City of Oberlin, Ohio v. FERC ( 2022 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 21, 2022 Decided July 8, 2022
No. 20-1492
CITY OF OBERLIN, OHIO,
PETITIONER
v.
FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT
NEXUS GAS TRANSMISSION, LLC,
INTERVENOR
On Petition for Review of Orders of the
Federal Energy Regulatory Commission
Carolyn Elefant argued the cause and filed the briefs for
petitioner.
David Bookbinder, Megan C. Gibson, and Ciara Malone
were on the brief for amici curiae Landowners in support of
petitioner.
Carol J. Banta, Senior Attorney, Federal Energy
Regulatory Commission, argued the cause for respondent.
2
With her on the brief were Matthew R. Christiansen, General
Counsel, and Robert H. Solomon, Solicitor.
David A. Super argued the cause for intervenor NEXUS
Gas Transmission, LLC. With him on the brief was Britt Cass
Steckman.
Before: ROGERS and RAO, Circuit Judges, and SENTELLE,
Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge RAO.*
RAO, Circuit Judge: This case concerns whether the
Federal Energy Regulatory Commission (“FERC” or “the
Commission”) properly granted NEXUS Gas Transmission,
LLC (“Nexus”) a certificate of public convenience and
necessity to construct and operate a natural gas pipeline from
Ohio to Michigan. After FERC granted Nexus the certificate,
the City of Oberlin (“City”) petitioned for review claiming,
among other things, that FERC did not adequately justify its
reliance on agreements to transport gas ultimately bound for
export to Canada as evidence of need for the pipeline. See City
of Oberlin v. FERC (“Oberlin I”), 937 F.3d 599, 606 (D.C. Cir.
2019). We agreed that FERC had not explained why
considering these agreements was lawful and remanded
without vacatur for FERC to justify its decision. See id. at 606–
07, 611.
On remand, FERC explained its decision. FERC also
clarified that it would have granted the certificate even without
considering the export agreements. The City again petitions for
review, contending that FERC’s explanations were arbitrary
*
Senior Circuit Judge SENTELLE concurs in the judgment and joins
the opinion only to the extent that it expresses the alternative
explanation set forth in Section IV.
3
and capricious or contrary to law and that its decision violates
the Takings Clause. We disagree. FERC’s justification for
considering the agreements to transport gas bound for export is
well reasoned and comports with both the Natural Gas Act and
the Takings Clause. FERC’s alternative explanation that it
would have granted Nexus a certificate even without
considering the export agreements also passes muster. We deny
the petition.
I.
A.
The Natural Gas Act authorizes FERC “to regulate the
transportation and sale of natural gas in interstate commerce.”
Oberlin I, 937 F.3d at 602. Section 7, the provision directly at
issue in this case, governs the construction and operation of
facilities used to transport or sell gas interstate. See 15 U.S.C.
§ 717f. Section 7 requires natural gas companies to receive a
certificate from FERC before constructing or operating such a
facility. Id. § 717f(c)(1)(A). Applications for a certificate are
granted or denied according to the standard laid out in Section
7(e). Id. § 717f(c)(1)(B). FERC grants a certificate only if the
proposed facility “is or will be required by the present or future
public convenience and necessity.” Id. § 717f(e). Determining
whether the proposed facility is or will be in the public
convenience and necessity “requires the Commission to
evaluate all factors bearing on the public interest.” Atl. Refining
Co. v. Pub. Serv. Comm’n of N.Y., 360 U.S. 378, 391 (1959).
Once a natural gas company has been issued a certificate, it can
exercise eminent domain as needed to secure property for
completing the project. 15 U.S.C. § 717f(h).
FERC has issued a policy statement outlining how it
determines whether a proposed pipeline is or will be in the
public convenience and necessity. See Certification of New
4
Interstate Nat. Gas Pipeline Facilities (“Certificate Policy
Statement”), 88 FERC ¶ 61,227 (Sept. 15, 1999), clarified, 90
FERC ¶ 61,128 (Feb. 9, 2000), further clarified, 92 FERC
¶ 61,094 (July 28, 2000). First, FERC determines “whether the
project can proceed without subsidies from [the company’s]
existing customers.” Certificate Policy Statement, 88 FERC at
61,745. If that threshold has been met, FERC balances adverse
effects that cannot be eliminated against the public benefits of
the project, an exercise that “is essentially an economic test.”
