Monday, September 29, 2014

D.C. Circuit Dismisses Untimely Petition for Review Challenging Second FERC Rehearing Order

On September 26, the D.C. Circuit (Brown, Wilkins, Silberman) issued a decision in Smith Lake Improvement District and Stakeholders Association v. FERC, No. 13-1074.  When FERC renewed Alabama Power’s license for the Warrior hydropower project, an organization of lakefront property owners objected to FERC’s decision to maintain existing lake levels.  The association filed a request for rehearing of FERC’s relicensing order, and FERC reaffirmed its order.  The association then filed another rehearing request, which FERC summarily denied on the ground that it raised issues already addressed in the first rehearing order.  The association then petitioned for review in the D.C. Circuit, within sixty days of the second rehearing order but 124 days after the first rehearing order.  Thus, if the Federal Power Act’s sixty-day statute of limitations began running from the first rehearing order, the association’s petition was untimely.  If the limitations period ran from the second rehearing order, the petition was timely.  Alabama Power moved to dismiss the petition as untimely.  FERC disagreed and sided with the petitioner on the issue, arguing that all subsequent rehearing petitions should toll the limitations period unless they are “vexatious.”

The D.C. Circuit granted Alabama Power’s motion to dismiss the petition for review, holding that a second request for rehearing tolls the statutory sixty-day period for judicial review only if the second request follows a first rehearing order that modifies the results of the original order.   Here, because FERC’s first rehearing order did not modify its original order, the association’s second rehearing request did not toll the statutory limitations period, and accordingly the association’s petition for review was untimely.  The court acknowledged that its rule places prospective petitioners in somewhat of a dilemma as to whether to file a successive rehearing request with FERC or a petition for review with the court.  The D.C. Circuit opined that petitioners unsure of whether a FERC rehearing order has modified a previous order—and therefore tolled the limitations period—should file a petition for review.  If the court then determines that the FERC rehearing order did modify the previous order, and a successive rehearing request is in order, then the court “would expect” FERC to allow the petitioner to file a late rehearing request.

—Todd Aagaard

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