City of Bos. Delegation v. Fed. Energy Regulatory Comm'n

• Decision Date: 27 July 2018
• Docket Number: 16-1103,No. 16-1081,C/w 16-1098,16-1081
• Citation: 897 F.3d 241
• Parties: CITY OF BOSTON DELEGATION, Petitioner v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent Algonquin Gas Transmission, LLC, et al., Intervenors
• Court: U.S. Court of Appeals — District of Columbia Circuit

897 F.3d 241

CITY OF BOSTON DELEGATION, Petitioner

v.FEDERAL ENERGY REGULATORY COMMISSION, Respondent

Algonquin Gas Transmission, LLC, et al., Intervenors

No. 16-1081

C/w 16-1098

16-1103

United States Court of Appeals, District of Columbia Circuit.

Argued October 19, 2017

Decided July 27, 2018

Thomas S. Fitzpatrick argued the cause for petitioner City of Boston Delegation. With him on the briefs was Joshua S. Grossman.

Carolyn Elefant argued the cause for petitioners Riverkeeper, Inc., et al. With her on the briefs were Jeffrey M. Bernstein, Rebecca F. Zachas, and Alexander English.

Ross R. Fulton, Attorney, Federal Energy Regulatory Commission, argued the cause for respondent. With him on the briefs were James P. Danly, General Counsel, Robert H. Solomon, Solicitor, and Holly E. Cafer, Senior Attorney.

Jeremy C. Marwell argued the cause for intervenor Algonquin Gas Transmission, LLC, et al. With him on the briefs were Anita R. Wilson, Michael B. Wigmore, Andrew N. Beach, and Steven E. Hellman.

Before: HENDERSON and SRINIVASAN, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Srinivasan, Circuit Judge

In March 2015, the Federal Energy Regulatory Commission approved an application from Algonquin Gas Transmission, LLC, to undertake an upgrade to its natural gas pipeline system. The $972 million project would enable Algonquin to meet some of the increasing demand for natural gas in New England and reduce pricing volatility in the region.

A number of parties now seek to challenge the Commission's approval of Algonquin's project. They allege, among other things, that the Commission erred in assessing the project's environmental impacts, unreasonably relied on expert opinions concerning the project's safety, and failed to recognize the bias of a third-party contractor. At the outset, we dismiss one party's petition for review for want of standing. We deny the remaining petitions for review on the merits.

I.

A.

The Natural Gas Act grants the Federal Energy Regulatory Commission authority to regulate the interstate transportation of natural gas. 15 U.S.C. §§ 717b, 717c. To construct or operate an interstate natural gas pipeline, a company must obtain "a certificate of public convenience and necessity," 15 U.S.C. § 717f(c), known as a Section 7 certificate. The Commission will grant a Section 7 certificate "only if the public benefits from the project outweigh any adverse effects." Certification of New Interstate Natural Gas Pipeline Facilities, 88 FERC ¶ 61,227, at 61,750 (Sept. 15, 1999), clarified , 90 FERC ¶ 61,128, at 61,396 -98 (Feb. 9, 2000), further clarified , 92 FERC ¶ 61,094, at 61,373 -75 (July 28, 2000).

As part of the process of issuing a Section 7 certificate, the Commission must satisfy the requirements of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq. NEPA establishes an environmental review process under which federal agencies "identify the reasonable alternatives to [a] contemplated action and look hard at the environmental effects of their decisions." Minisink Residents for Envtl. Pres. & Safety v. FERC , 762 F.3d 97, 102 (D.C. Cir. 2014) (alterations and internal quotation marks omitted). In the case of "major Federal actions significantly affecting the quality of the human environment," NEPA calls for the relevant federal agency to prepare "a detailed" environmental impact statement. 42 U.S.C. § 4332(2)(C).

B.

Algonquin Gas Transmission, LLC, operates a natural gas pipeline system that starts in New Jersey, runs north through New York, Connecticut, and Rhode Island, and ends in Massachusetts. In light of increasing demand for natural gas in the New England area, Algonquin planned several discrete projects to increase the capacity of its pipeline system. One of those projects, the Algonquin Incremental Market Project (AIM Project), is the subject of the petitions for review we consider in this case.

In February 2014, Algonquin applied to the Commission for authorization to construct the AIM Project. The proposal sought to replace 29.2 miles of existing pipeline with larger diameter pipe, construct 8.2 miles of new pipeline, build three new meter stations, and modify various other compressor and meter stations.

