No Gas Pipeline v. Federal Energy Regulatory Commission , 756 F.3d 764 ( 2014 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 19, 2014 Decided July 1, 2014
No. 12-1470
NO GAS PIPELINE,
PETITIONER
v.
FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT
STATOIL NATURAL GAS, LLC, ET AL.,
INTERVENORS
Consolidated with 12-1474, 12-1475
On Petitions for Review of Order of the
Federal Energy Regulatory Commission
John J. Zimmerman argued the cause for Environmental
Petitioners. With him on the briefs was Carolyn Elefant.
Jason T. Watson argued the cause and filed the briefs for
petitioner Jersey City. Derek S. Fanciullo entered an
appearance.
Jennifer S. Amerkhail, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. With her on the
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brief were David L. Morenoff, Acting General Counsel, and
Robert H. Solomon, Solicitor.
John P. Elwood argued the cause for intervenors. With him
on the brief were Anita R. Wilson, Andrew N. Beach, Jeremy C.
Marwell, Steven E. Hellman, Kirstin E. Gibbs, Christopher M.
Heywood, Peter P. Garam, and Shira R. Rosenblatt.
Before: HENDERSON and GRIFFITH, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
SENTELLE.
SENTELLE, Senior Circuit Judge: The Federal Energy
Regulatory Commission (“FERC”) entered an order granting a
certificate of public convenience and necessity for the
construction of a natural gas pipeline connecting New York and
New Jersey (“NJ-NY Project” or “Project”). The city of Jersey
City and a coalition of environmental groups filed separate
petitions for review on differing grounds. For the reasons set
forth below, we conclude that we do not have jurisdiction over
any of the petitions, and we will therefore dismiss all without
reaching the merits of any.
BACKGROUND
The Natural Gas Act (“NGA”) requires entities seeking to
construct natural gas facilities to obtain a certificate of public
convenience and necessity from FERC. 15 U.S.C.
§ 717f(c)(1)(A). In the proceeding under review, the
Commission granted such a certificate to two subsidiaries of
Spectra Energy Corporation, Texas Eastern Transmission, LP
and Algonquin Gas Transmission, LLC (collectively “Spectra”),
to expand its existing natural gas transportation pipeline in
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Connecticut and New Jersey, and to extend a new pipeline from
New Jersey into lower Manhattan in New York. See Tex. E.
Transmission, LP, 139 FERC ¶ 61,138 P.7 (2012).
Three environmentalist groups, NO Gas Pipeline, Sierra
Club, and Food & Water Watch (collectively “environmental
petitioners”), filed two petitions for review of the order, alleging
that FERC did not comply with the National Environmental
Policy Act, 42 U.S.C. § 4321 et seq., in the proceedings and
grant of the certificate. The city of Jersey City filed a separate
petition for review, arguing that FERC could not constitutionally
conduct the proceedings and grant the order because its financial
structure created “possible temptation” to be biased in favor of
pipeline companies, and also, that FERC exercised actual bias
in violation of “either Due Process or the APA.” Jersey City Br.
at 2. None of the petitions brings the order for review within the
jurisdiction of this court. The environmental petitioners lack
standing, and the petition of Jersey City raises questions not
preserved in the administrative proceedings.
In addition to the NGA requirement that entities seeking to
construct natural gas facilities obtain a certificate of public
convenience and necessity from FERC, the NEPA imposes
requirements on agencies such as FERC to prepare
environmental impact statements in compliance with the Act.
42 U.S.C. § 4321 et seq. In processing the application of
Spectra, FERC issued a draft environmental impact statement
(“DEIS”) on September 9, 2011, and a final environmental
impact statement (“FEIS”) on March 16, 2012. In the course of
the environmental review, FERC received hundreds of
comments, including expressions of concerns over the level of
radon present in natural gas and radon’s effect on indoor air
quality. The Commission responded to these concerns,
ultimately concluding that radon from home use of natural gas
was not likely to pose a hazard, and citing factors which in
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FERC’s view would reduce radon in natural gas.
FERC approved the project on May 21, 2012.
