Millennium Pipeline Co. v. Seggos

• Citation: 860 F.3d 696
• Decision Date: 23 June 2017
• Docket Number: No. 16-1415,16-1415
• Parties: MILLENNIUM PIPELINE COMPANY, L.L.C., Petitioner v. Basil SEGGOS and New York State Department of Environmental Conservation, Respondents CPV Valley, LLC, Intervenor
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

860 F.3d 696

MILLENNIUM PIPELINE COMPANY, L.L.C., Petitioner

v.Basil SEGGOS and New York State Department of Environmental Conservation, Respondents

CPV Valley, LLC, Intervenor

No. 16-1415

United States Court of Appeals, District of Columbia Circuit.

Argued March 3, 2017

Decided June 23, 2017

Catherine E. Stetson, Washington, DC, argued the cause for petitioner. With her on the briefs was Sean Marotta.

Elizabeth W. Whittle, Washington, DC, was on the brief for intervenor CPV Valley, LLC in support of petitioner.

Brian M. Lusignan, Assistant Attorney General, Office of the Attorney General for the State of New York, argued the cause for respondents. With him on the brief were Eric T. Schneidermann, Attorney General, Barbara D. Underwood, Solicitor General, Frederick A. Brodie, Assistant Solicitor General, and Lisa M. Burianek, Deputy Bureau Chief.

Before: Tatel, Srinivasan, and Wilkins, Circuit Judges.

Srinivasan, Circuit Judge:

Millennium Pipeline Company, L.L.C., would like to extend its existing natural gas pipeline in Orange County, New York. Before it can break ground, however, it must gain the approval of the Federal Energy Regulatory Commission (FERC). Millennium must also comply with environmental regulations like the Clean Water Act, which requires it to show that its pipeline will meet all applicable water-quality requirements. 33 U.S.C. § 1341(a)(1).

As part of that permitting process, Millennium submitted an application for a water-quality certificate to the New York State Department of Environmental Conservation. More than a year has passed, but the Department has taken no formal action on Millennium's application. Millennium now asks us to compel the Department to act on the application.

We dismiss Millennium's petition for review. Even if the Department has unlawfully delayed acting on Millennium's application, its inaction would operate as a waiver, enabling Millennium to bypass the Department and proceed to obtain approval from FERC. The Department's delay, then, causes Millennium no cognizable injury. Millennium therefore lacks standing to proceed with its petition.

I.

A.

For any company desiring to construct a natural gas pipeline, all roads lead to FERC. The Natural Gas Act of 1938 vests the agency with "exclusive jurisdiction" over the interstate transportation of natural gas. Schneidewind v. ANR Pipeline Co ., 485 U.S. 293, 300-01, 108 S.Ct. 1145, 99 L.Ed.2d 316 (1988). No company or person may construct a natural gas pipeline without first obtaining "a certificate of public convenience and necessity" from the agency. 15 U.S.C. § 717f(c).

Before FERC can issue a certificate of public convenience, the agency must ensure that the proposed pipeline complies with all applicable federal, state, and local regulations. See 15 U.S.C. § 717b(d) ; 18 C.F.R. § 4.38. The Clean Water Act, the statute at issue in this case, is one such regulatory regime. See 33 U.S.C. § 1341(a)(1) ; 15 U.S.C. § 717b(d)(3). Because Millennium's proposed pipeline would traverse several streams in southern New York, the Clean Water Act requires the State to certify that any discharge from the pipeline will comply with the Act's water-quality requirements. 33 U.S.C. § 1341(a)(1). FERC cannot sign off on the construction until New York either grants a water-quality certificate or waives the Act's requirements. See id.

To prevent state agencies from indefinitely delaying issuance of a federal permit, Congress gave States only one year to act on a "request for certification" under the Clean Water Act. Alcoa Power Generating Inc. v. FERC , 643 F.3d 963, 972 (D.C. Cir. 2011) (quoting 33 U.S.C. § 1341(a)(1) ). That deadline is established by section 401 of the Act, which requires a State to grant or deny the certificate "within a reasonable period of time (which shall not exceed one year) after receipt of [a] request." Id. If the State fails to act within that period, the Act's "certification requirements" are deemed "waived," such that the pipeline no longer needs a water- quality certificate to begin construction. Id.

B.

On November 9, 2016, FERC issued a provisional certificate of public convenience for Millennium's proposed project, a 7.8-mile extension of its existing natural gas pipeline. The Commission, however, conditioned its approval on proof of Millennium's receipt of "all authorizations required under federal law," including the Clean Water Act. Millennium Pipeline Co. , 157 FERC ¶ 61,096, 2016 WL 6662548, at *35 (2016). To that end, Millennium must present FERC with documentation of the applicable permits or evidence of waiver thereof. Id.

