United States Court of Appeals, District of Columbia Circuit
Delaware Riverkeeper Network and Maya van Rossum, the Delaware Riverkeeper, Petitioners.
Federal Energy Regulatory Commission, Respondent. Transcontinental Gas Pipe Line Company, LLC, Intervenor
April 4, 2017
Petition for Review of Orders of the Federal Energy
Stemplewicz argued the cause and filed the briefs for
E. Cafer, Senior Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. With her on the
brief were Robert H. Solomon, Solicitor, and Lisa B. Luftig,
Attorney. Karin L. Larson, Attorney, Federal Energy
Regulatory Commission, entered an appearance.
F. Stoviak argued the cause for intervenor. With him on the
brief were Pamela S. Goodwin, Elizabeth U. Witmer, and
Patrick F. Nugent.
Before: Garland, Chief Judge, Griffith, Circuit Judge, and
Edwards, Senior Circuit Judge.
Edwards, Senior Circuit Judge.
case involves three federal statutes: the Natural Gas Act
("NGA"), 15 U.S.C. § 717, et seq.;
the Clean Water Act ("CWA"), formally titled the
Federal Water Pollution Control Act Amendments of 1972, 33
U.S.C. § 1251, et seq.; and the National
Environmental Policy Act ("NEPA"), 42 U.S.C. §
4321, et seq. Although the Federal Energy Regulatory
Commission ("FERC" or "Commission")
administers only the NGA, all three statutes apply to the
disputed actions taken by the Commission in this case.
September 30, 2013, Transcontinental Gas Pipe Line Company,
LLC ("Transco") filed an application with FERC to
construct and operate its proposed Leidy Southeast Project
("Leidy Project"). The project was designed to
expand the capacity of Transco's existing natural gas
pipeline and add new facilities in Pennsylvania and New
Jersey. Pursuant to the requirements of NEPA, FERC conducted
an environmental review of the project and issued an
environmental assessment ("EA") on August 11, 2014.
The EA found, with appropriate mitigating measures, "no
significant impacts" associated with the Leidy Project.
However, it required Transco to obtain "all applicable
authorizations required under federal law" prior to FERC
authorizing construction. Because it was understood that the
Leidy Project might result in discharges into navigable
waters, Transco was obligated by § 401 of the CWA to
obtain a water quality certification from the state in which
the discharge would originate before FERC could authorize any
activity that "may result" in such a discharge.
See 33 U.S.C. § 1341(a)(1). The EA thus in turn
required Transco to obtain this state certification before
FERC would authorize any construction.
10, 2014, Transco applied for a § 401 certification from
Pennsylvania's Department of Environmental Protection. On
December 18, 2014, before Pennsylvania had acted on
Transco's application, FERC issued a Certificate of
Public Convenience and Necessity ("Certificate
Order") under the NGA conditionally approving the Leidy
Project. The Certificate Order made it clear that FERC would
not authorize any construction until Transco had obtained a
§ 401 certification from Pennsylvania. Delaware
Riverkeeper Network, a nonprofit organization, timely sought
rehearing of the Certificate Order before the Commission.
FERC denied the request for rehearing. Delaware Riverkeeper
Network and Maya van Rossum, the current Delaware Riverkeeper
(together "Riverkeeper"), then petitioned for
review in this court. Transco intervened in support of the
this court, Riverkeeper contends that the Commission violated
the CWA because it granted Transco's request to construct
and operate the Leidy Project prior to the issuance of
Pennsylvania's § 401 water quality certification.
Riverkeeper also claims that the Commission violated NEPA in
failing to establish an accurate baseline from which to
conduct its environmental review of the Leidy Project. In
particular, Riverkeeper argues that FERC misidentified
numerous specially protected wetlands, and miscalculated both
the cover type categorization of those wetlands and the total
acreage of those wetlands. We find no merit in these claims
and, therefore, reject the petition for review.
the NGA, a natural gas pipeline company must obtain a
Certificate of Public Convenience and Necessity from FERC
prior to "undertak[ing] the construction or
extension" of any natural gas facility for the
transportation of natural gas in interstate commerce. 15
U.S.C. § 717f(c)(1)(A). FERC may place any reasonable
conditions on the issuance of such a certificate "as the
public convenience and necessity may require."
Id. § 717f(e). This court has jurisdiction to
review challenges to certificates granted under the NGA, but
petitioning parties must first seek rehearing before the
Commission and may not raise any argument before this court
that was not raised on rehearing. See 15 U.S.C.
§ 717r(b). Letter orders issued by FERC are also subject
to review in this court subject to the same rehearing
requirement. See 18 C.F.R. § 385.1902.
addition to the requirements of the NGA, § 401 of the
CWA requires "[a]ny applicant for a Federal license or
permit to conduct any activity including . . . the
construction or operation of facilities, which may result in
any discharge into the navigable waters, " to
"provide the licensing or permitting agency a
certification from the State in which the discharge
originates or will originate." 33 U.S.C. §
1341(a)(1). The state must certify "that any such
discharge will comply" with the CWA's effluent
limitations and other pollutant control requirements,
including state-administered water quality standards.
Id. The state may certify that there are no
applicable limitations or standards for the discharge
activity, or it may deny certification or waive the
certification requirement. Id. But "[n]o
license or permit shall be granted until the certification .
