Tuesday, February 12, 2008

Amicus Brief Challenges FERC Refusal to Consider Better Use of Historic Cohoes Falls

Cohoes Falls is the state's second largest waterfalls, after Niagara, but is dry much of the time due to an obsolete dam and antiquated hydro power station. The power plant had been owned by Niagara Mohawk, and was sold to Orion Power to comply with the PSC vision of divestiture and restructuring. The project has since been sold to Reliant and then to Brascan, a Canadian company, which is now known as Brookfield Asset Management, Inc. The license for the old hydro power station at Cohoes Falls expired in 1993, and it was given annual extensions until 2007, when FERC granted a new 40 year license.

PULP has joined with Poughkeepsie - Scenic Hudson, Capital District Regional Planning Commission, Village of Green Island, Town of Green Island, City of Watervliet, Town of Waterford, New York Bicycling Coalition, Inc., New York Association of Public Power, and Friends of the Falls, in filing an amicus brief requesting the United States Court of Appeals for the Second Circuit to overturn a Federal Energy Regulatory Commission (FERC) decision to relicense the School Street hydro project at Cohoes Falls. See Hydropower Plan Generates Friends: Scenic Hudson Backs Proposed Plant Upstream from Cohoes Falls.

Enhancements to the Cohoes Falls Project were proposed by Green Island Power Authority, and Adirondack Hydro Development Corporation, in an offer of proof to FERC that a better project is possible. See Plans Harness Falls' Power. These enhancements would
  • double the clean renewable hydro power produced by the Mohawk River
  • restore the flow of water over Cohoes Falls year round
  • remove unsightly overhead transmission lines
  • all but eliminate fish kills in an improved new hydro plant
  • provide recreational access for the communities surrounding Cohoes Falls and
  • stimulate interest in Cohoes Falls, as a location of great natural beauty, historical and cultural significance, where Benjamin Franklin met with the Iroquois to learn about their system of government, elements of which inspired the U.S. Constitution and federalism.
FERC refused to consider these issues.

The main brief of Petitioners in GIPA v. FERC argues for reversal of several decisions which denied motions to intervene, including PULP's motion, all of which which culminated in FERC's final decision denying rehearing in September 2007. FERC said it was powerless to consider better solutions because the time had run out for competing license applications, and that there was no evidence in the record to justify anything but giving a license renewal to the current owner. The petitioners argue that FERC has a duty under several statutes to consider better uses by the license applicant, even if the time for another entity to file a competing application had expired before 1993.

Petitioners argue that FERC's action, after denying interventions and refusing to consider relevant evidence of a better project
rests on its improper decisions to scrub that record of any evidence that better development is possible, or that the public could receive more benefits from this stretch of the river.
The amicus brief argues that FERC failed to consider national and New York State policies on clean renewable energy and climate change, and the environmental and community benefits associated an alternative Cohoes Falls Project endorsed by the Green Island Power Authority and Adirondack Hydro Development Corporation, in violation of the Federal Power Act, the National Environmental Policy Act.

The brief also relies on the Second Circuit's historic 1965 environmental ruling in Scenic Hudson Preservation Conference v. FPC, which found that FERC's predecessor, the FPC, failed to protect the public interest in violation of the Federal Power Act by inadequately considering all the factors that were of interest to the public, namely, the beauty and historical significance of Storm King Mountain.

The petitioners and amicus ask the court to reverse the FERC decision granting a 40 year license, and to remand the case to FERC requiring the agency to consider evidence regarding better use of the natural resource.

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