A U.S. judge has rejected an environmentalist challenge to rules adopted by federal resource agencies that allow hydropower operators to appeal mandatory conditions the agencies impose on Federal Energy Regulatory Commission hydropower licenses.
As required by the Energy Policy Act of 2005, the Interior, Commerce, and Agriculture departments adopted rules governing new expedited trial-type administrative hearings to resolve factual disputes related to mandatory conditions and fishway prescriptions that the agencies add to hydro licenses. The rules also set procedures under which a hydro operator or any other party may offer alternative conditions that are less expensive, but equally protective of resources.
American Rivers and other plaintiffs filed suit in December 2005, accusing the resource agencies of illegally publishing final rules without giving the public an opportunity to comment on draft rules. The coalition, which also included America Outdoors, American Whitewater, Friends of the River, Idaho Rivers United, Trout Unlimited, and Upper Chattahoochee Riverkeeper, also alleged the rules were an impermissible retroactive application of the Energy Policy Act.
Because of a tight schedule set by Congress in the Energy Policy Act, the agencies bypassed the normal notice of proposed rulemaking, comment period, and issuance of final rules. Instead, they issued “interim final rules” in November 2005, allowing the public 60 days to submit comments, after which the agencies might make amendments in a revised final rule.
U.S. District Judge Marsha Pechman ruled Oct. 3 that the interim final rules are not in violation of the notice and comment requirements of the Administrative Procedure Act. She said the rules are exempt from APA’s requirements because they are procedural and interpretive rules.
The judge also denied American Rivers’ claim that the rules are an impermissible retroactive application of the Energy Policy Act to license proceedings that were pending at the time of the law’s enactment.
Pechman said the Energy Policy Act does not include a clear, express statement as to whether it applies to pending license proceedings, or only to proceedings initiated after the law was enacted. However, she said regulations are not retroactive merely because they require a change in existing practices.
Enviros use the rules they complain about
Hydro opponent American Rivers issued a statement blasting the ruling, alleging it would allow dam owners to avoid responsibility for damage caused by their projects.
“Under these rules, when dam owners don’t want to be held accountable for the damage their dams cause to the environment, they use these new hearings to litigate their way into weaker environmental requirements,” American Rivers’ Robbin Marks complained.
However, Judge Pechman’s ruling itself rebutted that complaint.
“As defendants note, however, the rules provide that any party to a pending license proceeding may request a hearing or propose an alternative condition or prescription,” the court said. “Because the rules do not provide one party with rights that are unavailable to other parties, the rules on their face do not appear to prejudice only one side in pending proceedings.”
Despite their complaints about the new rules, American Rivers and Idaho Rivers United earlier this year used the rules to attempt to force the Commerce Department to mandate more than $100 million in fish passage construction at Idaho Power Co.’s 1,166.5-MW Hells Canyon hydroelectric complex on the Snake River. (HNN 8/16/06)
Under terms of the Energy Policy Act, the river groups argued that their Hells Canyon alternative would cost less than Commerce’s preliminary fishway prescription, which declined to mandate expensive fish passage until poor water quality and degraded habitat is improved to acceptable levels. That case is still pending.
FERC testimony cited reduced conflict
Earlier this year, Director J. Mark Robinson of FERC’s Office of Energy Projects told a Senate committee the hydro licensing reform language already has reduced conflicts between FERC and the resource agencies that add mandatory conditions to FERC licenses. (HNN 5/16/06)
In the first trial-type hearing allowed by the Energy Policy Act, PacifiCorp received a setback in its challenge to the factual assertions that support agency preliminary conditions for the 161.338-MW Klamath project. However, the utility said it would pursue its proposal for less expensive alternative mandatory conditions, currently before Interior. (HNN 10/2/06)