Berkshire Envtl. Action Team, Inc. v. Tenn. Gas Pipeline Co.

• Citation: 851 F.3d 105
• Decision Date: 15 March 2017
• Docket Number: No. 16-2100,16-2100
• Parties: BERKSHIRE ENVIRONMENTAL ACTION TEAM, INC.; Jean Atwater–Williams; Ronald M. Bernard; Cathy Kristofferson; Cheryl D. Rose; Irvine Sobelman; Paula L. Terrasi; Susan K. Theberge; Rosemary Wessel; Kathryn R. Eiseman; Ariel S. Elan; Elliot Fratkin; Martha A. Nathan; Kenneth Hartlage; Ronald R. Coler; Jane Winn ; Heather Morrical, Petitioners, v. TENNESSEE GAS PIPELINE COMPANY, LLC; Massachusetts Department of Environmental Protection, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

851 F.3d 105

BERKSHIRE ENVIRONMENTAL ACTION TEAM, INC.; Jean Atwater–Williams; Ronald M. Bernard; Cathy Kristofferson; Cheryl D. Rose; Irvine Sobelman; Paula L. Terrasi; Susan K. Theberge; Rosemary Wessel; Kathryn R. Eiseman; Ariel S. Elan; Elliot Fratkin; Martha A. Nathan; Kenneth Hartlage; Ronald R. Coler; Jane Winn ; Heather Morrical, Petitioners,

v.TENNESSEE GAS PIPELINE COMPANY, LLC; Massachusetts Department of Environmental Protection, Respondents.

No. 16-2100

United States Court of Appeals, First Circuit.

March 15, 2017

Richard A. Kanoff , with whom Susan E. Stenger , Saqib Hossain , and Burns & Levinson LLP , Boston, MA, were on brief, for petitioners.

Matthew Ireland , Assistant Attorney General, Environmental Protection Division, with whom Seth Schofield , Assistant Attorney General and Senior Appellate Counsel, Energy and Environment Bureau, Office of the Attorney General of Massachusetts, Maura Healey , Attorney General of Massachusetts, and Turner Smith , Assistant Attorney General, Environmental Protection Division, were on brief, for Massachusetts Department of Environmental Protection.

James L. Messenger , with whom Brian J. Wall , Gordon Rees Scully Mansukhani, LLP , Boston, MA, J. Curtis Moffatt , and Mosby G. Perrow were on brief, for Tennessee Gas Pipeline Company, LLC.

Before Kayatta, Circuit Judge, Souter, Associate Justice,^* and Selya, Circuit Judge.

KAYATTA, Circuit Judge.

In this unusual petition for review arising out of a state administrative proceeding, the petitioners themselves argue that we lack jurisdiction to hear their complaints about what has transpired to date before the state agency. Because the agency itself has not yet finally acted on the matter that is before it as is required to invoke our jurisdiction under 15 U.S.C. § 717r(d)(1), we agree and dismiss the petition.

I. Background

The Natural Gas Act ("NGA") requires a natural gas company to obtain from the Federal Energy Regulatory Commission ("FERC") a certificate of public convenience and necessity before it may construct new natural gas transportation facilities or expand existing ones. 15 U.S.C. § 717f(c)(1)(A). FERC is responsible for coordinating all federal authorizations applicable to the process. Id. § 717n(b)(1). The NGA also expressly preserves the rights of states under the Coastal Zone Management Act of 1972, 16 U.S.C. §§ 1451 –1466 ; the Clean Air Act, 42 U.S.C. §§ 7401 –7671q ; and the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251 –1388. See 15 U.S.C. § 717b(d). Under the CWA, any applicant for a federal license to construct or operate facilities that may result in discharge into navigable waters must "provide the licensing or permitting agency"—here, FERC—"a certification from the State in which the discharge originates or will originate." 33 U.S.C. § 1341(a)(1). The state, in turn, must evaluate the proposed project's compliance with certain provisions of the CWA and set forth limitations and monitoring requirements "necessary to assure that any applicant for a Federal license or permit will comply" with the CWA "and with any other appropriate requirement of State law set forth in such certification." Id. § 1341(d). A condition imposed under the state's certification "shall become a condition on any Federal license or permit subject to the provisions of this section." Id.

On July 31, 2014, Tennessee Gas Pipeline Company, LLC ("Tennessee Gas") applied to FERC for a certificate of public convenience and necessity, which FERC eventually issued in March 2016 subject to, among other things, filing of proof that Tennessee Gas has received "all applicable authorizations required under federal law (or evidence of waiver thereof)." In pursuit of one such authorization (or waiver thereof), Tennessee Gas submitted an application to the Massachusetts Department of Environmental Protection ("MassDEP") for water quality certification on June 30, 2015. On June 29, 2016, after almost a full year during which interested citizens and environmental organizations (including Petitioners) participated in a nontestimonial notice-and-comment process, Tennessee Gas received conditional certification for its proposed project in a letter from the Western Regional Office of MassDEP signed by Wetlands Program Chief David Cameron.

