On October 11, 2022, Waterkeepers Chesapeake, Lower Susquehanna Riverkeeper, Sassafras Riverkeeper, and Chesapeake Bay Foundation provided arguments to the U.S. Court of Appeals for the District of Columbia Circuit in support of our challenge to a 50-year license granted by the Federal Energy Regulatory Commission (FERC) to Exelon (now Constellation) for operation of the Conowingo Dam. Our attorney James Pew from Earthjustice presented oral arguments to a three-judge panel in support of our claim that the license was unlawful because it did not include the conditions outlined in a water quality certification issued by the Maryland Department of the Environment (MDE) in 2018 as required under Clean Water Act Section 401.
The D.C. Circuit’s decision will likely shed light on the ability of a state to make a deal with dam operators, pipeline developers and other federally licensed projects after a certification is issued to avoid their obligations under the Clean Water Act. Ultimately, the court’s decision will be important to determine whether Constellation will have to meaningfully contribute to the cleanup of pollution in the Chesapeake Bay watershed stemming from the dam’s operations, as well as from the failure to take appropriate actions during the lifetime of the dam’s operations, which have significantly contributed to the pollution in local rivers and streams and the Bay and the loss of fishes and other species and habitat throughout the watershed.
The practical implications of the court’s decision will be whether Constellation Energy is able to escape responsibility for the harms they have caused to the Lower Susquehanna River and the Chesapeake Bay. The cost to clean up this mess is estimated in the billions of dollars, over the 50-year license term.
The 2018 certification included numerous conditions that MDE deemed necessary to meet water quality standards, including addressing the millions of tons of nutrients that have accumulated in sediments in the dam’s reservoir and released downstream during dam operations. After Exelon brought several court challenges to the 2018 certification, MDE and Exelon entered into a settlement agreement, which included substantially less stringent conditions for operating the dam that provided no assurances of protecting water quality. Upon FERC including the terms of the settlement agreement as conditions to the license, MDE agreed to “waive” its right to issue the certification. During oral argument, the panel focused on the question whether this agreement properly constituted a “waiver” under Section 401.
The issue in the case centers around the proper interpretation of the statutory language that only allows “waivers” in the event of a state’s failure or refusal to act. Here, we argued, MDE acted in issuing the certification and, thus, no subsequent waiver could occur under the statute’s plain terms. Noting that Section 401 sought to give State’s primary authority in protecting water quality, the panel explored the scope of our claims as to whether, when and how a state may withdraw a certification that has been issued for FERC to determine if waiver had occurred or to be able to issue a license.
The panel also asked questions as to the limits of the claims by FERC, Constellation and MDE, which were all defending the issuance of the license, as to the extent of the state’s authority to waive a certification after it had already been issued. Senior Judge Tatel appeared to raise concerns with the settlement agreement’s reference to a “conditional waiver” while Judge Millett raised concerns that the settlement agreement really was a “waiver with conditions” that may result in avoiding the requirements that the state certify compliance with Clean Water Act requirements.
The panel also asked questions regarding the proper remedy if the panel found the license was issued in violation of the Clean Water Act. We asked that the Court vacate the license, which would render it void, but also to order FERC to include the conditions in the 2018 water quality certification in any subsequently issued license. The panel raised questions as to its authority to issue a remedy beyond vacatur, but the judges also seemed skeptical of the request of FERC, MDE, Constellation, and the U.S. Department of Interior that the D.C. Circuit not vacate the license (or portions thereof). This led to questions as to whether the settlement agreement would still be in effect in the absence of the license and whether Constellation would stop taking actions it had agreed to undertake. MDE’s counsel could not answer whether the settlement agreement would remain in effect, and Constellation’s counsel declined to provide any indication as to what actions Constellation would take if the license was vacated. Our attorney James Pew noted that, even if there is some delay in implementation of the environmental provisions in the current license until a new license is issued, this license will be in place for 50 years and it was more important to ensure the license included the requirements necessary to restore the health of the Lower Susquehanna River and the Chesapeake Bay.
We also brought challenges under the Federal Power Act and the National Environmental Policy Act, which were argued in the written briefs but not addressed at oral argument.
EN 
ES