Gunpowder Riverkeeper v. Federal Energy Regulatory Commission , 807 F.3d 267 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 20, 2015 July 21, 2015
No. 14-1062
G UNPOWDER RIVERKEEPER,
PETITIONER
v.
FEDERAL ENERGY REGULATORY COMMISSION ,
RESPONDENT
COLUMBIA G AS TRANSMISSION, LLC,
INTERVENOR
On Petition for Review of Orders of
the Federal Energy Regulatory Commission
Kenneth T. Kristl argued the cause and filed the briefs for
petitioner.
Elizabeth E. Rylander, Attorney, Federal Energy
Regulatory Commission, argued the cause for respondent.
With her on the brief were David L. Morenoff, General
Counsel, and Robert H. Solomon, Solicitor.
S. Diane Neal, Tyler Brown, and Paul Korman were on
the brief for intervenor Columbia Gas Transmission, LLC in
support of respondent. Fredric J. George entered an
appearance.
2
Before: ROGERS and B ROWN, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
GINSBURG.
Opinion dissenting in part and concurring in the
judgment filed by Circuit Judge ROGERS.
GINSBURG, Senior Circuit Judge: The Federal Energy
Regulatory Commission issued a certificate of public
convenience and necessity to Columbia Gas Transmission,
LLC, conditionally authorizing the company to extend a
natural gas pipeline in Maryland. Gunpowder Riverkeeper,
an association of individuals who “work, live, and recreate
along the Gunpowder River and its tributaries,” petitioned for
rehearing, which the Commission denied. Gunpowder then
petitioned this court for review of the Commission’s order
granting the certificate and Columbia intervened in support of
the Commission. We deny Gunpowder’s petition for want of
a legislatively conferred cause of action.
I. Background
The Natural Gas Act (NGA) requires any party seeking to
construct a facility for transporting natural gas first to obtain a
certificate of public convenience and necessity from the
Federal Energy Regulatory Commission. 15 U.S.C.
§ 717f(c)(1)(A). With an exception not relevant here, the
Commission grants a certificate only if the construction
project “is or will be required by the present or future public
convenience and necessity,” and conditions it upon “such
reasonable terms and conditions as the public convenience
and necessity may require.” 15 U.S.C. § 717f(e).
3
In issuing a certificate, however, the Commission must
comply with the separate statutory mandate of the National
Environmental Policy Act (NEPA). See 42 U.S.C.
§ 4332(2)(C). In accordance with the NEPA, every
application for a certificate prompts an environmental review.
Generally, the Commission first prepares an environmental
assessment and, unless it determines the proposed project
would have no significant environmental impact, it goes on to
prepare a full-blown environmental impact statement. See 40
C.F.R. § 1501.4.
In addition, the Clean Water Act (CWA) requires every
applicant for a federal permit authorizing any action that
“may result in any discharge into the navigable waters” of the
United States to submit to the permitting agency a
certification from the appropriate state or interstate agency
“that any such discharge will comply” with the CWA. 33
U.S.C. § 1341(a)(1).
Following the Commission’s issuance of the conditional
certificate here at issue, Gunpowder filed a petition for
rehearing on the ground that when the certificate was issued
Columbia had not received from the State of Maryland the
certification required by the CWA and that, absent that
certification, “the cumulative impacts of the project
cognizable under the [NEPA] are unknown.” The
Commission denied Gunpowder’s petition for rehearing.
The conditional certificate issued to Columbia authorized
it to begin construction of the extension only after receiving
all required permits, and only after obtaining further
authorization from the Commission. Under Section 7 of the
NGA, however, issuance of the conditional certificate enabled
Columbia immediately to exercise the power of eminent
domain to obtain “the necessary right-of-way to construct,
4
operate, and maintain a pipe line” and to place any
“equipment necessary to the proper operation of such pipe
line.” 15 U.S.C. § 171f(h); see also, e.g., Columbia Gas
Transmission LLC v. 0.85 Acres, More or Less, in Harford
Cnty, Md, No. 1:14-cv-02288, 2014 WL 4471541 (D. Md.
Sept. 8, 2014) (so interpreting the certificate).* The
conditional order required Columbia to “ensure that it restores
and re-vegetates affected properties, which will minimize
property value impacts, and ... compensate landowners for
damages like tree loss.”
Gunpowder here argues the Commission’s issuance of
the conditional certificate of public convenience and necessity
violated both the CWA and the NEPA.
II. Analysis
We address first the court’s jurisdiction over this case
pursuant to Article III of the Constitution of the United States.
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998)
(noting that jurisdiction must “be established as a threshold
matter”). We then turn to the “zone of interests” analysis.
