Minisink Residents for Enviro. v. FERC

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 1, 2014 Decided August 15, 2014
No. 12-1481
MINISINK RESIDENTS FOR ENVIRONMENTAL PRESERVATION
AND SAFETY, ET AL.,
PETITIONERS
v.
FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT
MILLENNIUM PIPELINE COMPANY, L.L.C.,
INTERVENOR
Consolidated with 13-1018
On Petitions for Review of Orders of the
Federal Energy Regulatory Commission
Carolyn Elefant argued the cause and filed the briefs for
petitioners.
Karin L. Larson, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. With her on
the brief were David L. Morenoff, Acting General Counsel,
and Robert H. Solomon, Solicitor.
2
Aaron M. Streett argued the cause for intervenor. On the
brief were Joseph Koury and Ryan J. Collins.
Before: KAVANAUGH, MILLETT and WILKINS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge WILKINS.
WILKINS, Circuit Judge: Given the choice, almost no one
would want natural gas infrastructure built on their block.
“Build it elsewhere,” most would say. The sentiment is
understandable. But given our nation’s increasing demand for
natural gas (and other alternative energy sources), it is an
inescapable fact that such facilities must be built somewhere.
Decades ago, Congress decided to vest the Federal Energy
Regulatory Commission with responsibility for overseeing the
construction and expansion of interstate natural gas facilities.
And in carrying out that charge, sometimes the Commission is
faced with tough judgment calls as to where those facilities
can and should be sited. These petitions present one such
example.
In July 2012, the Commission approved a proposal for
the construction of a natural gas compressor station in the
Town of Minisink, New York. Many local residents, hoping
to thwart that result, banded together to fight the compressor
station’s development. They formed a group called “Minisink
Residents for Environmental Preservation and Safety”
(“MREPS”) and mounted a vigorous, but ultimately
unsuccessful, campaign opposing the project. Undeterred,
MREPS and several of its individual members now petition
for our intervention. In doing so, they mainly argue that the
Commission’s approval of the project was arbitrary and
capricious, particularly given the existence of a nearby
alternative site they insist is better than the Minisink locale
3
green-lighted by FERC. They also assail some of the
Commission’s procedural calls along the way. Though we
respect the concerns they raise, we conclude that, as a legal
matter, the Commission’s decisions were both reasonable and
reasonably explained. Consequently, we deny the petitions
for review.
I.
We begin with a quick overview of the regulatory
framework, before turning to the particulars of these petitions.
A.
Congress enacted the Natural Gas Act, ch. 556, 52 Stat.
821 (1938) (codified as amended at 15 U.S.C. §§ 717-717z),
with the principal aim of “encourag[ing] the orderly
development of plentiful supplies of . . . natural gas at
reasonable prices,” NAACP v. Fed. Power Comm’n, 425 U.S.
662, 669-70 (1976), and “protect[ing] consumers against
exploitation at the hands of natural gas companies,” Fed.
Power Comm’n v. Hope Natural Gas Co., 320 U.S. 591, 610
(1944). Along with those main objectives, there are also
several “‘subsidiary purposes’” behind the NGA’s passage,
“includ[ing] ‘conservation, environmental, and antitrust’
issues.” Pub. Utils. Comm’n of Cal. v. FERC, 900 F.2d 269,
281 (D.C. Cir. 1990) (quoting NAACP, 425 U.S. at 670 &
n.6).
The Act vests FERC with broad authority to regulate the
transportation and sale of natural gas in interstate commerce.
15 U.S.C. §§ 717b, 717c; see also Schneidewind v. ANR
Pipeline Co., 485 U.S. 293, 301 (1988) (“FERC exercises
authority over the rates and facilities of natural gas companies
used in [interstate] transportation and sale.”). To achieve this
4
objective, Congress equipped the Commission with a variety
of regulatory tools, one of which captures the focus of our
review today.
Under Section 7(c) of the Act, before an applicant can
construct or extend an interstate facility for the transportation
of natural gas, it must obtain a “certificate of public
convenience and necessity” from the Commission. 15 U.S.C.
§ 717f(c)(1)(A); Dominion Transmission, Inc. v. Summers,
723 F.3d 238, 240 (D.C. Cir. 2013). The statute provides that
a certificate “shall be issued to any qualified applicant” upon
a finding that “the applicant is able and willing properly to do
the acts and to perform the service proposed . . . and that the
proposed service” and “construction . . . is or will be required
by the present or future public convenience and necessity.”
15 U.S.C. § 717f(e). FERC may, in issuing such a certificate,
attach “such reasonable terms and conditions as the public
convenience and necessity may require.” Id.; Murray Energy
Corp. v. FERC, 629 F.3d 231, 234 (D.C. Cir. 2011).
The Commission has issued a policy statement outlining
the criteria it considers in reviewing such certificate
applications. Certification of New Interstate Natural Gas
Pipeline Facilities, 88 FERC ¶ 61,227 (Sept. 15, 1999),
clarified, 90 FERC ¶ 61,128 (Feb. 9, 2000), further clarified,
92 FERC ¶ 61,094 (July 28, 2000) (“Certificate Policy
Statement”). The Commission will first confirm “whether the
project can proceed without subsidies from the[] existing
[pipeline’s] customers.” Id., 88 FERC ¶ 61,227, at 61,745.
Then, it will “balanc[e] the public benefits against the adverse
effects of the project.” Id., 90 FERC ¶ 61,128, at 61,396.
FERC will approve a project only “where the public benefits
of the project outweigh the project’s adverse impacts.” Id.;
see also Fla. Gas Transmission Co. v. FERC, 604 F.3d 636,
649 (D.C. Cir. 2010) (Brown, J., concurring in part and
5
dissenting in part) (summarizing the factors examined under
FERC’s Certificate Policy Statement). 1
In conjunction with the certificating process, the
Commission must also complete an environmental review of
the proposed project, as mandated by the National
Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4370h.
E.g., Midcoast Interstate Transmission, Inc. v. FERC, 198
F.3d 960, 967 (D.C. Cir. 2000). Simply stated, the
Commission’s NEPA obligation requires that it “‘identify the
reasonable alternatives to the contemplated action’ and ‘look
hard at the environmental effects of [its] decision[].’” Id.