Environmental petitioners had moved to intervene on
January 26, 2011, and filed their concerns about the radon and
also about the possibility of cyber attacks on Spectra’s computer
systems, which they believed could result in explosions. After
the March 16, 2012, release of the FEIS, environmental
petitioners moved to supplement the record with a study
regarding radon from Marcellus Shale gas. Spectra requested
leave to respond on the radon issue and did so with a substantive
response and two additional radon studies. On May 21, 2012,
FERC issued its order granting the certificates of convenience
and necessity. See 139 FERC ¶ 61,138. In the order granting
the certificates, FERC addressed the radon issue and made
specific reference to the Marcellus Shale gas, noting that the
proposed pipeline expansion “is not designed to serve as a
gathering system for gas from Marcellus Shale.” Id. at P.73.
Petitioners sought rehearing. On October 18, 2012, FERC
entered its order denying rehearing. 141 FERC ¶ 61,043. In the
rehearing order, FERC addressed the newly submitted radon
studies, id. at P.49-56, and the environmental petitioners’
comments concerning the risk of cyber attack on Spectra’s
control systems, id. at P.60-65. The environmental groups filed
their current petitions for review.
STANDING
We will not reach the merits of environmental petitioners’
claims, because we have no jurisdiction to do so. It is
fundamental to federal jurisprudence that Article III courts such
as ours are courts of limited jurisdiction. Therefore, “we must
examine our authority to hear a case before we can determine
the merits.” Wyo. Outdoor Council v. U.S. Forest Serv., 165
F.3d 43, 47 (D.C. Cir. 1999) (citing Steel Co. v. Citizens for a
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Better Env’t, 523 U.S. 83 (1998)). In order for us to have
jurisdiction over a case or controversy, the party bringing the
claim bears the burden of establishing that it has standing. See,
e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
The “irreducible constitutional minimum of standing contains
three elements.” Id. at 560. These elements require that the
plaintiffs must have suffered first an “injury in fact”; second, the
injury must be “fairly traceable to the challenged action of the
defendant”; and third, the injury must be redressable by a
favorable decision in the litigation. Id. at 560-61 (internal
punctuation and citations omitted). Environmental petitioners’
claims founder on at least the first two of the required elements.
These petitioners seek to proceed under associational
standing. To establish Article III standing as an association, at
least one member must meet the three elements set forth in
Lujan. First, the member or members must have suffered an
“injury in fact”—that is, “an invasion of a legally protected
interest which is (a) concrete and particularized . . . and (b)
actual or imminent, not conjectural or hypothetical.” Id. at 560
(quotations omitted). Petitioners have provided the court with
affidavits demonstrating the reasons why their members object
to the pipeline, but nothing in the affidavits establishes an injury
in fact satisfying the constitutional minimum set forth in Lujan.
Environmental petitioners, or at least some of them, submit
declarations attesting that their members are “injured by the
certainty that radon levels in the residences will increase once
gas from sources that have higher radon levels . . . than currently
supplied gas begins to flow through [the proposed] pipelines into
their homes.” Env. Pets. Br. at 13 (emphasis added). This will
not carry petitioners’ burden of establishing standing. In order
to establish injury in fact, claimants must demonstrate
“concrete” injury. See, e.g., Occidental Permian Ltd. v. FERC,
673 F.3d 1024, 1026 (D.C. Cir. 2012). The “irreducible
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constitutional minimum” referenced in Lujan requires the
showing of “a concrete injury that has either transpired or is
‘imminent.’” Id. A “conjectural or hypothetical” injury is not
sufficient. See Lujan, 504 U.S. at 560.
The affidavits from petitioners’ members express concerns
over injuries that have neither occurred nor become imminent.
The increased risk to their health is something that may occur if
the pipeline or the pipeline suppliers tap into gas that has more
radon than the current mix; nothing occurs to alleviate any
increased radon in that case; the radon does not become diluted
by mixing with other gas; and the radon in fact reaches and
permeates their homes. Like the injuries claimed in Occidental
Permian, these concerns are “far too speculative to represent a
concrete injury” establishing standing. 673 F.3d at 1026
(internal quotation marks omitted).
