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    Delaware River Basin Commission and Commonwealth of Pennsylvania v. Federal Energy Regulatory Commission, 680 F.2d 16, 3rd Cir. (1982)

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    The Delaware River Basin Commission and the Commonwealth of Pennsylvania petitioned for review of a Federal Energy Regulatory Commission order granting the Borough of Weatherly a preliminary permit to study developing hydropower at the Francis E. Walter Dam. The Commission denied the DRBC and Pennsylvania's application and granted the permit to Weatherly as the first public applicant to file. The Court of Appeals affirmed the Commission's order, finding it was supported by substantial evidence, as the plans presented by all applicants were insufficiently developed and Weatherly was deemed able to carry out studies while consulting appropriate state agencies.

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    Delaware River Basin Commission and Commonwealth of Pennsylvania v. Federal Energy Regulatory Commission, 680 F.2d 16, 3rd Cir. (1982)

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    The Delaware River Basin Commission and the Commonwealth of Pennsylvania petitioned for review of a Federal Energy Regulatory Commission order granting the Borough of Weatherly a preliminary permit to study developing hydropower at the Francis E. Walter Dam. The Commission denied the DRBC and Pennsylvania's application and granted the permit to Weatherly as the first public applicant to file. The Court of Appeals affirmed the Commission's order, finding it was supported by substantial evidence, as the plans presented by all applicants were insufficiently developed and Weatherly was deemed able to carry out studies while consulting appropriate state agencies.

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    Filed: 1982-07-12 Precedential Status: Precedential Citations: 680 F.2d 16 Docket: 81-2506

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    The Delaware River Basin Commission and the Commonwealth of Pennsylvania petitioned for review of a Federal Energy Regulatory Commission order granting the Borough of Weatherly a preliminary permit to study developing hydropower at the Francis E. Walter Dam. The Commission denied the DRBC and Pennsylvania's application and granted the permit to Weatherly as the first public applicant to file. The Court of Appeals affirmed the Commission's order, finding it was supported by substantial evidence, as the plans presented by all applicants were insufficiently developed and Weatherly was deemed able to carry out studies while consulting appropriate state agencies.

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    20 views6 pages

    Delaware River Basin Commission and Commonwealth of Pennsylvania v. Federal Energy Regulatory Commission, 680 F.2d 16, 3rd Cir. (1982)

    Uploaded by

    Scribd Government Docs
    The Delaware River Basin Commission and the Commonwealth of Pennsylvania petitioned for review of a Federal Energy Regulatory Commission order granting the Borough of Weatherly a preliminary permit to study developing hydropower at the Francis E. Walter Dam. The Commission denied the DRBC and Pennsylvania's application and granted the permit to Weatherly as the first public applicant to file. The Court of Appeals affirmed the Commission's order, finding it was supported by substantial evidence, as the plans presented by all applicants were insufficiently developed and Weatherly was deemed able to carry out studies while consulting appropriate state agencies.

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    of 6

    680 F.

    2d 16
    48 P.U.R.4th 66

    DELAWARE RIVER BASIN COMMISSION and


    Commonwealth of
    Pennsylvania, Petitioners,
    v.
    FEDERAL ENERGY REGULATORY COMMISSION,
    Respondent.
    No. 81-2506.

    United States Court of Appeals,


    Third Circuit.
    Argued May 11, 1982.
    Decided June 2, 1982.
    Rehearing and Rehearing In Banc Denied July 12, 1982.

    David J. Goldberg, Warren Goldberg & Berman, Princeton, N. J., John E.


    Childe, Jr. (argued), Asst. Counsel, Com. of Pennsylvania, Dept. of
    Environmental Resources, Harrisburg, Pa., for petitioners.
    Charles A. Moore, Gen. Counsel, Jerome M. Feit, Sol., Joshua Z. Rokach
    (argued), Atty., F. E. R. C., Washington, D. C., for respondent.
    Before GIBBONS and HUNTER, Circuit Judges, and THOMPSON,
    District Judge.*
    OPINION OF THE COURT
    GIBBONS, Circuit Judge:

    The Delaware River Basin Commission (DRBC) and the Department of


    Environmental Resources of the Commonwealth of Pennsylvania (DER)
    petition for review of a Federal Energy Regulatory Commission (Commission)
    order granting the Borough of Weatherly (Weatherly) a preliminary permit to
    study the feasibility of developing hydropower on the Francis E. Walter Dam.1
    This court has jurisdiction to review the Commission's actions pursuant to

    Section 313(b) of the Federal Power Act, as amended, 16 U.S.C. 825l (b) (the
    Act).2 We conclude that the Commission's order is supported by substantial
    evidence and we affirm.
    2

