USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
Nos. 93-1503
94-1752
THOMAS HODGSON & SONS, INC.,
Petitioner,
v.
FEDERAL ENERGY REGULATORY COMMISSION,
Respondent.
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ON PETITIONS FOR REVIEW OF ORDERS OF
THE FEDERAL ENERGY REGULATORY COMMISSION
____________________
Before
Torruella, Chief Judge,
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Bownes, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Howard M. Moffett, with whom Orr & Reno, P.A. was on brief for
__________________ _________________
petitioner.
Joel M. Cockrell, Attorney, with whom Susan Tomasky, General
_________________ ______________
Counsel, and Jerome M. Feit, Solicitor, Federal Energy Regulatory
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Commission, were on brief for respondent.
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March 13, 1995
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BOWNES, Senior Circuit Judge. Petitioner, Thomas
BOWNES, Senior Circuit Judge.
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Hodgson and Sons, Inc. (Hodgson), appeals from a second order
by respondent, the Federal Energy Regulatory Commission
(FERC), denying Hodgson a rehearing, and from FERC's finding
that the operation of Hodgson's China Mill hydroelectric
plant (China Mill) came under the licensing jurisdiction of
Section 23(b) of the Federal Power Act (FPA)21 pursuant to
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1. Section 23(b) of the original Federal Power Act, ch.
285, 23(b), 41 Stat. 1075 (1920) has been amended and
codified under 16 U.S.C. 817(1) (1988) ("Projects not
affecting navigable waters; necessity for Federal license,
permit or right-of-way"). It provides:
Any person, association, corporation,
State, or municipality intending to
construct a dam or other project works
across, along, over, or in any stream or
part thereof, other than those defined in
this chapter as navigable waters, and
over which Congress has jurisdiction
under its authority to regulate commerce
with foreign nations and among the
several States shall before such
construction file declaration of such
intention with the Commission, whereupon
the Commission shall cause immediate
investigation of such proposed
construction to be made, and if upon
investigation it shall find that the
interests of interstate or foreign
commerce would be affected by such
proposed construction, such person,
association, corporation, State or
municipality shall not construct,
maintain, or operate such dam or other
project works until it shall have applied
for and shall have received a license
under the provisions of this chapter. If
the Commission shall not so find, and if
no public lands or reservations are
affected, permission is granted to
construct such dam or other project works
in such stream upon compliance with State
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FERC's "post-1935 construction" rule. FERC claims that for
purposes of Section 23(b), shutting down a hydroelectric
plant for twelve years after 1935 and powering it back up to
its former specifications constitutes post-1935 construction
without more. Hodgson, on the other hand, claims that
operating China Mill after maintaining it over the years
until its use became profitable, does not amount to such
construction, and that even if it does, FERC's terms in the
license were unreasonable. After reviewing the statute and
pertinent case law, we conclude that FERC erred in its
determination that it had jurisdiction over China Mill.
I. BACKGROUND
I. BACKGROUND
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The China Mill dam was constructed in the late
1860's as a grist mill in Merrimack County, New Hampshire, on
the Suncook River, which is not navigable. The site included
the dam, diversion canal, penstocks and turbine which were
installed prior to 1900. China Mill was converted from
hydromechanical to hydroelectric power before 1914. The
petitioner has owned China Mill since 1970.
Under a succession of owners, China Mill
continuously produced electricity until 1969 in its present
configuration. Power generation stopped for approximately
twelve years starting in 1969. The parties dispute the
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laws.
We shall follow the lead of the parties and refer to the
statute as "Section 23(b)."
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nature of the stoppage. Petitioner alleges that a natural
disaster initially led to the stoppage. Respondent asserts
that the natural disaster was only a log that got caught in
the project's machinery and that the true reason for the
stoppage was purely economic. During the period of non-
generation, the production of power was apparently
uneconomical for China Mill. The cost of purchasing
electricity was low, and no market existed for selling excess
power. For reasons to be stated, the exact cause of the
hiatus in the production of electricity does not affect
FERC's jurisdiction.