(quoting Corridor H Alternatives, Inc. v. Slater, 166 F.3d 368,
374 (D.C. Cir. 1999)) (alterations in original).
B.
For years, Millennium Pipeline Company
(“Millennium”) has owned and operated a natural gas pipeline
system extending across much of New York’s southern
border. In July 2011, seeking to expand its service capacity,
Millennium applied to the Commission for a certificate of
public convenience and necessity that would allow for the
1
The “public benefits” the Commission examines “could include,
among other things, 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.” Certificate Policy Statement, 90
FERC ¶ 61,128, at 61,396. On the other side of the scale, the
potential “adverse effects” the Commission will consider are “the
effects on existing customers of the applicant, the interests of
existing pipelines and their captive customers, and the interests of
landowners and the surrounding community, including
environmental impacts.” Id.
6
construction and operation of a natural gas compressor station
along its existing pipeline. Joint Appendix (“J.A.”) 304-19.
The proposed site for the project was located in the Town of
Minisink, New York.
As explained in its application to FERC, the aim of
Millennium’s project was twofold. First, the new station
would allow Millennium to increase natural gas deliveries to
its eastern interconnection by about 225,000 additional
dekatherms per day. Second, the compressor would enable
bi-directional gas flow on an existing segment of
Millennium’s pipeline. J.A. 305. The project’s footprint, as
proposed by Millennium, would consist of: (a) two 6,130-
horsepower natural gas-fired compressor units, to be housed
in a newly built structure; (b) an additional 1,090 feet of pipe
connecting the compressor station to the existing pipeline; (c)
and several ancillary facilities, including a new mainline
valve, an access driveway, a station control/auxiliary building,
intake and exhaust silencers, and a filter-separator with a
liquids tank. The compressor station was to be sited on a
small part of a much larger, 73.4-acre parcel—a parcel
acquired and owned by Millennium. See J.A. 305-07. We
refer to Millennium’s proposal as the “Minisink Project.”
Consistent with agency regulations, notice of the
proposed Minisink Project was published in the Federal
Register. See 76 Fed. Reg. 46,786 (Aug. 3, 2011). Around
the same time, the Commission issued a “Notice of Intent to
Prepare an Environmental Assessment,” which was sent to a
range of interested stakeholders, including lawmakers,
potentially affected landowners, and environmental and
public-interest groups. In the months following, Millennium
sponsored a community meeting at the Minisink Town Hall
so that those interested could learn more about the proposal
and voice their views. FERC also hosted its own meeting in
7
Minisink concerning the proposal. As might be expected, the
Minisink Project sparked its fair share of local interest; during
the review process, the Commission received hundreds of
verbal and written comments. See J.A. 8-9.
Most significantly for our purposes, several residents
urged Millennium and the Commission to pursue a nearby
alternative site for the compressor station—what came to be
known as the “Wagoner Alternative.” Under the Wagoner
Alternative, Millennium would construct a smaller, 5,100-
horsepower compressor station directly adjacent to its existing
Wagoner Meter Station, a site located along the pipeline about
seven miles northwest of Minisink. J.A. 10-11. This
alternative, its proponents insisted, was far better suited for
the project, in large part because it was less residentially
dense than the site proposed in Minisink. See, e.g., J.A. 347-
50. But it came with a catch: Its implementation would
require the replacement of a 7-mile segment of pipe along the
pipeline—a segment the parties call the “Neversink Segment”
due to its crossing of the Neversink River; according to
Millennium, no such upgrade would be required by the
Minisink Project. See J.A. 390-91. Reacting to commenters
who were pushing the Wagoner Alternative, FERC sent
notice to landowners within the vicinity of the Wagoner
Meter Station site and along the Neversink Segment, inviting
their input and comments on the concept. J.A. 372-74. The
Commission incorporated the feedback it received into its
review of Millennium’s proposal.
FERC released its Environmental Assessment (“EA”) for
the Minisink Project several months later. See J.A. 428-97.
Along with its detailed evaluation of the project’s likely
environmental impacts—on water resources, vegetation and
wildlife, air quality and noise, and more—the EA also
analyzed several alternatives to Millennium’s proposal,
8
including an in-depth comparison between the Minisink
Project and the Wagoner Alternative. J.A. 474-89. The EA
did identify some positive environmental upshots associated
with the Wagoner Alternative, see J.A. 484-89, but, on
balance, the assessment found that the Minisink Project was
environmentally preferable, due principally to the negative
environmental consequences that would flow from an upgrade
of the Neversink Segment, J.A. 489 (“[T]he greater
environmental issues and landowner impacts of replacing the
Neversink Segment cause us to conclude that the Wagoner
Alternative does not provide a significant environmental
advantage over the proposed project.”). Overall, the EA
concluded that, so long as Millennium implemented certain
mitigation measures, the Minisink Project was expected to
have no significant environmental impact. J.A 490-94.
After receiving and reviewing a slew of comments
concerning the EA, FERC ruled on Millennium’s application
in July 2012. By a 3-2 majority, the Commission voted to
issue a certificate of public convenience and necessity to
Millennium, allowing the Minisink Project to move forward.
Millennium Pipeline Co., L.L.C., Order Issuing Certificate,
140 FERC ¶ 61,045 (July 17, 2012) (“Certificate Order”)
(reprinted at J.A. 2-50).
The Commission began its analysis by applying the
criteria set forth in its Certificate Policy Statement, first
finding the threshold factor satisfied—that the project would
not require any subsidization from Millennium’s existing
customers. Certificate Order, ¶¶ 11-12. From there, the
Commission weighed the project’s benefits (increased
capacity to customers in the high-demand northeast market,
among others) against what FERC viewed as its “minimal
adverse effect[s],” both market- and environmentally-focused.
In the end, the Commission concluded that “the public
9
convenience and necessity require[d] approval of
Millennium’s proposal,” subject to certain environmental
conditions. Id. ¶¶ 13-15.
The Commission undertook an extensive environmental
analysis in its order, leaning heavily on the results of the EA.
