A party may request rehearing of any final order in a relicensing proceeding, including issuance or denial of a new license. Rehearing is an administrative appeal1 - a final opportunity to persuade the Commission to decide a disputed issue in a particular way. It also is a precondition to judicial review.
Format. This pleading must include the title, “Request for Rehearing of [title of challenged order].” It must comply with the standard format requirements for any pleading.
Contents. Any request for rehearing must identify the alleged error of fact or law in the final decision. It must show that the decision is either not supported by substantial evidence in the record or is an “arbitrary and capricious” exercise of FERC's legal authorities. It must state the grounds for rehearing with specificity, including citations to evidence, statutes, or cases. It may rely on new evidence not otherwise in the record only if the evidence was not available prior to the final decision.2 It must state the relief requested, which may range from voiding to modifying the disputed decision. Appendix C includes a sample rehearing request.
Scope. The rehearing request may address any disputed issue in the final decision. Rehearing of a licensing order thus may challenge (A) the decision to issue the license (rather than deny it) or (B) the individual articles. While FPA section 313, 16 U.S.C. 825l, requires a rehearing request as a precondition for judicial review, FERC will not grant rehearing of (or modify) any license article prescribed by another agency under FPA section 4(e) or 18, CWA section 401, or the ESA, absent the consent of the prescribing agency, since it does not have jurisdiction to grant such relief. In that event, the party files the rehearing request to preserve its right to judicial review.
Timeliness. A rehearing request must be filed not later than 30 days after the issuance of the final decision or order.3
Answer. Answer is not permitted to a rehearing request.4 In response to a rehearing request, FERC may permit briefing or oral argument on one or more issues raised by the request.5
Rehearing Decision. The Commissioners, not OEP staff, will decide a rehearing request challenging a new license. FPA section 313(a) requires a decision within 30 days of filing. Thus, a request is deemed denied if not granted within 30 days.6 Before that deadline, FERC typically issues an order, entitled “Order Granting Rehearing For Further Consideration,” which tolls the statutory clock. That tolling order simply means that FERC is still considering the merits of the request. It specifies when FERC expects to make a decision on the merits, ranging from a few months to a few years. On the merits, FERC may grant rehearing, in which event the challenged order is remanded for further proceeding, or deny rehearing. If the denial is based on new grounds, then the party may file a subsequent rehearing request limited to those grounds.
You must seek rehearing in order to obtain judicial review. You should approach both steps with the same questions in mind. First, does FERC have substantial evidence in support of its licensing decision? Second, does the decision comply with the legal requirements for the protection, mitigation, and enhancement of affected natural resources?
Rehearing is not an opportunity to reargue reasonable differences of opinion, since the law requires deference to FERC's in matters within its jurisdiction. Rather, it is the opportunity to argue that FERC missed critical evidence, or did not squarely comply with legal requirements, which instead favor another Action Alternative.
The form of a rehearing request may be simple or complex. Contrast “Petition by Catherine D. Boretos and America Rivers, Inc. for Rehearing, Turnbridge Mill Project,” available at Appendix B, p. B-318 and “Request by San Bernardino Valley Audubon Society and California Trout for Rehearing of Order Issuing New License, Mill 2/3 Hydroelectric Project,” available at Appendix B, p. B-72. Simpler is better, unless you dispute complex issues of fact or law. Focus on the primary deficiencies, and do not worry over trivial issues. Do not introduce new evidence (e.g., evidence which post-dates the licensing order), unless you have a good reason for not offering the evidence in a timely manner.
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18 C.F.R. § 385.713(b).
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18 C.F.R. § 385.713(c).
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18 C.F.R. § 385.713(b).
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18 C.F.R. § 385.713(d).
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See id.
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See 18 C.F.R. § 385.713(f).
