U.S. Dept. of Interior v. F.E.R.C., Nos. 90-1405

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore EDWARDS, RUTH BADER GINSBURG and D.H. GINSBURG; HARRY T. EDWARDS
Citation952 F.2d 538
Parties, 129 P.U.R.4th 632, 22 Envtl. L. Rep. 20,546 UNITED STATES DEPARTMENT OF the INTERIOR, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. City of New Martinsville, West Virginia, City of Jackson, Ohio, City of Pittsburgh and the Pittsburgh Water and Sewer Authority, the Upper Ohio River Basin Hydro Association, Intervenors. STATE OF WEST VIRGINIA, DEPARTMENT OF NATURAL RESOURCES, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. City of New Martinsville, West Virginia, City of Jackson, Ohio, the Upper Ohio River Basin Hydro Association, Intervenors. AMERICAN RIVERS, Friends of the Earth, Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. The City of Jackson, Ohio, City of Pittsburgh and the Pittsburgh Water and Sewer Authority, City of New Martinsville, West Virginia, the Upper Ohio River Basin Hydro Association, Intervenors. COMMONWEALTH OF PENNSYLVANIA, Pennsylvania Fish Commission, Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. Upper Ohio River Basin Hydro Association, City of Pittsburgh and the Pittsburgh Water and Sewer Authority, City of Jackson, Ohio, City of New Martinsville, West Virginia, Intervenors.
Decision Date10 January 1992
Docket NumberNos. 90-1405,90-1408 and 90-1409,90-1406

Page 538

952 F.2d 538
293 U.S.App.D.C. 182, 129 P.U.R.4th 632,
22 Envtl. L. Rep. 20,546
UNITED STATES DEPARTMENT OF the INTERIOR, Petitioner,
v.
FEDERAL ENERGY REGULATORY COMMISSION, Respondent.
City of New Martinsville, West Virginia, City of Jackson,
Ohio, City of Pittsburgh and the Pittsburgh Water
and Sewer Authority, the Upper Ohio
River Basin Hydro Association,
Intervenors.
STATE OF WEST VIRGINIA, DEPARTMENT OF NATURAL RESOURCES, Petitioner,
v.
FEDERAL ENERGY REGULATORY COMMISSION, Respondent.
City of New Martinsville, West Virginia, City of Jackson,
Ohio, the Upper Ohio River Basin Hydro
Association, Intervenors.
AMERICAN RIVERS, Friends of the Earth, Petitioners,
v.
FEDERAL ENERGY REGULATORY COMMISSION, Respondent.
The City of Jackson, Ohio, City of Pittsburgh and the
Pittsburgh Water and Sewer Authority, City of New
Martinsville, West Virginia, the Upper
Ohio River Basin Hydro
Association, Intervenors.
COMMONWEALTH OF PENNSYLVANIA, Pennsylvania Fish Commission,
Petitioners,
v.
FEDERAL ENERGY REGULATORY COMMISSION, Respondent.
Upper Ohio River Basin Hydro Association, City of Pittsburgh
and the Pittsburgh Water and Sewer Authority, City
of Jackson, Ohio, City of New
Martinsville, West Virginia,
Intervenors.
Nos. 90-1405, 90-1406, 90-1408 and 90-1409.
United States Court of Appeals,
District of Columbia Circuit.
Argued Nov. 21, 1991.
Decided Jan. 10, 1992.

Page 539

[293 U.S.App.D.C. 183] On Petitions for Review of Orders of the Federal Energy Regulatory Commission (No. 2971).

Blake A. Watson, Atty., Dept. of Justice, with whom Barry M. Hartman, Acting Asst. Atty. Gen., and David C. Shilton, Atty., Dept. of Justice, Washington, D.C. and Michael L. Harvey, Deputy Atty. Gen., Com. of Pa., Harrisburg, Pa., were on the brief for petitioners, U.S. Dept. of the Interior and Pennsylvania Fish Com'n in 90-1405 and 90-1409.

Maria M. Fakadej, Charleston, W.Va., for petitioner, State of W.Va. in 90-1406.

Ronald J. Wilson, Washington, D.C., was on the brief for petitioners, American Rivers and Friends of the Earth in 90-1408.

Samuel Soopper, Atty., F.E.R.C., with whom William S. Scherman, Gen. Counsel, Jerome M. Feit, Sol., and Joseph S. Davies, Deputy Sol., Washington, D.C., were on the brief, for respondent in 90-1405, 90-1406, 90-1408 and 90-1409.

Donald H. Clarke and Barbara S. Jost, Washington, D.C. for the Upper Ohio River Basin Hydro Ass'n, George W. Jacoby, Pittsburgh, Pa. for the City of Pittsburgh and the Pittsburgh Water and Sewer Authority, Peter C. Kissel and Alan I. Robbins, Washington, D.C. for the City of Jackson, Ohio and Louis Rosenman, Washington,,

Page 540

[293 U.S.App.D.C. 184] D.C. for the City of New Martinsville were on the joint brief, for intervenors in all cases.

