American Rivers v. FERC (II)

201 F.3d 1186 (9th Cir. 1999) (American Rivers II)

Issue 1. Does the FPA require FERC to consider a pre-project baseline for purposes of environmental review?
Holding. FERC is not required to employ a pre-project baseline of the river’s environment.

Issue 2. Does FERC have to consider denial of license as an action alternative?
Holding. Even though FERC must analyze a reasonable range of alternatives, it is not required to prepare a lengthy evaluation of denial of license if denial is not considered a reasonable alternative for a particular proceeding. FERC may identify the no action
alternative as continuing project operation under the terms and conditions of the current license.

Issue 3. Can FERC reject or modify a section 10(j) recommendation?
Holding. Even though FERC must address each recommendation, FPA § 10(j) authorizes FERC to determine how to incorporate or reject each recommendation.

Issue 4. Can FERC reject a fishway prescription made pursuant to FPA § 18?
Holding. FERC may not modify, reject, or reclassify any § 18 prescriptions submitted by the Secretaries.