Twp. of Bordentown v. Fed. Energy Regulatory Comm'n , 903 F.3d 234 ( 2018 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 17-1047
_____________
TOWNSHIP OF BORDENTOWN, NEW JERSEY;
TOWNSHIP OF CHESTERFIELD,
Petitioners
v.
FEDERAL ENERGY REGULATORY COMMISSION,
Respondent
Transcontinental Gas Pipe Line Company, LLC,
Intervenor Respondent
_____________
No. 17-3207
_____________
TOWNSHIP OF BORDENTOWN, New Jersey;
TOWNSHIP OF CHESTERFIELD;
PINELANDS PRESERVATION ALLIANCE,
Petitioners
v.
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Respondent
Transcontinental Gas Pipe Line Company, LLC,
Intervenor Respondent
____________
On Petition for Review of Orders of the Federal Energy
Regulatory Commission
(Agency Nos. FERC CPI15-89-000 and CPI15-89-001)
and of the New Jersey Department of
Environmental Protection
(Permit Nos. Nos. 0300-15-0002.2 FWW150001,
1322D DWP150001, 0300-15-0002.2 FHA150001,
and 0300-15-0002.2 FHA150002)
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
June 11, 2018
Before: CHAGARES, GREENBERG, and FUENTES,
Circuit Judges.
(Filed: September 5, 2018)
Jennifer Borek
Lawrence Bluestone
Genova Burns
494 Broad Street
Newark, NJ 07102
Counsel for Petitioner Township of Bordentown
2
John C. Gillespie
Parker McCay
9000 Midlantic Drive, Suite 300
P.O. Box 5054
Mount Laurel, NJ 08054
Counsel for Petitioner Township of Chesterfield
Paul A. Leodori
Todd M. Parisi
Law Offices of Paul Leodori
61 Union Street, 2nd Floor
Medford, NJ 08055
Counsel for Petitioner Pinelands Preservation
Alliance
David L. Morenoff
Robert H. Solomon
Susanna Y. Chu
Ross Fulton
Rekha Sherman
Federal Energy Regulatory Commission
888 1st Street, N.E.
Washington, DC 20426
Counsel for Respondent Federal Energy Regulatory
Commission
Gurbir S. Grewal
Jason W. Rockwell
Ryan C. Atkinson
Lewin J. Weyl
Office of Attorney General of New Jersey
25 Market Street
3
P.O. Box 116
Trenton, NJ 08625
Counsel for Respondent New Jersey Department of
Environmental Protection
Christine A. Roy
Brian B. Keatts
Richard G. Scott
Rutter & Roy
3 Paragon Way, Suite 300
Freehold, NJ 07728
Counsel for Intervenor Respondent Transcontinental
Gas Pipe Line Co LLC
____________
OPINION
____________
CHAGARES, Circuit Judge.
I. Introduction ............................................................... 5
II. Background .............................................................. 6
A. Statutory Background .......................................... 7
B. Procedural History ............................................... 8
III. Challenges to FERC’s Orders .............................. 12
A. Interpreting the CWA ........................................ 12
B. NEPA Challenges .............................................. 16
1. Segmentation of PennEast .............................. 17
2. Consideration of the SRL ............................... 24
3. Potable Well Impacts ..................................... 39
C. Need for the Project ........................................... 46
4
D. Good Faith Notice ............................................. 49
E. Green Acres Act................................................. 52
F. Cumulative Error................................................ 56
IV. Challenges to the NJDEP’s Order........................ 56
A. Jurisdiction Under the NGA .............................. 57
B. New Jersey Law................................................. 64
V. Conclusion ............................................................. 69
I. Introduction
This consolidated appeal considers a bevy of challenges
brought by the Township of Bordentown, Township of
Chesterfield, and Pinelands Preservation Alliance’s (“PPA”)
(collectively, the “petitioners”), seeking to prevent the
expansion of interstate natural gas pipeline facilities operated
by the Transcontinental Pipe Line Company, LLC
(“Transco”).1 The petitioners contend that the Federal Energy
Regulatory Commission (“FERC”) violated the federal statute
governing the approval and construction of interstate pipelines,
as well as other generally applicable federal environmental
protection statutes, by arbitrarily and capriciously approving
Transco’s proposed project. The petitioners further maintain
that the New Jersey Department of Environmental Protection
(“NJDEP”) violated New Jersey law by (1) improperly issuing
1
All three petitioners challenge the New Jersey
Department of Environmental Protection’s actions, Docket No,
17-3207, but only the Townships challenge the Federal Energy
Regulatory Commission’s orders, Docket No. 17-1047. For
convenience, we use “petitioners” interchangeably throughout
the opinion to refer to both groups.
5
to Transco various permits that Transco was required under
federal law to obtain before it could commence construction
activities on the pipeline project, and (2) denying the
petitioners’ request for an adjudicatory hearing to challenge the
permits’ issuance, based only on the NJDEP’s allegedly
incorrect belief that the New Jersey regulations establishing the
availability of such hearings were preempted by federal law.
As explained more fully below, although we conclude
that the petitioners’ challenges to FERC’s orders lack merit,
we agree that the NJDEP’s interpretation of the relevant federal
law was incorrect, thus rendering unreasonable the sole basis
for its denial of the petitioners’ request for a hearing. Given
our disposition, we do not reach the petitioners’ substantive
challenges to the NJDEP’s provision of the permits, which —
assuming a hearing is granted — we leave for the NJDEP to
address in the first instance. We accordingly will deny in part
and grant in part the petitions for review, and we will remand
to the NJDEP for proceedings consistent with this opinion.
II. Background
This case presents challenges to both the federal and
state governments’ treatment of Transco’s application to
construct its interstate pipeline project. Before detailing the
agency proceedings that preceded this appeal, we first briefly
set forth the various interlocking federal and state regulatory
schemes at play, which this Court has already elucidated in
some detail. See Del. Riverkeeper Network v. Sec’y of Pa.
Dep’t of Envtl. Prot., 870 F.3d 171, 174 (3d Cir. 2017)
(“Delaware II”); Del. Riverkeeper Network v. Sec’y Pa. Dep’t
of Envtl. Prot., 833 F.3d 360, 367–69 (3d Cir. 2016)
(“Delaware I”).
6
A. Statutory Background
Under the Natural Gas Act of 1938 (“NGA”), 15 U.S.C.
§§ 717–717z, FERC is tasked with regulating the construction
and operation of interstate natural gas pipelines. Id. §§ 717f,
717n. If FERC determines that a given project should proceed,
it will issue a “certificate of public convenience and necessity”
(the “certificate”), which in turn is conditioned on the pipeline
operator acquiring other necessary state and federal
authorizations. See Delaware I, 833 F.3d at 367–68. Among
the regulatory schemes related to the NGA are the federal
environmental laws, including the National Environmental
Policy Act (“NEPA”), 42 U.S.C. §§ 4321–4370h, and the
Clean Water Act (“CWA”), 33 U.S.C. §§ 1251–1388. NEPA
is primarily a procedural statute that requires FERC to assess
“the potential environmental impact of a proposed pipeline
project.” Delaware I, 833 F.3d at 368. Upon completing the
analysis, FERC must issue either an Environmental
Assessment (“EA,” if the analysis indicates that the project will
have no significant environmental impacts) or an
Environmental Impact Statement (“EIS,” if the analysis
indicates that the project will be a “‘major Federal action’ that
would ‘significantly affect[] the quality of the human
environment’”). Del. Riverkeeper Network v. U.S. Army
Corps of Eng’rs, 869 F.3d 148, 152 (3d Cir. 2017) (quoting 42
U.S.C. § 4332(C)). As to the CWA, although the NGA
explicitly “preempts state environmental regulation of
interstate natural gas facilities,” it “allows states to participate
in environmental regulation of these facilities under . . . the
Clean Water Act.” Delaware I, 833 F.3d at 368. The CWA
permits states, subject to United States Environmental
Protection Agency approval, to establish their own minimum
7
water quality standards, including by regulating the discharge
of pollutants into bodies of water in the state. Id.
The NGA and CWA converge where, to construct an
interstate pipeline, a company must discharge into — or
displace water from — the navigable waters of the United
States. Before a company is permitted to undertake this
activity, it must obtain a permit pursuant to Section 404 of the
CWA, which itself may issue only after the company secures a
state-issued Water Quality Certification, pursuant to Section
401 of the CWA, “confirm[ing] that a given facility will
comply with federal discharge limitations and state water
quality standards.” Id.; see also 33 U.S.C. § 1341(a) (“Any
applicant for a Federal license or permit to conduct any activity
. . . which may result in any discharge into the navigable
waters, shall provide the licensing or permitting agency a
certification from the State in which the discharge originates or
will originate, . . . that any such discharge will comply with the
applicable [water quality] provisions . . . of this Act”). Because
New Jersey has assumed permitting authority under Section
404 — implemented by the NJDEP under the framework of the
New Jersey Freshwater Wetlands Protection Act (“FWPA”),
N.J. Stat. Ann. § 13:9B-1 — the issuance of a Section 404
permit in New Jersey carries with it a Section 401 Water
Quality Certification. N.J. Admin. Code § 7:7A-2.1(c)–(d);
Delaware I, 833 F.3d at 368–69.
B. Procedural History
The permits at issue in this case relate to Transco’s
Garden State Expansion Project (the “Project”), by which
Transco planned to upgrade its existing interstate natural gas
pipeline system so that it could support the transportation of
8
another 180,000 dekatherms per day of capacity for natural gas
from its Mainline to its Trenton–Woodbury Lateral. The
Project proposed to construct a new meter and regulating
station, compressor station, and electric substation along the
Trenton–Woodbury Lateral in Chesterfield, New Jersey
(Station 203), and to upgrade and modify the existing motor
drives and compressor station located on the Mainline in
Mercer County, New Jersey (Station 205).
The New Jersey Natural Gas company (“NJNG”)
contracted with Transco to utilize all the capacity added by the
Project, for distribution via NJNG’s intrastate pipeline
system. In anticipation of obtaining the excess capacity, NJNG
has proposed to construct the Southern Reliability Link Project
(“SRL”), a 28-mile-long intrastate pipeline that would connect
to Transco’s Trenton–Woodbury Lateral pipeline and deliver
gas south-eastward for connection into NJNG’s existing
system. Separately, PennEast has proposed to construct the
interstate PennEast Pipeline Project, which would deliver
natural gas from Pennsylvania’s Marcellus Shale region and
terminate at an interconnect with Transco’s Mainline. NJNG
has independently contracted with PennEast to purchase
180,000 dekatherms per day of the PennEast project’s expected
supply, for delivery to the SRL via Transco’s pipeline
network.2
2
Whereas the SRL — as a purely intrastate pipeline —
would not be subject to FERC’s jurisdiction or oversight, the
PennEast pipeline, which will traverse Pennsylvania and New
Jersey, would be. See 15 U.S.C. § 717(b)–(c).
9
As required by the NGA, Transco sought and obtained
from FERC a certificate of public convenience and necessity
authorizing the construction of the Project, subject — as is
generally the case — to Transco “receiv[ing] all applicable
authorizations required under federal law.” Appendix
(“App.”) 67. Prior to issuing the certificate, FERC conducted
an environmental analysis and issued an EA concluding that,
with the appropriate mitigation measures, the Project would
have “no significant impact” on the environment. App. 1479;
see also App. 45. FERC issued the EA in November 2015 and,
after receiving comments, issued Transco the certificate in
April 2016. Bordentown and Chesterfield moved FERC for a
rehearing, which FERC denied in November 2016. See App.
74–97.
Because the Project would be situated in freshwater
wetlands and transition areas, and the construction of the
Project would require discharging fill or dredge material into
navigable waters as well as the diversion of a significant
volume of water, Transco applied to the NJDEP for a
Freshwater Wetlands Individual Permit and Water Quality
Certificate (“FWW permit”) and dewatering permit, as
required by the CWA and New Jersey law.3 The NJDEP held
two days of public hearings to consider the FWW permit, and
received over 1,800 written comments, which included
concerns raised by each of the petitioners. After obtaining
3
Transco also applied for and received a Flood Hazard
Area Individual Permit and Flood Hazard Area Verification,
but subsequently relinquished the Permit after being able to
move the Project out of the area subject to it, and the petitioners
do not challenge the provision of those permits on appeal.
10
Transco’s responses to the public comments, as well as its
responses to the NJDEP’s requests for additional information
concerning possible alternative sites for an electrical substation
that would be built as part of the Project, the NJDEP issued the
FWW permit on March 13, 2017. Shortly thereafter — and
also following a public hearing — the NJDEP on March 16,
2017 issued the temporary dewatering permit.
