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Missouri Coalition for the Environment v. FERC: CIVIL PROCEDURE | ENVIRONMENT - standing regarind Energy Regulation Commission order; not arbitrary or capricious regarding scope of consideration

United States Court of Appeals
No. 08-1390
Missouri Coalition for the *
Environment; Missouri Parks *
Association, *
Petitioners, *
v. * Appeal from the Federal
* Energy Regulatory Commission.
Federal Energy Regulatory *
Commission, *
Respondent, *
AmerenUE, **
Intervenor. *
Submitted: September 24, 2008
Filed: October 23, 2008
Before MURPHY, ARNOLD, and BENTON, Circuit Judges.
BENTON, Circuit Judge.
The Federal Energy Regulatory Commission (FERC) authorized reconstruction
of the Taum Sauk Pumped Storage Project. Missouri Coalition for the Environment
(MCE) and Missouri Parks Association (MPA) petition for review, asserting that
FERC violated the National Environmental Policy Act (NEPA), 42 U.S.C. 4321-
47. Having jurisdiction under 16 U.S.C. 825l(b), this court denies the petition for
AmerenUE has a license to operate the Project, a hydroelectric generating plant.
The license expires in 2010 (and Ameren has applied for relicensing). The Projects
upper reservoir collapsed in 2005. Ameren sought FERCs authorization to
reconstruct it. FERC issued a Final Environmental Assessment concluding that the
reconstruction would not be a major federal action significantly affecting the quality
of the human environment. The Assessment focused on the impacts of reconstruction
and did not evaluate the potential impacts of operating the Project after 2010 under a
future license. FERC issued a letter order approving Amerens request to reconstruct
the upper reservoir.
MCE and other organizations, not including MPA, moved to intervene in the
FERC proceedings, and requested rehearing. They argued that relicensing the Project
is a reasonably forseeable future action and, therefore, NEPA requires FERC to
consider the cumulative impact to the environment from reconstruction and operation
of the Project under a future license. FERC granted intervention, but denied
rehearing. MCE and MPA petition this court to review the FERC order authorizing
reconstruction of the Project.
MPA lacks standing under the Federal Power Act. No proceeding to review
any order of the Commission shall be brought by any entity unless such entity shall
have made application to the Commission for a rehearing thereon. 16 U.S.C.
825l(a). Since MPA did not request a rehearing, it cannot petition for review of
FERCs order.
FERC contends that MCE lacks Article III standing. Article III standing
requires a petitioner to have suffered an injury-in-fact that has a causal connection
with the challenged agency action and that likely will be redressed by a favorable
decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Injury
under NEPA occurs when an agency fails to comply with the statute . . . . The injuryin-
fact is increased risk of environmental harm stemming from the agencys allegedly
uninformed decision-making. Sierra Club v. U.S. Army Corps of Engrs, 446 F.3d
808, 816 (8th Cir. 2006). For an association to have standing, the interests at stake
must be germane to the organizations purpose. Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000). Since a potentially increased
risk of environmental harm is germane to MCEs mission to preserve and enhance the
physical environment, MCE has Article III standing.
The Federal Power Act restricts this courts review to issues brought before
FERC in the first instance. No objection to the order of the Commission shall be
considered by the court unless such objection shall have been urged before the
Commission in the application for rehearing unless there is reasonable ground for
failure so to do. 16 U.S.C. 825l(b). See Coal. for Fair and Equitable Regulation
of Docks on the Lake of the Ozarks v. FERC, 297 F.3d 771, 777 (8th Cir. 2002).
MCE advances connected actions, cumulative actions, and cumulative impact
arguments on appeal. MCE raises its connected and cumulative actions claims for the
first time, but contends the arguments all address the same issue. To the contrary, the
connected and cumulative actions analyses are separate and distinct from the
cumulative impact analysis under the Council on Environmental Quality regulations
implementing NEPA. Compare 40 C.F.R. 1508.25(a)(1) and 40 C.F.R.
