Respondents Brief — City of Rockingham, North Carolina, et al., Petitioners v. Federal Energy Regulatory Commission, et al.
Supreme Court briefJan 10, 2018
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No. 17-526
In the Supreme Court of the United States
__________
CITY OF ROCKINGHAM, NORTH CAROLINA AND
AMERICAN RIVERS, INC., PETITIONERS
v.
FEDERAL ENERGY REGULATORY COMMISSION AND U.S.
SECRETARY OF COMMERCE, ET AL., RESPONDENTS
__________
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
__________
BRIEF IN OPPOSITION
TO CERTIORARI FOR RESPONDENT
DUKE ENERGY PROGRESS, LLC
__________
STEFFEN N. JOHNSON
Counsel of Record
JOHN A. WHITTAKER, IV
KIMBERLY OGNISTY
PAUL N. HAROLD
Winston & Strawn LLP
1700 K Street, N.W.
Washington, DC 20006
(202) 282-5000
sjohnson@winston.com
Counsel for Respondent Duke Energy Progress, LLC
QUESTION PRESENTED
This case concerns the renewal of a license for a hydroelectric project in North Carolina. Since 1958, respondent Duke Energy Progress, LLC, has operated
two hydroelectric facilities on the Pee Dee River. This
case concerns only one: the Tillery Dam and a 19-mile
stretch of river known as the Tillery Reach.
After a nine-year-long proceeding, the Federal Energy Regulatory Commission issued a 174-page Order
renewing the license with dozens of conditions, including a condition that Duke Energy release a minimum
amount of water into the Tillery Reach. This Order—
and a subsequent order and clarification on rehearing
—reflected FERC’s careful consideration of a comprehensive record and consultation with both numerous
public entities—including federal, state, and local
agencies—and private groups, including petitioners.
The Order also reflected the terms of a state water
quality certification that, per the Clean Water Act,
must precede the issuance of any license.
Petitioners preferred a higher minimum flow level
into the Tillery Reach and argued that FERC should
have used a different scientific method for evaluating
the effect of flow levels on fish and other aquatic resources. In a unanimous, unpublished decision, the
Fourth Circuit denied the petition for review.
Against this backdrop, the question presented is:
Whether this Court should grant review of the
Fourth Circuit’s decision where FERC not only chose
a reasonable scientific method, but also relied exclusively on material in the record, and petitioners did not
raise their “black box” decisionmaking theory below.
ii
CORPORATE DISCLOSURE STATEMENT
Respondent Duke Energy Progress, LLC, is a limited liability company organized under the laws of the
State of North Carolina. Duke Energy is a wholly
owned, indirect subsidiary of Duke Energy Corporation, which is a publicly held corporation whose shares
are traded on the New York Stock Exchange.
iii
TABLE OF CONTENTS
Page
QUESTION PRESENTED ........................................... i
CORPORATE DISCLOSURE STATEMENT ............. ii
TABLE OF AUTHORITIES ........................................ v
INTRODUCTION ........................................................ 1
STATEMENT............................................................... 3
A. Tillery Dam and Tillery Reach ......................... 3
B. Instream Flow Incremental Methodology ........ 4
C. North Carolina issues a Water Quality
Certification for the discharge from the
Tillery Development.......................................... 6
D. FERC renews Duke Energy’s license to
operate the Tillery Development. ..................... 7
E. FERC considers, and rejects, petitioners’
request for rehearing. ....................................... 8
F. The Fourth Circuit’s decision ......................... 10
REASONS TO DENY THE PETITION .................... 11
I. The petition rests on a waived argument
and mischaracterizations of the decisions
below. .................................................................... 11
A. By not raising it below, petitioners
waived the position that FERC engaged
in “black box” decisionmaking. ....................... 11
B. FERC did not base its decision on
materials or methods not in the record .......... 13
iv
C. Petitioners fail to challenge the true basis
of the decision below, and that failure
prevents the Court from resolving their
question presented. ......................................... 14
II. The question presented is narrow, factbound, non-recurring, not in conflict with
other circuits’ decisions or this Court’s
precedents, and otherwise unworthy of
review. ................................................................... 16
A. The decision below is narrow and factbound. .............................................................. 16
B. The decision below does not present a
question of national importance. .................... 17
C. The decision below is not the subject of a
conflict with the decisions of other circuits
or this Court. ................................................... 20
III.The Fourth Circuit’s decision is both
correct and sensible. ............................................. 21
CONCLUSION .......................................................... 23
v
TABLE OF AUTHORITIES
Page(s)
Cases
Adickes v. S.H. Kress & Co.,
398 U.S. 144 (1970) .............................................. 13
Baltimore Gas & Elec. Co. v. Nat. Res. Def.
