United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 10, 1998 Decided June 30, 1998
No. 97-1352
City of Orrville, Ohio and
Pike Island Hydro Associates,
Petitioners
v.
Federal Energy Regulatory Commission,
Respondent
On Petition for Review of Orders of the
Federal Energy Regulatory Commission
Carolyn Elefant argued the cause for the petitioners.
Paul V. Nolan was on brief.
Larry D. Gasteiger, Attorney, Federal Energy Regulatory
Commission, argued the cause for the respondents. Jay L.
Witkin, Solicitor, and John H. Conway, Deputy Solicitor,
Federal Energy Regulatory Commission, were on brief.
Timm L. Abendroth, Attorney, Federal Energy Regulatory
Commission, entered an appearance.
Before: Silberman, Henderson and Rogers, Circuit
Judges.
Opinion for the court filed by Circuit Judge Henderson.
Karen LeCraft Henderson, Circuit Judge: Pike Island
Hydro Associates (PIHA) formerly held the permit, and the
City of Orrville formerly held the license, for a hydroelectric
project at the Pike Island Locks and Dam (the Pike Island
project) on the Ohio River. PIHA challenges an order issued
by the Federal Energy Regulatory Commission (FERC or
Commission) that amends the license for a hydroelectric
project at the New Cumberland Locks and Dam (the New
Cumberland project)--a project approximately thirty miles
upriver of the Pike Island project. See City of New Martins-
ville, W. Virginia, 73 F.E.R.C. p 62,030 (1995) (hereinafter
Amending Order), aff'd on reh'g, 78 F.E.R.C. p 61,304 (1997).
Orrville challenges a FERC order that denied it permission
to intervene in the administrative proceeding that produced
the license amendment. See City of New Martinsville, W.
Virginia, 73 F.E.R.C. p 61,241 (1995) (hereinafter Interven-
tion Order), aff'd on reh'g, 78 F.E.R.C. p 61,304 (1997). We
dismiss both challenges because we conclude that (1) PIHA is
not "aggrieved" by the Amending Order, (2) we lack jurisdic-
tion to consider one of Orrville's claims regarding the Inter-
vention Order and (3) Orrville's other claim is meritless.
I. BACKGROUND
On September 27, 1989 the Commission issued an order
authorizing the award of licenses to develop hydroelectric
generating facilities at sixteen dams on rivers that collectively
constitute the upper Ohio River Basin. See Allegheny Elec.
Coop., 48 F.E.R.C. p 61,363 (1989) (hereinafter Licensing
Order ), aff'd sub nom. DOI v. FERC, 952 F.2d 538 (D.C.Cir.
1992). Orrville was awarded the license to construct the Pike
Island project. See City of Orrville, Ohio, 48 F.E.R.C.
p 61,359 (1989). The City of New Martinsville, West Virginia
was awarded the license to build the New Cumberland pro-
ject. See City of New Martinsville, W. Virginia, 48 F.E.R.C.
p 61,360 (1989). New Martinsville's license required it to
continuously spill over, around or through the New Cumber-
land Locks and Dam a minimum of 4,000 cubic feet of water
per second (ft 3/sec) from November 1 through June 30 and
15,000 ft 3/sec from July 1 through October 31. See Amend-
ing Order, 73 F.E.R.C. p 62,030, at 64,037. While the manda-
tory spillflows decreased the amount of water available for
power generation purposes, they increased the dissolved oxy-
gen (DO) content of the water downstream of the dam,
ensuring that downstream DO levels did not fall below 6.5
milligrams per liter (mg/l)--the level below which adverse
environmental impacts could be expected. See Licensing
Order, 48 F.E.R.C. p 61,363, at 62,327.
On June 18, 1993 New Martinsville asked the Commission
to replace the mandatory spillflows required by its license
with a more dynamic alternative: real-time monitoring of
downstream DO levels, accompanied by mitigative spillflows
when needed to prevent levels from falling below 6.5 mg/l.
While this request was pending, Orrville surrendered its
license for the Pike Island project, effective October 20, 1993,
citing an inability to commence construction by the deadline
the license imposed. See City of Orrville, Ohio, 64 F.E.R.C.
p 62,200 (1993). Shortly thereafter, PIHA applied for and
received a preliminary permit for the Pike Island project,
effective date February 1, 1994.1 See Pike Island Hydro
__________
1 A preliminary permit differs from a license in several impor-
tant respects. Unlike a license, a permit does not entitle its holder
to construct a hydroelectric facility. Cf. 16 U.S.C. s 817 (making it
unlawful to construct hydroelectric project in navigable waters of
United States without "license" issued pursuant to provisions of
Federal Power Act). Instead, the permit merely secures the per-
mittee's place at the front of the line of potential applicants for the
project license while it gathers the data necessary to support its
application. See id. ss 797(f), 798; cf. Washington Pub. Power
Supply Sys. v. FPC, 358 F.2d 840, 847 (D.C. Cir. 1966) (noting that
purpose of preliminary permit "is to afford protection to the entre-
preneur willing to invest his time and money in determining exactly
Assocs., 66 F.E.R.C. p 62,065 (1994). The permit was issued
for a period of three years, expiring "either 36 months from
the effective date or on the date that a development applica-
tion which is accepted for filing is submitted by the permittee,
whichever occurs first." Id. at 64,173.
