Court Vacates License Order, Says FERC Should Have Analyzed All Alternatives

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The Second Circuit Court of Appeals has vacated a 2007 FERC license order for the School Street Project and asked FERC to revisit the proceeding.

FERC was challenged by Green Island Power Authority (GIPA), which wants to develop its proposed 100-MW Cohoes Falls project just downstream of the existing 38.8 MW School Street Project (https://www.hydroreform.org/projects/school-street-p-2539). The Cohoes Falls project would inundate the downstream project, rendering it inoperable. FERC had repeatedly denied GIPA’s late motion to intervene in the relicensing of the School Street project.

The Court did not tell FERC to grant GIPA’s motion to intervene, but rather told FERC that it did not use the correct criteria when determining that a settlement agreement did not constitute a “material amendment” to the license application for School Street. Had the settlement constituted such a change, FERC would have been obligated to solicit interventions, and it is possible FERC would have had to grant GIPA’s intervention.

More important, however, is the Court’s stern reminder to FERC that it is obligated to consider and analyze all reasonable alternatives to a proposed action, even if FERC may not issue a license that includes those alternatives. This is a fundamental tenant of environmental law, and it is encouraging to see a Court remind FERC of the importance of alternatives analysis in its decision making.

Read the full court order here.