ELR Citation: 52 ELR 20013
No(s). 20-1325 (D.C. Cir. Jan 18, 2022)

The D.C. Circuit remanded FERC orders rejecting an Oklahoma city's complaint that a hydroelectric dam overseen by the Commission caused periodic flooding. The city argued that the dam operator violated Article 5 of its license, which FERC had issued under the Federal Power Act, and sought to require the operator to obtain land rights in the areas that regularly flooded. FERC dismissed the complaint, finding the operator was not in violation of its license and that there was insufficient evidence as to whether the operations regularly caused flooding, and suggested the flooding issues could be considered in the upcoming relicensing proceeding in 2025. The court found FERC never addressed whether Article 5 of the license obliged the operator to acquire rights to cover the expense of flooding in the city, and that its "review" of the city's evidence of flooding was not an acceptable evaluation. Further, the Commission's suggestion that the flooding issues could be handled in the upcoming relicensing proceeding ran afoul of administrative law. The court also found that Congress' floor amendment to the Defense Authorization Act, which the operator asserted limited FERC's jurisdiction and thus deprived the court of jurisdiction, was ambiguous. It granted the city's petition for review and remanded to FERC for further proceedings.