Amicus Curiae Brief — Simpson Paper (Vermont) Co. v. Department of Environmental Conservation

SIMPSON PAPER (VERMONT) COMPANY,

DEPARTMENT OF ENVIRONMENTAL

CONSERVATION and SIERRA CLUB

On Petition for a Writ of Certiorari to the

Supreme Court of the State of Vermont

BRIEF OF AMICI CURIAE

THE AMERICAN FOREST AND PAPER ASSOCIATION

AND UNITED PAPER WORKERS INTERNATIONAL

UNION, AFL-CIO, CLC IN SUPPORT OF PETITIONER

LYNN AGEE

UNITED PAPER WORKERS

INTERNATIONAL UNION,

AFL-CIO, CLC

P.O. Box 1475

Nashville, Tennessee 37202

(615) 934-8590

IN THE i

Supreme Court of the United States

OCTOBER TERM, 1992

Petitioner

v.

ROBERT F’. SHAPIRO

(Counsel of Record)

ALISA L. STRATTON

CHADBOURNE & PARKE

1101 Vermont Avenue, N.W.

Washington, D.C. 20005

(202) 289-3000

Attorneys for The American

Forest and Paper Association

WILSON - Eras PrinTiING Co., Inc.

- 789-0096 - WASHINGTON, D.C. 20001

selmi

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tie ie ed

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FETE i crttenspencsanieonbisebiceanioonie

pS nee er rere ee GL Rise OR yet! Mer vere o oe Ee

I.

II.

AMICI CURIAE SEEK THIS COURT'S DE-

TERMINATION OF THE LIMITED SCOPE

OF A STATE’S AUTHORITY UNDER § 401

OF THE CWA TO PREVENT ADVERSE EF-

FECTS TO THE PAPER INDUSTRY ...............

UNDER THE FPA, CONGRESS VESTED IN

FERC BROAD AUTHORITY TO COMPRE-

HENSIVELY EVALUATE AND BALANCE

THE MANY ASPECTS OF THE PUBLIC

INTEREST AFFECTED BY HYDROELEC-

TRIC PROJECTS ......

A. Within Its Broad Jurisdiction, FERC Was

Granted The Exclusive Authority To Con-

sider And Protect The Aesthetics And Rec-

reational ret © Of A Hydroelectric cnnd

B. FERC Exercises Its Jurisdiction Over

Aesthetics And Recreation By Imposing Con-

ditions Which Supersede Any Imposed By

Te HG once detinan

C. FERC’s Exercise Of its Statutorily Mandated

Authority To Balance Various Power And

Non-Power Values, Including Aesthetics

And Recreation, Precludes States From

Doing So In The § 401 Water Quality Cer-

tificate

I eescnistreecersansciensntsitghtniepeciilpsbisaicenibiaitantaas

ii

TABLE OF AUTHORITIES

CASES Page

California v. FERC, 495 U.S. 490, reh’g denied,

DIO CS, DOG CIID aceite teed 8, 5, 7, 12, 18

First Iowa Hydro-Elec. Coop. v. FPC, 328 US.

a ne 2, 8, 7, 11, 12

Keating v. FERC, 927 F.2d 616 (D.C. Cir. 1991).. 3

New England Power Co. v. New Hampshire, 455

U.S. 381 (1982) 7,12

Niagara Mohawk Power Corp. v. New York State

Dep’t of Envtl. Conservation, 19938 N.Y. App.

Div. Lexis 65, 1998 WL 2586 (N.Y. App. Div.

1993) 8

Pacific Gas & Elec. Co. v. State Energy Resources

Conservation & Dev. Comm., 461 U.S. 190

(1983) 7,12

In re Power Auth. v. Williams, 60 N.Y.2d 315,

457 N.E.2d 726 (1983) 4

Roosevelt Campobello Int’l Park Comm’n v. EPA,

684 F.2d 1041 (1st Cir. 1982) 8

Summit Hydropower v. Commissioner of Envitl.

