FERC supremacy over Kauai water regs overstated?

Tuesday I noted that local opponents of FERC's involvement in Kauai hydro projects assert that under the U.S. Supreme Court case California v. FERC, 495 U.S. 490 (1990), FERC would supersede state water regulations. A reader was kind enough to suggest that I look at another case, PUD No. 1 of Jefferson County v. Washington Dept. of Ecology, 511 U.S. 700, 114 S.Ct. 1900, 128 L.Ed.2d 716, 62 USLW 4408, 38 ERC 1593, 24 Envt'l. L. Rep. 20,945 (1994), decided a few years after California v. FERC.

In California v. FERC, the Court established FERC's exclusive authority under the Federal Power Act to set conditions, including the stream flow levels, to be observed by a federally licensed hydroelectric project. To do otherwise, according to the decision, would vest states with "veto power" over such projects.

The Jefferson County case involved the same issue - stream flow levels - but that case, according to the dissent, "[gave] the States precisely the veto power over hydroelectric projects that [the court] determined in California v. Ferc...they did not posses."

The difference was that, while the California case was brought under the Federal Power Act (and the court decided the FPA superseded state law with respect to flow rates), the Jefferson County case was brought under the Clean Water Act. And, according to the court, under section 401 of the Clean Water Act, a state may condition the certification necessary to obtain a federal license for a proposed hydroelectric project upon the maintenance of a minimum flow rate in the river to be utilized by the project.

Under Section 401 of the Clean Water Act, a state may place conditions on the certification of a project to ensure compliance with "any...appropriate requirement of state law." 33 U. S. C. § 1341. Moreover, in the express language of section 401(d), any condition placed in a section 401 certification "shall become a condition on any Federal license or permit." The dissent in Jefferson County stated

Any condition imposed by a State under section 401(d) thus becomes a term of the license as a matter of law, regardless of whether FERC favors the limitation. Because of section 401(d)'s mandatory language, federal courts have uniformly held that FERC has no power to alter or review section 401 conditions, and that the proper forum for review of those conditions is state court. Section 401 conditions imposed by States are therefore binding on FERC.

(Citations, quotation marks, and ellipses omitted).

Thus, the dissent commented, "it appears that the mistake of the State in California v. FERC was not that it had trespassed into territory exclusively reserved to FERC; rather it simply had not hit upon the proper device - that is, the section 401 certification - through which to achieve its objectives."

Again, I'm no expert in this area, and there are lots of cases out there on this subject matter. I'm not sure what kinds of conditions qualify as section 401 conditions, or whether all the FERC-opponents' concerns could be addressed through that vehicle. Nonetheless, reliance on California v. FERC for the proposition that the federal process necessarily spells the utter abrogation of local preferences appears unwarranted.

Meanwhile, according to the Garden Island today

A Department of Land and Natural Resources representative said the state attorney general’s office plans intervene in Federal Energy Regulatory Commission proceedings involving hydroelectric development in Hawai‘i.

“The state supports renewable energy and looks forward to hydro projects in appropriate places,” William Tam, deputy director for water at DLNR, said to Pacific Business News. “However, the state does not want Hawai‘i’s in-stream flow standards to be decided by a federal agency in Washington D.C. that does not have any experience with or understand Hawai‘i’s streams.

OIP asks agencies to think up new open record laws they can ignore

Civil Beat -

As more people use social media to communicate with government, Hawaii's open records agency is calling on the public for suggestions on how to update the state's open records law to take into account platforms such as Twitter and Facebook.

The Office of Information Practices is asking government agencies and public interest groups for input into how the state's 23-year-old public records law ought to keep pace with the new technology.

Rep Derek Kawakami to KIUC Board of Directors on hydro-electric for Kauai

Posted to KIUC's Facebook page, via Twitter -

...This is not to say that I did not have concerns over the development of hydroelectric power on the island of Kaua‘i. My concerns included water rights and the possibility of FERC having jurisdiction over our water rights; construction of these projects without the benefit of the competitive bidding process; and large-scale hydro that would require the damming of our waterways. However, in further discussions and information gathering on these matters, I feel that these concerns have been addressed. I have been informed that the Hawai‘i State Commission on Water Resource Management is the governing body that deals with water related issues in Hawai‘i and that FERC has no jurisdiction over Hawai‘i’s water rights. My concern with not engaging other hydropower developers was addressed by the fact that Free Flow Power is only hired to assist KIUC with the FERC process and if it ultimately comes to fruition that hydropower is a viable option, a process that engages all hydropower developers in competitive bidding would be utilized. Finally, my fears of large scale hydropower projects that would require damming our rivers have been allayed by the fact that KIUC is only considering small scale hydropower projects and that the process being used for consideration of hydropower is transparent in a way that it will require all stakeholders to sit at the table to have an open and clear discussion over potential concerns that may arise.

