Abstract
This chapter provides an overview of the Canadian and U.S. decisionmaking processes potentially applicable to Fundy tidal power and highlights the legal and administrative uncertainties inherent in federal review mechanisms, state and provincial permit procedures, and judicial proceedings. The first section examines the U.S. framework of state and federal laws which would impose technological and environmental review requirements on a domestic hydro-electric project or a Canadian Fundy tidal power project. The chapter next reviews the Canadian legal framework for regulating tidal power development and focuses on the regime most likely to apply to the Fundy Tidal Power proposals. The final section compares the American and Canadian legal systems for controlling hydro-electric projects and concludes by analyzing which system is better equipped to address concerns over long-range, indirect environmental effects. Chapter 4 then examines this question in considerable detail, focusing on specific instances where the two systems were called upon to consider indirect and transboundary environmental effects.
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Notes
The section of this chapter describing the U.S. legal framework is an excerpt from Massey, “Tidal Power Development: Environmental Decisionmaking in the United States,” 3 Can.-Am. L.J. (1984), reprinted with permission of the Canadian-American Law Journal of the Gonzaga University School of Law, Spokane, WA.
Public Utilities Regulatory Policy Act of 1978, Pub. L. 95–617, 92 Stat. 3117 (codified at 16 U.S.C. §§ 2601–2645 and other scattered sections of U.S.C. (1982)).
See,e.g., Energy Law Institute, Federal Legal Obstacles and Incentives to the Development of the Small Scale Hydroelectric Potential of the Nineteen Northeastern United States (1980); Scotch, “Small Hydropower Development and the Environment: A Survey of State and Federal Law,” 5 Vt. L. Rev. 251 (1980); Burke, “Small Scale Hydroelectric Development and Federal Environmental Law: A Guide for the Private Developer,” 9 B.C. Env. Aff. L. Rev. 815 (1981–1982).
U.S.C. §§ 1301–1303, 1311–1315 (1982).
Id. § 1311(d).
M.R.S.A. § 558 (1981).
U.S.C. § 814 (1982).
U.S.C. §§ 791a-793, 795–818, 820–825r (1982).
U.S.C. § 797(e) (1982).
U.S.C. § 803(a) (1982).
See Udall v. Federal Power Commission, 387 U.S. 428 (1967); Pacific Power Light v. Federal Power Commission, 333 F.2d 689 (9th Cir. 1964), cert. denied, 379 U.S. 969 (1964). 16 U.S.C. § 811 also provides specifically that: “The Commission shall require the construction, maintenance, and operation by a licensee at its own expense ofChrw(133) such fishways as may be prescribed by the Secretary of the Interior or the Secretary of Commerce as appropriate.”
Arnold, “Emerging Possibilities for State Control of Hydro-electric Development,” 13 Envtl L. Rep. (Envtl L. Inst.) 10135 (1983).
Monongahela Power Co. v. Alexander, 507 F.Supp. 385 (D.D.C. 1980) (decision pending D.C. Cir.).
First Iowa Hydro-Electric Cooperative v. Federal Power Commission, 328 U.S. 152 (1946); see Town of Springfield v. Vermont Environmental Board, 521 F. Supp. 243 (D.Vt.1981) (following First Iowa); Town of Springfield v. McCarren, 549 F. Supp. 1134 (D.Vt.1982) (following First Iowa), aff’d No. 82–7837 slip op. (2d Cir. Feb. 16, 1983), cert. denied, U.S.,78 L. Ed. 2d 322 (1984).
See Arnold, supra note 32.
U.S.C. § 401 (1982).
U.S.C. § 403 (1982).
C.F.R. § 320.3(f) (1982). See Scenic Hudson Preservation Conference v. Callaway 370 F.Supp. 162, 167 (S.D.N.Y. 1973), aff’d per curiam, 499 F.2d 127 (2d Cir. 1974) (holding that Corps § 10 authority is preempted by the licensing authority of the Federal Power Act).
For an exhaustive discussion of § 404, see, Blumm, “The Clean Water Act’s Section 404 Permit Program Enters Its Adolescence: An Institutional and Programmatic Perspective,” 8 Ecol. L.Q. 409 (1980); also see Parish Morgan, “History, Practice and Emerging Problems of Wetlands Regulations: Reconsidering Section 404 of the Clean Water Act,” 17 Land Water L. Rev. 43 (1982).
“Fill” is very broadly defined in 18 C.F.R. § 323.2(n); “dams and dikes” are specifically included as activities that meet the definition, and therefore require § 404 permits.
But see Monongahela Power Co. v. Alexander 507 F. Supp. 385 (D.D.C. 1980) (decision pending, D.C. Cir.). This case holds that FERC has exclusive preemptive regulatory power over hydro-electric dams under the Federal Power Act, and therefore the Corps lacks jurisdiction to grant or deny 404 permits or, by implication, any other permits, such as § 10 permits. This decision directly conflicts with the holding in Scenic Hudson Preservation Conference v. Calloway, 370 F. Supp. 162 (S.D.N.Y. 1973), aff’d per curiam, 499 F.2d 127 (2d Cir. 1974). Although the D.C. District Court attempts to in effect “overrule” Scenic Hudson, conflict within the circuits can ultimately only be resolved by a Supreme Court decision or by clarifying Congressional legislation.
U.S.C. § 1344(r) (1982).
C.F.R. § 320.4(j) (1982).
U.S.C. § 1341 (1982).
33 C.F.R. § 325.2(6)(1)(2) (1982). See text infra at notes 105–112 for further discussion of Coastal Zone Management Act requirements.