The letter contained over forty conditions to the project's approval, including a condition—"Condition 15"—forbidding Tennessee Gas from conducting any "work subject to this Certification, including the cutting of trees," until "the expiration of the Appeal Period set forth below and any appeal proceedings that may result from an appeal." The conditional certification also described the appeal process, explaining that "[c]ertain persons shall have a right to request an adjudicatory hearing concerning certifications by the Department," including "[a]ny person aggrieved by this certification who has submitted written comments during the public comment period." In accordance with Massachusetts regulations on the subject, the conditional certification provided that any person who wished to appeal was required to submit a Notice of Claim for Adjudicatory Hearing within twenty-one days of the certification's issuance.

Petitioners took advantage of this provision, filing a Notice of Claim for Adjudicatory Hearing on July 20, 2016. In response, Tennessee Gas opposed Petitioners' request for a hearing and sought a stay of further administrative proceedings, claiming that once the agency had issued a conditional water quality certification, the state's involvement in the process was at an end, with any further review to be pursued through a petition to this court. Petitioners disagreed, as did MassDEP, which denied Tennessee Gas's request for a stay and moved forward, scheduling a final decision to be issued by April 3, 2017. In early August 2016, Tennessee Gas filed suit in the District of Massachusetts seeking to bar MassDEP from engaging in further review. Petitioners, in turn, hedged their bets. They filed the petition now before us in order to preserve some review of the June 29 conditional water quality certification in the event that Tennessee Gas was correct. At the same time, they asked us to reject their petition on the grounds that Tennessee Gas is not correct; that is to say, they claim that our review is premature until MassDEP completes its adjudicatory process.

II. Discussion

A.

We begin with the language of the statute that grants us the jurisdiction putatively invoked by this petition. We have exclusive jurisdiction "over any civil action for the review of an order or action of a ... State administrative agency acting pursuant to Federal law [in ruling on an application, as pertinent here, for a water quality certification under 33 U.S.C. § 1341(a)(1) ]." 15 U.S.C. § 717r(d)(1). In a literal sense, state agencies repeatedly take "action" in connection with applications for water quality certifications. They docket applications, review them, and express opinions about them. We see no reason, though, to think that Congress wanted us to exercise immediate review over such preliminary and numerous steps that state agencies may take in processing an application before they actually act in the more relevant and consequential sense of granting or denying it.

Pushing back on this common sense conclusion, Tennessee Gas points to the fact that § 717r(d)(1) employs the term "action," bereft of the modifier "final." This contrasts with, for example, the text employed in the Administrative Procedure Act ("APA"), 5 U.S.C. § 704 ("Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review."), and with the text of 15 U.S.C. § 717r(b), which permits judicial review of FERC orders only after FERC's denial of an application for rehearing. Therefore, reasons Tennessee Gas, we should infer that, by authorizing our review of state agency action, Congress did not limit such review to final agency action.

Such a negative inference might have interpretative force in dealing with some other subject matter. See generally, e.g. , Barnhart v. Sigmon Coal Co. , 534 U.S. 438, 452, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002) (articulating the rule of statutory construction that courts should typically infer that Congress intends differences in statutory language to effect differences in statutory application). Here, though, the subject matter is judicial review of agency action, which review Congress creates in the context of a long-standing and well-settled "strong presumption ... that judicial review will be available only when agency action becomes final." Bell v. New Jersey , 461 U.S. 773, 778, 103 S.Ct. 2187, 76 L.Ed.2d 312 (1983) (citing FPC v. Metro. Edison Co. , 304 U.S. 375, 383–85, 58 S.Ct. 963, 82 L.Ed. 1408 (1938) ). To say that silence on the subject implies no requirement of finality would be to recognize this "strong presumption" only when it is of little benefit.

It is also unclear that Congress's reference to FERC's internal review process in § 717r(b), coupled with the lack of a similar reference in § 717r(d)(1) to the internal review processes of state agencies, even raises the inference that Tennessee Gas claims. Rather, there is a more plausible explanation for Congress's decision to write the statute this way: unlike the FERC procedures described in § 717r(b), which are the same for any applicant proposing a project in any state or states, the state procedures giving rise to orders reviewable under § 717r(d)(1) may (and undoubtedly do) vary widely from jurisdiction to jurisdiction. Thus, whereas it is reasonable to interpret a reference to FERC's rehearing process as a signal that final agency action is required under § 717r(b), it does not make sense to draw the negative inference that the lack of a reference in § 717r(d)(1) to the variegated internal review mechanisms deployed by state agencies sends the opposite signal. Simply put,...