Council, Inc.,
462 U.S. 87 (1983) .......................................... 11, 22
Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579 (1993) .............................................. 12
Delta Air Lines, Inc. v. August,
450 U.S. 346 (1981) .......................................... 2, 13
Duke Energy Progress, Inc.,
151 FERC ¶ 62,004 (Apr. 1, 2015) ............. 8, 18–19
Encinco Motorcars, LLC v. Navarro,
136 S. Ct. 2117 (2016) .......................................... 21
Hughes River Watershed Conservancy v.
Johnson,
165 F.3d 283 (4th Cir. 1999) ................................ 16
Motor Vehicle Mfrs. Ass’n v. State Farm
Mut. Auto. Ins. Co.,
463 U.S. 29 (1983) ................................................ 21
Star Athletica, L.L.C. v. Varsity Brands,
Inc.,
137 S. Ct. 1002 (2017) .......................................... 15
Statutes
16 U.S.C. 803(a)(1)–(2) ................................................ 4
33 U.S.C. 1341 ............................................................. 6
vi
Other Authorities
S. Ct. R. 10 ................................................................... 2
S. Ct. R. 14.1(a) .......................................................... 15
INTRODUCTION
The petition for certiorari rests on the premise that
FERC relied on, and the Fourth Circuit blessed, “black
box” administrative decisionmaking under which the
agency’s scientific method is outside the record and the
public cannot discern the basis for its decisions. E.g.,
Pet. 5 (FERC “rel[ied] on a scientific method that is not
in the record”); Pet. 7 (the court below “allowed FERC
to determine: (1) what aspects of the licensing decision
were subject to judicial review; and (2) the extent of
that review”). That premise is doubly false.
One searches the Fourth Circuit’s unanimous unpublished opinion in vain for any suggestion that agencies may rely on evidence outside the record. The
phrases “black box” and “proprietary” appear nowhere
in that opinion, as petitioners did not argue below that
FERC relied on extra-record material. They argued
just the opposite—that FERC should have used a scientific model that would have required respondent
Duke Energy Progress, LLC (“Duke Energy”) to submit further data not in the record. Strikingly, the petition cites the opinion below only seven times, and
never for any point related to “black box” decisionmaking. Pet. 9, 12, 15, 20. That is because the court never
passed on the question presented here, let alone held
that agencies may rely on extra-record material.
Neither did FERC. Specifically, in evaluating the
effects of the project at issue on fish and other aquatic
resources, FERC did not “rel[y] on the predictions from
Duke Energy’s proprietary water-flow model” or any
other proprietary or extra-record scientific data that
were not disclosed and available to the public. Pet. 14,
5. In fact, FERC did not rely on any “analyses conducted by Duke.” App. 61a. Rather, FERC selected a
2
different scientific method. App. 60a–63a. Moreover,
the Fourth Circuit upheld that selection as a “reasonabl[e] * * * choice of technical methodology” (App. 12a),
and petitioners do not challenge that decision.
It thus turns out that petitioners’ “question presented” is not really presented at all. Rather, the petition rests on a theory not pressed below and misrepresentations of both FERC’s and the Fourth Circuit’s
rulings. That alone warrants denying review, as questions that “w[ere] not raised in the Court of Appeals”
are “not properly before [the Court].” Delta Air Lines,
Inc. v. August, 450 U.S. 346, 362 (1981). What petitioners dub a “double black box” (Pet. 27) is actually a
“double misrepresentation.” However troubling one
finds the specter of an agency decision based on nonpublic data, this case involves no such decision.
Once this becomes clear, nothing remains of the petition. Petitioners do not attempt to show a conflict
among the circuits or with this Court’s precedents.
They suggest only that the decision below will have a
notable impact on “Rockingham and the surrounding
region” (Pet. 5)—which even taken at face value does
not raise a matter of national importance. No other
stakeholder that took part in the proceedings below—
including an array of agencies, environmental and recreational groups, property owners, companies, and ordinary citizens—challenged the outcome. Not surprisingly, no amici curiae support the petition.
In sum, the petition fails to satisfy Rule 10. The
decision below is a fact-bound ruling that carefully applies settled law to FERC’s well-supported findings
and scientific judgments. That ruling breaks no new
ground, and petitioners waived the theory pressed in
the petition. Certiorari should thus be denied.
3
STATEMENT
A. Tillery Dam and Tillery Reach
Since 1958, respondent Duke Energy and its predecessors have operated two hydroelectric dams and related facilities on the Pee Dee River in North Carolina.
These facilities, licensed by FERC in 1958 as the “Yadkin Pee Dee Hydroelectric Project No. 2206,” have an
electric generating capacity of 108.6 megawatts. App.
4a. The project also includes associated recreational
sites owned by Duke Energy. App. 4a.
The petition concerns only the larger of these dams:
Tillery Dam. Tillery Dam is responsible for 84 megawatts of the project’s 108.6 megawatt capacity, and is
located upstream from the Blewett Falls Dam. App.
4a. The 19-mile stretch of river between the Tillery
Dam and Blewett Falls Lake is known as the Tillery
Reach.
