Considering Climate Change in Hydropower Licensing

• Pages: 38-48
• Date: 01 July 2025
• Published date: 01 July 2025
• Author: Zachary Handler
• Subject Matter: Administrative & Public Law

55 ELR 10390 ENVIRONMENTAL LAW REPORTER JULY/AUGUST 2025

Hydropower has a fundamental tension: it both

is potentially very usefu l for mitigating climate

change and contributes to many other environ-

mental problems. In the United States, hydropower is the

second-largest source of renewable electricit y generation,

creating 27% of renewable generation though only 6%

of total U.S. power generation.1 e U.S. Department

of Energy (DOE) in the past has recommended increas-

ing hydropower generation precisely for the purpose of

mitigating climate change,2 and there is momentum for

converting existing non-powered dams into hydroelec-

tric generation.3

At the same time, hydropower causes serious environ-

mental problems. Dams disrupt sh migration, alter the

ow of rivers, and can change water temperature.4 As a

result, environmental groups traditionally have been anti-

hydropower, although that is changing somewhat in recent

years as they tentatively embrace hydropower for the sake

of ghting climate change.5 However, hydropower da ms’

negative eects are compounded by climate cha nge.6

Hydropower facilities in some instances may also produce

1. U.S. Energy Information Administration, Electricity Explained: Electricity

in the United States, https://www.eia.gov/energyexplained/electricity/elec-

tricity-in-the-us.php (last updated Mar. 26, 2024). Wind is now the largest

renewable, at 48% of renewable generation.

2. DOE, H V 31 (2016), https://www.energy.gov/eere/wa-

ter/articles/hydropower-vision-report-full-report (“Increasing hydropower

can simultaneously deliver an array of benets to the nation that address

issues of national concern, including climate change, air quality, public

health, economic development, energy diversity, and water security.”).

3. See Andrew G. Lawson, Streamlining the Hydropower Licensing Process:

What’s Up With Dam Licensing?, 52 S U. L. R. 109, 110 (2019).

4. See Joshua H. Viers, Hydropower Relicensing and Climate Change, 47 JAW-

RA 655, 656 (2011).

5. See Brad Plumer, Environmentalists and Dam Operators, at War for Years,

Start Making Peace, N.Y. T (Oct. 13, 2020), https://www.nytimes.

com/2020/10/13/climate/environmentalists-hydropower-dams.html.

6. See Kristoer Tigue, As the Harms of Hydropower Dams Become Clearer, Some

Activists Ask, “Is It Time to Remove em?,” I C N (May

15, 2023), https://insideclimatenews.org/news/15052023/as-the-harms-of-

hydropower-dams-become-clearer-some-activists-ask-is-it-time-to-remove-

them/:

Evidence also suggests the dangers posed by dams will only get

worse as the climate warms. Experts, including scientists who

worked on the federal government’s National Climate Assessment,

have warned that many U.S. dams weren’t built to withstand the

increasingly intense and frequent rainfall and ooding being driven

by rising temperatures.

SAVIOR, VILLAIN, OR VICTIM?

CONSIDERING CLIMATE CHANGE

IN HYDROPOWER LICENSING

by Zachary Handler

Zachary Handler is a 2025 graduate of Georgetown University Law Center

and an incoming litigation fellow at the Animal Legal Defense Fund.

greenhouse gas (GHG) emissions by releasing methane

from their reser voirs.7

e Federal Energy Regulatory Commission (FERC),

an independent agency led by ve commissioners housed

within DOE, is the primary hydropower regulator in the

United States. Under the Federal Power Act (FPA), FERC

licenses and relicenses a ll hydropower facilities that are

not federally owned.8 It must decide whether each proj-

ect is in the public interest, which includes weighing the

environmental impacts of a project equally with the eco-

nomic benets.9

In the past two decade s, FERC has attracted a great deal

of attention and controversy over how it considers climate

change impacts when regulating natural ga s pipelines.

Project opponents started to push FERC to consider cli-

mate impacts of natural ga s pipelines in 2008.10 e U.S.

Court of Appeals for the District of Columbia (D.C.) Cir-

cu it’s Sabal Trail decision held th at FERC should consider

climate change when approving pipelines,11 but in particu-

lar cases the D.C. Circuit has held that FERC was justied

in not considering climate impacts of specic projects.12

Richard Glick (who was FERC chairma n from January

2021 to January 2023) and Matthew Christiansen (its for-

mer general counsel) have argued that FERC has a major

role to play as a climate regulator and is required by statute

7. See Kristoer Tigue, “Giant Methane Factories”: Hydropower Has Long Been

Touted as Clean Energy. But Is It?, I C N (July 14, 2023),

https://insideclimatenews.org/news/14072023/todays-climate-hydropow-

er-methane-clean-energy/. e Federal Energy Regulatory Commission

(FERC) has acknowledged that hydropower facilities produce some GHG

emissions. See discussion of Community of Eln Cove Non Prot Corp. and

PaciCorp, infra Section III.A.

8. See FPA §4(e), 16 U.S.C. §797(e) (FERC authorized to license new hydro-

power facilities); FPA §15(a), 16 U.S.C. §808(a) (FERC authorized to reli-

cense existing hydropower facilities). Federally owned hydropower projects

are operated by the U.S. Army Corps of Engineers, the Bureau of Reclama-

tion, and the Tennessee Valley Authority. See DOE, supra note 2, at 78.

9. See FPA §4(e), 16 U.S.C. §797(e). e test is further described infra Section

I.A.

10. See Alison Gocke, Pipelines and Politics, 47 H. E’ L. R. 207, 245

(2023) (citing Bradwood Landing, LLC, 124 FERC ¶¶61257, 62306-

62307 (2008)).

11. See Sierra Club v. Federal Energy Regul. Comm’n (Sabal Trail), 867 F.3d

1357, 1371-74 (D.C. Cir. 2017) (discussed infra Part II).

12. See, e.g., Birckhead v. Federal Energy Regul. Comm’n, 925 F.3d 510, 519-

21 (D.C. Cir. 2019) (holding that environmental nonprot had not prop-

erly raised issue of downstream emissions during licensing).

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