Federalism, Hydroelectric Licensing, and the Future of Minimum Streamflows in the Wake of California v. Federal Energy Regulatory Commission

Licensing of hydroelectric projects by the Federal Energy Regulatory Commission (FERC) under the Federal Power Act (FPA) materially affects stream flows on rivers throughout the nation. Often overlooked, FERC licensing will gain prominence in the next decade as hundreds of projects must be relicensed. Although the FPA instructs FERC to balance economic and environmental issues, in practice FERC has been notoriously insensitive to fish and wildlife protection, favoring maximization of hydropower revenues. Professor Blumm evaluates the Supreme Court's recent decision in California v. FERC, which held that FERC may preempt state minimum streamflows higher than those set by FERC. Although he notes that the decision does not enable FERC to override flows set by other federal agencies, Blumm predicts that the result will exacerbate FERC's traditional bias against streamflows necessary to protect fish and wildlife. He concludes that while states are not powerless to affect minimum flows at hydroelectric projects, the objective of reaching a fair balance between economic and environmental values will require an amendment to the FPA reversing California v. FERC