D.C. Circuit Rejects FERC’s Licensing Decision, Vacating and Remanding the Matter for Further Work

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Another important case was decided by U.S. Court of Appeals for the D.C. Circuit on July 6, American Rivers and Alabama Rivers Alliance v. FERC. The Alabama Power Company, whose application to re-license its electrical power generating facility serving Coosa River Basin in Alabama, GA, and TN was at issue, is an Intervenor in the case. In 2013, FERC granted Alabama Power a 30 year renewal license to operate this plant, consistent with some new conditions attached to the renewed license. This action was challenged before the FERC by these petitioners, but FERC denied their requests for reconsideration. They argued that FERC, in re-licensing this facility, violated the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). The Court of Appeals , noting that the ecosystem was in a “fragile condition” after decades of power plant operations and development, agreed with the plaintiffs that the actions taken by FERC and as supported by a Biological Opinion of the U.S. Fish and Wildlife Service (Service), were in violation of these statutes. FERC’s licensing decision was vacated and the matter was remanded to FERC.

TheCourt  of Appeals embarked on a painstaking and exhausting review of the administrative record, and determined that FERC’s decision not to issue an environmental impact statement because the project would not have a significant impact on the environment was not supported by the evidence before FERC.  In particular, the Biological Opinion

  1. appears  not to have been  developed in accordance with the Service’s ESA handbook;
  2. its “jeopardy analysis” was arbitrary because it fails to account for the effects of degraded environmental conditions on threatened species;
  3. it failed to explain how  a ”one hundred percent incidental take is not likely to result in jeopardy;
  4. the Incidental Take Statement is legally insufficient because to failed to include an “adequate trigger” for re-consultation;
  5. FERC’s decision to forego an EIS “does not hold water”;
  6. FERC misanalysed the cumulative environmental effects of the Coosa River Project; and
  7. NEPA demands  far more analytical rigor than the Assessment’s “breezy dismissal” of the high fish mortality rate.

Accordingly, the Court of Appeals concluded that FERC’s actions were arbitrary and capricious and unsupported by substantial evidence.

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