With the federal enactment of the Public Utility
Regulatory Policies Act (PURPA)2 and New Hampshire's passage
of the Limited Electrical Energy Producers Act (LEEPA),3
Hodgson decided that it would be again profitable to produce
power at China Mill. In 1981 Hodgson started to generate
power at China Mill and sold power to the Public Service
Company of New Hampshire. In September of 1989 FERC directed
Hodgson to show why China Mill should not be licensed under
the FPA. At first, Hodgson did not object to obtaining a
license and in fact voluntarily applied for one in March,
1990.
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2. 16 U.S.C. 824 et seq.
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3. N.H. Rev. Stat. Ann. 362-A:3.
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Hodgson's spirit of cooperation was short lived.
In July, 1992, FERC issued Hodgson a license with conditions
that included, inter alia, a minimum water flow of fifty
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cubic feet per second (cfs), an historic resource management
plan, and aesthetic improvements to the mill building.
Thomas Hodgson and Sons, Inc., 60 F.E.R.C. 62,071 (1992)
______________________________
(Hodgson I). Hodgson objected to these conditions,
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especially challenging the fifty cfs requirement which it
claims would result in an annual loss of over $68,000.
Unhappy with the terms of its license, Hodgson
withdrew its application4 and sought a rehearing contesting
both FERC's jurisdiction and the terms of the license.
Thomas Hodgson & Sons, Inc., 63 F.E.R.C. 61,068 (1993)
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(Hodgson II). Among its reasons for denying the rehearing,
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FERC stated that the generating capacity of China Mill had
been increased, but that even if the capacity remained the
same, the project had been abandoned and, therefore, the
renewed operation constituted post-1935 construction. Id. at
___
61,293. Its determinative findings were as follows:
Hodgson does not dispute that the
Suncook River, a tributary of the
Merrimack River, is a Commerce Clause
water, or that the project affects
interstate commerce due to its
interconnection with the interstate
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4. Hodgson claims it has the right to withdraw a voluntary
license application. FERC does not dispute this; so we do
not address it.
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electric grid. However, Hodgson disputes
that the development has undergone post-
1935 construction.
As noted above, the project's
generating capacity from 1934 through
1939 was 1,300 kW, but some time between
1939 and 1942 the generating capacity was
increased to 1,500 kW. The installation
after 1935 of additional generating
capacity constitutes post-1935
construction.
Even if the installed capacity of
the project were unchanged after 1935,
the project would still be required to be
licensed. Ordinary maintenance, repair,
and reconstruction activity with respect
to a project constructed before 1935 does
not constitute post-1935 construction for
purposes of Section 23(b)(1). However,
the pre-1935 construction exception
protects only operating projects. Where
a project has been abandoned, there is no
basis for a claim that the operator
retains operating rights, even if the
operator, after 1935, restores the
project to a condition identical to its
pre-abandonment status. As noted above,
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the China Mill Project was abandoned in
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the 1960s and was not operated again
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until 1981. Consequently, the renewed
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operation constituted post-1935
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construction. In light of all of the
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above, we affirm the Director's finding
that the project is required to be
licensed.
Id. (emphasis added; footnotes omitted). A second petition
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for rehearing followed.
During this time, Hodgson, asserting its right to
decline the license, petitioned this court for a stay and
review of the terms of the license. We determined that
Hodgson did not accept the license but declined to stay or
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further review the order until FERC considered Hodgson's
second petition for rehearing. Hodgson v. F.E.R.C., No. 93-
_______ ________
1503 (1st Cir. May 14, 1993) (order denying stay of license
terms).
In the second petition for rehearing, Thomas
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Hodgson & Sons, Inc., 67 F.E.R.C. 61,202 (1994) (Hodgson
_____________________ _______
III), FERC again addressed the challenge to its jurisdiction.
