Summary
This D.C. Circuit opinion reviews the Federal Energy Regulatory Commission’s approval of a hydroelectric project license surrender without requiring dam removal. The court addresses challenges under the Federal Power Act and the National Environmental Policy Act, concluding that FERC’s environmental assessment was adequate and its decision not to mandate dam removal was neither arbitrary nor capricious. The court also resolves threshold issues regarding petitioner standing, the timeliness of the petition for review, and mootness before denying the petition.
Topics
Practice areas
Questions Presented
- Whether FERC's denial of dam removal was arbitrary and capricious under the Federal Power Act.
- Whether FERC's NEPA analysis satisfied the hard‑look requirement.
- Whether the petition was timely under the FPA’s 60‑day filing deadline.
- Whether the case is moot after decommissioning of the project.
Holdings
- FERC's decision was not arbitrary or capricious; the Commission reasonably balanced the public‑interest factors and therefore the petition is denied.
- FERC's environmental assessment met NEPA's hard‑look requirement; the agency reasonably limited discussion of infeasible alternatives.
- The petition was timely; the 60‑day deadline runs from the issuance of the final order, not from the deemed denial of rehearing.
- The case is not moot; vacating the surrender order would restore FERC’s jurisdiction to consider dam removal.
Key quotations
“We refuse to ‘flyspeck’ the agency’s findings in search of any deficiency no matter how minor.” (at 1139)
“NEPA does not require agencies to elevate environmental concerns over other appropriate considerations.” (at 1139)
Factual background
Aclara Meters LLC owned the Somersworth Hydroelectric Project on the Salmon Falls River, which includes Stone Dam and Back Dam. Aclara sought to surrender its license in 2019; FERC approved the surrender in 2023, declining to require dam removal because the dams supply municipal water, protect infrastructure, and the projected environmental benefits of removal were deemed speculative. American Whitewater argued that FERC failed to take a hard look at dam removal under NEPA.
Procedural history
The Federal Energy Regulatory Commission (FERC) approved Aclara Meters LLC's surrender of its hydroelectric license without requiring dam removal. American Whitewater sought rehearing and then petitioned this Court to review the surrender order, alleging arbitrary and capricious action under the Federal Power Act and insufficient NEPA analysis.