With respect to the Wagoner Alternative, in particular, the
Commission explained as follows:
The EA evaluated several system and aboveground
site alternatives, and thoroughly compared the
Wagoner Alternative to Millennium’s proposed
Minisink Compressor Station. . . . Ultimately, the EA
concludes that although there are certain advantages to
the Wagoner Alternative (primarily, its greater
distance from the nearest noise-sensitive areas and the
lack of residences within 0.5 mile of the compressor
site), the greater environmental issues and landowner
impacts of replacing the Neversink Segment outweigh
those advantages, and as a whole result in the
Wagoner Alternative not providing a significant
environmental advantage over the proposed project.
The Commission concurs with this assessment.
Certificate Order, ¶¶ 26-27. More broadly, the Commission
also addressed a variety of other comments touching on
environmental and landowner-related issues. At the end of
the day, FERC adopted the EA’s findings and concluded that,
so long as Millennium adhered to the parameters outlined in
its application and complied with certain environmental
mitigation measures, the Minisink Project was expected to
have no significant environmental impact. Id. ¶ 83.
The Commission’s order also resolved a few procedural
matters that had been raised. First, the Commission denied a
request for a full-blown evidentiary hearing for the Minisink
10
Project, concluding that the issues at stake could be
adequately addressed on the written record. The Commission
also denied a request to stay the proceedings due to a
resident’s pending Freedom of Information Act (FOIA)
request for documents from the Commission (generally
seeking certain hydraulic analyses and systems models that
Millennium submitted to FERC during the application
process). Id. ¶¶ 84-87.
As noted, the Commission’s determination was not
unanimous; the approval of Millennium’s application drew
two dissenting votes. At bottom, both dissenters—Chairman
Wellinghoff and Commissioner LaFleur—explained that, in
their eyes, the Wagoner Alternative was a preferable
alternative to the Minisink Project, and that the Commission
was wrong to conclude otherwise. See J.A. 41-47. In
addition, Commissioner Clark issued a separate concurrence,
highlighting his view that, even if one truly thought the
Wagoner Alternative wrought lesser environmental impacts
than the Minisink Project, so long as Minisink was still
considered “an acceptable site that produces minimal adverse
impacts,” it should still be approved because FERC need not
limit its approval to sites with “the minimum impact.” J.A. 48
(second emphasis in original).
Following the Commission’s approval, MREPS and
others sought rehearing, and the Commission denied those
requests through another thorough order. Millennium
Pipeline Co., L.L.C., Order Denying and Dismissing Requests
for Rehearing, Denying Request to Reopen and Supplement
the Record, and Denying Requests for Stay, 141 FERC ¶
61,198 (Dec. 7, 2012) (“Reh’g Order”) (reprinted at J.A. 52-
96). Therein, after considering and rejecting various
challenges to its initial decision, FERC reaffirmed its
certificate approval for the Minisink Project. Additionally,
11
the Commission denied a request to reopen and supplement
the record to include a study prepared by Mr. Richard
Kuprewicz, who we are told is an “industry expert on pipeline
engineering and safety.” Pet’rs’ Br. at 22-23. The
Commission reached that result after determining that “Mr.
Kuprewicz’s study provide[d] no basis for reversing [its]
approval of the Minisink Project.” Reh’g Order, ¶¶ 75-80.
Finally, FERC denied a request to stay construction on the
Minisink Project pending judicial review. Id. ¶¶ 81-83. 2
Chairman Wellinghoff and Commissioner LaFleur again
dissented, jointly reiterating their view that the Wagoner
Alternative still stood superior to the Minisink Project. See
J.A. 95-96.
In January 2013, Minisink resident Michael Mojica filed
a separate request for rehearing with FERC, focusing on (1)
the Commission’s refusal to reopen the record to consider Mr.
Kuprewicz’s study, and (2) Mr. Mojica’s claimed inability to
timely obtain information he believed necessary to oppose
Millennium’s application (essentially the documents pursued
via the aforementioned FOIA request). The Commission,
joined this time by Chairman Wellinghoff and Commissioner
LaFleur, unanimously denied the rehearing request.
Millennium Pipeline Co, L.L.C., Order Denying Rehearing,
142 FERC ¶ 61,077 (Jan. 31, 2013) (“Second Reh’g Order”)
(reprinted at J.A. 99-106).
2
Before construction on the Minisink Project was complete,
Petitioners twice sought emergency stays from this Court as well.
On both occasions we denied their requests. In re Minisink
Residents for Pres. of the Env’t and Safety, No. 12-1390 (D.C. Cir.
Oct. 11, 2012) (denying motion for emergency relief); Minisink
Residents for Envtl. Pres. and Safety v. FERC, No. 12-1481 (D.C.
Cir. Mar. 5, 2013) (denying petition for stay during pendency of
these proceedings).
12
Meanwhile, MREPS commenced proceedings before this
Court. In December 2012, MREPS and some of its members
filed a petition seeking review of the Commission’s
Certificate Order and Rehearing Order (Case No. 12-1481).
Then, after his individual rehearing request was denied by
FERC, Mr. Mojica separately petitioned for our review (Case
No. 13-1018). 3 Given the sweeping overlap of issues, we
consolidated the two petitions. We refer to MREPS and the
various individual petitioners, collectively, as “Petitioners.”
While the briefing in these appeals unfolded, Millennium
completed construction of the Minisink Project and placed the
compressor station into use in June 2013.
II.
Petitioners seek review of a final order of the
Commission, which means we have jurisdiction under 15
U.S.C. § 717r(b). E.g., Murray Energy Corp., 629 F.3d at
235; Fla. Gas Transmission Co., 604 F.3d at 639.
We review the Commission’s orders, including those
approving certificate applications, under the familiar arbitrary
and capricious standard. B&J Oil & Gas v. FERC, 353 F.3d
71, 75-76 (D.C. Cir. 2004); Midcoast Interstate Transmission,
198 F.3d at 967. Our role is limited “to assuring that the
Commission’s decisionmaking is reasoned, principled, and
3
Originally, Mr. Mojica was also a party to the first-filed petition,
but given the pendency of his rehearing request before FERC at that
time, he withdrew from participation in the original case to avoid
any problems under Tennessee Gas. See Tenn. Gas Pipeline Co. v.
FERC, 9 F.3d 980, 980-81 (D.C. Cir. 1993) (“It is well-established
that a party may not simultaneously seek both agency
reconsideration and judicial review of an agency’s order.”).
