Turlock Irrigation Dist. v. Fed. Energy Regulatory Comm'n

• Decision Date: 15 May 2015
• Docket Number: Nos. 13–1250,13–1253.,s. 13–1250
• Citation: 786 F.3d 18
• Parties: TURLOCK IRRIGATION DISTRICT and Modesto Irrigation District, Petitioners v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent Tuolumne River Trust, et al., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

786 F.3d 18

TURLOCK IRRIGATION DISTRICT and Modesto Irrigation District, Petitioners

v. FEDERAL ENERGY REGULATORY COMMISSION, RespondentTuolumne River Trust, et al., Intervenors.

Nos. 13–1250

13–1253.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 24, 2014.

Decided May 15, 2015.

John A. Whittaker IV argued the cause for petitioners Turlock Irrigation District and Modesto Irrigation District. With him on the briefs was Erica E. Stauffer.

Mary Catherine Race argued the cause for petitioner Tuolumne River Trust and Intervenors. On the briefs were Richard Roos–Collins, Julie Gantenbein, Nicholas Niiro, Robert A. Salerno, and Peter H. Day.

Lisa B. Luftig, Attorney, Federal Energy Regulatory Commission, argued the cause for respondent. On the brief were David L. Morenoff, Acting General Counsel, Robert H. Solomon, Solicitor, Lona T. Perry, Senior Attorney, and Robert M. Kennedy Jr., Attorney.

John A. Whittaker IV and Erica E. Stauffer were on the brief for intervenors Turlock Irrigation District and Modesto Irrigation District in support of respondent.

Richard Roos–Collins, Julie Gantenbein, Nicholas Niiro, Robert A. Salerno, and Peter H. Day were on the brief for intervenors Tuolomne River Trust and Conservation Groups in support of respondent.

Before: PILLARD, Circuit Judge, and SILBERMAN and SENTELLE, Senior Circuit Judges.

Opinion

Opinion for the Court filed by Senior Circuit Judge SENTELLE.

SENTELLE, Senior Circuit Judge:

In the proceeding under review, the Federal Energy Regulatory Commission determined that La Grange Hydroelectric Project (“Project”) fell within the mandatory licensing provisions of the Federal Power Act, 16 U.S.C. § 817(1), for three independent reasons, which we will discuss more fully below. The owners of the Project, Turlock Irrigation District and Modesto Irrigation District (collectively, “Districts”) petition for review of FERC's order, Turlock Irrigation Dist. & Modesto Irrigation Dist., Order on Rehearing, Clarifying Intervention Status, and Denying Stay Pending Judicial Review, 144 FERC ¶ 61,051 (July 19, 2013), contending that the Project does not fall within FERC's licensing jurisdiction. The Tuolumne River Trust and other conservation groups (collectively, “Trust”) petition for review of FERC's order, arguing that FERC erred by not finding that it had licensing jurisdiction for four reasons instead of three. For the reasons set forth more fully below, we conclude that FERC's jurisdictional determinations were supported by substantial evidence and deny the Districts' petition for review.

We dismiss the Trust's petition as it raises no justiciable case or controversy.

BACKGROUND

Between 1891 and 1893, the Districts constructed the regional La Grange facility, which consisted of a dam at River Mile¹ (“RM”) 52.2 of the Tuolumne River, impounding the waters of the river and creating a reservoir for the purpose of irrigating river valley farmland. See Appendix 1 for a map of the region. In 1924, the Districts expanded the facility and its purpose by the construction of the La Grange Powerhouse for the production of hydroelectricity. The Powerhouse was comprised of a smaller unit with two 500 kilowatt generators, and a larger unit with a 3750 kilowatt generator. In 1989, Turlock replaced the Powerhouse's turbines and generating units.

