7.2 Structure of Settlement

A typical settlement in a licensing proceeding has three parts.  Boilerplate terms establish the contract whereby all signatories commit to file the Offer of Settlement and thereafter support is as the basis for a license.  Proposed license articles are environmental or other measures that will be implemented by the licensee to protect, mitigate, and enhance natural resources impacted by the project.  Non-jurisdictional measures are other measures that non-licensees will implement, either solely or in coordination with the licensee, to complement what the licensee will be obliged to do.

FERC will approve the proposed license articles if supported by substantial evidence and otherwise consistent with the statutory requirements for a licensing decision.  FERC may acknowledge or accept the boilerplate terms and the non-jurisdictional measures, but it will not approve or enforce them.[1]  That is because its enforcement jurisdiction under FPA Part I only runs to licensees and their licenses.[2]  Thus, a license may establish duties for the licensee’s performance of environmental measures, and FERC will enforce such duties; a license may not include any duties of non-licensees (whether agencies, tribes, or other participants) because FERC may not enforce such duties in any circumstance.[3]

[1]               See Erie Boulevard Hydropower, 88 FERC ¶ 61,176 (1999) (Black River Project); Curtis Palmer Hydroelectric Company/International Paper Company, 91 FERC ¶ 61,112 (2000) (Curtis-Palmer Project); Avista Corporation, 90 FERC ¶ 61,167 (2000), 93 FERC ¶ 61,116 (2000) (Clarks Fork Project).

[2]               See id.

[3]               See id.