C.F.R. pt. 230 (1982).
U.S.C. § 1344(b)(1) (1982).
C.F.R. § 230.1 (1982).
C.F.R. § 325.8(d)(6) (1982).
U.S.C. § 1344(c) (1982).
As of the end of 1983, this authority had been invoked only once, in 1980, [14 Current Developments] Env’t Rep. (BNA) 1395 (Dec. 2, 1983), but EPA has three section 404(c) veto proceedings currently pending. [15 Current Developments] Env’t Rep. (BNA) 579 (Aug. 10, 1984).
Codified as amended at 42 U.S.C.A. §§ 4321–4370 (West 1977 Supp. 1983).
Id. at § 4332.
C.F.R. parts 1500–1508 (1982).
“Council on Environmental Quality Guidance on National Environmental Policy Act Regulations,” 48 Fed. Reg. 34263 (July 28, 1983); see 40 C.F.R. § 1500.1 (1982).
See,e.g., the statement of policy at 40 C.F.R. § 1500.1(d) (1982): “NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. The information must be of high quality. Accurate scientific analysis, expert agency comments and public scrutiny are essential to implementing NEPA.”
C.F.R. § 1500.14 (1982).
C.F.R. § 1502.22 (1982).
18 C.F.R. § 2.81(a)(1)(i) (1982).
For discussions of “worst case analysis,” its uses and its deficiencies, see Comment, “CEQ’s ‘Worst Case Analysis’ Rule for EISs: `Reasonable’ Speculation or Crystal Ball Inquiry?”, 13 Envt’l L. Rep. (Envt’l L. Inst.) 10069 (1983); Comment, “Update: The NEPA Worst Case Analysis Regulation,” 14 Envt’l L. Rep. (Envt’l L. Inst.) 10267 (1984).
Exec. Order No. 12,114, 44 Fed. Reg. 1,957 (1979) reprinted in 42 U.S.C. § 4321 (Supp. V 1981).
Wilderness Society v. Morton,463 F.2d 1261 (D.C. Cir. 1972) (Court grants standing to Canadian Wildlife Federation and a Canadian citizen to intervene in NEPA suit against U.S. Secretary of Interior to require preparation of impact statement on Alaskan Pipeline; of particular interest is note 2 of that opinion, stating in part: “Interestingly, the pipeline appellee, but not the Government, asserts that claims of the kind asserted by appellants when made by non-United States citizens, are non-justiciable under the doctrine of separation of powers. We find the contention without meritChrw(133).”); People of Enewetak v. Laird, 353 F. Supp. 811 (D. Hawaii 1973) (determination that NEPA applies to U.S. Trust Territories); Sierra Club v. U.S. Atomic Energy Commission, No. 1867–73, 4 Envtl L. Rep. (Envtl L. Inst.) 20685 (D.D.C. Aug. 3, 1974) (Court orders AEC to prepare EIS dealing generally with the nuclear power export process, based on international and bilateral “Agreement/s for the Cooperation Concerning Civil Uses of Atomic Energy” concluded pursuant to 42 U.S.C. § 2153); Environmental Defense Fund v. U.S. Agency for International Development, No. 75 Civ. 500, 6 Envtl L. Rep. (Envtl. L. Inst.) 20121 (D.D.C. Dec. 5, 1975) (Court orders AID to promulgate NEPA regulations and to prepare programmatic EIS on all its activities supporting pesticide procurement and use abroad); Sierra Club v. Coleman (I), 405 F. Supp. 53 (D.D.C. 1975), Sierra Club v. Coleman (II), 421 F. Supp. 63 (D.D.C. 1976) (issuance of preliminary injunction against U.S. aid in construction of Darien Gap Highway in Panama and Columbia, pending preparation of Environmental Impact Statement and general compliance thereof and continuance of injunction following preparation of EIS based on inadequacy of EIS discussion of certain environmental impacts, primarily control of the spread of a cattle disease known as aftosa or “foot and mouth” disease), rev’d sub nom. Sierra Club v. Adams, 578 F.2d 389 (D.C. Cir. 1977) (questions of standing of plaintiff to challenge adequacy of statement regarding local effects discussed, assuming, without resolution of the question, the applicability of NEPA to construction in Panama, Id. at n. 14); In the Matter of Babcock Wilcox, No. 50–571, 7 Envtl L. Rep. (Envtl L. Inst.) 30017 (N.R.C. June 27, 1977) (determination that West German citizens’ group lacked standing to intervene in licensing proceeding for exporting nuclear reactor components to West Germany, and that a generic EIS on the nuclear export program having been prepared, no further EIS was required for actions affecting only the local environment of foreign nations); Natural Resources Defense Council Inc. v. Eximbank,No. 77–0080 (D.D.C. Jan. 14, 1979) (a catalyst for the issuance of Executive Order 12,114, case seeking to require Eximbank to comply with NEPA in its activities, resolved by Executive Order 12,114 § 3–4 excluding direct loans to finance imports from the general exemption from environmental assessment for export approvals, i.e., while a complete EIS need not be prepared, an environmental assessment must); NORML v. U.S. Dept. of State, 452 F.Supp. 1226 (D.D.C. 1978) (Court issues declaratory judgment that State Department must prepare EIS on impact within United States of U.S. sponsored pesticide spraying of marijuana and poppies in Mexico, without deciding the question of the extraterritorality of NEPA); Natural Resources Defense Council Inc. v. Nuclear Regulatory Comm’n, 647 F.2d 1345 (D.C. Cir. 1981) (Court decides that NRC export of nuclear reactor and related materials to the Philippines does not require environmental assessment either under the Atomic Energy Act or NEPA, leaving open the question of whether NEPA might be applicable to some other kind of major federal action abroad).
