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10/19/84 New York State Energy v. Federal Energy Regulatory

October 19, 1984

NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY, PETITIONER

v.

FEDERAL ENERGY REGULATORY COMMISSION, RESPONDENT; LONG LAKE ENERGY CORPORATION, INTERVENOR 1984.CDC.274



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Petition for Review of an Order of the Federal Energy Regulatory Commission.

APPELLATE PANEL:

Mikva, Bork and Starr, Circuit Judges. Opinion for the Court filed by Circuit Judge Bork.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BORK

The New York State Energy Research and Development Authority challenges a ruling by the Federal Energy Regulatory Commission ("FERC" or the "Commission") rejecting NYSERDA's application for a license for the Phoenix Hydroelectric Project, Project No. 6806-000. FERC rejected NYSERDA's application on the ground that it was not timely filed at the Office of the Secretary as required by FERC's Rule 2001. See 18 C.F.R. 385.2001 (1983). This rule was promulgated and took effect while NYSERDA's comparative licensing proceeding was pending. NYSERDA maintains that its application was properly filed under the predecessor to Rule 2001 and that this predecessor rule should have been applied here in the interest of justice. We agree with NYSERDA and conclude that FERC's ruling was arbitrary and capricious. We therefore reverse and order FERC to deem NYSERDA's application timely submitted to the Commission. I.

NYSERDA is a state authorized public benefit corporation, N.Y. Pub. Auth. Law § 1852.1 (McKinney 1981), which seeks to promote the "development and utilization of safe, dependable renewable and economic energy sources." N.Y. Pub. Auth. Law § 1850-a (McKinney 1981). As a political subdivision of the State of New York, NYSERDA is recognized to be a "municipality" within the meaning of section 3(7) of the Federal Power Act, 16 U.S.C. § 796(7) (1982). NYSERDA has total assets of $14,917,000 and has previously filed at least five license and permit applications with FERC. All of those applications were properly filed and have been accepted.

FERC is the agency which Congress has empowered to license the development of the nation's water resources. 16 U.S.C. § 791a et seq. (1982). Recently, FERC has received over two thousand license applications a year from persons and organizations seeking to operate small scale hydroelectric projects. In order to manage its overwhelming caseload, FERC has adopted strict filing deadlines and procedures in the small scale hydro area.

On October 31, 1981, the Long Lake Energy Corporation ("Long Lake") applied for a license to construct and operate a hydroelectric power project to be known as the Phoenix Project. The proposed project was to be situated on the Oswego River in Oswego and Onondaga Counties, New York. On April 14, 1982, FERC published an official notice of Long Lake's application in the Federal Register. 47 Fed. Reg. 16,848 (1982). That notice expressly directed that all competing applications should be mailed to the following address:

Kenneth F. Plumb, Secretary

Federal Energy Regulatory Commission

825 North Capitol Street, N.E.

Washington, D.C. 20426

Joint Appendix at 2.

In response to the FERC notice of April 14, NYSERDA decided to file a competing license application for the Phoenix Project. NYSERDA informed FERC of its intent to file such an application on June 23, 1982, and under FERC's filing regulations NYSERDA's application thus became due by October 25, 1982. See 18 C.F.R. § 4.33(c) (1982). NYSERDA thus had actual notice ...


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