    The Francis E. Walter Dam, located on the Lehigh River in Pennsylvania, is a


    flood control project maintained by the Army Corps of Engineers. Starting in
    May, 1979 and in chronological order, four applicants filed for a preliminary
    permit from the Commission's Office of Electric Power Regulation to explore
    the development of hydroelectric power at the dam: Pennsylvania
    Hydroelectric Development Corp. (May 8, 1979); Borough of Weatherly
    (September 12, 1979); Borough of Lehighton (November 5, 1979); DRBC and
    DER jointly (November 23, 1979). A notice of competing applications was
    published and comments were submitted thereon. The Office of Electric Power
    Regulation decided that it could not differentiate among the various proposals
    because none of the applicants had presented a sufficiently developed plan
    based on detailed studies. Following the preference hierarchy established by
    Section 800 of the Act and by Sections 4.33g(2) & (3) of the Commission's
    regulations, 18 C.F.R. 4.33g(2) & (3), Weatherly was granted a preliminary
    permit because it was the first public applicant to file. All other applications
    were denied.

    DRBC and DER appealed the denial of their application. The Commission
    affirmed the earlier order, Pennsylvania Hydroelectric Development Corp., 15
    FERC P 61,152 (1981), and also denied the subsequent petition for a rehearing.
    Pennsylvania Hydroelectric Development Corp., 16 FERC P 61,025 (1981).
    Having exhausted their avenues of administrative relief, DRBC and DER now
    seek judicial review of the Commission's actions. See 16 U.S.C. 825l (b).

    The Commission regulates the development of hydroelectric power from


    waters under federal jurisdiction. 16 U.S.C. 796 et seq. This task is
    discharged by issuing licenses for the construction and maintenance of
    necessary facilities. 16 U.S.C. 797(e). To obtain a license, a prospective
    applicant must provide the Commission with a plethora of information,
    including feasibility studies, planned compliance with state laws and other
    relevant data. 16 U.S.C. 802; 18 C.F.R. 4.1 et seq. Compliance with
    statutory and regulatory conditions takes time and money, and an applicant
    may not be willing to undertake these up-front expenses without some level of
    protection. To deal with that situation, the Act authorizes the Commission to
    issue preliminary permits "for the purpose of enabling applicants for a license
    ... to secure the data and to perform the acts required by section 802 of this
    title." 16 U.S.C. 797(f). The preliminary permit gives the holder a measure of
    priority when a license is ultimately granted. There is also an order of

    preference for the granting of preliminary permits. Section 7(a) of the Act
    mandates that as between two equivalent applications, the Commission shall
    favor a State or municipality, and as between these the "Commission may give
    preference to the applicant the plans of which it finds and determines are best
    adapted to develop, conserve, and utilize in the public interest the water
    resources of the region, if it be satisfied as to the ability of the applicant to carry
    out such plans."3 16 U.S.C. 800(a). The Commission regulations adopt the
    statutory hierarchy and provide, moreover, that "(i)f two or more applications
    for preliminary permits ... are filed for project work which would develop,
    conserve, and utilize, in whole or in part, the same water resources, ... and the
    plans of the applicants are equally well adapted to develop, conserve, and
    utilize in the public interest the water resources of the region, taking into
    consideration the ability of each applicant to carry out its plans, the
    Commission will favor the applicant whose application was first accepted for
    filing."4 18 C.F.R. 4.33(g)(2). This is a "first in time" rule.
    5

    There is no allegation that the Commission's regulations are improper under the
    enabling statute and, therefore, our task on review is the limited one of
    determining whether the agency's order is supported by substantial evidence. 16
    U.S.C. 825l (b). See Consolo v. Federal Maritime Commission, 383 U.S. 607,
    86 S.Ct. 1018, 16 L.Ed.2d 131 (1966); see also Universal Camera Corporation
    v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951). The
    Commission, in the orders denying petitioners' permit application, denying
    appeal and denying rehearing, set forth meticulously its reasons for rejecting
    petitioners' application. The Commission determined that there were no
    significant differences among the various applicants' plans for the Francis E.
    Walter Dam, and that no plan was sufficiently developed to enable a conclusion
    to be reached.5 The Commission, therefore, granted a permit to the first filer,
    Weatherly. The record indicates that the Weatherly and the DRBC (and DER)
    applications had almost equal estimates of capacity and energy output, they
    were both devoid of data and both pointed to prospective tests and studies to
    develop the information necessary to determine feasibility and the hard
    numbers needed to analyze the suggested development project. The petitioners'
    application does in fact have a section entitled "Manner the Proposed Project
    Would Develop, Conserve and Utilize, in the Public Interest, Water Resources
    of the Region," with no counterpart in Weatherly's application. This section,
    however, adds little to the substance of petitioners' plans for it only sets forth
    the various water resources projects in which DRBC and DER are involved.
    The Commission also assessed the relative ability of applicants to carry out the
    permit obligations. It decided that DRBC's and DER's intimate involvement
    with and expertise in water management, as well as the regional scope of their
    concerns, did not put them in a position superior to Weatherly's. The