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We set forth FERC's pertinent findings:
Construction activity in the
maintenance and repair of existing,
continuously operating projects does not
constitute post-1935 construction within
the meaning of the FPA, so long as the
construction activity does not result in
such things as the enlargement of
generating capacity or of the physical
plant. However, construction activity
such as the construction or enlargement
of a dam or other project works,
including the enlargement of generating
capacity, constitutes post-1935
construction.
. . . .
. . . [T]he installation of a new
generator at the China Mill Project, of
itself, did not result in an increase in
generating capacity at the project.
Id. at 61,632-33 (footnotes omitted).
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However, if a hydroelectric project
has been taken out of service for a
number of years, then the restoration of
generation at the project is the
equivalent of post-1935 construction,
even if the project has not been
enlarged, and irrespective of how much or
little reconstruction or refurbishment
was involved.
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Id. at 61,633 (footnote omitted).
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In determining whether abandonment
has occurred for purposes of section
23(b)(1), the question is not . . .
whether the site has been literally
abandoned and left to fall into a state
of disrepair. Nor is the amount of
repair or reconstruction work needed to
put the project back into operation
relevant. Rather, abandonment for FPA
purposes means that the hydroelectric
generating function of the project has
been abandoned.
Id. (footnote omitted).
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The new business here is Hodgson's
commencement of hydroelectric generation
in 1981. We therefore affirm our finding
that the China Mill Project is required
to be licensed pursuant to section
23(b)(1) of the FPA.
Id. at 61,634 (footnote omitted). This appeal followed.
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We have jurisdiction pursuant to 16 U.S.C.
825l(b) which allows a party "aggrieved by an order issued by
_
the Commission . . . [to] obtain a review of such order in
the United States court of appeals for any circuit wherein
the licensee . . . is located." In its petition, Hodgson
challenges FERC's jurisdiction and, in the alternative, asks
us to review the propriety of the requirements of the license
which it claims are unreasonable. Finding that FERC did not
have jurisdiction, we do not reach the merits of the license
requirements.
II. STANDARD OF REVIEW
II. STANDARD OF REVIEW
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We review FERC's findings of fact for "substantial
evidence," and if so supported, such findings are conclusive.
Northeast Utils. Serv. Co. v. F.E.R.C., 993 F.2d 937, 944
___________________________ ________
(1st Cir. 1993). On the other hand, "[p]ure legal errors
require no deference to agency expertise, and are reviewed de
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novo." Id.; see also Boston Edison Co. v. F.E.R.C., 856 F.2d
____ ___ ___ ____ _________________ ________
361, 363 (1st Cir. 1988).
FERC asserts that this court owes deference to its
finding of jurisdiction under Chevron U.S.A., Inc. v. Natural
____________________ _______
Resources Defense Council, Inc., 467 U.S. 837 (1984).
__________________________________
Chevron held:
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When a challenge to an agency
construction of a statutory provision,
fairly conceptualized, really centers on
the wisdom of the agency's policy, rather
than whether it is a reasonable choice
within a gap left open by Congress, the
challenge must fail.
Id. at 866. FERC misplaces its reliance on Chevron for two
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reasons. First, in Chevron, the Supreme Court addressed the
_______
issue of whether the Environmental Protection Agency based a
policy on a reasonable construction of the Clean Air Act.
Id. at 840. But here, FERC did not base its order on an
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interpretation of the FPA, but rather on its reading of
judicial precedent. Chevron and its progeny mandate
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deference "when a court is reviewing an agency decision based
on a statutory interpretation." National R.R. Passenger
_________________________
Corp. v. Boston & Me. Corp., 112 S. Ct. 1394, 1401 (1992).
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Because FERC did not base its jurisdiction on an
interpretation of the statute but looked to case law, we owe
its finding of jurisdiction no more deference than we would
any lower court's analysis of law.
Second, deference to agency interpretations does
not give an agency the final word on statutory meaning. "The
judiciary is the final authority on issues of statutory
construction and must reject administrative constructions
which are contrary to clear congressional intent." Chevron,
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467 U.S. at 843 n.9 (citations omitted). The Supreme Court
thus set out the rule:
If a court, employing traditional tools
of statutory construction, ascertains
that Congress had an intention on the
precise question at issue, that intention
is the law and must be given effect.
