Court Cases

The court cases page provides a brief summary of the legal cases related to hydropower licensing. It also provides links to the summary and the court decision for each case.

 

1.    Alabama Rivers Alliance v. FERC
325 F.3d 290 (D.C. Cir. 2003)

Issue. Was the installation and operation of the three new turbine generators at the project an activity which may result in any discharge for purposes of § 401(a)(1) of the CWA?
Holding. The licensee must obtain a new or amended water quality certification under CWA section 401(a)(1) if the replacement of the generators will alter (either increase or decrease) the quantity of flow discharge.

2.    American Rivers v. FERC
129 F.3d 99 (2nd Cir. 1997) (American Rivers I)

Issue. Can FERC reject conditions contained in a State water quality certification?
Holding. FERC cannot reject any certification conditions timely imposed by the State.

3.    American Rivers v. FERC
201 F.3d 1186 (9th Cir. 1999) (American Rivers II)

Issue 1. Does the FPA require FERC to consider a pre-project baseline for purposes of environmental review?
Holding. FERC is not required to employ a pre-project baseline of the river’s
environment.

Issue 2. Does FERC have to consider denial of license as an action alternative?
Holding. Even though FERC must analyze a reasonable range of alternatives, it is not required to prepare a lengthy evaluation of denial of license if denial is not considered a reasonable alternative for a particular proceeding. FERC may identify the no action
alternative as continuing project operation under the terms and conditions of the current
license.

Issue 3. Can FERC reject or modify a section 10(j) recommendation?
Holding. Even though FERC must address each recommendation, FPA § 10(j) authorizes FERC to determine how to incorporate or reject each recommendation.

Issue 4. Can FERC reject a fishway prescription made pursuant to FPA § 18?
Holding. FERC may not modify, reject, or reclassify any § 18 prescriptions submitted by the Secretaries.

4.    Bangor Hydro-Electric Company v. FERC
78 F.3d 659 (D.C. Dist. 1996)

Issue. Was FERC or the prescriptive agency the proper party in a § 18 fishway dispute?
Holding. A fishway prescription included in a FERC order may only be challenged in a petition identifying FERC as the respondent because FERC is the real governmental
party in interest.

5.    California Trout, Inc. v. FERC
313 F.3d 1131 (2002)

Issue. Does a licensee have to obtain State water quality certification for an annual license?
Holding. Annual licenses are not subject to the requirement that licensees obtain State water quality certification.

6.    California v. FERC
495 U.S. 490 (1990)

Issue. Does FERC have exclusive jurisdiction to determine the minimum flow schedule for a hydropower project?
Holding. FERC has exclusive jurisdiction to set the flow schedule for a hydropower project to the extent that the schedule provides for non-proprietary uses of water.

7.    Escondido Mutual Water Co. v. La Jolla Band of Mission Indians
466 U.S.765 (1984)

Issue 1. Can FERC reject the Secretary’s 4(e) conditions?
Holding. For licenses located within reservations, FERC must include, without modification, the conditions the Secretary deems necessary for the adequate protection and utilization of such reservation.

Issue 2. Does the Secretary’s conditioning authority extend to projects that affect but are not located on reservation lands?
Holding. FPA § 4(e) obligations and the conditioning power of the Secretary apply only to the specific reservation upon which any project works are located and not to other
reservations that might be affected by the project.

Issue 3. Do licensees have to obtain the consent of Indian Tribes before they operate licensed facilities located on reservation lands?
Holding. FERC is not required to seek the Bands’ permission before it exercise its authority with respect to their lands.

8.    Keating v. FERC
114 F.3d 1265 (D.C. Cir. 1997)

Issue. Can FERC rely on objectives contained in a forest plan to determine whether a proposed project will be consistent with the purposes for which the national forest was created?
Holding. FERC may not rely on a Forest Service evaluation, as contained in a forest plan, to determine whether a project would be consistent with the purposes for which the national forest was created. The “consistency” provision contained in FPA § 4(e)
requires FERC to ask and answer 2 questions: (1) for what purposes was the Inyo
National Forest created, and (2) would the proposed project interfere with or be
inconsistent with those purposes.

9.    LaFlamme v. FERC
852 F.2d 389 (9th Cir. 1988) (LaFlamme I)

Issue 1. When does FERC have to prepare an Environmental Impact Statement (EIS) for a project?
Holding. If there are substantial questions whether a project may have a significant
effect on the human environment, an EIS must be prepared.

Issue 2. Can FERC rely on partial analyses of impacts from other projects in the basin,or does it have to prepare a cumulative impact analysis?
Holding. A single project’s EIS does not provide the necessary comprehensive analysis
of the cumulative impact of all projects in the area, and thus does not satisfy FERC’s
duty to prepare a cumulative impact analysis.

Issue 3. Did FERC’s examination of a project’s economic feasibility and its impacts on some resources satisfy the requirement to develop a comprehensive plan?
Holding. A comprehensive plan is not established where FERC fails to analyze a project’s relationship to the entire water system of which it is a part and its relationship to other projects in the basin.

