895 F.3d 32
D.C. Cir.2018Background
- Alabama Power sought and FERC granted a 30-year relicensing (2013) of its Coosa River hydropower project, consolidating seven developments; FWS issued a Biological Opinion the same year concluding no jeopardy to listed species.
- The project area contains multiple ESA-listed mussels, snails, and fish; evidence in the record showed very low dissolved oxygen levels and high fish entrainment/mortality in parts of the project.
- FERC’s Environmental Assessment (EA) issued a Finding of No Significant Impact (FONSI) under NEPA and incorporated the FWS Biological Opinion into the license; the license required aeration and monitoring but deferred detailed mitigation design.
- On rehearing, FERC relaxed the license’s dissolved-oxygen requirement to apply only during generation and certain releases (not continuously), despite data showing long non-generation periods with DO <4.0 mg/L.
- Conservation groups challenged the Licensing Order, FERC rehearing orders, and the FWS Biological Opinion in this court, arguing violations of the Federal Power Act, NEPA, and the ESA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to sue | Conservation groups’ members use and would be harmed recreationally/aesthetically by degraded river conditions; procedural NEPA injury | Alabama Power contended no cognizable injury because license improves conditions | Court: Associational standing satisfied; procedural and recreational injuries alleged are concrete, traceable, redressable |
| Jurisdiction/timeliness of petitions | First petition protective; second petition challenged rehearing denial and Biological Opinion | Alabama Power argued first petition premature and barred review | Court: First petition dismissed as premature; consolidation and filings show intent so second petition permits review of underlying orders |
| Adequacy of FWS Biological Opinion under ESA | Opinion ignored historic/degraded environmental baseline, failed to explain how predicted 100% local take avoids jeopardy, and lacked clear reinitiation triggers in Incidental Take Statement | Interior/FWS defended baseline approach and argued local takes do not equate to jeopardy; offered post-hoc explanations | Court: Biological Opinion arbitrary and capricious—failed to account for baseline and provide reasoned jeopardy/incidental-take analysis; remand required |
| FERC’s NEPA analysis / FONSI | EA ignored/significantly downplayed serious impacts (fish entrainment mortality, chronic low dissolved oxygen), relied on unverified applicant data and speculative/timed mitigation, and failed adequate cumulative-effects analysis | FERC relied on EA, pending mitigation (aeration), state certification, and FWS Opinion concluding no jeopardy | Court: EA arbitrary and capricious—insufficient hard look on DO, fish mortality, and cumulative impacts; FONSI invalid; licensing decision vacated and remanded |
Key Cases Cited
- Grocery Mfrs. Ass’n v. EPA, 693 F.3d 169 (D.C. Cir. 2012) (standing and obligation to confirm jurisdiction)
- Sierra Club v. FERC, 827 F.3d 59 (D.C. Cir. 2016) (associational standing for procedural NEPA claims)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Article III standing principles)
- WildEarth Guardians v. Jewell, 738 F.3d 298 (D.C. Cir. 2013) (procedural injury/causation and redressability relaxed standard)
- National Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 524 F.3d 917 (9th Cir. 2008) (agencies may not take actions that deepen jeopardy where baseline already harms species)