United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Submitted September 8, 2014 Decided September 26, 2014
No. 13-1074
SMITH LAKE IMPROVEMENT AND STAKEHOLDERS
ASSOCIATION,
PETITIONER
v.
FEDERAL ENERGY REGULATORY COMMISSION, ET AL.,
RESPONDENTS
ALABAMA POWER COMPANY,
INTERVENOR
On Petition for Review of Orders
of the Federal Energy Regulatory Commission
Richard Roos-Collins, Julie Gantenbein, and Nicholas T.
Niiro were on the briefs for petitioner Smith Lake Improvement
and Stakeholders Association.
Peter A. Harrison was on the brief for amici curiae
Alabama Rivers Alliance, et al. in support of petitioner.
Gregory S. Farris was on the brief for amici curiae County
of Winston, Alabama and School System of Winston County,
Alabama.
2
David L. Morenoff, Acting General Counsel, Federal
Energy Regulatory Commission, Robert H. Solomon, Solicitor,
and Lisa B. Luftig, Attorney, were on the brief for respondent
Federal Energy Regulatory Commission.
Robert G. Dreher, Acting Assistant Attorney General, U.S.
Department of Justice, and Michael T. Gray, Attorney, were on
the brief for respondents U.S. Secretary of the Interior and U.S.
Secretary of Agriculture. John D. Gunter II, Trial Attorney,
entered an appearance.
James A. Byram Jr., P. Stephen Gidiere III, James H.
Hancock Jr., and Jason B. Tompkins were on the brief for
intervenor Alabama Power Company.
Before: BROWN and WILKINS, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
SILBERMAN.
SILBERMAN, Senior Circuit Judge: Petitioner Smith Lake
Improvement and Stakeholder Association asserts various
claims against Respondents FERC, the Secretary of Interior, and
the Secretary of Agriculture relating to the Commission’s
issuance of a license order. Intervenor Alabama Power moved
to dismiss the Association’s petition for review on the ground
that we lack jurisdiction because the appeal was untimely. We
agree and grant the motion.
I.
FERC issued a new thirty-year license to Alabama Power to
continue to operate and maintain a hydroelectric generation
3
facility known as the Warrior Project. The Smith Development
is one of two hydroelectric developments encompassed by the
Warrior Project. The Development consists of Smith Dam and
Smith Lake, an intake structure, a powerhouse built into the
dam, and an emergency spillway. The Association, an
organization comprised mainly of Smith Lake property owners,
intervened in the licensing proceedings and specifically objected
to Alabama Power’s proposal to maintain lake levels as they had
existed under the earlier license.
The licensing proceedings lasted nearly five years and
generated an extensive Environmental Assessment. Pursuant to
the Endangered Species Act, FERC engaged in consultations
with the U.S. Fish and Wildlife Services to ensure that its action
was not likely to “jeopardize the continued existence of” a listed
species or critical habitats. 16 U.S.C. § 1536(a)(2). In addition,
the Commission adopted a condition that the U.S. Forest Service
placed on the license pursuant to the Federal Power Act. FERC
issued the new license on March 31, 2010, declining to adopt the
Association’s water level proposal and authorizing Alabama
Power to operate under existing water level benchmarks.
The Association filed a timely request for rehearing of the
license order, arguing that the license was not best adapted to a
comprehensive plan of development, as required by Section
10(a)(1) of the Federal Power Act, and that the license order’s
comprehensive development findings were not supported by
substantial evidence, as required by Section 313(b) of the Act.
The Commission issued a rehearing order affirming the license
order as it relates to the Association. The Association then filed
a second rehearing request, which the Commission summarily
denied on the grounds that the rehearing order did not modify
the license order, and the Association’s arguments were
considered and denied in the first rehearing order. The
Association then filed its petition for judicial review on March
4
18, 2013 – 124 days after the first rehearing order but within
sixty days after the second rehearing order.
II.
We do not reach the merits of this petition because, as
noted, we grant Intervenor Alabama Power’s motion to dismiss
for lack of subject matter jurisdiction. Under Section 313(b) of
the Federal Power Act, a party “aggrieved by an order issued by
the Commission . . . may obtain a review of such order in the
United States Court of Appeals . . . 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 . . . .”
Our jurisdiction is thus limited to cases in which a petitioner
has first sought rehearing before the Commission (an exhaustion
requirement) and then promptly brings the petition to our court
after the order denying rehearing. We have made clear that a
second rehearing petition must be filed if – and only if – the first
rehearing order “modifie[d] the results of the earlier one in a
significant way.” Town of Norwood, Mass. v. FERC, 906 F.2d
772, 775 (D.C. Cir. 1990). We subsequently explained that
means a change in the “outcome,” not merely a change in
reasoning. Allegheny Power v. FERC, 437 F.3d 1215, 1222
(D.C. Cir. 2006).
