Academic journal article Energy Law Journal

In Re American Rivers and Idaho Rivers United

Academic journal article Energy Law Journal

In Re American Rivers and Idaho Rivers United

Article excerpt

I. INTRODUCTION

The Federal Energy Regulatory Commission (FERC) will not be allowed to fail in exercising its duty of timely response to petitions. In In re American Rivers and Idaho Rivers United, the United States Court of Appeals for the District of Columbia Circuit held that, under the Federal Power Act (FPA), it had jurisdiction to hear claims of unreasonable agency delay.1 The court also held that a writ of mandamus was the proper remedy to compel an agency to end its unreasonable delay. With this case of first impression, the court sent a message to the FERC, as well as other administrative agencies, that a failure to respond, while technically not a judicially rcviewable answer to a petition, will not keep the courts from making sure an agency does its job.2

Under the Endangered Species Act (ESA), a group of environmental organizations petitioned the FERC to consult with the National Marine Fisheries Service (Service) of the National Oceanic and Atmospheric Administration (NOAA) to discuss the effects of the FERC's action on certain fish species. This occurred in 1997, more than six years later, the FERC had not issued an answer. The environmental organizations, American Rivers and Idaho Rivers United, petitioned the court for a writ of mandamus to compel the FERC to respond. Following the holdings of previous cases involving similar delays, the court held that the FERC's six-year delay in answering the environmental organizations' petition was unacceptable and issued a writ of mandamus to compel the FERC's response.3

This paper discusses and analyzes the court of appeals decision. First, it examines the factual underpinnings of the case. Second, it examines the case's regulatory and procedural background. The ESA, as well as the environmental organizations' various petitions, are examined in context of the case. Next, it examines the decision of the Court of Appeals for the District of Columbia. It examines the remedy sought, the standard for determining unreasonable delay, the FERC's arguments, and the court's decision. Finally, it analyzes the court's handling of similar cases and applies the case factors to the standard stated for determining unreasonable delay.

II. FACTUAL BACKGROUND

This case finds its background in the waters of the Snake River. In 1955, the Federal Power Commission (FPC), the FERC's predecessor, granted a license to the Idaho Power Company (IPC) to build, operate, and maintain a hydropower project in the Hells Canyon area of the Snake River. The license was granted for a duration of fifty years. The project consisted of the Oxbow, low Hells Canyon, and Brownlee dams.4 The FPC knew that this project would environmentally impact the region. At the time the FPC granted the license, it recognized that the project would adversely affect the area fish and wildlife.5 The FPC also recognized that the anadromous6 fish would be particularly affected by the granting of the license to the IPC.7 As a result, the FPC required that the IPC take mitigation efforts such as fish ladders, fish traps, or other fish handling facilities in order to conserve the fish resources.8 In accordance with the FPC and the Secretary of the Interior, the license also provided that the IPC must make reasonable modifications to preserve area fish.9

The FPC granted the license to the IPC in 1955. Thereafter, Congress enacted the Endangered Species Act (ESA) to protect various species of fish, wildlife, and plants from becoming extinct.10 This legislation affected, and continues to affect, the locales of many hydropower operations nationwide, including the Snake River where IPC operations are located. Under the ESA, three of the anadromous fish species that make their home in the Snake River are listed as endangered, one species is listed as threatened, and hydropower development is stated as a population decline factor.11 The Snake River sockeye salmon, the Snake River spring/summer Chinook salmon, and the Snake River fall Chinook salmon are all listed as endangered species. …

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