13
based upon the record.” Am. Gas Ass’n v. FERC, 593 F.3d
14, 19 (D.C. Cir. 2010); Penn. Office of Consumer Advocate
v. FERC, 131 F.3d 182, 185 (D.C. Cir. 1997). We must
consider “whether the decision was based on a consideration
of the relevant factors and whether there has been a clear error
of judgment.” ExxonMobil Gas Mktg. Co. v. FERC, 297 F.3d
1071, 1083 (D.C. Cir. 2002). In so doing, we “cannot
substitute [our] judgment for that of the Commission.” Nat’l
Comm. for the New River, Inc. v. FERC, 373 F.3d 1323, 1327
(D.C. Cir. 2004). All the while, we remain mindful that “[t]he
grant[] or denial of a certificate of public convenience and
necessity is a matter peculiarly within the discretion of the
Commission.” Okla. Natural Gas Co. v. Fed. Power
Comm’n, 257 F.2d 634, 639 (D.C. Cir. 1958); accord Cal.
Gas Producers Ass’n v. Fed. Power Comm’n, 383 F.2d 645,
648 (9th Cir. 1967).
* * *
As a threshold matter, and even though neither FERC nor
Millennium contests our power to entertain these petitions, we
have independently assured ourselves that we are presented
with a justiciable controversy. While the Minisink Project is
now finished and functional, the petitions under review are
not moot because Petitioners, through their written
submissions to this Court and to the Commission, assert that
the compressor’s operation continues to harm their aesthetic,
health, and property interests. See Moreau v. FERC, 982 F.2d
556, 566 n.4 (D.C. Cir. 1993). For much the same reasons,
we are satisfied that Petitioners have suffered injuries
sufficient for Article III standing. Id. at 565. With this much
established, we turn to the merits of Petitioners’ arguments. 4
4
Our analysis on these points does not rest in any way on the
online video submission referenced in Petitioners’ brief. See Pet’rs’
14
A.
In urging us to upend FERC’s approval of the Minisink
Project, Petitioners mount several lines of attack. Chief
among them is their argument that the Commission failed to
afford due consideration to the Wagoner Alternative, which
Petitioners insist was undeniably superior to the Minisink
Project—in their eyes, “economically, environmentally, and
operationally” superior. See Pet’rs’ Br. at 6. Specifically,
Petitioners claim that this alleged failure both violated the
Commission’s obligations under Section 7 of the NGA, and
represented a misapplication of the Commission’s own
Certificate Policy Statement. We disagree.
We do agree with Petitioners that the Commission was
obligated to consider, as part of its certificating process under
the NGA, reasonable alternatives to the project proposed by
Br. at 5, 27-28. A picture may be worth a thousand words in some
contexts, but extra-record video clips cannot substitute for proper
briefing. Where a party’s standing is not apparent from the agency
record, our rules require that “the brief . . . include arguments and
evidence establishing the claim of standing.” D.C. CIRCUIT RULE
28(a)(7) (emphasis added). Petitioners’ choice to use “Video
Testimonials” skirts this requirement, and if adopted more broadly,
could wreak havoc on the procedural controls governing appeals
before this Court, such as word limits, briefing schedules, and the
like. And this is without even considering the specific failings
associated with Petitioners’ video account. For one, there is no
indication that the individuals it portrays are under oath, so their
remarks are not even evidence. Moreover, Petitioners do not direct
us to any particular segment of the video they deem relevant,
whether through a pinpoint citation or otherwise; instead, they
expect us to review the entirety of the 18-minute recording—which,
it bears noting, spans more time than their counsel was allotted at
oral argument—to discern the elements of standing.
15
Millennium. See, e.g., N. Natural Gas Co. v. Fed. Power
Comm’n, 399 F.2d 953, 973 (D.C. Cir. 1968) (“[T]he duty
imposed upon the Commission by Section 7 of the Natural
Gas Act is not merely to determine which of the submitted
applications is most in the public interest, but also to give
proper consideration to logical alternatives which might serve
the public interest better than any of the projects outlined in
the applications.”); accord Citizens for Allegan Cnty., Inc. v.
Fed. Power Comm’n, 414 F.2d 1125, 1133 (D.C. Cir. 1969).
The trouble with Petitioners’ theory, though, is that the
Commission satisfied this obligation here. Based on our
assessment of the record, we are convinced that the
Commission amply considered alternatives to the Minisink
Project, devoting especially thorough attention to the
Wagoner Alternative favored by Petitioners.
For one, FERC’s Certificate Order unmistakably outlines
the Commission’s exploration of the Wagoner Alternative as
an alternate possibility for Millennium’s compressor station.
See Certificate Order, ¶ 26 (“Numerous comments received
during scoping also requested that the Commission evaluate
alternatives to the proposed action . . . . The EA evaluated
several system and aboveground site alternatives, and
thoroughly compared the Wagoner Alternative to
Millennium’s proposed Minisink Compressor Station.”). In
keeping with the recommendations set out in the EA,
however, the Commission concluded that the more significant
environmental impacts associated with the Wagoner
Alternative—mostly due to improvement of the Neversink
Segment—rendered that option less preferable than the
proposed Minisink Project. Id. ¶ 27 (summarizing some of
the perceived environmental downsides to the Wagoner
16
Alternative). 5 The same holds true with respect to the
Rehearing Order, wherein the Commission again walked
through its comparison of the Minisink Project and the
Wagoner Alternative. Reh’g Order, ¶¶ 66-67. Based on that
comparison, the Commission reiterated its view that “the
selection of the Minisink [Project] as opposed to the Wagoner
Alternative is eminently reasonable.” Id. ¶ 67.
Furthermore, Petitioners seem to overlook the fact that,
once the Wagoner Alternative surfaced, the Commission took
the additional (and, from what we understand, relatively
unusual) step of issuing a supplemental notice before
completing its Environmental Assessment. Therein, the
Commission specifically flagged its consideration of the
Wagoner Alternative, inviting feedback and input from
nearby residents and other potentially impacted parties. See
J.A. 372-74; J.A. 373 (“The Commission wants to ensure that
5
For instance, the Commission explained as follows:
• The Wagoner Alternative would impact ten times more
land acreage (112.4) than the Minisink Project (10.6);
• The Wagoner Alternative would require the clearing of
more trees and the conscription of more agricultural
land than the Minisink Project;
• The Wagoner Alternative would necessitate the
placement of pipeline across eleven wetlands and
twelve waterbodies, raising complications not extant in
the Minisink Project; and
• The Wagoner Alternative had the potential to impact
five special status species, as opposed to one through
the Minisink Project.