Subsequently, the Commission allowed PIHA to intervene
in the ongoing administrative proceeding regarding New
Martinsville's license, and, acceding to PIHA's request, the
Commission declared the commencement of a formal amend-
ment proceeding. Consistent with 18 C.F.R.
s 2.1(a)(1)(iii)(C) (1997) and the requirements of the Federal
Power Act, 16 U.S.C. s 797(e), the Commission advertised
the license amendment proceeding by publishing the following
notice:
Article 402 of the project license requires a continuous
mitigative spillflow release of 15,000 cubic feet per sec-
ond from the project during the period from July
through October, to ensure maintenance of 6.5 milli-
grams per liter of dissolved oxygen (DO) throughout the
downstream pool. The City of New Martinsville re-
quests to substitute real-time monitoring and project
operation adjustments to detect and alleviate low DO
concentrations in the Ohio River downstream from the
project for the continuous spillflow requirement.
Hydroelectric Applications, 60 Fed. Reg. 19,905, 19,909
(1995). The notice was published in the April 21, 1995 edition
__________
where and in what form to propose construction of a project which
will be best adapted to a comprehensive plan for improving or
developing a waterway and the improvement and utilization of
water power development"), rev'd on other grounds, Udall v. FPC,
387 U.S. 428 (1967); Town of Summersville, W. Va. v. FERC, 780
F.2d 1034, 1038 (D.C. Cir. 1986) ("A preliminary permit is issued to
enable a permittee to study an inchoate proposal that may be
licensed in the future. A license application, on the other hand, is
an assessment of the present legality and feasibility of a definite
project.") (emphasis original). A preliminary permit also has a
much shorter life span than a license. Whereas a preliminary
permit cannot extend beyond a three-year period, see 16 U.S.C.
s 798, a license can be effective for up to fifty years, see id. s 799.
of the Federal Register and the May 3, 1995 editions of two
newspapers located in the vicinity of the New Cumberland
project. The notice also alerted parties wishing to intervene
in the proceeding and/or comment on the proposed amend-
ment to do so by June 2, 1995. Id.
The Commission subsequently determined that the Nation-
al Environmental Policy Act, 42 U.S.C. ss 4321 et seq.
(NEPA), required preparation of an Environmental Assess-
ment (EA) before action could be taken on New Martinsville's
application for a license amendment. Thus, on July 26, 1995
the Commission issued a draft EA with a request for com-
ments, followed by a notice in the August 1, 1995 edition of
the Federal Register:
A draft environmental assessment (DEA) is available
for public review. The DEA is for an application to
amend the license for the New Cumberland Hydroelec-
tric Project. The application is to reduce the spillflow
requirement at the project....
Notice of Availability of Draft Environmental Assessment
[Project No. 6901-026 West Virginia], 60 Fed. Reg. 39,164
(1995).
PIHA commented on both the proposed license amendment
and the draft EA. In September 1995 it submitted additional
comments on the draft EA, analyzing certain technical data
New Martinsville had failed to provide it with earlier.2 In a
letter to the Commission dated September 13, 1995, PIHA
complained about this and other lapses by New Martinsville
in serving it with copies of documents and data submitted in
support of the proposed license amendment. See Letter from
Dunlevy to Secretary Cashell of 9/13/95. PIHA also noted
that New Martinsville, in violation of 18 C.F.R. ss 385.2005,
385.2010 (1997), had yet to serve PIHA with a copy of certain
data submitted to the Commission and requested that the
amendment proceeding be held in abeyance until PIHA was
__________
2 Pursuant to Commission regulations, each participant in a
proceeding must serve every other participant (including interve-
nors) with a copy of any data or documents the participant submits
to the Commission. See 18 C.F.R. s 385.2010(a)(1), (e)(1) (1997).
provided with a copy of, and given an opportunity to comment
on, the data. Id.
While the document containing the data PIHA sought was
placed in the public record on October 4, 1995, the Commis-
sion did not respond to PIHA's letter or mail it a copy of the
document until November 16, 1995--exactly one month after
the Director, Division of Project Compliance and Administra-
tion, issued an order approving amendment of New Martins-
ville's license consistent with the recommendations contained
in the final EA. See Amending Order, 73 F.E.R.C. p 62,030,
at 64,037-71. The final EA examined three options: (1) a
"no-action" alternative, leaving the spillflow requirements of
the license unchanged, (2) a licensee alternative, requiring
real-time monitoring of DO levels and corrective spilling
whenever downstream DO levels fell below 6.5 mg/l, and (3) a
FERC alternative, mandating year-round spillflows of 4,000
ft 3/sec along with continuous real-time monitoring of down-
stream DO levels and mitigative spilling whenever necessary
to keep DO levels above 6.5 mg/l. Id. at 64,038. Because it
appeared to provide the greatest assurance that downstream
DO levels would not fall below 6.5 mg/l, the final EA recom-
mended adoption of the FERC alternative. Id. The final
EA did not consider the cumulative impact of each of the
alternatives on development of the Pike Island project, noting
that no license or license application for the project was then
outstanding and observing that "preliminary hydropower per-
mits do not constitute reasonably foreseeable actions and,
therefore, cannot be given the same attention as license
applications, amendments, or existing projects." Id. at 64,-
047-48.
Unhappy with this result, on November 15, 1995 (the day
before a copy of the New Martinsville data was mailed to it)
PIHA requested rehearing by the Commission, asserting five
grounds for reversal of the Division Director's order. That
same day, Orrville simultaneously moved to intervene and
also requested rehearing.3 In support of its intervention
__________
3 The motion to intervene was necessary because only an inter-
venor in, or other party to, a proceeding may seek a rehearing on
the final decision. See 18 C.F.R. s 385.713(b) (1997).
motion, Orrville argued that the notices of the amendment
proceeding failed to apprise it (and other members of the
interested public) that the amendment would adversely affect
the development and operation of the Pike Island project.
