In Wake Of Court Decision Requiring FERC To Consider GIPA Proposal: Schumer To FERC: Enough Is Enough, Time To Drop Opposition And Reopen Competitive Licensing At Cohoes Falls; New Court Decision Gives GIPA Second Chance

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Schumer Calls On FERC Not To Appeal Recent Court Ruling Allowing Them to Evaluate Green Island Power Authority's Proposal For Power Plant On Cohoes Falls

FERC Had Previously Refused To Consider GIPA's Proposal On Procedural Ground; Court Rejected FERC's Reasoning

Schumer: FERC Has The Opportunity to Restore a True Natural Landmark to Its Glory, Re-Create A Tourist Attraction and Triple Low Cost, Renewable Power for Use In The Capital Region

U.S. Senator Charles E. Schumer today called on the Federal Energy Regulatory Committee (FERC) not to appeal the recent court ruling that would allow it to evaluate the Green Island Power Authority's (GIPA) proposal for a 100-megawatt hydro power plant at Cohoes Falls, and to reopen the competitive licensing processes. Since 2005, Schumer has been urging FERC to consider the GIPA proposal, but FERC has refused on procedural grounds, claiming that it was prohibited from evaluating proposals that were not submitted as part of the original set of proposals in 1991. Earlier this month, the United States Court of Appeals, 2nd Ct., in the case Green Island Power Authority v. Federal Energy Regulatory Commission, ruled that FERC's reasoning was unsound, and that it had the ability to consider the GIPA proposal. Today Schumer called on FERC to respect the court's ruling, not appeal the decision, and to finally open the process to competing proposals.

“The court has spoken - it's time to open up this process, end the bureaucratic wrangling, and allow the bold endeavor of restoring the falls to its original grandeur to finally move forward,” Schumer said. “Cohoes Falls has the potential to be an environmental gem and economic engine of the Capital Region, boosting tourism, luring businesses, and creating jobs. The new license is good for the next 40 years, so we owe it to future generations to get this right.”

The Cohoes Falls are the second highest waterfalls in New York State. Since 1911, the Mohawk River flow has been diverted through a canal to the hydroelectric plant adjacent to the falls on School Street. The diversion leaves a one mile stretch of the Mohawk River, including the Cohoes Falls, virtually dry much of the year. The Green Island Power Authority (GIPA) has proposed building a new 100-megawatt hydro plant at the falls for years, but FERC has refused to consider its application and two years ago granted Brookfield Renewable Energy, a Canadian company, a new 40-year license for the present facility.

FERC has claimed that its regulations require it to consider only applications that were filed in 1991 as the former license was expiring. At that time Niagara Mohawk owned the facility and New York's regulated electric industry permitted NIMO to have a monopoly, and no other entity challenged for the license. After the state deregulated the industry, NIMO sold the facility, and now it has been resold several times since. In the intervening years, the Green Island Power Authority has proposed an alternate plan for Cohoes Falls that would completely rewater the falls from bank to bank every day of the year, while tripling the amount of clean, renewable energy that is produced at the site. The GIPA proposal would keep most of the power produced in the Capital Region, to help attract businesses and reduce municipal costs. In addition, it would include state-of-the-art fish protection that would make the falls more environmentally friendly and help restore the fishery in the region. Yet despite these sales and the deregulation of the industry, as well as almost two decades of technological advances, FERC maintained that it could not consider any proposal that was not filed in 1991.

Between 1991, when the previous 40 year license expired, and 2007, when FERC granted a full 40 year license to another company, the old license was just renewed each year.

Schumer has a long history of fighting for a relicensing process that would include all interested parties. In 2005 he wrote to Patrick Wood III, the chairman of FERC at the time, asking him to reconsider the decision to dismiss the Green Island Power Authority's proposal on procedural grounds. Subsequently, after Schumer was told by FERC that only a change in the law would allow them to consider a proposal that was not filed at the beginning of the process; he introduced legislation that would open up the relicensing process to any interested parties in cases that sat unresolved for more than ten years.

On August 10, 2009, the United States Court of Appeals, 2nd Ct., in the case Green Island Power Authority v. Federal Energy Regulatory Commission, found essentially what Senator Schumer has been urging for years. The Court found that FERC had been “arbitrary and capricious” in denying interested parties the opportunity to intervene in the School Street relicensing proceeding. The Court granted GIPA's petitions for review of the FERC orders denying its motion to intervene and denying its request for rehearing of that decision, and the court vacated FERC's 2007 order issuing a new 40-year license to Erie Boulevard Hydropower, L.P. for the School Street Project. Judge Sonia Sotomayor was a member of the panel that received the filings and heard the oral arguments for this case before being appointed to the United States Supreme Court.

Now that the court has ruled that FERC has the ability to consider proposals filed after 1991, Schumer is calling on FERC to not appeal the ruling, and to open up the process to all interested parties.

In the letter, Schumer wrote: “I strongly urge FERC to heed the Court's decision and end its opposition to the intervention requests of GIPA and other interested parties and also to properly consider available alternatives that are better adapted to development of the public resource”

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