Platte River Whooping Crane Critical Habitat Maintenance Trust v. Federal Energy Regulatory Commission

The Platte River Whooping Crane Critical Habitat Maintenance Trust (the trust) (plaintiff) intervened in the applications for annual licenses for two hydroelectric facilities made by Central Nebraska Public Power and Irrigation District (Central) and Nebraska Public Power District (NPPD) to the Federal Energy Regulatory Commission (FERC) (defendant). The trust wanted FERC to put environmental-protection measures into the annual licenses. FERC found that the hydroelectric operations contributed to channel narrowing and increased vegetation on the river, which disrupted the habitat of several protected birds such as the whooping crane, terns, and the piping plover. FERC determined that it was authorized to amend NPPD’s license, but not Central’s. FERC interpretated § 6 of the Federal Power Act (FPA) to permit the alteration of licenses already issued with the agreement of the licensee unless the license included an express reservation of authority to modify it. Further, FERC asserted that the requirement of § 4(e) of the FPA to consider environmental interests applies only to new licenses, not annual licenses. As a result, FERC approved several conditions (e.g., minimum/maximum flow specifications and development of nesting sites for certain birds) for only NPPD’s annual license and amended it. FERC sought voluntary cooperation from Central in implementing the conditions, but Central declined. NPPD was unable to meet one of the conditions of its annual license (the minimum flow requirement) without the voluntary compliance of Central, so FERC granted a stay of that requirement. FERC was petitioned for a rehearing regarding the annual licenses, which it denied. Petitions for review of the order amending NPPD’s license, the stay order, and the orders denying rehearing were filed in the court of appeals.