Certificate Order, ¶¶ 26-27. FERC’s Certificate Order also
incorporated the EA itself, which goes through its own relatively
detailed comparison between the two proposals. See J.A. 484-89.
17
all potentially affected landowners for the [Wagoner]
alternative have the opportunity to participate in the
environmental review process. . . . You are encouraged to
become involved in this process and provide your specific
comments or concerns about Millennium’s proposal and the
[Wagoner] alternative described above.”) In view of all of
this, it seems clear that FERC duly considered the Wagoner
Alternative (and other alternatives), and cogently explained its
rationale in finding the Minisink Project properly approved
under the NGA. We would be hard-pressed to read the record
otherwise.
In arguing to the contrary, Petitioners marshal only one
meaningful theory in their favor. They claim that the
Commission’s analysis was flawed because Millennium either
planned or needed to upgrade the Neversink Segment all
along. In other words, according to Petitioners, even if
Millennium moved forward with the Minisink Project (and
not the Wagoner Alternative), it still had plans to replace the
Neversink Segment in the very near future. So the
Commission’s decision to account for the environmental
impacts of a Neversink upgrade only in connection with the
Wagoner Alternative and not the Minisink Project, Petitioners
tell us, was unreasonable and misguided. E.g., Pet’rs’ Br. at
32 (“Had the Commission compared a Minisink/Neversink
project to a Wagoner/Neversink upgrade, the Wagoner
alternative would have emerged as the superior choice.”). We
reject their premise.
This argument effectively hinges on an ambiguous
reference in one PowerPoint slide that Petitioners uncovered
through an internet search in the midst of the agency
proceedings—a document Petitioners generously refer to as
18
the “Currie Report.” 6 This document, Petitioners surmise,
proves that the construction of a new compressor station at
Minisink was only Millennium’s first step in a multi-phase
expansion project, part of which was destined to include a
Neversink upgrade all along. Notably, Petitioners made this
very same argument to the Commission, and the Commission
found it unsubstantiated. Rather, the Commission read the
“Currie Report” as “merely . . . a marketing document,” and
found that, as a factual matter, it did not evince “an intent by
Millennium to pursue an integrated, three-phase expansion of
its system,” nor “any firm decision by Millennium as to future
construction,” as had been suggested. Reh’g Order, ¶ 32
n.41. As to this factual determination, FERC’s findings are
“conclusive” if “supported by substantial evidence,” 15
U.S.C. § 717r(b); Colo. Interstate Gas Co. v. FERC, 599 F.3d
698, 704 (D.C. Cir. 2010)—a standard, we have stated, that
“requires more than a scintilla, but can be satisfied by
something less than a preponderance of the evidence,” FPL
Energy Me. Hydro LLC v. FERC, 287 F.3d 1151, 1160 (D.C.
Cir. 2002). On this record, the Commission’s finding falls
comfortably within that range. We thus accept FERC’s
conclusion that the “Currie Report” does not establish any
firm present or future plans by Millennium to upgrade the
Neversink Segment. 7
6
Although never clearly explained, Petitioners seem to call this the
“Currie Report” because they believe the PowerPoint presentation
was prepared by an individual named Sean Currie, who is identified
in at least one FERC filing as Millennium’s Manager of Capacity
Optimization. See J.A. 126 n.77.
7
Petitioners say we should accord FERC’s factual findings no
deference because it was “biased” in favor of Millennium’s
application. See Pet’rs’ Br. at 7, 41. In support, Petitioners point
to an excerpted portion of FERC’s Rehearing Order stating, in part,
that “there is no incentive for a project sponsor to present an
application that cannot meet our standards for approval.” Pet’rs’
19
In making this argument, Petitioners lean heavily on our
decision in City of Pittsburgh v. Federal Power Commission,
237 F.2d 741 (D.C. Cir. 1956). But that decision cannot bear
the weight Petitioners wish. In City of Pittsburgh, we
reviewed the issuance of a certificate of public convenience
and necessity allowing a natural gas supplier to abandon
service on one pipeline and to transfer that load to another
pipeline operating below capacity. In the course of contesting
the Commission’s order, a group of petitioners argued that the
abandonment would result in rate increases associated with
future expansions—increases that could be avoided, those
petitioners said, if the supplier maintained service on the
pipeline it sought to abandon. After review, this Court set
aside the order, largely based on the Commission’s failure to
consider the effects of abandonment on the pipeline’s future
expansion. Id. at 750 (“[The Commission] persistently closed
its eyes even to the existence of the problem of future
expansion.”). Seizing on that holding, Petitioners insist it
Br. at 7 (quoting Reh’g Order, at ¶ 45) (emphasis by Petitioners).
We could see how these remarks might give Petitioners pause.
After reading that applicants have “no incentive” to pursue
proposals that cannot secure approval, it is conceivable that one
might come away thinking the Commission has a thumb on the
scale for industry applicants. This is hardly the image our federal
regulators should be projecting to the American public. But as
another recent decision from this Court explained in turning aside a
similar argument, “[t]he fact that [applicants] 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.” NO Gas Pipeline
v. FERC, No. 12-1470, slip op. at 10 (D.C. Cir. July 1, 2014). This
logic holds true here, too. Though FERC’s comments were
arguably clumsy, it would require quite a leap on our part to equate
its statements with prejudgment.
20
applies equally to the facts of their case because FERC
glossed over and ignored the possibility of a future Neversink
Segment replacement. For at least two reasons we can see,
however, City of Pittsburgh finds no application here.