Protection, 1992 Conn. Super. LEXIS 2177,

1992 WL 175241 (Conn. Sup. 1992) ..................... 8,4

United States v. Marathon Dev. Corp., 867 F.2d

96 (1st Cir. 1989).............. 3

ADMINISTRATIVE DECISIONS

Appomattox River Water Auth., 58 FERC § 62,115

CU co 8 Se 10, 11

Central Maine Power Co., 52 FERC J] 61,033

(1990). 4,11

French Paper Co., 54 FERC {| 62,184 (2 4 Pe an, 7

Granite County, Montana, Montana Power Co. and

Montana Power Co. & Granite County, Montana,

59 FERC § 62,183 (1992) 9,10, 11

International Paper Co., 51 FERC {J 62,330

(1990) 7

Joseph M. Keating, 60 FERC { 61,016 (1992) ......9, 10, 11

Long Lake Energy Corp., 58 FERC { 62,041

(1992)... . 10,11

Midtec Paper Corp., 56 FERC ] 62,226 (1991)... 7

Le Pe he EES SOE ae eee tee

Sy . Z af %

Pe rege eS © Sars ee ee Om

TABLE OF AUTHORITIES—Continued

Page

Moon Lake Elec. Ass’n, 61 FERC { 62,080 (1992).. 9, 10,

11

(1992) i aassalb dc tonadl Sab calnsebilm deinen <ebulbcvenshaediees- 10, 11

(SURAT YSEE Ha) ee ani pre 10

Northern Hydro Consultants, Inc., C&A Wall-

coverings, Inc., 58 FERC {| 61,347 (1992) as a 9,10, 11

Pacific Gas and Elec. Co., 60 FERC { 62,256

pS) ASE SE et iepicee bry ges ote taee oe) aan ans eee wee 9,11

Summit Hydropower, 61 FERC {| 61,010 (1992)... 9

Summit Hydropower, The Dayville Corp., 59

ae RE gaa bs neo ieee 9,11

Summit Hydropower, 58 FERC { 62,169 (1992) ..9, 10, 11

Town of Summersville, 60 FERC {| 61,291 (1992)... 4, 11

STATUTES

Federal Power Act, 16 U.S.C. §§ 797(e), 803 (a)

(1982 ed.)

Ee DB FoR Oe ane 8

GB SET Qa Fok S| | | Reha ee 8

Federal Power Act, 16 U.S.C. §§ 791-828 (1988)

Ree Se oe 3, 8

§ 10(a) (1), 16 U.S.C. § 803 (a) (1) -................... 3,8

§ 10(a) (3), 16 U.S.C. § 803(a) (3)... 8

ERI BE I hook cictepencinveenetenseqeoincceccceceses 5

Clean Water Act (“CWA”), 33 U.S.C. § 1251-2623

(1988)

IB ince snnancnses rnsnsvernosansentose- 3

NI RII 5. sncnceecercensecsenverecesoeseses 8

| SSE 4

I ooo cnn eo eveceveeeapenvescece 3

(FT ah | SEES eee een 8

ND ON os ccna ccicincescesnenosanss passim

§ 401 (a) (1), 88 U.S.C. § 1841 (a) (1) .............. 2

§ 401 (d) , $88 U.S.C. § 1841 (d)................ 8,4

REGULATIONS

eli ee i a ALE Se Bia te hs ee a Ne

I I I AI oon ecensveccecenecseneensesesenevees 9

18 C.F.R. § 880.3 (c) (1)... i 9

i. hie 7

a RS YS ARE Ra ieee ees a eae ee »

iv

TABLE OF AUTHORITIES—Continued

S

aan q ok © CO O 3

gah 8 RS ey Risa SS aR ST ea ET eae owe ee

I caieunaceiodilal ice

i ies = | |. 5 | SRC eNEEeE

ee a connuileiounbtunienin dlemneaicbak

Pott + 6S & (SRR SNemmecre ss mene ;

A a scscdierlatebempselgeblibleiel

40 C.F.R. § 181.6

40 C.F.R. § 181.10........ REET EN GED Br era oe

Qc ie REE, coi ccetdinlenencicetonints

Vermont Water Quality Standards VWQS Section

SA OSL...

MISCELLANEOUS

Federal Energy Regulatory Commission, Hydro-

electric Project Relicensing Handbook (April

ROOD sintinenscninins 6

Joint Explanatory Statement of the Committee

of Conference, H.R. Rep. No. 984, 99th Cong.,

§. SO _ SRR 8

National Environmental Policy Act of 1969, Pub.