Because Tillery Dam operates as a peaking facility
—generating electricity when demand is high, but not
when demand is low or moderate—water flow through
the Dam and into the Reach varies with the demand
for electricity. Water flow through the Reach also depends on releases from dams further upstream and inflows from the Uwharrie River, a tributary of the Pee
Dee River. App 29a–31a.
Although petitioners offered input on various aspects of the project’s renewed license, their petition
concerns so-called “black box” inputs underlying just
one methodology that can be used for “evaluat[ing]
how incremental changes in flow affect fish habitat in
the project reaches.” App. 60a. As explained below,
however, FERC did not use that methodology.
4
B. Instream Flow Incremental Methodology
Before issuing (or renewing) a license for a hydroelectric project, Section 10(a) of the Federal Power Act
requires FERC to develop a record on all aspects of
“beneficial public uses” related to the comprehensive
development of any affected waterway. 16 U.S.C.
803(a)(1)–(2). These beneficial public uses include
“recreation” as well as “enhancement of fish and wildlife.” Ibid.
One proxy for the effect of various potential flows
on fish and other aquatic resources is the habitat available at particular flow levels. And a common method
by which licensees provide FERC with the information
needed to assess a project’s effect on aquatic resources
is called “Instream Flow Incremental Methodology,”
which evaluates how incremental changes in flow affect habitat.
One standard scientific model that licensees and
others use to quantify fish habitat over a range of flow
levels is called the Physical Habitat Simulation System (“PHABSIM”). The U.S. Fish and Wildlife Service
developed a publicly available version of this model,
and derivative versions of the PHABSIM system are
likewise readily available. In general terms, the
PHABSIM model produces an output called Weighted
Useable Area (“WUA”)—essentially the area (in
square feet) available for habitat. In some cases, that
output is used, along with time-series data, as inputs
in either an “Index C” or “Dual Flow” analysis that provides further information on available habitat. FERC
generally uses one or more of these methodologies in
assessing the incremental effect of a project’s operations on aquatic resources through an Instream Flow
Incremental Methodology evaluation.
5
More specifically, Weighted Useable Area “is an estimate of the area of suitable habitat that is available
to a species and/or life stage per unit length of a stream
at a given flow.” App. 60a. The inputs used to create
the Weighted Useable Area output typically include
mathematical representations of cross-sections of the
river’s reach. FERC relied on WUA in reaching its decision here.
Index C “is a summary statistic from a large
amount of WUA data at the low end of the range of
habitat quality that is intended to isolate the flow conditions that limit habitat quality.” Ibid. An Index C
analysis uses WUA results, but also requires as inputs
time-series data that include the duration of each flow
level over the course of a day. FERC did not rely on
Index C outputs here.
Dual Flow is an estimate of the availability of suitable habitat for the minimum and maximum flows
over a time series. Ibid. Like Index C, Dual Flow also
requires time-series data as inputs. Thus, the primary
difference between the Weighted Useable Area output
and the Index C and Dual Flow outputs is that the latter two include a time-series input of the duration of
certain flow levels over the course of a day. FERC did
not rely on Dual Flow outputs here.
Throughout the petition, petitioners refer to a “‘proprietary’ water-flow model.” E.g., Pet. i, 5–6, 13, 14,
15, 18, 19. Because petitioners did not articulate their
“black box” decisionmaking theory below, it is not entirely clear to what petitioners refer. Indeed, although
the decisions below turned on FERC’s choice between
outputs and its reasons for that choice (e.g., App. 12a,
60a), the petition devotes no more than a footnote to
the three PHABSIM outputs (Pet. 13 n.6).
6
Petitioners’ repeated statements about a “proprietary” model may be referring to Duke Energy’s timeseries duration data, which are proprietary and can be
inputs for the Index C and Dual Flow outputs.1 As
noted, however, FERC chose to rely on the Weighted
Useable Area output, an approach that does not use
time-series duration data. App. 60a–63a. Had FERC
chosen to rely on the Index C or Dual Flow outputs, it
presumably would have asked that Duke Energy’s
time-series duration data be made part of the record.
In any event, these time-series duration data were
made available for inspection by petitioners and several other parties below who were members of an instream flow study working group. C.A. App. 652.
C. North Carolina issues a Water Quality Certification for the discharge from the Tillery Development.
Under Section 401 of the Clean Water Act, FERC
may not issue a license until the State where the project is located issues a water quality certification (or
waives certification); and any conditions in that certification must be included, without modification, in
FERC’s license. 33 U.S.C. 1341. Further, any challenges to the substantive requirements in the certification must be raised through the state administrative
and judicial process. Ibid. Accordingly, when Duke
Energy asked FERC to renew its license, it simultaneously sought a state water quality certification.
Duke Energy treats its time-series duration data as proprietary because it could be used by competitors or electricity market traders to discern strategic information about
Duke Energy’s methods for generating electricity to meet
demand.
