Pipeline v. Fed. Energy Regulatory Comm'n

• Decision Date: 08 September 2014
• Docket Number: 12–1475.,12–1474,Nos. 12–1470,s. 12–1470
• Citation: 756 F.3d 764
• Parties: NO GAS PIPELINE, Petitioner v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent Statoil Natural Gas, LLC, et al., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

756 F.3d 764

NO GAS PIPELINE, Petitioner

v. FEDERAL ENERGY REGULATORY COMMISSION, RespondentStatoil Natural Gas, LLC, et al., Intervenors.

Nos. 12–1470, 12–1474, 12–1475.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 19, 2014.

Decided July 1, 2014.

Rehearing En Banc Denied Sept. 8, 2014.

On Petitions for Review of Order of the Federal Energy Regulatory Commission.

John J. Zimmerman argued the cause for Environmental Petitioners. With him on the briefs was Carolyn Elefant.

Jason T. Watson argued the cause and filed the briefs for petitioner Jersey City. Derek S. Fanciullo entered an appearance.

Jennifer S. Amerkhail, Attorney, Federal Energy Regulatory Commission, argued the cause for respondent. With her on the brief were David L. Morenoff, Acting General Counsel, and Robert H. Solomon, Solicitor.

John P. Elwood argued the cause for intervenors. With him on the brief were Anita R. Wilson, Andrew N. Beach, Jeremy C. Marwell, Steven E. Hellman, Kirstin E. Gibbs, Christopher M. Heywood, Peter P. Garam, and Shira R. Rosenblatt.

Before: HENDERSON and GRIFFITH, Circuit Judges, and SENTELLE, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge SENTELLE.

SENTELLE, Senior Circuit Judge:

The Federal Energy Regulatory Commission (“FERC”) entered an order granting a certificate of public convenience and necessity for the construction of a natural gas pipeline connecting New York and New Jersey (“NJ–NY Project” or “Project”). The city of Jersey City and a coalition of environmental groups filed separate petitions for review on differing grounds. For the reasons set forth below, we conclude that we do not have jurisdiction over any of the petitions, and we will therefore dismiss all without reaching the merits of any.

BACKGROUND

The Natural Gas Act (“NGA”) requires entities seeking to construct natural gas facilities to obtain a certificate of public convenience and necessity from FERC. 15 U.S.C. § 717f(c)(1)(A). In the proceeding under review, the Commission granted such a certificate to two subsidiaries of Spectra Energy Corporation, Texas Eastern Transmission, LP and Algonquin Gas Transmission, LLC (collectively “Spectra”), to expand its existing natural gas transportation pipeline in Connecticut and New Jersey, and to extend a new pipeline from New Jersey into lower Manhattan in New York. See Tex. E. Transmission, LP, 139 FERC ¶ 61,138 P. 7 (2012).

Three environmentalist groups, NO Gas Pipeline, Sierra Club, and Food & Water Watch (collectively “environmental petitioners”), filed two petitions for review of the order, alleging that FERC did not comply with the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., in the proceedings and grant of the certificate. The city of Jersey City filed a separate petition for review, arguing that FERC could not constitutionally conduct the proceedings and grant the order because its financial structure created “possible temptation” to be biased in favor of pipeline companies, and also, that FERC exercised actual bias in violation of “either Due Process or the APA.” Jersey City Br. at 2. None of the petitions brings the order for review within the jurisdiction of this court. The environmental petitioners lack standing, and the petition of Jersey City raises questions not preserved in the administrative proceedings.

In addition to the NGA requirement that entities seeking to construct natural gas facilities obtain a certificate of public convenience and necessity from FERC, the NEPA imposes requirements on agencies such as FERC to prepare environmental impact statements in compliance with the Act. 42 U.S.C. § 4321 et seq. In processing the application of Spectra, FERC issued a draft environmental impact statement (“DEIS”) on September 9, 2011, and a final environmental impact statement (“FEIS”) on March 16, 2012. In the course of the environmental review, FERC received hundreds of comments, including expressions of concerns over the level of radon present in natural gas and radon's effect on indoor air quality. The Commission responded to these concerns, ultimately concluding that radon from home use of natural gas was not likely to pose a hazard, and citing factors which in FERC's view would reduce radon in natural gas.

