Commissioner James Danly Statement
February 8, 2021
Docket No. P-178-046
The Commission’s order grants rehearing of a notice dismissing Kern River Boaters’ (KRB) motion to intervene in a post-licensing compliance proceeding involving Kern & Tule Hydro LLC’s (KT Hydro) proposed project repairs. In doing so, the Commission finds that good cause exists to grant KRB’s motion to intervene. I dissent from today’s order because the Commission fails to explain its departure from its policy for interventions in post-licensing proceedings.
The notice dismissing KRB’s motion to intervene stated,
[i]n post-licensing proceedings, the Commission will entertain interventions only when the proceeding entails a material change in the plan of the project development or in the terms and conditions of the license, could adversely affect the rights of a property holder in a manner not contemplated by the license, or is being appealed by an agency or entity specifically given a consultation role with respect to the filing.[1]
The notice dismissed the intervention finding that “[n]one of these conditions apply here”[2] as the licensee proposed to repair and restore the project to “its original operational configuration and specifications.”[3]
Today’s order grants KRB’s intervention without acknowledging the Commission’s post-licensing intervention policy or explaining the Commission’s departure from that policy. Rather, the Commission finds good cause to grant “late intervention” under Rule 214(b)(3) of the Commission’s Rules of Practice and Procedure.[4] The Commission does so by recasting KRB’s motion as a late intervention in the transfer proceeding.[5] Regardless, when intervention is sought after the issuance of a dispositive order, the Commission’s policy is to impose on the movant “a higher burden to justify favorable action on its motion.”[6] The Commission does not apply this policy here. Nor do I think KRB could meet that higher burden. KT Hydro stated in its transfer application it “plans to repair the Project and return it to the same operational configuration and specifications as existed prior to the rockslide.”[7] Further, the proposed repairs are not relevant to the Commission’s public interest determination in the transfer proceeding.[8]
Today’s order also conflicts with the Commission’s policy that Rule 214 applies only where the Commission permits intervention.[9] As the notice dismissing intervention stated, this proceeding does not meet the conditions of the Commission’s post-licensing intervention policy;[10] satisfaction of the requirements of Rule 214 does not change that finding. Failure to explain departure from policy and reliance on inapplicable regulations is an obvious violation of the Administrative Procedure Act.[11] It is beyond cavil that an agency must explain its departure from prior precedent and “may not . . . depart from a prior policy sub silentio or simply disregard rules that are still on the books.”[12]
For these reasons, I respectfully dissent.
[1] December 9, 2020 Notice Dismissing Intervention at 1 (citing City of Tacoma, Wash., 109 FERC ¶ 61,318, at PP 6-7 (2004); Pac. Gas & Elec. Co., 40 FERC ¶ 61,035, at 61,099 (1987)).
[2] Id. at 1.
[3] Id. (citing Pac. Gas & Elec. Co., 173 FERC ¶ 62,027, at P 3 (2020); KT Hydro October 15, 2020 Filing (providing repair plans)).
[4] See 18 C.F.R. § 385.214(b)(3) (2020).
[5] See KRB November 3, 2020 Motion to Intervene at 1 (“seeks intervention so as to file a motion to stay Commission action on Kern & Tule Hydro’s . . . application for Commission approval of new construction on the Kern Canyon Hydroelectric Project.”).
[6] Int’l Paper Co., 99 FERC ¶ 61,066, at 61,303 (2002).
[7] KT Hydro March 12, 2020 Filing at 7.
[8] When determining whether a transfer is in the public interest, the Commission considers whether the transferee is legally, technically, and financially competent to hold the license and to operate and maintain the project. Pac. Gas & Elec. Co., 173 FERC ¶ 62,027 at PP 13-14.
[9] See Eagle Crest Energy Co., 168 FERC ¶ 61,186, at P 15 (2019) (“Rule 214 of the Commission’s regulations is inapplicable because this is not a proceeding where the Commission permits intervention.”); Brief for Respondent at 13, Nat’l Parks Conservation Ass’n v. FERC, Nos. 19-72915, 19-73079 (9th Cir. Apr. 6, 2020) (“Rule [214]—which prescribes the contents of an intervention motion—does not require intervention in all types of proceedings.”); id. at 44 (“Rule 214 says nothing about whether a right to intervene applies to a particular proceeding.”).
[10] See December 9, 2020 Notice Dismissing Intervention at 1.
[11] See New England Power Generators Ass’n, Inc. v. FERC, 881 F.3d 202, 211 (D.C. Cir. 2018) (finding “that FERC did not engage in the reasoned decisionmaking required by the Administrative Procedure Act” because it “failed to respond to the substantial arguments put forward by Petitioners and failed to square its decision with its past precedent”) (emphasis added). Whether KRB addressed the post-licensing policy in its request for rehearing is irrelevant.
[12] FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (“[T]he requirement that an agency provide reasoned explanation for its action would ordinarily demand that it display awareness that it is changing position.”) (citation omitted).