L. No. 91-190, 83 Stat. 852 a ES 9

|

RP en OP RT PA Lee I TRS ee PT Ie

PES TCA OPEL OR

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

No. 92-1012

SIMPSON PAPER (VERMONT) COMPANY,

id Petitioner

DEPARTMENT OF ENVIRONMENTAL

CONSERVATION and SIERRA CLUB

On Petition for a Writ of Certiorari to the

Supreme Court of the State of Vermont

BRIEF OF AMICI CURIAE

THE AMERICAN FOREST AND PAPER ASSOCIATION

AND UNITED PAPER WORKERS INTERNATIONAL

UNION, AFL-CIO, CLC IN SUPPORT OF PETITIONER

INTEREST OF AMICI CURIAE

The American Forest and Paper Association (“AFPA”)

and United Paper Workers International Union, AFL-

CIO, CLC (“UPIU”) submit this brief in support of the

Petitioner Simpson Paper (Vermont) Company.’

AFPA is an association of the pulp, paper, paperboard

and forest products industry which, as a group, is the

third largest industrial purchaser of electricity from

electric utilities in the United States, and is one of the

Nation’s leaders in the development and use of hydro-

1The parties have consented to the filing of this brief. Their

letters of consent are being filed with the Clerk of the Court.

PF RFE ay Ee ee ty eee a Te ae ee Se ee oe ee AS eA Se ay Bae, Pee ey eee me

2

electric power. The involvement of AFPA members as

owners and operators of hydroelectric power under the

Federal Power Act (“FPA”) demonstrates AFPA’s sub-

stantial interest in this proceeding.

UPIU is an international labor organization of paper-

workers with members at paper mills, paper products

planus, and other related industries throughout the

United States and Canada. UPIU has over 225,000 mem-

bers. UPIU’s members are employed in numerous paper

mills dependent on hydropower, and have a substantial

interest in this case because of its impacts on the eco-

nomics of paper production.

STATEMENT

Amici curiae adopt by reference the Statements of

Statutory and Regulatory Background, The Gilman Hy-

droelectric Project, and Proceedings Below set forth in

the Brief for the Petitioner Simpson Paper (Vermont)

Company (“Simpson”) with this Court.

The Court is asked to resolve an issue substantially

similar to an issue which it faced in Iowa forty years

earlier: whether Congress intended to allow states to

regulate through permit requirements, such as the § 401

water quality certificate,? the very requirements that

Congress has placed within the discretion of the Federal

Energy Regulatory Commission (“FERC” or the “Com-

mission”) under the FPA. First Iowa Hydro-Elec. Coop.

v. FPC, 328 U.S. 152, 165 (1946). In light of the esti-

mated 200 hydro projects, many of which are owned by

paper and forest industries, to be relicensed by FERC

between 1990 and 1993, as well as many others that must

be relicensed in this decade, it is imperative that the

2 Section 401(a)(1) of the Clean Water Act (“CWA”), 33 U.S.C.

§ 1341(a)(1) (1988), requires an applicant for a federal license or

permit for any activity which may result in a discharge into navi-

gable waters of the United States to obtain a certification (or waiver

thereof) from the state in which the discharge originates.

: <s. Sa rete ete Age eae a we pee ei

Paes MERE eee te Oe Pee. Ae Ee NED ee, Pe ree CRORE RRR ny ee Ne

Court settle the federal question of the scope of a state’s

authority under § 401 so that FERC’s mandate under the

FPA to evaluate and balance all aspects of a hydro proj-

ect prior to licensing or relicensing* is not undermined.

Section 491 was intended to authorize the states to

issue a certificate relating solely to water quality.‘

States have begun to invade FERC jurisdiction by the

imposition of conditions unrelated to water quality under

§ 401. States have had virtually unbridled discretion to

impose such conditions because there is no lower federal

court review. Although a few states have restricted the

scope of their § 401 certificates to water quality,® con-

®See FPA §§ 4(e), 10(a)(1), 16 U.S.C. §§ 797(e), 803(a) (1)

(1988).