See, e.g., Note, “Environmental Restrictions: Extraterritorial Reach of United States Environmental Quality Standards - Natural Resources Defense Council, Inc. v. Nuclear Regulatory Comm’n, 647 F.2d 1345 (D.C. Cir. 1981),” 2 Harv. Int’l L.J. 676 (1981); Comment, “Renewed Controversy over the International Reach of NEPA,” 7 Envtl. L. Rep. (Envtl L. Inst.) 10204 (1977); Note, “The Extraterritorial Scope of NEPA’s Environmental Impact Statement,” 74 Mich. L. Rev. 349 (1975); Robinson, “Extraterritorial Environmental Protection Obligations of Foreign Affairs Agencies: The Unfulfilled Mandate of NEPA,” 7 N.Y.U. J. of Int’1 L. and Pol. 257 (1974).
See “CEQ Draft Regulations on Applying NEPA to Significant Foreign Environmental Effects,” [8 Current Developments] Env’t. Rep. (BNA) 1495 (1978).
E.g., Note, “Agency Responses to Executive Order 12,114: A Comparison and Implications,” 14 Cornell Int’l L.J. 481 (1981); Note, “The Extraterritorial Application of NEPA under Executive Order 12,114,” 13 Vand. J. Transnat’l L. 173 (1980); Comment, “Federal Agency Responsibility to Assess Extraterritorial Impacts,” 14 Tex. Int’l L.J. 425 (1979); Comment, “President Orders Environmental Review of International Actions,” 9 Envtl. L. Rep. (Envtl. L. Inst.) 10011 (1979).
Exec. Order No. 12,114, § 1–1, supra note 41.
U.S.C. §§ 1401–1445 (1982)
U.S.C. §§ 1501–1524 (1982).
Exec. Order No. 12,114, § 1–1, supra note 41.
Id. § 2.
Id. § 2–4(a)(iii)
Id. 4(b)(i).
Id. § 2–5
Id. § 3–1.
Id. § 3–5 (emphasis added).
But see Comment, 14 Tex. Intl L.J. 425, supra note 45, at 450; Comment, 9 Envtl. L. Rep. 10,011, supra note 45, at 10,015.
See Exec. Order No. 12,114 § 2–3(b), supra note 41.
See discussion supra note 42.
Comment, 9 Envtl. L. Rep. 10,011, supra note 45, at 10,016.
Comment, 14 Tex. Int’l L.J. 425 supra note 45, at 450–51.
Codified as amended at 16 U.S.C. §§ 661 to 669g-1 (1982).
Id. § 662(a).
Id. §§ 662(a),(b).
Cf. 42 U.S.C. § 4332 and 16 U.S.C. § 662(a).
The reporting agency is defined earlier in the section as “any agency of the federal government responsible for engineering surveys and construction of such projects when such reports are presented to the Congress or to any agency or person having the authorityChrw(133) to authorize the construction of water resource development projectsChrw(133).” This would apply to the Army Corps of Engineers, giving them rather than U.S.F.W.S. the determination of which measures are “justifiable”.
U.S.C. § 662(b) (1982) (emphasis added).
See U.S. Fish and Wildlife Service Mitigation Policy, 46 Fed. Reg. 7644, 7647, 7654 (Jan. 23, 1981), interpreting Fish and Wildlife’s authority to be advisory only, with the permitting agency having the final say. However, 16 U.S.C. § 663(a) provides that when the United States (as opposed to a utility or private developer) undertakes development of waterways, “adequate provisionChrw(133) shall be made for the conservation, maintenance and management of wildlife resourcesChrw(133) andChrw(133) habitat, including the development and improvement of such wildlife resourcesChrw(133).” Section 18 of the Federal Power Act, 16 U.S.C. § 811 requires the inclusion of fishways when recommended (see note 31, supra), but this has been interpreted by the Department of Interior’s Fish and Wildlife Service to apply only to hydro-electric projects in “specific withdrawn public lands.” U.S. Fish and Wildlife Service Mitigation Policy, supra, at 7660 Finally, § 30 of the Public Utilities Regulatory Policy Act of 1978 (PURPA), 16 U.S.C. § 823a provides that for certain conduit hydroelectric facilities to qualify for an exemption from licensing they must comply with terms and conditions enforced by U.S.F.W.S. and/or the responsible state agency.
Pub. L. No. 93–205, 87 Stat. 884 (codified as amended at 16 U.S.C. §§ 1531–1543 (1982)).
Pub. L. No. 92–522, 86 Stat. 1027 (codified as amended at 16 U.S.C. §§ 1361–1407 (1982)).
Id. § 1361(b).
See,e.g., Pittston Co. v. Endangered Species Committee, 14 (Env’t Rep. Cas.) 1257 (D.D.C. 1980); Roosevelt Campobello International Park v. United States Environmental Protection Agency, 684 F.2d 1041 (1st Cir. 1982).
U.S.C. § 1536 (1982).
Id. Sub-§(c).
TVA v. Hall, 437 U.S. 153 (1978).
U.S.C. § 1536(h) (1982).
See Conservation Law Foundation v. Andrus, 623 F.2d 712 (1st Cir. 1979) and North Slope Borough v. Andrus, 642 F.2d 489 (D.C. Cir. 1980) (addressing outer continental shelf oil and gas leases and endangered whales off Georges Bank and in the Beaufort Sea, respectively.)