Pursuant to New Jersey law, the petitioners sought an
adjudicatory hearing concerning each permit. Bordentown —
later joined by Chesterfield and PPA — filed a request for a
hearing on the FWW on March 22, 2017. On April 11, 2017,
Bordentown alone also requested an adjudicatory hearing on
the dewatering permit. Both requests were filed within the 30-
day limitations period established under New Jersey law for
seeking adjudicatory hearings. See N.J. Admin. Code §§
7:7A-21.1(b); 7:14A-17.2(c). Bordentown asserted that it had
standing under state law to challenge the permits as a third
party because it had a particularized property interest affected
by the Project, given that part of the project would be built on
Bordentown-owned land, which Transco had acquired through
eminent domain under the authority granted by the FERC
certificate. See NJDEP App. 37 & n.4; 15 U.S.C.
§ 717f(h). On August 22, 2017, the NJDEP denied the
petitioners’ requests for an adjudicatory hearing on either
permit. The sole stated basis for the NJDEP’s denial of the
request was that this Court’s decision in Delaware I established
that we have “exclusive jurisdiction to review the issuance of
permits regarding interstate natural gas pipeline projects” and
accordingly that by operation of the NGA “the state
administrative hearing process provided for in the [FWPA] is
not applicable to permits for interstate natural gas
projects.” NJDEP App. 39. Concluding that the NGA
11
“requires that final permits be appealed to the Third Circuit,”
the NJDEP denied the petitioners’ hearing requests.
The petitioners timely sought review in this Court, both
of FERC’s orders issuing the certificate and denying rehearing,
and of the NJDEP’s issuance of the permits and its order
denying the requests for an adjudicatory hearing to challenge
them. We have jurisdiction to review these petitions for review
of the federal and state agencies’ orders regarding the interstate
Project under 15 U.S.C. § 717r(d)(1).
III. Challenges to FERC’s Orders
We begin with the challenges directed at FERC’s orders
(docket No. 17-1047). As explained more fully below, we
conclude that the petitioners’ FERC-related claims are
unavailing.
A. Interpreting the CWA
Before turning to the merits of the certificate’s issuance,
we must address the petitioners’ challenge to its timing. As
noted, Transco was required under the CWA to obtain a
Section 401 permit from the NJDEP affirming that Transco’s
discharge activities would comply with federal and state water
quality standards. Under Section 401, Transco had to obtain
such a permit prior to the issuance of any “Federal license or
permit to conduct any activity . . . which may result in any
discharge into the navigable waters.” 33 U.S.C. § 1341(a); see
also id. (“No license or permit shall be granted until the
certification required by this section has been obtained or has
been waived . . . .”). The petitioners argue that, despite this
clear language, FERC issued the certificate to Transco before
12
Transco obtained the Section 401 permit from New Jersey,
thereby authorizing the pipeline project that “may result in . .
. discharge into the navigable waters” in contravention of §
1341(a)’s mandate.
FERC does not dispute that Transco had yet to obtain
the Section 401 permit, but argues instead that it only issued a
conditional certificate, which required Transco first to obtain
the required state permits and then to secure FERC’s
permission to proceed before it could begin any construction
related to the project. See App. 67, 89–90. In FERC’s view,
because the certificate did not, in fact, permit Transco to
“conduct any activity” that could “result in any discharge into
the navigable waters” until Transco had received the necessary
state permits, FERC’s issuance of the conditional certificate
prior to Transco’s receipt of the state-issued Section 401 permit
did not contravene the CWA.4 We agree with FERC’s position
and hold that FERC’s practice of issuing certificates that
condition the start of construction on the receipt of the
necessary state permits complies with the plain language of the
CWA.5
4
We note that it is not FERC, but the Environmental
Protection Agency, that is tasked with administering the CWA,
so FERC’s views are not entitled to deference. See, e.g., Scafar
Contracting, Inc. v. Sec’y of Labor, 325 F.3d 422, 423 (3d Cir.
2003).
5
In so holding, we agree with the reasoning of the Court
of Appeals for the District of Columbia Circuit in Del.
Riverkeeper Network v. FERC, 857 F.3d 388 (D.C. Cir. 2017).
13
As the Court of Appeals for the District of Columbia
Circuit explained, “the ‘logically antecedent’ question under §
401 is whether the disputed federal permit or license ‘is subject
to the provisions of Section 401(a)(1)’ in the first place.” Del.
Riverkeeper Network v. FERC, 857 F.3d 388, 398 (D.C. Cir.
2017) (“DRN II”) (quoting North Carolina v. FERC, 112 F.3d
1175, 1186 (D.C. Cir. 1997)). Where the conduct that the
certificate authorizes “would not result in a discharge,” Section
401(a) is inapposite and no “license or permit” is needed to
engage in that conduct. Id.The petitioners concede that the certificate did not
permit Transco to engage in any construction — which
implicitly acknowledges that it did not permit Transco to
engage in any activity that could result in discharge — but
argue that the certificate nevertheless “sanctions other conduct
that Transco would not otherwise be permitted to undertake,”
such as initiating condemnation actions under the NGA, 15
U.S.C. § 717f(h). Pet. Br. 35. However, the activity that
FERC’s certificate allows to commence — bringing a
condemnation action — cannot, without a series of additional
steps (among them the prohibited construction activities),
result in the discharge of water.6 Even accepting the
6
The petitioners reply that nothing in the CWA “limit[s]
the scope of covered permits to those [actions] that directly or
immediately may result in a discharge” and that under the plain
definition of “result” — meaning “a physical, logical, or legal
consequence” — the certificate “which authorizes Transco’s
pipeline, may ‘result’ in a discharge.” Reply 13–14 (quoting
Black’s Law Dictionary (10th ed. 2014)). But given the
express condition that Transco obtain all the required state
14
petitioners’ argument, FERC’s conditional certification does
not contravene the CWA’s requirements. The petitioners’
argument would expand the CWA from a statute meant to
safeguard the nation’s water sources to a statute regulating the
initiation of an interstate pipeline’s construction
process. However, the latter statute already exists and, as the
petitioners themselves note, it provides Transco the
condemnation authority upon the issuance of the certificate,
with no caveats. To the extent that the NGA recognizes the
continued applicability of the CWA, it is only with respect to
pipeline-related activities that impact the CWA’s area of
concern. The mere ability to initiate condemnation
proceedings, proceedings regarding land from which discharge
permits before obtaining authorization to begin construction —
which the petitioners do not contest is the only conduct that
could proximately result in discharge — the certificate alone
neither “logically” nor “legally” results in the consequence of
a discharge. It is black letter law that an independent
intervening act — here, the state permit and FERC’s
authorization to commence construction — severs the causal
chain. See, e.g., Texas v. United States, 809 F.3d 134, 160 (5th
Cir. 2015) (explaining that “the Supreme Court [has] held that
an injury [is] not fairly traceable” to an action where the
“independent act of a third party was a necessary condition of
the harm’s occurrence, and it was uncertain whether the third
party would take the required step”), aff’d by an equally
divided court, 136 S. Ct. 2271 (2016). In summary, because
no discharge-creating activity can commence without New
Jersey independently awarding Transco with a Section 401
permit, no activities that may result in a discharge can follow
as a logical result of just FERC’s issuance of the certificate.
15
into the United States’ navigable waters might not even occur,
plainly is not an activity that the CWA prohibits prior to
obtaining a Section 401 permit.
Because, as was the case before the D.C. Circuit, the
petitioners have “pointed to no activities authorized by the
conditional certificate itself that may result in such discharge
prior to the state approval and the Commission’s issuance of a
Notice to Proceed,” DRN II, 857 F.3d at 399 (quoting
Gunpowder Riverkeeper v. FERC, 807 F.3d 267, 279 (D.C.
Cir. 2015) (Rogers, J., dissenting in part and concurring in the
judgment)), we conclude that FERC did not violate the CWA
by issuing the certificate prior to the NJDEP’s issuance of its
Section 401 permit.
B. NEPA Challenges
Turning to the merits of FERC’s issuance of the
certificate, the petitioners first raise a number claims asserting
that FERC violated NEPA by failing — in numerous ways —
to consider the full scope of the Project’s environmental
impacts. The petitioners specifically challenge FERC’s
conclusion that the Project’s impacts should be considered
separately from the impacts of the PennEast and SRL projects,
as well as FERC’s determination that the Project would not
significantly impact the potable wells in the project’s vicinity.
NEPA is “primarily [an] information-forcing” statute; it
“directs agencies only to look hard at the environmental effects
of their decisions, and not to take one type of action or
another.” Sierra Club v. FERC, 867 F.3d 1357, 1367 (D.C.
Cir. 2017) (quoting Citizens Against Burlington, Inc. v. Busey,
938 F.2d 190, 194 (D.C. Cir. 1991)). In addition to that general
16
directive, NEPA created the Council of Environmental Quality
(“CEQ”) to issue regulations to effectuate the statute. These
regulations are “‘mandatory’ for all federal agencies, carry the
force of law, and are entitled to ‘substantial deference.’” Del.
Dep’t of Nat. Res. & Envtl. Control v. U.S. Army Corps of
Eng’rs, 685 F.3d 259, 269 (3d Cir. 2012) (quoting Marsh v. Or.
Nat. Res. Council, 490 U.S. 360, 372 (1989)). A court
reviewing an agency decision under NEPA and its
implementing regulations may only overturn an agency action
that is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A);
see also Del. Dep’t of Nat. Res., 685 F.3d at 271. So long as
the agency takes a “‘hard look’ at the environmental
consequences” the agency has satisfied its responsibilities and
a reviewing court may not “substitute its judgment for that of
the agency as to the environmental consequences of its
actions.” Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976)
(quoting NRDC v. Morton, 458 F.2d 827, 838 (D.C. Cir.
1972)). In other words, NEPA “requires informed
decisionmaking ‘but not necessarily the best
decision.’” WildEarth Guardians v. Jewell, 738 F.3d 298, 303
(D.C. Cir. 2013) (quoting New York v. Nuclear Regulatory
Comm’n, 681 F.3d 471, 476 (D.C. Cir. 2012)).
1. Segmentation of PennEast
Under NEPA and its implementing regulations, when
evaluating a proposed project’s environmental impacts, an
agency must take account of “connected,” “cumulative,” and
“similar actions” whose impacts should be “discussed in the
same impact statement” as the project under review. 40 C.F.R.
§ 1508.25(a). Where an agency instead attempts to consider
such related actions separately by segmenting the mandated
17
unified review into multiple independent analyses that insulate
each project from the impacts created by its sister projects, it
“fails to address the true scope and impact of the activities that
should be under consideration” and therefore runs afoul of
NEPA. Del. Riverkeeper Network v. FERC, 753 F.3d 1304,
1313 (D.C. Cir. 2014) (“DRN I”). The petitioners allege that
FERC did just that, by refusing to consider the Project’s
impacts in conjunction with the anticipated impacts of the
proposed PennEast pipeline that, when completed, will be the
source of the gas that NJNG will transport using the capacity
added by the Project. The petitioners insist that PennEast is a
“connected action” that must be considered together with the
Project because the two pipeline projects “lack independent
functional utility.” Pet. Br. 16 (citing Native Ecosystems
Council v. Dombeck, 304 F.3d 886, 894–95 (9th Cir.
2002)). Given that the undisputed facts here clearly attest to
the projects’ separateness, we conclude that FERC correctly
rejected this argument.
Actions are deemed “connected” with one another if
they “(i) [a]utomatically trigger other actions which may
require environmental impact statements,” “(ii) [c]annot or
will not proceed unless other actions are taken previously or
simultaneously,” or “(iii) [a]re interdependent parts of a larger
action and depend on the larger action for their
justification.” 40 C.F.R. § 1508.25(a)(1). The petitioners’
claim relies on the third basis for finding a connected action.
In line with the prevailing view amongst the Courts of Appeals,
both FERC and the petitioners agree that the essential question
is whether the segmented projects have independent utility.
See Pet. Br. 16; App. 45; see also, e.g., Coal. on W. Valley
Nuclear Wastes v. Chu, 592 F.3d 306, 312 (2d Cir. 2009) (“The
proper test to determine relatedness under 40 C.F.R. §
181508.25(a)(1)(iii) is whether the project has independent
utility.” (quoting Town of Huntington v. Marsh, 859 F.2d
1134, 1142 (2d Cir. 1988))); Great Basin Mine Watch v.
