ELR Citation: ELR 20546
No(s). 90-1405 (D.C. Cir. Jan 10, 1992)

The court holds that the Federal Energy Regulatory Commission's (FERC's) decision to license 16 hydroelectric power projects was based on sufficient data to assess the environmental impacts of the projects and gave sufficient weight to the environmental impacts of the projects, that FERC did not unjustifiably preempt West Virginia's rights to impose water quality standards under the Federal Water Pollution Control Act (FWPCA), and that FERC adequately provided for recreational uses. The court first holds that FERC acted within its statutory mandates under the Federal Power Act (FPA) and Electric Consumers Protection Act and supported its approach to dissolved oxygen and fish entrainment with substantial evidence. FERC must consider recommendations from the Fish and Wildlife Service (FWS) but is not required to perform studies that the FWS deems necessary. Petitioners' contention that FERC's own regulation requires it to perform the studies was not raised below and therefore was waived. Although the FPA requires FERC to give "equal consideration" to environmental factors, such factors do not have preemptive force. The court is to determine whether FERC made its decision based on substantial evidence, not whether it gave environmental factors equal consideration. The court next holds that the extensive monitoring requirements and opportunity to modify the licenses sufficiently accounted for uncertainty in dissolved oxygen data and mortality from fish entrainment in the turbines. FERC must act reasonably in the face of uncertainty but is not required to wait for perfect information. FERC's conclusions from the incomplete data were supported by substantial evidence. The court next holds that FERC did not abrogate West Virginia's right to set water quality standards under the FWPCA. FERC's license specifications are not inconsistent with conditions imposed by West Virginia in its §401 certificate. Finally, the court holds that FERC provided for adequate sport fishing.

Counsel for Petitioners
Blake A. Watson, Barry M. Hartman, David C. Shilton
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000
Michael L. Harvey, Deputy Attorney General
Strawberry Sq., 16th Fl., Harrisburg PA 17120
(717) 787-3391

Counsel for Respondent
Samuel Sooper; William S. Scherman, General Counsel
Federal Energy Regulatory Commission
825 N. Capitol St. NE, Washington DC 20426
(202) 208-0200

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