal and state regulation of electric utilities. Moreover, a utility like PEPCO must provide electricity to such a facility and buy from such a facility electricity generated, at reasonable rates not to exceed "the incremental cost to the electric utility of alternative electric energy," pursuant to rules determined to be necessary by the FERC for the encouragement of cogeneration and small power production. 16 U.S.C. § 824a-3(b).

To achieve status as a "qualifying facility" and thereby receive PURPA benefits, a cogeneration or small power production facility cannot be owned by a person "primarily engaged in the generation or sale of electric power (other than electric power solely from cogeneration facilities or small power production facilities)" and the facility must meet "such [other] requirements ... as the Commission may, by rule, prescribe." 16 U.S.C. §§ 796(17)(C) and (18)(B). The FERC has adopted extensive rules pursuant to this Congressional directive. See 18 C.F.R. § 292.203 through § 292.206 (1990). These rules detail the size and ownership restrictions set forth in PURPA and contain technical requirements concerning the types of fuel that may be used for a small power production facility. 18 C.F.R. § 292.204 (1990). Specifically, any facility that (1) has a power production capacity of less than 80 megawatts, (2) obtains 75 percent or more of its energy input from biomass, waste or renewable or geothermal resources, and (3) is not more than 50 percent owned by one or more electric utilities or electric utility holding companies is a qualified small power producer. 18 C.F.R. §§ 292.204, 292.206 (1990).

So that the proposed Facility might qualify for benefits under PURPA, the Authority and PEPCO agreed by contract that the Authority would apply to the FERC for certification as a qualified small power producer. Certification is an optional procedure permitted by FERC regulations, whereby, upon application, the FERC will issue a certificate stating that a facility meets the criteria set forth in the regulations for a qualified small power producer. 18 C.F.R. § 292.207(b). However, the FERC regulations permit a facility to choose to by-pass the procedure for certification by the FERC and instead opt for self-certification. 18 C.F.R. § 292.207(a)(1). The regulations state that "[a] small power production facility which meets the criteria for qualification set forth in § 292.203 is a qualifying facility." Id. (Emphasis added).

On July 25, 1990, the Authority filed an application with the FERC setting forth grounds demonstrating that the Facility would meet the size, fuel use and ownership criteria for certification. Petitioners intervened on August 27, 1990, claiming that PURPA certification is subject to the requirements of NEPA, 42 U.S.C. §§ 4321 et seq., and also to the requirements of NHPA, 16 U.S.C. §§ 470 et seq. The County intervened in support of the application. Petitioners argued that, under NEPA and NHPA, the FERC was required before granting the requested certification to conduct detailed evaluations of the Facility's potential impact on the environment and also its potential effect on historic sites. In its Order of November 1, 1990, the FERC granted certification to the Facility, ruling that certification under PURPA is neither a "major Federal action" which would trigger the review requirements of

Page 512

NEPA nor a federal "undertaking" which would trigger those of NHPA. After their motion for rehearing was denied, Petitioners appealed and have now asked this Court to review the FERC's determinations. The FERC has opposed the petition for review,...

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    ...Andrus v. Sierra Club, 442 U.S. 347, 358, 99 S.Ct. 2335, 60 L.Ed.2d 943 (1979); Sugarloaf Citizens Ass'n v. Fed. Energy Regulatory Comm'n, 959 F.2d 508, 512 n. 3 (4th Cir.1992). In pertinent part, CEQ regulations prescribe the scope of the environmental impact statement as Scope consists of......
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    ...1250, 1262 (10th Cir. 2001); Am. Airlines, Inc. v. Dep't of Transp., 202 F.3d 788, 803 (5th Cir. 2000); Sugarloaf Citizens Ass'n v. FERC, 959 F.2d 508, 513 (4th Cir. 1992); NAACP v. Med. Ctr., Inc., 584 F.2d 619, 633-34 (3d Cir. 1978). Although this case law and the revised NEPA regulations......
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    ...and CEQ's interpretation of NEPA is entitled to substantial deference.” Sugarloaf Citizens Ass'n v. Fed. Energy Regulatory Comm'n, 959 F.2d 508, 512 n. 3 (4th Cir.1992) (citing Andrus v. Sierra Club, 442 U.S. 347, 358, 99 S.Ct. 2335, 60 L.Ed.2d 943 (1979)). NEPA contains no independent priv......
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    ...to use the dual standard. See Lower Alloways, 687 F.2d at 740 n. 15. Sugarloaf Citizens Ass'n v. Federal Energy Regulatory Comm'n, 959 F.2d 508, 512 (4th Cir.1992) ("Only proposals for a 'major' federal action therefore require review by an agency under NEPA," (citing NAACP, 584 F.2d at 634......
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30 cases
  • N.C. Alliance for Transp. Reform v. D.O.T., No. 1:99CV00134.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • June 4, 2001
    ...Andrus v. Sierra Club, 442 U.S. 347, 358, 99 S.Ct. 2335, 60 L.Ed.2d 943 (1979); Sugarloaf Citizens Ass'n v. Fed. Energy Regulatory Comm'n, 959 F.2d 508, 512 n. 3 (4th Cir.1992). In pertinent part, CEQ regulations prescribe the scope of the environmental impact statement as Scope consists of......
  • Stand Up for California! v. United States Dep't of Interior, 2:16-cv-02681-AWI-EPG
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • August 5, 2021
    ...1250, 1262 (10th Cir. 2001); Am. Airlines, Inc. v. Dep't of Transp., 202 F.3d 788, 803 (5th Cir. 2000); Sugarloaf Citizens Ass'n v. FERC, 959 F.2d 508, 513 (4th Cir. 1992); NAACP v. Med. Ctr., Inc., 584 F.2d 619, 633-34 (3d Cir. 1978). Although this case law and the revised NEPA regulations......
  • North Carolina Alliance For Transp. Reform Inc v. United States Dep't Of Transp., No. 1:99cv134
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • May 19, 2010
    ...and CEQ's interpretation of NEPA is entitled to substantial deference.” Sugarloaf Citizens Ass'n v. Fed. Energy Regulatory Comm'n, 959 F.2d 508, 512 n. 3 (4th Cir.1992) (citing Andrus v. Sierra Club, 442 U.S. 347, 358, 99 S.Ct. 2335, 60 L.Ed.2d 943 (1979)). NEPA contains no independent priv......
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    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • July 19, 1994
    ...to use the dual standard. See Lower Alloways, 687 F.2d at 740 n. 15. Sugarloaf Citizens Ass'n v. Federal Energy Regulatory Comm'n, 959 F.2d 508, 512 (4th Cir.1992) ("Only proposals for a 'major' federal action therefore require review by an agency under NEPA," (citing NAACP, 584 F.2d at 634......
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