50 F.4th 954
10th Cir.2022Background
- Municipality sought to raise Gross Reservoir dam and expand a reservoir to increase its water supply, requiring both a FERC license amendment and a Corps §404 discharge permit to place fill in waters.
- The Army Corps prepared an EIS, consulted with the Fish and Wildlife Service under the ESA (which issued then withdrew a biological opinion regarding trout), and ultimately issued the §404 permit.
- The municipality separately obtained FERC approval to amend its hydroelectric license; FERC issued a supplemental environmental assessment and acted as a cooperating agency in parts of the process but did not incorporate Corps/Service decisions into enforceable license terms.
- Conservation organizations sued in federal district court to set aside the Corps’ permit under the Clean Water Act, NEPA, ESA, and the APA; the Corps, Service, and municipality moved to dismiss, arguing exclusive review lay in the federal courts of appeals under the Federal Power Act.
- The district court dismissed for lack of subject-matter jurisdiction; on appeal the Tenth Circuit reversed, holding the Federal Power Act’s exclusive-review provision did not cover challenges to Corps/Service actions that were not orders issued by FERC or issues that FERC could have decided.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 16 U.S.C. § 825l(b) (FPA) vests exclusive jurisdiction in courts of appeals over challenges to Corps §404 and Service ESA actions tied to a FERC license amendment | Plaintiffs: Their suit targets Corps/Service actions; district court may review because FERC did not issue the challenged orders | Corps/Service: The claims "inhered in the controversy" of the FERC license amendment, so exclusive review in court of appeals | Held: No exclusive jurisdiction. §825l(b) covers only orders issued by FERC or issues the Commission could have decided; these claims targeted Corps/Service actions FERC could not resolve |
| Whether the plaintiffs’ CWA/§404 challenges fall within FERC’s authority (thus forcing review in court of appeals) | Plaintiffs: CWA issues concern Corps’ selection of least damaging practical alternative and cost analysis — outside FERC’s remit | Defendants: The CWA claims are sufficiently related to the FERC licensing decision to require appellate review | Held: CWA claims challenge Corps determinations FERC did not and could not decide; not subject to exclusive appellate review |
| Whether NEPA claims (EIS adequacy) are reviewable only in court of appeals because related to the licensing proceeding | Plaintiffs: NEPA claims attack Corps’ EIS, distinct from FERC’s narrower supplemental EA | Defendants: Overlap and FERC reliance on Corps EIS make issues inseparable and appellate review appropriate | Held: NEPA claims target Corps’ broader EIS outside FERC’s licensing scope; district court jurisdiction permitted |
| Whether ESA claims (biological opinion issuance/withdrawal) are subject to exclusive appellate review | Plaintiffs: ESA claim challenges Service opinions and Corps’ reliance on them — not FERC orders | Defendants: Service opinions implicated the license and thus fall within §825l(b) | Held: ESA claims challenged Service actions not incorporated into the license; FERC did not solicit/incorporate those opinions, so district court review is proper |
Key Cases Cited
- City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320 (1958) (FPA exclusivity applied to issues that "inhere in the controversy" over a Commission order)
- PennEast Pipeline Co. v. New Jersey, 141 S. Ct. 2244 (2021) (narrows City of Tacoma: exclusive review covers claims that would modify or set aside the agency order)
- Merritt v. Shuttle, Inc., 245 F.3d 182 (2d Cir. 2001) (test for when issues are "inhering in the controversy")
- Williams Nat. Gas Co. v. City of Okla. City, 890 F.2d 255 (10th Cir. 1989) (statutory exclusivity applies only to issues within the Commission's authority)
- Nat'l Parks & Conservation Ass'n v. FAA, 998 F.2d 1523 (10th Cir. 1993) (applying exclusive-review statute to another agency where that agency's action was triggered by the covered agency)
- Custer County Action Ass'n v. Garvey, 256 F.3d 1024 (10th Cir. 2001) (exclusive-review applied where FAA expressly incorporated another agency's decision)
- Adorers of the Blood of Christ v. FERC, 897 F.3d 187 (3d Cir. 2018) (discusses scope of issues FERC may decide but involved a direct challenge to a FERC order)
- Snoqualmie Valley Pres. Alliance v. U.S. Army Corps of Eng'rs, 683 F.3d 1155 (9th Cir. 2012) (held district court review of Corps permit proper where challenge did not amount to an improper collateral attack on a FERC license)