Green Island Power Authority v. Federal Energy Regulatory Commission
577 F.3d 148
2d Cir.2011Background
- FERC relicensing the School Street Hydroelectric Project on Mohawk River; petitioners Adirondack Hydro Development Corp. and Green Island Power Authority dispute FERC orders denying intervention and granting a 40-year license.
- Adirondack became a party by intervention in 1997; Green Island never became a party but challenged denial of its late-intervention motion.
- Erie Boulevard Hydropower, L.P. acquired the license application; Erie proposed an 11–21 MW generator and settlement discussions occurred.
- FERC rejected Green Island’s intervention and the Alternative Offer of Settlement; later, Erie’s Offer of Settlement led to a license order in 2007.
- Green Island and Adirondack sought review; court consolidated petitions challenging multiple FERC orders/notice actions.
- Court remanded to determine whether the Offer of Settlement materially amended the license application, requiring timely intervention and full consideration of feasible alternatives.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Adirondack and Green Island have standing to sue. | Adirondack asserts injury from downstream impacts and affiliate interests; Green Island argues standing via petition/agency error. | Adirondack’s injuries are speculative; Green Island lacked party status to challenge relicensing orders. | Adirondack lacks standing; Green Island has standing to challenge intervention-denial orders. |
| Whether FERC abused its discretion by denying Green Island's motion to intervene after the Offer of Settlement. | FERC failed to analyze whether the Offer materially amended the license and thus failed to solicit interventions. | Settlement generally supplements, did not materially amend, and fell within regulatory exceptions. | FERC acted arbitrarily and capriciously by not first determining if the Offer materially amended the license; remand required. |
| Whether the Offer of Settlement was a material amendment requiring renewed intervention rights. | The settlement modified the scope of the project and could affect interests not contemplated by the original license. | The settlement did not supersede the license application and did not materially affect interests. | The court remands to decide if the Offer was a material amendment; if so, Green Island’s intervention must be timely analyzed. |
| Whether the proceedings’ prejudicial error requires remand or exit. | If the error affected the outcome, remand is necessary to correct it. | If harmless, no remand needed; error should be ignored where outcome unchanged. | Prejudicial error found; remand appropriate to allow proper analysis of alternatives, including Cohoes Falls. |
Key Cases Cited
- Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608 (2d Cir.1965) (duty to consider feasible alternatives and best-adapted standards under FPA)
- LaFleur v. Whitman, 300 F.3d 256 (2d Cir.2002) (standard of review for agency decisions under APA; arbitrariness/abuse of discretion)
- City of Orrville v. FERC, 147 F.3d 979 (D.C.Cir.1998) (standing and aggrieved party analysis for FERC orders)
- Warth v. Seldin, 422 U.S. 490 (Supreme Court, 1975) (constitutional standing requirements (injury in fact, causation, redressability))
- Covelo Indian Cmty. v. FERC, 895 F.2d 581 (9th Cir.1990) (standing and aggrieved party analysis in FERC proceedings)