A. Jurisdiction
The Commission has called into question whether
Gunpowder has standing under Article III to challenge the
conditional certificate. Specifically, the Commission suggests
that whether Gunpowder has standing is a “close call”
because “[i]ts brief ... does not show that its members have
suffered injury from actual or threatened eminent domain
*
Whether the certificate was correctly construed as authorizing
Columbia to exercise the power of eminent domain is not before
this court, and we do not decide it.
5
actions.” If Gunpowder lacks constitutional standing, then
this court lacks jurisdiction to address its petition for review.
See Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-61
(1992).
1. Standing
To invoke the jurisdiction of the court, an association
acting on behalf of its members must show that “its members
would ... have standing to sue in their own right, the interests
at stake are germane to the organization’s purpose, and
neither the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit.” Friends
of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528
U.S. 167, 181 (2000). A member of an organization would
have standing if he, she, or it (1) “has suffered an ‘injury in
fact’ that is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical”; (2) “the injury is
fairly traceable to the challenged action of the defendant”; and
(3) “it is likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.” Id. at 180-
81.
Gunpowder points to affidavits of certain of its members
to show they have suffered an injury in fact because their
property is subject to eminent domain proceedings that have
been or may be started by Columbia pursuant to its plan to
extend its natural gas pipeline. We have previously held that
a landowner made subject to eminent domain by a decision of
the Commission has been injured in fact because the
landowner will be forced either to sell its property to the
pipeline company or to suffer the property to be taken through
eminent domain. See B&J Oil & Gas v. FERC, 353 F.3d 71,
74-75 (D.C. Cir. 2004). Contrary to the implicit premise of
the Commission’s argument, it is not necessary in order to
6
show injury that property already have been taken, or even
that eminent domain proceedings have begun; it is enough
that they have been deemed authorized and will proceed
absent a sale by the owner.* See id. at 75. The Commission’s
alternative argument — that our precedent is inapplicable
because in this case “it does not appear that the process will
extinguish landowners’ property interest” — is similarly
bootless, as it addresses only the degree, not the fact, of the
landowners’ injury. Finally, because the threat of eminent
domain derives from the conditional certificate, the injury
would be redressed by a favorable decision of the court,
which would require vacatur of the order granting the
certificate. In sum, a member of Gunpowder against whom
eminent domain proceedings have been instituted or
threatened would have constitutional standing to pursue the
present case.
As for Gunpowder’s standing as an association to bring
this case on behalf of its injured members, we note that
Gunpowder’s undisputed purpose is to preserve and protect
the Gunpowder River watershed. Gunpowder’s claims under
the NEPA and the CWA are clearly germane to that purpose,
as both statutes aim to prevent degradation of the natural
environment. Finally, because Gunpowder’s petition for
review concerns only the question whether the conditional
certificate issued by the Commission is lawful, it is not
necessary for any individual member of Gunpowder to
participate in this proceeding in order to secure effective relief
for all its injured members. See Warth v. Seldin, 422 U.S.
490, 515 (1975) (“If ... the association seeks a declaration,
*
Gunpowder has advised the court that, subsequent to its initial
briefing, “Columbia won partial summary judgment in its
condemnation action against [its] affiants.” For the reason stated
above, however, we need not rely upon this extra-record
development.
7
injunction, or some other form of prospective relief, it can be
reasonably supposed that the remedy, if granted, will inure to
the benefit of those members ... actually injured”).
Gunpowder therefore satisfies the requirements for Article III
standing.
2. Mootness
Because Maryland has issued the certification required
by the CWA, Columbia argues Gunpowder’s petition for
review is moot and therefore non-justiciable. See Loughlin v.
United States, 393 F.3d 155, 169 (D.C. Cir. 2004) (describing
the mootness doctrine as a “justiciability doctrine[]”). A case
is moot if “events have so transpired that the decision [of the
court] will neither presently affect the parties’ rights nor have
a more-than-speculative chance of affecting them in the
future.” Daimler Trucks N. Am. LLC v. EPA, 745 F.3d 1212,
1216 (D.C. Cir. 2013).
Columbia’s argument fails because it disregards
Gunpowder’s challenge under the NEPA, which is unaffected
by issuance of the state certification required by the CWA.
The disputed validity of Columbia’s conditional certificate,
and the power of eminent domain that depends upon it,
therefore continue to present a live controversy.
Consequently, the court has jurisdiction of the present
controversy.
B. Zone of interests
In addition to constitutional standing, a plaintiff must
have a valid cause of action for the court to proceed to the
merits of its claim. See Natural Res. Def. Council v. EPA,
755 F.3d 1010, 1018 (D.C. Cir. 2014) (denying a petition for
review because the petitioner lacked a cause of action).