Hankins, 456 F.3d 955, 969 (9th Cir. 2006) (same). Projects
have independent utility where “each project would have taken
place in the other’s absence.” Webster v. U.S. Dep’t of Agric.,
685 F.3d 411, 426 (4th Cir. 2012) (collecting cases).
The petitioners’ theory of interdependence — or, stated
in the inverse, the lack of independent utility — relies entirely
on their unfounded contention that “Transco’s sole stated
purpose for the Project is to supply capacity to NJNG from the
PennEast Line.” Pet. Br. 16. But this is simply not so. The
statements that the petitioners point to in support merely
articulate the undisputed fact that the Project would supply
capacity to NJNG; they are agnostic as to the source of the gas
that would utilize the capacity. App. 887, 1419.7 Rather, as
FERC concluded below, the agreement between NJNG and
Transco concerning the Project makes clear both that NJNG
contracted for Transco’s capacity without regard to the source
(or even availability) of the natural gas — which NJNG is
alone responsible for sourcing — and, more importantly, that
the actual source of the physical supply for the capacity added
by the Project is the Station 210 Zone 6 pooling point, not the
7
Notably, only a few pages later in their brief, the
petitioners again cite to page 887 of the appendix, but this time
assert that the Project’s “sole purpose was to connect one of
[Transco’s] existing pipelines to a new intrastate SRL pipeline
to be constructed by NJNG.” Pet. Br. 22. It goes without
saying that the “sole purpose” of the pipeline cannot be both to
connect to PennEast and to connect to the Transco Mainline.
19
PennEast line.8 In addition, FERC found the PennEast
project’s proposed capacity of 1,107,000 dekatherms per day
is 90 percent subscribed by 12 different shippers, such that
NJNG’s subscription makes up less than 15 percent of the
pipeline’s capacity. App. 47–50; 80. In other words, the
Project would go forward even if PennEast were not built (such
that NJNG could not obtain PennEast gas to consume
Transco’s capacity) and conversely the PennEast project would
go forward even if the Project were not built (such that
PennEast could not deliver its gas to NJNG).
Indeed, in their reply, the petitioners all but concede that
their segmentation claim fails. They acknowledge that
PennEast has independent utility from the Project because it
serves many shippers apart from NJNG. Reply Br. 7. They
further concede that, even if PennEast is not built, NJNG could
use the extra capacity provided by the Project to transport gas
purchased from another supplier and moreover that NJNG’s
contract with Transco obligates it “to obtain the gas regardless
of whether the Penn East project is built.” Reply Br. 7. The
petitioners’ continued argument that FERC improperly
segmented the Project and PennEast thus relies on the
petitioners’ bare assertion that this contractual setup — which
establishes that NJNG must use the Project’s increased
capacity whether or not the gas comes from the PennEast line
— is entirely irrelevant to determining whether the sole
8
The Zone 6 pooling point is located north of Station
205 (where the gas would divert down Transco’s Trenton-
Woodbury lateral for delivery to NJNG at Station 203), which
is itself located north of the point where PennEast is set to
connect to the Transco Mainline.
20
purpose of the Project is to connect PennEast and the SRL. But
even to describe the petitioners’ argument is to refute it. If just
constructing the Project — and thus adding the capacity that
NJNG requires — is sufficient to meet Transco’s contractual
obligation, such that NJNG must buy the capacity regardless
of any other contingency (such as PennEast’s status), then the
Project’s construction alone plainly serves an independent
purpose separate and apart from whatever happens to the
PennEast pipeline.9 See, e.g., NRDC v. U.S. Nuclear
9
Because NJNG’s contract with Transco makes no
mention of PennEast, the petitioners’ reliance on the Court of
Appeals for the District of Columbia Circuit’s rejection of an
argument similar to the one FERC advances here in
inapposite. In DRN I, the court accepted that proof of a
project’s “commercial and financial viability . . . when
considered in isolation” from the other projects that were
allegedly being segmented was “potentially an important
consideration in determining whether the substantial
independent utility factor has been met,” but concluded that the
“shipping contracts in this case” were insufficient because the
contracts themselves tended to show that the projects were in
fact “interdependent.” 753 F.3d at 1316 (emphasis
added). Specifically, the court noted that the contract at issue
calculated its rates by taking into account the costs and
capacities of the other projects and had a provision explicitly
allowing for a rate adjustment in the event of a the construction
of one of the improperly segmented projects. Id. at
1317. These provisions highlighted the interconnectedness of
the projects. Here, by contrast, Transco and NJNG’s contract
makes no mention of PennEast, the negotiated rate does not
depend on the source of the gas, and the contract clearly
21
Regulatory Comm’n, 879 F.3d 1202, 1209 (D.C. Cir. 2018)
(rejecting as insufficient to rebut a finding of economic
viability a petitioner’s claim that the developer had
“envisioned” the project “as part of a larger” development
plan).
To conclude otherwise, the petitioners confuse the
means of the Project for its ends. The Project exists to fulfill
NJNG’s need for gas in southern New Jersey, a need that will
exist and require satisfaction whether or not PennEast is
constructed. As we elaborate on below in discussing the need
for the Project, NJNG required more supply to shore-up the
southern parts of the state after Hurricane Sandy. App.
1419. To obtain that supply, NJNG contracted (1) with
Transco to increase its pipeline’s capacity and (2) with
PennEast to get the gas to Transco. But while Transco’s
capacity increase is necessary to the plan, PennEast’s
participation is not. NJNG can (and by contract, must) simply
buy gas from the Zone 6 pooling point that was delivered by a
different supplier.
Finally, even if the petitioners are correct that we are
obligated to ignore the contractual terms and focus only on the
functionality of the pipeline, such an analysis points
establishes that NJNG is solely responsible for acquiring the
gas supply. Unlike in Delaware Riverkeeper, then, the Project
is financially independent of PennEast, because it will be paid
for and utilized regardless of PennEast’s existence. Under
Delaware Riverkeeper’s own framework, this evidence is an
“important consideration” in the independent utility
analysis. Id. at 1316.
22
conclusively in FERC’s favor. Transco’s Mainline can change
the direction of gas flow depending on market conditions. See
App. 49–501. The Station 210 Zone 6 Pooling point
(connecting Transco’s Leidy line to the Mainline) thus can
either send gas from the Leidy line to the South or pull flow
from the Gulf of Mexico northward, depending on market
factors — such as where the cheaper gas is being produced.
App. 49. The PennEast pipeline will connect to the Transco
Mainline south of the Station 210 Zone 6 pool from which
NJNG has contracted with Transco to obtain the supply created
by the project. Accordingly, the Zone 6 pool will only be filled
with gas physically brought in by the PennEast line during
times when the Mainline is running South-to-North. The
mechanics of the Transco Mainline’s flow — determined
without consideration of the NJNG contract — make it highly
unlikely that the physical gas flowing from the Zone 6 pool,
through the Transco lateral, to the SRL will only be gas piped
in by PennEast. In a pipeline, gas is fungible, so “its
‘transportation’ does not always take the form of the physical
carriage of a particular supply of gas from its starting point to
its destination.” Associated Gas Distribs. v. FERC, 899 F.2d
1250, 1254 n.1 (D.C. Cir. 1990). NJNG’s contract to purchase
gas from PennEast and its simultaneous contract with Transco
for capacity to transport that exact amount of gas was not, as
the petitioners argue to this Court, a contract to purchase and
transport PennEast’s physical gas to the SRL. It was rather a
contract to purchase an amount of gas from PennEast for
inclusion in the Transco system, supported by a separate
contract between NJNG and Transco to transport that same
amount of gas from Transco’s pooling station to the SRL. As
FERC explained in its order denying rehearing, although “it is
feasible, using backhaul and other methods, that natural gas
from the PennEast Project could ultimately be delivered on
23
Transco to reach the” SRL, that is not the way that the Mainline
will necessarily operate. App. 81 n.36. The Project will thus
often service the SRL with non-PennEast-derived natural gas,
cementing our conclusion that the Project has a value
independent of the PennEast line.10
Because we conclude that the Project’s purpose is to
supply the capacity that NJNG requested from their Zone 6
pool, and that the source of the pool’s gas will be determined
based on market conditions, we agree that FERC’s refusal to
consider PennEast a “connected action” in the Project’s EA
was not arbitrary and capricious.
2. Consideration of the SRL
a. Direct Review
As an intrastate pipeline, the SRL does not fall within
FERC’s jurisdiction under the NGA. Nevertheless, in
10
On this point, it is noteworthy that as of the time this
case was submitted, the Project had been completed and placed
into service, see FERC Docket CP15-89, Submittal 20180329-
5212 (Mar. 29, 2018), whereas the PennEast pipeline had only
just been approved by FERC, see PennEast Pipeline Co., 162
FERC ¶ 61,053 (2018). See generally, e.g., Town of Norwood
v. New Eng. Power Co., 202 F.3d 408, 412 (1st Cir. 2000)
(holding that courts may take judicial notice of “the underlying
FERC proceedings”). That the Project is operational and
transporting gas even though PennEast has not yet even begun
construction shows conclusively that the Project is not reliant
on PennEast’s existence.
24
recognition of the fact that in some cases FERC “is required
under NEPA to give some environmental consideration of
nonjurisdictional facilities,” FERC has developed a four-factor
balancing test “to determine whether there is sufficient federal
control over a project to warrant environmental
analysis.” Nat’l Comm. for the New River v. FERC, 373 F.3d
1323, 1333 (D.C. Cir. 2004). Under the test, FERC considers
(1) whether the regulated activity comprises
“merely a link” in a corridor type project; (2)
whether there are aspects of the non-
jurisdictional facility in the immediate vicinity of
the regulated activity that uniquely determine the
location and configuration of the regulated
activity; (3) the extent to which the entire project
will be within the Commission’s jurisdiction;
and (4) the extent of cumulative federal control
and responsibility.
Id. at 1333–34 (citing 18 C.F.R. § 380.12(c)(2)(ii)). As the
Court of Appeals for the District of Columbia Circuit has
explained, the purpose of this test is to limit consideration of
the environmental impacts of non-jurisdictional facilities to
cases in which those facilities “are built in conjunction with
jurisdictional facilities and are an essential part of a major
federal action having a significant effect on the
environment.” Id. at 1334.
Applying the test in its order denying the petitioners’
request for rehearing, FERC concluded that “on balance” the
factors weighed against federalizing the SRL. App. 83. It
reached this conclusion after giving careful attention to each
factor. As to the first factor, for the same reasons that PennEast
25
and the Project were not improperly segmented, FERC
concluded that PennEast, the SRL, and the Project do not
comprise a single corridor type project and that the Project
would be a comparatively minor element compared to the 30-
mile SRL. On the second factor, FERC concluded that the
SRL did not “uniquely determine” the location of the project,
because the SRL needed only to connect to the Transco lateral
at some point at or downstream of the newly constructed
Station 203, not to the compressor station itself. The location
of Station 203, accordingly, was not uniquely dictated by the
needs of the SRL. Regarding the third factor, FERC explained
that (excluding PennEast which, as noted, is not part of the
Project) the jurisdictional Project is dwarfed by the size of the
SRL. FERC rejected the contention that its oversight of the
PennEast’s and the Project’s costs — which the petitioners
assert will be passed on to SRL ratepayers — means that FERC
has decisional authority impacting the SRL. As FERC further
explained, because each pipeline is owned by different
companies, there will be no cost sharing between them; rather,
shippers using each line will bear their own costs. Moreover,
the tariffs of SRL, as an intrastate line, are governed by the
New Jersey Board of Public Utilities and FERC has no role in
funding, approving, or overseeing the SRL’s construction or
operation. Finally, concerning the fourth factor, FERC noted
the almost total absence of federal control over the SRL and
rejected the petitioners’ argument that, by briefly traversing a
federal military base and in light of some generally applicable
federal permitting requirements, the SRL was subject to
significant cumulative federal control. Although we recognize
that one could quibble with its analysis of the second factor,
we discern no abuse of discretion in FERC’s final analysis or
its weighing of the factors.
26
The petitioners’ argument that the first factor is satisfied
is based solely on their view that the Project, when considered
in conjunction with the 122-mile PennEast line, is significantly
larger than the SRL. But this avenue of attack is foreclosed by
our agreement with FERC’s determination that the PennEast
line was properly segmented from the Project. The petitioners’
assertion that FERC has de facto jurisdiction over the SRL by
virtue of its oversight over the Project’s rates which in turn
impacts the SRL’s rates, even if accurate, articulates a logic
that would extend FERC oversight over every non-
jurisdictional project that attaches to an interstate pipeline.