*CWA 401(d), 33 U.S.C. 1841(d) (1988). § 401(d) of the CWA

requires that state certifications impose limitations and monitoring

requirements necessary to ensure compliance with: standards for

effluent limitations under § 301 or §302 of the CWA, 33 U.S.C.

§§ 1311, 1312; national standards of performance for the control

of discharges under § 306 of the CWA, 33 U.S.C. § 1316; or effluent

pretreatmer.: standards, including prohibiting the discharge of cer-

tain effluents, under § 307 of the CWA, 33 U.S.C. § 1317; and any

other appropriate requirement of state law set forth in such certifi-

cation. However, a “requirement of state law” that would otherwise

impinge upon FERC’s comprehensive authority over hydroelectric

licensing would not be “appropriate.” See California v. FERC, 495

U.S. 490, 506-07, reh’g denied, 110 S.Ct. 3304 (1990); First Iowa

Hydro-Elec. Coop. v. FPC, 328 U.S. 152, 164 (1946).

5 The lower federal courts have consistently held that the CWA

requires that challenges to § 401 certifications be made in the state

courts. E.g., Roosevelt Campobello Int’l Park Comm'n. v. EPA, 684

F.2d 1041, 1056 (1st Cir. 1982); Keating v. FERC, 927 F.2d 616,

622 (D.C. Cir. 1991); United States v. Marathon Dev. Corp., 867

F.2d 96, 102 (1st Cir. 1989).

6 See, e.g., Niagara Mohawk Power Corp. v. New York State Dep’t

of Envtl. Conservation, 65306, 1998 N.Y. App. Div. Lexis 65, 1993

WL 2586 (N.Y. App. Div. January 7, 1993) (denying state statutory

and regulatory requirements, including the imposition of recrea-

tional opportunities and the like, under § 401 because reserved by

the FPA for determination at the Federal level) ; Summit Hydro-

4

sistent with the intent of § 401, other states have used

the CWA § 401 process to impinge on FERC’s authority,’

thus creating a lack of uniformity in the interpretation

of § 401.

The decision below in Georgia-Pacific Corp. and Simp-

son Paper (Vermont) Co., Inc. v. Dept. of Envtl. Con-

servation and Sierra Club (Pet. App. la-4a) clearly

exemplifies state overreaching under §401. The Supreme

Court of the State of Vermont (“Vermont Supreme

Court”) upheld the Vermont Department of Environ-

mental Conservation’s (“Vermont”) imposition of a con-

tinuous spillage condition in a § 401 water quality cer-

tificate on the grounds that “aesthetics” and “recreation”

alone were appropriate grounds on which to justify the

condition under § 401 (Pet. App. 3a). Conditions based

on “aesthetics” and “recreation”, however, are within the

exclusive jurisdiction of FERC and are unrelated to the

§ 401 water quality certification process.? Consequently,

power v. Commissioner of Envtl. Protection, CV91-050-26-48, 1992

Conn. Super. LEXIS 2177, 1992 WL 175241 (Conn. Sup. July 20,

1992) (holding that a minimum spill requirement based on subjec-

tive aesthetic impact beyond the scope of the state agency’s § 401

authority); In re Power Auth. v. Williams, 60 N.Y.2d 315, 457

N.E.2d 726 (N.Y. 1983) (determining whether a hydroelectric

project would meet applicable water quality standards does not

include balancing the need for the project against adverse environ-

mental impacts under state energy law and master plan).

7 See infra note 19.

8 The Vermont Supreme Court never discussed or even indicated

that this finding related to the quality of water in the Connecticut

River.

® The Vermont Supreme Court seemingly relied on the language

of §401(d) of the CWA, 33 U.S.C. § 1341(d), which allows state

certification to be conditioned on compliance with “any other appro-

priate requirement of state law”. Although Vermont’s Water

Quality Standards (“VWQS”), approved pursuant to CWA § 303

and 40 C.F.R. Part 131, refer to aesthetics and recreation, aesthetics

is designated as a “value” to be pursued, and recreation is desig-

5

to allow Vermont to impose the spill requirement, which

would limit power production and force Simpson to pur-

chase additional commercial power,’® without any basis

in objective water quality standards, would be to sanc-

tion Vermont’s exercise of jurisdiction that is reserved

exclusively for FERC.