First, in City of Pittsburgh, it was clear and unmistakable
that the pipeline intended to expand service in the future. See
id. at 751 (“That Texas Eastern would soon move to expand
its gas deliveries was apparent throughout the [Commission’s]
proceeding.”); id. at 752 (“The record amply shows Texas
Eastern’s intention to apply for authority to expand its
capacity and its sales.”). Here, on the other hand, the
Commission examined the record—including the so-called
“Currie Report”—and found no concrete indication that
Millennium intended, then or in the future, to upgrade the
Neversink Segment. So the evidence of “future expansion” is
a far cry from what we were presented with in City of
Pittsburgh. Second, and perhaps more fundamentally, the
shortcoming we took issue with in City of Pittsburgh was the
Commission’s refusal to examine the effects of future
expansion altogether; the hearing examiner would not permit
any questioning or inquiry into the supplier’s plans for
expansion, nor would the examiner consider several company
memoranda that supposedly revealed such plans. Id. at 750-
52. Here, in stark contrast, FERC unquestionably did
consider Petitioners’ theory that Millennium planned (or
needed) to upgrade the Neversink Segment. See Certificate
Order, ¶¶ 65, 68; Reh’g Order, ¶¶ 25, 32-33, 47, 73 & n.41.
It just disagreed with their position that the prospect of such a
step was sufficiently certain to require its environmental
effects be taken into account in connection with the Minisink
Project. Given this, we cannot say that the Commission
“closed its eyes” to the issue of “future expansion”—here, the
possible replacement of the Neversink Segment—as was the
case in City of Pittsburgh. 237 F.2d at 750-52.
21
Given the foregoing, we have no basis to second-guess
the Commission’s determination that Millennium had no firm
plans to upgrade the Neversink Segment in the wake of the
Minisink Project. Petitioners also press this argument with a
slightly different gloss, however. They argue that even if
Millennium was not planning to replace the Neversink
Segment, circumstances would soon require such a step
nonetheless. Absent such an upgrade, Petitioners assert, a
“bottleneck” caused by the smaller-diameter pipe on the
Neversink Segment would preclude Millennium’s pipeline
from safely handling the volume, pressure, and speed that
would be generated by the Minisink Project. (For the most
part, this theory relies on the aforementioned study prepared
by Mr. Kuprewicz.) We remain unmoved. The Commission
considered this argument, too, and based on its assessment of
the evidence, it again disagreed with Petitioners on the facts.
FERC found no evidence that the Minisink Project would
necessitate, as a structural or safety matter, an upgrade of the
Neversink Segment. See Certificate Order, ¶ 68 (“Staff
independently evaluated the hydraulic feasibility of the
Minisink Compressor Station and completed an engineering
analysis of Millennium’s pipeline system . . . . [T]here is
nothing in the record to suggest that the operation of the
Minisink Compressor Station will compromise the safety of
the Neversink Segment.”); see also Reh’g Order, ¶¶ 75-80
(summarizing “flaws” in Mr. Kuprewicz’s various
suppositions, as viewed by FERC). As we explain shortly,
the Commission’s decision not to reopen the record to
consider Mr. Kuprewicz’s report was not an abuse of
discretion, and Petitioners provide no other meaningful basis
for concluding that FERC’s factual determinations regarding
the pipeline’s structural integrity were unsupported by
22
substantial evidence. We thus find no basis to upset the
Commission’s finding on this point either. 8
In our view, then, FERC reasonably concluded that the
Wagoner Alternative would require replacement of the
Neversink Segment, while the same was not plainly true of
the Minisink Project. And with that factual determination in
hand, it comes as no great shock that the Commission did not
believe the Wagoner Alternative a better fit for the proposed
project. On this point, some historical context is in order.
More than a decade before the Minisink Project was
proposed, Millennium had sought approval from FERC to
construct a replacement pipeline for the original Neversink
Segment. Initially, the Commission approved that proposal
subject to certain conditions. Millennium Pipeline Co., L.P.,
Interim Order, 97 FERC ¶ 61,292, at 62,356 (Dec. 19, 2001).
But due to the extreme difficulty Millennium encountered
trying to satisfy those conditions—including a host of
environmental snags—it opted instead to rely on the existing
7.1-mile-long segment of pipe acquired from a competitor
(Columbia Gas) for the Neversink River crossing, i.e., the
“Neversink Segment” as it exists today. See J.A. 401-05
(describing this background). FERC authorized that
8
We also find it somewhat telling that neither of the dissenting
commissioners expressed a belief that a Neversink upgrade was
imminently inevitable. True, both thought a Neversink replacement
would have yielded longer-term benefits that would have
outweighed the positive environmental factors the majority
associated with the Minisink Project (nearly all tied to avoiding, at
least for the time being, a Neversink upgrade). And mostly for this
reason, they believed the Wagoner Alternative preferable in the
long run. But neither suggested that the record, as they saw it,
showed that Millennium planned or needed to replace the
Neversink Segment even if it did not pursue the Wagoner
Alternative, as Petitioners maintain. See J.A. 41-47, 95-96, 106.
23
alternative arrangement in 2006. See Millennium Pipeline
Co., L.L.C., Order Issuing and Amending Certificates,
Approving Abandonment, Vacating Certificate, and Granting
and Denying Requests for Rehearing and Clarification, 117
FERC ¶ 61,319, at 62,576 (Dec. 21, 2006). Given
Millennium’s past struggles navigating the environmental
complications of a Neversink upgrade, the fact that the
Commission did not think such a course preferable at this
juncture seems to us an understandable result.
In sum, as we have stated before, FERC “enjoys broad
discretion to invoke its expertise in balancing competing
interests and drawing administrative lines.” Am. Gas Ass’n,
593 F.3d at 19 (citing ExxonMobil Gas Mktg. Co., 297 F.3d at
1085); see also Columbia Gas Transmission Corp. v. FERC,
750 F.2d 105, 112 (D.C. Cir. 1984) (“[A]s an expert agency,
the Commission is vested with wide discretion to balance
competing equities against the backdrop of the public
interest[.]”). Notwithstanding Petitioners’ pleas to the
contrary, we conclude that the Commission’s consideration of
the Wagoner Alternative falls within the bounds of that
discretion. 9 Under our narrow standard of review, then, we
9
We hasten to add that FERC’s obligation to consider alternatives
in Section 7 proceedings is not boundless. As we have previously
explained, FERC need not “undertake exhausting inquiries, probing
for every possible alternative, if no viable alternatives have been
suggested by the parties, or suggest themselves to the agency.”
Citizens for Allegan Cnty., 414 F.2d at 1133. We do not suggest
otherwise today, nor must we venture beyond these general
guideposts. Since the Wagoner Alternative was so fervently
advocated for during the Minisink Project’s review process, all
agree that the Commission was obligated to at least consider it.