Id. “Adverse effects may include increased rates for preexisting
customers, degradation in service, unfair competition, or
negative impact on the environment or landowners’ property,”
and “[p]ublic benefits may include ‘meeting unserved demand,
eliminating bottlenecks, access to new supplies, lower costs to
consumers, providing new interconnects that improve the
interstate grid, providing competitive alternatives, increasing
electric reliability, or advancing clean air objectives.’”
Myersville Citizens for a Rural Cmty., Inc. v. FERC, 783 F.3d
1301, 1309 (D.C. Cir. 2015) (quoting Certificate Policy
Statement, 88 FERC at 61,748). A common method for
applicants to demonstrate a public benefit is by showing
demand for the project with precedent agreements, long-term
contracts with shippers who would use the pipeline to transport
natural gas. See Env’t Def. Fund v. FERC, 2 F.4th 953, 962
(D.C. Cir. 2021) (citing Certificate Policy Statement, 88 FERC
at 61,748–49), cert. denied, 142 S. Ct. 1668 (2022).
Section 7 applies only to “natural gas companies,” defined
as persons “engaged in the transportation [or sale] of natural
gas in interstate commerce,” which is in turn defined as
“commerce between any point in a State and any point outside
thereof … but only insofar as such commerce takes place
within the United States.” 15 U.S.C. § 717a(6)–(7). By
defining interstate commerce to exclude foreign commerce, the
Natural Gas Act excludes companies that import and export
5
gas, but otherwise operate entirely intrastate, from the
definition of “natural gas company.” See Border Pipe Line Co.
v. Fed. Power Comm’n, 171 F.2d 149, 151 (D.C. Cir. 1948).
Import/export facilities are instead governed by Section 3 of
the Natural Gas Act, 15 U.S.C. § 717b.1 Section 3, unlike
Section 7, does not authorize the use of eminent domain to
construct approved facilities.
In addition to governing facilities used to import or export
natural gas, Section 3 governs the imports and exports. All
persons must get the Secretary of Energy’s approval before
importing or exporting any natural gas.2 15 U.S.C. § 717b(a).
1
Most import/export facilities meet the statutory definition of
liquefied natural gas (“LNG”) terminals and are thus directly
governed by Section 3. See 15 U.S.C. §§ 717a(11) (defining LNG
terminal), 717b(e) (requiring FERC’s approval for the construction
of LNG terminals). Gas can also be traded across the American-
Mexican and American-Canadian borders with a pipeline, obviating
the need for an LNG terminal. Such border-crossing pipelines are not
mentioned in the Natural Gas Act. Nevertheless, a series of
Executive Orders and FERC regulations have made border-crossing
pipelines subject to the same standards as LNG terminals. See Exec.
Order No. 10,485, 18 Fed. Reg. 5,397 (Sept. 9, 1953) (asserting that
“executive permission” is required to construct facilities at the border
used to export and import natural gas in order to ensure “the proper
conduct of the foreign relations of the United States”); 18 C.F.R.
§§ 153.5(b), 153.15(b) (requiring any person applying for either
authorization to construct an LNG terminal or authorization to
construct a border-crossing pipeline to apply for the other
authorization as well).
2
The Secretary of Energy has delegated jurisdiction over the
construction of border-crossing facilities to FERC and has separately
delegated the authority to approve imports and exports to the
Assistant Secretary of Energy for Fossil Energy. Sierra Club v.
FERC, 827 F.3d 59, 63 (D.C. Cir. 2016).
6
Congress has provided that the import or export of gas to or
from “a nation with which there is in effect a free trade
agreement requiring national treatment for trade in natural
gas[] shall be deemed to be consistent with the public interest.”
Id. § 717b(c). Because the Secretary “shall issue” an order
authorizing the proposed exportation or importation unless it
finds it “will not be consistent with the public interest,” the
Secretary must authorize the import or export of gas to a nation
with which the United States has a free trade agreement. Id.
§ 717b(a).
B.
The facts of the City’s dispute with Nexus are fully
recounted in our earlier decision. See Oberlin I, 937 F.3d at
603. Nexus filed an application for a certificate of public
convenience and necessity so that it could build and operate a
natural gas pipeline from Ohio to Michigan, along with four
compressor stations along the pipeline’s route. Nexus also
sought permission to lease capacity from existing pipelines in
the Appalachian Basin—where much of the transported gas
would be sourced—and from existing pipelines in Michigan to
connect the Nexus Project to the Dawn Hub, where gas is
traded across the American-Canadian border. Nexus secured
eight precedent agreements accounting for 59% of the
pipeline’s total capacity. Two of those precedent agreements,
accounting for 17% of the pipeline’s total capacity, were with
Canadian companies that serve customers in Canada.
