United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 08-1390

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Missouri Coalition for the *

Environment; Missouri Parks *

Association, *

*

Petitioners, *

*

v. * Appeal from the Federal 

* Energy Regulatory Commission.

Federal Energy Regulatory *

Commission, *

 *

Respondent, *

*

AmerenUE, *

*

Intervenor. * 

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Submitted: September 24, 2008

Filed: October 23, 2008

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Before MURPHY, ARNOLD, and BENTON, Circuit Judges.

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BENTON, Circuit Judge.

The Federal Energy Regulatory Commission (FERC) authorized reconstruction

of the Taum Sauk Pumped Storage Project. Missouri Coalition for the Environment

(MCE) and Missouri Parks Association (MPA) petition for review, asserting that

FERC violated the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-
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47. Having jurisdiction under 16 U.S.C. § 825l(b), this court denies the petition for

review. 

I.

AmerenUE has a license to operate the Project, a hydroelectric generating plant.

The license expires in 2010 (and Ameren has applied for relicensing). The Project’s

upper reservoir collapsed in 2005. Ameren sought FERC’s authorization to

reconstruct it. FERC issued a Final Environmental Assessment concluding that the

reconstruction would not be a major federal action significantly affecting the quality

of the human environment. The Assessment focused on the impacts of reconstruction

and did not evaluate the potential impacts of operating the Project after 2010 under a

future license. FERC issued a letter order approving Ameren’s request to reconstruct

the upper reservoir. 

MCE and other organizations, not including MPA, moved to intervene in the

FERC proceedings, and requested rehearing. They argued that relicensing the Project

is a “reasonably forseeable future action” and, therefore, NEPA requires FERC to

consider the cumulative impact to the environment from reconstruction and operation

of the Project under a future license. FERC granted intervention, but denied

rehearing. MCE and MPA petition this court to review the FERC order authorizing

reconstruction of the Project. 

MPA lacks standing under the Federal Power Act. “No proceeding to review

any order of the Commission shall be brought by any entity unless such entity shall

have made application to the Commission for a rehearing thereon.” 16 U.S.C. §

825l(a). Since MPA did not request a rehearing, it cannot petition for review of

FERC’s order. 

FERC contends that MCE lacks Article III standing. Article III standing

requires a petitioner to have suffered an injury-in-fact that has a causal connection
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with the challenged agency action and that likely will be redressed by a favorable

decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). “Injury

under NEPA occurs when an agency fails to comply with the statute . . . . The injuryin-fact is increased risk of environmental harm stemming from the agency’s allegedly

uninformed decision-making.” Sierra Club v. U.S. Army Corps of Eng’rs, 446 F.3d

808, 816 (8th Cir. 2006). For an association to have standing, the interests at stake

must be germane to the organization’s purpose. Friends of the Earth, Inc. v. Laidlaw

Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000). Since a potentially increased

risk of environmental harm is germane to MCE’s mission to preserve and enhance the

physical environment, MCE has Article III standing. 

The Federal Power Act restricts this court’s review to issues brought before

FERC in the first instance. “No objection to the order of the Commission shall be

considered by the court unless such objection shall have been urged before the

Commission in the application for rehearing unless there is reasonable ground for

failure so to do.” 16 U.S.C. § 825l(b). See Coal. for Fair and Equitable Regulation

of Docks on the Lake of the Ozarks v. FERC, 297 F.3d 771, 777 (8th Cir. 2002).

MCE advances “connected actions,” “cumulative actions,” and “cumulative impact”

arguments on appeal. MCE raises its connected and cumulative actions claims for the

first time, but contends the arguments all address the same issue. To the contrary, the

connected and cumulative actions analyses are separate and distinct from the

cumulative impact analysis under the Council on Environmental Quality regulations

implementing NEPA. Compare 40 C.F.R. § 1508.25(a)(1) and 40 C.F.R. §

1508.25(a)(2), with 40 C.F.R. § 1508.7. This court does not have jurisdiction over

MCE’s connected and cumulative actions claims, and considers only the cumulative

impact claim. 