Id.
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III. ANALYSIS
III. ANALYSIS
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Jurisdiction Under the FPA
Jurisdiction Under the FPA
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The FPA provides FERC with broad but not ubiquitous
power over hydroelectric facilities. Originally, Section 23
of the FPA only provided that persons intending to construct
projects5 on nonnavigable waters6 could file a declaration
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5. By "project" the FPA "means complete unit of improvement
or development, consisting of a power house, all water
conduits, all dams and appurtenant works and structures
. . . ." See 16 U.S.C 796(11).
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of intent at their discretion. Farmington River Power Co. v.
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Federal Power Comm'n, 455 F.2d 86, 88 (2d Cir. 1972). The
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Federal Power Commission (FPC), FERC's predecessor, could
then require a license before any construction continued.
Id. If a person intending to construct a project on
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nonnavigable waters did not file a declaration, the FPC had
no power to require a license. Id. at 89.
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Congress amended the FPA in 1935, expanding the
FPC's licensing jurisdiction to require that persons
"intending to construct a dam or other project works"7 on
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nonnavigable streams obtain a license. 16 U.S.C. 817(1)
(emphasis added). "These words quite clearly indicate a
prospective view." Farmington River Power Co., 455 F.2d at
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90; Aquenergy Systs., Inc. v. F.E.R.C., 857 F.2d 227, 229
_______________________ ________
(4th Cir. 1988) (same); see also Puget Sound Power & Light
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Co. v. Federal Power Comm'n, 557 F.2d 1311, 1315 (9th Cir.
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1977) ("the statute is to apply only to projects begun after
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the effective date in 1935"). It is the post-1935
construction of a project that triggers the licensing
jurisdiction of Section 23(b).
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6. The FPA does not define "nonnavigable waters" but
"navigable waters," inter alia, "means those parts of . . .
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bodies of water over which Congress has jurisdiction under
its authority to regulate commerce." See 16 U.S.C 796(8).
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7. By "project works" the FPA "means the physical
structures of a project." 16 U.S.C. 796(12).
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All construction after 1935, however, does not
translate into jurisdictional construction under the FPA
merely because it post-dates the act. Supplemental building
after 1935 generally is not post-1935 construction if the
work only maintains or restores a project to its former
specifications. Puget Sound, 557 F.2d at 1315. Nor do
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"repairs - even those of substantial nature - . . . confer
jurisdiction over an otherwise exempt facility." Id. at
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1316.
An exception to this rule arises where a project
has been abandoned. After the complete abandonment of a
project, an owner no longer retains pre-1935 operating
rights. Aquenergy, 857 F.2d at 230. In Aquenergy, the court
_________ _________
determined that such abandonment occurred after more than
thirty years of disuse and neglect which resulted in the
project works being reduced to ruin. Id. at 229. Because
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the owner in Aquenergy abandoned the project, it no longer
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retained its pre-1935 operating rights. Id. at 230.
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Although Aquenergy creates an exception to Puget Sound, the
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court emphasized the lack of licensing jurisdiction under
Section 23(b) for repairs and reconstruction without a
finding of abandonment. Citing the general rule for Section
23(b) the court stated, "[a] project is not brought within
the Commission's jurisdiction if work done in the name of
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repair does not so alter the project that it is no longer
what was there before 1935." Aquenergy, 857 F.2d at 229.
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Both Hodgson and FERC rely on Puget Sound and
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Aquenergy. The parties do not argue that either case is in
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error; rather, they urge that either case controls in the
alternative. We, however, read Aquenergy to be an exception
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to Puget Sound rather than an independent rule. The holding
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in Aquenergy makes this clear:
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Aquenergy puts great reliance upon
Puget Sound, but it does not help them,
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for we take no issue with the proposition
that the magnitude of the work is not
controlling or even relevant. The
relative magnitude of the work in Puget
_____
Sound may have been comparable to that
_____
involved here, but the owner had never
abandoned the project. It had moved
rather promptly to put the project back
into partial operation and in full
operation when demand for its output
justified it.