Neither do petitioners’ declarations carry their burden with
respect to the second element of standing: causation. Causation
requires that the injury “be fairly traceable to the challenged
action of the defendant and not the result of the independent
action of some third party not before the court.” Lujan, 504 U.S.
at 560 (internal punctuation and citations omitted). For the
speculative injuries to occur here, the producers and transporters
of the gas would need to have chosen high radon shale gas as the
sole or predominant source of the gas transported by the project,
then transported and delivered the gas without in some fashion
diluting or processing it so as to reduce the radon content to
something approaching that of the gas petitioners are presently
receiving. Then, and only then, would the projected injury
become imminent, and possibly occur. Again, petitioners have
failed in carrying their burden of establishing standing. We will
not reach the merits of their radon-based claim, as we do not
have jurisdiction.
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Likewise, we lack jurisdiction over petitioners’ claims of
potential harm from the safety of the pipeline operations, and
specifically, the danger of cyber terrorism. Without rehashing
the requirements for establishing constitutional standing set
forth in the discussion of the radon claims, we note that the same
infirmities exist with respect to the second set of claims. There
is no showing that any such danger is either actual or imminent.
There is no showing that it could occur without the intervening
acts of third parties.
JERSEY CITY’S PETITION
Jersey City brings a claim more fundamental than that of
petitioners. We might also describe it as novel, and even
creative. Briefly put, the City contends that FERC cannot
constitutionally regulate the pipeline industry. In more detail,
Jersey City reasons that due process “requires fair adjudicative
proceedings before neutral and detached decisionmakers.”
Jersey City Br. at 14 (citing Ward v. Vill. of Monroeville, 409
U.S. 57, 59-60 (1972)). Thus, petitioner argues, the Constitution
mandates adjudicative proceedings free from actual bias, and the
appearance of bias. Id. (citing In re Murchison, 349 U.S. 133,
136 (1955)). Jersey City then analyzes the financial structure of
FERC and notes that under the applicable statutory scheme,
FERC receives its funding from the pipeline industry, not from
the taxpayers. Thus, Jersey City reasons, FERC is beholden to
the pipelines applying to it for certificates, and may not
constitutionally adjudicate their application.
Once again, we cannot consider the merits of the petition,
as we have no jurisdiction. This is true for multiple reasons.
First, Jersey City asserts that we have jurisdiction under the
Natural Gas Act, 15 U.S.C. § 717r(b). That section provides
that any party “aggrieved by an order issued by the Commission
[in a proceeding under this chapter] may obtain a review of such
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order” in this court. But petitioner’s claim does not come within
the jurisdictional grounds of this statute. Although petitioner
claims to be an aggrieved party, it has not demonstrated how it
has been injured and indeed does not challenge any part of
FERC’s ruling either as to its reasoning, its findings, or any
decision in the administrative proceeding. The petition simply
does not meet the parameters of 15 U.S.C. § 717r(b). Jersey
City is not actually seeking review of the order.
Insofar as Jersey City sets forth a statutory quarrel, its
complaint is against the Budget Act and the financial structure
that it creates. It is that provision that sets forth the funding of
the Commission by assessments, not the Natural Gas Act, and
certainly not the order which Jersey City purports to bring
before us. Jersey City’s claims do not come within the
jurisdictional grant of § 717r(b).
We do not have original jurisdiction over claims arising
from the Budget Act. We have never seen a claim directly
parallel to the one asserted by Jersey City, but we have observed
in other contexts that “[i]nitial review occurs at the appellate
level only when a direct-review statute specifically gives the
court of appeals subject-matter jurisdiction to directly review
agency action.” Watts v. SEC, 482 F.3d 501, 505 (D.C. Cir.
2007). As we observed in Watts, “Congress is free to ‘choose
the court in which judicial review of agency decisions may
occur.’” Id. (quoting Five Flags Pipe Line Co. v. Dep’t of
Transp., 854 F.2d 1438, 1439 (D.C. Cir. 1988)). As we further
observed in Watts, “[b]ecause district courts have general
federal question jurisdiction under 28 U.S.C. § 1331, the
‘normal default rule’ is that ‘persons seeking review of agency
action go first to district court rather than to a court of appeals.’”