FERC approved the project on May 21, 2012. Environmental petitioners had moved to intervene on January 26, 2011, and filed their concerns about the radon and also about the possibility of cyber attacks on Spectra's computer systems, which they believed could result in explosions. After the March 16, 2012, release of the FEIS, environmental petitioners moved to supplement the record with a study regarding radon from Marcellus Shale gas. Spectra requested leave to respond on the radon issue and did so with a substantive response and two additional radon studies. On May 21, 2012, FERC issued its order granting the certificates of convenience and necessity. See139 FERC ¶ 61,138. In the order granting the certificates, FERC addressed the radon issue and made specific reference to the Marcellus Shale gas, noting that the proposed pipeline expansion “is not designed to serve as a gathering system for gas from Marcellus Shale.” Id. at P.73. Petitioners sought rehearing. On October 18, 2012, FERC entered its order denying rehearing. 141 FERC ¶ 61,043. In the rehearing order, FERC addressed the newly submitted radon studies, id. at P. 49–56, and the environmental petitioners' comments concerning the risk of cyber attack on Spectra's control systems, id. at P. 60–65. The environmental groups filed their current petitions for review.

STANDING

We will not reach the merits of environmental petitioners' claims, because we have no jurisdiction to do so. It is fundamental to federal jurisprudence that Article III courts such as ours are courts of limited jurisdiction. Therefore, “we must examine our authority to hear a case before we can determine the merits.” Wyo. Outdoor Council v. U.S. Forest Serv., 165 F.3d 43, 47 (D.C.Cir.1999) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)). In order for us to have jurisdiction over a case or controversy, the party bringing the claim bears the burden of establishing that it has standing. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The “irreducible constitutional minimum of standing contains three elements.” Id. at 560, 112 S.Ct. 2130. These elements require that the plaintiffs must have suffered first an “injury in fact”; second, the injury must be “fairly traceable to the challenged action of the defendant”; and third, the injury must be redressable by a favorable decision in the litigation. Id. at 560–61, 112 S.Ct. 2130 (internal punctuation and citations omitted). Environmental petitioners' claims founder on at least the first two of the required elements.

These petitioners seek to proceed under associational standing. To establish Article III standing as an association, at least one member must meet the three elements set forth in Lujan. First, the member or members must have suffered an “injury in fact”—that is, “an invasion of a legally protected interest which is (a) concrete and particularized ... and (b) actual or imminent, not conjectural or hypothetical.” Id. at 560, 112 S.Ct. 2130 (quotations omitted). Petitioners have provided the court with affidavits demonstrating the reasons why their members object to the pipeline, but nothing in the affidavits establishes an injury in fact satisfying the constitutional minimum set forth in Lujan.

Environmental petitioners, or at least some of them, submit declarations attesting that their members are “injured by the certainty that radon levels in the residences will increase once gas from sources that have higher radon levels ... than currently supplied gas begins to flow through [the proposed] pipelines into their homes.” Env. Pets. Br. at 13 (emphasis added). This will not carry petitioners' burden of establishing standing. In order to establish injury in fact, claimants must demonstrate “concrete” injury. See, e.g., Occidental Permian Ltd. v. FERC, 673 F.3d 1024, 1026 (D.C.Cir.2012). The “irreducible constitutional minimum” referenced in Lujan requires the showing of “a concrete injury that has either transpired or is ‘imminent.’ ” Id. A “conjectural or hypothetical” injury is not sufficient. See Lujan, 504 U.S. at 560, 112 S.Ct. 2130.

The affidavits from petitioners' members express concerns over injuries that have neither occurred nor become imminent. The increased risk to their health is something that may occur if the pipeline or the pipeline suppliers tap into gas that has more radon than the current mix; nothing occurs to alleviate any increased radon in that case; the radon does not become diluted by mixing with other gas; and the radon in fact reaches and permeates their homes. Like the injuries claimed in Occidental Permian, these concerns are “far too speculative to represent a concrete injury” establishing standing. 673 F.3d at 1026 (internal quotation marks omitted).

Neither do petitioners' declarations carry their burden with respect to the second element of standing: causation. Causation requires that the injury “be fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party not before the court.” Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (internal punctuation and citations omitted). For the speculative injuries to occur here, the producers and transporters of the gas would need to have chosen high radon shale gas as the sole or predominant source of the gas transported by the project, then transported and delivered the gas without in some fashion diluting or processing it so as to reduce the radon content to something approaching that of the gas petitioners are presently receiving. Then, and only then, would the projected injury become...