In great contrast, here, J.P Stevens
simply abandoned the project. The entire
thing was closed down. The turbine was
apparently removed, but the rest was left
for deterioration to take its toll and
nature to heal her wounds. After such
complete abandonment over a period of
more than 30 years, there is no basis for
a claim that the owner retained operating
rights. The statute was designed to keep
in operation projects existing in 1935,
but not to restore abandoned rights.
857 F.2d at 230. Accordingly, unless the abandonment
exception applies, FERC has no jurisdiction over China Mill.
In Hodgson II and III, FERC ruled that the
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abandonment of power production alone and without
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construction or physical abandonment gave it jurisdiction
under Section 23(a) of the FPA when a project resumed power
production. FERC stated its jurisdictional rationale as
follows:
In determining whether abandonment has
occurred for purposes of section
23(b)(1), the question is not . . .
whether the site has been literally
abandoned and left to fall into a state
of disrepair. Nor is the amount of
repair or reconstruction work needed to
put the project back into operation
relevant. Rather, abandonment for FPA
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purposes means that the hydroelectric
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generating function of the project has
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been abandoned.
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Hodgson III, 67 F.E.R.C. at 61,633 (emphasis added; footnote
___________
omitted). We disagree for the following reasons.
First, FERC completely misunderstands the relevance
of work to a finding of post-1935 construction. Aquenergy
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does state, "the magnitude of the work is not controlling,"
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857 F.2d at 229 (emphasis added), but at no time does the
court there espouse the notion that the existence of work
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itself is unnecessary for jurisdiction. To the contrary the
court states:
One must look to the nature of the work
and the purpose of the owner. Major
repairs may involve much construction
activity, but the project is not brought
within the Commissions's jurisdiction if
work done in the name of repair does not
so alter the project that it is no longer
what was there before 1935.
Id.
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Second, FERC's order underestimates the importance
of the physical act needed to support a finding of
abandonment. The heart of the error in Hodgson II and
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Hodgson III is that there was in fact no abandonment as that
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word is generally understood. Abandonment is a question
wholly separate from the statutory language of the FPA. In
no place does the FPA define or refer to the term "abandon"
or "abandonment." Aquenergy goes to great pains to stress
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the physical abandonment that occurred in that case. As the
court observed, "there was no activity at the project, not
even minimal maintenance"; "[t]he powerhouse . . .
disintegrated or was torn down"; "trees had reestablished
themselves"; and "nothing was done during those 30 years to
impede nature's reclamation of what had been her own." 857
F.2d at 229. Additionally, in its two and one-half page
opinion the court in Aquenergy notes the period of the
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abandonment, "30 years," at least seven times, thus stressing
the importance of physical desertion as a factor in
abandonment. See id. at 229-30.
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The facts show that China Mill was not "abandoned"
in the Aquenergy sense. Workers performed general cleaning
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and maintenance during the shutdown period, and the project
required only minimal work to restart. Moreover, China Mill
still operated in some manner during the shutdown. Although
not producing its own power, China Mill was used to control
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and monitor external power to the factory through its
generator control panel, and workers checked that panel
monthly.8 FERC does not assert that these or any activities
constituted construction, and even if they did, we believe
that they show the project was not abandoned within the
meaning of Aquenergy. We believe the facts here are
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analogous to those of Puget Sound, which we find controlling.
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In Puget Sound, a landslide destroyed a pre-1935 project, and
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when the owner commenced the extensive work to reconstruct
the project, the FPC claimed it needed a license. 557 F.2d
at 1312. The court disagreed and found that reconstruction
did not give the FPC jurisdiction. It found that, because
the repairs "merely restored the [project] to its original
specifications and configuration," "[t]here was no new
'construction'." Id. at 1316. Even though five years passed
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8. Hodgson III stated:
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Hodgson submitted the affidavits of three
men who worked at China Mill at various
times during the 1960's, 1970's, and
early 1980's. According to the
affidavits, mud and silt were removed
from the power canal; the penstocks,
turbines, and draft tubes were inspected
annually; the gates at the upper and
lower end of the power canal were checked
and cleaned annually; and the generator
control panel was checked at least
monthly because it controlled the voltage
coming into the manufacturing mill from
the transmission lines of Public Service
Company of New Hampshire.