ARGUMENT

I. AMICI CURIAE SEEK THIS COURT’S DETERMI-

NATION OF THE LIMITED SCOPE OF A STATE’S

AUTHORITY UNDER § 401 OF THE CWA TO PRE-

VENT ADVERSE EFFECTS TO THE PAPER IN-

DUSTRY

If states are allowed to continue their abuse of § 401

authority by imposing non-water quality conditions on a

§ 401 certificate, it will “fundamentally [] restructure a

highly complex and long-enduring regulatory regime,

implicating considerable reliance interests of licensees

and other participants in the regulatory process.” Cali-

fornia v. FERC, 495 U.S. 490, 500, reh’g denied, 110

S.Ct. 3304 (1990). Under the FPA, FERC has the au-

thority to issue original licenses and license renewals,

which must be obtained when the original license term

expires. § 15, 16 U.S.C. § 808 (1988). Presently FERC

estimates that there are 320 existing licenses which are to

expire before the year 2000, 55% of which are to expire

nated as a “use” to be protected. VWQS, Section 3-03. The EPA,

which approved such standards, however, indicated that “values”

and “uses” are goals which are to be achieved through the imple-

mentation of objective, measurable water quality “criteria”. See

40 C.F.R. §§ 131.2, 131.5, 181.6, 181.10, 131.11 (1992) (See Pet.

Br., pp. 21-25).

10 Simpson, in a letter dated May 20, 1992, to the Vermont Su-

preme Court, estimates substantial economic costs at $120,000 per

year to comply with the aesthetic and recreational requirement

(Pet. Br., p. 16 n.34).

in the year 1993." A large percentage of these licenses

are held by paper companies * due to historic mill loca-

tions along waterways and the inability to obtain utility

system electricity early in this century at the mills’ re-

mote locations. Hydroelectric power provides this energy

intensive industry with an inexpensive, clean, renewable

source of energy. Curent holders of hydroelectric licenses,

particularly in the paper industry, which have filed or

will file for FERC relicensing will be profoundly affected

by the states’ exercise of jurisdiction in areas such as

recreation and aesthetics because such jurisdiction has

always resided with FERC. See Infra pp. 9-11. To sanc-

tion a state’s imposition of recreation and aesthetic con-

ditions through § 401 will not only create administrative

inefficency from the duplicative and possibly conflicting

efforts of individual states and FERC, but licensees’ ex-

pectations as to anticipated recreation and aesthetic re-

quirements for purposes of relicensing will be frustrated.

Moreover, if states are allowed to impose costly condi-

tions unrelated to water quality, there will be far-

reaching environmental and economic effects on the paper

industry. Because many in the paper industry are dis-

proportionately dependent on hydropower, states requir-

ing onerous conditions under the guise of § 401 may re-

duce power available from existing projects, force hydro-

power plant shutdowns by denying certification, force

shutdowns for economic reasons, or prevent proposed

projects from being built. In some the elimination or re-

duction in the use of hydroelectric power by the paper

industry will result in: a loss of an inexpensive, clean,

renewable energy source only to be replaced by fossil

fuel, which contributes to air and water pollution; * an

11 Federal Energy Regulatory Commission, Hydroelectric Project

Relicensing Handbook 1 (April 1990).

12 Federal Energy Regulatory Commission, supra Note 11, §§ 6-9.

13In many instances, the mills may not be allowed, under their

state air or water permits, to increase the use of fossil fuel to

7

increase in electric rates and financial hardship to rate-

payers because they will have to purchase replacement

power to serve the manufacturing plants; and a loss of

benefits related to specific projects such as a tax base, job

growth, business income, and environmental and recrea-

tional benefits.*

IL UNDER THE FPA, CONGRESS VESTED IN FERC

BROAD AUTHORITY TO COMPREHENSIVELY

EVALUATE AND BALANCE THE MANY ASPECTS

OF THE PUBLIC INTEREST AFFECTED BY HY-

DROELECTRIC PROJECTS

A. Within Its Broad Jurisdiction, FERC Was Granted

The Exclusive Authority To Consider And Protect

The Aesthetics And Recreational Qualities Of A

Hydroelectric Project

This Court has stated on several occassions that FERC

has broad planning authority in the development and li-

censing of hydroelectric power under the FPA. See Cali-

fornia v. FERC, 495 U.S. 490, 499, reh’g denied, 110 S.Ct.

