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On July 28, 2021, the United States Court of Appeals for the Ninth Circuit issued an opinion affirming a Federal Energy Regulatory Commission (FERC) decision denying a motion to intervene in a post-licensing deadline extension proceeding and declining to issue public notice of a request to extend the time to commence and complete construction of a licensed project. The Court found that FERC’s actions did not violate the Federal Power Act (FPA) and were not arbitrary and capricious. National Parks Conservation Association v. FERC (9th Cir. Case Nos. 19-72915, 19-73079, July 28, 2021).
In 2014, FERC issued a license for a closed-loop pumped storage hydroelectric project in California. The license required the licensee to commence construction within two years and to complete construction within seven years of issuance. Several months prior to the two-year mark, the licensee requested an extension of the construction deadlines. FERC granted the extension pursuant to Section 13 of the FPA and set a new deadline. The licensee again was not able to start construction by the extended deadline, and requested another extension to commence and complete construction under the America’s Water Infrastructure Act of 2018, which amended the FPA to revise the single two-year extension limit to “not more than 8 additional years.”
FERC did not issue public notice of the licensee’s request, but the National Parks Conservation Association (Association) filed a motion to intervene stating that FERC could not rely on the amended statute to issue another extension. FERC granted the extensions and denied the Association’s motion to intervene, holding that FERC’s policy is to not grant interventions in post-licensing deadline extension proceedings.
The Court affirmed FERC’s application of FERC Rule 214, which governs interventions, deferring to FERC’s decision in Kings River Conservation District, 36 FERC ¶ 61,365 (1986). In Kings River, FERC stated that it was not required to notify the public or allow interventions in proceedings after an original license has been issued, except for (1) where a licensee’s filings “entail material changes in the plan of project development or in the terms and conditions of the license” and (2) where filings “could adversely affect the rights of property-holders in a manner not contemplated by the license.”
Although the Court noted that FERC could have been more expansive in its reasoning, it held that FERC’s decision to deny an unopposed intervention for a post-licensing construction deadline extension proceeding was reasonable. Also, the Court deferred to FERC’s “overly narrow” but substantially supported decision that the first King Rivers exception did not apply. The Association failed to raise an argument regarding the adverse effects on the rights of property-holders in the proceedings below, and thus analysis on the second Kings River exception escaped the Court’s review.
Finally, the Court noted that under Section 6 of the FPA, FERC is only required to give public notice regarding post-licensing proceedings when the license is “altered,” and FERC interprets this to mean “significant alterations.” In ultimately deferring to FERC’s interpretation of its statutory mandate, the Court found that the statute did not speak to the definition of “altered,” and further found FERC’s interpretation reasonable. However, the Court “express[ed] no opinion as to whether the term ‘altered’ . . . refers only to ‘significant’ alterations . . . .”
For more information, please contact Peter C. Kissel, Sean M. Neal, or Ellen L. Hill.