8
Pursuant to the most recent teaching of the Supreme Court,
we “presume that a statutory cause of action extends only to
plaintiffs whose interests ‘fall within the zone of interests
protected by the law invoked.’” Lexmark Int’l, Inc. v. Static
Control Components, Inc., 134 S. Ct. 1377, 1388 (2014)
(quoting Allen v. Wright, 468 U.S. 737, 751 (1984)).
In this case, Gunpowder claims an interest, and hence a
cause of action, under each of three distinct statutes: the
NGA, the NEPA, and the CWA. The Commission argues that
Gunpowder’s asserted interest — avoiding harm to its
members’ property rights — falls outside the zones of interest
protected or regulated by the NEPA and the CWA, and that its
alleged non-compliance with those statutes falls outside the
zone of interests protected or regulated by the NGA. We
conclude Gunpowder’s interest in protecting its members’
property from eminent domain in the face of alleged non-
compliance with the NEPA and the CWA does not fall within
the zones of interest protected by any of the three
aforementioned statutes.
1. The NGA
The NGA provides that “[a]ny party to a proceeding
under this chapter aggrieved by an order issued by the
Commission ... may obtain a review of such order.” 15
U.S.C. § 717r(b). A party is “aggrieved” within the meaning
of the NGA “if as a result of an order of [the Commission] it
has sustained injury in fact to an interest arguably within the
zone of interests to be protected or regulated” by the
Commission under the NGA. Moreau v. FERC, 982 F.2d
556, 564 (D.C. Cir. 1993) (citation and internal quotation
marks omitted). A party may also be “aggrieved” within the
meaning of the NGA if it “assert[s] an interest that is arguably
within the zone of interests intended to be protected by the
9
statute on which it relies” — even if that statute is not the
NGA itself — in which case, however, the zone of interests
analysis is conducted with respect to the statute upon which
the party relies. ANR Pipeline Co. v. FERC, 205 F.3d 403,
408 (D.C. Cir. 2000).
Although “the property interests of neighboring
landowners arguably fall within the zone of interests the NGA
protects,” Moreau, 982 F.2d at 564 n.3, the zone of interests
of the NGA does not encompass injuries arising out of
violations of other statutes, such as the CWA or the NEPA.
Therefore, when a petitioner for review pursuant to the NGA
implicitly invoked a separate statutory cause of action as the
foundation of its claim, we proceeded to determine whether
that petitioner’s interests came within the zone of interests
protected or regulated by that separate statute. See ANR
Pipeline Co., 205 F.3d at 407-08. In that case, as here, the
petitioner argued the Commission had failed to comply with
the NEPA. Id. at 407. We therefore treated the petitioner’s
complaint as “a NEPA challenge” and proceeded to evaluate
whether the petitioner’s grievance came within the zone of
interests protected by the NEPA. Id. at 407-08.
Here, Gunpowder has invoked both the NEPA and the
CWA. We proceed accordingly to evaluate whether its
interest falls within the zone of interests protected by either of
those statutes.
2. The NEPA
The zone of interests protected by the NEPA is, as its
name implies, environmental; economic interests simply do
not fall within that zone. Id. (so noting with respect to the
petitioner’s “economic interest” in suppressing competition).
To be sure, a landowner is not disqualified from asserting a
10
claim under the NEPA simply because it has an economic
interest in defeating a challenged regulatory action, Realty
Income Trust v. Eckerd, 564 F.2d 447, 452 (D.C. Cir. 1977)
(“[A] party is not precluded from asserting cognizable injury
to environmental values because his ‘real’ or ‘obvious’
interest may be viewed as monetary”), but it still must assert
an environmental harm in order to come within the relevant
zone of interests. Id. at 452 & n.10. As this court has
explained specifically with respect to eminent domain as the
source of an injury, “the ‘zone of interest’ under NEPA
encompasses environmental values, read, of course, very
broadly, but does not encompass monetary interests alone.”
Id. at 452 n.11.
In this case, Gunpowder has alleged only that some of its
members “are subject to actual or the threat of eminent
domain proceedings now that will result in a loss of property
rights.” Although the affidavits of Gunpowder’s members
contain some assertions of injury that could be construed as
environmental, see, e.g., Affidavit of SallyAnn & Michael
Mickel, (stating affiants “feel the aesthetic, emotional, and
physical loss of our trees”), the petitioner itself does not offer
them in that spirit; indeed, Gunpowder does not invoke them
for the purpose of showing environmental harm even in
replying to the Commission’s argument that Gunpowder fails
the zone of interests test under the CWA and NEPA. Cf. Bd.
of Regents of the Univ. of Wash. v. EPA, 86 F.3d 1214, 1221
(D.C. Cir. 1996) (noting that arguments not clearly raised in a
party’s opening brief are generally considered to be forfeit).