II.

FERC’s order authorizing reconstruction must be set aside if it is arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C.

§ 706(2)(A); Mid-Continent Area Power Pool v. FERC, 305 F.3d 780, 782 (8th Cir.
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2002). NEPA requires FERC to take a “hard look” at the environmental consequences

of an action before issuing its approval. Mayo Found. v. Surface Transp. Bd., 472

F.3d 545, 549 (8th Cir. 2006). The role of this court is to ensure that FERC

adequately considered and disclosed the environmental impact of reconstruction, and

that its decision is not arbitrary or capricious. Baltimore Gas and Elec. Co. v.

Natural Res. Defense Council, Inc., 462 U.S. 87, 97-98 (1983).

 

MCE argues that FERC violated NEPA by failing to evaluate the cumulative

impact from the Project’s reconstruction and relicensed operation. “Cumulative

impact is the impact on the environment which results from the incremental impact

of the action when added to other past, present, and reasonably foreseeable future

actions regardless of what agency (Federal or non-Federal) or person undertakes such

other actions.” 40 C.F.R. § 1508.7 (emphasis added). At issue is whether relicensed

operation is a reasonably foreseeable future action. 

MCE asserts that relicensed operation is reasonably foreseeable because

reconstruction increases the likelihood of relicensing. This assertion is unfounded.

FERC concluded that reconstruction will not influence its relicensing determination:

[T]he Director’s approval of the dam reconstruction does not prejudice

the Commission’s decision on the relicense application. In contrast to

a repair application, in a relicense proceeding both the FPA and NEPA

require the Commission to examine whether the renewed commitment

of a public resource to hydroelectric generation will be best adapted to

the comprehensive development of the waterway for beneficial public

purposes. . . . In short, there is no legal or factual basis for concluding,

as Petitioners maintain, that relicensing should be considered a

reasonably foreseeable consequence of the reconstruction authorization.

AmerenUE, 121 F.E.R.C. ¶ 61,270 at P 14 (2007). The cases MCE cites for the

proposition that “construction and operation of a facility are sufficiently related to

require that the impacts be evaluated together” are inapposite since none addresses the

relationship between reconstruction under an existing license and future operation

under a new license. See Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d
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846 (9th Cir. 2005); Fuel Safe Wash. v. FERC, 389 F.3d 1313 (10th Cir. 2004); Mid

States Coal. for Progress v. Surface Transp. Bd., 345 F.3d 520 (8th Cir. 2003); Nat’l

Wildlife Fed’n v. FERC, 912 F.2d 1471 (D.C. Cir. 1990); Concerned About Trident

v. Rumsfeld, 555 F.2d 817 (D.C. Cir. 1977). On this record, relicensed operation is

not a reasonably foreseeable future action. 

FERC decided not to consider relicensed operation in its Assessment “as that

is being evaluated under the Commission’s relicensing proceeding.” In comments to

FERC, the United States Forest Service stated that “operation of the facility as a result

of re-construction of the upper reservoir would be a connected action and should not

be considered outside the scope of this project.” However, NEPA does not require

FERC to accept the input or suggestions of other agencies. Ark. Wildlife Fed’n v.

U.S. Army Corps of Eng’rs, 431 F.3d 1096, 1101 (8th Cir. 2005). It is up to FERC

to determine the value of another agency’s comments. Id. The compliance

regulations governing reconstruction under Ameren’s existing operating license are

indeed separate and distinct from the more stringent regulations governing relicensing.

Compare 16 U.S.C. § 803(c) and 18 C.F.R. § 12.4(b), with 16 U.S.C. § 797(e) and

16 U.S.C. § 808. FERC’s decision not to include the impacts of relicensed operation

in its environmental assessment of reconstruction was not arbitrary or capricious. 

III. 

The petition for review is denied.

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