3304 (1990); First Iowa Hydro-Elec. Coop. v. FPC, 828

U.S. 152, 164 (1946); Pacific Gas & Eiec. Co. v. State

Energy Resources Conservation & Dev. Comm., 461 U.S.

190, 223 n.34 (1983); New England Power Co. v. New

Hampshire, 455 U.S. 331, 338 n.6 (1982). Moreover, the

Court has made clear that FERC has exclusive authority

under the FPA to comprehensively evaluate and balance

the many aspects of the public interest affected by hydro-

electric projects. 495 U.S. at 499-500; 328 U.S. at 168.

replace the loss of hydroelectric power thus forcing the mill to

purchase very high cost electricity.

4 In issuing licenses for hydroelectric projects, FERC assesses

alternatives to the proposed projects. This includes examining the

detrimental effects to the community in the event the project is not

licensed as proposed. See, e.g., Northern Hydro Consultants, Inc.,

C&A Wallcoverings, Inc., 58 FERC { 61,347 (1992) ; Midtee Paper

Corp., 56 FERC {62,226 (1991); French Paper Co., 54 FERC

| 62,134 (1991) ; International Paper Co., 51 FERC { 62,330 (1990).

Section 4(e) of the FPA empowers FERC to issue li-

censes for projects “necessary or convenient . .. for the

development, transmission, and utilization of power

across, along, from, or in any of the streams .. . over

which Congress has jurisdiction.” 16 U.S.C. § 797(e)

(1982 ed.). Section 10(a) of the FPA also authorizes

FERC to issue licenses subject to conditions that FERC

deems best suited for power development and other public

uses of the waters. 16 U.S.C. § 803(a) (1982 ed.). Con-

gress’ subsequent amendments to the above provisions

explicitly state that FERC is to consider a project’s effect

on and adequate protection, mitigation and enhancement

of beneficial public uses, including recreation opportuni-

ties, as well as “power and development purposes.” 16

U.S.C. §§ 797(e), 803(a) (1) (1988). These 1986 amend-

ments to the FPA, which require FERC to consider,

inter alia, recreational opportunities and environmental

quality as part of the licensing process, indicate that Con-

gress intended such matters to remain within the Federal

domain as factors to be balanced against other federal

concerns, such as the power and development purposes of

the proposed facility for which a license is sought. As

Congress indicated in its Conference Report, “[i]f non-

power values cannot be adequately protected, FERC

should exercise its authority to restrict or, particularly

in the case of originai licenses, even deny a license on a

waterway.” Joint Explanatory Statement of the Commit-

tee of Conference, H.R. Rep. No. 934, 99th Cong., 2d

Sess. 22 (1986) (emphasis added). It is also instruc-

tive that Congress has directed FERC to consider any

comprehensive plan prepared by a state, and FERC must

solicit and entertain recommendations of state agencies

regarding recreation, among other concerns. § 10(a) (3),

16 U.S.C. § 808(a)(8) (1988). Indeed, a consultation

procedure insures that states will have an opportunity to

have input on the panoply of non-power issues. 18 C.F.R.

§ 4.38 (1982). This is a further indication that environ-

mental and conservation factors, including those relating

=

‘9g

to aesthetics and recreation, of concern to a state are to

be weighed at the Federal level.”

B. FERC Exercises Its Jurisdiction Over Aesthetics

And Recreation By Imposing Conditions Which

Supersede Any Imposed By The States

As mandated by the EPA, FERC takes very seriously its

exclusive jurisdiction to balance competing interests, includ-

ing recreation, aesthetics, and other non-developmental

values equaliy with power and other developmentai values

in determining whether and under what conditions a

license should be issued. With respect to aesthetics and

recreation, FERC independently examines any adverse

effects of the project on aesthetic and recreational quali-

ties of the project area and regularly imposes conditions

in the license to mitigate such adverse effects, if any.”

