(concurring).
As the fallacy in relying on Puget Sound and Aquenergy for FERC’s misinterpretation of the statutory term “[posM.935] construction” is plainly exposed in the majority opinion, it is neither necessary nor provident for the panel to embrace these decisions as First Circuit precedent, see supra at p. 16 (“[W]e find [Puget Sound] controlling.”), in the context of this case.
. The issue on appeal is straightforward: whether the plain language of FPA § 23(b)— requiring FERC licensure of' a “grandfathered” facility only in the event there has been “[post-1935] construction]” — encompasses circumstances in which no such construction has occurred, and the owner merely reopens intact physical structures following a period of closure? , If, as I respectfully submit, this question clearly must be answered in the negative, FERC’s plea for Chevron deference is precluded, see Estey v. Commissioner of Maine Dep’t of Human Servs., 21 F.3d 1198, 1201 (1st Cir.1994), and the court ought not venture further.
The majority opinion accedes to FERC’s invitation to extend its licensure authority based on the reasoning in Puget Sound and Aquenergy. In Puget Sound, however, the putative licensee unquestionably had “constructed” physical structures anew at the “grandfathered” power facility following a devastating natural disaster. Based on its unexplained assumption that Congress could not have intended to divest innocent owners of their “grandfathered” power-plant operating rights merely for restoring to its original configuration a facility damaged in a natural disaster, the Ninth Circuit resorted to an equitable exception in interpreting the plain language of the FPA as precluding the agency’s licensure jurisdiction. See Puget Sound Power & Light Co., 557 F.2d at 1315. The Ninth Circuit panel pointed to no statutory language or legislative history remotely supportive of its strained interpretation of the statutory term “construct.” See id. (merely noting, without citation to legislative history, “[w]e think Congress intended no such result”).
As if to illustrate the maxim that hard eases beget bad law, the Fourth Circuit later extended the error propounded in Puget *830Sound. See Aquenergy Systs., 857 F.2d at 227. Aquenergy Systems’ actions clearly came under FERC jurisdiction for the simple reason that it had “constructed” anew, from the ground up, disintegrated structures (including an entire powerhouse) following a voluntary closure of the facility lasting thirty years. Eschewing this plain language approach, the Aquenergy court attempted to accommodate the Puget Sound rationale by engaging in an “abandonment” analysis which overlooked the fact that the FPA contains not one word suggesting that Congress intended FERC licensure to turn on the licensee’s (or predecessor’s) “abandonment” of “grandfathered” pre-1935 “operating rights.” Id. at 230 (merely concluding, without citation to legislative history, that “[t]he [FPA] was designed to keep in operation projects existing in 1935, but not to restore abandoned rights”). Quite the contrary, FPA § 23(b) focuses unambiguously and exclusively on a specific event — the “construction” of physical structures at the “grandfathered” generating site.
Although I wholeheartedly concur in the result reached by the court in the instant case, I cannot endorse its gratuitous adoption of the fallacious position advocated by FERC, that Aquenergy and Puget Sound are “controlling.” Although those decisions apparently control FERC in the Fourth and Ninth Circuits, respectively, neither FERC nor the majority opinion suggests a sound reason for reaching out in obiter dicta to embrace the problematic FPA interpretations propounded in Puget Sound and Aquenergy. Indeed, it is particularly ironic that we should strain to embrace them even though FERC itself has not seen fit to do so. See McRay Energy, Inc., 57 F.E.R.C. ¶ 61,061 (1991) (no FERC jurisdiction over project even after six-year “abandonment,” where facility reopened but no “construction” of facilities occurred).