FERC granted Nexus the certificate, finding that the
benefits of the project outweighed any adverse effects. See
Nexus Gas Transmission, LLC, 160 FERC ¶ 61,022 (Aug. 25,
2017) [Certificate Order]. On the benefits side, FERC credited
all of the precedent agreements, including those for the export
of gas to Canada, as evidence of market demand and found that
7
without the Nexus Project, existing pipelines had insufficient
capacity to provide the service contemplated by the Nexus
Project. Id. PP 40–41. FERC found that Nexus had mitigated
adverse effects by incorporating route variations and that “there
[was] no evidence that downsizing the project to accommodate
only the currently-subscribed level of service would result in
any significant reductions in the project’s impacts on
landowners and communities.” Id. P 37. Specifically, FERC
analyzed the alternative of a smaller pipeline sized to transport
the amount of gas contemplated by domestic and export
precedent agreements and concluded that doing so would only
very slightly reduce the amount of land the project required. Id.PP 43–45. FERC recognized that constructing a larger than
necessary pipeline would minimize the need for future
construction that would adversely affect landowners and the
environment, and decided that this benefit outweighed the
slightly mitigated impacts of a smaller pipeline. Id. P 46. FERC
concluded that “[b]ased on the benefits the project will provide
and the minimal adverse impacts on existing shippers, other
pipelines and their captive customers, and landowners and
surrounding communities, … the public convenience and
necessity requires approval of” the Nexus Project. Id. P 51.
On application for rehearing, the City argued that demand
to use the pipeline to transport gas bound for export could not
be considered in determining the public convenience and
necessity under Section 7. Nexus Gas Transmission, LLC, 164
FERC ¶ 61,054 at P 43 (July 25, 2018) [Rehearing Order].
FERC, in something of a non sequitur, responded by pointing
out that because much of the gas was bound for domestic
consumption, the pipeline had to be analyzed under Section 7.
Id. P 45.
The City petitioned for review, raising various objections
to FERC’s decision under the Administrative Procedure Act
8
(“APA”). We rejected most of its arguments. See Oberlin I, 937
F.3d at 605–11. We agreed, however, that “the Commission
never explained why it is lawful to credit demand for export
capacity in issuing a Section 7 certificate to an interstate
pipeline.” Id. at 606. And although the certificate could
theoretically have been granted even without crediting the
export precedent agreements as evidence of a public benefit,
we could not affirm on that basis because FERC had not
decided that it would do so. Id. at 607 n.3. We therefore
“remand[ed] to the Commission for further explanation of
why—under the Act, the Takings Clause, and the precedent of
this Court and the Supreme Court—it is lawful to credit
precedent agreements with foreign shippers serving foreign
customers toward a finding that an interstate pipeline is
required by the public convenience and necessity under Section
7 of the Act.” Id. at 607–08. We did not vacate FERC’s order
because we found “it plausible that the Commission will be
able to supply the explanations required, and vacatur of the
Commission’s orders would be quite disruptive, as the Nexus
pipeline is currently operational.” Id. at 611.
This brings us to FERC’s decision under review. On
remand, FERC elaborated on its reasoning for considering the
export precedent agreements in its decision to grant the
certificate. FERC explained that even though some of the gas
was bound for export, the facility was still a “pipeline
transporting gas in interstate commerce.” Nexus Gas
Transmission, LLC, 172 FERC ¶ 61,199 at P 16 (Sept. 3, 2020)
[Remand Order]. This distinguished the Nexus Project from
the pipeline at issue in Border Pipe Line Co., 171 F.2d at 151,
where the facility transporting gas bound for export was
entirely within one state. The Nexus Project met the interstate
commerce criteria, which did not evaporate simply because
FERC factored in the export precedent agreements. FERC
therefore concluded that the Nexus Project was properly
9
analyzed as a Section 7 facility, rather than as an export facility
under Section 3. Remand Order P 16.
