Alcoa Power Generating Inc. v. Federal Energy Regulatory Commission
395 U.S. App. D.C. 425
| D.C. Cir. | 2011Background
- Alcoa Power filed for relicensing of the Yadkin Project in April 2006 and sought a Section 401 water quality certification from North Carolina in May 2007; NC issued a 2007 certification and Alcoa filed it in the FERC proceeding in November 2007.
- The NC Division of Water Quality revoked the initial certification in April 2008 for inadequate public comment opportunities, requiring Alcoa to refile; a new certification was issued May 7, 2009 (the 2009 Certification) with stringent conditions and a bond requirement of $240 million to cover water quality improvements.
- The 2009 Certification stated it was effective only once the bond was posted; a NC administrative law judge issued a preliminary injunction staying the 2009 Certification on May 27, 2009; Alcoa challenged the 2009 Certification in NC proceedings and sought a Commission declaratory order arguing waiver under Section 401(a)(1).
- The Commission initially refused to find waiver, holding the State acted within one year because the certification itself was issued within the period; it reasoned the bond condition did not delay licensing and the State’s action was complete.
- Alcoa petitioned for review in the D.C. Circuit; the court held the petition ripe and that the NC certification did not waive under Section 401(a)(1), affirming the Commission’s interpretation that licensing could proceed once the certification is obtained, even if not yet effective due to an outside-of-one-year bond condition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NC waived Section 401 authority by issuing the 2009 Certification within one year. | Alcoa contends the 'effective' bond condition delays and thus defeats timely action. | FERC and NC maintain the certification itself was obtained within one year, so no waiver occurred. | Waiver did not occur; certification obtainable allowed licensing. |
| Is the petition ripe despite ongoing NC proceedings and potential changes to the bond condition? | Ripeness is satisfied because the issue is a purely legal interpretation of Section 401 and unlikely to be mooted. | Ripeness should wait for state resolution and possible modification. | Petition ripeness approved; waiver issue decided now. |
| Does the 'effective' clause in the 2009 Bond Condition delay licensing beyond the one-year period? | The clause functions as a condition precedent that could never be satisfied within one year. | Bond condition becomes enforceable at license issuance; does not block licensing within one year. | The clause does not delay licensing beyond one year; no waiver. |
| Does interpreting Section 401(a)(1) to permit licensing on certification 'obtained' align with statutory purpose? | A premature or conditional certification that blocks issuance would undermine the one-year limit. | Obtained certification is sufficient to allow licensing regardless of eventual effectiveness. | Interpretation consistent with text and purpose; no waiver. |
Key Cases Cited
- S.D. Warren Co. v. Maine Board of Environmental Protection, 547 U.S. 370 (2006) (broad view of state §401 authority and certification conditions)
- City of Tacoma v. FERC, 460 F.3d 53 (D.C. Cir. 2006) (state procedures and public notice under §401(a)(1) reviewed in federal court)
- Louisiana Public Service Commission v. FERC, 522 F.3d 398 (D.C. Cir. 2008) (ripeness and dispositive issues in agency review)
- Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) (ripeness and administrative restraint principles)
- Toca Producers v. FERC, 411 F.3d 262 (D.C. Cir. 2005) (cases where issues were not yet adjudicated at this time)