24
have no basis to upset the Commission’s application of its
Section 7 authority on this point. 10
B.
Along with their weighty reliance on the Wagoner
Alternative, Petitioners make several other arguments against
the reasonableness of the Commission’s analysis. We treat
each argument in turn, finding none persuasive.
1.
Petitioners claim that the Commission failed to give the
environmental impacts of the Minisink Project the “hard
look” NEPA requires. We conclude otherwise.
NEPA’s “hard look” doctrine is designed “to ensure that
the agency has adequately considered and disclosed the
environmental impact of its actions and that its decision is not
arbitrary or capricious.” Nat’l Comm. for the New River, 373
F.3d at 1327. NEPA is a procedural statute; it “‘does not
mandate particular results, but simply prescribes the necessary
10
On the other side of the “public benefits”/“adverse impacts”
scale, Petitioners appear to separately argue that FERC violated its
policy statement by relying on Millennium’s existing contracts with
gas transporters to demonstrate the public benefits of the Minisink
Project. Pet’rs’ Br. at 35. We reject that claim as well. Petitioners
identify nothing in the policy statement or in any precedent
construing it to suggest that it requires, rather than permits, the
Commission to assess a project’s benefits by looking beyond the
market need reflected by the applicant’s existing contracts with
shippers. To the contrary, the policy statement specifically
recognizes that such agreements “always will be important
evidence of demand for a project.” Certificate Policy Statement, 88
FERC ¶ 61,227, at 61,748.
25
process.’” Midcoast Interstate Transmission, 198 F.3d at 967
(quoting Robertson v. Methow Valley Citizens Council, 490
U.S. 332, 350 (1989)). In reviewing an agency’s compliance
with NEPA, the “rule of reason applies,” and we “consistently
decline[] to ‘flyspeck’ an agency’s environmental analysis.”
Theodore Roosevelt Conservation P’ship v. Salazar, 661 F.3d
66, 75 (D.C. Cir. 2011) (quoting Nevada v. U.S. Dep’t of
Energy, 457 F.3d 78, 93 (D.C. Cir. 2006)).
Petitioners claim to eschew a flyspecking approach here,
arguing instead that the Commission’s analysis is laden with
“gaping holes.” Pet’rs’ Br. at 41. They point to three. In our
view, though, all fall decidedly more into the “flyspecking”
camp than anything more.
First, Petitioners contend that the Commission erred in
failing to undertake a more fulsome cost-benefit analysis of
the Minisink Project as compared with the Wagoner
Alternative. This argument essentially piggybacks off their
overall Wagoner Alternative theory, and, in that sense, we
reject it for the reasons already stated. In our view, the
Commission reasonably assessed the Wagoner Alternative,
particularly with respect to its environmental implications, as
most concerns NEPA. See Found. on Econ. Trends v.
Heckler, 756 F.2d 143, 147 (D.C. Cir. 1985) (“NEPA’s dual
mission is . . . to generate federal attention to environmental
concerns and to reveal that federal consideration for public
scrutiny.”) (emphasis added). Otherwise, to the extent
Petitioners contend that the Commission should have focused
more generally on the monetary costs and benefits of the
respective proposals, we disagree that NEPA requires such an
approach, particularly where only an environmental
assessment, rather than an environment impact statement, is
involved. See Webster v. U.S. Dep’t of Agric., 685 F.3d 411,
430 (4th Cir. 2012) (“The agency does not,” under NEPA,
26
“need to display the weighing of the merits and drawbacks of
the alternatives in a monetary cost-benefit analysis.”);
Communities Against Runway Expansion, Inc. v. FAA, 355
F.3d 678, 687 (D.C. Cir. 2004) (“[I]t is undisputed that the
FAA was not required to undertake a formal cost-benefit
analysis as part of the [environmental impact statement].”).
Second, Petitioners argue that the Commission failed to
examine the Minisink Project’s impact on property values.
But as the Commission rightly rejoins, the EA clearly
addressed this issue. J.A. 457-58. It recognized there may be
some adverse impacts on surrounding property values due to
the compressor station. On balance, though, the EA
concluded that “the recommended building design and
landscaping plans would eventually minimize the visual
impact from the station on the surrounding residential
properties and would not significantly reduce property values
or resale values.” J.A. 458. The Commission’s order echoes
this general assessment. Certificate Order, ¶ 70 (“[W]e
believe that the visual and noise mitigation measures
recommended in the EA and included as conditions in this
order, will mitigate the potential for decreases in property
values.”). Though we can see how Petitioners may disagree
with this takeaway, their disagreement does not mean that
FERC failed to consider the issue altogether, as they suggest.
Third, Petitioners claim that the Commission failed to
assess cumulative and future impacts. They accuse FERC of
ignoring two issues in particular: (1) Millennium’s planned
development of a second compressor station on the pipeline
upstream from Minisink (what came to be the “Hancock
Project”), and (2) the potential construction of a lateral
pipeline from the Minisink compressor to a proposed power
plant operated by CPV Valley LLC. The record belies this
argument on both scores. As for the Hancock Project, the
27
EA’s “Cumulative Impacts” discussion flags Millennium’s
“intent to construct a second compressor station” and explains
that, because no certificate application had been filed with
FERC, little was known about the details of the project.
Nevertheless, given the “typical distances between
compressor stations (70 miles) and the difference in
construction timing,” the EA stated that no significant
cumulative impacts were expected, other than possibly with
respect to air quality. J.A. 473. In view of the uncertainty
surrounding the second compressor station, and the difference
in timing between the two projects, this discussion suffices
under NEPA. 11 The same holds true with respect to the
11
We disagree with Petitioners that the EA’s treatment of the
“Hancock Project” contravenes this Court’s decision in Delaware
Riverkeeper, see Pet’rs’ 28(j) Letter (June 16, 2014), which held
that FERC improperly segmented and failed to consider the
cumulative impacts of four “connected, contemporaneous, closely
related, and interdependent” projects. Del. Riverkeeper Network v.
FERC, 753 F.3d 1304, 1307 (D.C. Cir. 2014). In faulting the
Commission’s NEPA analysis of the cumulative impacts of the
“Northeast Project” under review there, that decision took pains to
emphasize that the other three projects were all “either under
construction or were also pending before the Commission for
environmental review and approval.” Id. at 1308; see also id.
