National Parks Conservation Ass'n v. Federal Energy Regulatory Commission, No. 19-72915 (9th Cir. 2021)
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The Ninth Circuit concluded that the Commission did not act arbitrarily or capriciously, or abused its discretion, in denying the Association's motion to intervene in post-licensing deadline extension proceedings pertaining to the Eagle Mountain Pumped Storage Hydroelectric Project in California. The panel concluded that the Commission's interpretation of its Rule 214 deserves deference, and thus it may properly limit intervention in post-licensing proceedings. The panel further concluded that the Commission did not abuse its discretion in denying the Association's motion to intervene, where the only change sought by the licensee was an extension of time to commence construction.
The panel also concluded that the Commission did not violate the Federal Power Act (FPA) in failing to provide public notice. In this case, based on longstanding interpretative precedent, the Commission determined that Eagle Crest's request was not a significant alteration of the License because the requested extensions were not inconsistent with the Project's plan of development or terms of the License. The panel concluded that the Commission's interpretation of Section 6 of the FPA is sufficiently persuasive as applied to deadline extension requests. Accordingly, the panel denied the petition for review.
Court Description: Federal Energy Regulatory Commission. The panel denied a petition for review which alleged that the Federal Energy Regulatory Commission acted arbitrarily or capriciously, or abused its discretion, in denying National Parks Conservation Association’s motion to intervene in post-licensing deadline extension proceedings pertaining to the Eagle Mountain Pumped Storage Hydroelectric Project in California. On June 19, 2014, the Commission issued Eagle Crest Energy Company (“Eagle Crest”) an original license to construct, operate, and maintain the Project pursuant to sections 4(e) and 15 of the Federal Power Act (“FPA”). Eagle Crest obtained one extension of the deadline to commence construction, and then after the expiration of the extended deadline, requested a second two-year extension to commence construction and a corresponding two-year extension to complete construction, relying on the enactment of the America’s Water Infrastructure Act of 2018 (“Infrastructure Act”), which amended Section 13 of the FPA by changing the maximum number of extensions a licensee could receive from a one-time, two-year extension to any number of extensions totaling not more than 8 additional years. The National Parks Conservation Association moved to intervene in the deadline extension proceedings and filed 4 NAT’L PARKS CONSERVATION ASS’N V. FERC comments arguing that the Federal Energy Regulatory Commission could not apply the Infrastructure Act to a license that, in the Association’s view, had already expired. The Commission issued an order granting an extension of the deadlines to commence and complete construction, denied the Association’s motion to intervene, and denied rehearing. The Commission concluded that the Commission’s Rule 214, the relevant intervention regulation, was inapplicable because post-licensing deadline extension proceedings are not proceedings where the Commission permits intervention, the extension-of-time request was not a material amendment to the license such that an exception to the Commission’s precedent was warranted, and the Commission did not violate the FPA’s notice requirements. The panel held that the Commission’s interpretation of Rule 214 deserved deference, and thus the Commission could properly limit intervention in post-licensing proceedings. The panel was persuaded that Rule 214 was ambiguous as to whether it applied in post-licensing deadline extension proceedings and determined that the Commission’s interpretation was reasonable. The panel further held that despite the Commission’s overly narrow interpretation of what constitutes a material change to a project or existing license, substantial evidence supported the Commission’s explanations and conclusion that Eagle Crest’s deadline extension request was not a material amendment under Kings River Conservation District, 36 FERC 61,365 (1986). The panel further concluded that the Commission did not abuse its discretion in denying the Association’s motion to intervene, where the only change sought by the licensee was an extension of time to commence construction. The panel therefore concluded that NAT’L PARKS CONSERVATION ASS’N V. FERC 5 the Commission did not abuse its discretion, or act arbitrarily or capriciously, in denying the Association’s motion to intervene. The panel next considered whether the Commission was required, under Section 6 of the FPA, to give public notice of Eagle Crest’s post-licensing request. The Commission determined that public notice was not required because Eagle Crest’s request did not significantly alter the license. The panel held that the Commission’s interpretation of Section 6 of the FPA was sufficiently persuasive as applied to deadline extension requests. The panel noted that the FPA was silent as to the precise meaning of “altered” in 16 U.S.C. § 799, and the Commission’s interpretation that deadline extensions do not trigger Section 6 notice requirements was reasonable. The panel further held that the Commission’s determination that Eagle Crest’s request did not trigger Section 6 notice requirements was supported by substantial evidence. The Commission’s finding was especially sound since Eagle Crest requested only a two-year extension and sought no other changes to the Project or the license. Given these considerations, the panel upheld the Commission’s conclusion that notice was not required.
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