On October 23, 2018, the U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”) in Maine Council of the Atlantic Salmon Federation v. FERC rejected a challenge brought by several conservation groups (“Petitioners”) in response to a FERC order amending the licenses for three hydroelectric projects on Maine’s Kennebec River. FERC’s order approved an an interim species protection plan for endangered Atlantic salmon and a handling and protection plan for shortnose and Atlantic sturgeon. The Petitioners raised issues arising under the Endangered Species Act and claimed that FERC’s order violated the Kennebec Hydro Developers Group Agreement (“Kennebec Agreement”), of which the licensees are parties.
In a short per curiam decision, the D.C. Circuit denied the petition and upheld FERC’s orders amending the licenses. First, the D.C. Circuit ruled that it lacked jurisdiction to consider the Petitioners’ claim that the Biological Opinion (“BiOp”) prepared by the National Marine Fisheries Service (“NMFS”) was invalid, as Petitioners failed to raise this objection in their request for rehearing before FERC. In reaching this conclusion, the court relied on section 313(b) of the Federal Power Act, which requires that “[n]o objection to the order of the Commission shall be considered by the court unless such objection shall have been urged before the Commission in the application unless there is reasonable ground for failure to do so.” Here, the D.C. Circuit found no “reasonable grounds” for Petitioners’ failure to raise this issue in their rehearing request.
The D.C. Circuit also rejected Petitioners’ claims involving the Kennebec Agreement and FERC’s reliance on the BiOp. The court concluded (without considering whether the Kennebec Agreement binds FERC) that the parties to the Kennebec Agreement have complied with the agreement by consulting with one another. The D.C. Circuit also held that FERC did not act arbitrarily or capriciously by relying on the BiOp prepared by NMFS, since the NMFS is the federal agency authorized to implement the Endangered Species Act. Finally, the court found that FERC conducted an independent review and adopted the Biological Assessment that formed a basis for the BiOp.
A copy of the D.C. Circuit’s opinion is available here.