    Commission believed that regional considerations together with the various


    state agencies' concerns and expertise could be adequately channeled through
    Weatherly, the permit holder, because the permit required Weatherly "to
    consult with the appropriate agencies in conducting its preliminary permit
    studies, in the interest of protecting and developing the natural resources and
    the other environmental values of the project area." Pennsylvania Hydroelectric
    Development Corp., 15 FERC P 61,152 (1981). Moreover, the petitioners did
    not allege to the Commission any specific facts to support their position that
    Weatherly was not a suitable candidate. All this more than satisfies us on
    review. "Whether we would have reached the same conclusions on this
    evidence were we to consider the matter ab initio is not determinative." N.
    Jonas & Co. v. EPA, 666 F.2d 829, 834 (3d Cir. 1981). It suffices that the
    Commission's decision is supported by substantial evidence.
    6

    The petition for review will be denied.

    Hon. Anne E. Thompson, United States District Judge for the District of New
    Jersey, sitting by designation

    Pennsylvania Hydroelectric Development Corp., 14 FERC P 62,285 (1981)

    Any party to a proceeding under this chapter aggrieved by an order issued by


    the Commission in such proceeding may obtain a review of such order in the
    United States Court of Appeals for any circuit wherein the licensee or public
    utility to which the order relates is located or has its principal place of business,
    or in the United States Court of Appeals for the District of Columbia, by filing
    in such court, within sixty days after the order of the Commission upon the
    application for rehearing, a written petition praying that the order of the
    Commission be modified or set aside in whole or in part
    16 U.S.C. 825l (b).

    Section 7 of the Act reads:


    800. Preference in issuance of preliminary permits or licenses; development
    of water resources by Government; taking over of projects by Government
    when licenses expire
    (a) In issuing preliminary permits hereunder or licenses where no preliminary
    permit has been issued and in issuing licenses to new licensees under section
    808 of this title the Commission shall give preference to applications therefor
    by States and municipalities, provided the plans for the same are deemed by

    the Commission equally well adapted, or shall within a reasonable time to be


    fixed by the Commission be made equally well adapted, to conserve and utilize
    in the public interest the water resources of the region; and as between other
    applicants, the Commission may give preference to the applicant the plans of
    which it finds and determines are best adapted to develop, conserve, and utilize
    in the public interest the water resources of the region, if it be satisfied as to the
    ability of the applicant to carry out such plans.
    16 U.S.C. 800(a).
    4

    Sections 4.33g(2) & (3) of the FERC regulations read:


    (g) If two or more applications for preliminary permits, or two or more
    applications for licenses (not including applications for a new license under
    section 15 of the Federal Power Act) by applicants none of whom was a
    preliminary permittee whose application for license was accepted for filing
    within the permit period, are filed for project works which would develop,
    conserve, and utilize, in whole or in part, the same water resources, the
    Commission will select between or among the applicants on the following
    bases:
    (2) If both of two applicants are either a municipality or a state, or neither of
    them is a municipality or a state, and the plans of the applicants are equally
    well adapted to develop, conserve, and utilize in the public interest the water
    resources of the region, taking into consideration the ability of each applicant to
    carry out its plans, the Commission will favor the applicant whose application
    was first accepted for filing (see 4.31(e) );
    (3) If one of two applicants is a municipality or a state, and the other is not, and
    the plans of the municipality or state are at least as well adapted to develop,
    conserve, and utilize in the public interest the water resources of the region,
    taking into consideration the ability of each applicant to carry out its plans, the
    commission will favor the municipality or state.

    18

    C.F.R. 4.33g(2) & (3)

    Petitioners argue that the Commission impermissibly avoided comparing


    competing applicants' ability to "conserve, and utilize in the public interest the
    water resources of the region" until after the preliminary permit had been
    issued. We find the point meritless. The Commission effected whatever
    comparison it could based on the limited information provided by all the
    applicants. The Commission's inability to differentiate among the applicants is
    not an indication that it was remiss in its duties but rather that, at such an early
    stage of project development, detailed information is just not available. The

    Commission Order Issuing Preliminary Permit did indicate that a proper


    assessment of "adaptability" would be undertaken later; that, however, was not
    a postponement of its task, but merely a prediction that as more data became
    available, the Commission would better decide on the applicant best suited for
    a license. At the preliminary permit stage, the Commission could not have
    acted differently

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