FERC next explained why it credited the export precedent
agreements as evidence of the Nexus Project’s benefit in its
Section 7 analysis. FERC emphasized that in deciding whether
to grant a certificate under Section 7, it “must consider ‘all
factors bearing on the public interest,’” id. P 11 (quoting Atl.
Refining Co., 360 U.S. at 391), and that courts have already
approved FERC’s crediting precedent agreements as evidence
of a benefit, id. PP 8, 11 (citing Oberlin I, 937 F.3d at 605).
FERC gave three reasons why export precedent agreements
had “probative value” when assessing the public convenience
and necessity. Id. P 11. First, FERC reasoned that Congress has
determined that exports to free trade nations like Canada are
beneficial because Section 3 of the Natural Gas Act states that
such exports are per se consistent with the public interest. Id.
PP 12–14. Second, FERC described a series of domestic
benefits that precedent agreements demonstrate will result
from the pipeline, regardless of where the gas is ultimately
going to be consumed. Id. PP 17–18. Third, FERC explained
that the particular export precedent agreements at issue
demonstrated need for additional capacity to transport gas to
the Dawn Hub, and that having sufficient capacity to transport
gas to the Dawn Hub served domestic interests. Id. PP 19–20.
Finally, FERC decided that considering the export precedent
agreements did not render granting the certificate violative of
Takings Clause. Id. PP 22–23. The City again petitioned for
review.
II.
We must set aside FERC’s order “if it is arbitrary and
capricious or otherwise contrary to law.” Oberlin I, 937 F.3d at
605. We remanded for FERC to explain why it was lawful to
10
credit precedent agreements to transport gas bound for export
as a benefit under Section 7. Its explanation is rational and
comports with the Natural Gas Act.
The City proffers two reasons why FERC’s crediting of
export precedent agreements was unlawful. First, the City
maintains that FERC can only consider exports when
authorizing export facilities under Section 3, and thus could not
approve the Nexus Project under Section 7 while considering
the export precedent agreements. Second, the City asserts that
FERC’s justifications for crediting the export precedent
agreements were arbitrary and capricious. Neither objection is
convincing.
A.
The City argues that FERC’s decision was contrary to law
because gas bound for export is not in interstate commerce, and
thus cannot be considered when deciding whether to grant a
Section 7 certificate. Instead, if exports are to be considered,
the City suggests, the project must be analyzed as an export
facility under Section 3.
The question concerns the scope of FERC’s authority
under Section 7. Section 7 authorizes FERC to grant a
certificate to a “natural-gas company,” 15 U.S.C.
§ 717f(c)(1)(A), which is defined as “a person engaged in the
transportation of natural gas in interstate commerce, or the sale
in interstate commerce of such gas for resale,” id. § 717a(6)
(emphases added). The Act defines “interstate commerce” in a
way that excludes foreign commerce. See id. § 717a(7). Thus,
if a pipeline were engaged in foreign, but not interstate,
commerce, the applicant would not be a “natural-gas
company,” and therefore the pipeline would be outside FERC’s
11
Section 7 authority. See Border Pipe Line Co., 171 F.2d at 150–
52.
We agree with FERC’s decision to treat the Nexus Project
as a Section 7 pipeline, as opposed to a Section 3 export
facility, even though some of the gas transported in it will
ultimately be exported. Nexus is indisputably using its
proposed pipeline to transport gas in interstate commerce.
Nexus’s application included six precedent agreements to
transport gas from Pennsylvania and Ohio for sale across state
lines. See Certificate Order P 9. It is therefore a “natural-gas
company,” and FERC was therefore correct to analyze its
application under Section 7 even though some of the gas is
bound for export.
FERC’s inclusion of the export precedent agreements in
its Section 7 analysis did not change that. Nothing in Section 7
prohibits considering export precedent agreements in the
public convenience and necessity analysis. Section 7(e) directs
FERC to grant a certificate to construct a new pipeline
whenever the pipeline “is or will be required by the present or
future public convenience and necessity.” 15 U.S.C. § 717f(e).
And as the Supreme Court has explained, this broad language
“requires the Commission to evaluate all factors bearing on the
public interest.” Atl. Refining Co., 360 U.S. at 391.
The City asserts that the gas bound for export is not in
interstate commerce, rendering FERC’s decision to consider
the export precedent agreements contrary to law. But in the
Nexus Project the gas bound for export is commingled with the
gas bound for domestic, interstate use, and “gas commingled
with other gas indisputably flowing in interstate commerce
12
becomes itself interstate gas.” Okla. Nat. Gas Co. v. FERC, 28
F.3d 1281, 1285 (D.C. Cir. 1994).