1
7
In 2008, North Carolina’s environmental authorities issued a water quality certification for the renewed license. See App. 7a. The certification imposed
numerous conditions, including, as relevant here, minimum instream flows for aquatic resources in the Tillery Reach. See App. 28a.
Although those flows were consistent with a settlement agreement between Duke Energy and other
stakeholders, petitioners disagreed with them and
filed litigation challenging them at the state level. But
a North Carolina Administrative Law Judge upheld
the certification, as did the panel that decided petitioners’ administrative appeal. The Superior Court of
Richmond County and North Carolina Court of Appeals both affirmed. App. 7a. Petitioners did not seek
certiorari in the North Carolina Supreme Court.
When petitioners initiated their state appeal of the
water quality certification, they ceased participating
in the FERC proceedings. Only after that appeal failed
—more than four years later, in 2013—did they re-engage in those proceedings and begin filing motions to
challenge the record that FERC had created—again,
because they objected to the instream flows proposed
in the settlement agreement filed with FERC as part
of the license renewal application.
D. FERC renews Duke Energy’s license to operate the Tillery Development.
FERC’s 2015 decision to renew Duke Energy’s license was the result of a comprehensive nine-year proceeding. In reaching its decision, FERC not only consulted with numerous federal, state, and local agencies, but also considered all objections and suggestions
—as well as a record consisting of thousands of pages.
8
App. 3a; App 21a–26a.2 The many conditions that
FERC imposed on Duke Energy’s renewed license thus
grew out of its consultation with other federal and
state authorities and its consideration of comments
from numerous public and private intervenors.
Among those conditions were minimum instream
flows, i.e., a minimum amount of continuous water
flow into the Tillery Reach. See Duke Energy Progress,
Inc., 151 FERC ¶ 62,004, 64,056–64,057 (Apr. 1, 2015).
The license requires “a continuous year-round minimum flow at the Tillery Development of 330 cfs [cubic
feet per second].” Id. ¶64,056. In addition, if and when
American shad pass Blewett Falls Dam, that minimum must increase to 725 cfs for eight continuous
weeks every year during the American shad’s spawning season. Id. ¶64,057. Further, in consultation with
state and federal authorities and the City of Rockingham, Duke Energy is also required to release “1,750
acre-feet of water (about 884 cfs released over a 24hour period) annually, in addition to the 330-cfs minimum flow discussed above, from Tillery Dam to enhance recreational boating in the Tillery reach” during
peak recreation season. Id. ¶ 64,027.
No agency or intervenor—except petitioners—objected to FERC’s decision and reasoning regarding the
required minimum instream flows. App. 18a.
E. FERC considers, and rejects, petitioners’
request for rehearing.
Petitioners sought rehearing of Duke Energy’s new
license and objected to the license conditions regarding
By FERC’s decision, we refer to its ruling as amended on
rehearing—the version included in the petition appendix.
The rehearing proceedings are discussed below (at 8–9).
2
9
minimum instream flows to the Tillery Reach. App.
18a. Specifically, petitioners argued that FERC failed
to complete an instream flow study because FERC
staff relied on the “Index C” output that Duke Energy
presented in its application, but had never run the
PHABSIM model with the requisite time-series data
to recreate the Index C output. App. 61a.
As FERC explained in denying rehearing on this
point, however, “Commission staff did not use Index
C,” but “[i]nstead * * * used Weighted Useable Area,”
which “was appropriate.” Ibid. FERC also observed
that, although it did not require Duke Energy to provide the PHABSIM model, that model is publicly available and petitioners could have “readily obtained” it.
App. 63a. FERC further noted that Duke Energy disclosed its input data to allow FERC and any other
party to run the PHABSIM model and generate the
Weighted Useable Area output. Ibid. Indeed, petitioners have never disputed that both the PHABSIM
model and the inputs for the Weighted Useable Area
output were publicly available.
In response to petitioners’ argument that FERC
should have relied on the Dual Flow Analysis, FERC
explained that, based on its scientific judgment, it “selected Weighted Useable Area to assess the instream
flow study because it enabled staff to study a whole
suite of species across a range of sites” that “[t]he parties to the relicensing were interested in.” App. 62a.
FERC further explained that it chose not to rely on
Dual Flow Analysis because “[w]here, as here, the high
(i.e., peaking) flow is established, and the focus is on
the low flow, there is no reason to perform a Dual Flow
Analysis.” Ibid.
10
F. The Fourth Circuit’s decision
Petitioners sought review in the Fourth Circuit, arguing that FERC erroneously relied on an invalid Index C output and an incomplete Weighted Useable
Area output, rather than a complete Dual Flow Analysis output. According to petitioners, Index C was invalid and Dual Flow Analysis was incomplete because
Duke Energy had not filed the time-series data that
could be used to produce additional Dual Flow Analysis outputs. Additionally, petitioners asserted that
Weighted Usable Area was a poor measure of the development’s effect on aquatic resources. Petitioners
did not assert, however, that any data underlying the
Weighted Use Area output—the methodology actually
used by FERC—were missing from the record.