Further, it argued that since surrendering the license for the
Pike Island project in 1993, its interest in the project had
been revived, both by a fire and explosion in 1995 that
damaged its sole generating facility and by proposed legisla-
tion that would allow it to seek reinstatement of its surren-
dered license. Nonetheless, on December 1, 1995 the Com-
mission Secretary issued an order denying Orrville's motion
for late intervention.4 See Intervention Order, 73 F.E.R.C.
p 61,241. Orrville promptly requested rehearing.
While both Orrville's and PIHA's rehearing requests were
pending, PIHA's preliminary permit expired on January 31,
1997. Approximately six weeks later, the Commission issued
an order denying both PIHA's and Orrville's rehearing re-
quests. See City of New Martinsville, W. Virginia, 78
F.E.R.C. p 61,304 (1997) (hereinafter Rehearing Order).
Both PIHA and Orrville now timely petition for review of that
order pursuant to section 313(b) of the Federal Power Act, 16
U.S.C. s 825l (b).
II. DISCUSSION
A. PIHA's Claims
PIHA raises both procedural and substantive objections to
the Commission's amendment of New Martinsville's license.
As to the former, it claims that New Martinsville did not
serve it with a copy of certain technical data submitted in
support of the proposed amendment, as required by 18 C.F.R.
s 385.2010, and PIHA was therefore "deprived of an opportu-
nity to comment in a fully informed manner on the proposed
amendment." Pet'rs Br. 26. As to its substantive objection,
PIHA contends that the Commission violated section 10 of
__________
4 The Secretary also rejected Orrville's rehearing request inas-
much as only a party to a proceeding may request rehearing. See
Intervention Order, 73 F.E.R.C. p 61,241.
the Federal Power Act, 16 U.S.C. s 803(a), because it failed
to consider the effect reduced spillflows at the New Cumber-
land project would have on the potential development of the
Pike Island project. The Commission responds to each of
PIHA's claims on the merits and also argues that the expira-
tion of PIHA's permit extinguished its interest in the Pike
Island project, depriving PIHA of standing.5 Separation of
powers principles oblige us to address the Commission's
standing argument first, see Steel Co. v. Citizens for a Better
Env't, 118 S. Ct. 1003, 1012 (1998), which we find dispositive.
Section 313(b) of the Federal Power Act provides that
"[a]ny party to a proceeding ... 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 the
District of Columbia." 16 U.S.C. s 825l (b). "The require-
ment of aggrievement serves to distinguish a person with a
direct stake in the outcome of a litigation from a person with
a mere interest in the problem." North Carolina Utils.
Comm'n v. FERC, 653 F.2d 655, 662 (D.C. Cir. 1981) (internal
quotations and ellipses omitted). Nevertheless a party does
not acquire such a "direct stake in a litigation" simply by
participating in the antecedent administrative proceedings
whence the litigation arises; it must establish its constitution-
al and prudential standing. See Louisiana Energy & Power
Auth. v. FERC, 141 F.3d 364, 366 (D.C. Cir. 1998) ("A party
__________
5 The Commission's brief can be read to urge dismissal on
either mootness or standing grounds. See Resp't Br. 26-27 & n.13.
Because PIHA's preliminary permit expired before it petitioned for
review, however, its claims are properly disposed of on standing,
rather than mootness, grounds. See SunCom Mobile & Data, Inc.
v. FCC, 87 F.3d 1386, 1389 (D.C. Cir. 1996) (noting that "critical
time for Article III standing analysis" is date on which petition for
review is filed); cf. Garden State Broad. Ltd. Partnership v. FCC,
996 F.2d 386, 394 (D.C. Cir. 1993) ("[B]ecause Garden State appeal-
ed before the FCC disqualified its license application, we uphold the
Commission on the ground of mootness rather than standing.").
Nonetheless, mootness cases may be instructive insofar as "[m]oot-
ness and standing are related concepts." Garden State Broad., 996
F.2d at 394.
is 'aggrieved' under this statute [16 U.S.C. s 825l] if it
satisfies both the constitutional and prudential requirements
for standing."); Chemehuevi Tribe of Indians v. FPC, 489
F.2d 1207, 1212 n.12 (D.C.Cir.1973) ("[T]he fact that a person
is a party in agency proceedings does not require that he be
allowed to seek judicial review of the agency's action; he
must still satisfy judicial standing requirements."), vacated on
other grounds, 420 U.S. 395 (1975); cf. Inner City Press v.
Board of Governors of the Fed. Reserve, 130 F.3d 1088, 1089
(D.C. Cir. 1997) ("We publish this opinion to emphasize that
participation in administrative proceedings before the Board
of Governors of the Federal Reserve System, like such partic-
ipation before any agency, ... does not, without more, satisfy
a petitioner's Article III injury-in-fact requirement."); United
States v. Federal Maritime Comm'n, 694 F.2d 793, 800 n.25
(D.C. Cir. 1982) ("Although participation in the [administra-
tive] proceeding below may be an inflexible prerequisite to be
a 'party aggrieved' ... it does not follow that participation in
and of itself provides a springboard for judicial review, for the
party still must meet judicial standing requirements.").
To establish its Article III standing, a party must demon-
strate the following:
(1) that [it has] suffered an "injury in fact"--an invasion
of a judicially cognizable interest which is (a) concrete
and particularized and (b) actual or imminent, not conjec-
tural or hypothetical; (2) that there [was] a causal con-
nection between the injury and the conduct complained
of--the injury [was] fairly traceable to the challenged
action of the defendant, and not the result of the inde-
pendent action of some third party not before the court;
and (3) that it [is] likely, as opposed to merely specula-
tive, that the injury will be redressed by a favorable
decision.
Bennett v. Spear, 117 S. Ct. 1154, 1163 (1997). "[W]hen the
[party] is not himself the object of the government action or
inaction he challenges, standing is not precluded, but it is
ordinarily 'substantially more difficult' to establish." Lujan
v. Defenders of Wildlife, 504 U.S. 555, 562 (1992).
