ELR Citation: ELR 21495
No(s). s. 90-1397 et al (D.C. Cir. Sep 11, 1992)

The court denies a request for rehearing en banc of its prior decision, which held that the Federal Energy Regulatory Commission (FERC) reasonably exercised its authority to impose wildlife protective conditions and flow rates in the annual licenses issued to two hydroelectric power facilities. A judge concurring in the denial notes that the court's misplacement of part of the petitioner's filings, which caused the original panel to indicate erroneously that petitioners at that stage had not raised the issue of whether FERC properly consulted with the U.S. Department of the Interior concerning the environmental conditions FERC placed on annual licenses, is not a significant error. The concurring judge also notes that although the case involves the underlying jurisdictional issue of whether a party has standing to challenge the failure of one government agency to consult with another government agency when required by statute, the consultation issue was raised only tangentially and is therefore inappropriate for decision.

[The court's prior decisions in this case are published at 19 ELR 20883 and 22 ELR 21167.]

Counsel for Petitioner
Abbey Lowell
Brand & Lowell
923 15th St. NW, Washington DC 20005
(202) 662-9700

Counsel for Respondent
Jerome M. Feit, Solicitor
Federal Energy Regulatory Commission
825 N. Capitol St. NE, Washington DC 20426
(202) 208-0177

Before: MIKVA, Chief Judge, WALD, EDWARDS, RUTH B. GINSBURG, SILBERMAN, BUCKLEY, WILLIAMS, D.H. GINSBURG, SENTELLE, HENDERSON, and RANDOLPH, Circuit Judges.