State attorneys general are addressing energy infrastructure projects and needs in their states and regions, including advocating for the interests of communities that would be affected by hydropower infrastructure projects.
Advocacy in the States
In 2006, the original license for a series of hydroelectric dams owned by PacifiCorp along the Klamath River in California and Oregon expired. Due to their age, the dams were not in compliance with modern environmental standards. PacifiCorp proposed to relicense some of the dams and decommission the rest. Four years later, California, Oregon, PacifiCorp, Native American tribes and other parties reached a settlement to decommission the dams. Since that time, the parties have been working to implement a plan to retire and remove the dams.
Under Section 401 of the Clean Water Act, PacifiCorp is required to obtain water quality certifications from Oregon and California as part of the dam relicensing process. Section 401 requires states to act “within a reasonable period of time (which shall not exceed one year)” on water quality certificate applications. In this case, however, the states and PacifiCorp agreed that the water quality certification process should be held in abeyance, pending completion of the dam decommissioning process. Subsequently, the utility and the states annually withdrew and resubmitted a request for a water quality certification so as to preserve the states’ abilities to act on the requests while decommissioning moved forward.
In 2012, the Hoopa Valley Tribe, whose reservation is downstream of the dams and is interested in expediting removal of the dams, petitioned FERC for a declaratory order that California and Oregon had waived their Section 401 authority. In 2014, FERC denied that petition and subsequently denied the tribe’s rehearing request later that year. Near the end of 2014, the tribe petitioned the D.C. Circuit for review.
In January 2019, the D.C. Circuit ruled that the states had waived their Section 401 authority by agreeing with PacifiCorp to treat annually withdrawn and resubmitted certification requests as new requests. The court held the 2010 agreement deliberately and contractually defied Section 401’s requirement that a state act within one year of the submittal of a water quality certification request. The court vacated FERC’s order and instructed the commission to proceed with its review of the licensing determination of the dams.
In March 2019, Oregon Attorney General Ellen Rosenblum led a bipartisan coalition of 14 attorneys general in filing an amicus brief seeking panel rehearing or rehearing en banc. The attorneys general stated that the January 2019 ruling will adversely affect states’ rights to protect water quality within their boundaries under the Clean Water Act.
In their brief, the attorneys general pointed out that the unambiguous text of Section 401 makes clear that a state’s Section 401 certification authority is only waived if a state fails to act upon a particular certification request within the time frame for that particular request. Further, the statute does not prohibit a licensing applicant from annually withdrawing and resubmitting a water certification request as PacifiCorp had done with its Klamath River hydroelectric dams. The attorneys general also warned that leaving in place the January 2019 ruling would undermine the ability of states to use their Section 401 authority to pursue and implement complex and important projects, such as the Klamath project.
In March 2019, California Attorney General Xavier Becerra filed a supportive amicus brief in the litigation on behalf of the California State Water Resources Control Board, the state agency that exercises the state’s Section 401 authority.
In April 2019, the D.C. Circuit declined to reconsider the case before either the original panel or the full court. In August 2019, nonprofit organizations that were involved in the D.C. Circuit litigation petitioned to have to the Supreme Court reconsider the D.C. Circuit’s January 2019 decision.
The following month, Oregon Attorney General Rosenblum led a coalition of 21 attorneys general in filing an amicus brief in support of Supreme Court review of the D.C. Circuit’s decision. The amicus brief noted that the lower court’s decision undermines states’ authority under the Clean Water Act to regulate water pollution and violates the clear language of section 401 of the Clean Water Act. Additionally, the attorneys general warned that under the ruling states may be deemed to have unknowingly waived their authority to review water quality certificate applications, which could result in significant harm to water quality across the country as major infrastructure projects would not be subject to state water quality standards for decades.
In December 2019, the Supreme Court denied the petition for writ of certiorari, declining to review the D.C. Circuit’s January 2019 decision.
In March 2017, McMahan Hydroelectric requested a Section 401 water quality certification from the North Carolina Department of Environmental Quality (DEQ) for the Bynum Hydroelectric Project on the Haw River in North Carolina. In February 2018, McMahan withdrew and refiled its Section 401 request with DEQ, an action McMahan repeated once again in February 2019.
In September 2019, FERC, relying on Hoopa Valley (above), issued an order granting a license to McMahan Hydroelectric to operate and maintain the Bynum Hydroelectric Project on the Haw River in North Carolina. In the September 2019 order, FERC determined that the DEQ had waived its authority to issue a Section 401 water quality certification as twice McMahan had withdrawn and resubmitted its Section 401 request at, according to FERC, the DEQ’s urging.
DEQ, in November 2019, filed a motion for leave to answer and an answer to a third party’s request for rehearing from FERC. In April 2020, FERC issued an order denying rehearing, finding that DEQ had waived its authority to issue a Section 401 water quality certification.
In June 2020, North Carolina Attorney General Joshua Stein, acting on behalf of DEQ, filed a petition for review challenging FERC’s September 2019 and April 2020 orders in the Court of Appeals for the Fourth Circuit. The petition for review challenges FERC’s orders as erring in determining that DEQ waived its authority to issue a water quality certification for the Bynum Hydroelectric Project.
In October 2020, Washington Attorney General Bob Ferguson led a coalition of 10 attorneys general in filing an amicus brief in support of North Carolina’s and other states’ water quality certification authority under Section 401 of the Clean Water Act. The brief notes that FERC’s waiver finding weakens states’ ability to regulate water quality within their borders and is contrary to the plain language, case law, and legislative intent of the Clean Water Act.
The attorneys general also pointed out that FERC’s reliance on Hoopa Valley was mistaken as it is a flawed decision that is factually inapplicable outside of the facts unique to that case. The brief encouraged the Fourth Circuit to follow its own precedent that Section 401 does not require a state to make a certification decision within one year of an applicant’s first request if that request is incomplete or withdrawn. The attorneys general requested that the Fourth Circuit vacate FERC’s waiver determination and remand FERC’s order to incorporate DEQ’s Section 401 certification for the Bynum Hydroelectric Project.