National Wildlife Federation v. Federal Energy Regulatory Commission

The Federal Energy Regulatory Commission (FERC) granted a license to the city of Fort Smith, Arkansas, to construct a dam near the Arkansas-Oklahoma border. The dam was intended to increase Fort Smith’s water supply, because the then-current supply was insufficient, although it was acknowledged that the dam would cause flooding in parts of Oklahoma. As incidental to the creation of the dam, Fort Smith sought a license to operate a hydroelectric-power facility. Fort Smith envisioned the project as having two phases. In Phase I, a dam would be constructed to allow for a 10-million-gallon-per-day water supply. Phase II would increase the height of the dam to meet future water-supply needs. FERC granted the application, which was limited to Phase I. The state of Oklahoma and the National Wildlife Federation (NWF) (plaintiff) challenged the approval in the United States Court of Appeals for the District of Columbia Circuit, although Oklahoma later dropped its challenge. NWF first argued that FERC had failed to take into account the potential adverse environmental impact of Phase II in its approval of Phase I, in violation of both the Federal Power Act and the National Environmental Policy Act (NEPA). Second, NWF argued that FERC improperly took into account the speculative benefits of the Phase II water-supply gains. Third, NWF argued that FERC violated the Clean Water Act by failing to require Fort Smith to obtain water-quality certification from Oklahoma. And finally, NWF argued that FERC’s environmental-impact statement (EIS) was invalid because it failed to consider reasonable alternatives to the hydroelectric-power plan and was based on data from an interested party, namely, an engineering firm hired by Fort Smith.