Full appeals court won't take up dispute over Alabama Power hydro relicensing

Alabama Power Building

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On purely technical grounds, without ruling on the heart of the appeal, a three-judge panel at the U.S. Appeals Court for the D.C. Circuit has rejected an appeal by a local association to the Federal Energy Regulatory Commission's decision to extend the license for an Alabama Power hydroelectric plant.

Alabama Power is a utility subsidiary of Southern (NYSE:SO).

That rejection was reissued on Jan. 30, in conjunction with a companion decision by the full appeals court to not take up the appeal of that decision.

The petitioner, Smith Lake Improvement and Stakeholder Association, had asserted various claims against FERC, the Secretary of the Interior and the Secretary of Agriculture relating to the commission’s issuance of a license order. Intervenor Alabama Power moved to dismiss the association’s petition for review on the ground that the appeals court lacks jurisdiction because the appeal was untimely. "We agree and grant the motion," said the Jan. 30 ruling.

FERC had issued a new thirty-year license to Alabama Power to continue to operate and maintain a hydroelectric facility known as the Warrior Project. The Smith Development is one of two hydroelectric developments encompassed by the Warrior Project. The development consists of Smith Dam and Smith Lake, an intake structure, a powerhouse built into the dam, and an emergency spillway.

The association, an organization comprised mainly of Smith Lake property owners, intervened in the licensing proceedings and specifically objected to Alabama Power’s proposal to maintain lake levels as they had existed under the earlier license. The licensing proceedings lasted nearly five years. FERC issued the new license on March 31, 2010, declining to adopt the association’s water level proposal and authorizing Alabama Power to operate under existing water level benchmarks.

The association filed a timely request for rehearing of the license order, arguing that the license was not best adapted to a comprehensive plan of development, as required by Section 10(a)(1) of the Federal Power Act, and that the license order’s comprehensive development findings were not supported by substantial evidence, as required by Section 313(b) of the Act. The commission issued a rehearing order affirming the license order as it relates to the Association. The association then filed a second rehearing request, which the commission summarily denied on the grounds that the rehearing order did not modify the license order, and the association’s arguments were considered and denied in the first rehearing order. The association then filed its petition for judicial review on March 18, 2013 – 124 days after the first rehearing order but within sixty days after the second rehearing order.

"We do not reach the merits of this petition because, as noted, we grant Intervenor Alabama Power’s motion to dismiss for lack of subject matter jurisdiction," said the court ruling. "Under Section 313(b) of the Federal Power Act, a party 'aggrieved by an order issued by the Commission...may obtain a review of such order in the United States Court of Appeals...by filing in such court, within sixty days after the order of the Commission upon the application for rehearing, a written petition praying that the order of the Commission be modified....” Our jurisdiction is thus limited to cases in which a petitioner has first sought rehearing before the Commission (an exhaustion requirement) and then promptly brings the petition to our court after the order denying rehearing. We have made clear that a second rehearing petition must be filed if – and only if – the first rehearing order 'modifie[d] the results of the earlier one in a significant way.'  We subsequently explained that means a change in the 'outcome,' not merely a change in reasoning."

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