Federal Power Act Limitations on FERC Dam Decommissioning Authority: Shielding Preexisting Licensees and Revisiting Trust Funds to Protect the Public Interest

摘要

When the validity of an agency interpretation is challenged and judicial scrutiny is brought to bear, a reviewing court must first determine through which lens to view the issue(s) before it. Although the Decommissioning Policy Statement is entitled to some judicial respect in light of its persuasiveness, courts and scholars alike have used the wrong standard in reaching that conclusion. Skidmore applies, not Chevron. No matter how much FERC may wish it, the Agency cannot impose millions of dollars in decommissioning costs on preexisting licensees when the licensees never agreed to take on that burden. FERC's authority as to decommissioning is limited to individuals seeking new licenses and, as a result, it cannot force current licensees to assume that responsibility. Neither can Congress, for that matter. If the Chevron standard had actually applied, the Decommissioning Policy Statement would be struck down as per se unreasonable because specific portions run into direct conflict with the unambiguous language of the Federal Power Act. Luckily, Skidmore operates here as a white knight for the Agency, allowing a court to validate that FERC does in fact possess some decommissioning authority but withholding approval of the Agency's attempt to overstep. In order to dispel any confusion as to the extent of FERC authority, Congress should amend the Federal Power Act to expressly create decommissioning authority. And, although FERC cannot pass along the costs to current licensees of hydroelectric dams, the Federal Power Act in its current form provides authority for FERC to impose these costs on future license holders. Thus, FERC should take the following two actions. First, amend its licenses to include the contractual provisions that would create licensee decommissioning-cost responsibility. Second, include a contractual provision establishing individual trust funds that would require hydropower licensees to either prepay the estimated costs of complete decommissioning or provide for a plan to charge customers and have those funds placed in a trust account.