ELR Citation: ELR 20064
No(s). 07-1472 (D.C. Cir. Mar 13, 2009)

The D.C. Circuit upheld the Federal Energy Regulatory Commission's (FERC's) decision to grant a state agency a new 50-year license to operate a hydroelectric facility near Niagara Falls. Several communities in western New York argued that FERC's licensing decision was arbitrary and capricious and unsupported by substantial evidence. Petitioners argued that FERC should have required the mitigation of certain adverse environmental impacts allegedly caused by the project. But FERC reasonably concluded that the project's contribution to shoreline erosion would be insignificant. Petitioners also argued that a 50-year license is too long and inconsistent with agency practice regarding the terms of licenses. But FERC possesses express statutory authority to set license terms between 30 and 50 years, and FERC typically issues licenses for even longer time periods. In addition, FERC's valuation of the project's output was well reasoned, and it properly refused to consider off-license agreements in deciding whether to reissue the license.