Commissioners Disagree on Intervention Decision

Glick Dissents From Denial of Party Status to Conservation Group in Hydroelectric Licensing Case
Mark Reishus
May 8, 2019 at 09:26:01 ET
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On May 7, 2019, FERC granted Eagle Crest Energy Co.’s (Eagle Crest) request for extensions of time to commence and complete construction of its Eagle Mountain Pumped Storage Hydroelectric Project No. 13123, to be located on the site of an inactive mine near Desert Center, California. In the same order, FERC denied a request for intervention filed by the National Parks Conservation Association (Association). According to the majority, the Association failed to state a case for why its intervention in this post-licensing proceeding would be appropriate. Commissioner Richard Glick, dissenting in part, asserted that the Association “adequately stated its interests in the proceeding and explained the adverse effects that the proceeding might have on those interests. That should be sufficient for the Commission to grant the Association party status and consider its arguments on the merits.”

Motion to Intervene

On Nov. 15, 2018, the Association filed a “Motion to Intervene and Opposition to Request for Extension of Commencement-of-Construction Deadline.”

The Association argued that, under Article 301 of the project’s license, “Eagle Crest was required to commence construction of the Project by no later than June 19, 2016; its failure to do so, after obtaining the single two-year extension (until June 19, 2018) allowed by the Federal Power Act, resulted in the expiration of the license, which should now be terminated, not extended. On behalf of its members and the public more generally, [the Association] seeks intervention at this time in order to address the impropriety of granting Eagle Crest’s request for an extension that runs counter to the applicable law.”

The Association asserted that it and its members “have substantial interests in preserving the desert habitat and aquifers, protecting threatened species, and preventing wilderness degradation in National Parks and other natural areas, all of which may be affected by an extension of the Project’s deadline. These interests are not currently represented by other parties in the proceeding. The Commission should permit [the Association] to intervene, and because no existing law – including the recently-adopted America’s Water Infrastructure Act of 2018 (‘Infrastructure Act’) – authorizes FERC to retroactively reinstate an already expired license, the Commission should deny Eagle Crest’s request for an extension as unauthorized by law.”

According to the Association, intervention is proper where the movant has or represents an interest that may be directly affected by the outcome of the proceeding (Rule 214(b)(2)(ii)), or when the movant’s participation is in the public interest (Rule 214(b)(2)(iii)). “Eagle Crest’s late and untimely request for extension, if granted, could revive a FERC license that has expired according to its own terms for a Project that has significant environmental impacts and no near-term prospects for commencing construction. [The Association] requests that its motion to intervene be granted because its staff and members have an interest in public lands, wildlife, and plant species that will be impacted by the Project and [the Association] seeks to vindicate the greater public interest in protecting the natural resources found on the Project area.”

Majority's Analysis

The majority explained that FERC “issues notices and entertains intervention requests in post-licensing proceedings that entail a material change in the plan of project development or in the terms and conditions of the license, or that would adversely affect the would-be intervenor’s rights in a manner not contemplated by the license. Post-licensing proceedings that do not involve such issues generally do not adversely affect any entities’ rights because they typically do not alter the licensee’s obligations or impose new burdens on third parties. Specifically, questions of timing are usually administrative matters that do not address the merits of the project in question. Accordingly, a request to extend the deadline for the commencement of project construction is generally not an action subject to intervention.”

This general reasoning applies to the Association because it “has not explained how it would be adversely affected by the proposed extension and thus, has not stated a case for why its intervention in this post-licensing proceeding would be appropriate.” The Association’s motion to intervene “is therefore denied.”

Despite its decision to deny the Association’s motion to intervene, the majority acknowledged that each post-licensing proceeding “is a distinct matter, requiring new intervention – if allowed – by those who wish to participate. This is to prevent the post-license relitigation of issues already addressed in the licensing proceeding. [FERC] will allow interventions in post-license proceedings, in appropriate instances.”

Although the majority denied the Association’s motion to intervene, it did briefly describe and address some of the Association’s objections to the deadline extensions. For example, FERC disagreed with the Association’s argument that extending the commencement of construction deadline under the Infrastructure Act would be an improper retroactive application of the law. “Section 3001 of the Act does not limit the Commission’s authority to grant extensions of up to eight years to exclusively projects licensed after passage of the legislation. Accordingly, the Act leaves to the Commission the discretion to determine whether projects such as the licensee’s, which previously missed the deadline to commence construction under section 13 of the [Federal Power Act] as previously constituted but still have a valid license, can be granted a further extension of time. Extending the commencement of construction deadline to June 19, 2020, four years beyond the original deadline, is well within the eight-year window permitted by the statute.”

Glick's Partial Dissent

Commissioner Glick wrote a separate statement and dissented from the majority’s decision to deny the Association’s motion to intervene. According to Glick, the Association’s statement of interests and explanation of adverse effects should be sufficient for FERC to grant the Association party status and consider its substantive arguments.

Given the majority’s declaration that this is generally not the type of proceeding in which FERC permits intervention, Glick suggested that the majority “regards this type of proceeding as an immaterial modification to the license, meaning that our decisionmaking would not benefit from comments by affected entities. Although I agree that a post-licensing proceeding generally should not re-litigate the underlying license, that does not mean that would-be intervenors have nothing useful to say about the determinations that the Commission must make in that proceeding.” To illustrate, Glick said that, although he was not ultimately persuaded by the Association’s arguments, he found them useful in making his decision.

“At the end of the day, I do not believe that the Commission should grant or deny intervention based on what we think a would-be intervenor may say in their comments. If we disagree with commenters’ arguments or find that they are not germane, we should so say on the record, rather than keeping them out of the proceeding altogether.”

Finally, Glick acknowledged the importance of administrative efficiency, “especially when it comes to hydroelectric licensing where licenses take years to process. But just as a hospital should seek to do more than simply minimize the length of patient stays, the Commission cannot let the desire for administrative efficiency prevent us from developing a full record and giving that record the consideration it deserves. In any case, today’s order responds to the Association’s … merits arguments in four concise and convincing paragraphs — hardly an oppressive administrative burden for the Commission. By denying intervention, however, today’s order deprives those entities of the ability to challenge the merits of the Commission’s responses on appeal. I believe that we would be better served by permitting intervention in these proceedings, responding fully to would-be intervenors’ arguments, and allowing them to challenge our responses before a court and vindicate any rights they may have.”

For More Information

See ¶214-32: Intervention — Party Status (Denied) for summaries of orders denying motions to intervene.

Eagle Crest Energy Co., Order Granting Extension of Time to Commence and Complete Project Construction Pursuant to Article 301, 167 FERC ¶61,117 (2019) [Project No. 13123-002].

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