UNITED STATES OF AMERICA

("NEPA") addressing the environmental impacts of decommissioning the Lower Klamath Project prior to issuing the Transfer Order.

In its June 17, 2021 Transfer Order, the Commission granted an application collectively made by PacifiCorp and the Transferees seeking transfer of the license for the Lower Klamath Project ("License") from PacifiCorp to the Transferees ("License Transfer Application"). PacifiCorp, 175 FERC ¶ 61,236 (June 17, 2021). The Commission issued the Transfer Order and approved the License Transfer Application despite previous proceedings in which the Commission acknowledged that Siskiyou County argued compliance with NEPA’s environmental review requirements should precede transfer and surrender of the License. See PacifiCorp, 172 FERC ¶ 61,062 at ¶¶ 33-41 (July 16, 2020) ("2020 Proceeding"); PacifiCorp, 162 FERC ¶ 61,236 at ¶ 26 (Mar. 15, 2018) ("2018 Proceeding"). In the 2020 Proceeding and 2018 Proceeding, the Commission acknowledged that the transfer, surrender, and removal of the Lower Klamath Project "raise[d] unique public interest concerns" and that "[t]he Commission has not previously considered an application to transfer a license to a new entity whose sole purpose is to surrender the license and decommission the project, as is the case here." PacifiCorp, 172 FERC ¶ 61,062 at ¶ 67; PacifiCorp, 162 FERC ¶ 61,236 at ¶¶ 50, 51. In the 2018 Proceeding, the Commission indicated that environmental impacts of decommissioning and removal of the Lower Klamath Project "will be considered when the Commission takes up the applications for transfer and surrender of the Lower Klamath Project facilities." PacifiCorp, 162 FERC 61,236 at ¶ 34. However, in the 2020 Proceeding, the Commission reversed course, stating that "it has never been the Commission’s intent to prepare a NEPA document prior to acting on the transfer." PacifiCorp, 172 FERC ¶ 61,062 at ¶ 34.

Despite the Commission’s commitment in 2018 to address environmental concerns in connection with the transfer, the Commission ultimately issued the Transfer Order without such consideration. In the Transfer Order, the Commission indicated that its decision to delay NEPA review in connection with the Transfer was, in part, because the Applicants (that is, PacifiCorp and Transferees) "requeste[ed] expedition on the transfer application, in advance of any decision on the surrender application (and of any NEPA analysis on the surrender)" so that they could move forward with other, separate proceedings. PacifiCorp, 175 FERC ¶ 61,236 at ¶ 26 (emphasis added). PacifiCorp and Transferees apparently noted in their License Transfer Application that "prompt action on the transfer application will allow [KRRC] and the States to position themselves such that they can ‘promptly commence dam removal activities.’" Id. There is no provision under the law that would permit the Commission to delay analysis under NEPA because it suits the desire of a project proponent. Neither does NEPA permit post hoc analysis of an action already taken.

Siskiyou County filed timely and unopposed notices of intervention in these proceedings. As acknowledged in the Commission’s Transfer Order, "[t]imely, unopposed motions to intervene are granted by operation of Rule 241(c)(1) of the Commission’s Rules of Practice and Procedure." PacifiCorp, 175 FERC ¶ 61,236 at FN 27. Relevant statutory provisions further state that "any person…aggrieved by an order issued by the Commission in a proceeding under this chapter to which such person…is a party may apply for a rehearing within thirty days after the issuance of such order." 16 U.S.C. § 825l(a). In addition, Rule 713 provides the procedures for requesting rehearing. 18 C.F.R. § 385.713.

Id. at ¶ 45. The Commission also acknowledged in the 2020 partial transfer order that it was not the intent of PacifiCorp, KRRC, and other parties to an April 2016 settlement agreement3 for PacifiCorp to remain on as a co-licensee. Id.

3 In April 2016, the States of Oregon and California, the Department of the Interior, PacifiCorp, the National Marine Fisheries Service, the Yurok Tribe, and Karuk Tribe executed the Amended Klamath Hydroelectric Settlement Agreement, which prescribed a process by which PacifiCorp would seek Commission approval to transfer the Lower Klamath Project (totaling 163 MW) to KRRC and by which KRRC would then seek Commission approval to decommission and remove the Lower Klamath Project under the Commission’s license surrender process under 18 C.F.R. 6.1-6.2. See 175 FERC ¶ 61,236 at ¶ 5.

