Commissioner Richard Glick Dissent Regarding Eagle Crest Energy Company

Commissioner Richard Glick Statement

September 19, 2019

Docket No. P-13123-028

As I noted in my partial dissent from the underlying order, I support Eagle Crest’s requests to extend the deadlines in its license.  I also agree with the rationale in the underlying order for granting those extensions.1   Eagle Crest has diligently pursued the project and I believe that extending the deadlines for commencing and completing construction is consistent with the Commission’s authority as modified by the America’s Water Infrastructure Act of 2018 (AWIA).2  

I dissent, however, because I disagree with the Commission’s decision to deny the National Parks Conservation Association’s (Association) motion to intervene.3   No party opposed the Association’s motion, which adequately stated the Association’s interests in this proceeding and explained how the outcome might adversely affect those interests.4  That should be sufficient for the Commission to grant the Association party status and consider its arguments on the merits.5  

Instead, today’s order states that it does not allow interventions under these circumstances.6   The majority apparently regards modifying the deadlines to commence or complete construction as an immaterial change to a license and there is, therefore, no need to consider comments by the parties that are affected by that change.7 I disagree.  Although it is true that a post-licensing proceeding generally should not re-litigate the underlying license,8 that does not mean that would-be intervenors have nothing useful to say or that the Commission does not benefit from hearing their perspective.  Deadlines to commence or complete construction are important measures for ensuring that a project is consistent with the public interest, and the Commission ought to consider the perspectives of all affected parties before modifying those deadlines.  In any case, I do not think it is appropriate for the Commission to deny an entity party status—and the rights that come with it9 —simply because the Commission is bothered that it would need to address their comments opposing the extension.  If we disagree with commenters’ arguments, we should so say on the record rather than keeping them out of the proceeding altogether. 

The Commission also points to the administrative efficiency of excluding parties from participating in post-licensing proceedings.10   I fully recognize the importance of administrative efficiency, especially when it comes to hydroelectric licensing where license applications 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, the underlying order responded to the Association’s and the Society’s merits arguments in four concise and convincing paragraphs.11   That is hardly an oppressive administrative burden.  I believe that the Commission—and the public interest—would be better served by permitting intervention in these proceedings, responding fully to would-be intervenors’ arguments, and allowing them to challenge our responses in court and vindicate any rights they may have. 

This proceeding perfectly illustrates what is wrong with the Commission’s approach.  The principal substantive issues before us are whether the authority contained in the AWIA applies to the Eagle Crest project and, if it does, whether Eagle Crest diligently pursued the project.  In considering those questions, I reviewed the filings by the Association and the Society on both issues.  Although I ultimately was not persuaded by either group’s arguments, I found them helpful in making my decision in part because they make important arguments that are not otherwise presented in the record.  Regarding the application of the AWIA in particular, I recognize that the question is not straightforward and that reasonable minds could differ as to whether the new authority created by the AWIA applies to this proceeding.  By denying intervention, the Commission prevents this issue from being litigated in an appeal of this order.  Instead, the would-be intervenors can litigate only whether the Commission properly denied them intervention, not whether the Commission correctly applied the AWIA.12   I fail to see how preventing them from litigating an important and unresolved legal question is good government or consistent with our responsibility to the public interest. 

Finally, I also dissent from the decision to deny a stay of the underlying order pending judicial review.13   As noted, the applicability of the AWIA is an important and unresolved legal question that could determine the fate of the Eagle Crest project.  I believe that the Association deserves a full opportunity to make its case for why the law should not apply to the project, which can only come with party status.14   So long as the Commission denies the Association that opportunity, it is only fair to stay the underlying order until the Association has the opportunity to convince a court that the Commission erred in denying it that status. 

For these reasons, I respectfully dissent

• 11 Eagle Crest Energy Co., 167 FERC ¶ 61,117, at PP 8-11 (2019) (Extension Order).
• 22 America’s Water Infrastructure Act of 2018, Pub. L. No. 115-270, § 3001, 132 Stat. 3765, 3862 (2018).
• 33 I dissented only in part from the underlying order because it addressed the substantive arguments in the record in addition to the intervention issue. See Extension Order, 167 FERC ¶ 61,117 at PP 8-11. Today’s order, by contrast, addresses only the intervention issue and, therefore, I dissent in full.
• 44Association Motion to Intervene and Opposition at 2-4; see also Association Rehearing Request at 4-11. 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., 168 FERC ¶ 61,186 at PP 30-32 (2019) (Rehearing Order); Extension Order, 167 FERC ¶ 61,117 at P 13 & n.30. In any case, while the Commission makes that failure the nominal basis for denying the Society party status, the logic of the Commission’s order indicates that the Commission would have denied any such motion.
• 55See 18 C.F.R. § 385.214(b) (2019) (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.”).
• 66Rehearing Order, 168 FERC ¶ 61,186 at P 15 (“[T]his is not a proceeding where the Commission permits intervention.”). The Commission states that intervention in a “post-licensing proceeding” is proper only in certain limited circumstances defined by the Commission. See id. P 16.
• 77Id. P 19.
• 88Id. P 20.
• 99 As noted, infra n.12, in order to seek rehearing or judicial review on the merits, it is necessary to be a party to the underlying proceeding.
• 1010 Rehearing Order, 168 FERC ¶ 61,186 at P 15.
• 1111 Extension Order, 167 FERC ¶ 61,117 at PP 8-11.
• 1212 16 U.S.C. § 825l(b)(2018) (providing that “[a]ny party to a proceeding” may appeal the Commission’s order in that proceeding); see Cal. Trout v. FERC, 572 F.3d 1003, 1013 n.7 (9th Cir. 2009); N. Colo. 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”).
• 1313 Rehearing Order, 168 FERC ¶ 61,186 at PP 8-11.
• 1414As noted, because the Commission denied the Association’s motion to intervene, it can appeal only for the limited purpose of contesting the denial of intervention. See supra note 12.