Because Gunpowder did not argue that its members would
suffer any environmental harm — indeed, it expressly
disclaimed the need to do so — we conclude the petitioner
11
does not come within the zone of interests protected by the
NEPA.*
3. The CWA
Although this circuit has never addressed the question
whether an injury arising specifically by reason of eminent
domain can sustain a claim under the CWA, that statute by its
terms, like the NEPA, is aimed clearly and solely at
preventing environmental harms. See 33 U.S.C. § 1251(a)
(“The objective of this chapter is to restore and maintain the
chemical, physical, and biological integrity of the Nation’s
waters”). This court has therefore held that claims not aimed
at “protect[ing] navigable rivers and streams from pollution”
or at “requir[ing] those who desire to discharge pollutants into
the waterways to obtain a permit for doing so” fall outside the
zone of interests protected by the CWA. Citizens
Coordinating Comm. on Friendship Heights, Inc. v. Wash.
Metro. Area Transit Auth., 765 F.2d 1169, 1173 (D.C. Cir.
1985) (denying standing to a corporate plaintiff that alleged
injury based upon the “seepage of diesel fuel into its ground
water collection system and elevator pit”). Our sister circuits
agree. See Dan Caputo Co. v. Russian River Cnty. Sanitation
Dist., 749 F.2d 571, 575 (9th Cir. 1984) (denying standing
under the CWA because the plaintiff’s claim “does not arise
*
Judge Rogers asserts that “[t]he record before the Commission
removes any doubt about whether petitioner’s interests are
environmental,” but neither Sierra Club v. EPA, 292 F.3d 895
(D.C. Cir. 2002), nor Nat’l Ass’n of Home Builders v. Army Corps
of Engineers, 417 F.3d 1272 (D.C. Cir. 2005), relieves the
petitioners of the obligation affirmatively to invoke an interest
within the relevant zone of interests; at best, the decisions relieve
petitioners of the burden of production associated with
demonstrating that interest. In this case, the petitioner has simply
not invoked an interest in preventing environmental harm.
12
from an interest in the environment, and does not seek to
vindicate environmental concerns”); BP Exploration & Oil,
Inc. v. EPA, 66 F.3d 784, 803 (6th Cir. 1995) (holding a
petitioner alleging injury to its manufacturing business lacked
standing to challenge effluent limitations promulgated under
the CWA because economic harm “does not fall within the
‘zone of interests’ that Congress sought to protect in enacting
the CWA”).
In keeping with Lexmark and the above-cited sources of
guidance, we hold Gunpowder does not come within the zone
of interests protected by the CWA because it did not allege its
members would suffer any environmental harm. In sum,
Gunpowder does not make a claim within the zone of interests
of any of the three relevant statutes.
III. Conclusion
For the reasons set forth above, Gunpowder’s petition for
review is
Denied.
ROGERS, Circuit Judge, dissenting in part and concurring in
the judgment: Petitioner Gunpowder Riverkeeper is an
environmental protection organization whose members live,
work, and engage in recreational activities in the river’s
watershed. Their ability to do so is directly threatened by the
pipeline project that the Federal Energy Regulatory Commission
has approved. Contrary to the court’s conclusion, that is
sufficient to demonstrate that its members have interests
protected by the National Environmental Policy Act (“NEPA”),
42 U.S.C. §§ 4321 et seq., and the Clean Water Act, 33 U.S.C.
§§ 1151 et seq. Petitioner’s merits contentions, however, are
unpersuasive, and I therefore concur in the judgment denying
the petition.
I.
To state a valid claim for relief, a petitioner’s interest must
be “arguably within the zone of interests to be protected or
regulated by the statute” whose violation is alleged. Ass’n of
Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153
(1970). The zone-of-interests test is not jurisdictional, but rather
a rule of statutory interpretation under which the court must
“presume that a statutory cause of action extends only to
[petitioners] whose interests fall within the zone of interests
protected by the law invoked.” Lexmark Int’l, Inc. v. Static
Control Components, Inc., 134 S. Ct. 1377, 1388 (2014)
(internal quotation marks omitted).
The zone-of-interests test “is not meant to be especially
demanding.” Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399
(1987). The Supreme Court has “always conspicuously included
the word ‘arguably’ in the test to indicate that the benefit of any
doubt goes to the plaintiff.” Match-E-Be-Nash-She-Wish Band
of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2210
(2012). As a result, “the test forecloses suit only when a
[petitioner]’s interests are so marginally related to or
inconsistent with the purposes implicit in the statute that it
2
cannot reasonably be assumed that Congress authorized that
[petitioner] to sue.” Lexmark, 134 S. Ct. at 1389 (internal
quotation marks omitted). This forgiving version of the test
applies in the context of the Administrative Procedure Act
(“APA”), see Bennett v. Spear, 520 U.S. 154, 163 (1997), as
well as to challenges under the Natural Gas Act, 15 U.S.C.