Subsequent to the 2020 partial transfer order parties to the above-mentioned settlement entered into a memorandum of agreement ("MOA") in which they agreed that PacifiCorp and KRRC would not accept their status as co-licensees under the 2020 partial transfer order and that PacifiCorp, KRRC, and the States of Oregon and California would instead request to transfer the License to KRRC and the States as co-licensees. PacifiCorp, 175 FERC ¶ 61,236 at ¶ 12 (June 17, 2021). It was based on this MOA that PacifiCorp and Transferees filed an amended surrender application on November 17, 2020 and a new transfer application on January 13, 2021. Id. at ¶ 13. Until the Commission issued the Transfer Order on June 17, 2021, then, PacifiCorp held the license for Project No. 2082 and for the Lower Klamath Project (Project No. 14803). Id. at ¶¶ 1-2. Following the Transfer Order, Transferees hold the License for the Lower Klamath Project. Id. at ¶ 46.

NEPA requires federal agencies to include in every recommendation on "major Federal actions significantly affecting the quality of the human environment" an EIS evaluating the action and alternatives. 42 U.S.C. § 4332(2)(C). NEPA is the "basic national charter for protection of the environment" and requires federal agencies to comply with its precepts "to the fullest extent possible." Churchill County v. Norton, 276 F.3d 1060, 1072 (9th Cir. 2001), amended by 282 F.3d 1055 (9th Cir. 2002); City of Davis v. Coleman, 521 F.2d 661, 673 (9th Cir. 1975).

58149618 Despite the Commission’s commitment to address potential environmental impacts associated with transfer of the License, the Commission failed to address environmental concerns when it reviewed the Applicants’ January 13, 2021 license transfer application. Instead, the Commission initiated NEPA review subsequent to its Transfer Order. Notice of Intent to Prepare an Environmental Impact Statement for the Proposed Lower Klamath Project Surrender and Removal and Request for Comments on Environmental Issues, Schedule for Environmental Review, and Notice of Public Virtual Scoping Sessions, 86 Fed. Reg. 33,262 (June 24, 2021). As noted above, the parties have sought transfer of the License for the sole purpose of effecting the decommissioning on the Lower Klamath Project.

Subsequent to the Commission’s March 15, 2018 Order, Siskiyou County sought clarification confirming that the Commission intended to satisfy its NEPA requirements and complete an EIS evaluating the environmental impacts of decommissioning and removing the four dams in the Lower Klamath Project prior to making a decision regarding PacifiCorp’s License Transfer Application. The Commission’s March 15, 2018 Order had expressly noted Siskiyou County’s concern "that the Commission cannot transfer the license to [KRRC] without completing an environmental review of the entire river system under [NEPA] that adequately discusses adverse impacts of dam removal and alternatives to dam removal." PacifiCorp, 162 FERC ¶ 61,236 at ¶ 26; see also id. at ¶ 27. The Commission later explained that:

Many of the comments we received in this proceeding concern the decommissioning and removal of the Lower Klamath Project facilities from the river, and the environmental impacts from those actions. Those comments are beyond the scope of this order, which considers only the application for amendment of PacifiCorp’s license. Those impacts will be considered when the Commission takes up the applications for transfer and surrender of the Lower Klamath Project facilities.

PacifiCorp, 162 FERC ¶ 61,236 at ¶ 34 (emphasis added). Thus, the Order implied that the Commission would commence NEPA review when it "[took] up" PacifiCorp’s transfer application.

In its 2020 order granting the Partial Transfer, the Commission inexplicably walked back its previous commitment to consider the environmental impacts associated with decommissioning and removal of the Lower Klamath Project when it "[took] up the application for transfer and surrender of the Lower Klamath Project facilities," id., and instead, asserted that "it has never been the Commission’s intent to prepare a NEPA document prior to acting on the transfer." PacifiCorp, 172 FERC ¶ 61,062 at ¶ 34.

NEPA requires federal agencies to prepare an EIS for all "major Federal actions significantly affecting the quality of the human environment . . . ." 42 U.S.C. § 4332(2)(C). Current CEQ regulations define a "[m]ajor Federal action" as an "activity or decision subject to Federal control and responsibility..." 40 C.F.R. § 1508.1(q).4 The same definition indicates that major federal actions tend to fall within one of several categories, including "[a]pproval of specific projects, such as construction or management activities located in a defined geographic area…" and "include actions approved by permit or other regulatory decision as well as Federal and federally assisted activities." Id. at (q)(3)(iv).

4 The definition of "major federal action" was previously found at 40 C.F.R. § 1508.18 and described as "action[] with effects that may be major and which are potentially subject to Federal control and responsibility."