67 F.E.R.C. at 61,633 n.11.
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before the defendant repaired and put into service two of the
four preexisting generators, the court found no jurisdiction
under the FPA. Id. at 1313. The court held that repair and
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maintenance construction on even a large scale do not amount
to post-1935 construction if the scope of the work remains
within the original specification of the project. Id. at
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1315.
Puget Sound applies directly here. There was "[n]o
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project enlargement . . . in capacity, diversion, or physical
plant," no reconfiguration since 1935 of "[t]he original
sites for the power house, the dam and the flume," and no
change in the electrical generating capacity since 1935. Id.
___
at 1316. There was, therefore, just as here, no post-1935
construction, and so no jurisdiction in FERC.
We have reviewed FERC's own cases addressing post-
1935 construction, none of which were subject to appellate
review, and they do not lend support to FERC's claim of
jurisdiction. The cases either contradict FERC's current
position, contradict each other or err for the same reasons
we have stated. See McRay Energy Inc., 57 F.E.R.C. 61,061
___ _________________
(1991) (no jurisdiction over project after six-year period of
"abandonment" and reinstallation of same generator and
minimal repairs to return to service because actual
construction is an essential element of Section 23(b)
jurisdiction); Yankee Hydro Corp., 52 F.E.R.C. 61,074
____________________
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(1990) (ten-year cessation of generation at flooded project
where same generator was removed and later replaced was
abandonment and required a license); Theodore A. and Holly S.
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Keck, 51 F.E.R.C. 61,018 (1990) (after owners installed
____
generator of greater capacity, abandonment of project
incurred Section 23(b) jurisdiction); North American Hydro,
______________________
Inc., 46 F.E.R.C. 62,175 (1989) (project brought back to
____
original capacity after it was unused for fifteen years
required license where owner surrendered the license and
dismantled the facility); Pacific Power & Light Co., 10
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F.E.R.C. 62,209 (1980) (no post-1935 construction despite
replacement of wooden diversion structure with concrete
structure because Section 23(b) jurisdiction requires that
"construction must increase the project's . . . generating
capacity . . . or otherwise significantly modify the
project's pre-1935 design or operation").9
We point out that the one case cited in FERC's
brief as being contrary to circuit precedent contains, in our
view, a correct assessment of the commission's jurisdiction.
In McRay Energy Inc., 57 F.E.R.C. 61,061, FERC recognized
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that the resumption of power production at a pre-1935 project
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9. Only one of FERC's recent Section 23(b) cases faced
appellate review, but that order was based and affirmed on
other grounds. In Habersham Mills v. F.E.R.C., 976 F.2d 1381
_______________ ________
(11th Cir. 1992), the Eleventh Circuit did not address post-
1935 construction because the petitioner only questioned
FERC's determination that the project affected interstate
commerce.
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did not give rise to Section 23(b) jurisdiction absent actual
physical construction. In reaching its holding FERC
accurately noted, "actual construction or reconstruction of
facilities is an essential element of the 'post-1935
construction' prong of section 23(b) jurisdiction, even when
the project has been abandoned and restarted after 1935."
Id. at 61,234. At China Mill not only was there no
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abandonment, there was no finding of any construction by
FERC.
IV. CONCLUSION
IV. CONCLUSION
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The order of FERC assuming jurisdiction over China
Mill is reversed with directions to dismiss the license
application.
Costs awarded to petitioner.
Concurrence follows.
Concurrence follows.
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CYR, Circuit Judge (concurring). As the
CYR, Circuit Judge (concurring).