1508.25(a)(2), with 40 C.F.R. 1508.7. This court does not have jurisdiction over
MCEs connected and cumulative actions claims, and considers only the cumulative
impact claim.
FERCs order authorizing reconstruction must be set aside if it is arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C.
706(2)(A); Mid-Continent Area Power Pool v. FERC, 305 F.3d 780, 782 (8th Cir.
2002). NEPA requires FERC to take a hard look at the environmental consequences
of an action before issuing its approval. Mayo Found. v. Surface Transp. Bd., 472
F.3d 545, 549 (8th Cir. 2006). The role of this court is to ensure that FERC
adequately considered and disclosed the environmental impact of reconstruction, and
that its decision is not arbitrary or capricious. Baltimore Gas and Elec. Co. v.
Natural Res. Defense Council, Inc., 462 U.S. 87, 97-98 (1983).
MCE argues that FERC violated NEPA by failing to evaluate the cumulative
impact from the Projects reconstruction and relicensed operation. Cumulative
impact is the impact on the environment which results from the incremental impact
of the action when added to other past, present, and reasonably foreseeable future
actions regardless of what agency (Federal or non-Federal) or person undertakes such
other actions. 40 C.F.R. 1508.7 (emphasis added). At issue is whether relicensed
operation is a reasonably foreseeable future action.
MCE asserts that relicensed operation is reasonably foreseeable because
reconstruction increases the likelihood of relicensing. This assertion is unfounded.
FERC concluded that reconstruction will not influence its relicensing determination:
[T]he Directors approval of the dam reconstruction does not prejudice
the Commissions decision on the relicense application. In contrast to
a repair application, in a relicense proceeding both the FPA and NEPA
require the Commission to examine whether the renewed commitment
of a public resource to hydroelectric generation will be best adapted to
the comprehensive development of the waterway for beneficial public
purposes. . . . In short, there is no legal or factual basis for concluding,
as Petitioners maintain, that relicensing should be considered a
reasonably foreseeable consequence of the reconstruction authorization.
AmerenUE, 121 F.E.R.C. 61,270 at P 14 (2007). The cases MCE cites for the
proposition that construction and operation of a facility are sufficiently related to
require that the impacts be evaluated together are inapposite since none addresses the
relationship between reconstruction under an existing license and future operation
under a new license. See Ocean Advocates v. U.S. Army Corps of Engrs, 402 F.3d
846 (9th Cir. 2005); Fuel Safe Wash. v. FERC, 389 F.3d 1313 (10th Cir. 2004); Mid
States Coal. for Progress v. Surface Transp. Bd., 345 F.3d 520 (8th Cir. 2003); Natl
Wildlife Fedn v. FERC, 912 F.2d 1471 (D.C. Cir. 1990); Concerned About Trident
v. Rumsfeld, 555 F.2d 817 (D.C. Cir. 1977). On this record, relicensed operation is
not a reasonably foreseeable future action.
FERC decided not to consider relicensed operation in its Assessment as that
is being evaluated under the Commissions relicensing proceeding. In comments to
FERC, the United States Forest Service stated that operation of the facility as a result
of re-construction of the upper reservoir would be a connected action and should not
be considered outside the scope of this project. However, NEPA does not require
FERC to accept the input or suggestions of other agencies. Ark. Wildlife Fedn v.
U.S. Army Corps of Engrs, 431 F.3d 1096, 1101 (8th Cir. 2005). It is up to FERC
to determine the value of another agencys comments. Id. The compliance
regulations governing reconstruction under Amerens existing operating license are
indeed separate and distinct from the more stringent regulations governing relicensing.
Compare 16 U.S.C. 803(c) and 18 C.F.R. 12.4(b), with 16 U.S.C. 797(e) and
16 U.S.C. 808. FERCs decision not to include the impacts of relicensed operation
in its environmental assessment of reconstruction was not arbitrary or capricious.
The petition for review is denied.


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