Effects, for the purposes of the regulations, mean "changes to the human environment from the proposed action or alternatives that are reasonably foreseeable and have a reasonably close causal relationship to the proposed action or alternatives, including those effects that occur at the same time and place as the proposed action or alternatives and may include effects that are later in time or farther removed in distance from the proposed action or alternatives." 40 C.F.R. § 1508.1(g).5

5 Previous regulations defined "effects of the action" to include "(a) [d]irect effects, which are caused by the action and occur at the same time and place," and "(b) [i]ndirect effects, which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable." 40 C.F.R. § 1508.8.

Courts have held that when a federal action "is part of a systematic and connected set of agency decisions which result in the commitment of substantial federal resources for a statutory program" and will result in environmental impacts, "[it] is [a] NEPA major federal action." Westlands Water Dist. v. U.S. Dep't of Interior, Bureau of Reclamation, 850 F. Supp. 1388, 1422 (E.D. Cal. 1994); c.f. San Luis Obispo Mothers for Peace v. Nuclear Regulatory Comm'n, 449 F.3d 1016, 1031 (9th Cir. 2006) (noting that NEPA requirements are not triggered when the causal chain between the agency action and environmental impacts is "remote and highly speculative").

Here, there can be no question that the Commission’s Transfer Order approving PacifiCorp’s license transfer application will reasonably and foreseeably cause environmental impacts that would significantly affect the quality of the human environment. As PacifiCorp previously has explained to the Commission, KRRC is "a dam removal entity", and the license transfer to KRRC is not for its continued operation of the project. Rather, license transfer is so KRRC can "seek authorization to physically remove the developments", which removal is the only reason for KRRC’s existence and it’s only interest in the license. See Motion to Stay or, in the Alternative, Limited Request for Rehearing of PacifiCorp for Project Nos. 2082-062 and 14803-000 at p. 5 (April 16, 2018).

5 Previous regulations defined "effects of the action" to include "(a) [d]irect effects, which are caused by the action and occur at the same time and place," and "(b) [i]ndirect effects, which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable." 40 C.F.R. § 1508.8.

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interest concerns" and that "[t]he Commission has not previously considered an application to transfer a license to a new entity whose sole purpose is to surrender the license and decommission the project, as is the case here." PacifiCorp, 162 FERC ¶ 61,236 at ¶¶ 51, 50. The Commission further acknowledged the parties’ NEPA concerns and "the environmental impacts" arising from "the decommissioning and removal of the Lower Klamath Project facilities from the river." These impacts include, inter alia, potential harm to multiple fish species protected under federal and state law, the anticipated release of millions of cubic yards of contaminated sediment, and the loss of regional water storage capacity that has multiple benefits including drought mitigation and protection from wildfires. See id. at ¶¶ 22, 25-29.

In other words, this is an instance where the Commission explicitly acknowledged that its decision to approve the license transfer from PacifiCorp to "a new entity whose sole purpose is to surrender the license and decommission the project" is not a circumstance where transfer results in continuance of the status quo; rather, license transfer to "a dam removal entity" will invariably result in a "major federal action significantly affecting the quality of the human environment." See Am. Rivers v. F.E.R.C., 201 F.3d 1186, 1200 (9th Cir. 1999) (citing Edwards Mfg. Co., 81 Fed. Energy Reg. Comm'n Rep. (CCH) ¶ 61,255 (Nov. 25, 1997) ("explaining that the decision to deny relicensing and to require dam removal constitutes a major federal action")); LaFlamme v. F.E.R.C., 852 F.2d 389, 400 (9th Cir. 1988) ("NEPA clearly requires that consideration of the environmental impacts of proposed projects take place before any licensing decision is made."). That the States of Oregon and California joined the License Transfer Application does not change this basic fact.

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As set forth in NEPA implementing regulations, NEPA is "a procedural statute intended to ensure Federal agencies consider the environmental impacts of their actions in the decision-making process." 40 C.F.R. § 1500.1. These regulations require that an agency analyze "effects or impacts" of an action, which are those "changes to the human environment…that are reasonably foreseeable and have a reasonably close causal relationship to the proposed action…" 40 C.F.R. § 1508.1(g).6 NEPA regulations further require that in considering whether effects of a proposed action are significant, an agency "should consider connected actions…" 40 C.F.R. § 1501.2. Connected actions are those that are "closely related" to the proposed action and "should be discussed in the same [EIS]" under certain circumstances, including when they "[c]annot or will not proceed unless other actions are taken previously or simultaneously…" 40 C.F.R. § 1501.9(e)(1)(ii).