In a careful, unpublished opinion authored by
Judge Niemeyer, the Fourth Circuit unanimously denied the petition for review. App. 11a–12a. As to
whether FERC completed the record concerning the
impacts of project operations on aquatic resources, the
court explained that this issue ultimately concerned “a
disagreement with the output FERC used in quantifying habitats over variable river flow”—specifically,
FERC chose Weighted Usable Area, but petitioners
preferred Dual Flow Analysis. App. 11a. As the court
recognized, however, FERC “reasonably explained its
choice of technical methodology” and petitioners “provide[d] no basis * * * to conclude that FERC’s choice
was not reasonable”—only “an expression of disagreement.” App. 12a. The court went on to explain that
FERC’s choice “represents a sort of ‘scientific determination’ to which ‘a reviewing court must generally be
at its most deferential’”—that this was “exactly the
sort of technical issue for which deference is designed.”
11
App. 15a, 12a (citing Baltimore Gas & Elec. Co. v. Nat.
Res. Def. Council, Inc., 462 U.S. 87, 103 (1983)).
REASONS TO DENY THE PETITION
I. The petition rests on a waived argument and
mischaracterizations of the decisions below.
The petition rests on the notion that FERC engaged
in, and the court below blessed, “black box” administrative decisionmaking. That is false, and the Fourth
Circuit’s unanimous unpublished ruling did not adopt
the legal principle that petitioners criticize. In fact,
that principle is not even discussed in the decision below, and for good reason: FERC fully disclosed the
grounds for the license renewal—never relying on materials or methods outside the record—and petitioners
never suggested otherwise below. Indeed, petitioners
waived the argument pressed in the petition.
Certiorari should be denied.
A. By not raising it below, petitioners waived
the position that FERC engaged in “black
box” decisionmaking.
No less than a dozen times, petitioners assert that
the decision below sanctioned “black box” agency decisionmaking. Pet. i, 5, 7, 16, 18, 19, 20, 21, 24, 25, 27,
28. By their lights, the ruling below permits “agencies
[to] decide cases based on scientific methods that are
not placed in the record or made available to the parties.” Pet. 5. In reality, however, neither the Fourth
Circuit nor FERC based its decision on materials “not
placed in the record or made available to the parties”
(ibid.)—much less adopted a rule encouraging such an
approach. FERC simply employed a scientific method
different from the one that petitioners advocated, and
12
the Fourth Circuit properly upheld FERC’s choice of
scientific methods as reasonable.
But petitioners have an even bigger problem. One
reason the opinion below never mentions the issue of
“black box” decisionmaking is that, in their briefs below, petitioners never suggested that FERC engaged
in such decisionmaking. Nor did they contend below
that “the scientific method upon which FERC relied
was absent from the record, withheld from the parties,
kept out of public view, and unverified by FERC itself”
(ibid.)—a remarkable assertion that surely would not
have escaped the Fourth Circuit’s notice.
Petitioners’ theory below was far more pedestrian.
Citing Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993), they maintained that the “inferior
scientific methods” on which FERC relied were “not reliable” for “estimat[ing] the total impact of Project operations on aquatic habitat.” Pet. C.A. Br. 36 (Dkt. 44).
Petitioners urged that “Dual Flow could estimate such
impact,” faulting FERC because it “did not run the
[Dual Flow] model to complete the output, direct the
licensee to file the model so as to permit other parties
to do so, or otherwise use this output as the basis for the
new license.” Ibid. (emphasis added). In essence, petitioners argued that FERC chose the wrong model—
“that FERC should have used the Dual Flow Analysis”
—and that FERC should have required Duke Energy
to submit data relevant to a model that it did not use.
App. 12a, 61a.
In fact, not only was the question presented in the
petition not pressed below, but petitioners now argue
the opposite of what they contended below: that FERC
“shield[ed] Duke Energy’s water-flow model from examination” and “denied [them] * * * the opportunity to
13
expose any flaws in the scientific method on which the
agency ultimately relied.” Pet. 19 (emphasis added).
Having told the Fourth Circuit that FERC did not “use
[Dual Flow Analysis] as the basis for the new license”
(Pet. C.A. Br. 36 (Dkt. 44)), petitioners cannot now
complain that FERC erred in “ultimately rel[ying]” on
it (Pet. 19). As this Court has often explained, where
“[a] petition for certiorari present[s] [a] question” that
“was not raised in the Court of Appeals,” it “is not
properly before [this Court].” Delta Air Lines, 450 U.S.
at 362; see Adickes v. S.H. Kress & Co., 398 U.S. 144,
147 n.2 (1970) (collecting cases holding that “[w]here
issues are neither raised before nor considered by the
Court of Appeals, this Court will not ordinarily consider them”). That rule applies with even greater force
where the petitioners argue the opposite of what they
argued below.
Petitioners’ “black box” decisionmaking theory was
not raised or analyzed below and reverses their earlier
position concerning the basis for FERC’s decision. For
that reason alone, review should be denied.