§§ 717 et seq. The Supreme Court has explained that the
“lenient approach is an appropriate means of preserving the
flexibility of the APA’s omnibus judicial-review provision,
which permits suit for violations of numerous statutes of varying
character that do not themselves include causes of action for
judicial review.” Lexmark, 134 S. Ct. at 1389. The judicial
review provision of the Natural Gas Act, 15 U.S.C. § 717r(b),1
is also such a statute.
Accordingly, this court has concluded that the relevant zone
of interests for environmental statutes like NEPA “encompasses
environmental values, read, of course, very broadly.” Realty
Income Trust v. Eckerd, 564 F.2d 447, 452 n.11 (D.C. Cir.
1977). Thus, any petitioner who “arguably” asserts an
environmental interest, read “very broadly,” satisfies the test.
The outer limits of the test are illustrated by this court’s
1
15 U.S.C. § 717r(b) provides:
Any party to a proceeding under this chapter aggrieved by an
order issued by the Commission in such proceeding may
obtain a review of such order in the court of appeals of the
United States for any circuit wherein the natural-gas company
to which the order relates is located or has its principal place
of business, or in the United States Court of Appeals for the
District of Columbia, by filing in such court, within sixty days
after the order of the Commission upon the application for
rehearing, a written petition praying that the order of the
Commission be modified or set aside in whole or in part.
3
precedent holding that businesses and individuals asserting
purely monetary interests do not come within environmental
statutes’ zones of interests. Thus, the court has explained that
businesses “seeking to increase the regulatory burden on others
in order to advance their own commercial interests” do not come
within the Clean Air Act’s zone of interests. White Stallion
Energy Ctr., LLC v. EPA, 748 F.3d 1222, 1258 (D.C. Cir. 2014),
rev’d on other grounds, Michigan v. EPA, No. 14-46 (U.S. June
29, 2015); 42 U.S.C. § 7412. Similarly, a landlord protecting
“monetary interests alone” who “can at best claim only a
remote, insubstantial, highly speculative and ephemeral interest
in the environment” does not fall within NEPA’s zone of
interests. Eckerd, 564 F.2d at 452 n.11 (internal quotation
marks omitted). In Eckerd, the court suggested this was true of
the plaintiffs in Zlotnick v. Redevelopment Land Agency, 2
E.L.R. 20,235 (D.D.C. Mar. 3, 1972), who were owners of “an
empty downtown lot” and “d[id] not reside in the affected area,”
and who brought a NEPA challenge with “nothing but their own
financial interest to protect,” see id. at 20,235–36. Other circuits
have likewise concluded that NEPA does not protect an interest
that “is purely financial” because the statute “is directed at
environmental concerns, not at business interests.” Ashley
Creek Phosphate Co. v. Norton, 420 F.3d 934, 939 (9th Cir.
2005); see Latin Am. for Soc. and Econ. Dev. v. Adm’r of Fed.
Highway Admin., 756 F.3d 447, 465–66 (6th Cir. 2014); Clinton
Comm. Hosp. Corp. v. S. Md. Med. Ctr., 510 F.2d 1037, 1038
(4th Cir. 1975).
Nothing about petitioner Gunpowder Riverkeeper suggests
it is seeking to protect interests that are strictly financial. It is a
non-profit organization whose “general purpose is the protection
[of] the Gunpowder River watershed,” Petr.’s Br. 3, where its
“members live, work, and recreate,” id. at 17; Op. 2, 6. The
organization is “engaged in natural resource protection and
conservation” on behalf of its members, Petr.’s Br. 3, aiming to
4
“maintain and enhance the water quality and aquatic and natural
resources of the watershed,” id. It participated throughout the
Commission proceedings, raising issues related to water quality,
forest cover, and wildlife. See Pet. For R’hg, Docket No. CP13-
8-000, Nov. 10, 2014. Nonetheless, the court concludes
petitioner cannot invoke the protection of two environmental
statutes, Op. 10–12, because its “interests are so marginally
related to or inconsistent with” environmental concerns that
Congress could not have intended to allow its cause of action,
Lexmark, 134 S. Ct. at 1389 (internal quotation marks omitted).
The court seizes on petitioner’s use of the word “property” and
not “environment” in its appellate brief as the reason for
concluding petitioner’s interests fall on the “purely financial”
side of the line and fail the zone-of-interests test. The court has
misapplied the test.
The appellate briefs alone make clear that petitioner falls
within the zones of interests of NEPA and the Clean Water Act.
The organization’s sole purpose is to protect the Gunpowder
River and surrounding environment. See Petr.’s Br. 3. Its
members stand to lose the property on which they “live, work,
and recreate.” Id. at 17. Their loss of such opportunities is
different from the purely monetary interests of a business
seeking to impose regulatory costs on a competitor, see White
Stallion, 748 F.3d at 1258, or a company trying to steer business
its way through the regulation of distant land use, see Ashley
Creek, 420 F.3d at 939. Petitioner’s members are not absentee
landowners as in Zlotnick (and thus Eckerd), but actually live on
the property affected by the Commission’s challenged action.
