FPL Energy ME Hydro v. FERC

Dec 23: In the U.S. Court of Appeals, First Circuit, Case No. 05-1871. FPL Energy Maine Hydro LLC (FPL) owns a facility that provides hydroelectric generation and flood control along the Kennebec River in Maine. The present dispute grows out of FPL's effort to secure a renewal of an operating license from the Federal Energy Regulatory Commission (FERC) and its attempts to get a water quality certification from the State of Maine, a necessary predicate for the renewal of the license. FPL's predecessor first obtained an operating license from FERC in 1979. Before its license could be renewed by FERC, section 401(a)(1) of the Clean Water Act required the applicant to obtain certification by Maine that the project complied with various state and Federal water quality standards, or demonstrate that Maine had waived certification by "fail[ing] or refus[ing] to act on a request for certification" within one year.

FPL argues that FERC erred because the Board's action rescinding the certification violated the CWA's one-year time limit and is a nullity, resulting in either a waiver of certification or reinstatement of the DEP Commissioner's certification. Alternatively, FPL says FERC failed to recognize that it had discretion to disregard the DEP Board's allegedly belated action and that the case should be remanded so that it can exercise that discretion.

In its decision to deny FPL's request, the Appeals Court says in part, ". . .relying on our decision in Puerto Rico Sun Oil Co. v. EPA, 8 F.3d 73 (1st Cir. 1993), FPL argues that FERC misconstrued its own powers by failing to recognize that it had authority to accept or disregard the DEP Board's action precisely because it was untimely. FPL says, therefore, that the stay order should at the very least be remanded to FERC so it can rule again on the stay application with an awareness that it can disregard the rescission of the certification.

"Sun Oil does say that the responsible federal agency -- there it was the EPA -- is free to disregard an untimely state certification action under section 401. . . but the premise of FPL's argument is that in this case, as was unquestionably true in Sun Oil. . . the state's action was untimely. This is the very premise that the Maine SJC [Maine Supreme Judicial Court] rejected and (as we have explained) the Maine SJC's contrary determination that the DEP Board's rescission was timely binds FPL in this court. The petition to review FERC's stay order is denied.

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