Id. at 505 (quoting Int’l Bhd. of Teamsters v. Pena, 17 F.3d
1478, 1481 (D.C. Cir. 1994)). There is no statute that takes this
petition outside that normal rule. The NGA gives us jurisdiction
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to review orders in proceedings under that Act, not claims
unanchored in pipeline proceedings but arising under the Budget
Act. We have no jurisdiction.
With respect to this conclusion, we stress the narrowness of
our jurisdictional holding. The precise direct-review statute at
issue in this case allows a party aggrieved by a FERC order
issued under the Natural Gas Act to “obtain a review of such
order.” 15 U.S.C. § 717r(b) (emphasis added). Here, however,
Jersey City does not target any aspect of FERC’s actual decision
and there is no claim properly before us that the process that
produced the decision was tainted by actual bias or some other
improper motivation. Instead, the City’s claim centers wholly
on another statute (the Budget Act), which lacks a direct-review
provision. Furthermore, the nature of the precise claim raised by
Jersey City—a constitutional challenge to FERC’s funding
structure—potentially implicates factual issues not explored in
the record (e.g., the extent to which FERC’s financial needs will
increase with time and the ability of existing pipeline companies
to absorb these costs and remain profitable) because the claim
is so tangential to the substance of the order. This prospect
further counsels against reading 15 U.S.C. § 717r(b) as granting
us jurisdiction over Jersey City’s claim because, as Congress
must surely be aware, this court, unlike the district court, is not
well equipped to make factual determinations. See Doe v. Gen.
Hosp. of Dist. of Columbia, 434 F.2d 427, 432 (D.C. Cir. 1970).
Thus, given this unique set of circumstances, and with the
understanding that this opinion leaves intact our existing
precedent, see, e.g., AirLine Pilots Ass’n v. CAB, 750 F.2d 81
(D.C. Cir. 1984), as it must, see United States v. Carson, 455
F.3d 336, 384 n.43 (D.C. Cir. 2006) (per curiam) (“[W]e are, of
course, bound to follow circuit precedent absent contrary
authority from an en banc court or the Supreme Court.”), we
conclude that we lack jurisdiction.
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Again, lest we overlook anything which we should address,
we note that Jersey City has made no real attempt to
demonstrate standing. We further note that while Jersey City
asserts that there is actual bias and not merely an appearance, it
provides no foundation upon which we could review that claim.
Its only asserted basis for the actual bias is that FERC has
consistently granted applications from pipelines. This adds
nothing to the strength of an otherwise unsupported claim.
Presumably under most regulatory schemes, by the time
applicants and their expert counsel have worked through
changes, adaptations, and amendments, they are not likely to
pursue many certificates that are hopeless. The fact that they
generally succeed in choosing to expend their resources on
applications that serve their own financial interests does not
mean that an agency which recognizes merit in such applications
is biased.
We finally note that Jersey City’s alleged constitutional
claim of actual bias is also barred as untimely. Jersey City has
shown us nothing of record to establish that it raised this issue
before FERC’s issuance of the initial order. FERC regularly
rejects requests for rehearing that raise issues not previously
presented where there is no showing that the issue is “based on
matters not available for consideration . . . at the time of the
final decision.” 18 C.F.R. § 385.713(c)(3); see also Rehearing
Order P.19 and nn.29-30. As we have noted in the context of a
different agency, a disqualification request in a petition for
reconsideration to the agency comes too late. Lead Indus. Ass’n,
Inc. v. EPA, 647 F.2d 1130, 1174 (D.C. Cir. 1980) (“[A] litigant
who neglect[s] to present his constitutional claim to the
administrative agency in timely fashion [may] be precluded
from raising it before the reviewing court.”). For all the reasons
set forth above, Jersey City’s petition will also be dismissed for
lack of jurisdiction.
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CONCLUSION
In short, the petitions are dismissed.