ELR Citation: ELR 21446
No(s). s. 98-70079, -70084 (9th Cir. Aug 11, 1999)

The court denies in part and grants in part environmental groups' petition challenging the Federal Energy Regulatory Commission's (FERC's) reissuance of a hydropower license to two Oregon hydroelectric power projects. The court first holds that FERC reasonably used an environmental baseline of the existing project to evaluate the project's impact instead of a baseline of what the river would be like without the project. Nowhere in the Federal Power Act (FPA) does Congress address the issue, and it defies common sense and notions of pragmatism to require FERC or license applicants to gather information to recreate a 50-year-old environmental base on which to make present day development decisions. Moreover, the record demonstrates numerous instances where FERC diligently evaluated the adverse environmental impacts on the river caused by the existing projects' operations.

The court next holds that FERC properly identified the NEPA no-action alternative in the environmental impact statement (EIS) for the new hydropower licenses as the project's continued operation under its expired license. By operation of FPA §15(a), the effect of FERC's taking no action on the relicensing application would have been to permit the continued operation of the projects subject to the terms and conditions of its expired original license. Further, the final EIS clearly considered the alternatives urged by the groups. The court then holds that FPA §10(j) grants FERC the discretion to reject state and federal fish and wildlife agencies' proposed conditions for license renewal. The court further holds, however, that FERC lacks the authority under FPA §18 to reject, modify, or reclassify the U.S. Department of the Interior's fishway prescriptions for the project. FPA §18 does not contain a qualifying clause, such as the one in FPA §10(j), which expressly enables FERC to reject a recommendation.

Counsel for Petitioners
Todd D. True
Earth Justice Legal Defense Fund
705 Second Ave., Ste. 203, Seattle WA 98104
(206) 343-7340

Counsel for Respondent
John H. Conway
Federal Energy Regulatory Commission
825 N. Capitol St. NE, Washington DC 20426
(202) 208-0200

Before Leavy and McKeown, JJ.