Millennium had previously applied for a water-quality certificate from the New York State Department of Environmental Conservation. The Department received Millennium's request on November 23, 2015, and responded by sending Millennium a notice of incomplete application. Over the next year, the Department sent Millennium several requests for supplemental information. Millennium has complied with the Department's requests each time. In November 2016, the Department wrote a letter indicating that Millennium had "fully responded" to its requests, but it would "continue its review of the Application, as supplemented, to determine if a valid request for a [water-quality certificate] has been submitted." N.Y. State Dep't of Envtl. Conservation, Letter on Application for Section 401 Water Quality Certification, Freshwater Wetlands and Protection of Waters Permit (Nov. 18, 2016). The Department stated that it had "at a minimum, until August 30, 2017 to either approve or deny the Application." Id.

Frustrated by the agency's delay, Millennium brought a petition for review in this Court under section 19(d)(2) of the Natural Gas Act. That provision gives us "original and exclusive jurisdiction" to review "an alleged failure to act by a ... State administrative agency acting pursuant to Federal law to issue, condition, or deny any permit required under Federal law." 15 U.S.C. § 717r(d)(2). If we find that an agency has delayed unlawfully, the Act requires us to remand the proceeding to the agency and "set a reasonable schedule and deadline for the agency to act on remand." Id. § 717r(d)(3).

Millennium argues that the Department failed to act within the Clean Water Act's one-year statutory window, and therefore asks us to compel the Department either to grant its application or to take action within a specified schedule. The Department counters that it need only act within one year of receiving a complete or valid application, and it alleges Millennium has repeatedly failed to meet that requirement.

II.

Before reaching the merits of Millennium's claim, we first examine Millennium's standing to sue. Article III of the Constitution limits our jurisdiction to "Cases" and "Controversies." U.S. Const. art. III, § 2, cl. 1. To satisfy the case-and-controversy requirement, a petitioner must allege (i) that it suffered an injury in fact; (ii) that a causal connection exists between the injury and challenged conduct; and (iii) that it is likely, as opposed to speculative, that the injury will be redressed by a favorable decision. Lujan v. Defs. of Wildlife , 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

Millennium fails at the first prong. It asks us to hold that the Department violated the Clean Water Act's statutory deadline. Even if that were so, Millennium would suffer no cognizable injury from the violation. We therefore dismiss Millennium's petition for want of standing.

A.

All agree that the Clean Water Act gave the Department a "reasonable period of time (which shall not exceed one year)" to act on Millennium's application. 33 U.S.C. § 1341(a)(1). Millennium thus does not purport to have suffered any injury from the Department's inaction within that period. Millennium instead challenges the Department's continued, allegedly unlawful delay, which it claims will prevent it from constructing its pipeline.

Even if the Department has unlawfully delayed, however, it can no longer prevent the construction of Millennium's pipeline. Millennium ultimately needs one permit to begin construction on its pipeline: the certificate of public convenience from FERC. Typically, the Clean Water Act poses a hurdle to obtaining that certificate. The Act forbids any federal agency from granting a license or permit until the "certification required by [the Act] has been obtained or has been waived ." 33 U.S.C. § 1341(a)(1) (emphasis added). That provision also makes clear that waiver occurs after one year of agency inaction. Id.

Once the Clean Water Act's requirements have been waived, the Act falls out of the equation. Id. As a result, if the Department has delayed for more than a year—as Millennium alleges—the delay cannot injure Millennium. Instead, the delay triggers the Act's waiver provision, and Millennium then can present evidence of waiver directly to FERC to obtain the agency's go-ahead to begin construction.

We have previously dismissed a petition for review for lack of standing when faced with highly similar allegations of state inaction. See Weaver's Cove Energy, LLC v. R.I. Dep't of Envtl. Mgmt. , 524 F.3d 1330, 1332 (D.C. Cir. 2008). That case, like this one, involved a petition for review under section 19(d)(2) of the Natural Gas Act. The petitioner, a natural gas company, claimed that two state agencies had failed to process its applications within the Clean Water Act's one-year deadline. Id. Although the state agencies had acted by the time the petitioner sought judicial review (one had provisionally denied the certificate, while another had granted it), the petitioner asked for a declaration that the agencies had waived any right to deny its applications. Id.

The petitioner in Weaver's Cove , as here, asserted its standing was "self-evident" because it was the object of delayed agency action. See id. at 1333. But we held that "[e]ven a final adverse decision would not support" the petitioner's standing. Id. I...