“In addition, under its regulations implementing the National

Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat. 852

(42 U.S.C. §§ 4821-4347 (1988)), FERC assesses potential impacts

on water quality, fish, wildlife and botanical resources, historic and

archeological resources, recreational resources, land management,

and aesthetics. 18 C.F.R. §§ 380.1-380.14 (1982). Information

FERC must evaluate is set forth in FERC’s regulations establish-

ing requirements for license applications. 18 C.F.R. Parts 4, 16.

See 18 C.F.R. § 380.3(c) (1).

1 See, e.g., Summit Hydropower, 61 FERC { 61,010 (1992)

(Rescinding a project license after taking into account all the cir-

cumstances of the case, including the various possible forms of

mitigation and their effects on project economics, on the grounds

that the unique recreational, aesthetic, and historical features of

the site were of greater public benefit than the use of the site for

water-power development).

1 See, e.g., Moon Lake Elec. Ass’n, 61 FERC { 62,030 (1992) ;

Pacific Gas and Elec. Co., 60 FERC {| 62,256 (1992); Joseph M.

Keating, 60 FERC {61,016 (1992); Summit Hydropower, The

Dayville Corp., 59 FERC {| 62,351 (1992) ; Granite County, Montana,

Montana Power Co. and Montana Power Co. & Granite County,

Montana, 59 FERC {| 62,188 (1992); Northern Hydro Consultants,

Inc., C&A Wallcoverings, Inc., 58 FERC { 61,347 (1992) ; Summit

10

Such imposition of aesthetic and recreational licensing

conditions are the result of the Commission staff’s com-

prehensive review in an environmental assessment of the

project. Although state consultation is a part of the

federal process, FERC ultimately retains control over the

imposition of aesthetic and recreational conditions by

reserving the right to approve and require changes to the

project plan."* FERC has clearly indicated that it is

FERC’s conditions relating to aesthetics and recreation,

not those proposed by the state, that govern. See, e.g.,

Niagara Mohawk Power Corp., 61 FERC {] 62,170 (1992)

(noting the state of New York’s request that any license

issued for the project include a condition that requires

the licensee to prepare a recreation plan and also coop-

erate with the state agency, FERC found that the recrea-

tional opportunities provided at the project met current

demands; FERC ordered the licensee to consult with the

appropriate agencies and prepare a recreation plan for

the project, subject to Commission approval and modifi-

cation, if and only if, a current ban on fishing down-

stream of the project was lifted which would result in a

sharp increase in recreational use). In recent orders,

FERC has recognized that states have begun to interfere

with its jurisdiction to comprehensively evaluate projects

by imposing conditions which are completely unrelated

to the maintenance or improvement of water quality in

their state certificates. FERC has indicated that condi-

tions relating to recreation and aesthetics, inter alia,

Hydropower, 58 FERC { 62,169 (1992); Niagara Mohawk Power

Corp., 58 FERC { 62,114 (1992); Appomattox River Water Auth.,

58 FERC { 62,115 (1992); Long Lake Energy Corp., 58 FERC

| 62,041 (1992).

18 See, e.g., Moon Lake Elec. Ass’n, 61 FERC at 63,048; Joseph

M. Keating, 60 FERC at 61,072; Granite County, Montana, Montana

Power Co. and Montana Power Co. & Granite County, Montana, 59

FERC at 68,375; Northern Hydro Consultants, Inc., CA Wallcov-

erings, Inc., 58 FERC at 62,138-39.

11

are beyond the scope of § 401 and pose actual or potential

conflicts with the Commission’s license.”

FERC also exercises continuing jurisdiction over

aesthetics and recreation. FERC inserts an article in

every license that in the event the licensee conveys fee

title to, easements or rights-of-way across, or leases of

project lands for specific, pre-approved purposes set forth

in the license, the Commission “reserves the right to

require the licensee to take reasonable remedial action

to correct any violation of the terms and conditions of

the article, for the protection and enhancement of the

project’s scenic [and] recreational . . . values”.