U.S.C. §§ 470 to 470w-6 (1982).
Id. § 470a(a)(1).
U.S.C. §§ 469 to 469c-1 (1982).
Id. at § 469
U.S.C. §§ 1451–1464 (1982).
Pub. L. No. 94–370, 90 Stat. 1013.
U.S.C. § 1456a(c)(3) (1982).
See P. Eliopoulos, Coastal Zone Management: Program at a Crossroads (Env’t Rep. (BNA) Monograph No. 30, (1982)).
Maine’s plan, approved in September, 1978, is composed of eleven core laws including the Alteration of Coastal Wetlands law, 38 M.R.S.A. §§ 471–476. This statute requires that all applicants for a permit demonstrate to the municipality or the State Board of Environmental Protection, whichever is administering the law, that the proposed activity will not unreasonably interfere with existing recreational and navigational uses, nor cause unreasonable soil erosion, nor unreasonably interfere with the natural flow of any waters; nor unreasonably harm wildlife or freshwater, estuarine or marine fisheries; nor lower the quality of any waters. Id. § 474. What is “unreasonable” is a matter of agency discretion.
U.S.C. § 1456(c)(3)(a) (1982).
Id.
Id.
U.S. 152 (1946).
Passamaquoddy Tribal Council, Half Moon Cove Tidal Power U.S.A.: Application for License for Major Unconstructed Project for Project No. 3035 Before the Federal Energy Regulatory Commission, ii-v (June 16, 1983).
M.R.S.A. §§ 630–636 (West Supp. 1979–1983).
Id. § 634(1)
C.F.R. § 4.41(f)(2)(vii)(A) (1982).
P.L. 1983, ch. 458 (codified at 12 M.R.S.A. §§ 401–406 and scattered sections, 30 M.R.S.A. §§ 1961–1969 and scattered sections, 33 M.R.S.A. § 668 and 38 M.R.S.A. §§ 630–636 (Supps. 1983)).
Letter from C.M. Butler, Chairman, FERC to Gov. Joseph Brennan (Aug. 3, 1982), cited in Arnold, supra note 12, at 10,140 n. 69.
Supra note 12.
S. 2361, 98th Cong., 2d Sess. (1984).
F.Supp. 385 (D.D.C. 1980) (decision pending D.C. Cir.). In another case concerning preemption of federal authority, Escondido Mutual Water Co. v. Lalolla, Rincon, San Pasqual and Pala Bands of Mission Indians, 52 U.S.L.W. 4588 (U.S. May 15, 1984) the United States Supreme Court recently held that under the terms of the Federal Power Act, FERC had to impose on the license those conditions that the Secretary of Interior deemed “necessary for the protection and utilization of the reservation.” However, this decision does not necessarily preclude the District of Columbia Circuit from affirming the holding in Monongahela that Corps regulation under § 404 is preempted; the Federal Power Act nowhere specifically refers to conditions of the Corps with respect to wetlands being included in licenses, but then the Corps has only in the past decade undertaken wetlands regulation. The scope of FPA preemption remains uncertain except as to the issue specifically decided in Escondido.
See generally Randle, “Coastal Energy Siting Dilemmas,” 21 Nat. Res. J. 125 (1981)
See letter of transmittal from Ralph Dana, Governor, Passamaquoddy Tribe at the Pleasant Point Reservation, to Kenneth F. Plumb, Secretary, FERC (June 16, 1983), reprinted in Passamaquoddy Tribal Council, supra note 114 (indicating that the license application represented seven years of preparation). FERC rejected the revised license application for deficiencies on April 20, 1984; thus the tribal council lost its FERC preliminary permit giving it priority for development of the Half Moon Cove site.
Federal Power Act § 205, 16 U.S.C. § 824d (1982).
Federal Energy Regulatory Commission, 1979 Annual Report 42.
See Federal Power Act §§ 205, 206, 16 U.S.C. §§ 824d, 824e (1982).
Federal Power Act § 206, 16 U.S.C. § 824e.
Section 102 of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4332, requires Federal agencies to prepare detailed reports on the environmental effects of proposed major actions. See 40 C.F.R. § 1501.4 and pt. 1502 (1982) (Council on Environmental Quality regulations regarding when and how to prepare an “environmental impact statement.”) Also see 18 C.F.R. §§ 2.80–81 (1983) (FERC regulations implementing NEPA.)
42 U.S.C.A. §§ 4321–4370 (West 1976 Supp. V 1981).
Federal Power Act, § 202(e), 16 U.S.C. § 824a(e) (1982). The Secretary of the Department of Energy has succeeded to the authority under this provision formerly vested in the Federal Power Commission. Department of Energy Organization Act, Pub. L. 95–91, §§ 301(b), 402(f) 91 Stat. 577, 583, (codified at 42 U.S.C. §§ 7151(6) and 7172(f) (Supp. V 1982)).
Federal Power Act §202(f), 16 U.S.C. § 824a(f) (1982), provides, inter olio that: The ownership or operation of facilities for transmission or sale at wholesale of electric energy which isChrw(133)(b) generated in a foreign country and transmitted across an international boundary into a State and not thereafter transmitted into any other State, shall not make a person a public utility subject to regulation under other provisions of this subchapter. The State within which any such facilities are located may regulate any such transaction insofar as such State regulation does not conflict with the exercise of the Commission’s powers under or relating to subsection (e) of this section. It is likely that the owner of the transmission facilities for receiving Nova Scotian Tidal Power would be a public utility otherwise subject to FERC jurisdiction. Recent proposals by the Central Maine Power Company to reorganize and to set up nonregulated affiliates have met with State opposition in the form of intervention by the Maine Public Utilities Commission before the Securities and Exchange Commission and the passage of legislation requiring PUC approval of any utility reorganization. P.L. 1981, ch. 672 (codified at 35 M.R.S.A. § 104 (3-A) (Supp. 1978–1983)).