6 Under previous NEPA regulations, the Commission was required to consider connected actions, cumulative actions, and similar actions in an EIS. Myersville Citizens for a Rural Cmty., Inc. v. F.E.R.C., 783 F.3d 1301, 1326 (D.C. Cir. 2015).

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Courts have held that "[a]n agency impermissibly ‘segments’ NEPA review when it divides connected, cumulative, or similar federal actions into separate projects and thereby fails to address the true scope and impact of the activities that should be under consideration." Del. Riverkeeper Network v. F.E.R.C., 753 F.3d 1304, 1313 (D.C. Cir. 2014) (internal quotation marks omitted). Two discrete projects are deemed "connected actions" under the "independent utility test" if one project "could not proceed" "but for" the contemplated second project. Wetlands Action Network v. U.S. Army Corps of Engineers, 222 F.3d 1105, 1118 (9th Cir. 2000), abrogated on other grounds by Wilderness Soc. v. U.S. Forest Serv., 630 F.3d 1173 (9th Cir. 2011); 40 C.F.R. § 1508.25(a)(1)(iii).

As demonstrated below, the License Transfer Application and surrender applications are "connected" actions constituting a single project that should be considered in concert for NEPA review. When the Commission approved a partial transfer of the Lower Klamath Project to KRRC, it did so contingent on PacifiCorp remaining as a co-licensee. PacifiCorp, 172 FERC ¶ 61,062 (2020) ("July 16 Partial Transfer Order"). In its Partial Transfer Order, the Commission explained that approving surrender of the License from PacifiCorp to KRRC would not be in the public interest given the "magnitude of the proposed decommissioning, the uncertainties attendant on final design and project execution, and the potential impacts of dam removal on public safety and the environment." Id. at ¶ 45. According to the Transfer Order, at the time of the Partial Transfer, although the Commission was "generally satisfied that [KRRC had] the capacity to carry out its proposed decommissioning, the Commission determined it was appropriate to require PacifiCorp to remain on as a co-licensee" so that "PacifiCorp could provide legal and technical support, as well as further assurance that there would be sufficient funding to carry out decommissioning." PacifiCorp, 175 FERC ¶ 61,236 at ¶ 11. Following the

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Partial Transfer Order, PacifiCorp, KRRC, the States of Oregon and California, and others entered into an MOA in which the various parties agreed that PacifiCorp would request to transfer its license to KRRC and the States of Oregon and California as co-licensees. Id. at ¶ 12. It was pursuant to this MOA that the Application was filed on November 17, 2020. Id. ¶ 13. The Application stated specifically that it was "based on and builds off the Commission’s conclusions" set forth in the Partial Transfer Order. Id. at ¶ 14. The Transfer Order further notes that "[h]aving the States as co-licensees would provide additional legal and technical expertise, as well as further assurance there would be sufficient funding to carry out the surrender proposal if approved." Id. at ¶ 31. And, finally, the Transfer Order explains that "…[KRRC], along with the States of Oregon and California, intends to decommission and remove the Lower Klamath Project." Id.

CEQ regulations state that "[a]gencies shall evaluate in a single environmental impact statement proposals or parts of proposals that are related to each other closely enough to be, in effect, a single course of action." 40 C.F.R. § 1502.4(a) (emphasis added). Accordingly, it would be impermissible for FERC to segment the project and only commence NEPA review at the "surrender" portion of the proceeding. See North Carolina v. City of Virginia Beach, 951 F.2d 596, 603 (4th Cir. 1991) (in determining whether illegal segmentation has occurred, courts

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The most basic NEPA requirement is one of timing: agencies must take the environmental consequences of their proposed actions into account before they commit to a project. 40 C.F.R. § 1501.2 (requiring that an agency "commence[] its NEPA process at the earliest reasonable time. . ."); see also Calvert Cliffs' Coordinating Commission v. AEC, 449 F.2d 1109, 1112 (D.C. Cir. 1971) (holding that FERC, like all agencies, are subject to a "strict standard of compliance" with NEPA). Under current NEPA regulations, where an EIS is required, federal agencies are to "commence the [EIS] as soon as practicable after receiving [an