In June 2011, FERC received an inquiry from the National Marine Fisheries Service concerning the status of the theretofore unlicensed La Grange Hydroelectric Project. In response to the inquiry, Commission staff undertook a review of the Project to determine whether it is subject to the Commission's mandatory licensing jurisdiction under the Federal Power Act (“FPA”). Turlock Irrigation Dist. & Modesto Irrigation Dist., 141 FERC ¶ 62,211 (Dec. 19, 2012). FERC provided notice to the Districts and other interested parties of its pending jurisdictional determination. On December 19, 2012, the Director of the Division of Hydropower Administration and Compliance issued an order determining that the Project did require licensure within the jurisdiction of the Commission under the FPA and ordered the Districts to proceed to come into compliance with the requirements of licensure. Id. In the decision, the Director concluded that the licensure was required under three governing provisions of 16 U.S.C. § 817(1) : the Project was (1) located on a navigable water of the United States, (2) occupied public lands of the United States, or (3) if the stream were not navigable, it was in any event one over which Congress had jurisdiction under its authority to regulate commerce. Thereafter, the Districts and the Trust petitioned the Commission for rehearing of the staff-level decision. The Districts argued that the Project was not within the licensure provisions of the FPA. The Trust contended that the Director's opinion erred in not assigning a fourth reason for imposing the licensing requirement: the Trust argued that the Project required licensure because it formed a complete unit of development with the Don Pedro Project, a neighboring federally licensed hydroelectric project. The Commission ruled against the Districts on all three grounds of their appeal. It further concluded that it need not determine whether the fourth ground asserted by the Trust was applicable, as it would not change the result in any event. The Districts and the Trust now petition this court for review of the Commission's order. For the reasons set forth below, we deny the petition of the Districts and dismiss the petition of the Trust.

ANALYSIS

The Federal Power Act renders unlawful the unlicensed construction, operation, or maintenance of any “dam, water conduit, reservoir, power house, or other works incidental thereto across, along, or in” any waters meeting statutory criteria. More specifically, and as relevant here, such licensure is required where the impounded waters are “navigable waters of the United States, or upon any part of the public lands or reservations of the United States ... or ... over which Congress has jurisdiction under its authority to regulate commerce with foreign nations and among the several States....” 16 U.S.C. § 817(1). The Commission found the Tuolumne River to be covered by all three of the quoted criteria. The Trust argues that while the Commission reached the right result that the Project is required to be licensed, it should have ordered that the Project be licensed as part of a single unit with another hydroelectric project, the Don Pedro Project, 2.6 miles upstream from the La Grange Project.

I. The Trust's Petition

Before determining the merits of the cause, we must first satisfy ourselves that we have jurisdiction. One element of jurisdiction is standing. There is no question that the Districts have standing to bring their current petition. They are entities regulated by the order under review, and the relief prayed would alleviate the harm asserted. They allege, and it is evident, that the acts of the Commission have caused the injury of which they complain, that is, that they must submit to licensure. It is equally evident that the relief sought in the current litigation, the vacating of the Commission's order, would alleviate that harm. The same is not true of the Trust.

The Trust seeks to have the Project made subject to the licensure requirements of the FPA. The Commission entered an order declaring that the Project is subject to the licensing requirements of the FPA. The Trust does not seek to have the court change the decision, but only asks the court to tell the Commission that it should do so for four reasons instead of three. Unlike Becket, the Trust does not speak of “do[ing] the right deed for the wrong reason.” T.S. Eliot, Murder in the Cathedral, Act 1. Rather, it accuses the Commission of doing the right thing for too few reasons. This does not establish standing. Because standing “is an essential and unchanging part of the case-or-controversy requirement of Article III,” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), the Trust must establish it has standing before we may exercise jurisdiction over its claims, County of Delaware, Pa. v. Department of Transp., 554 F.3d 143, 147 (D.C.Cir.2009).

It is well established “that the irreducible constitutional minimum of standing contains three elements.” Lujan, 504 U.S. at 560, 112 S.Ct. 2130. “To establish constitutional standing, a petitioner must show an actual or imminent injury in fact, fairly traceable to the challenged agency action, that will likely be redressed by a favorable decision.” Exxon Mobil Corp. v. FERC, 571 F.3d 1208, 1219 (D.C.Cir.2009). An injury in fact is “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (quotations and citations omitted).

The Trust did not suffer an injury in fact because the Trust received exactly what it sought. FERC accepted some of the jurisdictional theories advanced by the Trust, and found that the La Grange Project was required to be licensed. The Trust argues that it is aggrieved because FERC's refusal to license La Grange and the Don Pedro Project in a single proceeding doubles the cost the Trust must bear in order to actively participate in both licensing proceedings, and frustrates the creation of a coordinated fish passage through the two dams, thus resulting in a decline to the fish population. This decline in fish population, they argue, reduces the number of tourists who come to observe the spawning salmon, thus reducing the money the Trust will make from guided tours.

Neither of the Trust's asserted injuries satisfies the constitutional requirement of injury in fact. We have previously recognized that the expenditure of resources on advocacy is not a cognizable Article III injury. See Center for Law and Educ. v. Department of Educ., 396 F.3d 1152, 1162 n. 4...