Charitably construed, PIHA's submissions suggest that two
of its interests have been adversely affected by the amended
New Cumberland project license: (1) PIHA's "procedural
right" to comment on certain documents submitted in support
of the license amendment; (2) PIHA's interest in develop-
ment of the Pike Island project.6 With respect to PIHA's
asserted procedural right, however, the alleged infraction of
18 C.F.R. s 385.2010(e) is not alone sufficient to establish
injury in fact. See Florida Audubon Soc'y v. Bentsen, 94
F.3d 658, 664-65 (D.C. Cir. 1996) ("The mere violation of a
procedural requirement thus does not permit any and all
persons to sue to enforce the requirements."). Instead, "[a]
party who would complain that agency action has violated the
Constitution, a statute, or a regulation, must be adversely
affected by that action." Capital Legal Found. v. Commodi-
ty Credit Corp., 711 F.2d 253, 258 (D.C. Cir. 1983). Thus,
"[i]njury in fact, caused by the substance of an agency action
or inaction, is an essential element" of a petitioner's standing.
Id. (emphasis added); accord Defenders of Wildlife, 504 U.S.
at 573 n.8 ("We do not hold that an individual cannot enforce
procedural rights; he assuredly can, so long as the proce-
dures in question are designed to protect some threatened
concrete interest of his that is the ultimate basis of his
standing."); Wilderness Soc'y v. Griles, 824 F.2d 4, 19 (D.C.
Cir. 1987) ("Since plaintiffs lack standing to challenge [the
agency's] substantive actions, they indeed lack standing to
challenge procedural defects in the process that produced
those actions."); California Ass'n of Physically Handi-
capped, Inc. v. FCC, 778 F.2d 823, 827 n.14 (D.C. Cir. 1985)
("[Petitioner] must allege an underlying substantive stake in
the result of the decision in order to assert standing based on
a procedural default.").
PIHA'S substantive interest is in the development and
operation of the Pike Island project. Yet, we conclude that
this interest is too attenuated, and therefore its injury too
__________
6 In assessing PIHA's standing, we note at the outset that we
are hindered by PIHA's failure to address the matter in its briefs.
speculative, to satisfy the requirements of Article III.7 We
find support for our conclusion in two cases that considered
challenges to licensing decisions of the Federal Communica-
tions Commission (FCC). First, in Free Air Corp. v. FCC,
130 F.3d 447 (D.C. Cir. 1997), we held that a disappointed
applicant for an FM radio broadcast license did not possess
Article III standing to challenge the FCC's award of that
__________
7 Indeed, even before the January 31, 1997 expiration of PIHA's
permit, the Congress enacted the following legislation, casting at
least some doubt on PIHA's status as a preferred applicant for the
Pike Island project license:
Notwithstanding the expiration of the license and notwith-
standing the time period specified in section 13 of the Federal
Power Act (16 U.S.C. 806) that would otherwise apply to the
Federal Energy Regulatory Commission Project No. 3218 [the
Pike Island project], the Commission shall, at the request of
the licensee for the project [Orrville], reinstate the license
effective September 25, 1993, and extend the time period
during which the licensee is required to commence the con-
struction of the project so as to terminate on September 24,
1999.
Act of Oct. 9, 1996, Pub. L. No. 104-257, 110 Stat. 3171. While
Orrville conceded at oral argument that it has not yet exercised its
rights under this provision, and while there is some question
whether the provision could be read to displace PIHA from its
preferred position without further agency action, cf. Northern Colo-
rado Water Conservancy Dist. v. FERC, 730 F.2d 1509, 1512 (D.C.
Cir. 1984) ("But in spite of the [statutory] preference for public
ownership, once a permit is issued, whoever has the permit has
priority at the licensing stage over all competitors, be they public or
private."), the provision would at least appear to have provided the
Commission a ground to cancel PIHA's permit. See 18 C.F.R.
s 4.83 (1997) ("The Commission may also cancel a permit for other
good cause shown after notice and an opportunity for hearing.").
Moreover, Commission precedent suggests that it would refrain
from issuing PIHA a license for the project in advance of Septem-
ber 24, 1999. See City of Santa Clara, California, 19 F.E.R.C.
p 62,323 (1982) (in proceeding to issue preliminary permit, Commis-
sion noted that if the Congress subsequently acted to foreclose
development by permittee, it would thereafter simply deny applica-
tion submitted by permittee).
license to another party. In so doing, we observed that,
although "the grant of a broadcasting license forecloses later
opportunities to compete in a possible new licensing proceed-
ing[,] ... such a foreclosure is too speculative an injury for
Article III standing." Id. at 449. Second, in Suncom Mobile
& Data, Inc. v. FCC, 87 F.3d 1386 (D.C. Cir. 1996), we held
that a prospective applicant for a 220 MHz transmission
network license lacked Article III standing to challenge the
FCC's (1) denial of its request for a declaration that its
envisioned network qualified for a regulatory exemption from
the FCC rule proscribing ownership of multiple 220 MHz
licenses for service in a single 40-mile area and (2) denial of
its request for a waiver of the customary eight-month con-
struction deadline:
SunCom alleged no actual, existing interest in the licens-
es for which it made the two requests nor even a contract
to acquire such but only an intent to purchase unidenti-
fied licenses sometime in the future, after FCC approval
and station construction. Based on the allegations be-
fore the Commission, we see no likelihood that SunCom
stood to suffer the kind of concrete, probable harm from
the Commission's denials that Article III requires.
