992 F.3d 1071
D.C. Cir.2021Background
- Two hydroelectric dams (Norway and Oakdale) on Indiana’s Tippecanoe River are licensed to NIPSCO by FERC; the license required maintaining Lake Freeman within ~3 inches of a target elevation (instantaneous run-of-river).
- In a 2012 drought, endangered mussels downstream were dying; US Fish and Wildlife Service (Service) concluded dam operations contributed and issued a Technical Assistance Letter (2014) recommending releases that scale downstream flow to 1.9× the upstream Winamac gauge during low-flow events and cessation of generation.
- NIPSCO sought a license amendment to implement the Service’s approach; FERC staff proposed a compromise (stop generation during lows but maintain lake elevation) as its preferred alternative after NEPA review.
- The Service issued a Biological Opinion finding FERC’s staff alternative "no jeopardy" but, in its Incidental Take Statement, required the Service’s linear-scaling measure (allowing greater lake drawdown) as a "reasonable and prudent measure" to minimize incidental take.
- Coalition of local governments and landowners challenged the Scientific basis of the Biological Opinion, argued the Service’s measure exceeded the regulation limiting "minor" changes, and sought review of FERC’s adoption of the license amendment; FERC adopted the amendment incorporating the Service’s measure.
- D.C. Circuit: upheld the Service’s scientific methodology (linear scaling) and FERC’s reliance on the Biological Opinion, but remanded because the Service failed to explain why its required measure qualified as only a "minor change" under 50 C.F.R. § 402.14(i)(2); court remanded without vacatur to avoid regulatory conflict and disruption.
Issues
| Issue | Petitioners' Argument | Respondent's Argument | Held |
|---|---|---|---|
| Validity of Service’s scientific method (linear scaling) | Linear scaling is unsound for daily/low-flow prediction; lake-level maintenance is better | Service relied on best available science, watershed homogeneity, and statistical support; linear scaling best minimizes take | Court upheld Service’s methodology as reasonable and supported by record; FERC reasonably relied on it |
| Exhaustion / jurisdiction to review Biological Opinion | Coalition preserved validity challenges on rehearing and court may review BiOp | FERC argued issues not raised on rehearing limited judicial review | Court found Coalition’s rehearing preserved challenge to BiOp generally but not several specific scientific arguments (those unexhausted dismissed) |
| Whether the Incidental Take Statement’s "reasonable and prudent measure" exceeded the regulation limiting only "minor" changes | Service’s measure allows large lake drawdowns and thus is a major change, violating 50 C.F.R. § 402.14(i)(2) | Service/FERC: measure achieves same purpose as FERC alternative or is nondiscretionary, so it need not be treated as a major change | Court held Service failed to analyze/explain why the measure is only a "minor change"; both agencies’ explanations were inadequate; remand required for Service to justify application of the minor-change rule |
| Remedy (vacatur vs remand) | Coalition sought vacatur of BiOp/FERC order | NIPSCO and agencies urged remand without vacatur to avoid leaving licensee subject to conflicting obligations and severe disruption | Court remanded without vacatur, finding remand-only appropriate given potential disruptive consequences and possibility agencies can cure the explanatory defect while keeping outcome |
Key Cases Cited
- Bennett v. Spear, 520 U.S. 154 (1997) (BiOp has powerful coercive effect; agency may rely on BiOp but risks liability if disregarded)
- City of Tacoma v. FERC, 460 F.3d 53 (D.C. Cir. 2006) (action agency’s reliance on BiOp reviewed for arbitrary reliance; requirement to consider whether new information undermines BiOp)
- Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (1983) (arbitrary and capricious standard and need for reasoned explanation)
- Florida Power & Light Co. v. Lorion, 470 U.S. 729 (1985) (reviewing court must apply APA standard based on agency’s administrative record)
- Appalachian Power Co. v. EPA, 135 F.3d 791 (D.C. Cir. 1998) (deference for agency scientific judgments within expertise)
- Building Indus. Ass'n of Superior Cal. v. Norton, 247 F.3d 1241 (D.C. Cir. 2001) (agencies must use best available science; cannot rely on speculation)
- Humane Soc'y of U.S. v. Zinke, 865 F.3d 585 (D.C. Cir. 2017) (standards for remand without vacatur; consider disruption and likelihood of cure on remand)