Moreau v. F.E.R.C.

• Decision Date: 15 January 1993
• Docket Number: No. 91-1542,91-1542
• Citation: 982 F.2d 556,299 U.S.App. D.C. 168
• Parties: , 138 P.U.R.4th 619, Util. L. Rep. P 13,910, 23 Envtl. L. Rep. 20,606 Judith B. MOREAU, N. Robert Moreau, Clara Lawrence, and Walter Lawrence, Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, The Providence Gas Company, Tennessee Gas Pipeline Company, Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 556

982 F.2d 556

299 U.S.App.D.C. 168, 138 P.U.R.4th 619,

Util. L. Rep. P 13,910,

23 Envtl. L. Rep. 20,606

Judith B. MOREAU, N. Robert Moreau, Clara Lawrence, and Walter Lawrence, Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent The Providence Gas Company, Tennessee Gas Pipeline Company Intervenors.

No. 91-1542.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 10, 1992.

Decided Jan. 15, 1993.

[299 U.S.App.D.C. 170] Petition for Review of an Order of the Federal Energy Regulatory Commission.

Morton L. Simons, with whom Barbara M. Simons was on the brief, for petitioners.

Timm L. Abendroth, Atty., Federal Energy Regulatory Commission, with whom William S. Scherman, Gen. Counsel, Jerome M. Feit, Sol., and Joseph S. Davies, Deputy Sol., Federal Energy Regulatory Commission, were on the brief, for respondent.

Robert W. Baker and Joseph P. Stevens were on the joint brief for intervenors Tennessee Gas Pipeline Co. and Providence Gas Co. Cheryl L. Jones and Barbara K. Heffernan also entered appearances for intervenor Providence Gas Co.

Before WILLIAMS, SENTELLE and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge:

In this case, the Federal Energy Regulatory Commission ("FERC" or "Commission") granted Tennessee Gas Pipeline Company ("TN Gas") a certificate of public convenience and necessity to construct a natural gas pipeline from TN Gas's Massachusetts mainline to Providence Gas Company's ("Providence Gas") proposed Rhode Island interconnection. Petitioners, Judith B. Moreau, N. Robert Moreau, Clara Lawrence

                [299 U.S.App.D.C. 171]  and Walter Lawrence, who own property adjacent to the now-completed pipeline, here challenge FERC's grant of the certificate on both substantive and procedural grounds.   We dismiss two of petitioners' claims on jurisdictional grounds and one on ripeness grounds.   As to the remaining claims, we deny the petition for review and remand the case to FERC for eventual resolution of the unripe claims
                

I.

A. Events Preceding FERC's Grant of a Certificate of Public Convenience and Necessity

In November 1986, TN Gas, an interstate pipeline operator, filed an application with FERC for a certificate of public convenience and necessity to construct and operate a natural gas pipeline and a metering station. TN Gas needed the pipeline extension in order to provide gas to Providence Gas, a local distribution company whose projected need for gas would soon exceed its current supply, and could not construct or operate it without a certificate. 15 U.S.C. § 717f(c)(1)(A) (1988). The proposed route for the new pipeline extended north of petitioners' land in Cranston, Rhode Island. ¹ FERC published a notice of the TN Gas application in the Federal Register on December 8, 1986. That notice apprised the public that the proposed pipeline would be approximately thirty-six miles long, connecting TN Gas's existing pipeline in "Worcester County, Massachusetts to [Providence Gas's proposed pipeline in] Cranston, Rhode Island." Notice of Application, 51 Fed.Reg. 44,118, 44,120 (1986). It also informed interested parties that an attendant metering station was to be built "at Cranston, Rhode Island" and that they could oppose TN Gas's application by intervening in the FERC proceeding or filing a protest on or before December 23, 1986. Id. at 44,120-21.

On March 13, 1987, FERC issued a "Notice of Intent to Prepare an Environmental Assessment" and a request for comments on the propriety of the proposed route and on the project's environmental impact. FERC mailed the notice and request for comments to all parties that had intervened in the proceedings as of that date and to federal, state and local environmental agencies. It also published the notice in the Federal Register. See 52 Fed.Reg. 8,510 (1987). Sometime later that year, TN Gas began considering alternative routes for the pipeline, one of which would traverse petitioners' properties and would require the placement of a metering station in the southeast corner of the Moreau property. In May 1988, TN Gas formally proposed that route to FERC by filing a map specifically identifying petitioners' properties and the route across it.

In the interim, on November 30 and December 17, 1987, TN Gas contacted petitioners to see if they could negotiate the acquisition of an easement across their properties for the pipeline and some property from the Moreaus for the metering station. Petitioners refused to grant either. The Moreaus also informed TN Gas that their property, the historic Thomas Baker Farm, dated back to the pre-Revolutionary War era and was therefore entitled to protection under the National Historic Preservation Act, 16 U.S.C. § 470 et seq. (1988). On these occasions and subsequent meetings in 1988, petitioners refused to sell and proposed alternate routes.