Id. at 1388.8
Like the prospective applicant in SunCom, PIHA does not
possess a license for the Pike Island project and has not
applied for such a license. Moreover, like the disappointed
applicant in Free Air, PIHA may not be eligible to secure the
__________
8 In certain circumstances, we have held that a disappointed
license applicant may have standing to challenge the license award-
ed. See, e.g., Orange Park Florida T.V., Inc. v. FCC, 811 F.2d 664
(D.C. Cir. 1997) (allowing competitor for license to challenge FCC
approval of amendment of another competitor's license application
and award because, in absence of alleged FCC error in approving
amendment, petitioner might have remedied deficiencies in its own
application and reapplied for license). We have also found that a
disappointed bidder may have standing to challenge a contract
award. See, e.g., National Fed'n of Fed. Employees v. Cheney, 883
F.2d 1038, 1052-54 (D.C. Cir. 1989) (allowing disappointed bidder to
challenge award on ground agency errors resulted in award to
Pike Island license, see supra note 8, and even if it were,
success on its claim here would not result in the reinstate-
ment of its preliminary permit and would not increase the
likelihood that it will ultimately be licensed to build and
operate the Pike Island project.9 In other words, even if
PIHA applies for the Pike Island project license in the future,
at that point its rights will be identical to those of any other
applicant. Therefore, any adverse effect New Martinsville's
amended license may have on PIHA's interest in the Pike
Island project is too speculative, generalized and remote to
satisfy the requirements of Article III.10 See Platte River
Whooping Crane Critical Habitat Maintenance Trust v.
FERC, 962 F.2d 27, 35 (D.C. Cir. 1992) ("Allegations of injury
based on predictions regarding future legal proceedings are
... too speculative to invoke the jurisdiction of an Article III
Court.... Because [petitioner] has demonstrated no current
or even impending injury, we agree ... that [petitioner] lacks
standing to petition for review of the Commission's order.")
(internal quotations and brackets omitted).
B. Orrville's Claims
Orville contends that, in rejecting its late intervention
motion, the Commission erred in two respects: (1) rather
__________
successful bidder rather than disappointed bidder), cert. denied, 496
U.S. 936 (1990). Those cases are inapposite here, however, be-
cause, even were we to set aside the license amendment, it would
not make PIHA's interest in the Pike Island project any less
speculative and it would not improve PIHA's opportunity to apply
for the Pike Island project license in the future.
9 Even if PIHA still had a valid preliminary permit for the Pike
Island project, it is far from apparent that this interest alone would
be sufficiently concrete to meet the injury-in-fact test of Article III.
Cf. Town of Summersville, 780 F.2d at 1038-39 ("The preliminary
permit is actually only a minor threshold hurdle for the applicant,
and the grant of a preliminary permit is in no respect an indication
of the merits of a license proposal.").
10 Because PIHA has failed to meet Article III standing re-
quirements, we need not address its prudential standing. See Free
Air Corp., 130 F.3d at 448 n.1.
than assess Orrville's motion according to the five factors set
forth in 18 C.F.R. s 385.214(d)(1) (1997), the Commission
applied an "extraordinary circumstances" test; (2) even if
applicable, the Commission misapplied the "extraordinary
circumstances" test because it failed adequately to consider
the actual (as opposed to presumed) prejudice to the parties,
the burden on the Commission and the delay and disruption
that would have resulted from allowing Orrville to intervene.
The Commission responds that the "extraordinary circum-
stances" test applies and that it fully considered all of the
factors required by that test. A brief discussion of the
pertinent regulations sets the stage.
(1) Regulatory Context
Pursuant to the Commission's regulations, an entity must
file with the Commission a motion to intervene in any pro-
ceeding in which it seeks to become a party. See 18 C.F.R.
s 385.214(a)(3) (1997). The public notice that advertises the
commencement of a proceeding also establishes the date by
which a motion to intervene must be filed. See id.
s 385.210(b). Even after that deadline has passed, however,
an entity may submit a motion for "late intervention." Id.
s 385.214(b)(3). In that instance, the motion must contain, in
addition to the materials and representations required to
support a timely intervention motion, a showing of "good
cause why the time limitation should be waived." Id.
Although necessary, a showing of "good cause" may not
alone be sufficient to grant a late intervention motion. Rath-
er, the Commission "may consider" not only "whether ... (i)
The movant had good cause for failing to file the motion
within the time prescribed," but also whether:
(ii) Any disruption of the proceeding might result from
permitting intervention;
(iii) The movant's interest is not adequately represent-
ed by other parties in the proceeding;
(iv) Any prejudice to, or additional burdens upon, the
existing parties might result from permitting the inter-
vention; and
(v) The motion conforms to the requirements of para-
graph (b) of this section.
Id. s 385.214(d)(1). Cf. Covelo Indian Community v. FERC,
895 F.2d 581, 586 (9th Cir. 1990) ("Under FERC's regula-
tions, 'good cause' for failing to file a timely motion to
intervene was only one of [several] factors to be weighed
when considering whether late intervention should be al-
lowed.").
Further, when a late intervention motion is filed after the
proceeding to which the motion is addressed has produced a
final decision, the Commission has repeatedly stated that it
will act favorably on the motion only in extraordinary circum-
stances:
When late intervention is sought after issuance of an
order disposing of an application ... the prejudice to
other parties and burden upon the Commission of grant-
ing late intervention are substantial. In such a situation,
... extraordinary grounds must be presented to warrant
favorable action on a request for late intervention.