A decrease in the enjoyment of natural resources comes within
NEPA’s zone of interests. See, e.g., United States v. Students
Challenging Regulatory Agency Procedures, 412 U.S. 669,
684–85, 686 n.13 (1973). As a result of eminent domain, some
of petitioner’s members face the loss of that enjoyment. Under
the Supreme Court’s “lenient approach,” Lexmark, 134 S. Ct. at
5
1389, in which “the benefit of any doubt goes to the plaintiff,”
Patchak, 132 S. Ct. at 2210, that is enough for petitioner to
come within the zones of interests of NEPA and the Clean
Water Act.
The briefs also reference attached affidavits of petitioner’s
members. See Petr.’s Br. 15, 17; Reply Br. 6. Those affidavits
describe a litany of environmental interests that will be
adversely affected by the loss of property through eminent
domain. See, e.g., Le Gardeur Aff. ¶ 6 (“My livelihood and that
of my staff and guides is directly tied to the high quality, cold
water resources.”); id. ¶ 7 (members “work, live and recreate
along the Gunpowder River and its tributaries”); id. ¶ 15
(members “rely on drinking water” from watershed and thus
have “interests in [] protecting their drinking water from impacts
of the project”); Tedeschi Aff. ¶ 2 (describing reliance “on well
water for drinking etc. [and therefore] water quality is important
to us”); id. ¶ 5 (“Loss of the well jeopardizes the habitability of
the property.”); id. ¶ 7 (“[T]he well may be contaminated by this
process.”); Mickel Aff. ¶ 3 (interest in “maintaining a clean,
healthy water system for drinking, swimming, and fishing”); id.
¶ 7 (“We do feel the aesthetic, emotional and physical loss of
our trees.”); id. ¶ 9 (describing members as “people who live on,
work and love the land they own”); Merryman Aff. ¶ 4 (“My
brothers and I were raised on this farm where we swam and
fished in this creek.”); id. ¶ 6 (seeking to protect “large trees”
and “our well, seeps, springs” and other bodies of water). The
court strains credulity in describing these statements merely as
“assertions of injury that could be construed as environmental.”
Op. 10 (emphasis added). Unsurprisingly, the court cites no
authority to support the possibility that such interests are not
environmental, for there can be no doubt that the interests
identified by petitioner’s members are at least “arguably within
the zone of interests to be protected or regulated by” both NEPA
6
and the Clean Water Act. Data Processing, 397 U.S. at 153
(emphasis added).
The record before the Commission removes any doubt
about whether petitioner has and is now asserting environmental
interests. Petitioner conveyed to the Commission that it was
“fundamentally concerned with the cumulative environmental
impacts of this [pipeline] project on the waterways that provide
vital drinking water and recreational opportunities” to its
members. Pet. for R’hg, Docket No. CP13-8-000, Nov. 10,
2014, at 9–10. “Equally important” to petitioner’s members was
“the present condition of the adjacent lands of these waterways.”
Id. at 10. When the administrative record makes a petitioner’s
standing “self-evident,” no more is required. Sierra Club v.
EPA, 292 F.3d 895, 899–900 (D.C. Cir. 2002). The court has
suggested that the same is true in the zone-of-interests context.
See Nat’l Assoc. of Home Builders v. U.S. Army Corps of
Engineers, 417 F.3d 1272, 1286–87 (D.C. Cir. 2005). Yet the
court today has refused even to consider the administrative
record. While a petitioner must “affirmatively . . . invoke an
interest within the relevant zone of interests,” Op. 10 n.*,
petitioner has amply done so, not only before the Commission,
but in its briefs and affidavits submitted to the court.
Although petitioner has referred to its members’ “property
interests,” see Petr.’s Br. 15; Reply Br. 4, an interest in
“property” does not necessarily refer to commercial or financial
interests alone, as the standing affidavits and agency record
make plain. The asserted interest pertains to using that property
— which encompasses trees, water, wildlife, etc. — to “live,
work, and recreate.” Petr.’s Br. 17; Reply Br. 6 (citing Mickel
and Merryman affidavits). The use of the word “property” did
not magically transform petitioner’s members’ stated interests
in their natural environment into an interest in money alone.
The court’s conclusion that their only interest is monetary is too
7
obtuse for a test that “is not meant to be especially demanding.”
Clarke, 479 U.S. at 399.
