         11-1960 (L)
         Green Island Power Authority v. Federal Energy Regulatory Comm’n

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
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ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 25th day of September, two thousand twelve.
 5
 6       PRESENT: BARRINGTON D. PARKER,
 7                RICHARD C. WESLEY,
 8                         Circuit Judges,
 9                JOHN GLEESON,*
10                         District Judge.
11
12
13       Green Island Power Authority,
14
15                                                    Petitioner,
16
17                      v.                    11-1960 (Lead)
18                                            11-3792 (Con)
19       Federal Energy Regulatory Commission,
20
21                                                    Respondent,
22
23       Erie Boulevard Hydropower, L.P.
24
25                                                    Intervenor-Respondent.
26
27
28
29       FOR PETITIONER:               WILLIAM S. HUANG (Rebecca J. Baldwin,
30                                     Katharine M. Mapes, on the brief),
31                                     Spiegel & McDiarmid, LLP, Washington, DC.

                *
                The Honorable John Gleeson, of the United States District
         Court for the Eastern District of New York, sitting by
         designation.
 1   FOR RESPONDENT:    HOLLY E. CAFER (Micahel A. Bardee,
 2                      General Counsel, Robert H. Solomon,
 3                      Solicitor, on the brief), Federal Energy
 4                      Regulatory Commission, Washington, DC.
 5
 6   FOR INTERVENOR:    ROY T. ENGLERT, JR., Robbins, Russell
 7                      Englert, Orseck, Untereiner & Sauber LLP,
 8                      Washington, DC (William J. Trunk,
 9                      Robbins, Russell, Englert, Orseck,
10                      Untereiner & Sauber LLP, Washington,
11                      D.C.; John A. Whittaker, IV, Katherine L.
12                      Konieczny, Winston & Strawn, LLP,
13                      Washington, DC; David A. Bono, Mel R.
14                      Jiganti, Brookfield Renewable Power,
15                      Marlborough, MA, on the brief).
16
17       Appeal from the Federal Energy Regulatory Commission.
18
19       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

20   AND DECREED that the orders of the Federal Energy Regulatory

21   Commission are AFFIRMED.

22       Petitioner Green Island Power Authority ("GIPA")

23   appeals from three orders issued by Respondent Federal

24   Energy Regulatory Commission ("FERC") following this Court's

25   decision in Green Island Power Authority v. F.E.R.C., 577

26   F.3d 148 (2d Cir. 2009) ("GIPA I").     In GIPA I, we vacated a

27   license issued by FERC to Intervenor-Respondent Erie

28   Boulevard Hydropower, L.P. ("Erie") for the School Street

29   Project, an existing hydroelectric project on the Mohawk

30   River.   Id. at 149-50.    On remand, FERC was required to

31   determine, inter alia, whether Erie's 2005 Offer of

32   Settlement ("2005 Settlement"), which proposed changes to

                                     2
1    the 1991 license application for the School Street Project

2    ("1991 Application"), "materially amended" the 1991

3    Application within the meaning of FERC's regulations.     Id.

4    at 168; 18 C.F.R. § 4.35(f)(1).     We assume familiarity with

5    the facts, the procedural history, and the issues presented

6    for review.

7        We defer to an agency's interpretation of its own

8    regulation unless its interpretation is "plainly erroneous

9    or inconsistent with the regulation" or there is any other

10   "reason to suspect that the interpretation does not reflect

11   the agency's fair and considered judgment on the matter in

12   question."     Chase Bank USA, N.A. v. McCoy, 131 S. Ct. 871,

13   880-81 (2011) (quoting Auer v. Robbins, 519 U.S. 452, 461-62

14   (1997)).     We accept as conclusive FERC's findings of fact if

15   they are "supported by substantial evidence."     16 U.S.C. §

16   825l(b).     Substantial evidence means "such relevant evidence

17   as a reasonable mind might accept as adequate to support a

18   conclusion."     Friends of Ompompanoosuc v. F.E.R.C., 968 F.2d

19   1549, 1554 (2d Cir. 1992) (quoting Allegheny Elec. Co-op.,

20   Inc. v. F.E.R.C., 922 F.2d 73, 80 (2d Cir. 1990)).

21       We defer to FERC's interpretation of its own regulation

22   and conclude that substantial evidence supported its

23   decision that the 2005 Settlement did not materially amend

                                     3
1    the 1991 Application.     A material amendment is defined in

2    FERC's regulations as "any fundamental and significant

3    change" to "plans of development proposed in an application

4    for a license."   18 C.F.R. §    4.35(f)(1).   One example of a

5    "material amendment" is “[a] change in the installed

6    capacity, or the number or location of any generating units

7    of the proposed project if the change would significantly

8    modify the flow regime associated with the project.”       18

9    C.F.R. § 4.35(f)(1)(i).     In GIPA I, we examined FERC's

10   determination that the changes proposed to the 1991

11   Application in 1995 (elimination of the 21-MW turbine) and

12   2001 (re-addition of that turbine) were not material

13   amendments under this regulation.     FERC's position was that

14   while the change in installed capacity "would result in a

15   change in flows," this would not significantly affect the

16   project's flow regime because "the project would still be

17   required to operate in a run-of river mode, and to provide

18   the same minimum flows in the bypassed reach."      Erie

19   Boulevard Hydropower, L.P., 120 F.E.R.C. ¶ 61,267, 62,184

20   (2007).   We affirmed FERC's decisions because GIPA

21   "offer[ed] no actual evidence to demonstrate that FERC's

22   conclusion was flawed."     577 F.3d at 163.