Weber Basin Water Conservancy Dist., 50 F.E.R.C. p 61,409,
at 62,262 (1990) (footnotes omitted); accord City of Seattle,
Washington, 72 F.E.R.C. p 61,023 (1995) (similar), aff'd on
reh'g, 75 F.E.R.C. p 61,319 (1996); Albert Rim Hydroelectric
Assocs., 65 F.E.R.C. p 61,187 (1993) (similar); Central Ver-
mont Pub. Serv. Corp., 53 F.E.R.C. p 61,204 (1990) (similar);
Adirondack Hydro Dev. Corp., 46 F.E.R.C. p 61,312 (1989)
(similar); Hy-Tech Co., 29 F.E.R.C. p 61,130 (1984) (simi-
lar).11
__________
11 While, for the reasons set forth below, we lack jurisdiction to
decide Orrville's first claim, we note in passing that its suggestion--
that logically, the "extraordinary circumstances" test renders mean-
ingless the "good cause" showing required by 18 C.F.R.
s 385.214(b)(3) and (d)(1)(i), see Pet'rs Reply Br. 2 n.1--is simply
wrong. By its own terms, the "extraordinary circumstances" test
applies only to a post-decisional intervention motion. Cf. NorAm
Gas Transmission Co., 83 F.E.R.C. p 61,142 (1998) (finding "good
cause" to permit late intervention where motion filed one day after
deadline but before decision rendered). In addition, to the extent
Orrville means to suggest by its argument that the Commission
Here, the Commission Secretary denied Orrville's motion
because she found that Orrville did not present any "extraor-
dinary grounds to justify favorable action by the Commis-
sion." City of New Martinsville, W. Virginia, 73 F.E.R.C.
p 61,241 (1995) (footnote omitted). On rehearing, the Com-
mission agreed:
When late intervention is sought after the issuance of
an order disposing of an application, as is the case here,
the entity seeking intervention must demonstrate ex-
traordinary circumstances to justify favorable action by
the Commission. The Secretary denied [Orrville's] mo-
tion[ ] for late intervention, concluding that [it] had failed
to demonstrate such extraordinary circumstances.
On rehearing, [Orrville] reiterate[s][its] contention that
the public notices of the [proceeding] and the draft of the
EA did not adequately describe the amendment proposal.
__________
could not supplement or refine the test set forth in its regulations
by adjudication, it is plainly mistaken. See Pet'rs Reply Br. 2-3.
An agency's choice of which regulatory vehicle (rulemaking or
adjudication) is the more appropriate means to refine a standard
"lies primarily in the informed discretion of the administrative
agency." SEC v. Chenery Corp., 332 U.S. 194, 203 (1947); accord
NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 (1974) ("[T]he choice
between rulemaking and adjudication lies in the first instance with
the [agency]'s discretion."); Lineas Aereas del Caribe v. DOT, 791
F.2d 972, 978 (D.C.Cir.1986) (rejecting petitioner's "inexplicabl[e]"
argument that FAA could not promulgate contested rule by adjudi-
cation rather than rulemaking; "[T]he FAA flies by the book when
it develops and applies a policy in an adjudicatory proceeding and
announces that it will also apply the policy prospectively.").
Orrville also suggests that Wolverine Power Co., 43 F.E.R.C.
p 61,514, at 61,971-72 (1988), supports application of the "good
cause" standard set forth in 18 C.F.R. s 385.214(d)(1) to a late
intervention motion. It is mistaken. First, as the Commission
notes, its Weber Basin decision post-dates Wolverine Power and
constitutes the controlling test. Further, Wolverine Power is dis-
tinguishable because the Commission's grant of the contested mo-
tion for late intervention in that case would not have significantly
prejudiced the other parties nor burdened the Commission.
We do not agree. The purpose of the notice is to alert
the public to the general nature of the proposed action;
it does not identify all potential issues that may arise in
the proceeding. Nor does the notice of the environmen-
tal document do that. If more detailed information is
needed for an entity to determine whether, or to what
extent, it may be affected by the proposal, it is the
entity's responsibility to seek out that information.
The notices sufficiently alerted the public that New
Martinsville wanted to amend the spillflow requirements
of its license. The notice of the availability of the draft
EA, issued July 25, 1995, well before the issuance of the
Division Director's order, provided additional information
on the amendment proposal.... The burden is on [Orr-
ville] to act affirmatively to protect [its] interests. [Its]
failure to do so in this proceeding until after the Division
Director issued his order is not an extraordinary circum-
stance warranting such late intervention. We therefore
affirm the Secretary's denial of late intervention and the
resulting rejection of [Orrville's] rehearing request[ ]. In
any event, [Orrville's] arguments on the merits of the
license amendment are similar to those raised by Pike
Island Hydro, which we address next.
Rehearing Order, 78 F.E.R.C. p 61,304, at 62,309 (footnotes
omitted). In a footnote, the Commission also rejected Orr-
ville's contention that the notices of the amendment proceed-
ing should have been published in newspapers circulated in
the vicinity of the City of Orrville, Ohio, observing that the
notice was distributed as required by the Federal Power Act
and that it was also published in the Federal Register. See
id. at 62,309 n.14.
(2) Applicability of Extraordinary Circumstances Test
Orrville contends that the Commission erred by requiring a
showing of "extraordinary circumstances" instead of adhering
to the "good cause" standard set forth in the Commission's
regulations, i.e., 18 C.F.R. s 385.214(d)(1)(i). While the Com-
mission has not challenged our jurisdiction to decide Orrville's
claim, we must nonetheless be certain of it before proceeding
to the merits. See Liquid Carbonic Indus. Corp. v. FERC,
29 F.3d 697, 701 (D.C. Cir. 1994) (noting court's independent
obligation to assure itself of petitioner's standing even if
respondent does not challenge it); Steel Co., 118 S. Ct. at
1012.