FERC properly considered Nexus’ pipeline under Section
7 because the gas transported in the Nexus pipeline is
indisputably in interstate commerce.3 Moreover, FERC could
lawfully consider the export precedent agreements because an
assessment of the public convenience and necessity requires a
consideration of all the factors that might bear on the public
interest.
B.
The City also argues that FERC failed to reasonably justify
its decision to credit the export precedent agreements as
evidence of public convenience and necessity. We hold that
FERC’s consideration of export precedent agreements as part
of its Section 7 analysis was not only lawful, but also
adequately justified.
First, FERC relied on the congressional determination that
natural gas exports to countries with which the United States
has a free trade agreement are beneficial to the public. Remand
Order PP 12–14. Under Section 3(c) of the Natural Gas Act,
exports to nations with which the United States has a free trade
agreement for natural gas “shall be deemed to be consistent
with the public interest.” 15 U.S.C. § 717b(c). The precedent
agreements Nexus secured were to transport gas bound for
Canada, a nation with which the United States has a free trade
agreement for natural gas. Remand Order P 14. Exports to
Canada are therefore “in the public interest” under Section 3.
3
We need not, and do not, decide whether it is within FERC’s
Section 7 authority to grant a certificate for a pipeline that crosses
state lines but exclusively transports gas ultimately bound for export.
13
FERC reasoned that, in light of this policy, it was “appropriate
to credit contracts for transportation of gas” bound for Canada
as evidence of need in its Section 7 analysis. Id. In fact, FERC
decided that refusing to credit such precedent agreements
would “thwart[]” “Congress’ directive and intent, as expressed
in [S]ection 3.” Id. P 15. We would be hard pressed to conclude
that FERC’s reliance on a clear statutory directive was
unjustified.
The City objects that FERC’s analysis was tantamount to
deciding that a finding of “public interest” under Section 3 was
interchangeable with a finding of “public convenience and
necessity” under Section 7, in contravention of both Oberlin I
and the Natural Gas Act’s granting of eminent domain powers
under Section 7, but not Section 3. FERC was clear, however,
that a finding that exporting gas was “not inconsistent with the
public interest” under Section 3 was not “dispositive of the
question whether a pipeline proposed to transport that gas … is
required by the public convenience and necessity” under
Section 7. Id. Far from conflating the two standards, this means
that an application could be denied a Section 7 certificate
despite having export precedent agreements if the overall
benefits of the proposed pipeline failed to outweigh the overall
costs. FERC explained that its reliance on Section 3 only
justified giving “precedent agreements for the transportation of
gas destined for export the same weight … it gives to other
precedent agreements.” Id. The export precedent agreements
are simply one input into the assessment of present and future
public convenience and necessity.
Second, FERC explained that myriad domestic benefits
stem from increasing transportation services for gas shippers
regardless of where the gas is ultimately consumed. Id. P 17.
Specifically, FERC explained that Nexus’s proposed pipeline
would add “additional capacity to transport gas out of the
14
Appalachian Basin,” and that the precedent agreements were
evidence of need for the capacity provided by Nexus’s pipeline.
Id. P 18. FERC also found that agreements to transport gas on
Nexus’s pipeline would support the “production and sale of
domestic gas,” which “contributes to the growth of the
economy and supports domestic jobs” irrespective of whether
the gas ended up here or in Canada. Id. The fact that “a portion
of the gas is [bound] for export” does not diminish the benefits
that flow from the construction of the pipeline. Town of
Weymouth v. FERC, 2018 WL 6921213, at *1 (D.C. Cir. Dec.
27, 2018). FERC’s explanation of how the export precedent
agreements evidenced domestic benefits demonstrates “a
rational connection between the facts found and the choice
made.” United Airlines, Inc. v. FERC, 827 F.3d 122, 127 (D.C.
Cir. 2016) (cleaned up).
Third and finally, FERC decided that these particular
precedent agreements with Canadian shippers could be
considered as evidence that the Nexus Project was needed
because the agreements were to ship gas to the Dawn Hub.