3 C.F.R. 970 (1949–1953 Comp.), as amended by Exec. Order No. 12,038, 3 C.F.R. 136 (1978), reprinted in 15 U.S.C. § 7176 note (1982).
Id. § 1(a)(3).
Id. § 1(b).
Id. § 1(a)(3), which provides: “The Secretary of Energy shall have the power to attach to the issuance of the permit and to the exercise of the rights granted thereunder such conditions as the public interest may in its judgment require.”
DOE Delegation Order (D.O.) No. 0204–4, para. 7 (1977) reprinted at 10 C.F.R. § 1001.1, app. (1983). This Order provides There is hereby delegated to the Administrator of ERA the authority to adopt rules, issue orders, licenses and allocations, collect fees and take such other action as may be necessary and appropriate to administer the following functions: 7. The exportation and importation of electric energy pursuant to the provisions of Section 202(e) of the Federal Power ActChrw(133) as amended, and Executive Order No. 10485. 10 C.F.R. § 205.320(a) (1983) further delegates this authority to ERA’s Office of Utility Systems.
C.F.R. §§ 205.320–327.
Id. at § 205.321.
Telephone conversation with Lise Howe, Office of General Counsel, DOE (April 22, 1983).
C.F.R. § 1021.2 (1983) (adopting CEQ guidelines codified at 40 C.F.R. §§ 1500–1508). For general discussion of NEPA see text supra at notes 58–64.
C.F.R. § 205.322(c)(1983); But see 40 C.F.R. § 1502.14 (requiring rigorous exploration of all alternatives to a project including even alternatives not within the jurisdiction of the lead agency preparing the EIS) and 18 C.F.R. pt. 2, app. A § 8.2 (consideration of energy alternatives in the preparation of EIS’s under the Federal Power Act).
U.S. DOE, EIS: 300 kV International Submarine Transmission Line - Erie, Pennsylvania to Nanticoke, Ontario, Canada, General Public Utilities Corporation, pt. 2 (1982) and U.S. DOE, EIS: New England/Hydro-Quebec 450 kV Direct Current Transmission Line Interconnection pt, 2 (1984). (discussing such alternatives to the Canadian transmission line interconnections as purchasing power from other U.S. utilities or building other generating capacity.)
Tidal Power Corporation, Fundy Tidal Power Update ‘82, 5, 24 (1982).
Id. at 6.
Id. at 14–15. See Quick, “Canadian Power and the New England Energy Crisis,” 6 New Eng. J. Bus Econ. 55 n.1, and 63 (1980). (Mr. Quick suggests that the one major New England-Canadian transmission link, a 345 kV line between Maine and New Brunswick, has “inadequate capacity to handle major interchanges of electricity on the scale envisioned.” The discussion is largely in the context of Quebec hydropower imports.) See also, “Report on United States/Canada Electric Power Exchange Study: New England New Brunswick,” reprinted in U.S.D.O.E. and Canadian Department of Energy, Mines and Resources (D.E.M.R.), United States/Canada Electricity Exchanges app. D (Feb. 1979). (“It should be noted that in addition to the direct `across the border’ transmission interconnection facilities which would be required to permit substantial increases in power transfers, significant internal transmission reinforcement would also be necessary.” Id. at D-11.)
Quick, supra note 122, at 64.
C.F.R. § 205.323(e) (1983).
Some earlier tidal power development options included the construction of pumped storage hydro facilities in New England to absorb non-peak capacity excess. See United States/Canada Electricity Exchanges, supra note 122, at 62. Such a major construction project in the U.S., requiring FERC and other federal permits, would provide an even stronger base for a total project investigation-including the effects from Canadian barrage construction. However, the latest project designs do not contemplate the use of pumped storage. TPC, Fundy Tidal Power Update ‘82, supra note 120, at 2–3.
F.2d 38 (2d Cir. 1975).
Id. at 40. The court found that it lacked jurisdiction and did not reach the merits of the case.
U.S.C. § 793(d) (1982). This provision was part of the Energy Supply and Environmental Coordination Act of 1974, Pub. L. 93–319, 88 Stat. 246, which was passed in the face of an OPEC oil embargo and the accompanying American “energy crisis.” Specifically it provides: In order to expedite the prompt construction of facilities for the importation of hydro-electric energy thereby helping to reduce the shortage of petroleum products in the United States, the Federal Power Commission is hereby authorized and directed to issue a Presidential permit pursuant to Executive Order 10485 of September 3, 1953, for the construction, operation, maintenance and connection of facilities for the transmission of electric energy at the borders of the United States without preparing an environmental impact statement pursuant to section 102 of the National Environmental Policy Act of 1969Chrw(133) for facilities for transmission of electric energy between Canada and the United States in the vicinity of Fort Covington, New York. (Emphasis added.)
See supra note 112 and accompanying text.
U.S.C. §§ 1451–1464 (1982). But the State does not have the final say; the Secretary of Commerce can overrule a state’s denial of consistency. See supra, notes 87–89 and accompanying text.
M.R.S.A. §§ 481–490 (1978 Supp. 1979–83).