Such a rule would swallow the non-jurisdictional exception
altogether. By its nature, a pipeline network consists of
interstate and intrastate projects, and so the projects’
connectedness alone — along with inherent cross-effects
created by that connection — cannot weigh meaningfully in
favor of federal control over purely intrastate projects. See
New River, 373 F.3d at 1334 (repudiating view that would
require “the Commission to extend its jurisdiction over non-
jurisdictional activities simply on the basis that they were
connected to a jurisdictional pipeline”). Finally, that the SRL
(1) would need to obtain an easement from the federal
government, (2) traverses a federally designated National
Reserve (managed by a state agency), and (3) must abide by
generally applicable pipeline safety regulations are slim reeds
upon which to assert cumulative federal control over the entire
SRL. See, e.g., Ohio Valley Envtl. Coal. v. Aracoma Coal Co.,
556 F.3d 177, 195 (4th Cir. 2009) (explaining that the fact that
a federal permit must be secured prior to commencing — and
“is central to the success” of — a project, “does not itself give
the [permitting agency] ‘control and responsibility’ over the
entire” project); New River, 373 F.3d at 1334 (deferring to
FERC’s determination of insufficient control despite
27
petitioner’s argument that the project at issue was subject to
numerous federal licensing requirements). Because the above
three factors weigh clearly against asserting federal jurisdiction
over the SRL, the possibility that the location of Station 203 —
which links up to the SRL — was dictated in part by the
location of the SRL does not render FERC’s ultimate balancing
arbitrary and capricious. The record evidence falls short of
showing that the location was “uniquely determine[d]” by the
SRL, but even if it did, this factor alone would not change the
reasonableness of FERC’s balancing, to which we accordingly
defer. See New River, 373 F.3d at 1334 (rejecting petitioner’s
claim that satisfying the second factor, alone, is sufficient “to
tip the balance in the four-factor test”).
b. Cumulative Impacts
The petitioners alternatively argue that, even if FERC
were not required to assert jurisdiction over the SRL, it was
nevertheless required under NEPA to assess whether — in
conjunction with the jurisdictional Project — the non-
jurisdictional SRL would foreseeably have cumulative impacts
on the environment. Under NEPA’s implementing
regulations, FERC is required to consider “the incremental
[environmental] impact” of the jurisdictional action when
added to the existing or “reasonably foreseeable” impacts of
other actions, whether or not jurisdictional. 40 C.F.R. §§
1508.7, .25; see also id. § 1508.7 (“Cumulative impacts can
result from individually minor but collectively significant
actions taking place over a period of time.”). When conducting
a cumulative-impacts analysis, FERC:
[M]ust identify (i) the ‘area in which the effects
of the proposed project will be felt’; (ii) the
28
impact expected ‘in that area’; (iii) those ‘other
actions — past, present, and proposed, and
reasonably foreseeable’ that have had or will
have impact ‘in the same area’; (iv) the effects of
those other impacts; and ([v]) the ‘overall impact
that can be expected if the individual impacts are
allowed to accumulate.’
Sierra Club v. FERC, 827 F.3d 36, 49 (D.C. Cir. 2016)
(quotation marks omitted) (quoting TOMAC v. Norton, 433
F.3d 852, 864 (D.C. Cir. 2006)).
In line with this test, FERC determined that the
Project’s “main region of influence” in which cumulative
impacts might be felt was .25 miles from each of the Project’s
components, but nevertheless considered the cumulative
impacts of the SRL, PennEast line, and other projects even
though they largely fell outside of the Project’s area of
influence. FERC recognized that both the Project and the SRL
would impact wetlands, but concluded based on the Project’s
limited geographic and durational impact, along with FERC’s
mandated mitigation measures, that any cumulative effects
would be minor. It reached similar conclusions regarding
impacts to vegetation and wildlife, explaining that cumulative
effects are greatest when projects are built in the same
geography, during the same time period, and where the impacts
are expected to be long-term. FERC noted that the SRL,
although largely occurring within existing rights of way, would
be a significant pipeline project situated in a variety of habitats,
including the protected Pinelands Area, and would be subject
to extensive state-level regulation that would determine its
ultimate environmental impacts. FERC accordingly outlined
the potential area and kinds of resources that the SRL could
29
impact but — in recognition of the ongoing state regulation —
did not firmly conclude how the impacts would manifest.
Nonetheless, it determined that the Project’s largely short-term
effects on vegetation and wildlife would not result in
cumulative long-term impacts, even when added to the SRL’s
potentially greater impacts, which would in any event be
controlled by state regulators. FERC similarly concluded that
the Project’s contribution to cumulative impacts on land use
would minimal, given that only a small portion of the land
permanently impacted by the Project would be forested,
compared to the varied and more expansive terrain impacted
by the miles-long SRL. Based on its finding that “each project
would be designed to avoid or minimize impacts on water
quality, forest, and wildlife resources,” and given the Project’s
expected “temporary and minor effects,” FERC concluded that
the Project “would not result in cumulative impacts.” App.
1465, 1474.
The petitioners complaint is not that the .25 mile area
was incorrect,11 but that FERC failed to take full account of all
the environmental impacts across the entire span of pipelines
other than the project under review — impacts far afield from
the geographic area impacted by the Project — merely because
those pipelines will ultimately be part of the same network as
that served by the Project. To echo the Court of Appeals for
the District of Columbia Circuit, such an expansive reading of
11
Rightly so, given that the “determination of the size
and location of the relevant geographic area ‘requires a high
level of technical expertise,’ and thus ‘is a task assigned to the
special competency of’ the Commission.” Sierra Club, 827
F.3d at 49 (quoting Kleppe, 427 U.S. at 412).
30
the cumulative impacts requirement “draws the NEPA circle
too wide for the Commission,” which need only review
impacts likely to occur in the area affected by the project under
FERC review. Sierra Club, 827 F.3d at 50. In this case,
notwithstanding its determination — uncontested on appeal —
that the area impacted by the Project was of an exceptionally
small size, FERC considered the cumulative impact of the
totality of the SRL (and PennEast) pipeline and determined that
their cumulative impact was insignificant. In light of the
gratuitousness of FERC’s extended cumulative impacts
review, the petitioners’ complaint — which concedes the
sufficiency of FERC’s analysis as it relates to wetlands — that
FERC gave short-shrift to its consideration of the SRL’s
impact on vegetation, wildlife, and aquatic species fails to
persuade us.
The core of the petitioners’ argument, that the SRL “as
a major linear project” that will span “approximately 30 miles
in length” will result in “considerable” environmental impacts
along its path, Pet. Br. 20, itself defeats their claim that FERC
had to consider all those various and oblique impacts when
determining whether the SRL would cumulatively impact “the
same area” as the project before it — involving no new pipeline
construction and disturbing only the immediately surrounding
area. Accordingly, FERC did not act arbitrarily or capriciously
when it “acknowledge[d] that these resources may be affected”
by the SRL but properly determined that “a detailed analysis”
of the impacts along the entirety of the SRL was “not within
the scope of our environmental analysis” for the jurisdictional
Project under review. App. 53. By detailing and recognizing
even environmental impacts outside of the zone impacted by
the jurisdictional Project, FERC gave the petitioners’ concerns
the “serious consideration and reasonable responses” that
31
NEPA requires. Tinicum Twp. v. U.S. Dep’t of Transp., 685
F.3d 288, 298 (3d Cir. 2012). NEPA does not mandate
exhaustive treatment of effects not plausibly felt in the
Project’s impact area.
But even taken head-on, the petitioners’ argument is
unavailing. Contrary to the petitioners’ claim, FERC did
consider the SRL’s impact on vegetation and wildlife, and
given the Project’s “minor . . . impacts” determined that the
cumulative impacts would be insignificant. App. 1469. FERC
explicitly acknowledged that the SRL may affect the Pinelands
National Reserve and concluded reasonably that any impacts
would be mitigated by the responsible state agency overseeing
the permitting process for that project. App. 53. FERC was
correct to rely upon New Jersey authorities to do so, as opposed
— as the petitioners would have it — to assuming the worst
and piggybacking that hypothetical impact onto the otherwise
compliant jurisdictional Project.12 See, e.g., EarthReports, Inc.
12
The determination of whether a cumulative impacts
analysis is required in the first place depends on a consideration
of “the likelihood that a given project will be constructed”;
“[t]he more certain it is that a given project will be completed,
the more reasonable it is to require a[n] . . . applicant to
consider the cumulative impact of that project.” Soc’y Hill
Towers Owners’ Ass’n v. Rendell, 210 F.3d 168, 182 (3d Cir.
2000); see also id. at 181 (“[T]he concept of ‘cumulative
impact’ was not intended to expand an inquiry into the realm
of the fanciful.”). Here, the petitioners try to have it both ways.
In arguing that FERC improperly determined that there was a
public need for the Project, the petitioners accuse FERC of
accepting Transco’s “speculative” assertion of need given that
32
v. FERC, 828 F.3d 949, 959 (D.C. Cir. 2016) (concluding that
FERC reasonably relied upon the regulated parties’ “future
coordination with” other regulators in its NEPA assessment);
Ohio Valley, 556 F.3d at 207–08 (upholding finding of no
cumulative impact that was based partly on projected
mitigation efforts because the mitigation was a condition of
other permitting regimes to which the project was subject and
thus was not speculative or conclusory); Friends of
Ompompanoosuc v. FERC, 968 F.2d 1549, 1555 (2d Cir.
1992) (concluding that regulated parties’ responsibility to work
with local authorities on mitigation proposal constituted a
“rational basis” for FERC finding of no significant
impact). Again, NEPA requires no more than the fair
“there is a very real possibility that . . . the SRL will [not] go
forward.” Pet. Br. 22. Nevertheless, the petitioners
simultaneously demand that FERC consider the worst-case
scenario of environmental impacts from the SRL as part of its
approval of the Project, without accounting for the state-
mandated mitigation that would necessarily attach to any
approved plan. But obviously, if the SRL’s construction is at
this point so speculative that it cannot be the basis of Transco’s
proof of public need, then FERC need not consider the
hypothetical cumulative impacts of that speculative project.
Especially where, as here, we have concluded that FERC was
correct to segment the Project and the SRL, our precedent
demands that it be “sufficiently certain that [the] other projects
will be constructed” before an agency is required to include a
cumulative impact analysis in its EA. Id. at 182. The
petitioners’ explicit contention that this certainty is lacking is
itself a reason to reject their complaints about the sufficiency
of FERC’s cumulative impacts analysis.
33
consideration and reasonable responses that FERC provided to
the petitioners’ concerns.
Furthermore, had FERC failed to give the specific
attention that it did to the various types of impacts that the SRL
might potentially cause, we would still approve their
cumulative impact conclusions. Aside from their challenge to
FERC’s determination of the Project’s well impacts (discussed
below), the petitioners do not contend that FERC improperly
concluded that, taken alone, the Project would not
“significantly affect[] the quality of the human
environment.” App. 64; see also App. 1424 (concluding in the
EA that “the impacts associated with th[e] Project can be
sufficiently mitigated to support a finding of no significant
impact”). And — again, besides the wells challenge —
nothing in the petitioners’ briefing suggests that FERC’s
detailed consideration of the Project’s impacts to the area’s
geology; water resources; vegetation; wildlife; endangered
species; cultural resources; land use, recreation, and visual
resources; or air quality and noise was erroneous or
wanting. FERC thus reasonably concluded in the EA that the
Project’s “minimal impacts” in its service area — relegated
largely to “geological and soil resources” impacts and other
temporary impacts — meant that the Project necessarily
“would not result in cumulative impacts.” App. 1465, 1469.
We conclude that FERC did not abuse its discretion in reaching
this decision. This is especially true considering that the
impacts from the SRL that the petitioners allege FERC ignored
are different than the limited kind of impacts that FERC
concluded were likely to result from the Project and so are less
likely to result in cumulatively significant impacts when
34
considered together.13 See Council of Envtl. Quality,
Considering Cumulative Effects Under the National
Environmental Policy Act 8 (Jan. 1997) (“Cumulative effects
need to be analyzed in terms of the specific resource . . . being
affected.”). Given that the petitioners failed to show anything
more than minimal impacts from the Project itself, they have
failed to show that FERC acted arbitrarily or capriciously in
determining that the Project would likewise not contribute to
significant cumulative impacts, even taking into account the
potential different impacts of the SRL on other areas within the
Project’s region. This conclusion is reinforced by the
petitioners’ own insistence that the SRL’s construction is being
held up by legal challenges, Pet. Br. 22–24, such that whatever
impacts it causes will be temporally distinct from the Project’s
short-term impacts. See, e.g., Friends of Santa Clara River v.
U.S. Army Corps of Eng’rs, 887 F.3d 906, 926 (9th Cir. 2018)
(concluding that where an EIS reasonably finds that a project
is unlikely to have an impact on a given population, that it is
“also not arbitrary or capricious to conclude that the Project
would not result in significant cumulative . . . impacts” to that
13
For instance, the petitioners argue that FERC failed
to consider the “cumulative impacts on . . . aquatic species”
associated with the construction of the Project and the
SRL. Pet. Br. 21. But the EA is clear that the Project “would
not impact any waterways.” App. 1445; see also App. 58
(reiterating that restrictions aimed at protecting certain fish
species were inapplicable because “no surface waters will be
affected by project activities”). Obviously, to the extent that
the Project is expected to have no impact on aquatic species, it
cannot incrementally impact whatever aquatic species are
impacted by the SRL.
35
population); Minisink Residents for Envtl. Pres. & Safety v.
