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10/07/88 Friends of Keeseville, Inc v. Federal Energy Regulatory

October 7, 1988

FRIENDS OF KEESEVILLE, INC

v.

FEDERAL ENERGY REGULATORY COMMISSION 1988.CDC.393 DATE DECIDED: OCTOBER 7, 1988



Wald, Chief Judge, and Starr and Williams, Circuit Judges.

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:

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WALD

Opinion for the Court filed by Chief Judge WALD.

WALD, Chief Judge.

Petitioner, Friends of Keeseville ("Friends"), challenges certain orders of the Federal Energy Regulatory Commission . FERC contends that the orders were proper and that Friends is not currently aggrieved by the Commission's actions. We have concluded that this case is partly moot and partly unripe, and that adjudication at this time is therefore inappropriate. The petition is accordingly dismissed.

FACTS

This case involves the efforts of various parties to develop a hydroelectric power project on the Ausable River in upstate New York. In 1981, the Village of Keeseville, New York and Essex County, New York filed an application for a preliminary permit. *fn1 The Commission issued the permit on March 31, 1982. County of Essex and Village of Keeseville, 18 F.E.R.C. para. 62,551 (1982). On August 31, 1982, the County petitioned the Commission for permission to withdraw as co-permittee. The preliminary permit expired by its terms on February 29, 1984. During the pendency of the preliminary permit, the Village authorized the formation of Friends of Keeseville, Inc., a nonprofit corporation designed to facilitate the financing and development of the Ausable River project. On March 2, 1984, immediately following the expiration of the Village's preliminary permit, Friends filed an application for an exemption. *fn2

On July 27, 1984, the Commission issued an order directing Friends to show cause why its exemption application was not an abuse of municipal preference.3Friends of Keeseville, Inc., 28 F.E.R.C. para. 61,158 (1984). The Commission evidently believed that the Village had functioned as a "proxy" for Friends, allowing Friends to gain an advantageous first-filed position by submitting an application immediately upon the expiration of the Village's permit. The Commission explained:

Abuse of the municipal preference is established by evidence indicating that the actions of a municipality and a non-municipality were coordinated in a manner that used the municipal preference available to the municipality alone to place the non-municipal applicant in a competitively advantageous position.

Id. at 61,297. Friends' response to the show cause order was evidently unsatisfactory to the agency: on July 24, 1985, the Commission issued an order which dismissed the exemption application and imposed a one-year ban on any filings by Friends or the Village proposing development of the Ausable River site. Friends of Keeseville, Inc., 32 F.E.R.C. para. 61,111 (1985). Friends did not seek rehearing of this order.4

On December 31, 1985, Cash Flow Systems submitted its own application for a preliminary permit for the Ausable River site. The Commission set July 7, 1986, as the deadline for competing applications. On June 2, 1986, Friends filed a motion for reconsideration of the July 24, 1985 order, requesting that the agency reverse its earlier decision and accept its exemption application as of March 2, 1984.5 On July 11, 1986, the Commission's Secretary denied the request for reconsideration on the ground that it was in substance an untimely request for rehearing of the July 24, 1985 order. On July 30, 1986, a preliminary permit was granted to CFS.

On August 11, 1986, Friends appealed the Secretary's denial of its request for rehearing, challenged the grant of the permit to CFS, and filed its own new license application for the Ausable River site. These challenges were all rejected in the Commission's order of June 5, 1987. Friends petitioned FERC for rehearing of that order, and on October 23, 1987, the agency ...


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