B. FERC did not base its decision on materials or methods not in the record
Quite apart from petitioners’ waiver of the question
presented, certiorari should be denied because FERC
did not rely on “proprietary” data in determining the
necessary instream flows for fish. See App. 61a. Far
from “rel[ying] on Duke Energy’s proprietary waterflow model” (Pet. 14), FERC used a scientific methodology that did not require considering any of Duke Energy’s proprietary data. Ibid. Of the various methods
for “evaluat[ing] how incremental changes in flow affect fish habitat,” Duke Energy “us[ed] Index C and
14
provided a limited Dual Flow Analysis, whereas Commission staff assessed Duke’s instream flow study using Weighted Useable Area.” App. 60a–61a. To state
the obvious, FERC did not, in declining to rely on Duke
Energy’s Index C and Dual Flow Analysis, “outsource[]
its decisionmaking to Duke Energy.” Pet. 18.
The “results” of the Weighted Useable Area analysis, as well as “the underlying assumptions and data,”
were all in the record. Pet. 14. The software used to
conduct that analysis “is generally available” and can
be “readily obtained.” App. 63a. Duke Energy disclosed the data underlying the analysis in its license
application. App. 63a. And although petitioners insist
that “neither they, nor FERC, nor anyone else could
run the model to evaluate the validity of the results”
(Pet. 14), FERC ran its own Weighted Useable Area
analysis. C.A. App. 1,330–1,340. So did petitioners,
who as part of their request for rehearing before FERC
“prepared several tables showing Maximum WUA values based on data disclosed [by] Duke.” C.A. App.
3,206 n.270 (emphasis added). Thus, FERC did not
“utilize an undisclosed scientific method” (Pet. 5)—just
one that petitioners dislike.
C. Petitioners fail to challenge the true basis
of the decision below, and that failure prevents the Court from resolving their question presented.
Petitioners’ true disagreement with the decisions
below concerns FERC’s choice of a scientific method
different from their preferred method. Whether FERC
chose a reasonable method for “evaluat[ing] how incremental changes in flow affect fish habitat in the [Tillery Reach],” however, is a narrow, fact-specific question that petitioners did not properly raise below and
15
do not raise now. App. 60a; App. 12a. That precludes
the Court from reaching their question presented.
Petitioners asserted below “that FERC should have
used the Dual Flow Analysis” and required Duke Energy to submit more data relevant to such an analysis.
App. 12a, 61a. Having correctly identified their problem with FERC’s choice, however, petitioners did no
more than “express[] [their] disagreement.” App. 12a
(“The petitioners’ argument * * * simply amounts to an
expression of disagreement; they provide no basis for
us to conclude that FERC’s choice was not reasonable.”). This mere “expression of disagreement” would
not preserve a challenge to the reasonableness of
FERC’s choice of methodology even if petitioners now
pressed such a challenge (which they do not). Ibid.
Because petitioners failed to preserve and to present to this Court a challenge to FERC’s choice, resolving their question presented could not change the outcome of this case. For petitioners to obtain their desired result—higher minimum flows into Tillery Reach
—petitioners would have needed to argue on appeal
below that FERC’s selection of Weighted Useable Area
was unreasonable and that FERC should have chosen
a different method that shows that higher minimum
flows are required. Even below, however, petitioners
did no more than “express[] [their] disagreement” on
these points, and they argue neither point now. Ibid.
As this Court “do[es] not entertain arguments that
were not raised below and that are not advanced in
this Court,” those failures are fatal to the petition.
E.g., Star Athletica, L.L.C. v. Varsity Brands, Inc., 137
S. Ct. 1002, 1009 (2017); see also S. Ct. Rule 14.1(a)
(“Only the questions set out in the petition, or fairly
included therein, will be considered by the Court.”).
16
In any case, even if petitioners’ disagreement were
preserved and presented here, it would not warrant review. FERC’s “reasonably explained * * * choice of
technical methodology” is not an issue warranting certiorari, as it is narrow, fact-bound, and not otherwise
a matter of national importance. App. 12a. For these
reasons too, certiorari should be denied.
II. The question presented is narrow, factbound, non-recurring, not in conflict with
other circuits’ decisions or this Court’s precedents, and otherwise unworthy of review.
Once it becomes clear what the record shows and
what FERC and the Fourth Circuit actually decided,
nothing remains of the petition. The question actually
presented is narrow, fact-bound, not the subject of a
circuit split or conflict with this Court’s precedents,
and not otherwise important—a point confirmed both
by the fact that the unanimous decision below was unpublished and by the absence of any amici curiae.
A. The decision below is narrow and factbound.
To begin with, the Fourth Circuit’s unpublished decision did not purport to lay down a new rule of law, to
chart new territory, or to limit prior precedent. The
court’s approval of the scientific methodology selected
by FERC turned not on the law—which was not in dispute—but on facts specific to the Tillery Reach.
