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Commissioner Richard Glick Statement
May 7, 2019

Docket No. P-13123-002 PDF


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Partial Dissent regarding Eagle Crest Energy Company

I support Eagle Crest’s requests to extend the deadlines in its license. I also agree with most of today’s order granting those extensions. Eagle Crest has diligently pursued the project and it is appropriate to extend the deadlines for commencing and completing construction, consistent with the Commission’s authority as modified by the America’s Water Infrastructure Act of 2018 (AWIA). 1

I disagree, however, with the Commission’s decision to deny the National Parks Conservation Association’s (Association) motion to intervene. The Association has adequately stated its interests in the proceeding and explained the adverse effects that the proceeding might have on those interests.2 That should be sufficient for the Commission to grant the Association party status and consider its arguments on the merits.3

Instead, the Commission declares that this is not the type of proceeding in which it permits intervention (although today’s order also seems to suggest that there may be exceptions, not enumerated here, to that general rule). 4 Apparently, the Commission regards this type of proceeding as an immaterial modification to the license, meaning that our decisionmaking would not benefit from comments by affected entities.5 Although I agree that a post-licensing proceeding generally should not re-litigate the underlying license, that does not mean that would-be intervenors have nothing useful to say about the determinations that the Commission must make in that proceeding. For example, I have reviewed the filings by the Association and the Society regarding Eagle Crest’s diligence as well as the legality of applying the AWIA to this project. Although I ultimately was not persuaded by either group’s arguments, I found them useful in making my decision. At the end of the day, I do not believe that the Commission should grant or deny intervention based on what we think a would-be intervenor may say in their comments. If we disagree with commenters’ arguments or find that they are not germane, we should so say on the record, rather than keeping them out of the proceeding altogether.

I fully recognize the importance of administrative efficiency, especially when it comes to hydroelectric licensing where licenses take years to process. But just as a hospital should seek to do more than simply minimize the length of patient stays, the Commission cannot let the desire for administrative efficiency prevent us from developing a full record and giving that record the consideration it deserves. In any case, today’s order responds to the Association’s and the Society’s merits arguments in four concise and convincing paragraphs6 —hardly an oppressive administrative burden for the Commission. By denying intervention, however, today’s order deprives those entities of the ability to challenge the merits of the Commission’s responses on appeal.7 I believe that we would be better served by permitting intervention in these proceedings, responding fully to would-be intervenors’ arguments, and allowing them to challenge our responses before a court and vindicate any rights they may have.

For these reasons, I respectfully dissent in part.

                                               

    1 America’s Water Infrastructure Act of 2018, Pub. L. No. 115-270, § 3001, 132 Stat. 3765, 3862 (2018).
    2 Association Motion to Intervene and Opposition at 2-4.  The Desert Protection Society (Society) also filed comments on Eagle Crest’s extension requests, but did not file a motion to intervene, apparently assuming that its status as a party in the underlying licensing proceeding would carry over to this proceeding.  Society Opposition at 2.  Although one might excuse that failure given that the Commission did not notice Eagle Crest’s filing as a new proceeding requiring intervention, the fact remains that it did not seek to intervene in this new proceeding, which is required under Commission precedent.  See Eagle Crest Energy Co., 167 FERC ¶ 61,117, at P 13 & n.30 (2019).  In any case, while the Commission makes that failure the nominal basis for denying intervention, the logic of the Commission’s order strongly suggests that the outcome would be the same even if the Society had filed a new motion to intervene. 
    3 See 18 C.F.R. § 385.214(b) (2018) (stating the bases for intervention); see also id. § 385.214(c)(1) (“If no answer in opposition to a timely motion to intervene is filed within 15 days after the motion to intervene is filed, the movant becomes a party at the end of the 15 day period.”).
    4 Eagle Crest Energy Co., 167 FERC ¶ 61,117 at P 12.
    5 Id.
    6 Id. PP 8-11.
    7 16 U.S.C. § 825l(b)(2012) (providing that “[a]ny party to a proceeding” may appeal the Commission’s order in that proceeding); see N. Co lo. Water Conservancy Dist. v. FERC, 730 F.2d 1509, 1515 (D.C. Cir. 1984) (a non-party must be considered a party only “for the limited purpose of reviewing the agency’s basis for denying party status”).
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