Shafer & Freeman Lakes Environmental Conservation Corp. v. Federal Energy Regulatory Commission, No. 19-1066 (D.C. Cir. 2021)Annotate this Case
In 2012, U.S. Fish and Wildlife Service scientists discovered that endangered mussels were dying on the banks of Indiana's Tippecanoe River. The Service focused on the upstream Oakdale Dam, which significantly restricts the flow of water downstream in order to generate hydroelectricity and to create a lake. The Service worked with Oakdale's operator to develop new procedures that would require the dam to release more water during droughts. After a lengthy process of interagency cooperation and public dialogue, the new procedures were approved by the Federal Energy Regulatory Commission, which has licensing authority over hydroelectric dams on federally regulated waters.
Local governmental entities sought review of the Commission’s decision and the Service’s Biological Opinion upon which the Commission relied. The D.C. Circuit affirmed in part. The court rejected some challenges to the validity of the Biological Opinion, which were not raised on rehearing before the Commission. There was otherwise no error in the agencies’ expert scientific analyses. The agencies failed to adequately explain why the new dam procedures do not violate a regulation prohibiting the Service from requiring more than “minor” changes to the Commission’s proposal for dam operations. Because vacating the agencies’ decisions would subject the dam operator to contradictory legal obligations imposed by separate agencies, the court remanded to the Commission without vacatur for further proceedings.