No doubt, petitioner presented a zone-of-interests analysis
only for the Natural Gas Act, see Reply Br. 2–4, but in so doing,
petitioner conveyed more than enough to make clear that its
interests came within the environmental statutes’ zones of
interest. The court is “not limited to the particular legal theories
advanced by the parties.” U.S. Nat’l Bank of Or. v. Indep. Ins.
Agents of Am., Inc., 508 U.S. 439, 446 (1993); see Kamen v.
Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991). Where the
correct analysis is as clear as it is here, there is no reason for the
court not “to identify and apply the proper construction of
governing law.” United States v. Duvall, 705 F.3d 479, 485
(D.C. Cir. 2013) (Williams, J., concurring in the judgment)
(quoting U.S. Nat’l Bank of Or., 508 U.S. at 446). The reason
petitioner focused on its members’ property rights likely stems
from its view that it only had to present a zone-of-interests
analysis under the Natural Gas Act because that statute provided
the cause of action, see 15 U.S.C. § 717r(b), supra note 1.
Petitioner did not thereby suggest that it had no environmental
interests, or that it was not challenging the Commission’s action
to protect those interests. Such a concession would have
contradicted its organizational purpose, everything it argued to
the Commission during administrative proceedings, and
everything its members have told us in the standing affidavits
attached to its briefs.
Because the court has imposed a far more constricted
version of the zone-of-interests test than Supreme Court
precedent allows and this court has applied, I respectfully
dissent from the holding that petitioner does not have a cause of
action under the Clean Water Act or NEPA.
8
II.
Petitioner contends that the Commission’s decision granting
a conditional certificate of public convenience and necessity
violated the Clean Water Act and NEPA. Neither challenge is
persuasive.
A.
Petitioner challenges the Commission’s conditional
certification of the pipeline project as a violation of the
requirement in the Clean Water Act that federal agencies must
obtain approval from state regulators before approving projects
that might impact water quality.
Under section 401(a)(1) of the Clean Water Act, before a
federal agency can issue a “license or permit to conduct any
activity including, but not limited to, the construction or
operation of facilities, which may result in any discharge into
the navigable waters,” it must receive “a certification from the
State in which the discharge originates or will originate . . . that
any such discharge will comply” with the state’s water quality
standards. 33 U.S.C. § 1341(a)(1). “No license or permit shall
be granted until the certification required by this section has
been obtained or has been waived.” Id.
The Commission characterizes the challenged conditional
approval as an exercise of its authority under the Natural Gas
Act to impose conditions on a certificate of public convenience
and necessity, see 15 U.S.C. § 717f(e).2 But the Commission
has not suggested that its conditioning authority relieves it of the
2
15 U.S.C. § 717f(e) provides: “The Commission shall have
the power to attach to the issuance of the certificate and to the exercise
of the rights granted thereunder such reasonable terms and conditions
as the public convenience and necessity may require.”
9
need to comply with other federal statutes. To the contrary: The
challenged certificate includes a specific condition that before
construction could be authorized the pipeline owner must file
documentation showing “it has received all applicable
authorizations required under federal law (or evidence of waiver
thereof).” Certif. Order ¶ 8. The question presented by
petitioner, then, is not whether the Commission’s action was
permitted by the Natural Gas Act, but rather whether its action
was prohibited by the Clean Water Act.
The plain text of the Clean Water Act does not appear to
prohibit the kind of conditional certificate the Commission
issued here. On its face, section 401(a)(1) does not prohibit all
“license[s] or permit[s]” issued without state certification, only
those that allow the licensee or permittee “to conduct any
activity . . . which may result in any discharge into the navigable
waters.” 33 U.S.C. § 1341(a)(1). Petitioner has 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. In fact, the
Commission issued that Notice after the State of Maryland
issued its Clean Water Act certification approving the pipeline
project. The Commission’s conditional certificate thus
preserved the State’s “power to block the project” under
§ 401(a). City of Tacoma v. FERC, 460 F.3d 53, 67 (D.C. Cir.
2006).
This court has upheld conditional permitting in similar
circumstances. In City of Grapevine v. Department of
Transportation, 17 F.3d 1502, 1508–09 (D.C. Cir. 1994), the
court considered whether the Federal Aviation Administration
(“FAA”) could approve the construction of a runway
conditioned on the successful completion of the review process
required by the National Historic Preservation Act. That Act
provided that “prior to the approval of the expenditure of any
10
Federal funds on” a project that might impact an historic place,
the agency had to consult with the Advisory Council on Historic
Preservation and with state historic preservation officials. Id. at
1509 (quotation marks omitted). The court held that the FAA’s
conditional approval did not violate the Act because the FAA
“did not ‘approv[e] the expenditure of any Federal funds’ for the
runway,” id. at 1509 (quoting 16 U.S.C. § 470f), which is all
that the Act prohibited prior to consultation. Echoing the
circumstances here, the court explained that if the regulated
party “commits its own resources” to the project before the
condition is satisfied, “then it does so at the risk of losing its
investment” should the project ultimately not go forward. Id. at
1509. Similarly, in Public Utilities Commission of California v.
FERC, 900 F.2d 269, 282 (D.C. Cir. 1990), the court held that
the Commission had not violated NEPA by issuing a certificate
conditioned upon the completion of the environmental analysis.