See infra notes 149–158 and accompanying text.
Entry of Nova Scotia Tidal Power into United States power grids other than through Maine appears unlikely, primarily for geographical reasons. (There could be additional political and technical problems, not to mention economic questions, with any other route, e.g., wheeling through Quebec to the proposed Quebec-Vermont link. See Quick, supra note 146 at 62, re asynchronism of Quebec with the New England Power Pool (NEPOOL).)
M.R.S.A. § 13-A (Supp. 1983–84).
M.R.S.A. § 13-B (Supp. 1983–84).
M.R.S.A. §§ 13-A and 13-B (Supp. 1983–84).
TPC, Fundy Tidal Power Update ‘82, supra note 120, at 27. The update does recognize that utility regulatory policy in the United States may preclude use of the joint venture structure if construction work in progress (CWIP) cannot be used in the rate base, but states that “[t]hese considerations are not reflected in the projections made during the course of this study, but they do have a bearing on the feasibility of the joint venture approach.” Id. at 29.
A.2d 800 (Me. 1974).
Id. at 809–811. See 35 M.R.S.A. § 2306, providing, inter alia, that in eminent domain proceedings: “Environmental factors to be considered for proper location of a transmission line or gas pipeline shall not be subject to review by the Public Utilities Commission when the location of the transmission line has received site location of development approval under Title 38, section 484.” This provision was added by P.L. 1977, ch. 374, § 2, apparently in response to the Bangor Hydro-Electric decision which, while precluding consideration of environmental factors by the PUC in the approval of 100 kV plus transmission lines pursuant to 35 M.R.S.A. § 13-A, found PUC consideration of the environmental effects mandated for lower-powered lines in eminent domain proceedings. A site location of development permit is required prior to the acquisition of land by eminent domain. 38 M.R.S.A. § 484 (1978).
M.R.S.A. § 13-A (Supp. 1983–84).
Id.
See Energy Information Administration (EIA), U.S.-Canadian Electricity Trade, 40 (1982) (“Property owners object to transmission lines both because of the loss of land for the right-of-way, and because of fears about the safety of high voltage power lines. The objections to high voltage power lines have led to extensive regulatory proceedings, appeals, and litigation significantly delaying construction of such facilities.”) Opposition to lines could be mitigated, however, if the new lines parallelled existing transmission lines, using the existing right-of-way.
Quick, supra note 122, at 62–63.
See Effects of Proposed Hydro-Electric Project in the Bay of Fundy: Hearing Before the Senate Commission Env’t and Public Works,(hereinafter cited as Senate Tidal Power Hearing), 98th Cong., 1st Sess. 74 (1983) (post-hearing submission of G.C. Baker, Exec. Vice-President, Tidal Power Corporation).
M.R.S.A. § 2483 (1978).
The Shoreland Zoning Act, 12 M.R.S.A. §§ 4811–4817 (1978 Supp. 1983–84), sets guidelines for municipal shoreland zoning and imposes regulations in the event a locality fails to adopt its own shoreland zoning ordinance.
M.R.S.A. §§ 681–689 (1978 Supp. 1983–84). “Unorganized and deorganized areasChrw(133) include all areas located within the jurisdiction of the State of Maine, except areas located within organized cities and towns, and Indian reservations.” Id. at § 682(1). These areas, lacking municipal government and having few inhabitants, are administered by LURC in the public interest.
For a summary review of the Maine statutes applicable to transmission line construction, see “Report on United States/Canada Electric Power Exchange Study: New England New Brunswick,” supra note 122, at D-15 to D-17.
M.R.S.A. § 481 (Supp. 1979–83).
M.R.S.A. § 482(2) (Supp. 1979–83).
M.R.S. A. § 484 (1978 Supp. 1979–83).
Maine Department of Environmental Protection Regulations, eh. 375 (1979).
Id., eh. 372, § 1 (1979)(emphasis added).
See In re Ryerson Hill Solid Waste Disposal Site, 379 A.2d 384 (Me. 1977); In re Maine Clean Fuels, 310 A.2d 736, 742 (Me. 1973) (quoting In re Spring Valley Development, 300 A.2d 736, 753–54 (Me. 1973) for the proposition that the Site Location law “did not grant the commission the authority to determine where the location of a development must be but rather it gave the Commission authority to measure the proposal and location against statutory standards and to apply reasonable terms and conditionsChrw(133)”).
See supra note 151 and accompanying text.
Assuming that any new transmission line would be run parallel to the existing 345 kV line from Keswick, New Brunswick to Orrington, Maine, it is worth noting that the area is sparsely inhabited.
See Natural Resources Council of Maine “Tidal Power”, Maine Environment (June-July 1982); Senate Tidal Power Hearing, supra note 144, at 50, 265 (statements of Mark Ishkanian, Natural Resources Council of Maine).
“Report on United States/Canada Electric Power Exchange Study: New England-New Brunswick,” supra note 122 at D-18.
See discussion supra at notes 41–60.
See generally Taylor, “The International Joint Commission and Bay of Fundy-Gulf of Maine Region Transboundary Environmental Impacts” (Marine Law Institute, Donner Project Working Paper -6, 1984) (unpublished).