FERC, 762 F.3d 97, 113 (D.C. Cir. 2014) (upholding
cumulative impact analysis finding “no significant cumulative
impacts were expected” where the project under consideration
“itself was expected to have minimal impacts” and — as is the
case here — the two projects had distinct construction
timelines). By addressing and expressly considering the
specific concerns raised by the petitioners, FERC “fulfilled
NEPA’s goal of guiding informed decisionmaking” and
ensured that FERC at least considered the wisdom of the
agency action. Sierra Club, 867 F.3d at 1370–71; Sierra Club
v. U.S. Dep’t of Energy, 867 F.3d 189, 196 (D.C. Cir. 2017)
(“Our job is simply ‘to ensure that the agency has adequately
considered and disclosed the environmental impact of its
actions and that its decision is not arbitrary or capricious.’”
(quoting DRN I, 753 F.3d at 1312–13)).
The petitioners nevertheless argue that this low-impact
project should be halted as a result of the possibly significant
— but mostly different-in-kind — impacts of the nearby but
later-in-time SRL. But this cannot be how the cumulative
analysis inquiry operates. To hold otherwise would permit a
jurisdictional project with little environmental impact to be
torpedoed based only on a nearby non-jurisdictional project’s
significant impact, which FERC has no authority to control or
mitigate. Such a rule would effectively condition the approval
of pipelines operating under federal jurisdiction on the
fastidiousness of pipeline companies operating in the same
region under state authorities. Pipelines subject to lax state
authorities or state environmental requirements that fall short
of federal standards could, by mere proximity to a
jurisdictional project, trump federal regulation and undermine
FERC’s careful balancing of environmental protection and
36
public energy needs. Less pernicious, if a proposed state-
governed project has potentially significant impacts but has not
yet gone through the state’s regulatory process (which could
be expected to mitigate those impacts), such a project would
essentially stay all federally regulated projects proposed in the
area until the state agency either rejects the plan or approves a
mitigation proposal. Congress surely did not intend for
FERC’s exclusive authority to control interstate pipeline
construction to be so easily usurped by state
regulators. Rather, the cumulative impacts analysis was meant
to address instances where the jurisdictional project itself has
minor environmental impacts that nevertheless fall short of
stopping the project, but where — if added to the minor
impacts from nearby non-jurisdictional projects — the
cumulative impact of all the projects would be significant. See
40 C.F.R. § 1508.7 (“Cumulative impacts can result from
individually minor but collectively significant actions taking
place over a period of time.”); cf. id. § 1508.27 (setting out
considerations for whether a project is “significant,” including
whether it “is related to other actions with individually
insignificant but cumulatively significant impacts” (emphasis
added)). The analysis was not intended to combine the effects
of a nearly no-impact project with those of a project with
potentially serious impacts and then to bar them both.
The relevant question — as FERC correctly understood
— is rather whether, taking the non-jurisdictional impacts as a
given, the addition of the jurisdictional project’s impacts on top
of the other projects’ existing or anticipated impacts renders
significant those projects’ otherwise insignificant impacts. See
40 C.F.R. § 1508.7 (“Cumulative impact is the impact on the
environment which results from the incremental impact of the
action when added to other past, present, and reasonably
37
foreseeable actions . . . .” (emphasis added)); Cascadia
Wildlands v. Bureau of Indian Affairs, 801 F.3d 1105, 1112
(9th Cir. 2015) (“An agency can take a ‘hard look’ at
cumulative impacts . . . by . . . incorporating the expected
impact of [a forthcoming] project into the environmental
baseline against which the incremental impact of a proposed
project is measured.”); see also App. 1471 (“Only a small
portion of forested land use would be impacted by the
operation of the [Project]. These impacts would not contribute
significantly to the cumulative impacts of the other projects in
the region. Since the . . . [SRL] include[s] a linear pipeline, [it]
would result in greater temporary and permanent impacts in
acreage and affect a variety of land uses.”). In other words, the
analysis looks at the marginal impact of the jurisdictional
project when added to the non-jurisdictional projects’ impacts,
and asks whether the addition of the project under review
affects a meaningful increase in the projected environmental
impacts. See, e.g., Klamath-Siskiyou Wildlands Ctr. v. Bureau
of Land Mgmt., 387 F.3d 989, 994 (9th Cir. 2004); Landmark
West! v. U.S. Postal Serv., 840 F. Supp. 994, 1011 (S.D.N.Y.
1993), aff’d, 41 F.3d 1500 (2d Cir. 1994) (explaining that the
cumulative impacts analysis requires “the consideration of the
foreseeable actions of others as background factors, but does
not require that the impacts of others’ actions be weighed in
assessing the significance of [the] action[ under review].
Rather, the [agency] need weigh only the marginal impacts of
its own actions.”). Where the other projects’ impacts are
themselves already significant or greatly outweigh the
jurisdictional projects’ impacts, such that the jurisdictional
project will not meaningfully influence the extent of the
already significant environmental impacts, the cumulative
impacts test is inapposite. Were this not so, a single proposed
project with a significant projected impact would preempt any
38
other development — even no-impact or impact-reducing
projects — regardless of whether the proposed project
ultimately will come to fruition or have those expected
impacts. Plainly, such an application of the cumulative
impacts analysis is unreasonable and unwarranted, and we
reject it. We conclude that FERC adequately addressed the
Project’s cumulative impacts.
3. Potable Well Impacts
The petitioners’ final NEPA-based claim regards
FERC’s conclusion that the Project’s construction would not
significantly impact the water quality of wells or cisterns in the
service area. In its EA, FERC determined that “[m]inor,
temporary impacts on groundwater infiltration could occur as
a result of tree, herbaceous vegetation, or scrub-shrub
vegetation clearing” around Station 203 during its
construction, but that Transco would thereafter “restore and
revegetate cleared areas to pre-construction conditions to the
maximum extent practicable.” App. 17–18. The EA continued
that, in the event that groundwater is “encountered during
construction,” Transco would adhere to a series of mitigation
measures, which would ensure that “impacts on groundwater
would be adequately minimized.” App. 18. Although reaching
this general conclusion about the risk of groundwater impacts
as a result of the Project, FERC made no specific finding about
the impacts to any particular wells or cisterns “within 150 feet
and up to one mile” from the Project, because at the time of the
EA, neither FERC nor Transco had identified any such
resources. App. 17. Accordingly, the particular finding that
FERC did not “anticipate any significant impacts on cisterns,
wells, or septic systems in the Project areas” was based most
39
directly on FERC’s understanding that those resources simply
did not exist.
Transco and several commenters subsequently notified
FERC that there were numerous private wells in the project
area. Nevertheless, based on additional assurances from
Transco that it would remedy any damage or disruption to the
water supply — and without revising the EA or identifying the
specific number of potentially impacted wells — FERC issued
Transco the certificate, subject to additional monitoring and
mitigation conditions. These included the requirement that
Transco identify and file the locations of all private wells in the
Station 203 project area prior to beginning construction;
conduct “pre- and post-construction monitoring of well yield
and water quality”; and report to FERC any complaints it
receives from well owners and how the complaints were
resolved. App. 56. Some of the petitioners challenged the
propriety of the certificate, arguing that the underlying
assessment of the impact on wells was necessarily insufficient
given that it was made without regard to the number of
impacted wells. In denying the motion for rehearing, FERC
rejected this claim, asserting that the certificate’s requirements
that Transco identify and monitor the wells, and Transco’s
promise to “minimize and remediate impacts” and “to repair,
replace, or provide alternative sources of potable water” in the
event of more permanent impacts, “appropriately identify and
mitigate any potential impacts to groundwater
resources.” App. 87.
On appeal, the petitioners in large part renew the
challenge levied before FERC. They add that even if FERC
were not absolutely required to identify the number of affected
wells, its proposed mitigation plan is inadequate because: (1)
40
it cannot effectively be enforced, and (2) because without
knowing how many wells are potentially impacted, it is
impossible to determine whether the proposed mitigation plan
will suffice. The petitioners contend that FERC’s “no
significant impacts” conclusion was therefore arbitrary and
capricious because it was not based on sufficient evidence.
Because we conclude that FERC sufficiently established the
efficacy of the proposed mitigation plan, we will not disturb its
conclusion that the Project’s groundwater impacts — if any —
will not be significant.
When an agency’s “proposed mitigation measures [are]
supported by substantial evidence, the agency may use those
measures as a mechanism to reduce environmental impacts
below the level of significance.” Nat’l Audubon Soc. v.
Hoffman, 132 F.3d 7, 17 (2d Cir. 1997). Mitigation measures
will be deemed “sufficiently supported” where “they are likely
to be adequately policed,” such as where the mitigation
measures are included as mandatory conditions in a
permit. Id.; Bering Strait Citizens for Responsible Res. Dev.
v. U.S. Army Corps of Eng’rs, 524 F.3d 938, 955–56 (9th Cir.
2008) (explaining that an “‘agency is not required to develop a
complete mitigation plan detailing the precise nature . . . of the
mitigation measures[,]’ so long as the measures are ‘developed
to a reasonable degree.’” (quoting Nat’l Parks & Conservation
Ass’n v. Babbitt, 241 F.3d 722, 734 (9th Cir. 2001))).
Nor must the proposed mitigation be included in the
original EA in order to pass muster under NEPA. If FERC in
its certificate order addresses the commenters’ concerns about
the adequacy of the EA’s analysis and clearly articulates its
mitigation plan therein, it takes “the requisite ‘hard look’ at the
impact of the . . . Project on the environment.” DRN II, 857
41
F.3d at 401 (quoting NRDC v. Hodel, 865 F.2d 288, 294 (D.C.
Cir. 1988)). This is because NEPA’s “purpose is not to
generate paperwork — even excellent paperwork — but to
foster excellent action” and to “[e]nsure that environmental
information is available to public officials and citizens before
decisions are made and before actions are taken.” 40 C.F.R. §
1500.1; Kleppe, 427 U.S. at 409 (“By requiring an impact
statement Congress intended to assure [consideration of the
environmental impact] during the development of a proposal .
. . .”). The command to conduct an EA is not an end in itself,
but a means to achieve informed decision-making, and
reviewing courts should not elevate the form of the analysis
over its substance by requiring that the totality of the relevant
information be included in the EA in the first instance. “The
role of the courts is simply to ensure that the agency has
adequately considered and disclosed the environmental impact
of its actions and that its decision is not arbitrary or capricious,”
Balt. Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97–98 (1983),
not to police precisely how — or in what form — the agency
engages in the requisite analysis. See, e.g., DRN II, 857 F.3d
at 396 (explaining that courts should not “flyspeck” FERC’s
NEPA analysis and should defer to its expertise “so ‘long as
the agency’s decision is fully informed and well-considered’”
(quotation marks omitted) (first quoting Myersville Citizens
for a Rural Cmty., Inc. v. FERC, 783 F.3d 1301, 1323 (D.C.
Cir. 2015), then quoting Hodel, 865 F.2d at 294)). Where the
EA fails to address fully a specific issue but the record makes
clear that the agency and public were apprised of the deficiency
and that the agency sufficiently considered the matter before
making a final decision or permitting actions to be taken, it has
fulfilled NEPA’s procedural mandate.
42
FERC determined in the EA that groundwater effects
were expected to be temporary, limited, and controlled by
Transco’s adoption of prophylactic measures to limit sediment
discharge. After it learned of the wells’ existence, FERC
imposed supplementary measures to mitigate and remedy any
damage to private wells in the project area, along with a
reporting framework to ensure Transco’s compliance. We
conclude therefore that the record establishes that FERC
adequately considered the potential impact to the wells,
responded appropriately to the concern, and reasonably
concluded that in light of its intervention, any impact would be
insignificant. Given that FERC in the EA had already reached
a reasoned conclusion regarding the intensity of the expected
effects of the construction — which it deemed to be minor and
transient — its failure to detail fully the number of wells
potentially impacted by this limited impact is insufficient to
render its findings arbitrary and capricious. The petitioners do
not contend that FERC underestimated how the construction
would impact a well in the project area, but only that it has not
confirmed how many wells this uncontested calibration would
disturb. FERC could reasonably conclude that a consequence
whose intensity was unlikely to significantly impact any one
resource was likewise unlikely to significantly impact
additional — but distinct — instances of that same resource.14
This case is therefore unlike the Babbitt case cited by
the petitioners, in which the Court of Appeals for the Ninth
Circuit rejected the agency’s EA that made a no significant
14
Nor have the petitioners advanced any reason to
believe that minor passing impacts to several individually
owned wells would have cumulatively significant impacts.
43
impact finding without articulating the expected intensity or
expected consequences of the projected environmental
effects. See 241 F.3d at 732. The Babbitt case involved the
impact of growing cruise ship traffic in the Glacier Bay. The
agency recognized that expanded traffic would increase the
level of underwater disturbance, the risk of collision with sea
life, and the risk of oil spills, and acknowledged that the
intensity and effects of such increases on the sea life were
“unknown.” Id. at 729. Nevertheless, the agency asserted that,
with the proposed mitigation, the action would have no
significant effect on the environment. Id. In rejecting the
sufficiency of the agency’s analysis, the court explained that
the EA’s uncertainty over the intensity of the projected
environmental effects necessitated the preparation of the more
comprehensive environmental impact statement. Id. at 731–
32. Given the agency’s failure to quantify the likely intensity
or effect of the action, and the agency’s failure to impose
mandatory mitigation conditions as part of the EA, the court
likewise rejected the agency’s assertion that its mitigation plan
could adequately control these unknown effects. Id. at 734–
36.