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CEQ regulations forbid agencies such as FERC from "commit[ting] resources prejudicing selection of alternatives before making a final decision." 40 C.F.R. § 1502.2(f). CEQ further requires that an EIS "serve as the means of assessing the environmental impact of proposed agency actions, rather than justifying decisions already made." Id. at (g). "[T]he EIS . . . is not an end in itself, but rather a means toward the goal of better decision-making." North Slope Borough v. Andrus, 642 F.2d 589, 599-600 (D.C. Cir. 1980). More specifically, "[f]or applications to the agency appropriate environmental assessments or statements shall be commenced no later than immediately after the application is received." Id. "The rationale behind this rule is that inflexibility may occur if delay in preparing an EIS is allowed: After major investment of both time and money, it is likely that more environmental harm will be tolerated." Confederated Tribes and Bands of the Yakima Indian Nation v. F.E.R.C., 746 F.2d 466, 471-72 (9th Cir. 1984) (internal quotations omitted).

Here, FERC’s Transfer Order places the dam removal project one step closer to execution, which will entrench the parties’ positions and create increasing hostility toward additional environmental review that might prevent the project from overcoming any final regulatory barriers. See Envtl. Def. Fund, Inc. v. Andrus, 596 F.2d 848, 853 (9th Cir. 1979) (noting that delay in preparing an EIS may make all parties less flexible). Because CEQ regulations require it, see 40 C.F.R. § 1502.2, and because the Commission is obligated to avoid delay in preparing an EIS, see Andrus, 596 F.2d at 853, the Commission must set aside the Transfer Order and prepare its required EIS prior to making its decision on License Transfer Application.

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40 C.F.R. § 1508.1(x). The Transfer Order states that "[t]he record reflects that the [A]pplicants fully intend to transfer the project and that [KRRC] and the States [of Oregon and California] intend to decommission and remove the project, if surrender is approved." PacifiCorp, 175 FERC ¶ 61,236 at FN 65. Thus, it is clear that Commission issued the Transfer Order with full knowledge that the Transferees intend to decommission and remove the Lower Klamath Project and that transfer of the License was merely the first of several necessary steps. Additionally, in its March 15, 2018 Order, the Commission repeatedly characterized PacifiCorp’s application as a proposal to decommission and remove dams from the Lower Klamath Project. In other words, the Commission has long viewed transference of the License as a "proposed" action ripe for NEPA review. Because dam removal has been proposed since the time PacifiCorp and KRRC’s applications were submitted to FERC in 2016, FERC should have commenced its NEPA review process prior to issuing the Transfer Order.7

7 It should be noted that this is not a case where the dam removal project is only being contemplated as a hypothetical project – dam decommissioning was the ultimate and explicit proposal at issue in the previous proceeding, see PacifiCorp, 162 FERC ¶ 61,236 at ¶ 50 ("The Commission has not previously considered an application to transfer a license to a new entity whose sole purpose is to surrender the license and decommission the project, as is the case here."), and undergirds the entirety of the Transfer Order, see PacifiCorp, 175 FERC 61,236 at ¶¶ 16, 26. ("The States, as co-licensees, would provide additional experience related to large public infrastructure projects, including experience overseeing dam removal and operating projects…" and "[A]pplicants note that prompt action on the transfer application will allow [KRRC] and the States to position themselves such that they can ‘promptly commence dam removal activities’ should surrender ultimately be approved’"). In Kleppe v. Sierra Club, 427 U.S. 390, 404 (1976), the Supreme Court held that it was too premature for the Department of the Interior to prepare a regional EIS regarding a proposal seeking approval for private development of certain coal reserves on federal land. This was because the Department of the Interior was merely "contemplating" a regional development plan that had not reached the "proposed" stage. In other words, because "the contemplation of a project and the accompanying study thereof do not necessarily result in a proposal for major federal action," an EIS regarding a project that had not yet reached the proposal stage would be unnecessary. Id.; see also 42 U.S.C. § 4332(C)(i) (EIS required only for "proposed action[s]"). In contrast to the factual situation in Kleppe where the proposed action was only being contemplated as a hypothetical project, here a well-defined project has explicitly been proposed and will move forward toward completion if the Transfer Order is not withdrawn.