Remand Order PP 19–20. Located in Ontario, the Dawn Hub
“serves as a liquid trading point where supplies move freely to
and from the United States and Canada.” Id. P 19. FERC
explained that U.S. gas transported to the Dawn Hub increased
the availability of gas that might be transported through Canada
and imported back into New York and New England,
demonstrating future domestic benefits of expanding pipeline
capacity. Id. Because the export precedent agreements
demonstrated that additional capacity to transport gas to the
Dawn Hub was needed, they were probative of the Nexus
Project’s overall benefits.
The City objects that this reason is arbitrary and capricious
because the precedent agreements at issue were with foreign
shippers who would deliver the gas for consumption in Canada,
15
not New York and New England. But FERC may consider the
future public convenience and necessity when granting a
certificate. See 15 U.S.C. § 717f(e) (allowing FERC to grant a
certificate when the facility “is or will be required by the
present or future public convenience and necessity”) (emphasis
added). In any event, FERC explained that having adequate
capacity to ship gas to the Dawn Hub had domestic benefits,
and that the export precedent agreements were evidence of the
public demand for additional capacity to transport gas from the
Appalachian Basin to the Dawn Hub. This is an “adequate
explanation of the agency’s decision.” Oberlin I, 937 F.3d at
605 (cleaned up).
We hold that FERC reasonably explained why it
considered Nexus’ export precedent agreements in granting a
certificate of public convenience and necessity under Section
7.
III.
In addition to its statutory arguments, the City maintains
that FERC’s crediting export precedent agreements as a benefit
runs afoul of the Takings Clause because a pipeline shipping
gas for export “does not serve a public use.” In its order on
remand, FERC decided there was no constitutional concern as
long as its Section 7 determination was properly made. Remand
Order P 23. We review that constitutional decision de novo.
See Nat’l Oilseed Processors Ass’n v. Occupational Safety &
Health Admin., 769 F.3d 1173, 1179 (D.C. Cir. 2014).
Under the Takings Clause, for the exercise of eminent
domain to be legitimate, the property must be seized for “public
use.” U.S. CONST. amend. V. The Supreme Court has held that
property taken for a “public purpose” qualifies. Kelo v. City of
New London, 545 U.S. 469, 480 (2005). And courts must look
to the legislature’s judgment about whether a taking is for a
16
public purpose. Id. “[S]o long as the taking is rationally related
to a conceivable public purpose,” it is constitutional. Nat’l R.R.
Passenger Corp. v. Bos. & Me. Corp., 503 U.S. 407, 422
(1992) (cleaned up).
Congress determined that natural gas pipelines that are
duly certified as being in the public convenience and necessity
serve a public purpose. See 15 U.S.C. § 717f(h) (granting
certificate-holding natural gas companies the federal eminent
domain power). We have already held that judgment is rational.
See Midcoast Interstate Transmission, Inc. v. FERC, 198 F.3d
960, 973 (D.C. Cir. 2000) (explaining that, since FERC
lawfully declared that a pipeline would “serve the public
convenience and necessity,” it “served a public purpose”). So
long as FERC’s crediting of export agreements is consistent
with the Natural Gas Act, it furthers a public purpose consistent
with the Takings Clause. Cf. id. (holding that because it was
“not improper for FERC to consider the desirability of
competition” under the Natural Gas Act, the consideration of
that factor did not violate the Takings Clause).
In Oberlin I, we found FERC’s Takings Clause
explanation wanting because it “beg[ged] the unanswered
question of whether … it is lawful for the Commission to credit
precedent agreements for export toward a finding that a
pipeline is required by the public convenience and necessity.”
937 F.3d at 607. Having now answered that question in the
affirmative, we hold FERC’s decision does not violate the
Takings Clause.
The City recycles its statutory argument that, by
considering export precedent agreements as a benefit, FERC
substituted a Section 3 “public interest” finding for a Section 7
“public convenience and necessity” finding, and that since
Section 3 does not authorize the use of eminent domain, that
17
conflation violated the Takings Clause. But as already
explained, FERC considered the export precedent agreements
as one of the many factors in determining the public
convenience and necessity, and thus did not conflate Sections
3 and 7. Its decision to grant Nexus the certificate under Section
7 was proper. The City also asserts that, by arguing that a
finding of public convenience and necessity under Section 7
satisfies the Takings Clause per se, FERC is putting itself
beyond the reach of the Fifth Amendment. But that is not so.
Rather, Congress has allowed FERC to determine when a
pipeline meets the public convenience and necessity standard,
and that determination is subject to judicial review.
IV.