Mary K. Conturo and Ashley C. Schannauer, Pittsburgh, Pa., entered appearances for intervenors, the City of Pittsburgh and the Pittsburgh Water and Sewer Authority in 90-1408 and 90-1409.

Jonathan W. Gottlieb, Washington, D.C., was on the brief for amici curiae in all cases urging that the Court affirm the Orders of the Com'n.

Before EDWARDS, RUTH BADER GINSBURG and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

This case presents another skirmish in the continuing battle between utilities and municipalities seeking to produce electricity and agencies and individuals seeking to protect the environment. Here, the Federal Energy Regulatory Commission ("FERC" or "Commission") licensed sixteen projects in the Upper Ohio River Basin over objections from the United States Department of Interior ("Interior") and several state agencies and interest groups. In the case at hand, the petitioners now claim that FERC (i) granted the disputed licenses without sufficient data to assess the environmental impacts of the projects, and (ii) gave insufficient weight to environmental concerns raised by the projects. In addition, the State of West Virginia raises separate claims that FERC unjustifiably preempted its rights under the Clean Water Act and inadequately provided for recreational uses. On the record before us, we find that FERC adhered to all relevant statutory requirements, acted on substantial evidence and reasonably confronted uncertain conditions. We further find that the claims raised by West Virginia have been adequately addressed by FERC, with necessary assurances given to allay the concerns of State officials. We therefore deny the petitions for review in all respects.

FACTS

Beginning in 1979, Allegheny Electric Cooperative and others filed applications to operate hydroelectric power projects at 19 existing dams in the Upper Ohio River Basin. A total of 25 applications were filed, five of which were mutually exclusive. In early 1987, FERC determined that, because the projects presented a danger of reducing the rivers' water quality, the National Environmental Policy Act, 42 U.S.C. § 4332(2)(C) (1988), required the preparation of an Environmental Impact Statement ("EIS").

In May 1988, FERC staff published a draft EIS. The Commission solicited comments from interested parties, including the petitioners in this case, and FERC staff held a public meeting in Pittsburgh, Pennsylvania. The petitioners submitted written comments which focused on three concerns: the effect of the projects on dissolved oxygen ("DO") levels in the river, the level of fish mortality resulting from entrainment (passage of fish through turbines), and the disruption of public sport fishing. The dissolved oxygen level of water determines the capacity of the river to support marine life and absorb waste. The dams in the Ohio River Basin increase the DO level by aerating water as it passes over the dam. Hydropower projects tend to reduce aeration because water passes over turbines instead of falling freely over the crest of the dam. Fish mortality from entrainment obviously lowers fish populations, but also tends disproportionately to affect desirable sport fish species which live near dams. Sport fishing is an important recreational use of the existing properties, and could be disrupted by project development.

On September 29, 1988, FERC issued its final EIS ("FEIS"). The FEIS analyzed the proposed projects from a number of different perspectives, including power generation, impact on water quality and fishery resources, effects on recreational facilities, and socioeconomic conditions. In responding to the concerns expressed by Interior and the state environmental agencies, the FEIS offered five alternatives ranging from denial of all license applications

Page 541

[293 U.S.App.D.C. 185] to granting each license as proposed. FERC, after receiving comments on the FEIS from Interior and the state agencies,established a deadline for these parties to provide recommendations pursuant to section 10(j) of the Federal Power Act ("FPA"), 16 U.S.C. § 803(j) (1988), which requires FERC to consider environmental issues and recommendations.

The "agencies" responded, suggesting that no recommendations could be given until seven more environmental impact studies were completed, including further modeling and testing of DO levels and fish entrainment. 1 West Virginia also requested that FERC require licensees to admit the public to grounds adjacent to the project powerhouses, the most desirable sites for sport fishing. After twice meeting with the commenting agencies and attempting to reach an agreement on the proposed projects, FERC rejected the requests for further studies, concluding that the FEIS provided enough information to proceed. The Commission then adopted the licensing alternative recommended in the FEIS. In response to West Virginia's request, FERC agreed to allow fishing at the desired sites, except where safety or other obstructions prevented it.

In deciding which projects to license, FERC opted for a moderately protective construction scheme. In addition to the option of denying all license applications, the FEIS had analyzed four alternatives wherein differing numbers of the projects would be built or operated at different power levels. The Commission opted to license 16 of the proposed 19 sites, concluding that the alternative selected, "[i]n addition to protecting water quality, ... would protect target resources by avoiding the significant adverse impacts to wetlands, fisheries, and recreation that would occur if the proposed projects at [the three unlicensed sites] were built." Allegheny Elec. Coop., 48 F.E.R.C. p 61,363, at 62,343 (1989). "The FEIS considered the adverse impacts of these [unlicensed] projects to be unavoidable, because no adequate site-specific mitigative measures were found to currently exist." Id. n. 231. Balancing the power benefits against potential environmental harms, the Commission concluded that the alternative best advanced competing goals. Id. at 62,361-70.