10.    LaFlamme v. FERC
945 F.2d 1124 (9th Cir. 1991) (LaFlamme II)

Issue 1. Can FERC rely on an EA to satisfy its duty to develop a comprehensive plan under § 10(a) of the FPA?
Holding. An EA that fully examines the effect of a project, including its cumulative
impacts combined with other projects and its consistency with state and regional
comprehensive plans, satisfies the FPA requirement that FERC consider all facts
relevant to the public interest in developing a comprehensive plan.

Issue 2. Did FERC make a mistake by refusing to consider some issues until post licensing?
Holding. FERC may allow the possibility of modifications to the requirements of the license based on the results of post-licensing monitoring.

11.    National Wildlife Federation v. FERC
912 F.2d 1471 (D.C. Cir. 1990)

Issue 1. Did FERC’s failure to consider the environmental impacts of Phase II of the project violate § 10(a)(1) of the Federal Power Act (FPA)?
Holding. The FPA does not require FERC staff to delve into the potential impacts of a project that is not before the Commission.

Issue 2. Did FERC’s failure to consider the environmental impacts of Phase II of the project violate the National Environmental Policy Act (NEPA) or its implementing regulations?
Holding. NEPA does not require FERC to consider the future harms, benefits, and cumulative impacts of a proposal not currently before it.

Issue 3. Did FERC have the authority to reject or modify agency recommendations submitted under § 10(j) of the FPA?
Holding. While FERC must address each § 10(j) recommendation, it has the discretion to decide how to incorporate or reject a recommendation.

Issue 4. May FERC consider a project’s water supply benefits in deciding whether to issue a license even though water supply is not mentioned expressly in FPA § 4(e)?
Holding. FERC may consider a proposed project’s water supply benefits in deciding
whether to issue a license.

Issue 5. Was the applicant required to obtain a water quality certification from Oklahoma?
Holding. The applicant is only required to seek certification from the state where the discharge originates; for a dam, where the flow of water would be blocked and the water would be backed up, not a point upstream affected by the blockage downstream.

Issue 6. Did FERC’s failure to consider alternatives to the hydropower and water supply portions of the project constitute a violation of NEPA?
Holding. NEPA does not require FERC to consider every conceivable alternative in its EIS; rather, it requires agencies to consider all reasonable alternatives to proposed actions.

Issue 7. Did FERC improperly rely upon data prepared by a firm that held interests in real estate within the project area?
Holding. Mere speculation that data are unreliable because of the interests of the proponents of the evidence is insufficient to undermine FERC’s independent determination of reliability.

12.    North Carolina v. FERC
112 F.3d 1175 (D.C. Cir. 1997)

Issue. Should FERC have required the licensee to obtain a water quality certification prior to granting a license amendment that would decrease the volume of a pre-existing discharge?
Holding. Because the withdrawal of water from Lake Gaston would result in a decrease in the volume of a preexisting discharge, it was not an activity that would result in a discharge for purposes of § 401(a)(1) of the CWA, and FERC did not err in granting
VEPCO’s request for license amendment without requiring it to obtain a water quality
certification.

13.    Platte River Whooping Crane Critical Habitat Maintenance Trust v. FERC
876.2d 109 (1989) (Platte River I)

Issue. Did FERC abuse its discretion in refusing to undertake any inquiry into the need to include environmental protective conditions in the Districts’ annual licenses?
Holding. FERC’s failure to undertake any form of assessment of environmental issues in connection with its issuance of the annual licenses was an abuse of discretion.

14.    Platte River Whooping Crane Critical Habitat Maintenance Trust v. FERC
962.2d 27 (1992) (Platte River II)

Issue. Does FERC have authority to unilaterally impose conditions for the protection of the environment on annual licenses when the original license does not contain an express reservation of modification authority, i.e., a re-opener clause?
Holding. FERC may not unilaterally impose conditions on annual licenses where the original licenses do not contain re-opener provisions.

15.    PUD No. 1 of Jefferson County v. Washington Dept. of Ecology
511 U.S. 700 (1994)

Issue. Did the Department properly condition the water quality certification for the
project on the maintenance of minimum stream flows to protect salmon and steelhead
runs?
Holding. The State may include minimum stream flow requirements in a water quality certification issued pursuant to § 401 of the CWA insofar as such flows are necessary to enforce a designated use contained in a state water quality standard.

16.    Southern California Edison Co. v. FERC
116 F.3d 507 (D.C. Cir. 1997)

Issue. Does FERC have the authority to include § 4(e) conditions in re-licenses?
Holding. FERC’s authority under FPA § 4(e) to include conditions in license extends to relicensing.

17.    Tennessee Valley Authority v. Hill
437 U.S. 153 (1978)

Issue 1. Given the presence of an endangered species that would be destroyed by completion of a hydropower project, would completion of the project violate the ESA?
Holding. The ESA prohibits all government actions that eradicate a species or destroy its critical habitat.

Issue 2. Did the appropriations committee’s continued funding of the project constitute a repeal by implication of the ESA as applied to the Tellico Dam?
Holding. Expressions of committees dealing with requests for appropriations cannot be equated with statutes enacted by Congress and cannot repeal an act of Congress by implication.

Issue 3. If a project’s construction is likely to result in extinction of a species, is an injunction the only appropriate remedy?
Holding. Completion and operation of the dam was irreconcilable with the ESA and the clear Congressional mandate was an injunction.