City of Fremont v. Federal Energy Regulatory Commission

Pacific Gas and Electric Co. (“PG & E”) operates a hydroelectric plant in California under a fifty-year license due to expire on September 30, 2003. After properly giving notice of its intention to apply for a new license, PG & E missed the application deadline of October 1, 2001, by one day because of a mail room error. The Federal Energy Regulatory Commission (“FERC”) was generally merciful: it did not accept the late application for a regular new license proceeding, but waived its regulations to permit PG & E to compete, with an incumbent’s preference, for a new license with any other competing applicants in a subsequent “orphan” license proceeding. The City of Fremont and the Northern California Power Agency (“NCPA”) petition for review of FERC’s decision, contending that PG & E should have been disqualified or, at the least, should not have been accorded an incumbent’s preference. We deny the petition for review.

I. FACTS AND PRIOR PROCEEDINGS

PG & E’s Untimely License Application

Since 1953, PG & E has been licensed by FERC to operate the Poe Project, a hydroelectric project in Butte County, California. The license is set to expire on September 30, 2003. Under…