FERC issued an "Environmental Assessment of the Providence Project" ("EA") and a request for comments thereon on November 15, 1988. Although it mailed the EA to 179 parties and state and local agencies in Rhode Island, FERC did not publish the EA or notice thereof in the Federal Register and did not serve either upon petitioners, who still were not parties to the proceedings. In the EA, FERC concluded, contrary to the Environmental Protection Agency's ("EPA") recommendation, that with specified mitigation measures, the pipeline project would not constitute a "major Federal action significantly affecting the quality of the human environment." Providence Project Environmental Assessment

                [299 U.S.App.D.C. 172] t 50 (Nov. 1988).   Under the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq.  (1988), that conclusion allowed FERC to avoid having to prepare an environmental impact statement ("EIS").   See  42 U.S.C. § 4332(2)(C).   Shortly thereafter, on January 19, 1989, FERC published another notice in the Federal Register, which reflected changes in the sales service to Providence Gas.   See Notice of Amendment to Application,  54 Fed.Reg. 2,202 (1989)
                

B. Adjudicative Proceedings Before FERC and Events Leading Up to the Order Under Review

At the close of the comment period, FERC considered the comments that had been filed regarding the EA. On May 18, 1989, FERC denied requests for a formal evidentiary hearing, on the ground that the record presented no disputed issues of material fact, and issued TN Gas a certificate of public convenience and necessity pursuant to the Natural Gas Act ("NGA"), 15 U.S.C. § 717f(e) (1988). Tennessee Gas Pipeline Co., 47 Fed. Energy Reg. Comm'n Rep. (CCH) p 61,227 (1989). The certificate, however, was conditioned on TN Gas's satisfaction of twelve enumerated criteria, id. at 61,799-800, two of which are relevant here. Condition "A," inter alia, required TN Gas to "adhere to the proposed route" as reported to FERC in several enumerated submissions, id., not including the May 16, 1988 submission, in which TN Gas formally proposed the route cutting through petitioners' property. In January 1990, TN Gas filed a motion asking FERC to include the May 16, 1988 submission in Condition "A," but FERC has yet to rule on the motion. Condition "L" barred TN Gas from commencing construction until it received written permission to do so from the Director of FERC's Office of Pipeline and Producer Regulation ("OPPR"). Id. at 61,800. FERC ordered the OPPR Director not to issue such a letter until he had reviewed and approved cultural resource and mitigation plans and had reviewed comments on the project from the Rhode Island State Historic Preservation Officer ("RISHPO") and the Advisory Council on Historic Preservation. Id.

Two months later, in July 1989, the Lawrences inquired as to the status of the FERC proceedings. FERC answered their inquiry in August by advising them of the conditional grant of the certificate of public convenience and necessity and by providing them with a copy of the EA. In November 1989, TN Gas sent the Moreaus and the Lawrences copies of the order approving its application for a certificate of public convenience and necessity. Having received and notified petitioners of the conditional certificate of public convenience and necessity, TN Gas filed a condemnation suit under 15 U.S.C. § 717f(h) (1988) in the United States District Court for the District of Rhode Island against petitioners and other neighboring landowners in December 1989. That suit ultimately proved successful. See Tennessee Gas Pipeline Co. v. 104 Acres of Land, 749 F.Supp. 427 (D.R.I.1990) (condemning the property TN Gas sought), appeal dismissed, No. 90-2216 (1st Cir. July 18, 1991).

On January 22, 1990, one month after TN Gas filed the condemnation suit, petitioners finally sought leave to intervene in the FERC proceedings. In that motion, they also moved for rehearing of the May 18, 1989 order, arguing that the route then under consideration, which traversed their property, should be abandoned in favor of specified routes that purportedly were environmentally superior. Although their intervention motion was considerably late, FERC granted it on September 29, 1990 and issued an order addressing petitioners' concerns. Tennessee Gas Pipeline Co., 52 Fed. Energy Reg. Comm'n Rep. (CCH) p 61,290 (1990).

Relying on a "Supplemental Environmental Assessment" which it had ordered its staff to prepare after receiving petitioners' motion, FERC sua sponte ordered that the pipeline be routed around the Lawrences' property. Id. That re-routing was to be accomplished, however, by almost doubling the length of the pipeline on the Moreau property. The new route, called the "certificated route realignment alternative" Shortly before that, TN Gas had received the cultural survey on which FERC had conditioned the certificate of public convenience and necessity. That survey corroborated the Moreaus' claims that their farm was eligible for protection under the National Historic...