23

                                     4
1        On remand, FERC applied the same analysis to determine

2    that the 2005 Settlement did not materially amend the 1991

3    Application.   Considering past precedent, it concluded that

4    a project's flow regime "is the set of rules governing how

5    flows are to be managed and released from the project," and

6    that its primary elements "are its mode of operation and

7    conditions that specify the amount, location, and timing of

8    any required flow releases."   Order on Remand and

9    Reinstating New License, 131 F.E.R.C. 61,036, 61,228 (2010).

10   Furthermore, FERC construed the regulation to ask whether

11   the change in installed capacity itself would “cause [or]

12   require a corresponding change” to the flow regime.     Id. at

13   61,229.   Applying this framework, FERC concluded that the

14   proposed changes in installed capacity in the 2005

15   Settlement did not materially amend the 1991 Application

16   because "the project would still be required to operate in

17   run-of-river mode and could provide the same minimum flows

18   to the bypassed reach of the Mohawk River" proposed in the

19   1991 Application.   Order Denying Rehearing, 134 F.E.R.C.

20   61,205, 62,017 (2011).

21       FERC has consistently interpreted the material

22   amendment regulation to ask whether there is a causal

23   relationship between the change in the installed capacity

                                    5
1    and the flow regime associated with the project.     Its

2    conclusions that the 1995 and 2001 proposed changes "would

3    still . . . provide the same minimum flows in the bypassed

4    reach," Order on Remand and Reinstating New License, 131

5    F.E.R.C.     61,036, 61,224 (2010) (emphasis added), whereas

6    the 2005 changes "could provide the same minimum flows to

7    the bypassed reach," Order Denying Rehearing, 134 F.E.R.C.

8    61,205,     62,017 (2011) (emphasis added), are not to the

9    contrary.     That the proposed project would and could provide

10   the same minimum flows despite the proposed change in

11   capacity are simply different ways of illustrating why the

12   changed capacity is not causally linked to the minimum

13   flows.

14       GIPA I thus requires that we once again affirm FERC's

15   determination with respect to the 2005 Settlement. The

16   changes to the minimum flows proposed in the 2005 Settlement

17   were not caused by the proposed changes in installed

18   capacity.     Rather, the changes in minimum flows were

19   independent of the changes in installed capacity.     There was

20   no material amendment because "the project would still be

21   required to operate in run-of-river mode and could provide

22   the same minimum flows to the bypassed reach of the Mohawk

23   River" proposed in the 1991 Application.     Order Denying

                                     6
1    Rehearing, 134 F.E.R.C. at 62,017.     Indeed, it would make

2    little sense if both the removal of the 21-MW unit in 1995

3    and re-addition of the unit in 2001 were not material

4    amendments (as we held in GIPA I), but the re-removal of the

5    21-MW unit in 2005 was a material amendment merely because

6    of an unrelated proposed increase in minimum flows.

7        We similarly leave undisturbed FERC’s determination

8    that the powerhouse changes associated with substituting the

9    21-MW unit proposed in the 1991 Application with either an

10   11- MW unit or with no additional unit did not constitute a

11   material amendment under FERC's regulations.     Under 18

12   C.F.R. § 4.35(f)(1)(ii), a material amendment includes “[a]

13   material change in . . . the location of the powerhouse,. .

14   . if the change would . . . [c]ause adverse environmental

15   impacts not previously discussed in the original

16   application.”

17       Here, the 2005 Settlement did not propose a material

18   change in the location of the powerhouse.     The 1991

19   Application proposed to house the new 21-MW unit in an

20   addition to the existing powerhouse.     The 2005 Settlement

21   proposed either no new generation unit or a new 11-MW

22   generation unit, to be housed in a new powerhouse or

23   powerhouse addition at the same location.     In either

                                  7
1    scenario, the location of the powerhouse would not change

2    because it "would continue to exist at the same location,

3    either with or without a new powerhouse or an addition."

4    Order Denying Rehearing, 134 F.E.R.C. at 62,022.

5        Moreover, FERC did not abuse its discretion with

6    respect to various evidentiary rulings.   For each piece of

7    evidence that GIPA contends was improperly excluded, FERC

8    offered thorough explanations to support its decision to

9    exclude the evidence as unreliable, unpersuasive and/or

10   irrelevant.   Moreover, even where evidence was excluded as

11   untimely, FERC considered whether the evidence was relevant

12   to the issues being reviewed.

13       Finally, we deny GIPA’s motion to take judicial notice

14   of three documents relating to the physical changes to

15   School Street that occurred due to its excavation by Erie

16   between 2007 and 2010.   These letters do not, as GIPA

17   contends, contradict FERC’s position on appeal.    FERC's 2007

18   License Order authorized Erie to excavate the power canal

19   without necessarily installing the potential new turbine.

20   The letters merely seek additional information from Erie and

21   question whether an amendment might be required.    Erie

22   provided the requested information, and no further action

23   has been taken.   This does not contradict FERC’s position on

                                     8
1    appeal that the excavation "fell within the range of canal

2    capacity considered in the 2007 License Order."    FERC Br. at

3    61.   Accordingly, we decline to take judicial notice of the

4    letters.

5          Because we affirm FERC’s determination that the 2005

6    Settlement did not materially amend the 1991 Application, we

7    need not review FERC’s alternative conclusion that the

8    Cohoes Falls Project is not a feasible alternative to School

9    Street.    We have considered GIPA’s remaining arguments and,

10   after a thorough review of the record, find them to be

11   without merit.

12         For the foregoing reasons, the orders of the Federal

13   Energy Regulatory Commission are hereby AFFIRMED.

14

15                                FOR THE COURT:
16                                Catherine O’Hagan Wolfe, Clerk
17
18
19




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