Case Explained: AMERICAN WHITEWATER v. FEDERAL ENERGY REGULATORY COMMISSION

Court: United States Court of Appeals for the District of Columbia Circuit Filed: 2026-07-24 The dc-circuit vacated the Federal Energy Regulatory Commission’s orders denying American Whitewater’s motion to intervene out of time in a hydropower license surrender proceeding and remanded the case for further proceedings. The court held that while the Commission did not err by interpreting 18 C.F.R. § 385.214 to allow it to rely solely on the failure to show good cause for late filing under subsection (d)(1)(i) to deny intervention, the Commission acted arbitrarily and capriciously in denying rehearing by inconsistently applying its precedent. Specifically, the court found that the Commission violated fundamental administrative law principles requiring agencies to treat similarly situated parties similarly because it denied intervention based on a strict application of the good-cause requirement while granting late interventions in other cases without addressing good cause or providing a reasoned explanation for the departure from that standard. The practical consequence is that the Commission retains jurisdiction to reconsider the petitioner’s motion to intervene and must provide a reasoned explanation for its determination consistent with its precedent. Do It For The Case Law is a news reporting service. Nothing in this episode constitutes legal advice.