While Orrville is an "aggrieved party" with respect to the
Commission's denial of its late intervention motion,12 its claim
as to the inapplicability of the "extraordinary circumstances"
test founders on another jurisdictional shoal. Section 313(b)
of the Federal Power Act recites, in relevant part, that "[n]o
__________
12 Unlike PIHA, Orrville has standing to challenge the denial of
its late intervention motion. See Northern Colo. Water Conservan-
cy Dist. v. FERC, 730 F.2d 1509, 1515 (D.C. Cir. 1984) ("It would be
grossly unfair to deny judicial review to a petitioner objecting to an
agency's refusal to grant party status on the basis that the petition-
er lacks party status. Such a petitioner must obviously be consid-
ered a party for the limited purpose of reviewing the agency's basis
for denying party status."). Orrville does not have standing to
challenge the merits of the Commission's decision to amend New
Martinsville's license, however, because it was not a "party" to the
proceeding. See Water Transp. Ass'n v. ICC, 819 F.2d 1189, 1192
(D.C. Cir. 1987) ("When intervention in agency adjudication or
rulemaking is prerequisite to participation therein, standing to seek
judicial review of the outcome will be denied to those who did not
seek--or who sought but were denied--leave to intervene.") (em-
phasis added); id. at 1192 n.28 ("Standing to challenge a denial of
intervention, however, rests on a different footing. In [S.C. Love-
land Co., Inc. v. United States, 534 F.2d 958, 960 n.1 (D.C. Cir.
1976)], we refused 'party aggrieved' status to one whose petition to
intervene was denied by the commission, id., but because we found
the denial improper, we remanded with directions to allow the
intervention. Id."). Moreover, because Orrville's standing extends
only to its intervention claims, which are entirely separate from
PIHA's claims on the merits, PIHA cannot piggyback on Orrville's
standing. Cf. Mountain States Legal Found. v. Glickman, 92 F.3d
1228, 1232 (D.C.Cir.1996) ("For each claim, if constitutional and
prudential standing can be shown for at least one plaintiff, we need
not consider the standing of the other plaintiffs to raise that claim.")
(emphasis added).
objection to the order of the Commission shall be considered
by the court unless such objection shall have been urged
before the Commission in the application for rehearing unless
there is reasonable ground for failure so to do." 13 16 U.S.C.
s 825l (b). We have thus held that "[p]arties seeking review
of FERC orders must petition for rehearing of those orders
and must themselves raise in that petition all of the objections
urged on appeal." Platte River Whooping Crane Critical
Habitat Maintenance Trust v. FERC, 876 F.2d 109, 113
(D.C.Cir.1989) (emphasis original). These statutory require-
ments "are strict and go well beyond judicially-imposed stan-
dards requiring the exhaustion of administrative remedies
prior to the exercise of federal court jurisdiction." Id. at
112-13. As a result, we have held that "[n]either FERC nor
this court has authority to waive these statutory require-
ments." Id. at 113; accord Kelley v. FERC, 96 F.3d 1482,
1487 (D.C.Cir.1996) ("We have emphasized repeatedly that we
must construe strictly this express statutory limitation on the
jurisdiction of the courts.") (internal quotations and brackets
omitted).
After scouring Orrville's rehearing request, we find in it no
suggestion that the Commission Secretary erred in applying
an "extraordinary circumstances" test to Orrville's late inter-
vention motion.14 Indeed, most of the argument in the re-
hearing petition assumes that Weber Basin not only applies
but controls. See, e.g., Request of the City of Orrville and the
Village of Yorkville for Reh'g of Notice Den. Interventions
__________
13 Orrville has not suggested, and we cannot ourselves conceive
of, any "reasonable ground" for its failure to present its arguments
to the Commission and thus the statutory exception to exhaustion
recognized in section 313(b) is unavailable. Cf. Platte River Whoop-
ing Crane, 962 F.2d at 35 n.3 (declining to search for grounds on
which to apply statutory exception where "[n]o one argues that the
exception applies here").
14 Our review of Orrville's rehearing petition has been ham-
pered by the fact that Orrville has reproduced in the Joint Appen-
dix only the odd-numbered pages of its petition for rehearing. We
assume that were we to review the even-numbered pages, the result
would be the same.
and Rejecting Reqs. for Reh'g, 25 ("Moreover, the circum-
stances that exist in this case when applied to Weber and
other similar instances provide more than adequate justifica-
tion for the Commission to grant the Ohio Municipalities
interventions."). Thus, in its rehearing petition Orrville ar-
gued that its late intervention motion should be granted
according to the "extraordinary circumstances" test set forth
in Weber Basin, whereas Orrville now argues that its motion
should have been granted despite Weber Basin and the
"extraordinary circumstances" test. See Pet'rs Reply Br. 2-3
("[T]he Commission's 'extraordinary circumstances' test ...
as developed in Weber Basin violates its own rules governing
late intervention and represents an abuse of discretion.").
Accordingly, because it was not raised in its rehearing peti-
tion, we are without jurisdiction to consider Orrville's claim as
to the inapplicability of the "extraordinary circumstances"
test. Cf. Kelley, 96 F.3d at 1488 ("Suffice it to say that an
argument 'implicit' in prior requests before the Commission's
staff does not satisfy the strict standard of s 313(b).").
