City of Tacoma, Washington v. Federal Energy Regulatory Commission
United States Court of Appeals for the District of Columbia Circuit
460 F.3d 53 (2006)
- Written by Curtis Parvin, JD
Facts
In 1924, the City of Tacoma (plaintiff) obtained its initial license under the Federal Power Act (FPA) from the Federal Power Commission (FPC) to dam the North Fork of the Skokomish River in Oregon. Tacoma built the dam to support a larger hydroelectric plant. When the license expired in 1974, Tacoma sought a new license from FPC’s successor, the Federal Energy Regulatory Commission (FERC) (defendant). In the interim, the federal regulatory landscape had changed significantly, with, among other things, the passage of the Clean Water Act, the Coastal Zone Management Act, the National Historic Preservation Act, the National Environmental Policy Act, and the Endangered Species Act (the congressional acts). FERC required 24 years to complete its review, during which time Tacoma operated under annual temporary permits with no conditions. In 1994, FERC approved a 40-year major license but included multiple conditions to address environmental factors, diminished fish populations, and impacts on the local Skokomish Indian Tribe (the tribe) (plaintiff). Tacoma sought a rehearing, contending that the conditions imposed would cost more than the value of the power generated. The tribe complained that FERC had failed to properly consider the dam’s impact on the tribe and the scope of the various congressional acts. FERC allowed the older, unconditional license to remain in place pending the appeal. Tacoma and the tribe, among others, sought review by the United States Court of Appeals for the District of Columbia Circuit, but the court remanded the matter back to FERC due to new findings of endangered species affected by the dam that required analysis under the Endangered Species Act. In 2003 and 2004, an administrative-law judge determined that the minimum water flow from the dam into the river needed to be increased significantly to address the endangered species issue, which FERC added as a condition of licensure. The parties again petitioned the D.C. Circuit Court for review. Tacoma argued that the conditions imposed would effectively require decommissioning of the dam, whereas the tribe argued for the imposition of additional conditions and enforcement of the congressional acts.
Rule of Law
Issue
Holding and Reasoning (Henderson, J.)
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