On December 4, 1989, the United States Supreme Court granted the State of California's petition for certiorari in a case which will resolve whether the Federal Power Act (FPA) preempts state water regulatory laws or whether Congress intended that hydroelectric projects licensed by the Federal Energy Regulatory Commission (FERC) must comply with the requirements of state water law. Resolution of this issue will have far reaching implications on the balance between state and federal management of water and other natural resources.
Federal Power Act
Part I: "documents the development of early American water law and traces the increase of public interest in the river resource"; Part II: "illustrates the environmental impacts of hydroelectric power and discusses how the Supreme Court's 1946 decision allowed the federal government unrestricted authority to license hydropower development;" Part III: "analyzes the Supreme Court's recent determination that state water quality certificates must be incorporated into federal licenses
This comment explores the legal theory behind the FPA to demonstrate that environmental protection has been an inherent aspect of the hydropower licensing process. Secondly, the attempt of the 1986 ECPA amendments to coerce greater FERC consideration of fish and wildlife values into the procedure is evaluated. Finally, the future of hydropower licensing is examined in the context of policy decisions embodied in the final rule.
This comment analyzes the Federal Power Act in light of FERC's calimed authoity under the Policy Statement, and argues that FERC possesses the authority to deny a license or to impose uneconomic conditions in fulfilling its statutory duty to protect the public interest.