No. The power agency (FERC) cannot ignore or change a direct order from the top wildlife officials about building pathways for fish. The court explained that the law Congress wrote has different rules for different situations. One part of the law, Section 18, says FERC 'shall' include any 'fishways' ordered by the top wildlife bosses (the Secretaries of Interior and Commerce). The word 'shall' means it's a command, not a suggestion. Another part of the law, Section 10(j), deals with general 'recommendations' from other fish agencies. For those, the law gives FERC some wiggle room to say no if it has a good reason and explains it. Because Section 18 doesn't have that 'wiggle room' language, its orders must be followed exactly. If FERC thinks an order is wrong, its only option is to challenge it in a real court.

The court said yes, the government can decide not to use the wildlife experts' ideas if they don't fit the rules, but it needs to give good reasons. However, when it comes to building fish ladders, the government has to follow the exact instructions from the two big government departments without changing anything. The court also mentioned that it's important to have a starting point, or baseline, to understand how the environment might change because of the project, and to think reasonably about other choices. The court agreed with the government's decision to use the current state of the river as the starting point and said the government followed the rules when looking at different options.

The establishment of a "baseline is not an independent legal requirement, but rather, a practical requirement in environmental analysis often employed to identify the environmental consequences of a proposed agency action."

"The rule of reason guides both the choice of alternatives as well as the extent to which the [EA] must discuss each alternative."

—holding that FERC cannot modify, reject, or reclassify any section 18 fishway prescription submitted by the Secretaries of Interior or Commerce

—stating "without establishing... baseline conditions... there is simply no way to determine what effect [an action] will have on the environment and, consequently, no way to comply with NEPA

If the Court finds that the plain language of the statute is clear on its face, the Court does not need to consider the legislative history and policy of the ECPA, although they may still be instructive.

Defendants are correct that NEPA does not impose an independent requirement of setting a "legal" environmental baseline.

Specifically, if the Federal Energy Regulatory Commission ("FERC") failed to take action on a relicensing application, the FPA requires FERC to permit the applicant "to continue operating the project indefinitely subject to the terms and conditions of its expired original license."

W] e are mindful that this Court steadfastly abides by the principle that `legislative history—no matter how clear—can't override statutory text

However, in contrast to the cases cited by the DOE rejecting parens patriae standing, see ECF No. 110 at 10-11, the Court notes other instances where courts have recognized exceptions to the Mellon holding.

A no-action alternative, generally, "may be thought of in terms of continuing with the present course of action until that action is changed."

No. Section 18 of the Federal Power Act does not grant FERC the authority to review, modify, or reject a fishway prescription submitted by the appropriate Secretary; such prescriptions are mandatory. The court's reasoning distinguished between the Commission's authority under § 18 and § 10(j) of the Act. For § 18, the court found the statutory language—'the Commission shall require...such fishways as may be prescribed'—to be mandatory and unambiguous. Relying on the Supreme Court's precedent in *Escondido Mut. Water Co. v. La Jolla Bands of Mission Indians*, the court held that this mandatory language removes FERC's discretion. Unlike § 10(j), § 18 contains no qualifying clause allowing FERC to reject a prescription. Therefore, the authority to determine what constitutes a 'fishway' and to prescribe it rests with the Secretaries of the Interior and Commerce, not FERC. If FERC disagrees with a prescription, its recourse is to challenge it in the court of appeals, not to reject it at the administrative level. Conversely, the court affirmed that § 10(j) does grant FERC ultimate discretion, as its mandatory language is explicitly 'subject to paragraph (2),' which outlines a process for FERC to reject agency recommendations by publishing specific findings. The court also upheld FERC’s use of the existing project environment as the baseline for its analysis, finding it a reasonable and pragmatic approach under the FPA and NEPA.

Yes, the Federal Power Act authorizes FERC to reject or reclassify fish and wildlife agency recommendations under Section 10(j) if they do not meet the statutory requirements, and FERC must provide a reasoned explanation for its decision. However, FERC must include without modification fishway prescriptions by the Secretaries of Interior and Commerce under Section 18, as these are mandatory and not subject to FERC's balancing of interests. The court also emphasized the importance of establishing a baseline in environmental analysis and the application of the rule of reason in discussing alternatives in the EA. The court found that FERC's choice of baseline and analysis of alternatives complied with the substantive and procedural requirements of both the FPA and NEPA. The court deferred to FERC's decision to use an existing project environmental baseline, finding it a reasonable interpretation of the FPA. The court also held that FERC's identification and evaluation of alternatives satisfied NEPA's procedural requirements.

American Rivers, et al. v. Federal Energy Regulatory Commission

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