We also uphold FERC’s alternative explanation that the
Nexus Project was in the public convenience and necessity
even discounting the precedent agreements with Canadian
companies.4 Remand Order PP 24–28. The domestic precedent
agreements evidenced a need for 42% of the Nexus Project’s
capacity, and FERC found that existing pipelines did not have
enough capacity to ship that amount of gas. Id. P 27. FERC
explained that, in light of the other benefits of the Nexus
Project and the small adverse impacts of the project, the need
demonstrated by the 42% subscription rate was enough to
justify the pipeline. Id.
Specifically, FERC found that the Nexus Project was
needed to alleviate a bottleneck in the capacity to transport gas
4
The City suggests that FERC’s justifying the certificate on this
ground was outside the scope of Oberlin I’s mandate. But “once
FERC reacquired jurisdiction, it had the discretion to reconsider the
whole of its original decision.” Se. Mich. Gas Co. v. FERC, 133 F.3d
34, 38 (D.C. Cir. 1998).
18
from the Appalachian Basin and to increase supply to
Midwestern markets. Id. P 25. FERC also explained that
building a pipeline with excess capacity would enhance the
pipeline grid for the future. Id. On the costs side of the ledger,
FERC decided that the adverse impacts of the Nexus project
were small because Nexus was able to acquire 93% of the land
it needed without resorting to eminent domain. Id. P 26. Taking
all that into account, FERC decided that the Nexus Project was
in the public convenience and necessity even excluding the
export precedent agreements. As part of that decision, FERC
considered but rejected the alternative of approving a pipeline
sized to transport 42% of the Nexus Project’s capacity—the
amount required by the domestic precedent agreements. Id.P 28 n.73. FERC explained that its initial analysis of a pipeline
59% of the size of the Nexus Project remained instructive. The
benefit of avoiding future pipeline construction, and the
resulting cost and environmental impacts, continued to
outweigh the small reduction in the burden on landowners that
a smaller pipeline would yield. Id.We find FERC’s independent and alternative reasons for
approving the pipeline without considering the export
precedent agreements to be reasonable. There is no floor on the
subscription rate needed for FERC to find a pipeline is or will
be in the public convenience and necessity. See Oberlin I, 937
F.3d at 605 (rejecting the City’s argument that that a 59%
subscription rate was too low to justify the Certificate). Instead,
FERC engages in a “flexible inquiry,” considering “a wide
variety of evidence to determine the public benefits of the
project.” Id. FERC concluded that existing pipelines could not
transport the amount of gas required by the domestic precedent
agreements; that finding, in combination with FERC’s
reasonable balancing of the Nexus Project’s other benefits and
adverse impacts, satisfies the APA.
19
The City launches a few objections at FERC’s analysis,
but none render the decision arbitrary and capricious. First, the
City contends that FERC did not identify which pipelines
FERC considered in determining that existing pipelines did not
have enough capacity to transport the gas the Nexus Pipeline
would move. But FERC identified the pipelines on remand in
precisely the same manner it did in its initial order—by looking
at “other pipeline compan[ies’] electronic bulletin boards.”
Compare Remand Order P 27, with Certificate Order P 40
n.29. Even assuming that is insufficient, the City did not
challenge this aspect of FERC’s order in Oberlin I and
therefore cannot do so now. Nw. Ind. Tel. Co. v. FCC, 872 F.2d
465, 470 (D.C. Cir. 1989) (“It is elementary that where an
argument could have been raised on an initial appeal, it is
inappropriate to consider that argument on a second appeal
following remand.”).
Second, the City complains FERC did not analyze a
hypothetical pipeline specifically sized to transport 42% of the
Nexus Project’s capacity. But given that FERC had analyzed a
pipeline sized to transport 59% of the Nexus Project’s capacity,
there was no need for FERC to start its analysis anew. FERC
had already found that shrinking the project would barely
reduce the amount of land that the project would require, and
that excess capacity could reduce the costs and disruption from
constructing additional pipelines in the future. Certificate
Order PP 42–45. FERC’s determination that this reasoning
applied to a pipeline sized for 42% of the Nexus Project’s
capacity was reasonable.5
5
The City’s other complaints about FERC’s reasoning are
insubstantial and we reject them without further discussion.
20
***
Because FERC’s explanation on remand from this court
was reasonable and because its decision comported with the
Natural Gas Act and the Takings Clause, we deny the City’s
petition.
So ordered.