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fallacy in relying on Puget Sound and Aquenergy for FERC's
___________ _________
misinterpretation of the statutory term "[post-1935] con-
struction" is plainly exposed in the majority opinion, it is
neither necessary nor provident for the panel to embrace
these decisions as First Circuit precedent, see supra at p.
___ _____
16 ("[W]e find [Puget Sound] controlling."), in the context
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of this case.
The issue on appeal is straightforward:
whether the plain language of FPA 23(b) requiring FERC
licensure of a "grandfathered" facility only in the event
there has been "[post-1935] construct[ion]" encompasses
circumstances in which no such construction has occurred, and
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the owner merely reopens intact physical structures following
a period of closure? If, as I respectfully submit, this
question clearly must be answered in the negative, FERC's
plea for Chevron deference is precluded, see Estey v. Commis-
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sioner of Maine Dep't of Human Servs., 21 F.3d 1198, 1201
_______________________________________
(1st Cir. 1994), and the court ought not venture further.
The majority opinion accedes to FERC's invita-
tion to extend its licensure authority based on the reasoning
in Puget Sound and Aquenergy. In Puget Sound, however, the
___________ _________ ___________
putative licensee unquestionably had "constructed" physical
structures anew at the "grandfathered" power facility follow-
ing a devastating natural disaster. Based on its unexplained
19
assumption that Congress could not have intended to divest
innocent owners of their "grandfathered" power-plant operat-
ing rights merely for restoring to its original configuration
a facility damaged in a natural disaster, the Ninth Circuit
resorted to an equitable exception in interpreting the plain
language of the FPA as precluding the agency's licensure
jurisdiction. See Puget Sound Power & Light Co., 557 F.2d at
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1315. The Ninth Circuit panel pointed to no statutory lan-
guage or legislative history remotely supportive of its
strained interpretation of the statutory term "construct."
See id. (merely noting, without citation to legislative
___ ___
history, "[w]e think Congress intended no such result").
As if to illustrate the maxim that hard cases
beget bad law, the Fourth Circuit later extended the error
propounded in Puget Sound. See Aquenergy Systs., 857 F.2d at
___________ ___ ________________
227. Aquenergy Systems' actions clearly came under FERC
_______
jurisdiction for the simple reason that it had "constructed"
anew, from the ground up, disintegrated structures (including
an entire powerhouse) following a voluntary closure of the
facility lasting thirty years. Eschewing this plain language
approach, the Aquenergy court attempted to accommodate the
_________
Puget Sound rationale by engaging in an "abandonment" analy-
___________
sis which overlooked the fact that the FPA contains not one
___ ___
word suggesting that Congress intended FERC licensure to turn
____
on the licensee's (or predecessor's) "abandonment" of "grand-
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fathered" pre-1935 "operating rights." Id. at 230 (merely
___
concluding, without citation to legislative history, that
"[t]he [FPA] was designed to keep in operation projects
existing in 1935, but not to restore abandoned rights").
Quite the contrary, FPA 23(b) focuses unambiguously and
_____________
exclusively on a specific event the "construction" of
___________
physical structures at the "grandfathered" generating site.
________ __________
Although I wholeheartedly concur in the result
reached by the court in the instant case, I cannot endorse
its gratuitous adoption of the fallacious position advocated
by FERC, that Aquenergy and Puget Sound are "controlling."
_________ ___________
Although those decisions apparently control FERC in the
Fourth and Ninth Circuits, respectively, neither FERC nor the
majority opinion suggests a sound reason for reaching out in
obiter dicta to embrace the problematic FPA interpretations
______ _____
propounded in Puget Sound and Aquenergy. Indeed, it is
___________ _________
particularly ironic that we should strain to embrace them
even though FERC itself has not seen fit to do so. See McRay
___ _____
Energy, Inc., 57 F.E.R.C. 61,061 (1991) (no FERC jurisdic-
____________
tion over project even after six-year "abandonment," where
facility reopened but no "construction" of facilities oc-
curred).
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