Gunpowder Riverkeeper v. Fed. Energy Regulatory Comm'n

• Citation: 807 F.3d 267
• Decision Date: 21 July 2015
• Docket Number: No. 14–1062.,14–1062.
• Parties: GUNPOWDER RIVERKEEPER, Petitioner v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent Columbia Gas Transmission, LLC, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

807 F.3d 267

GUNPOWDER RIVERKEEPER, Petitioner

v.FEDERAL ENERGY REGULATORY COMMISSION, Respondent

Columbia Gas Transmission, LLC, Intervenor.

No. 14–1062.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 20, 2015.

Decided July 21, 2015.

Kenneth T. Kristl argued the cause and filed the briefs for petitioner.

Elizabeth E. Rylander, Attorney, Federal Energy Regulatory Commission, argued the cause for respondent. With her on the brief were David L. Morenoff, General Counsel, and Robert H. Solomon, Solicitor.

S. Diane Neal, Tyler Brown, and Paul Korman were on the brief for intervenor Columbia Gas Transmission, LLC in support of respondent. Fredric J. George entered an appearance.

Before: ROGERS and BROWN, Circuit Judges, and GINSBURG, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge GINSBURG.

Opinion dissenting in part and concurring in the judgment filed by Circuit Judge ROGERS.

GINSBURG, Senior Circuit Judge:

The Federal Energy Regulatory Commission issued a certificate of public convenience and necessity to Columbia Gas Transmission, LLC, conditionally authorizing the company to extend a natural gas pipeline in Maryland. Gunpowder Riverkeeper, an association of individuals who "work, live, and recreate along the Gunpowder River and its tributaries," petitioned for rehearing, which the Commission denied. Gunpowder then petitioned this court for review of the Commission's order granting the certificate and Columbia intervened in support of the Commission. We deny Gunpowder's petition for want of a legislatively conferred cause of action.

I. Background

The Natural Gas Act (NGA) requires any party seeking to construct a facility for transporting natural gas first to obtain a certificate of public convenience and necessity from the Federal Energy Regulatory Commission. 15 U.S.C. § 717f(c)(1)(A). With an exception not relevant here, the Commission grants a certificate only if the construction project "is or will be required by the present or future public convenience and necessity," and conditions it upon "such reasonable terms and conditions as the public convenience and necessity may require." 15 U.S.C. § 717f(e).

In issuing a certificate, however, the Commission must comply with the separate statutory mandate of the National Environmental Policy Act (NEPA). See 42 U.S.C. § 4332(2)(C). In accordance with the NEPA, every application for a certificate prompts an environmental review. Generally, the Commission first prepares an environmental assessment and, unless it determines the proposed project would have no significant environmental impact, it goes on to prepare a full-blown environmental impact statement. See 40 C.F.R. § 1501.4.

In addition, the Clean Water Act (CWA) requires every applicant for a federal permit authorizing any action that "may result in any discharge into the navigable waters" of the United States to submit to the permitting agency a certification from the appropriate state or interstate agency "that any such discharge will comply" with the CWA. 33 U.S.C. § 1341(a)(1).

Following the Commission's issuance of the conditional certificate here at issue, Gunpowder filed a petition for rehearing on the ground that when the certificate was issued Columbia had not received from the State of Maryland the certification required by the CWA and that, absent that certification, "the cumulative impacts of the project cognizable under the [NEPA] are unknown." The Commission denied Gunpowder's petition for rehearing.

The conditional certificate issued to Columbia authorized it to begin construction of the extension only after receiving all required permits, and only after obtaining further authorization from the Commission. Under Section 7 of the NGA, however, issuance of the conditional certificate enabled Columbia immediately to exercise the power of eminent domain to obtain "the necessary right-of-way to construct, operate, and maintain a pipe line" and to place any "equipment necessary to the proper operation of such pipe line." 15 U.S.C. § 717f(h) ; see also, e.g., Columbia Gas Transmission LLC v. 0.85 Acres, More or Less, in Harford Cnty., Md, No. 1:14–cv–02288, 2014 WL 4471541 (D.Md. Sept. 8, 2014) (so interpreting the certificate).^* The conditional order required Columbia to "ensure that it restores and re-vegetates affected properties, which will minimize property value impacts, and ... compensate landowners for damages like tree loss."