The issue in Babbitt was not that the agency did not
know, for instance, how many sea lions would be impacted by
the traffic increase, but rather that it did not know the intensity
of impact in the first place. We recognize that in certain
circumstances — such as where the intensity of the impact is
expected to be moderate or significant — the failure to identify
the number of species or resources impacted could render the
EA insufficient because the magnitude of gross harm would be
too uncertain. That is not the case here, however, where FERC
identified the intensity of the impacts and concluded that they
would be minor and temporary. Even without knowing the
44
precise number of wells potentially impacted, FERC could
reasonably conclude that the total environmental impact of
such low-intensity and fleeting effects would be insignificant,
especially when accounting for the mandatory mitigation and
remedial conditions imposed upon Transco in the certificate,
which FERC has assured the Court that it will enforce.15 See
15
The petitioners assert that the mitigation measures are
insufficient because Transco is not required to affirmatively
report impacted wells and FERC cannot adequately impose
remedial measures if Transco fails to comply. FERC reiterated
in its order denying rehearing, however, that if Transco’s post-
construction testing showed decreased well yield or water
quality, FERC has authority to require Transco to mitigate the
impact. App. 88. FERC’s clarification implies Transco’s
responsibility to inform FERC of any changes. Moreover,
landowners can be expected to complain to Transco if there is
a noticeable change in their well’s yield or water quality,
complaints which Transco is expressly required to pass on to
FERC. If the impacts on the wells are so negligible that the
landowner does not even notice them, then such impacts are —
as FERC predicts will be the case — insignificant and do not
require mitigation. Finally, the petitioners in their Reply brief
do not challenge FERC’s authority to enforce any required
remediation, which we conclude is amply supported by the
applicable federal legislation. See 15 U.S.C. § 717o (granting
FERC the “power to perform any and all acts, and to prescribe,
issue, make, amend, and rescind such orders, rules, and
regulations as it may find necessary or appropriate to carry out
the provisions” of the NGA); id. § 717f (“The Commission
shall have the power to attach to the issuance of the certificate
and to the exercise of the rights granted thereunder such
45
id. at 735 (recognizing that even where mitigation procedures
are not fully developed, “the imposition of special conditions,
enforced through a permit,” and adequately supervised could
“ensure[] that the measures would be enforced in a manner that
properly reduced negative environmental impact”). We
therefore reject the petitioners’ claim that FERC’s treatment of
the well impacts ran afoul of NEPA.
C. Need for the Project
FERC must determine that the proposed project “is or
will be required by the present or future public convenience
and necessity,” 15 U.S.C. § 717f(e), prior to granting a
certificate of public convenience and necessity under the NGA.
This inquiry involves two steps. First, FERC asks whether “the
project will ‘stand on its own financially’ because it meets a
‘market need.’” Sierra Club, 867 F.3d at 1379 (quoting
Myersville, 783 F.3d at 1309). The point of this step is “to
ensure that a project will not [need to] be subsidized by existing
customers.” Myersville, 783 F.3d at 1309. This element can
accordingly be established by the existence of contracts
subscribing to the capacity of the project. Id. Second — if
market need is shown — FERC will then “balance the benefits
and harms of the project, and will grant the certificate if the
former outweigh the latter.” Sierra Club, 867 F.3d at
reasonable terms and conditions as the public convenience and
necessity may require.”); id. § 717t-1 (granting FERC the
power to impose civil fines of up to $1 million per day for the
violation of “any rule, regulation, restriction, condition, or
order made or imposed by the Commission under authority of
this chapter”).
46
1379. Whether to grant a certificate is “peculiarly within the
discretion of the Commission,” Myersville, 783 F.3d at 1308
(quoting Okla. Nat. Gas Co. v. Fed. Power Comm’n, 257 F.2d
634, 639 (D.C. Cir. 1958)), and a reviewing court’s task is
limited to ensuring that “the decision was based on a
consideration of the relevant factors” and not a result of “a
clear error of judgment.” Id. (quoting ExxonMobil Gas Mktg.
Co. v. FERC, 297 F.3d 1071, 1083 (D.C. Cir. 2002)). FERC’s
findings of fact — such as a finding of need — are conclusive
if supported by substantial evidence. 15 U.S.C. § 717r(b).
Applying the above criteria in this case, FERC found “a
strong showing of public benefit” based upon NJNG’s
“binding precedent agreement” to purchase 100 percent of the
Project’s capacity that outweighed the Project’s “minimal
adverse impacts,” and so granted the certificate. App. 42. The
petitioners challenge this finding as arbitrary and capricious
because FERC “considered only Transco’s asserted need for
the Project, ignoring other factual developments” that the
petitioners assert “demonstrated that the need was
speculative.” Pet. Br. 22. Specifically, the petitioners argue
that regulatory and legal challenges to both the SRL and
PennEast created a “very real possibility that neither” project
would be built, which in the petitioners’ view would “obviat[e]
the need for the Project.” Id. FERC rejected this argument in
denying the petitioners’ motion for rehearing, noting that
NJNG’s contract was itself sufficient to establish need and that
the Project was not reliant on the existence of either the
PennEast or SRL. Again, we agree.
The petitioners’ argument that the need for the Project
is speculative misapprehends the purpose of the analysis, the
focus of which is on the objective existence of a market need,
47
not the precise mechanics of fulfilling that need. See, e.g.,
Sierra Club, 867 F.3d at 1379. A contract for a pipeline’s
capacity is a useful indicator of need because it reflects a
“business decision” that such a need exists. See App. 76. If
there were no objective market demand for the additional gas,
no rational company would spend money to secure the excess
capacity. Cf., e.g., Zoslaw v. MCA Distrib. Corp., 693 F.2d
870, 884 (9th Cir. 1982) (noting that, in the ordinary course, a
company’s “legitimate business decisions” will not be against
their self-interest). In this case, FERC reasonably relied on
NJNG’s binding contract to utilize all of the Project’s capacity
— a contract that was not contingent on the completion of
either the SRL or PennEast16 — as evidence of the market need
and proof that the Project will be self-supporting. As
numerous courts have reiterated, FERC need not “look[]
beyond the market need reflected by the applicant’s existing
contracts with shippers.” Myersville, 783 F.3d at 1311
(quoting Minisink, 762 F.3d at 111 n.10).
Even were this not the case, the petitioners’ view of the
need is myopic. The need is not, as they contend, to provide
16
The petitioners concede that “the precedent
agreements may be binding on NJNG” even if the SRL is not
built, but curiously insist that this “does not mean the NJNG
will remain obligated to continue with the precedent agreement
if the SRL is not completed.” Reply Br. 5 n.1. We discern no
meaning to the word “binding” other than “having legal force
to impose an obligation,” Black’s Law Dictionary (10th ed.
2014), and so fail to understand the petitioners’ hypothetical in
which a party to a binding agreement is nonetheless free to
shirk its enforceable obligations thereunder.
48
capacity for gas to reach the SRL; this is the means of fulfilling
the need, not the need itself. Rather, the “need” is for the
provision of “enhanced reliability and resiliency to NJNG’s
service territory in Monmouth and Ocean Counties,” App. 790,
which is why NJNG is building the SRL and why it is seeking
additional capacity from Transco. This need exists
objectively, and independently of the SRL. If for whatever
reason NJNG cannot build the SRL as it is proposed, this need
for “enhanced reliability and resiliency” will endure, and the
Project will still be necessary to meet that need by providing
additional capacity for the southward supply of natural
gas. Nor, as we explained above, is the Project reliant on
PennEast’s completion. Thus, FERC correctly determined
based on substantial evidence that even if the SRL or PennEast
were not built, the Project would still serve the public need.
Because the petitioners do not challenge FERC’s balancing at
step two of the analysis — regarding which FERC is afforded
“broad discretion,” Minisink, 762 F.3d at 111 — we conclude
that FERC properly granted the certificate to Transco.
D. Good Faith Notice
The petitioners’ next challenge — that, contrary to the
requirements of 18 C.F.R. § 157.6(d)(1), Transco failed to
provide petitioner Bordentown with notice of Transco’s
application — likewise fails. Section 157.6(d)(1) required
Transco to “make a good faith effort to notify all affected
landowners and towns” of its application, within three days of
FERC’s March 13, 2015 filing of the Notice of Application
regarding the Project. We discern no basis in the record to
disturb FERC’s conclusion that Transco did so.
49
Most fundamentally, the petitioners’ claim is
unsupported by any relevant citation to the record, and is belied
by FERC’s explicit finding in its order granting the certificate
that Transco complied with the “intent of the landowner
notification requirements.” App. 44. This finding, like all
FERC fact-finding, is conclusive where supported by
substantial evidence. FERC’s determination is supported by
Transco’s submission, filed March 24, 2015, that it had
“mailed notices to all affected landowners” and re-mailed to
new addresses the notices that were returned undelivered,
FERC Docket CP15-89, Submittal 20150324-5228 (Mar. 24,
2015), and FERC’s own investigation confirming the
submission’s accuracy, App. 44, 96. By contrast, the
petitioners’ claim that Bordentown was not given notice is only
a representation in their appellate brief, which does not
constitute record evidence, see United States v. Genser, 582
F.2d 292, 311 (3d Cir. 1978), and is in fact contradicted by the
record, see, e.g., App. 1735–38 (letters dated September and
October 2015 in which Transco’s counsel discusses the Project
with Bordentown’s counsel, and which noted discussions from
as early as August 2015). We therefore defer to FERC’s fact-
finding and conclude that Transco satisfied their good faith
notice requirements.17
17
To the extent that the petitioners claim that the alleged
failure to provide notice implicated their constitutional rights
to Due Process and thus must be subjected to more exacting
review, we note that the petitioners at the very least received
constitutionally sufficient notice of Transco’s project, as
evidenced by their participation in the notice and comment
period following the EA and their petitioning for
rehearing. See All. Pipeline L.P. v. 4.360 Acres of Land, More
50
In addition, FERC has long maintained that notice
published in the Federal Register satisfies the Commission’s
notice requirements. See App. 97. Given the deference owed
to an agency’s interpretation of its own regulations, see, e.g.,
Columbia Gas Transmission, LLC v. 1.01 Acres, More or Less,
768 F.3d 300, 313 (3d Cir. 2014); Marseilles Land & Water
Co. v. FERC, 345 F.3d 916, 920 (D.C. Cir. 2003) (explaining
that “agencies are entitled to great deference in the
interpretation of their own rules” unless the interpretation is
“plainly erroneous” (quoting Bowles v. Seminole Rock & Sand
Co., 325 U.S. 410, 414 (1945))), FERC’s view that its statutory
notice requirement was satisfied by the notice of the
application published in the Federal Register is conclusive of
this claim.
or Less, 746 F.3d 362, 366 (8th Cir. 2014) (concluding that
landowners “received notice ‘reasonably calculated . . . to
apprise’ them of [the company’s] FERC application” where, in
the months between the company’s application and FERC’s
order granting the certificate, the company negotiated with the
landowners to seek an easement and filed a lawsuit for
permission to survey the property in relation to the project
(quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S.
306, 314 (1950))); Moreau v. FERC, 982 F.2d 556, 569 (D.C.
Cir. 1993) (holding, in a case where parties had actual notice
before FERC granted the certificate, that the “Due Process
Clause does not require notice where those claiming an
entitlement to notice already knew the matters of which they
might be notified”).
51
E. Green Acres Act
The petitioners’ penultimate claim is that FERC erred
by granting Transco the certificate because it will permit
Transco to construct the Project on property subject to
regulation under New Jersey’s Green Acres Act,18 without first
seeking state-level approval to divert the property to non–
Green Acres uses. This argument is facile because the
petitioners entirely fail to articulate what portion of its
governing law was violated when FERC neglected to seek New
Jersey state approval before granting the certificate of public
necessity, the authority over which Congress exclusively
vested in FERC.
Although the parties primarily dispute whether the
Green Acres Act is preempted or whether FERC addressed
sufficiently the Act’s substantive concerns before granting the
certificate, we need not even get that far. Nothing in the NGA,
NEPA, or its implementing regulations require FERC to do
anything more than at most consider the proposed land-use and
18
The Green Acres Land Acquisition and Recreation
Opportunities Act of 1975 (“Green Acres Act”) was “designed
to provide State funding to assist municipalities with the
acquisition and development of property for conservation and
recreation” and “required State-level approval of the sale . . .
of all conservation or recreational properties” either purchased
with, or owned at the time of, the municipality’s receipt of the
funding. Cedar Cove, Inc. v. Stanzione, 584 A.2d 784, 785
(N.J. 1991).
