Green Island Power Authority v. Federal Energy Regulatory Commission , 497 F. App'x 127 ( 2012 )

11-1960 (L)
Green Island Power Authority v. Federal Energy Regulatory Comm’n
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 25th day of September, two thousand twelve.
5
6 PRESENT: BARRINGTON D. PARKER,
7 RICHARD C. WESLEY,
8 Circuit Judges,
9 JOHN GLEESON,*
10 District Judge.
11
12
13 Green Island Power Authority,
14
15 Petitioner,
16
17 v. 11-1960 (Lead)
18 11-3792 (Con)
19 Federal Energy Regulatory Commission,
20
21 Respondent,
22
23 Erie Boulevard Hydropower, L.P.
24
25 Intervenor-Respondent.
26
27
28
29 FOR PETITIONER: WILLIAM S. HUANG (Rebecca J. Baldwin,
30 Katharine M. Mapes, on the brief),
31 Spiegel & McDiarmid, LLP, Washington, DC.
*
The Honorable John Gleeson, of the United States District
Court for the Eastern District of New York, sitting by
designation.
1 FOR RESPONDENT: HOLLY E. CAFER (Micahel A. Bardee,
2 General Counsel, Robert H. Solomon,
3 Solicitor, on the brief), Federal Energy
4 Regulatory Commission, Washington, DC.
5
6 FOR INTERVENOR: ROY T. ENGLERT, JR., Robbins, Russell
7 Englert, Orseck, Untereiner & Sauber LLP,
8 Washington, DC (William J. Trunk,
9 Robbins, Russell, Englert, Orseck,
10 Untereiner & Sauber LLP, Washington,
11 D.C.; John A. Whittaker, IV, Katherine L.
12 Konieczny, Winston & Strawn, LLP,
13 Washington, DC; David A. Bono, Mel R.
14 Jiganti, Brookfield Renewable Power,
15 Marlborough, MA, on the brief).
16
17 Appeal from the Federal Energy Regulatory Commission.
18
19 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
20 AND DECREED that the orders of the Federal Energy Regulatory
21 Commission are AFFIRMED.
22 Petitioner Green Island Power Authority ("GIPA")
23 appeals from three orders issued by Respondent Federal
24 Energy Regulatory Commission ("FERC") following this Court's
25 decision in Green Island Power Authority v. F.E.R.C., 577
26 F.3d 148 (2d Cir. 2009) ("GIPA I"). In GIPA I, we vacated a
27 license issued by FERC to Intervenor-Respondent Erie
28 Boulevard Hydropower, L.P. ("Erie") for the School Street
29 Project, an existing hydroelectric project on the Mohawk
30 River. Id. at 149-50. On remand, FERC was required to
31 determine, inter alia, whether Erie's 2005 Offer of
32 Settlement ("2005 Settlement"), which proposed changes to
2
1 the 1991 license application for the School Street Project
2 ("1991 Application"), "materially amended" the 1991
3 Application within the meaning of FERC's regulations. Id.4 at 168; 18 C.F.R. § 4.35(f)(1). We assume familiarity with
5 the facts, the procedural history, and the issues presented
6 for review.
7 We defer to an agency's interpretation of its own
8 regulation unless its interpretation is "plainly erroneous
9 or inconsistent with the regulation" or there is any other
10 "reason to suspect that the interpretation does not reflect
11 the agency's fair and considered judgment on the matter in
12 question." Chase Bank USA, N.A. v. McCoy, 131 S. Ct. 871,
13 880-81 (2011) (quoting Auer v. Robbins, 519 U.S. 452, 461-62
14 (1997)). We accept as conclusive FERC's findings of fact if
15 they are "supported by substantial evidence." 16 U.S.C. §
16 825l(b). Substantial evidence means "such relevant evidence
17 as a reasonable mind might accept as adequate to support a
18 conclusion." Friends of Ompompanoosuc v. F.E.R.C., 968 F.2d
19 1549, 1554 (2d Cir. 1992) (quoting Allegheny Elec. Co-op.,
20 Inc. v. F.E.R.C., 922 F.2d 73, 80 (2d Cir. 1990)).
21 We defer to FERC's interpretation of its own regulation
22 and conclude that substantial evidence supported its
23 decision that the 2005 Settlement did not materially amend
3
1 the 1991 Application. A material amendment is defined in
2 FERC's regulations as "any fundamental and significant
3 change" to "plans of development proposed in an application
4 for a license." 18 C.F.R. § 4.35(f)(1). One example of a
5 "material amendment" is “[a] change in the installed
6 capacity, or the number or location of any generating units
7 of the proposed project if the change would significantly
8 modify the flow regime associated with the project.” 18
9 C.F.R. § 4.35(f)(1)(i). In GIPA I, we examined FERC's
10 determination that the changes proposed to the 1991
11 Application in 1995 (elimination of the 21-MW turbine) and
12 2001 (re-addition of that turbine) were not material
13 amendments under this regulation. FERC's position was that
14 while the change in installed capacity "would result in a
15 change in flows," this would not significantly affect the
16 project's flow regime because "the project would still be
17 required to operate in a run-of river mode, and to provide
18 the same minimum flows in the bypassed reach." Erie
19 Boulevard Hydropower, L.P., 120 F.E.R.C. ¶ 61,267, 62,184
20 (2007). We affirmed FERC's decisions because GIPA
21 "offer[ed] no actual evidence to demonstrate that FERC's
22 conclusion was flawed." 577 F.3d at 163.
