## Facts

- FERC considered licensing hydropower projects at navigation dams in the Upper Ohio River Basin and ultimately issued licenses for 16 projects.
- FERC prepared a draft environmental impact statement (EIS) covering multiple proposed sites; the Department of the Interior, states, and environmental groups submitted comments focused on dissolved oxygen (DO), fish entrainment mortality, and sport-fishing impacts.
- In the final EIS and licensing orders, FERC adopted a minimum DO condition of 6.5 mg/l, relying on an EPA report addressing aquatic-life needs in the Upper Ohio Basin.
- FERC required licensees to participate in a water-quality management group and reserved authority to order operational changes if needed to conserve or develop fish and wildlife.
- On fish entrainment, FERC relied on studies and analogous project data, concluded turbine passage mortality would be at most about 10%, and imposed monitoring and mitigation conditions with potential operational modifications.
- To address recreational fishing, FERC required on-site sport-fishing access where feasible or off-site recreational facilities to maintain opportunities affected by the projects.
- Petitioners sought judicial review, alleging NEPA deficiencies and violations of the Federal Power Act (FPA), including § 10(j) duties to consider fish-and-wildlife agency recommendations and explain departures.

## Issues

1. Whether FERC’s EIS took the NEPA-required “hard look” at impacts to dissolved oxygen, fish entrainment, and recreational sport fishing.
2. Whether FERC complied with FPA § 10(j) by properly considering fish-and-wildlife agency recommendations and adequately explaining modifications or rejections, including requests for additional studies.
3. Whether FERC’s technical determinations and mitigation conditions were supported by substantial evidence and were not arbitrary or capricious.

## Decision

- The court denied the petitions for review and affirmed FERC’s licensing orders.
- The court held that FERC satisfied NEPA by conducting a reasoned environmental analysis and responding to significant comments; NEPA did not require the most exhaustive studies sought by petitioners.
- The court held that FERC complied with FPA coordination requirements by considering agency recommendations, giving them due weight, and providing reasoned explanations for any departures.
- The court upheld FERC’s technical choices, including the 6.5 mg/l DO standard and entrainment findings, as supported by the record and within FERC’s technical discretion.

## Legal Principles

- Under NEPA, judicial review of an EIS is limited to whether the agency took a “hard look” and reasonably explained its conclusions; courts do not substitute their judgment on scientific disputes.
- Under FPA § 10(j), FERC must consider and respond to fish-and-wildlife agency recommendations and adopt them unless inconsistent with the FPA; when it departs, it must provide a reasoned explanation grounded in the record.
- Technical and predictive judgments by an expert agency are upheld if supported by substantial evidence and accompanied by a rational explanation; disagreement with the agency’s weighting of evidence is insufficient to overturn the decision.

## Conclusion

The D.C. Circuit upheld FERC’s Upper Ohio River Basin hydropower licenses, concluding that FERC’s EIS met NEPA’s hard-look requirement and that FERC satisfied FPA § 10(j) by considering resource-agency recommendations and explaining its decisions, with key technical determinations supported by the administrative record.


United States Department of the Interior v. FERC, 952 F.2d 538 (D.C. Cir. 1992)