Alabama Power Company v. Federal Energy Regulatory Commission

In the early 1980s, the Federal Energy Regulatory Commission (FERC) (defendant) and the Fish and Wildlife Service (the service) determined that the Alabama Power Company (APC) (plaintiff) needed to increase the flow rate from the APC’s Jordan Dam on the Coosa River to protect downstream fisheries. In 1988, while administrative proceedings on the flow rate were pending, tulotoma snails (the snails), a species thought to be extinct, were found in the water below the Jordan Dam. Following the discovery, the service started the process of listing the snails under the Endangered Species Act (ESA), and FERC informally conferred with the service under the ESA. In May 1990, the service informed FERC that a continuous minimum flow would improve the snails’ habitat, and in November 1990, FERC ordered the APC to maintain a continuous minimum flow on the river (the order). The APC executed the order but continued challenging FERC’s determination. In December 1990, the APC submitted an affidavit from a malacologist, a mollusk expert, questioning the order’s flow rate and proposing a study to examine the effects of maintaining the river’s pre-order flow rate on the snails. After the snails were listed as a protected species in February 1991, FERC initiated formal consultation with the service under the ESA. The service’s July 1991 biological opinion concluded that the order’s flow rate benefited the snails by increasing the snails’ habitat. After exhausting administrative remedies, the APC petitioned for judicial review of the order, arguing that FERC had violated § 7(a)(2) of the ESA by failing to use the best scientific evidence and conduct a baseline study on the effects of the river’s pre-order flow rate on the snails.