C. FERC’s Exercise Of Its Statutorily Mandated Au-

thority To Balance Various Power And \Non-Power

Values, Including Aesthetics And Recreation, Pre-

cludes States From Doing So In The § 401 Water

Quality Certificate

To give effect to Vermont’s aesthetic and recreational

conditions unrelated to water quality would interfere

with Congressional intent to reside with the Commission

the exclusive authority to balance the competing consider-

ations affecting the public interest in hydroelectric licens-

ing. As the Court stated in First Iowa, which involved

a state’s attempt to impose a similarily broad state per-

mitting requirement on a hydroelectric project under the

12Town of Summersville, 60 FERC 61,291, at 61,990 (1992)

(State of West Virginia requiring licensee under the water quality

certification to construct or provide a substantial number of recrea-

tion facilities; such as access roads and paths, low water stepping

stone bridges, fish attraction structures, a boat launching facility,

a residence and storage building, and to provide funds for fish and

wildlife management programs) rehearing granted for purpose of

further consideration ; Central Maine Power Co., 52 FERC { 61,083,

at 61,172 (1990) (State of Maine requiring in the water quality

certificate that a schedule for the recreational facilities plan among

other project operations be subject to state approval).

2 See cases cited in note 17, supra, as examples.

Aiea aN CSS Neat a Se SMD Noa i Ne aR a Th Ri co tun (ona tt la i hs le a

12

jurisdiction of the FPC, to require the hydro applicant

to secure a state permit would ultimately “vest in states

a veto power over federal projects” that could “destroy

the effectiveness of the Federal Act” and “subordinate to

the control of the State the ‘comprehensive’ planning”

which has been given to FERC. First Iowa Hydro-Elec.

Coop. v. FPC, 328 U.S. 152, 164 (1946) (“First Iowa’) .7

The Court in First Iowa rejected the possibility of con-

current jurisdiction and interpreted the FPA as mandat-

ing divided powers and “a dual system involving the

close integration of these powers rather than a dual sys-

tem of futile duplication of two authorities over the same

subject matter.” Jd. at 171; see id. at 174 (no “divided

authority over any one subject’’) ; id. at 181 (comprehen-

sive federal role “leave[s] no room or need for conflicting

state controls’) ; id. at 168 (““‘Where the Federal Govern-

ment supersedes the state government there is no sug-

gestion that the two agencies both shall have final

authority”).

Recently, this Court reaffirmed First Iowa and reiter-

ated that the federal government pre-empts states under

the FPA. California v. FERC, 495 U.S. 490, reh’g de-

nied, 110 S.Ct. 3304 (1990) (“California”). In Califor-

nia, the Court found that the FPA and the federal license

conditions established pursuant to the Act pre-empt the

states’ conditions concerning stream flow requirements

because “it would disturb and conflict with the balance

embodied in that considered federal agency determina-

tion.” Jd. at 506. According to the Court, Congress di-

rected that in the FPA § 10(a) FERC and not the states

should set the conditions of the license, including the

minimum stream flow, after considering which require-

ments would best protect wildlife and ensure that the

21 The broad and paramount federal regulatory role under the

FPA, established in First Iowa, has been consistently upheld.

Pacific Gas & Elec. Co. v. State Energy Resources Conservation &

Dev. Comm., 461 U.S. 190, 223 n.34 (1983); New England Power

Co. v. New Hampshire, 455 U.S. 331, 338-39 n.6 (1982).

13

project would be economically feasible, and thus further

power development. Jd. In light of this recent Court

pronouncement, there should be little question that Ver-

mont’s requirements unrelated to water quality interfere

and conflict with FERC’s comprehensive statutorily-

mandated authority to balance various power and non-

power values, including aesthetics and recreational con-

cerns. This issue is of national importance, as it will

greatly affect the country’s energy future.

CONCLUSION

Accordingly, amici curiae AFPA and UPIU respect-

fully request that the petition for a writ of certiorari

filed by Simpson should be granted.

Respectfully submitted,

LYNN AGEE ROBERT F’. SHAPIRO

UNITED PAPER WORKERS (Counsel of Record)

INTERNATIONAL UNION, ALISA L. STRATTON

AFL-CIO, CLC CHADBOURNE & PARKE

P.O. Box 1475 1101 Vermont Avenue, N.W.

Nashville, Tennessee 87202 Washington, D.C. 20005

(615) 984-8590 (202) 289-3000

Attorneys for The American

Forest and Paper Association

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