The Commission addressed the DO level concern by adopting a 6.5 mg/l minimum for all projects where current levels met or exceeded that mark. Id. at 62,364. The FEIS had considered four options for different DO standards: no conditions, conditioning operation on 5.0 mg/l DO, conditioning operation on 6.5 mg/l DO, and conditioning operation on maintenance of pre-project DO levels. FEIS at 2-1 to 2-27, reprinted in Joint Appendix ("J.A.") 43-69. The Commission rejected a 5.0 mg/l DO standard, the current standard set by the three bordering states, as too low to ensure continued fish development. A study by the United States Environmental Protection Agency had established 6.5 mg/l as the level necessary to maintain unimpeded fish development. "[T]he most up-to-date information regarding the relationship of DO levels to fishery and other aquatic resources is contained in EPA's 1986 water quality criteria document. This document clearly indicates that, so long as DO levels are maintained at 6.5 mg/L or above, no life stage of fishery resources will be adversely affected."...

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44 practice notes
  • Part II
    • United States
    • Federal Register November 17, 2005
    • November 17, 2005
    ...factual decision.'' Id.; accord Conservation Law Found. v. FERC, 216 F.3d 41 (D.C. Cir. 2000); see also U.S. Dept. of Interior v. FERC, 952 F.2d 538 (D.C. Cir. III. Section-by-Section Analysis There are three different versions of the regulations that follow for the trial-type hearing and a......
  • Electric utilities (Federal Power Act): Hydroelectric licensing regulations,
    • United States
    • Federal Register November 17, 2005
    • November 17, 2005
    ...factual decision.'' Id.; accord Conservation Law Found. v. FERC, 216 F.3d 41 (D.C. Cir. 2000); see also U.S. Dept. of Interior v. FERC, 952 F.2d 538 (D.C. Cir. III. Section-by-Section Analysis There are three different versions of the regulations that follow for the trial-type hearing and a......
  • Pud No. 1 of Jefferson County v. Washington Dep't of Ecology, 921911
    • United States
    • United States Supreme Court
    • February 23, 1994
    ...imposed by a State under § 401(d) thus becomes a "ter[m] . . . of the license as a matter of law," Department of Interior v. FERC, 952 F.2d 538, 548 (CADC 1992) (citation and internal quotation marks omitted), regardless of whether FERC favors the limitation. Because of § 401(d)'s mandatory......
  • State of Cal. ex rel. State Water Resources Control Bd. v. F.E.R.C., Nos. 90-70203
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 3, 1992
    ...and relegated fish and wildlife concerns to a secondary purpose of the FPA. We disagree. See United States Dept. of Interior v. FERC, 952 F.2d 538, 544-45 Section 4(e) of the FPA, as amended by ECPA, 16 U.S.C. § 797(e) provides that: In deciding whether to issue any license under this Part ......
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42 cases
  • Pud No. 1 of Jefferson County v. Washington Dep't of Ecology, 921911
    • United States
    • United States Supreme Court
    • February 23, 1994
    ...imposed by a State under § 401(d) thus becomes a "ter[m] . . . of the license as a matter of law," Department of Interior v. FERC, 952 F.2d 538, 548 (CADC 1992) (citation and internal quotation marks omitted), regardless of whether FERC favors the limitation. Because of § 401(d)'s mandatory......
  • State of Cal. ex rel. State Water Resources Control Bd. v. F.E.R.C., Nos. 90-70203
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 3, 1992
    ...and relegated fish and wildlife concerns to a secondary purpose of the FPA. We disagree. See United States Dept. of Interior v. FERC, 952 F.2d 538, 544-45 Section 4(e) of the FPA, as amended by ECPA, 16 U.S.C. § 797(e) provides that: In deciding whether to issue any license under this Part ......
  • City of Orrville, Ohio v. F.E.R.C., No. 97-1352
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 30, 1998
    ...Basin. See Allegheny Elec. Coop., 48 F.E.R.C. p 61,363 (1989) (hereinafter Licensing Order ), aff'd sub nom. United States DOI v. FERC, 952 F.2d 538 (D.C.Cir.1992). Orrville was awarded the license to construct the Pike Island project. See City of Orrville, Ohio, 48 F.E.R.C. p 61,359 (1989)......
  • Am. Rivers v. Fed. Energy Regulatory Comm, No. 98-70084
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • January 14, 2000
    ...court, without substituting its own judgment, must be certain that the agency has considered all factors required by the statute. 952 F.2d 538, 546 (D.C. Cir. Accordingly, because the Commission's construction of the FPA offends neither the Chevron reasonableness standard nor the intent of ......
  • Request a trial to view additional results

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