. . has been obtained or has been waived." Id.
Any limitation in a § 401 certification "shall
become a condition" of the federal license or permit
requiring such certification. Id. § 1341(d).
401 is an important part of the CWA, in which "Congress
sought to expand federal oversight of projects affecting
water quality while also reinforcing the role of States as
the prime bulwark in the effort to abate water
pollution." Alcoa Power Generating Inc. v.
FERC, 643 F.3d 963, 971 (D.C. Cir. 2011) (citation and
internal quotation marks omitted). The state certification
authority under § 401 is "'[o]ne of the primary
mechanisms' through which [states] may exercise this
role, as it provides them with 'the power to block, for
environmental reasons, local water projects that might
otherwise win federal approval.'" Id.
(quoting Keating v. FERC, 927 F.2d 616, 622 (D.C.
last statute at issue in this case is NEPA, which was enacted
in part to "promote efforts which will prevent or
eliminate damage to the environment and biosphere . . . [and]
enrich the understanding of the ecological systems and
natural resources important to the Nation." 42 U.S.C.
§ 4321. As we recently explained:
The Commission, in exercising its . . . authority, must
comply with NEPA and its implementing regulations, which
require that all federal agencies include an environmental
impact statement ("EIS") "in every
recommendation or report on . . . major Federal actions
significantly affecting the quality of the human
environment." 42 U.S.C. § 4332(2)(C); see
also 40 C.F.R. § 1508.11. To determine whether an
EIS is necessary, an agency first prepares an environmental
assessment, 40 C.F.R. § 1508.9, which must include,
among other information, a discussion of "the
environmental impacts of the proposed action, "
id. § 1508.9(b). "Indirect effects . . .
are caused by the action and are later in time or farther
removed in distance, but are still reasonably
foreseeable." Id. § 1508.8(b).
"Cumulative impact is the impact on the environment
which results from the incremental impact of the action when
added to other past, present, and reasonably foreseeable
future actions regardless of what agency (Federal or
non-Federal) or person undertakes such other actions."
Id. § 1508.7; see also id. §
1508.8. After preparing an environmental assessment, an
agency may conclude that the proposed action would have no
significant impact (often referred to as a "FONSI,
" for "finding of no significant impact") in
lieu of issuing an EIS. Id. §§
Sierra Club v. FERC, 827 F.3d 59, 63 (D.C. Cir.
2016). For either an EA or an EIS, the purposes of NEPA
require the Commission to "consider and disclose"
the environmental effects of the actions it certifies.
Balt. Gas & Elec. Co. v. Nat. Res. Def. Council,
Inc., 462 U.S. 87, 96 (1983). So long as the agency
takes a hard look at the environmental consequences, NEPA
"does not mandate particular results."
Robertson v. Methow Valley Citizens Council, 490
U.S. 332, 350 (1989).
Factual and Procedural Background
maintains an interstate natural gas pipeline that runs from
Texas to New York City, passing through Pennsylvania. In
September 2013, Transco applied to FERC for a Certificate of
Public Convenience and Necessity for the Leidy Project, which
would add approximately thirty miles of looping to
Transco's existing pipeline in Luzerne and Monroe
Counties, Pennsylvania and parts of New Jersey, to meet
increasing energy demands. On August 11, 2014, FERC issued a
finding of no significant impact and published its review of
the environmental consequences of the Leidy Project in a
217-page EA. Environmental Assessment, Joint Appendix
("JA") 168-331. Among a number of conditions,
Environmental Condition No. 9 of the EA required Transco to
obtain and file with the Secretary of the Commission
"all applicable authorizations required under federal
law (or evidence of waiver thereof)" prior to FERC
authorizing construction. Id. at 324. The EA
identified § 401 state water quality certifications as
required authorizations. The EA also discussed mitigation for
the Leidy Project's impact on Pennsylvania wetlands and
concluded that the project's proposed pipeline gas flow
velocities were safe.
had timely applied for a § 401 certification from
Pennsylvania's Department of Environmental Protection on
June 10, 2014. However, on December 18, 2014, FERC issued a
Certificate Order to Transco, conditionally approving the
Leidy Project, before Pennsylvania had acted on Transco's
§ 401 request. The Certificate Order adopted the
conditions of the EA, including Environmental Condition No.
9, which clearly stated that Transco was required to obtain
all applicable federal authorizations, including a § 401
certification from Pennsylvania. FERC was thus clear that it
would not authorize any construction before the necessary
§ 401 certifications had been obtained. On January 16,
2015, Riverkeeper sought rehearing of the Certificate Order
before the Commission.
the early months of 2015, after the conditional Certificate
Order had been issued, the Commission authorized Transco via
letter orders to conduct certain "pre-construction"
activities, including tree-felling. Riverkeeper moved the
Commission to stay the tree-felling activity. FERC denied
this request. Riverkeeper never sought rehearing of this
action or of any of FERC's letter orders. Instead, on
March 15, 2015, Riverkeeper filed a petition for an emergency
stay with this court. The Petition was denied on March 19,
2015. Del. Riverkeeper Network v. FERC, No. 15-1052
(D.C. Cir. Mar. 19, 2015), ECF No. 1543345. By ...