52
its alternatives.19 There is certainly no requirement that prior
to issuing a certificate, FERC pass through the procedural
hoops that the state places upon the alienation of land subject
to its authority. The petitioners’ demand that FERC should
have proceeded with “caution” in light of New Jersey’s
exacting regulatory scheme, Reply 16, while laudable, finds no
support in the text of FERC’s regulations. Given that FERC
did not have to receive New Jersey’s approval prior to its
issuance of the certificate, we cannot conclude that it erred by
failing to do so with regard to the Green Acres Act.20
19
Although FERC must consider the environmental
impacts of the pipeline’s siting and to the extent feasible to
respect state conservation designations, see, e.g., 18 C.F.R. §
380.15, as a purely process-oriented statute NEPA cannot and
does not require FERC to undertake any substantive acts, such
as specifically complying with a state’s land-use
regulations. And the petitioners have not argued on appeal that
FERC’s consideration of the Green Acres property violated
NEPA’s procedures.
20
In any event, we note that FERC’s granting of the
certificate (thereby accepting that the pipeline would pass
through land subject to the Green Acres Act) was not
irreconcilable with Transco thereafter going through the
process mandated by the Act, which Transco has indeed agreed
to do. To the extent that Transco would have had to utilize the
right to seek eminent domain that is conveyed by the receipt of
the certificate, it would only be because Bordentown — the
landowner actually subject to the Green Acres Act — refused
to agree to seek a diversion under the Act or because New
Jersey refused to permit a diversion. The petitioners’ argument
suggests to the contrary that the granting of the certificate
53
If anything, the NGA itself suggests that FERC need not
concern itself with the legal technicalities concerning — or the
ownership status of — land upon which FERC determines that
the placement of a pipeline would be in the public interest. The
NGA, 15 U.S.C. § 717f (h), affords certificate holders the right
to condemn such property, and contains no condition precedent
other than that a certificate is issued and that the certificate
holder is unable to “acquire [the right of way] by
contract.” Two salient points emerge. First, this section places
sole responsibility on the certificate holder — not FERC — to
secure the legal right to utilize the land at issue. Second, there
is no requirement that the certificate holder first attempt to
acquire the property via the state’s preferred process: if the
holder cannot reach an arm’s-length agreement with the
property owner, then the holder may proceed under §
717f(h).21 To the extent, then, that any preemption is squarely
immediately condemns the property, notwithstanding state
law. This is plainly incorrect, as the certificate merely signals
FERC’s approval of the Project’s siting, based on the
assumption that Transco will either receive the landowner’s
permission to use the property or else exercise its statutory
right to condemn the property. Because FERC could issue the
certificate and Transco could still (and, in fact, did) thereafter
proceed via the Green Acres Act, it is unclear what additional
“caution” the petitioners expect FERC to afford to the Green
Acres Act scheme or, indeed, how much caution would in their
view suffice. Reply 16.
21
Although the statute directs the United States District
Court overseeing the condemnation proceeding to “conform as
nearly as may be with the practice and procedure in similar
54
at issue here, the NGA already speaks pellucidly about the
hierarchy of land rights, and it is entirely silent about any
requirement that the state’s existing regulations concerning the
land be substantively complied with or respected. Cf.
Dominion Transmission, Inc. v. Summers, 723 F.3d 238, 243–
45 (D.C. Cir. 2013) (recognizing that the NGA preempts state
zoning and land use requirements, save for those enacted under
the Clean Air Act, CWA, or Coastal Zone Management Act
(citing 15 U.S.C. § 717b(d))).
Finally, we would be remiss not to point out that
although the petitioners levy their challenge against FERC’s
issuance of the certificate, the real target of their claim is
actually the Township of Bordentown’s interpretation
thereof. FERC, in issuing the certificate, did not specifically
opine that any particular provision of the Green Acres Act is
preempted. See App. 63 (explaining generally in the certificate
order that state requirements that “prohibit or unnecessarily
delay Transco from meeting its obligations under this Order”
are “preempted by the certificate”). To the extent that
Bordentown feels compelled to ignore the Green Acres Act as
a result of FERC granting the certificate, then it is their
(allegedly overbroad) reading of FERC’s authority that is to
blame. If, conversely, Bordentown concludes that the granting
of the certificate does not override the applicability of the
Green Acres Act, then “no harm, no foul,” as FERC would not
action or proceeding in the courts of the State where the
property is situated,” this requires district courts to attempt to
mirror the state courts’ condemnation proceedings, not to adopt
the state’s administrative scheme concerning the alienation of
the land at issue. 15 U.S.C. § 717f(h).
55
— in the petitioners’ telling — have exceeded its authority by
granting the certificate notwithstanding its failure to consider
the Green Acres Act. Put simply, “[u]nder either
interpretation, the certificate order has only whatever
preemptive force it can lawfully exert, and no more.”
Myersville, 783 F.3d 1321. Because FERC, when issuing the
certificate, did not “purport to compel” Bordentown to
undertake an act inconsistent with the NGA, and because “no
provision of the [NGA] identified by [the p]etitioners barred
[FERC] from issuing a conditional . . . certificate under these
circumstances,” the petitioners’ Green Acres Act challenge
fails. Id.F. Cumulative Error
The petitioners finally ask that we grant the petition
based on the cumulative effect of FERC’s various alleged
errors. Under the cumulative error doctrine — which we have
to date applied only in the context of criminal trials — a court
“may determine that, although certain errors do not require
relief when considered individually, the cumulative impact of
such errors may warrant a new trial.” SEC v. Infinity Grp., 212
F.3d 180, 196 (3d Cir. 2000). We need not decide whether the
cumulative error doctrine applies in this type of case, because
even assuming its applicability, our conclusion that none of
FERC’s challenged decisions were individually erroneous
forecloses a cumulative error claim. See id.IV. Challenges to the NJDEP’s Order
We now turn to the petitioners’ challenge to the
NJDEP’s conclusion that the New Jersey regulations
establishing the availability of adjudicatory hearings to contest
56
the grant of water quality permits to an interstate pipeline
project were preempted by federal law (docket No. 17-
3207). As noted above, we conclude that the NJDEP
misunderstood the scope of the NGA’s assignment of
jurisdiction to the federal Courts of Appeals. Because this
erroneous view was the only articulated reason for its denial of
the petitioners’ hearing request, we will remand to the NJDEP
for reconsideration of the petitioners’ request and to give the
NJDEP the opportunity to in the first instance address the
petitioners’ substantive challenges to the provision of the
permits.
A. Jurisdiction Under the NGA
We begin with the language of the federal statute that
the NJDEP purports divests it of jurisdiction to grant
adjudicatory hearings arising from permit decisions affecting
interstate natural gas pipelines. Under the NGA:
The United States Court of Appeals for the
circuit in which a facility subject to section 717b
of this title or section 717f of this title is proposed
to be constructed, expanded, or operated shall
have original and exclusive jurisdiction over any
civil action for the review of an order or action
of a . . . State administrative agency acting
pursuant to Federal law to issue, condition, or
deny any permit, license, concurrence, or
approval . . . required under Federal law . . . .
15 U.S.C. § 717r(d)(1). By the plain language of the statute,
the conferral of “original and exclusive jurisdiction” to the
federal Courts of Appeals is limited to “civil action[s] for the
57
review of an order or action of a Federal agency . . . or State
administrative agency.” Id. The term “civil action” is not
defined either in § 717r or anywhere in the NGA, so we must
“look to the common meaning of the term in deciding whether
‘civil action’ encompasses” a state administrative proceeding,
as the NJDEP claims. Schindler v. Sec’y of Dep’t of Health &
Human Servs., 29 F.3d 607, 609 (Fed. Cir. 1994). Our review
assures us that a “civil action” refers only to civil cases brought
in courts of law or equity and does not refer to hearings or other
quasi-judicial proceedings before administrative agencies.
The Supreme Court has recognized that “the word
‘action’ often refers to judicial cases, not to administrative
‘proceedings,’” West v. Gibson, 527 U.S. 212, 220 (1999), and
has parsed statutes based on Congress’s understanding of the
distinction between a civil “action” in a court and an
administrative “proceeding” at the agency level, New York
Gaslight Club, Inc. v. Carey, 447 U.S. 54, 60–62 (1980). This
Court, for its part, has held in the context of interpreting a
statute providing for attorneys’ fees in taxpayer disputes
against that IRS that the even broader term “‘civil action or
proceeding’ includes only judicial proceedings and not
administrative actions.” Toner v. Comm’r, 629 F.2d 899, 902
(3d Cir. 1980). Our sister Courts of Appeals have reached
similar conclusions. In Schindler, for instance, the Court of
Appeals for the Federal Circuit noted that “[u]nder Fed. R. Civ.
P. 3, a ‘civil action’ is commenced by the filing of a complaint
with the court,” and quoted Stroud’s Judicial Dictionary’s
definition of “‘civil action’ as ‘litigation in a civil court for the
recovery of individual right or redress of individual
wrong.’” 29 F.3d at 609–10. In another case, that court
explicitly stated that a hearing “at the administrative level” was
not “in a ‘civil action.’” Levernier Const., Inc. v. United
58
States, 947 F.2d 497, 502 (Fed. Cir. 1991); see also, e.g.,
Howard v. Pritzker, 775 F.3d 430, 432 (D.C. Cir. 2015)
(distinguishing, in the Title VII context, between the “final
administrative action” and the subsequent “civil action”
consisting of “a de novo court proceeding”). Black’s Law
Dictionary similarly defines an “action” as a “civil or criminal
judicial proceeding.” Black’s Law Dictionary 31 (8th ed.
1999); see also Ballentine’s Law Dictionary 202 (3d ed. 1969)
(defining a civil action” as “any proceeding in a court of justice
by which an individual pursues that remedy which the law
affords him”); Bouvier Law Dictionary Desk Edition (2012)
(defining a “civil action” as “[a]ll actions in law or equity that
are not criminal actions” and noting that it is “the generic term
for all lawsuits”).
The Supreme Court has long recognized that
administrative hearings, even to the extent that they in some
ways mirror an adversarial trial, do not constitute proceedings
in courts of law or equity. See, e.g., Dixon v. Love, 431 U.S.
105, 115 (1977) (holding that “procedural due process in the
administrative setting does not always require application of
the judicial model”); Consol. Edison Co. of N.Y. v. NLRB, 305
U.S. 197, 229–30 (1938) (explaining that the purpose of the
section of the NLRA at issue there, which freed an
administrative tribunal from applying the rules of evidence
required “in courts of law and equity,” was to “free
administrative boards from the . . . technical rules” inherent “in
judicial proceedings”). And notably, the New Jersey Supreme
Court has explicitly held, in upholding the constitutionality of
an administrative body tasked with adjudicating allegation of
unlawful discrimination, that administrative adjudication
“involves no . . . intrusion upon subject matter jurisdiction of
59
the judicial branch over traditional causes of action at law or in
equity.” David v. Vesta Co., 212 A.2d 345, 359 (N.J. 1965).
Viewed in light of both federal and New Jersey
authority, and barring any specific statutory language to the
contrary, a hearing before an administrative body is not a “civil
action.” Accordingly, such hearings are not impacted by §
717r(d)(1)’s assignment to the federal Courts of Appeals the
exclusive jurisdiction over civil actions challenging a state
agency’s permitting decision made pursuant to federal
law. Because, as relevant here, the NGA explicitly permits
states “to participate in environmental regulation of [interstate
natural gas] facilities” under the CWA, Delaware I, 833 F.3d
at 368, and only removes from the states the right for their
courts to hear civil actions seeking review of interstate
pipeline–related state agency orders made pursuant thereto, the
NGA leaves untouched the state’s internal administrative
review process, which may continue to operate as it would in
the ordinary course under state law.
That § 717r(d)(1)’s scope is limited to judicial review
of agency action, and does not implicate or preempt state
agency review of the agency’s own decision, is also apparent
from the statute’s structure. For example, § 717r(b) — which
is titled “Review” and discusses appeals to the Courts of
Appeals from a FERC order — allows a party “aggrieved by
an order issued by the Commission” to “obtain a review of such
order” in the Courts of Appeals. In contrast, § 717r(d)(1) —
which is titled “Judicial review” — grants “original and
exclusive jurisdiction over any civil action for the review of an
order or action of a . . . or State administrative
agency.” (emphasis added). Congress therefore clearly
understood the difference between establishing direct judicial
60
“review” over agency action (supplanting any alternative intra-
agency process) and creating an exclusive judicial forum in the
federal Courts of Appeals for a “civil action” challenging an
agency’s decision-making (separate from the agency’s own
internal review process). As opposed to affirmatively
installing federal courts to oversee the administrative process,
as it did in § 717r(b) by placing the “review” of all FERC
action in the Courts of Appeals, Congress did not interject
federal courts into the internal workings of state administrative
agencies. See Berkshire Envtl. Action Team, Inc. v. Tenn. Gas
Pipeline Co., 851 F.3d 105, 112–13 (1st Cir. 2017) (“We see
no indication that Congress . . . intended to dictate how (as
opposed to how quickly) [the state agency] conducts its
internal decision-making before finally acting.”). The myriad
“state procedures giving rise to orders reviewable under §
717r(d)(1) may (and undoubtedly do) vary widely from
jurisdiction to jurisdiction,” some of which may permit intra-
agency review and others which may not. Id. at 109. Perhaps
in recognition of this diversity, § 717r(d)(1) merely establishes
that a party who seeks judicial review of a state agency
decision via a collateral civil action challenging the correctness
of the decision, may only bring that civil action directly to the
federal Courts of Appeals, not the state courts or federal district
courts.
