Publisher’s Note: This May 21, 2008 FERC ruling rejects requests of FISH, Fort Bragg, Mendocino County and local stakeholders’ to rehear their right to participate in this wave energy development project. It is noted since onset of the Mendocino wave energy agenda, FERC and PG&E continue to swiftly move toward their goals while intentionally blocking all local, public participation. As wave energy development projects on the U.S. coasts progress, Americans are discovering that FERC’s convoluted wave energy licensing process is ill-defined, biased and discriminates against public participation.
123 FERC ¶ 61,194
UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION
NOTICE REJECTING REQUEST FOR REHEARING
(May 21, 2008)
On November 30, 2007, the Commission issued a Policy Statement on Conditioned Licenses for Hydrokinetic Projects (Policy Statement) in Docket No. PL08-1-000.1 In the Policy Statement, the Commission set forth a new policy, applicable only to certain hydrokinetic projects, where the Commission will, in appropriate cases, and after the Commission completes its own licensing process, issue conditioned licenses pending action by other entities under federal law. On April 14, 2008, to address questions raised in response to the Policy Statement, the Commission staff issued prepared responses to the list of frequently asked questions (FAQs on Conditioned Licenses) under Docket No. PL08-1-000. Staff also issued Guidance on Hydrokinetic Pilot Projects (the Guidance), on April 14, 2008, in Docket AD07-14-000, in an effort to support the advancement and orderly development of hydrokinetic technologies.
On May 12, 13, and 14, 2008, Elizabeth R. Mitchell and Fisherman Interested in Safe Hydrokinetics (FISH Committee), the City of Fort Bragg, and the Concerned Citizens of Fort Bragg, respectively, filed requests for rehearing of the FAQs on Conditioned Licenses and the Guidance. On May 13 and 15, 2008, Lincoln County, Oregon and Mendocino County, California, respectively, filed requests for rehearing joining Ms. Mitchell and FISH Committee. All parties argue that: the Commission should have issued the Guidance only after initiating a public notice and comment rulemaking pursuant to section 553 of the Administrative Procedures Act;2 the Commission did not comply with the National Environmental Policy Act (NEPA) by failing to prepare a programmatic Environmental Impact Statement on the Guidance; and the Commission failed to comply with other laws applicable to the Commission’s licensing process.
As has been previously explained, an order is final, and thus subject to rehearing, only when it imposes an obligation, denies a right, or fixes some legal relationship as the consummation of the administrative process.3 The Guidance and the FAQs on Conditioned Licenses represent only informal advice from Commission staff and do not apply to the specific facts of any particular case, nor do they purport to resolve any specific controversy.4 Indeed, they are not orders of any kind. Therefore, no aggrievement exists and rehearing does not lie.5 Accordingly, the requests for rehearing of the Commission’s Guidance and the FAQs on Conditioned Licenses are rejected.
This notice constitutes final agency action. Requests for rehearing by the Commission of this rejection must be filed within 30 days of the date of issuance of this notice, pursuant to 18 C.F.R. § 385.713 (2007).
Kimberly D. Bose,
1 The Policy Statement was published in the Federal Register on December 7, 2007 (72 Fed. Reg. 68,887).
2 5 U.S.C. § 553 (2000) (prescribing notice and comment procedures for informal rulemaking).
3 See City of Fremont v. FERC, 336 F.3d 910, 913-14 (9th Cir. 2003); Papago Tribal Utility Authority v. FERC, 628 F.2d 235, 239 (D.C. Cir. 1980).
4 Parties are free to raise concerns in a specific proceeding when the policy is applied, and the Commission will consider their concerns with respect to the particular facts of the proceeding.
5 Project Decommissioning at Relicensing and Use of Reserved Authority in Hydropower Licenses to Ameliorate Cumulative Impacts, 70 FERC ¶ 61,151 at 61,450 (1995).