(3) Commission's Application of Extraordinary
Circumstances Test
Having disposed of all of the petitioners' claims, save one,
on jurisdictional grounds, we now consider the only remaining
question; whether the Commission properly applied the "ex-
traordinary circumstances" test here.15 To succeed on this
claim, Orrville must show that the Commission abused its
discretion. See Covelo Indian Community, 895 F.2d at 587
(9th Cir.1990); cf. S.C. Loveland Co., 534 F.2d at 960 n.1
(remanding matter to agency after finding ICC abused its
__________
15 While the matter is not free from all doubt, Orrville arguably
raised this claim in its rehearing petition, thereby satisfying the
requirements of section 313(b) of the Federal Power Act and
establishing our jurisdiction to decide the question. See Request of
the City of Orrville and the Village of Yorkville for Reh'g of Notice
Den. Interventions and Rejecting Reqs. for Reh'g, 31-35 (subhead-
ing entitled, "GRANTING THE INSTANT INTERVENTIONS
WILL CAUSE NO DISRUPTIONS, DELAY, BROADENING OF
THE ISSUES, OR PREJUDICE").
discretion in denying party right to intervene in administra-
tive proceedings); Citizens to Preserve Overton Park, Inc. v.
Volpe, 401 U.S. 402, 416 (1971) (in considering whether agen-
cy abused its discretion, "court must consider whether the
[agency] decision was based on a consideration of the relevant
factors and whether there has been a clear error of judg-
ment"). We will "uphold a decision of less than ideal clarity if
the agency's path may reasonably be discerned." Motor
Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 43 (1983).
The "extraordinary circumstances" test, as the Commission
reasonably construes it, is a refinement of the five-factor test
set forth in 18 C.F.R. s 385.214(d)(1). Cf. Amerada Hess
Pipeline Corp. v. FERC, 117 F.3d 596, 600 (D.C.Cir.1997)
(court defers to reasonable agency interpretation of its own
regulations). The Commission has determined that the prej-
udice to other parties and the burden on the Commission--
relevant considerations pursuant to 18 s 385.214(d)(1)(iv)
(1997)--are likely to be "substantial" whenever a post-
decisional late intervention motion is granted. Cf. Central
Vermont, 53 F.E.R.C. p 61,204, at 61,817-18 ("The potential
for prejudice to the other parties, and the burden on the
Commission, are substantial when late intervention is sought
after issuance of an order disposing of a proceeding.").
Moreover, while the Commission has indicated a willingness
to consider the other factors set forth in 18 C.F.R.
s 385.214(d)(1) before acting on a post-decisional late inter-
vention motion, it has nowhere suggested that it must consid-
er each of these factors where a party fails to satisfy the
threshold requirement of "extraordinary circumstances" for
its delay. Indeed, even the text of 18 C.F.R. s 385.214(d)(1)
does not compel consideration of each of the factors; it
merely states that the Commission "may consider" them.
Nor is the Commission obligated to make independent find-
ings on each of the factors set forth in its regulation. Cf.
Citizens to Preserve Overton Park, 401 U.S. at 417 (1971)
(formal findings on each of several factors not normally
required in absence of statute or regulation requiring find-
ings).
As a result, we find no abuse of discretion in the Commis-
sion's denial of Orrville's intervention motion. The Commis-
sion considered and found unpersuasive Orrville's explanation
for its failure to move timely for intervention and we find no
"clear error of judgment," Citizens to Preserve Overton Park,
401 U.S. at 416, in the Commission's determination that
Orrville failed to demonstrate "extraordinary circumstances"
for its tardiness. The Commission also concluded that Orr-
ville's arguments were "similar" to those advanced by
PIHA.16 Further, in applying the "extraordinary circum-
stances" test, the Commission presumed that the prejudice to
New Martinsville and burden on it would be substantial were
it to permit Orrville to intervene at such a late date. Each of
these findings reflects consideration of one of the factors set
forth in 18 C.F.R. s 385.214(d)(1) and none weighed in favor
of granting Orrville's application. No more was required of
the Commission. Thus, while Orrville asserts that no disrup-
tion or prejudice would have resulted from its intervention
and that its interests were "paramount" and inadequately
represented by other parties, the Commission was not re-
quired to accept or respond to these self-serving assertions,
especially in light of Orrville's failure to make the requisite
threshold showing of "extraordinary circumstances." Cf. Fri-
zelle v. Slater, 111 F.3d 172, 176 (D.C. Cir. 1997) ("While the
Board [of Correction of Military Records] could have ex-
plained its reasons for rejecting Frizelle's arguments in more
detail, an agency decision need not be a model of analytic
__________
16 The similarity in Orrville's arguments and PIHA's arguments
is apparent from their rehearing requests. Compare City of Orr-
ville's Mot. to Intervene and Reh'g Req., 6-7 ("The elimination of a
... hydroelectric project at the Pike Island [Locks and Dam] ... is
an extreme form of mitigation that clearly is not best adapted to the
comprehensive development of the Ohio River."), with Request of
Pike Island Hydro Assocs. for Reh'g of Order Am. New Cumber-
land Spill Flow Requirement, 39 ("THE UTILIZATION OF THE
WATER RESOURCES AT THE PIKE ISLAND L[OCKS] &
D[AM] IN THE OPERATION OF THE NEW CUMBERLAND
PROJECT IS NOT BEST ADAPT [sic] TO THE COMPREHEN-
SIVE DEVELOPMENT OF THE OHIO RIVER.").
precision to survive a challenge. A reviewing court will
uphold a decision of less than ideal clarity if the agency's path
may reasonably be discerned.") (internal quotations and
bracket omitted).
III. CONCLUSION
For the preceding reasons, we hold that PIHA is not
"aggrieved" by amendment of New Martinsville's license, that
Orrville failed to preserve its claim respecting the applicabili-
ty of the "extraordinary circumstances" test and that Orrville
failed to demonstrate that the Commission abused its discre-
tion in assessing the merits of its untimely intervention
motion. Accordingly, PIHA's and Orrville's joint petition is
dismissed with respect to all jurisdictionally defective claims
and is denied with respect to Orrville's claim that the Com-
mission abused its discretion in failing to find that "extraordi-
nary circumstances" warranted granting Orrville's late inter-
vention motion.
So ordered.