Background
American Whitewater, a nonprofit river-conservation and recreation organization, sought to intervene after the deadline in FERC proceedings concerning surrender of the license for Missouri’s Niangua Hydroelectric Project. Licensee Sho-Me Power Electric Cooperative proposed decommissioning the project while leaving the dam and associated structures in place, thereby maintaining Lake Niangua. American Whitewater advocated dam removal and river restoration for recreational boating and related environmental interests.
American Whitewater said it had only recently learned of the proceeding and argued that its late participation would neither prejudice existing parties nor delay the case, while its recreational-boating interests were not otherwise adequately represented. FERC denied the unopposed motion because the organization had not shown good cause for missing the intervention deadline, and it denied rehearing. While judicial review was pending, FERC conditionally approved license surrender with the dam remaining in place, but the agency retained jurisdiction because decommissioning had not been certified as complete.
The Court’s Holding
The D.C. Circuit rejected American Whitewater’s argument that FERC misread its intervention regulation, 18 C.F.R. § 385.214. The court held that FERC may treat a persuasive explanation for missing the filing deadline as necessary to establish good cause for waiving the deadline and, absent that showing, has discretion not to consider the regulation’s other late-intervention factors. FERC therefore did not err merely by concluding that lack of awareness or administrative oversight was insufficient.
The court nevertheless held that FERC acted arbitrarily and capriciously in denying rehearing because it failed to reconcile that result with decisions granting late intervention to similarly situated movants that had not supplied a stronger explanation for filing late. An agency must explain why it treats comparable parties differently or acknowledge and justify a change in policy. The court vacated the intervention orders and remanded for FERC to reconsider American Whitewater’s motion and provide a reasoned explanation consistent with its precedent.
The petition remained justiciable despite FERC’s intervening surrender order. Because the license remained effective until FERC certified completion of decommissioning, the agency retained authority to grant intervention; if intervention were allowed, American Whitewater could seek reopening or reconsideration of the surrender order.
Key Takeaways
- FERC may require a late intervenor to provide good cause for missing the deadline before considering the other factors listed in Rule 214(d)(1).
- FERC cannot deny late intervention under that approach while granting comparable motions in other cases without identifying a meaningful distinction or explaining a policy change.
- A conditional license-surrender order did not moot the dispute because FERC retained jurisdiction until decommissioning was completed and formally certified.
Why It Matters
The decision preserves FERC’s broad discretion to manage untimely intervention requests but reinforces a core administrative-law constraint: discretion must be exercised consistently and departures from precedent must be reasoned. Parties seeking late intervention should still explain concretely why they missed the deadline, even when lack of prejudice and other equitable factors favor participation.
The ruling also confirms that judicial relief may remain available after conditional approval of a hydropower-license surrender when FERC has not yet relinquished jurisdiction. On remand, FERC must reconsider intervention, but the court did not direct the agency to grant American Whitewater party status or order removal of the Niangua dam.