Gunpowder here argues the Commission's issuance of the conditional certificate of public convenience and necessity violated both the CWA and the NEPA.

II. Analysis

We address first the court's jurisdiction over this case pursuant to Article III of the Constitution of the United States. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (noting that jurisdiction must "be established as a threshold matter"). We then turn to the "zone of interests" analysis.

A. Jurisdiction

The Commission has called into question whether Gunpowder has standing under Article III to challenge the conditional certificate. Specifically, the Commission suggests that whether Gunpowder has standing is a "close call" because "[i]ts brief ... does not show that its members have suffered injury from actual or threatened eminent domain actions." If Gunpowder lacks constitutional standing, then this court lacks jurisdiction to address its petition for review. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 559–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

1. Standing

To invoke the jurisdiction of the court, an association acting on behalf of its members must show that "its members would ... have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). A member of an organization would have standing if he, she, or it (1) "has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical"; (2) "the injury is fairly traceable to the challenged action of the defendant"; and (3) "it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Id. at 180–81, 120 S.Ct. 693.

Gunpowder points to affidavits of certain of its members to show they have suffered an injury in fact because their property is subject to eminent domain proceedings that have been or may be started by Columbia pursuant to its plan to extend its natural gas pipeline. We have previously held that a landowner made subject to eminent domain by a decision of the Commission has been injured in fact because the landowner will be forced either to sell its property to the pipeline company or to suffer the property to be taken through eminent domain.See B & J Oil & Gas v. FERC, 353 F.3d 71, 74–75 (D.C.Cir.2004). Contrary to the implicit premise of the Commission's argument, it is not necessary in order to show injury that property already have been taken, or even that eminent domain proceedings have begun; it is enough that they have been deemed authorized and will proceed absent a sale by the owner.^** See id. at 75. The Commission's alternative argument—that our precedent is inapplicable because in this case "it does not appear that the process will extinguish landowners' property interest"—is similarly bootless, as it addresses only the degree, not the fact, of the landowners' injury. Finally, because the threat of eminent domain derives from the conditional certificate, the injury would be redressed by a favorable decision of the court, which would require vacatur of the order granting the certificate. In sum, a member of Gunpowder against whom eminent domain proceedings have been instituted or threatened would have constitutional standing to pursue the present case.

As for Gunpowder's standing as an association to bring this case on behalf of its injured members, we note that Gunpowder's undisputed purpose is to preserve and protect the Gunpowder River watershed. Gunpowder's claims under the NEPA and the CWA are clearly germane to that purpose, as both statutes aim to prevent degradation of the natural environment. Finally, because Gunpowder's petition for review concerns only the question whether the conditional certificate issued by the Commission is lawful, it is not necessary for any individual member of Gunpowder to participate in this proceeding in order to secure effective relief for all its injured members. See Warth v. Seldin, 422 U.S. 490, 515, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) ("If ... the association seeks a declaration, injunction, or some other form of prospective relief, it can be reasonably supposed that the remedy, if granted, will inure to the benefit of those members ... actually injured"). Gunpowder therefore satisfies the requirements for Article III standing.

2. Mootness

Because Maryland has issued the certification required by the CWA, Columbia argues Gunpowder's petition for review is moot and therefore non-justiciable. See Loughlin v. United States, 393 F.3d 155, 169 (D.C.Cir.2004) (describing the mootness doctrine as a "justiciability doctrine [ ]"). A case is moot if "events have so transpired that the decision [of the court] will neither presently affect the parties' rights nor have a more-than-speculative chance of affecting them in the future." Daimler Trucks N. Am. LLC v. EPA, 745 F.3d 1212, 1216 (D.C.Cir.2013).

Columbia's argument fails because it disregards Gunpowder's challenge under the NEPA, which is unaffected by issuance of the state certification required by the CWA. The disputed validity of Columbia's conditional certificate, and the power of eminent domain that depends upon it, therefore continue to present a live controversy. Cons...