629 F.3d 209
D.C. Cir.2010Background
- Klamath Hydroelectric Project on the Klamath River in Oregon/California, operated by PacifiCorp under FERC licenses since 1956; license expired in 2006 and has since been renewed via annual licenses.
- Hoopa Valley Tribe holds fishing rights in the Klamath River and depends on the River's trout for subsistence and recreation.
- In 2007 the Tribe sought interim license conditions (ramping rate and minimum flows) to protect the trout fishery; FERC denied in 2008.
- FERC found the trout fishery was 'sustaining adverse effects' but still thriving, and found no risk of irreversible environmental damage, thus denying interim conditions.
- The Tribe sought rehearing; FERC denied in 2009, applying an 'unanticipated, serious impacts' standard to decide whether to impose interim conditions by treating the interim-conditions inquiry like license reopening.
- The Tribe challenged FERC's decision in this court; the DC Circuit upheld and denied the Tribe's petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FERC's standard was properly articulated. | Tribe argues FERC's standard was standardless. | FERC articulates a standard: impose interim conditions if there are unanticipated, serious impacts. | Standard articulated and applied. |
| Whether irreversible environmental damage is required for interim conditions. | Tribe claims irreversible damage is required before interim conditions can be imposed. | FERC did not require irreversible damage; it could impose interim conditions absent such a showing. | No irreversible-damage prerequisite; standard allows interim conditions absent irreversibility. |
| Whether the 'unanticipated, serious impacts' standard is consistent with precedents/regulations. | Tribe contends the standard is inconsistent with FERC precedents/regulations. | Standard aligns with FERC practice and 18 C.F.R. § 16.18(d); consistent with precedent. | Standard is consistent with regulation and precedents. |
| Whether the record supports the 'unanticipated, serious impacts' finding. | Tribe asserts data are unreliable and conflicts weigh against the finding. | Agency weighs conflicting expert evidence; substantial evidence supports the finding. | Finding supported by substantial evidence. |
Key Cases Cited
- Marsh v. Oregon Natural Res. Council, 490 U.S. 360 (1989) (agency expertise; defer to agency factual judgments)
- Wis. Valley Improvement Co. v. FERC, 236 F.3d 738 (D.C. Cir. 2001) (substantial evidence review of agency findings)
- Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. FPC, 510 F.2d 198 (D.C. Cir. 1975) (preserving status quo in license termination/relicensing)
- SEC v. Chenery Corp., 332 U.S. 194 (1947) (agency may develop standards; general rulemaking/decision process flexibility)