Recently, in Western Area Power Admin. v. FERC, we dealt
with the logical converse of a petitioner’s obligation to file a
second rehearing petition. 525 F.3d 40, 52-53 (D.C. Cir. 2008).
There we faced a petition to our court that followed a second
rehearing order that responded to an unnecessary second
rehearing petition. Unfortunately for the petitioner, we held that
the second rehearing petition – because it was not based on any
change in result in the first rehearing order – was not required.
Therefore, it did not toll the sixty-day period. Consequently the
5
petition to our court arrived beyond the sixty-day limit, too late
to grant us jurisdiction.
Our case is on all fours with Western. Still the Commission
asserts that our case law is inconsistent and suggests as a
“resolution” that we allow a subsequent petition for rehearing to
toll the sixty-day period regardless of whether it is prompted by
a change in result in the first rehearing order unless the
subsequent petition is deemed “vexatious.” Presumably, under
FERC’s view, it would be up to FERC to determine (at least in
the first instance) the petitioner’s motivation, which would then,
in turn, affect our jurisdiction. That would surely be an
extraordinary manner to construe Congress’s efforts to insist that
FERC cases be promptly brought to us. Petitioner, agreeing
with the Commission that our cases are in conflict, also asserts
that the exhaustion requirement of the statute – requiring a party
to make an “objection” to the Commission's order before
seeking judicial review – creates a “trap” if we conclude that a
second rehearing request was not necessary because the “result”
did not change. In other words, petitioner points out that a party
might be required to object to an element of reasoning or logic
for exhaustion purposes that did not affect the result.
We reject the premise that our cases are inconsistent. To be
sure there appears to be some tension but there is no necessary
conflict. Some time ago, in Tennessee Gas Pipeline Co. v.
FERC, we dismissed a petition because the party had filed a
second pending rehearing petition with the Commission. 9 F.3d
980 (D.C. Cir. 1993) (per curiam). We did so notwithstanding
our recognition that the petitioner was “not required” to file the
second petition.1 Id. at 981.
We reiterated that position in Clifton Power Corp. v. FERC,
holding that a party could not “simultaneously seek both agency
reconsideration and judicial review of an agency’s order.” 294
1
We did not explain why the second petition was unnecessary.
6
F.3d 108, 111 (D.C. Cir. 2002) (citing Tennessee Gas Pipeline
Co., 9 F.3d at 980). FERC and petitioner assume that if a
second rehearing petition is not required, and therefore does not
toll the statute, it should not be a bar to our review. Yet that a
second rehearing petition is not required does not necessarily
mean that it would not affect the Commission’s thinking.
Conceivably a party might come up with a new consideration
that would influence the Commission and modify the result. If
so, that would surely interfere with our review.
In sum, Tennessee and Clifton stand for the proposition that
we will not hear a case if the petitioner has a rehearing petition
pending before the Commission at the time of filing in this
court, whether it was required or not. It follows that a party
must choose whether to seek an optional petition for rehearing
before the Commission, or a petition for review to our court; it
cannot proceed simultaneously.
There remains petitioner’s “trap” argument. Although we
did not previously respond to that argument in a Federal Power
Act case, we did in a Natural Gas Act case which has an
identical provision for judicial review, Columbia Gas
Transmission Corp. v. FERC, 477 F.3d 739, 741-42 (D.C. Cir.
2007). We observed there that when a party seeks judicial
review following a rehearing order that changes the reasoning
without altering the result, “it may have a ‘reasonable ground’
for not having earlier raised its objections to the rationale
underpinning the rehearing order” and therefore be entitled to
consideration of those arguments.2 Id. (quoting 15 U.S.C. §
717r(b)).
It is conceivable that an erstwhile petitioner would be
unsure whether any change in a Commission rehearing order
2
It could be thought that challenging reasoning that does not change
the result is not a required “objection.”
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would be thought “significant” or not, in which case the safer
course clearly is to file a petition in our court. If FERC agreed
the change was “insignificant” it is rather unlikely that we would
disagree with the parties. Even if FERC disagreed with the
petitioner, asserting that the change was significant, and we
agreed with FERC, obliging us to dismiss the petition, we would
expect that the Commission allow a late rehearing petition
before it and then if it were denied a petition for review could
follow.
For the foregoing reasons, we grant Intervenor Alabama
Power’s motion to dismiss the Association’s petition for review
in its entirety. 3
So ordered.
3
This includes all claims asserted against the Secretaries of the
Interior and Agriculture because “the order on review is undeniably
that of the Commission.” Bangor Hydro-Elec. Co. v. FERC, 78 F.3d
659, 662 (D.C. Cir. 1996).