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Finally, there are "exceptional circumstances" here that preclude the application of any NEPA categorical exclusion available to FERC transfer decisions. If an action falls within an adopted categorical exclusion, the agency is typically not required to prepare an EIS or an EA. 40 C.F.R. §§ 1501.4, 1508.1(d). Under FERC regulations, the transfer or surrender of a dam license "that do[es] not require ground disturbing activity or changes to project works or operation" are considered "categorically excluded" from NEPA review. 18 C.F.R. § 380.4(a)(8), (13). Nonetheless, CEQ regulations require that where an agency "determines a categorical exclusion identified in its agency NEPA procedures covers a proposed action," the agency must "evaluate the action for extraordinary circumstances in which a normally excluded action may have a significant effect." 40 C.F.R. § 1501.4(b). Where an agency cannot categorically exclude a proposed federal action, the agency "shall prepare an environmental assessment or [EIS]." Id. at (b)(2); see also 18 C.F.R. § 380.4(b) (FERC regulations creating "exceptions to categorical exclusions"). Under current NEPA regulations, where an EIS is required, federal agencies are to "commence the [EIS] as soon as practicable after receiving [an] application." 40 C.F.R. § 1502.5(b).

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acutely aware that issuance of the Transfer Order will invariably lead to dam removal. See PacifiCorp, 162 FERC ¶ 61,236 at ¶ 51("[t]he Commission has not previously considered an application to transfer a license to a new entity whose sole purpose is to surrender the license and decommission the project, as is the case here."); PacifiCorp, 175 FERC ¶ 61,236 at ¶ 26 ("The applicants note that prompt action on the transfer application will allow [KRRC] and the States to position themselves such that they can ‘promptly commence dam removal activities’ should surrender ultimately be approved."). Given the likelihood of significant environmental impacts stemming from the Commission’s Transfer Order, NEPA review is warranted.

Moreover, this case is distinguishable from precedent that has touched on this issue. In Town of Norwood v. F.E.R.C., 202 F.3d 392, 406-407 (1st Cir. 2000) and New England Power Company, et al., 83 FERC ¶ 61,272 at 62,132-33 (1998), the Commission did not prepare an EIS in connection with either dam license transfer application at issue because those licenses were simply being transferred from one operating entity to another, with no change in the dam’s operational activities. See Norwood, 202 F.3d at 406 (upholding FERC’s decision not to conduct an EA or EIS when it granted a hydroelectric license transfer, noting that "FERC was understandably skeptical of the environmental claim; building and operating a major new dam is likely to have environmental consequences, but the transfer of existing facilities from one large utility to another is simply a change in ownership"); New England Power Company, et al., 83 FERC ¶ 61,272 at 62,132-33 (declining to consider NEPA review when "[petitioner] has not provided any explanation of how, in its view, the transferee's operation of the projects under those licenses would in any way differ materially from the transferor's operation of the projects under those same licenses"). In contrast, the Commission here has previously observed in connection with the 2018 Order that this is a unique and unprecedented situation where the dam

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license is being transferred to an entity "whose sole purpose is to surrender the license and decommission the project." PacifiCorp, 162 FERC ¶ 61,236 at ¶ 51. Although the States of Oregon and California were added to the application after the 2018 Order, the States were not added to provide new alternatives to decommissioning of the Lower Klamath Project. Rather, and as noted above, the States were added as Transferees in order to "provide additional legal and technical expertise, as well as further assurance there would be sufficient funding to carry out the surrender proposal if approved." PacifiCorp, 175 FERC ¶ 61,236 at ¶ 31. Thus, no categorical exclusion should apply – an EIS must be prepared in advance of the Commission’s decision on the License Transfer Application.

There is FERC precedent for requiring NEPA review to an otherwise categorically excluded action. In S. California Edison Co. & San Diego Gas & Elec. Co., 49 FERC ¶ 61091, 61357 (Oct. 27, 1989), the Commission agreed that it was required to conduct an EA/EIS pursuant to 18 C.F.R. § 380.4(b) in approving a merger between Southern California Edison and San Diego Gas and Electric, where the record indicated "that the proposed merger could add hundreds of tons of additional air contaminants to the most polluted air in the Nation." Merger approval is otherwise "categorically excluded" from NEPA compliance. But because the record indicated the likelihood of environmental impacts due to the merger, FERC ordered NEPA review anyway. Here, as in S. California Edison, the record indicates, and FERC has acknowledged, environmental impacts as a result of this project arising from decommissioning the Lower Klamath Project dams. Because FERC’s action may significantly affect the environment, the categorical exclusions should not apply.

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/s/ Paul S. Weiland Paul S. Weiland (CA Bar No. 237058) pweiland@nossaman.com
18101 Von Karman Avenue, Suite 1800 Irvine, CA 92612
Tel: 949.833.7800
Fax: 949.833.7878

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I hereby certify that on this 16th day of July 2021, I served a copy of the foregoing document by electronic means upon each person designated on the official service list compiled by the Office of the Secretary in the above-captioned proceedings.

/s/ Amy R. Taylor____________________ Amy R. Taylor

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