See Taylor, “Liability for Transboundary Pollution and State Responsibility,” 66 (Marine Law Institute, Donner Project Working Paper -4, 1984) (unpublished) and sources cited therein. Private plaintiffs seeking remedies for transboundary damage could also be met with the defense of statutory or administrative authority. W. Rodgers, Environmental Law 3136–42 (1977); R. Franson A. Lucas, Canadian Environmental Law Vol. 1, 3.1.2.2; e.g., New England Legal Foundation v. Costle, 666 F.2d 30, 32–33 (2d Cir. 1981). This defense has been weakened by both Canadian and United States Courts in recent years. Taylor, “Private Remedies for Transboundary Environmental Injury Due to Coastal Energy Development in the Bay of Fundy-Gulf of Maine Region,” 17 (Marine Law Institute, Donner Project Working Paper -5, 1984) (unpublished). See generally id. for a discussion of the problems facing private plaintiffs seeking redress for transboundary injury in this region, e.g., possibility that United States private plaintiffs would have no standing to sue for property damage in Canadian courts.
Senate Tidal Power Hearing, supra note 144, at 9 (statement of G.C. Baker, Exec. Vice-President, Tidal Power Corporation).
Id. at 69, 74–75 (statement and post-hearing submission of G.C. Baker).
Similar arguments might be made with regard to construction of other pollution sources such as factories for manufacture of goods for export. Indeed, the President of the North American Electric Reliability Council (NERC) recently noted: “When one considers a Canadian [electricity] import as being the same as any other international trade transaction, it appears reasonable that the Federal Government should have some control.” Letter from Walter D. Brown, President, NERC, to Dexter J. Peach, Director, Energy and Minerals Division, United States General Accounting Office, (June 15, 1982) reprinted in GAO, Report to the Congress: Clear Federal Policy Guidelines Needed for Future Canadian Power Imports, app. VIII (1982). However, there are numerous reasons for asserting the uniqueness of the energy export-import situation. For example, as one recent report notes: “Trade in electricity is isolated from other trade flows, because electricity can move only along specially constructed transmission lines.” Energy Information Administration, U.S.-Canadian Electricity Trade 21 (November, 1982). Electricity is, in any event, an industry heavily regulated in the public interest. Expansion of this public interest review in the case of power imports would be a natural adjunct of existing review; to further quote the President of NERC: “The utility systems, and possibly their respective reliability councils, are quite capable of handling these matters [i.e., electricity imports and interconnections] themselves without any need for intervention from the Federal government, other than in their mandated lead role in environmental matters.” (Emphasis added.) Letter from Brown to Peach, supra. In other words, the role of electric utilities is not to examine environmental impacts of their actions-unless it is federally mandated.
In the alternative, the President could perhaps amend Executive Order 10,485 to require that environmental impact assessments for transboundary transmission lines cover transboundary effects of the power plant located abroad and that upgrading of lines be subject to NEPA if undertaken for the importation of power from a plant that might have significant effects. But the real time to investigate these issues is when the contracts are signed before transmission line construction.
For a general discussion of such constitutional bases of power, see VanderZwaag, Fundamentals of Fundy Tidal Power: The Canadian Decision-Making Framework and Decision-Making Options, 3 Can.-Amer. L.J. 5–16 (1984).
For a detailed discussion of the new constitutional amendment and the definitional uncertainties raised by the words “conservation and management,” see W. Moull, “The Legal Effect of the Resource Amendment - What’s New in Section 92A?” in J. Meekison, R. Romanow, W. Moull, Origins and Meaning of Section 92A: The 1982 Constitutional Amendment on Resources (1985), pp. 50–53.
Canada - Nova Scotia Agreement on Offshore Oil and Gas Resource Management and Revenue Sharing (March 2, 1982). For a discussion of the agreement’s implementation, see Doucet, Canada-Nova Scotia Offshore Agreement: One Year Later, 22 Alta. L. Rev. 132 (1984). The agreement is likely to be renegotiated in 1986 in order to provide Nova Scotia with a more favorable revenue-sharing and management arrangement along the lines of the offshore accord reached between Newfoundland and the federal government. The Chronicle-Herald (Halifax) (January 3, 1986), pp. 1, 20.
For a discussion of the paramountcy doctrine in relation to Section 92A, see W. Moull, supra note 167, pp. 53–54.
Environmental Assessment and Review Process Guidelines Order, SOR/84–467.
Crown corporations listed in Schedule D to the Financial Administration Act would be subject to the Process if it is corporate policy to apply the Process and if the application of the Process is within the legislative authority of the corporation. SOR/84–467, s. 7. Such corporations include: Air Canada, Canada Deposit Insurance Corp., Canadian Broadcasting Corp., Cape Breton Development Corp., Central Mortgage and Housing Corp., Eldorado Aviation Ltd., Eldorado Nuclear Ltd., Export Development Corp., National Railways, Northern Transportaton Co. Ltd., Polymer Corp. Ltd., The St. Lawrence Seaway Authority, the Seaway International Bridge Corp. Ltd., Canadian Development Investment Corp., VIA Rail Canada, Federal Business Development Bank, Petro–Canada, and Teleglobe Canada. Financial Administration Act, R.S.C. 1970, C. F–10, Schedule D, as amended by S.C. 1974–75–76, 14, s. 56; C. 61, s. 15; C. 77, s. 8; SOR/78–287 and SOR/82–854.
R.S.C. 1970, C. F-14.
R.S.C. 1970, C. N-19.
Tidal Power Corporation Act, S.N.S. 1970–71, C. 21, ss. 9, 12, 14, 15.
R.S.N.S. 1967, C. 335. The permitting requirements of the Environmental Protection Act might also apply through broad readings of the words “contaminant” and “detrimental variation or alteration” and “pollution” defined by the Act. A permit issued pursuant to the Water Act would be deemed to be granted under the Environmental Protection Act. Environmental Protection Act, S.N.S. 1973, C. 6, s. 36.
