Any party dissatisfied with FERC's rehearing decision may petition for judicial review in the U.S. Court of Appeals for the D.C. Circuit or the Circuit where the project is located. A party seeking judicial review must have raised all such claims and supporting arguments in a rehearing request,1 since the Court is otherwise barred from hearing them.2 This is a strict requirement to assure exhaustion of any administrative remedy.3
Format. The petition must follow judicial form for pleading. Appendix B includes a sample petition, although the details of such form are beyond the scope of this Toolkit.
Content. The petition must identify the challenged order and the specific errors of fact or law that are challenged. As in a rehearing request, the petition must allege that the decision is not supported by substantial evidence in the record or is arbitrary and capricious.4 Unlike a rehearing request, the petition itself is a short form and does not make argument in support of its claims
Scope. A petition may challenge: (1) FERC's decision to grant or deny a new license, or (2) specific articles prescribed by FERC or by another federal agency under FPA section 4(e) or 18 or the ESA. Judicial review of water quality certification issued by the State probably lies in state court, not the U.S. Court of Appeals.5
Timeliness. A petition for judicial review must be filed within 60 days of the rehearing decision.
Given the expense and risk of adverse precedent, you should appeal only if you have a very significant grievance. FERC has won 75% or more of the appeals of licensing decisions, given that courts properly defer to its expertise and judgment. While specific strategy for judicial review is beyond the scope of this Toolkit, we underscore the general strategy - make your maximum effort before FERC.
-
See 16 U.S.C. § 825l(b).
-
See id. See also Platte River Whooping Crane Critical Habitat Maintenance Trust v. FERC, 876 F.2d 109, 113 (Platte River II) (“Parties seeking review of FERC orders must themselves raise in that petition all of the objections urged on appeal.”).
-
Platte River II, 876 F.2d 109, 112-13.
-
See Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984).
-
See 33 U.S.C. § 1341(a)(1).
