Section 7(h) of the Natural Gas Act (NGA) and Section 21 Federal Power Act (FPA) respectively vest Federal Energy Regulatory Commission (FERC or Commission) natural gas pipeline certificate holders or hydroelectric licensees with the ability to exercise the federal power of eminent domain to condemn property when the project proponent is unable to acquire necessary rights by contract or negotiation with the property owner. On June 29, the U.S. Supreme Court, in PennEast Pipeline Co. LLC v. New Jersey, No. 19-1039, held that the 11th Amendment of the Constitution does not bar a certificate holder under the NGA from exercising eminent domain to condemn state-owned property. Significantly for hydropower projects, the Supreme Court’s holding also potentially provides clarity that the 11th Amendment is not a bar to the analogous Section 21 provision of the FPA if a hydroelectric licensee must exercise eminent domain over project-necessary state-owned lands.

Continue Reading Hydroelectric Impact of PennEast Supreme Court Gas Pipeline Condemnation Ruling

There has been a longstanding debate about how to apply the one-year time limit on Clean Water Act Section 401 certification decisions. The D.C. Circuit court in Hoopa Valley Tribe v. FERC, 913 F.3d 1099 (D.C. Cir. 2019) established a bright-line standard that a 401 certification must be issued or denied within one year of receipt of application, or the certification opportunity is waived. States cannot engage in actions to extend this deadline by requiring an applicant to withdraw and refile their application or by finding an application incomplete. This bright-line test was reinforced by the Second Circuit’s more recent decision in New York State Department of Environmental Conservation v. FERC, 991 F.3d 439 (2d Cir. 2021). This interpretation was also codified in EPA’s 2020 Clean Water Act Section 401 Certification Rule. See 85 Fed. Reg. 42210 (July 13, 2020). However, on July 2, the Fourth Circuit offered a different interpretation of Section 401 in its decision in N.C. Department of Environmental Quality v. FERC, No. 20-1655 (McMahan Hydro).

Continue Reading The Fourth Circuit Weighs In on the Interpretation of CWA Section 401

On March 17, 2021, a coalition of environmental organizations and clean energy groups led by the Center for Biological Diversity (CBD) petitioned the Federal Energy Regulatory Commission (FERC) for a rulemaking that would amend the Uniform Systems of Accounts (USofA) requirements to disallow utilities from recovering the cost of membership from ratepayers in associations engaged in lobbying or other influence-related activities. CBD argues that these associations lack transparency, and many engage in “anti-climate” advocacy, including lobbying and campaigning activities, that do not align with the priorities of ratepayers.
Continue Reading Clean Energy Groups Ask FERC for Transparency Into “Anti-Climate” Groups

On March 31, U.S. District Judge Christine Arguello found that the Federal Power Act (FPA) is the exclusive authority with regards to controversies related to Federal Energy Regulatory Commission (FERC) -issued hydroelectric licenses, including challenges that stem from the permitting decisions of other federal agencies acting under their independent statutory authority. In Save the Colorado v. Semonite, Civil Action No. 18-cv-03258 (D. Colo. Mar. 31, 2021), the court ruled that it lacked jurisdiction over an appeal of a U.S. Army Corps of Engineers (USACE) Clean Water Act (CWA) Section 404 permit and the associated U.S. Fish and Wildlife Service (USFWS) Endangered Species Act (ESA) biological opinion since these are actions “inhere[d] in the controversy” related to the FERC license.
Continue Reading District Court Lacked Jurisdiction Over Clean Water Act Section 404 Permit Challenge Involving FERC License Amendment

Addressing environmental justice (EJ) has been an immediate priority for the Biden administration. Within a week of taking the oath of office, President Biden issued a sweeping executive order with a number of EJ initiatives, including creation of a White House Environmental Justice Interagency Council consisting of the heads of each Cabinet-level and independent federal agency. The order also directed federal agencies to “make achieving environmental justice part of their missions” through development of programs and policies aimed at addressing disproportionately high adverse environmental impacts on disadvantaged communities.

Continue Reading FERC Increases Focus on Environmental Justice

On March 23, the Second Circuit issued its opinion in N.Y. Dep’t of Enviro. Conservation v. FERC, Case No. 19-1610 (i.e., the “Empire Pipeline” case). The case concerns the Federal Energy Regulatory Commission’s (FERC or Commission) determination that the New York State Department of Environmental Conservation (NYSDEC) waived its water quality certification authority with regard to FERC’s issuance of a gas pipeline certificate when NYSDEC sought to extend its review period beyond the one-year deadline under Section 401 of the Clean Water Act (CWA or Act) by agreeing with the applicant to “post-date” the filing date of its water quality certification application by several weeks.

Continue Reading Second Circuit Enforces the Clean Water Act Section 401 One-Year Time Limit

In light of the coronavirus disease (“COVID-19”), the Office of Personnel Management (OPM) issued guidance directing that all Federal Executive Branch departments and agencies within the National Capital Region (Maryland, Virginia, and Washington, D.C.) allow maximum telework flexibilities to all current telework eligible employees. This guidance applies to the headquarters of the agencies most involved in regulating hydroelectric projects, such as the Department of Energy (DOE), Department of the Interior (DOI), including the National Park Service (NPS), Fish and Wildlife Service (FWS), Bureau of Land Management (BLM) and Bureau of Indian Affairs (BIA), the Department of Agriculture (USDA), including the Forest Service (FS), and the National Oceanic and Atmospheric Administration (NOAA), including the National Marine Fisheries Service (NMFS). The Federal Energy Regulatory Commission (FERC), an independent agency within DOE, and the United States Army Corps of Engineers (USACE), housed within the Department of the Army, have also taken significant steps to respond to COVID-19.

Continue Reading Federal Agency COVID-19 Updates Impacting the Hydropower Industry