Lands and Forests Act, R.S.N.S. 1967, C. 163, ss. 33, 38.
Electric Power Act, R.S.N.B. 1973, C. E-5.
R.S.N.B. 1973, C. C-6.
Ibid., s. 9, as amended by S.N.B. 1975, C. 12, s. 4.
Ibid., s. 32(1), as amended by S.N.B. 1975, C. 12, s. 8.
S.N.B. 1980, C. 38.1.
R.S.C. 1970, C. N-6.
Ibid., s. 46(1) as amended by S.C. 1980–81-82, C. 115, s. 14.
Ibid., s. 82(1) as amended by S.C. 1980–81-82, C. 115, s. 24.
National Energy Board Rules of Practice and Procedure, C.R.C. 1978, C. 1057, s. 3(2).
National Energy Board Report to the Governor in Council in the Matter of the New Brunswick Electric Power Commission 33 (July 1972).
National Energy Board Part VI Regulations, C.R.C. 1978, C. 1056, s. 6(2) (aa).
National Energy Board Rules of Practice and Procedure, C.R.C. 1978, C. 1057, Part III(11).
National Energy Board, Environmental Guidelines for International Power Lines (March 1981).
National Energy Board Reasons for Decision in the Matter of Tenneco LNG Inc., Canadian Lowell Gas Ltd., Lorneterm LNG Limited and Trans Canada Pipelines (New Brunswick) Limited (November 1977).
National Energy Board Reasons for Decision in the Matter of Trans Mountain Pipe Line Company Ltd. and Foothills Oil Pipeline Company Ltd. (January 1980).
National Energy Board Reasons for Decision in the Matter of Trans Mountain Pipe Line Company Ltd. (May 1981).
S.C. 1978–79, C. 13.
Environmental Assessment and Review Process Guidelines Order, SOR/84–467, ss. 27(2), 29(2).
Ibid., s. 35(d).
Federal Environmental Assessment Review Office, Environmental Assessment Panels: Procedures and Rules for Public Meetings (1985).
Environmenal Assessment and Review Process Guidelines Order, SOR/84–467, s. 33(1)(d).
R.S.C. 1970, C.N-19, s. 5(1) (emphasis added).
Watercourse Alteration Regulation - Clean Environment Act, Reg. 82–233, s. 3(3).
Ibid., s. 12(1).
Ibid., s. 9.
Committee for Justice and Liberty Foundation v. Interprovincial Pipeline (NS) Ltd., [1982] 1 F.C. 619, 11 C.E.L.R. 97 (F.C.A.).
Essa v. Atomic Energy Control Board (1981), 10 C.E.L.R. 142, 143 (F.C.T.D.) reversed on other grounds sub. nom, Tosorontio v. Atomic Energy Control Board (1981), 10 C.E.L.R. 145 (F.C.A.D.).
R.S.C. 1970, C. 10 (2nd Supp.).
Ibid., s. 28. For debate as to how far courts should engage in substantive versus procedural review, see Mullan, Natural Justice and Fairness - Substantive as well as Procedural Standards for the Review of Administrative Decision-Making?, 27 McGill L.J. 250 (1982) and Grey, Can Fairness be Effective?, 27 McGill L.J. 360 (1982).
SOR/84–467.
Ibid., s. 20. Public review would also be required when potential adverse environmental effects are significant as determined according to criteria cooperatively developed by FEARO and the initiating department.
For a discussion of the standing requirement for judicial review in Canada and the possible need for a private individual to demonstrate something more than a violation of a public right, see D. Scott, “Judicial Review in the Federal Court of Canada,” in the Law Society of Upper Canada Bar Admission Course Materials, Charter of Rights and Administrative Law (1983), pp. 84–89.
Section 18 of the Federal Court Act provides a general right to seek relief (injunction, certiorari, prohibition, mandamus,quo warranto, or declaratory) from the Trial Division of the Federal Court against any federal board, commission or other tribunal.
For a discussion of the less onerous procedural requirements generally imposed on investigative tribunals without final decisionmaking powers, see Mercer, Recent Developments in Canadian Law: Administrative Law II, 16 Ottawa L. Rev. 645, 673 (1984).
Sec e.g.. Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735, where the Supreme Court of Canada refused to impose a duty of fairness on federal Cabinet review of a rate increase decision by the Canadian Radio-Television and Communications Commission because of the essentially legislative function exercised by the Cabinet, the political nature of the Cabinet’s decision, and the practical difficulties raised by imposing procedural protections to Cabinet decisionmaking. For a general discussion of judicial reluctance to supervise legislative functions and ministerial discretion, see J. Cowan, “Recent Developments in Judicial Review” in the Law Society of Upper Canada Bar Admission Court Materials, Charter of Rights and Administrative Law (1983), pp. 15–16. 30–47.
For a detailed discussion of the creative possibilities the Charter might hold for the development of environmental law, see Stevenson, A New Perspective on Environmental Rights After the Charter, 21 Osgoode Hall L.J. 390 (1983).
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VanderZwaag, D., Massey, K.A. (1986). Legal Decisionmaking Frameworks for Fundy Tidal Power. In: Rieser, A., Spiller, J., VanderZwaag, D. (eds) Environmental Decisionmaking in a Transboundary Region. Lecture Notes on Coastal and Estuarine Studies, vol 20. Springer, New York, NY. https://doi.org/10.1007/978-1-4757-1408-1_3
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