The court began from the uncontested premise that
“agencies are entitled to select their own methodology
as long as that methodology is reasonable.” App. 12a
(quoting Hughes River Watershed Conservancy v.
Johnson, 165 F.3d 283, 289 (4th Cir. 1999)). Applying
that rule, the court correctly held that FERC made a
17
reasonable “choice of technical methodology” in light of
the facts and arguments before it. App. 12a.
Specifically, FERC selected Weighted Useable Area
to assess the instream flow “because it enabled staff to
study a whole suite of species across a range of sites.”
App. 12a (quoting App. 62a). Weighted Useable Area
analysis allowed FERC to target the species and sites
that “[t]he parties to the relicensing were interested
in.” App. 62a. FERC chose not to rely on Dual Flow
Analysis because “that analysis is best used ‘to assess
habitat availability where there is a potential trade off
between the high- and low-flow limiting factors,’ and
thus, was not well suited to this context, where high
flow was not at issue.” App. 12a (quoting App. 62a).
As FERC understood, where, as here, “the focus is on
the [minimum] flow, there is no reason to perform a
Dual Flow Analysis.” App. 62a–63a.
These context-specific factual considerations present no question of national importance. And they certainly do not implicate petitioners’ grand theories of
“black box” decisionmaking or the “separation of powers”—the central themes of the petition.
B. The decision below does not present a
question of national importance.
Petitioners’ only suggestion that the ruling has notable impact is limited to a 19-mile stretch of river and
“the neighboring region’s economy and natural resources.” Pet. 3. But this Court reviews only matters
of national, not regional, importance. And in any case,
petitioners exaggerate the significance of the decision
below.
1. In attempting to inflate the importance of their
case, petitioners overstate the environmental and economic effects of the project at issue. The petition says
18
the instream flow levels set by FERC will “all but eliminate[] the economic opportunities that the river would
bring to the region.” Pet. 4; see also Pet. 5 (complaining of “substantial harm to Rockingham and the surrounding region”); Pet. 4 (“This case involves * * * the
future of the neighboring region’s economy); Pet. 5
(“FERC’s decision will unnecessarily constrain the region’s economic opportunities”); Pet. 8 (“Rockingham
seeks to rebuild its economy”). Indeed, the effects of
instream flow levels on “recreation” such as canoeing
and swimming were petitioners’ sole “reasons for intervening.” Pet. 10. And they transparently urged the
court below to require FERC “to provide the ‘best or
most extreme’ recreation development.” App. 13a.
Contrary to petitioners’ rosy predictions, however,
FERC made an unchallenged factual finding that demand for recreational use of the Tillery Reach is “low.”
App. 73a–74a. And in any event, FERC’s choice of one
instream methodology over another to assess fish habitat had no impact one way or another on FERC’s analysis of the Reach’s suitability for recreational use.
Relying on its expertise, FERC selected scientific
models to evaluate the effect of instream flows on habitat availability for aquatic resources. These complex
models are “tools for analyzing and summarizing data
on the flow-habitat relationship,” not recreational use
such as kayaking. 151 FERC ¶ 64,026. They are also
necessary for calculating and comparing the available
habitat for various species at various life stages and
flow levels. App. 62a n.68 (noting that FERC studied
“29 species/life stages/habitat types,” including “a
range of anadromous and resident fish species * * * ,
their specific life stages * * * , general and specific habitat types that could apply to several species * * * , and
juvenile aquatic insects and other invertebrates”).
19
FERC’s models are not necessary to study the effect
of flow height on recreation. The issue there is simply
whether the particular instream flow yields a flow
height that permits boating. The typical method for
assessing that is measuring the water surface elevation at different flows for selected sites along the river
considered to be potential navigation hazards. No
“proprietary” data or methods are needed. Pet. 6.
Petitioners’ emphasis on recreational uses of the
Tillery Reach is misleading for another reason: Duke
Energy’s state water quality certification already both
required Duke Energy to release additional flow during peak recreation season and placed an upper limit
on such recreational flow releases. App. 69a. As FERC
explained in its rehearing decision: “Because the recreational flows are a condition of the water quality certification, [FERC] could not modify those flows even if
[it] found, which [it] d[id] not, that higher recreation
flows would be in the public interest.” App. 71a. Thus,
even if FERC had chosen petitioners’ preferred scientific method for assessing instream flows for fish habitat, that choice would not have changed FERC’s evaluation of recreational uses of the Tillery Reach.
2. The only remaining impact of the decision below
is its effect on aquatic resources in the 19-mile Tillery
Reach. As noted, even if this effect were substantial,
it would not amount to a national concern that justified this Court’s review. But the effect is minimal.
As FERC found, the instream flow levels that petitioners recommended would yield only an “incremental increase in available habitat” of “about 25 percent.”