Finally, although not squarely faced with this issue, this
Court and the Court of Appeals for the First Circuit have
implicitly held that state administrative review of interstate gas
permitting decisions is not preempted by the NGA. In our
recent opinion in Delaware Riverkeeper Network v. Secretary
Pennsylvania Department of Environmental Protection, Nos.
16-2211, 16-2218, 16-2400 (3d Cir. Sept. 4, 2018) (“Delaware
III”), as well as in Delaware II and Berkshire, the courts
61
considered whether § 717r(d)(1) includes a finality
requirement such that the federal Courts of Appeals lack
jurisdiction to hear the case if the state makes available
additional administrative remedies before the permitting
decision takes effect. If the NJDEP’s and Transco’s position
in this case were a correct reading of the statute (that “any civil
action for the review” in § 717r(d)(1) includes administrative
review), then those courts would not have considered whether
administrative review was an available or mandatory remedy
in the state’s administrative scheme, because the NGA would
have cut off any state review other than the initial decision,
making that decision by default final. In Delaware II, however,
this Court assumed that the petitioners could have sought an
appeal to the Pennsylvania Environmental Hearing Board
(“EHB”) if they had done so within the time period provided
in the Pennsylvania statute. See 870 F.3d at 177. And in
deciding the issue left open by Delaware II, we concluded in
Delaware III that the Pennsylvania DEP’s issuance of a Water
Quality Certification was final and appealable to this Court
“[n]otwithstanding the availability of an appeal to the EHB.”
Delaware III, slip op. at 18. Although reaching the opposite
conclusion in regards to the finality of the Massachusetts
permitting process, the court in Berkshire determined in light
of that state’s administrative scheme that it did not have
jurisdiction to hear the case until the state environmental
agency held the adjudicatory hearing that petitioners had
sought, and issued an order thereupon. See 851 F.3d at 112–
13.22 If the plain impact of § 717r(d)(1) was to remove from
22
In Delaware II and III, we distinguished Berkshire on
the basis that the Pennsylvania statute allowed construction to
begin immediately upon the issuance of the agency’s decision,
62
the states any and all review over the issuance of such permits,
those cases would not have proceeded based on the
understanding — express or implicit — that state
administrative review was available if desired. The only
whereas the Massachusetts statute at issue in Berkshire did not
allow any action on the permit until the expiration of the period
for seeking an adjudicatory hearing. For present purposes,
however, the technical details of the state’s administrative
scheme are irrelevant. If the NJDEP and Transco are correct
that the clear text of the statute demands that all review of
permitting decisions must occur in this Court only, it would be
counterintuitive to assert that we will ignore the statute’s
mandate and permit administrative review in contexts where
the state’s administrative scheme established that an initial
decision is not final until the parties have an opportunity for
review. Cf. Delaware III, slip op. at 12–13 (“Although the
decisionmaking process we are reviewing is defined by
Pennsylvania law, we nevertheless apply a federal finality
standard to determine whether Congress has made the results
of that process reviewable under the [NGA].”). Rather,
accepting the NJDEP’s and Transco’s view, the statute — by
eliminating any review other than federal Court of Appeals
review — would operate to make final the state’s initial
permitting decision, notwithstanding whatever administrative
review scheme the state otherwise had in place. Nor, for that
matter, do the NJDEP or Transco assert that any such carve-
out exists for state schemes that create a single or unitary
proceeding that includes administrative review. But as we
made clear in Delaware III, such distinctions in the state
administrative scheme are “probative of whether that decision
is final.” Id. at 16.
63
plausible conclusion to draw from these cases and from the text
of the statute itself is that § 717r(d)(1) does not preempt state
administrative review of interstate pipeline permitting
decisions.
B. New Jersey Law
Having decided that the NGA does not preempt the
regular operation of New Jersey’s administrative review
process, we turn next to the determination of whether the
NJDEP’s refusal to afford the petitioners an adjudicatory
hearing based on the NJDEP’s erroneous interpretation of the
NGA amounts to a violation of New Jersey law. As explained
below, we conclude that it does.
Federal courts reviewing state agency action afford the
agencies the deference they would receive under state
law. See, e.g., Delaware II, 870 F.3d at 181. Accordingly, we
look to New Jersey law to determine the prism of our review
of the NJDEP’s denial of the petitioners’ request for an
adjudicatory hearing. Similar to review under the APA,
judicial review of New Jersey administrative agency decisions
is generally limited to a determination of whether the decision
“is arbitrary, capricious or unreasonable,” but no deference is
owed to “the agency’s interpretation of a statute or its
determination of a strictly legal issue.” In re Taylor, 731 A.2d
35, 42 (N.J. 1999) (quoting Mayflower Sec. Co. v. Bureau of
Sec., 312 A.2d 497, 501 (N.J. 1973)). Likewise, we afford no
deference to a state agency’s interpretation of federal law,
which we instead review de novo. See, e.g., MCI Telecomm.
Corp. v. Bell Atl. Pa., 271 F.3d 491, 516 (3d Cir. 2001).
64
The NJDEP regulations implementing the FWPA allow
a party to request an adjudicatory hearing to challenge the grant
of an FWW permit. The FWPA explicitly provides for the
availability of such a hearing where the requestor is the permit
seeker, N.J. Stat. Ann. § 13:9B-20, and — as recognized in the
NJDEP regulations, see N.J. Admin. Code § 7:7A-21.1(e)
(FWW); § 7:14A-17.2(c) & (f) (dewatering) — the New Jersey
Administrative Procedure Act recognizes the rights of
“[p]ersons who have particularized property interests or who
are directly affected by a permitting decision” to such a
hearing, N.J. Stat. Ann. §§ 52:14B-3.1(b) & 3.2(c).23 Under its
regulations, when a third party asserting such a property
interest seeks an adjudicatory hearing regarding a permit, the
NJDEP has the responsibility in the first instance to either deny
the request — and in doing so to provide the reasons for the
denial — or to approve the request and to forward the matter
to the Office of Administrative Law, where an ALJ will hear
the dispute and then issue a report and recommendation for the
consideration of the NJDEP Commissioner. N.J. Admin. Code
§ 7:7A-21.1(f)–(g), 7:14A–17.5(b); see also N.J. Stat. Ann. §
52:14B-10(a)–(c). Although the FWW regulations do not
articulate a standard by which the agency must decide whether
to approve or deny a petition for an adjudicatory hearing, the
denial of a request for a hearing on a dewatering permit is
23
The petitioners assert that they meet this standard. In
denying the petition for a hearing, the NJDEP expressly
withheld decision on the claim, NJDEP App. 37 n.4, and
neither the NJDEP nor Transco address this fact-specific issue
on appeal. Given our disposition, we need not reach the issue,
which we leave for the NJDEP to address in the first instance
when reconsidering the petitioners’ hearing request.
65
limited to an enumerated list of reasons. N.J. Admin. Code §§
7:7A-21.1(f); 7:14A–17.4. In either case, the NJDEP must
clearly articulate the reasoning behind its decision so that a
reviewing court can determine whether the decision was in
error. See id. §§ 7:7A-21.1(f); 7:14A–17.4(e); see also In re
Authorization For Freshwater Wetlands Statewide Gen. Permit
6, Special Activity Transition Area Waiver For Stormwater
Mgmt., Water Quality Certification, 80 A.3d 1132, 1147 (N.J.
App. Div. 2013); Atl. City Med. Ctr. v. Squarrell, 793 A.2d 10,
16 (N.J. App. Div. 2002).
Here, the NJDEP denied the petitioners’ request for an
adjudicatory hearing on the FWW and dewatering permits on
the sole basis that, pursuant to the NGA, the federal Courts of
Appeals have exclusive jurisdiction to hear any challenges to
final decisions granting permits, and accordingly that the
provisions permitting an adjudicatory hearing to contest such
decisions were preempted.24 Because we conclude that the
NJDEP’s reading of the NGA was erroneous as a matter of law
and that the NGA does not preempt the regular progression of
intra-agency review of a permitting decision, the NJDEP’s
denial of the petitioners’ request for an adjudicatory hearing
24
We need not determine whether or not a NJDEP
permitting decision is already final during the period when a
party may still seek an adjudicatory hearing to challenge the
permit because, as explained below, the fact that we may have
immediate jurisdiction to hear a challenge to a permitting
decision does not mean that the agency charged with
administering the permitting process is thereby divested of its
authority to review challenges to its permits via its established
administrative procedures.
66
based on that misunderstanding was unreasonable and so
cannot stand.
The NJDEP and Transco urge that jurisdiction properly
lies in this Court because the permit decision was final and
because requiring exhaustion of state remedies would run
counter to the NGA’s purpose of streamlining natural gas
permits. This may be so. However, the determination of
whether we may assert jurisdiction immediately upon a
permitting decision does not answer whether the agency is
simultaneously stripped of jurisdiction to provide an
administrative adjudicatory hearing in the ordinary
course. Our limitation to considering only final orders, see
Delaware III, slip op. at 10, is a constraint on our own
jurisdiction, not a determination that we are the only forum
available to consider final orders.25 Indeed, if the NJDEP and
25
In other words, our own limitation to hearing only
final orders is not necessarily tantamount to creating an
exhaustion requirement in the state process. See, e.g.,
Delaware III, slip op. at 17 (“[F]inality is ‘conceptually
distinct’ from the related issue of exhaustion of administrative
remedies.” (quoting Williamson Cty. Reg’l Planning Comm’n
v. Hamilton Bank of Johnson City, 473 U.S. 172, 192 (1985)));
Berkshire, 851 F.3d at 110 (explaining that “[f]inding that a
statute requires final agency action is different from finding
that it requires exhaustion” (citing Darby v. Cisneros, 509 U.S.
137, 144 (1993))). Assuming that a state considers an order
final even though additional state agency procedures may be
available — and that the classification is consistent with
federal finality standards — we may consider a judicial
challenge to the order despite the petitioner’s failure to exhaust
67
Transco are correct that the NJDEP orders at issue here were
final when issued, see Transco Br. 24; NJDEP Br. 10, 12, New
Jersey clearly provides for a 30-day window to seek an
adjudicatory hearing to contest that final order. We therefore
do not necessarily disagree with the NJDEP and Transco’s
assertion that the petitioners could have immediately appealed
the NJDEP’s orders to this Court. Nor do we disagree that,
assuming the petitioners sought immediately to bring such a
civil action — and again putting aside the question of finality
— this Court would be the only judicial body to which such a
challenge could be brought. Our holding is only that (1)
instead of bringing a civil action in this Court, the petitioners
were entitled under New Jersey law to have alternatively first
sought an intra-agency adjudicative hearing, and (2) the
NJDEP violated New Jersey law by unreasonably denying the
petitioners’ request for such a hearing based on its misreading
of the NGA and this Court’s precedent.
In sum, although the plain language of the NGA strips
state courts — as well as federal district courts — of
jurisdiction to hear civil actions challenging an administrative
agency’s permitting decision regarding interstate natural gas
pipelines, it does not purport to meddle with the inner workings
of the agency’s approval process or to insert federal appellate
those further state administrative remedies. See Delaware III,
slip op. at 12–13, 17. And conversely, even though a petitioner
might have the right immediately to commence a civil action
in this Court, this does not necessarily extinguish his or her
right instead to seek redress via the available administrative
avenues before filing that civil action.
68
courts arbitrarily into the state administrative scheme. The
language of the statute merely requires that judicial challenges
to the outcome of the administrative process come straight to
us. If, however, a state allows for an internal administrative
review of a permitting process, such a process does not
contravene the NGA. Because the NJDEP denied the
petitioners’ request for an adjudicatory hearing based on its
belief to the contrary, we will remand to the agency with
instructions to reconsider the petitioners’ request for a hearing
in light of our clarification. In doing so, we express no opinion
on the petitioners’ ultimate entitlement to an adjudicatory
hearing based on New Jersey law.
V. Conclusion
In light of the foregoing, we will deny in part and grant
in part the petitions for review, and remand to the NJDEP for
proceedings consistent with this opinion.
69