497 F. App'x 127
2d Cir.2012Background
- GIPA appeals three FERC orders on remand after GIPA I concerning School Street Project.
- FERC determined whether the 2005 Settlement materially amended the 1991 license application under 18 C.F.R. § 4.35(f)(1).
- Material amendment hinges on a fundamental, significant change to plans of development affecting the flow regime.
- FERC concluded the 2005 changes did not materially amend the application because the project would still run in run‑of‑river mode with the same minimum flows.
- Court upholds FERC’s interpretation and findings, affirming on substantial evidence and evidentiary rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2005 Settlement materially amended the 1991 Application | GIPA argues it did materially amend | FERC found no material amendment | Not material; affirmed |
| Whether FERC properly applied the flow-regime causal link test | Changes in capacity would alter flow regime | Regulation requires causal link; no significant change | Affirmed; no material amendment |
| Whether changes to powerhouse location constitute material amendment | Potential relocation would be material | No material change in location | Affirmed; not material |
| Whether evidentiary rulings amounted to abuse of discretion | Evidence should have been admitted | Rulings were justified and explained | Affirmed; no abuse of discretion |
| Whether to take judicial notice of letters about excavation | Letters show additional information | Letters unrelated to amendment; not judicially noticed | Denied; no need for judicial notice |
Key Cases Cited
- Chase Bank USA, N.A. v. McCoy, 131 S. Ct. 871 (2011) (court deference to agency interpretation unless plainly erroneous)
- Auer v. Robbins, 519 U.S. 452 (1997) (agency deference to its own regulations)
- Friends of Ompompanoosuc v. F.E.R.C., 968 F.2d 1549 (2d Cir. 1992) (substantial evidence standard in agency review)
- Allegheny Elec. Co-op., Inc. v. F.E.R.C., 922 F.2d 73 (2d Cir. 1990) (definition of substantial evidence and standard of review)