The Federal Energy Regulatory Commission has again quashed an attempt by Green Island Power Authority to challenge the relicensing of Erie Boulevard Hydropower L.P.’s 49.8-MW School Street hydroelectric project in New York.
FERC issued a 40-year relicense in 2007 to Erie Boulevard Hydropower for the upgrade and continued operation of School Street, which diverts water from the Mohawk River upstream of Cohoes Falls, bypassing 4,500 feet of riverbed, including the falls, New York’s second tallest.
In relicensing the project, FERC has rejected several attempts by Green Island to propose the competing 100-MW Cohoes Falls project in lieu of renewing School Street. FERC has noted the Cohoes Falls project only could be developed if School Street — which has generated power since 1916 — were decommissioned and removed. FERC rejected a 2004 motion by Green Island to intervene in School Street’s relicensing, finding the motion was filed 13 years late in the proceeding, which began in 1991.
Green Island’s hostile takeover attempt reached its high water mark in 2009, when the 2nd U.S. Circuit Court of Appeals said FERC erred by failing to consider a new intervention by Green Island when FERC allowed Erie Boulevard to modify its relicense proposal based on terms of a settlement agreement. The appeals court remanded the case to FERC to consider first whether the settlement agreement was a “material amendment” to the proposed project and, if so, to consider whether Green Island’s motion to intervene was proper and, if so, to consider the Cohoes Falls project proposal.
FERC did that March 17, reaffirming that Green Island Power Authority does not have standing to propose development of the competing project at the School Street site. Even if Green Island did have standing, FERC reiterated, its cost estimates are unrealistic, making Cohoes Falls not a feasible alternative to School Street.
Green Island again sought rehearing
In response, Green Island again filed for rehearing, arguing FERC should have granted several of its motions to reopen the record and to submit new evidence, including one filing on March 15, 2011, only two days before FERC’s March 17 denial on rehearing.
FERC shot down the latest attempt in a July 21 order, again denying rehearing.
“Reopening the record is only required when it clearly appears that the new evidence would compel or persuade to a contrary result,” FERC ruled. “… The documents and information that Green Island sought to introduce, which we declined to accept in our order on rehearing, do not meet this standard. In addition, most of these documents were not relevant to the issues before us on remand.”
Green Island also faulted FERC’s use of a river flow analysis, newly prepared by FERC staff, without first providing parties with notice of the new evidence and an opportunity to respond, which Green Island called a violation of due process. FERC disagreed.
“After having argued that the commission should have prepared a quantitative analysis, Green Island should not now be permitted to claim surprise that the commission seriously considered its argument and prepared the analysis that it had argued was needed,” FERC ruled. “Moreover, Green Island had both adequate notice of the commission staff’s flow analysis and a reasonable opportunity to respond to it.”
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