Village of Morrisville, VT v. FERC
136 F.4th 1117
| D.C. Cir. | 2025Background
- The Village of Morrisville, Vermont, sought renewal of its federal license to operate a hydroelectric project and needed both FERC approval and a state water quality certification under Section 401 of the Clean Water Act.
- Vermont expressed significant environmental concerns and required supplemental data, leading to lengthy negotiations and requests for additional information from Morrisville.
- Morrisville withdrew and resubmitted its state certification application twice, seeking more time to negotiate favorable conditions and gather necessary data.
- Vermont eventually issued a conditional certification with operational requirements to which Morrisville objected.
- After exhausting challenges in Vermont state court, Morrisville petitioned FERC, arguing Vermont had waived its Section 401 authority by allowing the withdrawal and resubmission.
- FERC denied the waiver petition, finding no evidence of a coordinated scheme between Morrisville and Vermont to delay certification, and Morrisville appealed to the D.C. Circuit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Vermont waive its Section 401 authority by permitting Morrisville’s withdrawal and resubmission? | Withdrawal/resubmission constituted a de facto extension coordinated with Vermont, thus waiving the state’s authority under Hoopa Valley. | Withdrawals were Morrisville’s unilateral actions, not part of any agreement or scheme with Vermont; thus, no waiver occurred. | No waiver; Morrisville acted unilaterally, not pursuant to a coordinated or contractual delay. |
| Was FERC’s decision arbitrary, capricious, or unsupported by substantial evidence? | FERC did not properly consider evidence of coordination; its finding was not based on substantial evidence. | FERC’s decision was grounded in the record, showing only Morrisville’s self-interested actions. | FERC’s decision was supported by substantial evidence; not arbitrary or capricious. |
| Does Morrisville have standing to challenge FERC’s order? | Morrisville is aggrieved by the order requiring compliance with unfavorable certification conditions. | Vermont argued injury was due to certification conditions, not delay or waiver; thus, relief would not redress alleged injury. | Standing established: FERC’s order requiring compliance causes cognizable injury. |
| Is evidence of a mutual agreement required for Section 401 waiver? | Claimed that Vermont’s acceptance of withdrawals implied a coordinated scheme to delay. | Argued a mutual agreement or scheme to delay is necessary for waiver under Hoopa Valley. | Mutual agreement is required for waiver; none was present here. |
Key Cases Cited
- Hoopa Valley Tribe v. FERC, 913 F.3d 1099 (D.C. Cir. 2019) (waiver found where there was a written agreement between the state and applicant to repeatedly withdraw and resubmit certification requests to delay the process)
- Alcoa Power Generating Inc. v. FERC, 643 F.3d 963 (D.C. Cir. 2011) (discusses the role of state certifications in the federal licensing process)
- S.D. Warren Co. v. Me. Bd. of Env’t Prot., 547 U.S. 370 (2006) (explains the Clean Water Act's framework respecting state input over water quality)
- City of Oberlin v. FERC, 937 F.3d 599 (D.C. Cir. 2019) (discusses the traceability of injuries to federal agency orders)
- Millennium Pipeline Co. v. Seggos, 860 F.3d 696 (D.C. Cir. 2017) (addresses presentation of evidence of Section 401 waiver to FERC and appealability)