WESTERN STATES WATER, ISSUE NO. 1572

ENVIRONMENT/LITIGATION
In Re: American Rivers and Idaho Rivers United

On June 22, the U. S. Court of Appeals for the District of Columbia Circuit ruled that the Federal Energy Regulatory Commission (FERC) must formally respond to a petition from environmental groups asking the agency to formally consult with the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service (NOAA Fisheries) over hydropower operations affecting threatened and endangered salmon in the Snake River Basin. Under the Endangered Species Act (ESA) section 7, all federal agencies are required to consult with either the U.S. Fish and Wildlife Service or NOAA Fisheries when an agency action may affect a listed species or its critical habitat. In 1997, American Rivers and Idaho Rivers United filed a petition with FERC requesting consultation on dam operations in Hells Canyon. The groups wrote they would pursue relief if they received no response within 30 days.

When FERC failed to act, the groups filed for a “rehearing” with the agency, but FERC denied the request for a rehearing, noting “because there has been no order from which to seek rehearing, the rehearing request is premature and must be rejected.” On appeal, the Ninth Circuit Court of Appeals affirmed. Citing precedent, the Ninth Circuit held: “Mere inaction by the FERC cannot be transmuted by petitioners into an order rejecting their petition. Administrative action is not reviewable as an order ‘unless and until [it] imposes an obligation, denies a right, or fixes some legal relationship as a consummation of the administrative process.’” Following the failed appeal, the environmental groups repeatedly requested FERC to either grant the 1997 petition and initiate section 7 consultation, or deny the petition. The groups then sought a writ of mandamus from the Court of Appeals for the District of Columbia Circuit compelling formal action. The court granted the writ.

FERC defended its inaction, claiming that it had no duty to respond to a petition for agency action merely because a party requests it. The court ruled that pursuant to the Administrative Procedures Act, the agency was bound to respond to the petition. The three-judge panel wrote: “We are not concerned here with what answer FERC might ultimately give...rather, we are reviewing its failure to give them any answer for more than six years.... There is no per se rule as to how long is too long to wait for agency action, but a reasonable time for agency action is typically counted in weeks or months, not years. This court has stated generally that a reasonable time for an agency decision could encompass months, occasionally a year or two, but not several years or a decade. FERC’s six year plus delay is nothing less than egregious.” The court ordered FERC to formally respond to the petition within 45 days.

American Rivers and Idaho Rivers United, applauded the decision. “The court has told FERC in very strong terms that it can’t avoid its responsibilities to protect endangered species by sticking its head in the sand,” said Connie Kelleher of American Rivers.