In a significant victory for the hydropower industry, last week the U.S. District Court for the District of Oregon issued an order in Cascadia Wildlands v. EWEB (Case No. 6:25-00446), reaffirming that the U.S. courts of appeals, on review of orders of the Federal Energy Regulatory Commission (FERC), have exclusive jurisdiction over controversies related to fish passage and other environmental measures included in hydropower licenses issued by FERC. This decision adds to precedent making clear that project opponents may not collaterally attack fish passage conditions in FERC licenses via citizen suits filed under the Endangered Species Act (ESA).
One-Track Mind: Unanimous SCOTUS Decision on Rail Line Approval Further Narrows Scope of NEPA
On May 29, the Supreme Court issued a unanimous opinion in Seven County Infrastructure Coalition v. Eagle County, Colorado that dramatically changes the way courts scrutinize federal agencies’ environmental reviews under the National Environmental Policy Act (NEPA). Justice Brett Kavanaugh, writing for a five-justice conservative majority (with Justice Neil Gorsuch abstaining), held that (a) courts must afford federal agencies “substantial judicial deference” regarding both the scope and contents of their environmental analyses; and (b) courts do not need to consider the effects of the action to the extent they are “separate in time or place” from the proposed project. The ruling gives federal agencies permission to greatly streamline their NEPA analyses at a time when those agencies are rapidly being drained of their resources and facing increasing pressure to expedite lengthy permitting processes.