The cases on which petitioner relies are inapposite because
they do not involve certificates conditioned on state approval.
Petitioner points to PUD No. 1 of Jefferson County v.
Washington Department of Ecology, 511 U.S. 700 (1994), in
which the Supreme Court noted that Ҥ 401 of the [Clean Water]
Act requires States to provide a water quality certification before
a federal license or permit can be issued for activities that may
result in any discharge into intrastate navigable waters.” Id. at
707 (emphasis added). Exactly so: State certification is
necessary before the Commission authorizes “activities that may
result in any discharge into intrastate navigable waters.” Id.
The discussion in PUD No. 1 on which petitioner relies merely
summarizes the language of the Act; it does not suggest that the
section 401(a)(1) prohibition might also reach activities that do
not have any impact on intrastate navigable waters. As the
Court stated in PUD No. 1, “[s]ection 401(a)(1) identifies the
category of activities subject to certification — namely, those
with discharges.” Id. at 711–12.
 11
Similarly, in City of Tacoma, 460 F.3d 53, this court
addressed a different question: whether the Commission had to
determine that the state certification was in fact “the certification
required by [section 401(a)(1)].” 33 U.S.C. § 1341(a)(1); see
City of Tacoma, 460 F.3d at 67–68. In that context, the court
summarized section 401’s requirement by stating that “without
that certification, FERC lacks authority to issue a license.” Id.
at 68. First, the court had no occasion to address what kind of
“license” might comply with the Clean Water Act in different
circumstances; the Commission’s license in that case had not
been conditional on state certification because the state had
already issued what the Commission believed to be a valid
certification. See id. at 67. Second, the court’s description is
consistent with the plain text of section 401(a)(1): the
Commission “lacks authority to issue a license” to conduct
activities affecting intrastate navigable waters. Id. at 67–68.
But that does not mean it also lacks authority to issue other
kinds of licenses; petitioner offers no reason to conclude the
Clean Water Act applies to all manner of regulated activities that
do not affect water quality.
B.
With regard to NEPA, petitioner challenges the adequacy of
the Commission’s Environmental Assessment, based on the
Commission’s reliance on other agencies’ environmental
analyses in determining that an Environmental Impact Statement
was unnecessary. See 42 U.S.C. § 4332(2)(C); 40 C.F.R.
§ 1508.9. But where this court has rejected an agency’s reliance
on other entities’ environmental analyses, see Idaho v. ICC, 35
F.3d 585 (D.C. Cir. 1994); Calvert Cliffs’ Coordinating Comm.
v. Atomic Energy Com’n, 449 F.2d 1109 (D.C. Cir. 1971), the
agency had failed to undertake any analysis of its own. That is
not the case here.
12
The Commission prepared a detailed Environmental
Assessment with specific and responsive discussions of issues
raised at public meetings and in written submissions, applying
its own observations and reasoning and explaining mitigating
steps that the pipeline owner would be required to take to
minimize the identified environmental impacts. The
Commission’s mention of other agencies’ certification processes
reflects a heathy appreciation of relevant views, not an
abdication of its own responsibilities or a negation of the
remainder of its own environmental analysis. Petitioner thus
fails to identify the fatal type of abdication that the court
disapproved in Idaho and Calvert Cliffs.
C.
Whether the Commission’s conditional certificate allowed
for the immediate exercise of eminent domain is not entirely
clear. The Natural Gas Act allows the use of eminent domain
pursuant to a certificate that authorizes “the construction or
extension of [] facilities,” 15 U.S.C. § 717f(c)(1)(A); see id.
§ 717f(e). The initial certificate issued by the Commission here
did not authorize any construction. Must the “holder of a
certificate of public convenience and necessity” described in the
eminent domain provision, see id. § 717f(h), be a holder of the
type of certificate described in § 717f(c) — that is, one who is
authorized to begin construction, extension, or operation of
facilities? If permitting eminent domain did not require the
approval of construction, then the Commission could authorize
the use of eminent domain for projects that are ultimately
rejected by the State under the Clean Water Act. Petitioner has
not presented a challenge stemming from any violation of the
Natural Gas Act, see Reply Br. 3, 14 n.7, and so resolution of
this question is for another day. See also Op. 4 n.*.
Accordingly, although I part from the court’s conclusion
that petitioner fails to come within the zones of interests of
13
NEPA and the Clean Water Act, I join the judgment denying the
petition.