Local opponents of FERC's involvement in Kauai hydro projects assert that under the U.S. Supreme Court case California v. FERC, 495 U.S. 490 (1990), FERC would supersede state water regulations despite language in the Federal Power Act which saves from supersedure state "laws . . . relating to the control, appropriation, use, or distribution of water used in irrigation or for municipal or other uses, or any vested right acquired therein"

In that case, FERC had issued a license for a hydroelectric project, which drew creek water to drive its generators and released it a mile later. FERC set an interim "minimum flow rate" of water that must remain in the bypassed section of the stream and is thus unavailable to drive the generators. The State Water Resources Control Board later considered minimum flow rates well in excess of the FERC rates. The licensee petitioned FERC for – and FERC granted - a declaration that FERC possessed exclusive jurisdiction to determine the project's minimum flow rates. Ultimately the Supreme Court held that the state requirements for minimum stream flows cannot be allowed to supplement the federal flow requirements.

I have no idea whether opponents are correct or to what extent or in what areas FERC would in fact supersede state regulations. I suspect a review of the cases in the annotated federal code would be instructive.

I'm thinking a friendlier business climate would be more effective

Star Advertiser -

Hawaii business leaders received a “wake-up call” Thursday from the new director of the state Department of Business, Economic Development and Tourism, who told them they need to help pay for public-private projects to drive the local economy.

Businesses need to partner with state government and provide private capital to develop new industries, improve public lands and link the islands with an undersea cable to deliver broadband technology and renewable energy, Richard Lim told the Hawaii Economic Association.
...
“While we have three key priorities — making better use of our land, building a 21st-century infrastructure and supporting high-growth industry clusters — they all have one thing in common,” Lim said. “They all need public-private partnerships to be successful

Sounds kind of plan-y to me. Fewer barriers to businesses of whatever old or new industries that want to develop would be better.

Arguments in the Hawaiian Homes Commission case

Record on Appeal has them - including links not only to the cert petition and the Native Hawaiian Legal Corp's response, but even to the briefs filed in the ICA.

Hawaii Supreme Court agrees to consider whether question of "sufficient funds" paid to Dept. of Hawaiian Home Lands is a nonjudiciable political question

In other words, the Supreme Court will address whether levels of funding for the Department of Hawaiian Home Lands is a question the courts may address.

Plaintiffs had sought declaratory and injunctive relief in the circuit court claiming that the Hawaiian Homes Commission, The Department of Hawaiian Home Lands, and the State were obligated by Article XII (Hawaiian Homes Commission Act), Sections 1 and 2 of the state constitution to provide particular levels of funding to the Department of Hawaiian Home Lands and that the State failed in the past to provide sufficient funds.

The circuit court ruled that the political question doctrine bars justiciability of the claims (essentially, declining to consider the substantive issue on grounds that it more properly belongs before the legislative or executive branch). In a published opinion filed this past January, the ICA conducted a political question analysis, concluded that the question of the legislature making sufficient sums available to the DHHL is justiciable and therefore not a political question, and remanded to the circuit court.

Now the issue will be taken up by the supreme court.

Article on remedies available to photographers whose rights have been violated

...by civil litigator Morgan Leigh Manning, downloadable here. From the abstract:

[S]cholars have labeled it the "War on Photography"- a conflict between law enforcement officials and photographers over the right to take pictures in public places. A simple Google search reveals countless incidents of overzealous law enforcement officials detaining or arresting photographers and, in many cases, confiscating their cameras and memory cards, despite the fact that these individuals were in lawful places, at lawful times, partaking in lawful activities.

This article examines the so-called War on Photography and the remedies available to those who have been unlawfully detained, arrested, or have had their property seized for taking pictures in public places or private places open to the public. It discusses recent incidents that highlight the growing infringement of photography rights and the magnitude of the harm that law enforcement officials have inflicted, paying particular attention to the themes these events have in common. It explores the existing legal framework surrounding photography rights and the federal and state remedies available to those whose rights have been violated. It examines the adequacy of each remedy including: (1) declaratory and injunctive relief, (2) Section 1983 and Bivens actions, and (3) state tort remedies. It discusses the obstacles associated with each remedy and the reasons why these obstacles are particularly hard to overcome in the context of photography. It then argues that most, if not all, of the remedies discussed are either inadequate or altogether impractical considering the costs of litigation. Lastly, this article will discuss the reasons why people should be concerned about the War on Photography and possible ways to reverse the erosion of photography rights.