Berkshire Environmental Action Team, Inc. v. Tennessee Gas Pipeline Company, LLC, 031517 FED1, 16-2100

Court:United States Courts of Appeals, Court of Appeals for the First Circuit
Attorney:Richard A. Kanoff, with whom Susan E. Stenger, Saqib Hossain, and Burns & Levinson LLP 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 Envi...
Judge Panel:Before Kayatta, Circuit Judge, Souter, Associate Justice, and Selya, Circuit Judge.
Opinion Judge:KAYATTA, Circuit Judge.
Party Name: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. TENN...
Case Date:March 15, 2017
Docket Nº:16-2100
 
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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

         PETITION FOR REVIEW OF AN ORDER OF THE MASSACHUSETTS DEPARTMENT OF ENVIRONMENTAL PROTECTION

          Richard A. Kanoff, with whom Susan E. Stenger, Saqib Hossain, and Burns & Levinson LLP 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, 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...

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