The court said that FERC failed to properly consider the environmental impacts of relicensing Alabama Power Co.’s 961 MWCoosa River project, which includes several dams along 267 miles of the Coosa River in Alabama. The court also said the biological opinion FERC relied on was unreasoned and unsupported by substantial evidence (see legal summary here).

Specifically, the court was concerned that the US Fish and Wildlife Agency approved the relicensing though the agency assumed there was a 90 to 100% possibility that the high at-risk species, tulotoma snail, and painted rocksnail, in certain sections of the river, could go extinct.

FERC provided four pages of background information, including the following:

  • “The Coosa River Basin drainage encompasses about 10,161 square miles in Alabama, Georgia, and Tennessee. The Coosa River begins at the confluence of the Oostanaula and Etowah rivers near Rome, Georgia, and flows 267 miles in a southerly direction to its confluence with the Tallapoosa River.”
  • “The Coosa River is highly regulated, with flows controlled by nine hydropower and storage developments operated by Alabama Power and the U.S. Army Corps of Engineers (Corps). The Corps has congressionally mandated authority to determine flows for navigation on the Coosa River.”
  • “On June 10, 2012, FWS filed its Biological Opinion, which concluded that relicensing the project as proposed with staff’s additional recommended environmental measures, is not likely to jeopardize the continued existence of any of the species, nor is it likely to destroy or adversely modify any critical habitat.”

Here are excerpts from the Court’s ruling:

  • “Nevertheless, the [FERC] Commission concluded that licensing the generation project would have no substantial impact on either the River’s ecological condition or endangered species. In doing so, the Commission declined to factor in the decades of environmental damage already wrought by exploitation of the waterway for power generation and that damage’s continuing ecological effects. Because the Commission’s environmental review and a biological opinion it relied on were unreasoned and unsupported by substantial evidence, the Commission’s issuance of the license was arbitrary and capricious. 
  • Accordingly, we dismiss the first petition for review, grant the second petition for review, vacate the licensing decision, and remand for further proceedings consistent with this opinion.”

Two conclusions can be drawn from this litigation, regardless of the merits of the threat to some aquatic species: 

  1. The court’s naked bias against the use of rivers for hydroelectric projects is demonstrated by the words, “damage wrought by exploitation of the waterway.” Using this reasoning, it would be impossible to use any river for hydroelectric power.
  2. Environmental organizations routinely oppose the construction of dams for hydroelectric power, i.e., clean renewable energy, while professing that CO2 emissions from fossil fuels are an existential threat to mankind.

This opposition to hydroelectric power demonstrates the same hypocrisy as when environmental groups oppose nuclear power that produces electricity without CO2 emission. Such opposition against carbon-free capacity dwarfs, capacity-wise, support for wind and solar. How ironic, then, that the public policy program of the climate activists might be net CO2 positive. 


[1] Daniel Kaplan, “Is the Green Promise of Hydro Fading to Brown?” Energy Daily, December 7, 1992, p. 1. For more detail on hydropower and environmentalism, see Bradley, “Renewable Energy: Not Cheap, Not ‘Green’.” Cato Policy Analysis 280, August 27, 1997, pp. 13–15 (online).