151 FERC ¶ 64,026. FERC staff further concluded
that “there does not appear to be a large difference in
the percentage of the maximum habitat that would be
20
available” under petitioners’ proposed flows as compared with Duke Energy’s. C.A. App. 1,332. Indeed,
the minimum flow requirements imposed by the renewed license already reflect what FERC described as
“a substantial improvement in aquatic habitat over
the existing minimum flow” under Duke Energy’s earlier license. C.A. App. 1,332. Not surprisingly, petitioners are the only party—among a diverse array of
environmental groups, property owners, for-profit corporations, government agencies, members of the public, and even other recreational associations—that
challenged the outcome. And no amici curiae support
the petition.
C. The decision below is not the subject of a
conflict with the decisions of other circuits
or this Court.
Even if the decision below had blessed “black box”
administrative decisionmaking, petitioners make no
attempt to show that the decision conflicts with the
precedents of other circuits or this Court.
Instead, petitioners invite the Court “to cement”
the principle that the basis for “an agency’s decision
* * * must be placed in the record.” Pet. 20. But as we
have shown (at 13–14), FERC did not rely on any extra-record evidence, and petitioners’ own cases (Pet.
20–26) confirm that this “fundamental principle” is already settled. Petitioners devote several pages of their
petition to citations of decisions admonishing agencies
for frustrating public commentary. Pet. 21–26. Not
surprisingly, petitioners can point to no case in which
any court—including the court below—has actually
blessed “black box” agency decisionmaking or reliance
on extra-record evidence. That too confirms that certiorari should be denied.
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III. The Fourth Circuit’s decision is both correct
and sensible.
Finally, review is unwarranted because the decision below was correct—both under this Court’s precedent and as a matter of common sense.
Petitioners complain that the Fourth Circuit’s decision signals a break from this Court’s requirement
that an “agency must show its work,” so the reviewing
court can identify “‘a rational connection between the
facts found and the choice made.’” Pet. 17 (quoting Encinco Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125
(2016)). Not so. As explained above, the decision below satisfied that requirement by determining—based
on evidence in the record—that FERC’s choice of methodologies was both “reasonable” and “reasonably explained.” App. 12a. No decision of this Court mandates a contrary assessment of FERC’s choice.
Petitioners imply that the court below showed excessive deference to FERC. E.g., Pet. 20. For example,
they fault the court for observing that “these licensing
proceedings continued ‘over a period of nine years’ and
resulted in ‘a record consisting of thousands of pages’”
and for crediting “the agency’s expertise” on “a technical issue.” Pet. 20; see also Pet. 7 (complaining that
the panel’s “comments at oral argument confirm that
it felt constrained by principles of agency deference”),
20 (same).
The Fourth Circuit, however, showed exactly the
deference to FERC that this Court’s precedents require. Lower courts are “not to substitute [their] judgment for that of the agency,” and must uphold agency
decisions wherever the agency “examine[d] the relevant data and articulate[d] a satisfactory explanation
for its action.” Motor Vehicle Mfrs. Ass’n v. State Farm
22
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). That is
what the court below did here.
Similarly, “[w]hen examining this kind of scientific
determination, as opposed to simple findings of fact, a
reviewing court must generally be at its most deferential.” Baltimore Gas & Elec., 462 U.S. at 103. Applying these principles, the court below correctly concluded that FERC’s “choice of technical methodology”
was “exactly the sort of technical issue for which deference is designed,” that FERC’s choice was “reasonable” and “reasonably explained,” and that petitioners
had “provide[d] no basis for [the court] to conclude that
FERC’s choice was not reasonable.” App. 12a, 15a.
This last point in particular shows why petitioners’
complaint of excessive deference rings hollow: They
gave the court below no reason to doubt FERC’s choice.
Their arguments were mere “expression[s] of disagreement” with FERC (App. 12a), not reasons why FERC
erred. Thus, even if the law did not require courts to
defer to reasonable choices between technical methodologies—and petitioners do not advance such a view—
a court faced with a reasoned agency decision and no
counterargument has little choice but to affirm the
agency’s decision. Petitioners repeatedly assert that
the decision below raises “separation-of-powers concerns.” Pet. 8, 25, 26, 27. But if petitioners had their
way, courts would be free-ranging policy-makers with
plenary review over agency-decisionmaking—a far
greater threat to the separation of powers.
In sum, the court below faithfully applied the law.
It examined FERC’s choice, the reasons that FERC
gave for that choice, and the arguments against it, before unanimously upholding it. There is no basis to
23
suggest that the court diverged from this Court’s precedent—which further confirms that there is no need
for review.
CONCLUSION
For the foregoing reasons, the petition for certiorari
should be denied.
Respectfully submitted.
STEFFEN N. JOHNSON
Counsel of Record
JOHN A. WHITTAKER, IV
KIMBERLY OGNISTY
PAUL N. HAROLD
Winston & Strawn LLP
1700 K Street, N.W.
Washington, DC 20006
(202) 282-5000
sjohnson@winston.com
Counsel for Respondent
Duke Energy Progress, LLC
JANUARY 2018
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.