Of particular relevance, the AIM project included a proposal to construct roughly five miles of new pipeline known as the West Roxbury Lateral, which would run adjacent to an active quarry outside of Boston. The project also sought to install larger-diameter replacement pipeline next to the Indian Point Energy Center, a nuclear facility in Westchester County, New York. Overall, the AIM Project would give Algonquin an additional 342,000 dekatherms per day of natural gas transport capacity from Ramapo, New York, to various cities in Connecticut, Rhode Island, and Massachusetts.

In addition to the AIM Project, Algonquin is pursuing two other upgrades to its northeast pipeline system. Those ventures are known as the Atlantic Bridge Project and the Access Northeast Project. In the Atlantic Bridge Project, Algonquin seeks to create 132,705 dekatherms per day of capacity from New Jersey and New York to various points on its system, by replacing several miles of pipeline with larger-diameter pipes and constructing or modifying a number of compressor and meter stations. Algonquin applied for a Section 7 certificate for Atlantic Bridge in October 2015, and the Commission granted the certificate in January 2017. Order Issuing Certificate, Algonquin Gas Transmission, LLC , 158 FERC ¶ 61,061 (Jan. 25, 2017) ( Atlantic Bridge Certificate Order ). In the Access Northeast Project, Algonquin planned to install pipeline and modify facilities in order to provide natural gas to electric power plants in New England. Pre-filing review for the Access Northeast Project began in November 2015, but Algonquin withdrew the pre-filing application in June 2017.

On January 23, 2015, the Commission issued its final environmental impact statement under NEPA for the AIM Project. On March 3, 2015, after receiving comments on the environmental impact statement, the Commission issued an order granting Algonquin a Section 7 certificate to construct and operate the AIM Project. Order Issuing Certificate, Algonquin Gas Transmission, LLC , 150 FERC ¶ 61,163 (Mar. 3, 2015).

Several parties in the agency proceedings, including the petitioners in this case, requested rehearing before the Commission. The City of Boston Delegation alleged that the Commission failed to give adequate consideration to the safety risks of running the West Roxbury Lateral adjacent to an active quarry. The Town of Dedham, Massachusetts, and Riverkeeper, Inc., argued in part that the Commission impermissibly segmented its NEPA review by failing to consider Algonquin's three planned projects together in a single environmental impact statement. Additionally, a coalition of environmental groups, community organizations, and individuals alleged, among other claims, that the Commission insufficiently examined the cumulative impact of the Atlantic Bridge and Access Northeast projects, and failed adequately to consider safety issues raised by the pipeline's proximity to the Indian Point nuclear facility.

The Commission denied the parties' requests for rehearing and dismissed their requests for a stay. Order Denying Rehearing, Algonquin Gas Transmission, LLC , 154 FERC ¶ 61,048 (Jan. 28, 2016) ( Rehearing Order ). A number of parties now seek review in this court of the Commission's grant of a Section 7 certificate for the AIM Project.

In particular, we consider three petitions for review, brought by (i) the City of Boston Delegation; (ii) the Town of Dedham, Massachusetts; and (iii) Riverkeeper, Inc., along with a coalition of environmental groups, community organizations, and individuals. The Delegation, in its own briefing, raises challenges focused on the West Roxbury Lateral. The Town of Dedham, together with Riverkeeper, Inc., and the coalition, jointly present a separate set of arguments addressing, among other things, the cumulative environmental impacts of Algonquin's three projects and the safety concerns raised by the AIM Project's proximity to the Indian Point nuclear facility. Algonquin, as intervenor, has submitted a brief supporting the Commission.

II.

Before reaching the merits of petitioners' claims, we must first examine their standing to sue. Although the Commission did not initially contest the petitioners' standing, Algonquin raised the issue as intervenor. And because we have an independent obligation to assure ourselves of our jurisdiction, we asked for supplemental briefing addressing the question of standing.

To establish standing under Article III of the Constitution, petitioners must demonstrate (i) an injury in fact, (ii) that is fairly traceable to the challenged conduct, and (iii) that is likely to be redressed by a favorable decision. Lujan v. Defenders of Wildlife , 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). We hold that the City of Boston Delegation lacks standing because it has failed to demonstrate an injury in fact. We therefore dismiss the Delegation's petition for review for lack of jurisdiction without reaching the merits of the Delegation's arguments. We conclude that the remaining petitioners have adequately demonstrated standing and thus reach the merits of their petitions.

A.

The City of Boston Delegation consists of nine elected representatives from Boston, including the Mayor, a congressman, five city councilors, a state senator, and a state representative. The Delegation's claim of injury for standing purposes rests on the West Roxbury Lateral's allegedly adverse safety, health, and environmental effects on the City. The Delegation stakes its standing primarily on the Mayor's participation in the petition. The Delegation's theory is that, because the Mayor regularly initiates litigation on behalf of the City, the Mayor's involvement in the petition effectively makes the City of Boston a party. As a...