The Electric Consumers Protection Act (ECPA) of 1986 amended the Federal Power Act (FPA) of 1920 by increasing the Federal Energy Regulatory Commission’s (FERC) regulatory and enforcement powers.
The United States has more than 2,300 hydroelectric power plants that account for about 9% of U.S. electrical power generation. Most of these plants operate under federal licenses. While licensing these plants, consideration must be given to the effects of hydro power on fish and wildlife habitat. When the licenses expires, the utilities are faced with a complex, costly, and time-consuming relicensing process. The Federal Energy Regulatory Commission (FERC) issues licenses for hydro electric plants.
The commerce clause[i], of the U.S. Constitution grants Congress the authority to regulate commerce with foreign nations and among the several States. Congress passed a series of statutes for this purpose. By the Federal Power Act (FPA) of 1935, Congress granted the Federal Power Commission the authority over both the interstate transmission of electricity and the sale of hydroelectric power at the wholesale level. The act requires the commission to ensure that electricity rates are reasonable, nondiscriminatory and just to the consumer.
Congress enacted the Electric Consumers Protection Act (ECPA) in 1986. This Act was the first significant amendment to the hydro licensing provisions. It increased the Federal Energy Regulatory Commission’s (FERC) regulatory and enforcement powers. The principal changes brought by the ECPA are:
- the Act eliminated the municipal preference on relicensing;
- the importance of environmental considerations in the licensing process was greatly increased and the role of the State and Federal fish and wildlife agencies is expanded;
- benefits for hydroelectric projects at new dams and diversions were eliminated unless the projects satisfy stringent environmental conditions; and
- the Federal Energy Regulatory Commission enforcement powers have been increased substantially.
The statute also broadened the commission’s authority to protect the recreational uses of the nation’s rivers, fish and wildlife, and other environmental values. The ECPA requires the Federal Energy Regulatory Commission to give equal consideration to the purposes of energy conservation and protection; mitigation of damages; enhancement of fish and wildlife the protection of recreational opportunities; and the preservation of other aspects of environmental quality while issuing license.
The relicensing process under the ECPA requires a detailed environmental assessment of a plant’s impacts on fish and wildlife habitat, water quality, recreation, land use, local communities, and cultural resources. When a new license is eventually granted, it is apt to be encumbered with restrictions that diminish the value of the plant’s power output[ii].
Additionally, the ECPA requires that the Federal Energy Regulatory Commission must balance power and non-power values when deciding whether to issue hydro power licenses[iii]. Moreover, the FERC must consider environmental issues when deciding whether to issue hydro power licenses.
The ECPA requires the FERC to give equal consideration to developmental and non developmental values in the hydro licensing process. Developmental values include power, irrigation, and flood control, while non developmental values include the protection of fish and wildlife and their habitat and spawning grounds, energy conservation, recreation, and other features of environmental quality. Additionally, the ECPA also required the FERC to consider state, regional, and federal comprehensive waterway development plans when making licensing and relicensing decisions[iv].
However, the implementation of the new compliance provisions and new studies of fish, wildlife, recreation, aesthetics, land use, water use, and water quality has increased the licensing fees significantly.
[i] USCS Const. Art. I, § 8, Cl 3.
[ii] 16 USCS § 797.
[iii] 16 USCS § 797, 803.
[iv] City of Centralia v. FERC, 213 F.3d 742, 743 (D.C. Cir. 2000).