American Whitewater v. FERC
Exactly when is the removal of decrepit, inoperable hydroelectric dams NOT in the public interest?
In cooperation with American Whitewater and Earthrise Law Center, Public Justice is challenging the Federal Energy Regulatory Commission’s (FERC) decision allowing a corporation to surrender its license to operate the Somersworth Hydroelectric Project without first requiring the removal of the Project’s dams. The dams are located on a valuable portion of the Salmon Falls River between New Hampshire and Maine.
According to the U.S. Fish and Wildlife Service, “the average dam in the U.S. is 57 years old and ready for retirement. The vast majority are small, locally or privately owned and were originally built to control water flow, mill grains, transport lumber or create a reliable fishing spot. Thousands of these dams have begun to degrade inside of our rivers, harming aquatic, terrestrial and human life. Though they are championed as a source of renewable energy, less than 3% of dams in the U.S. are still used to generate energy.” (USFWS website )
Removal of the dams serves the public interest by restoring aquatic habitat and enhancing recreational activities. Dams, whether old or new, impact the entire ecological river system. When a river is dammed, so are the nutrients and animals inside of it. This disrupts the life cycles of numerous aquatic species and puts their continued existence in jeopardy. It also serves as an impediment for recreational and aesthetic interests, preventing boats, anglers, birdwatchers, and other outdoor enthusiasts from enjoying our Nation’s streams and rivers.
This case explores how citizen suits in the post-Chevron world can place guardrails on an agency’s discretionary authority to define what is in the public interest. This case presents an opportunity to change FERC’s practice of allowing abandoned dams to remain in place, despite the clear environmental and societal benefits of dam removal. It also allows Public Justice to protect the jurisdictional access necessary to challenge erroneous FERC orders.