23
4
1 On remand, FERC applied the same analysis to determine
2 that the 2005 Settlement did not materially amend the 1991
3 Application. Considering past precedent, it concluded that
4 a project's flow regime "is the set of rules governing how
5 flows are to be managed and released from the project," and
6 that its primary elements "are its mode of operation and
7 conditions that specify the amount, location, and timing of
8 any required flow releases." Order on Remand and
9 Reinstating New License, 131 F.E.R.C. 61,036, 61,228 (2010).
10 Furthermore, FERC construed the regulation to ask whether
11 the change in installed capacity itself would “cause [or]
12 require a corresponding change” to the flow regime. Id. at
13 61,229. Applying this framework, FERC concluded that the
14 proposed changes in installed capacity in the 2005
15 Settlement did not materially amend the 1991 Application
16 because "the project would still be required to operate in
17 run-of-river mode and could provide the same minimum flows
18 to the bypassed reach of the Mohawk River" proposed in the
19 1991 Application. Order Denying Rehearing, 134 F.E.R.C.
20 61,205, 62,017 (2011).
21 FERC has consistently interpreted the material
22 amendment regulation to ask whether there is a causal
23 relationship between the change in the installed capacity
5
1 and the flow regime associated with the project. Its
2 conclusions that the 1995 and 2001 proposed changes "would
3 still . . . provide the same minimum flows in the bypassed
4 reach," Order on Remand and Reinstating New License, 131
5 F.E.R.C. 61,036, 61,224 (2010) (emphasis added), whereas
6 the 2005 changes "could provide the same minimum flows to
7 the bypassed reach," Order Denying Rehearing, 134 F.E.R.C.
8 61,205, 62,017 (2011) (emphasis added), are not to the
9 contrary. That the proposed project would and could provide
10 the same minimum flows despite the proposed change in
11 capacity are simply different ways of illustrating why the
12 changed capacity is not causally linked to the minimum
13 flows.
14 GIPA I thus requires that we once again affirm FERC's
15 determination with respect to the 2005 Settlement. The
16 changes to the minimum flows proposed in the 2005 Settlement
17 were not caused by the proposed changes in installed
18 capacity. Rather, the changes in minimum flows were
19 independent of the changes in installed capacity. There was
20 no material amendment because "the project would still be
21 required to operate in run-of-river mode and could provide
22 the same minimum flows to the bypassed reach of the Mohawk
23 River" proposed in the 1991 Application. Order Denying
6
1 Rehearing, 134 F.E.R.C. at 62,017. Indeed, it would make
2 little sense if both the removal of the 21-MW unit in 1995
3 and re-addition of the unit in 2001 were not material
4 amendments (as we held in GIPA I), but the re-removal of the
5 21-MW unit in 2005 was a material amendment merely because
6 of an unrelated proposed increase in minimum flows.
7 We similarly leave undisturbed FERC’s determination
8 that the powerhouse changes associated with substituting the
9 21-MW unit proposed in the 1991 Application with either an
10 11- MW unit or with no additional unit did not constitute a
11 material amendment under FERC's regulations. Under 18
12 C.F.R. § 4.35(f)(1)(ii), a material amendment includes “[a]
13 material change in . . . the location of the powerhouse,. .
14 . if the change would . . . [c]ause adverse environmental
15 impacts not previously discussed in the original
16 application.”
17 Here, the 2005 Settlement did not propose a material
18 change in the location of the powerhouse. The 1991
19 Application proposed to house the new 21-MW unit in an
20 addition to the existing powerhouse. The 2005 Settlement
21 proposed either no new generation unit or a new 11-MW
22 generation unit, to be housed in a new powerhouse or
23 powerhouse addition at the same location. In either
7
1 scenario, the location of the powerhouse would not change
2 because it "would continue to exist at the same location,
3 either with or without a new powerhouse or an addition."
4 Order Denying Rehearing, 134 F.E.R.C. at 62,022.
5 Moreover, FERC did not abuse its discretion with
6 respect to various evidentiary rulings. For each piece of
7 evidence that GIPA contends was improperly excluded, FERC
8 offered thorough explanations to support its decision to
9 exclude the evidence as unreliable, unpersuasive and/or
10 irrelevant. Moreover, even where evidence was excluded as
11 untimely, FERC considered whether the evidence was relevant
12 to the issues being reviewed.
13 Finally, we deny GIPA’s motion to take judicial notice
14 of three documents relating to the physical changes to
15 School Street that occurred due to its excavation by Erie
16 between 2007 and 2010. These letters do not, as GIPA
17 contends, contradict FERC’s position on appeal. FERC's 2007
18 License Order authorized Erie to excavate the power canal
19 without necessarily installing the potential new turbine.
20 The letters merely seek additional information from Erie and
21 question whether an amendment might be required. Erie
22 provided the requested information, and no further action
23 has been taken. This does not contradict FERC’s position on
8
1 appeal that the excavation "fell within the range of canal
2 capacity considered in the 2007 License Order." FERC Br. at
3 61. Accordingly, we decline to take judicial notice of the
4 letters.
5 Because we affirm FERC’s determination that the 2005
6 Settlement did not materially amend the 1991 Application, we
7 need not review FERC’s alternative conclusion that the
8 Cohoes Falls Project is not a feasible alternative to School
9 Street. We have considered GIPA’s remaining arguments and,
10 after a thorough review of the record, find them to be
11 without merit.
12 For the foregoing reasons, the orders of the Federal
13 Energy Regulatory Commission are hereby AFFIRMED.
14
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
17
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