Under the Clean Water Act (CWA), applicants for federal licenses to operate hydroelectric projects must obtain certifications from affected states that the projects will not adversely affect water quality. States may condition certification on requirements that licensees take steps to address water quality and other issues that will result from the operation of the projects. Under the relevant provision of the CWA, states waive certification if they fail or refuse to act on request for certification within one year of receiving them.
In this case, three California political subdivisions (two irrigation districts and a county water agency) applied to the Federal Energy Regulatory Commission (FERC) for relicensing of hydropower projects originally licensed in the 1960s. They requested the responsible California agency to issue a CWA water quality certification, which, in light of projects’ age could be expected to require numerous new conditions to ameliorate the impacts on rivers and streams. However, the projects could not be certified within one year because the three applicants had not completed the environmental studies required by California law. Faced with the choice of having the agency deny certification or withdrawing the certification requests, resubmitting them, and restarting the one-year clock, the applicants repeatedly chose the latter. Eventually, the applicants asked FERC to rule that, although they had chosen to withdraw their requests before the one-year deadline expired, the State had waived its right to certify by failing or refusing to act within one year. FERC agreed, but the Court of Appeals for the Ninth Circuit held that the administrative record showed that the State was not responsible for the delay caused by the applicants’ own conduct.
The applicants petitioned the Supreme Court for review of the Ninth Circuit’s ruling. Serving as co-counsel for a group of environmental organizations that were parties to the FERC and court proceedings, Public Citizen Litigation Group prepared the brief in opposition to the applicants’ petition for certiorari. The brief explained, among other things, that the question of waiver is a factbound issue that is not subject to any legal disagreement among the lower courts, that the Ninth Circuit decided the case correctly, and that accepting the applicants’ arguments would allow them to use their own dilatory conduct to obtain long-term licenses without the needed environmental protections that would be imposed through completion of the process.