What’s at Stake
Whether the Federal Energy Regulatory Commission may continuously change how it applies its late intervention standard to exclude interested parties from participating in hydropower licensing decisions.
Summary
The Federal Energy Regulatory Commission (FERC) is in charge of all hydropower licensing decisions in the United States. Interested parties may participate in and challenge these licensing decisions, so long as they properly intervene in the licensing proceedings. FERC sets intervention deadlines for each major hydropower licensing decision. If an interested party misses a set intervention deadline, it is not fully out of luck – the party may still file for late intervention.
In June 2023, the operator of the Niangua Hydroelectric Project in Missouri sought to end its hydropower license while leaving the Project’s dam in place. In May 2024, American Whitewater sought late intervention in the FERC hydropower license proceeding for the Niangua Project to advocate for the removal of this now defunct dam. FERC denied American Whitewater’s late intervention, finding that the fact that American Whitewater inadvertently missed the intervention deadline was a sufficient reason to exclude American Whitewater from the proceedings. American Whitewater found several other cases in which FERC had treated this type of fact differently. So, American Whitewater appealed to the D.C. Circuit.
On July 24, 2026, the D.C. Circuit sided with American Whitewater, finding that FERC had treated like late intervention cases differently in violation of the Administrative Procedure Act. The D.C. Circuit found that FERC offered no explanation for its differential treatment of late intervention motions. The D.C. Circuit’s decision will effectively require FERC to treat late intervention motions with even-handedness, regardless of who the movant is. This is the first time a court has found that FERC acted on an intervention motion in an unlawful manner.
Core Legal Questions
The core issue in this case is whether FERC may treat similar late intervention motions differently.
The Administrative Procedure Act requires all agencies to provide reasoned explanations in the event that the agency treats a similar situation differently. Under the Administrative Procedure Act, agencies may not apply their regulations in one way to one party and then apply that same regulation in a completely opposite manner to a different party. In this case, the D.C. Circuit grappled with the level of discretion FERC has to apply its late intervention standard in different ways.
The D.C. Circuit also analyzed whether FERC’s application of the late intervention standard to American Whitewater’s motion was contrary to the text of FERC’s intervention regulation.