(“FERC’s NEPA review . . . did not consider any of the other
upgrade projects, even though the first upgrade project was under
construction during FERC’s review . . . and even though the
applications for the second and fourth upgrade projects were
pending before FERC[.]”); id. at 1318 (“The temporal nexus here is
clear. Tennessee Gas proposed the Northeast Project while the 300
Line Project was under construction . . . . [a]nd FERC’s
consideration of the Northeast Project application overlapped with
its consideration of the remaining two projects . . . . We emphasize
here the importance we place on the timing of the four
improvement projects.”). Those critical facts are worlds apart from
this case. At the time of its application for the Minisink Project,
28
potential development of the CPV Valley power plant. The
EA’s “Cumulative Impacts” section identifies this possible
project, too, though it again signals the absence of any firm
details surrounding project specifics. Even still, the EA
concluded that because the Minisink Project itself was
expected to have minimal impacts, no significant cumulative
impacts were expected to flow from the possible development
of the CPV Valley power plant, particularly since the
construction timelines for the two potential projects would be
quite distinct. J.A. 473-74. In sum, based on our review of
the EA, we are satisfied that FERC properly considered the
cumulative impacts of the Minisink Project.
2.
Petitioners also assert that the Commission’s approval of
the Minisink Project contravenes its own siting guidelines.
We can quickly dispatch these arguments.
Among its NEPA-implementing regulations, FERC has
promulgated “[s]iting and maintenance requirements” for the
construction and upkeep of facilities. 18 C.F.R. § 380.15.
Petitioners think that the Minisink Project contravenes three
separate provisions of that regulation. We think not. We first
agree with the Commission that § 380.15(b) is inapplicable
Millennium had not yet applied for approval of the Hancock
Project, nor was construction on either project underway.
Furthermore, once plans for the Hancock Project were cemented
and presented to FERC for approval under Section 7, the
Commission did examine that project alongside the Minisink
Project (then in the midst of development), and the resulting EA
found no significant cumulative impacts associated with the two
projects. See Millennium Pipeline Co., L.L.C., Order Issuing
Certificate, 145 FERC ¶ 61,007, at ¶ 52 (Oct. 1, 2013). For at least
these reasons, Delaware Riverkeeper lends no help to Petitioners.
29
altogether because, by its terms, it is triggered only by
facilities constructed on third-party landowners’ property;
here, as FERC noted below, Reh’g Order, ¶ 3, the Minisink
Project was built on a parcel owned entirely by Millennium.
While the parties also disagree whether § 380.15(e) (formerly
§ 380.15(d)) 12 applies to a project involving the construction
of a compressor station, we need not decide that issue because
FERC nevertheless complied with the regulation’s directive to
consider the use or extension of existing rights-of-way.
Indeed, the Commission explicitly recognized its policy of
“encourag[ing] pipeline construction on existing right[s]-of-
way as a means of minimizing environmental disturbance,”
but it concluded that any such preference does not alone
provide a basis for rejecting an application that otherwise
yields limited environmental impacts. Reh’g Order, ¶ 37.
This leaves only § 380.15(g) (formerly § 380.15(f)),
which applies to the “[c]onstruction of aboveground
facilities.” On this point, Petitioners claim that the Minisink
site is not “unobtrusive,” but, in fleshing out that contention,
they argue simply that the Wagoner Alternative would have
been less so. We remain unconvinced by that approach. And
otherwise, we agree with the Commission that it implemented
appropriate mitigation measures to reduce the site’s potential
obtrusiveness. See Reh’g Order, ¶ 50 (summarizing
Millennium’s vegetation plans and noise mitigation
requirements to reduce obtrusiveness); id. at ¶¶ 57-59
(outlining Commission’s approval of building design and
12
After the completion of briefing in these cases, FERC amended
this regulation, adding a new subsection (c) and reconfiguring the
existing provisions. As a consequence, the parties’ briefs discuss
§§ 380.15(d) and (f), which have since been re-designated as §§
380.15(e) and (g), respectively. See 78 Fed. Reg. 72,794, 72,812-
13 (Dec. 4, 2013). For clarity’s sake, we refer to the regulation
using its current numbering.
30
Millennium’s agreement with Town of Minisink concerning
landscaping and screening plan for site). Particularly in view
of the deference owed FERC’s interpretation of its own
regulations, see City of Oconto Falls, Wis. v. FERC, 204 F.3d
1154, 1162 (D.C. Cir. 2000), we reject Petitioners’ argument
that the Minisink Project violates the siting guidelines.
C.
As a final offensive, Petitioners attribute several
procedural errors to the Commission’s handling of
Millennium’s application for the Minisink Project. We take
these arguments in turn, accepting none.
First, Petitioners declare that the Commission improperly
refused to hold an evidentiary hearing on Millennium’s
application. “FERC’s choice whether to hold an evidentiary
hearing is generally discretionary.” Blumenthal v. FERC, 613
F.3d 1142, 1144 (D.C. Cir. 2010). “In general, FERC must
hold an evidentiary hearing only when a genuine issue of
material fact exists, and even then, FERC need not conduct
such a hearing if [the disputed issues] may be adequately
resolved on the written record.” Cajun Elec. Power Coop.,
Inc. v. FERC, 28 F.3d 173, 177 (D.C. Cir. 1994) (internal
citations and quotation marks omitted) (alteration in original).
We review the Commission’s denial of a hearing request for
abuse of discretion. Woolen Mill Assocs. v. FERC, 917 F.2d
589, 592 (D.C. Cir. 1990). Petitioners assert that a hearing
would have resolved “several key factual disputes,” but when
push comes to shove, they point to only one—“the question of
Millennium’s intentions regarding the Neversink upgrade.”
Pet’rs’ Br. at 53. Of course, the Commission did resolve that
issue, it just did so on the written record, declining to interpret
the “Currie Report” as the smoking-gun evidence Petitioners
portrayed it to be, Reh’g Order, ¶ 32 n.41, and otherwise
31
finding that Millennium had no firm present or future
intention to replace the Neversink Segment, id. ¶ 47. From
FERC’s perspective, there was no need to convene an
evidentiary hearing to resolve this narrow issue. We perceive
no abuse of discretion in that determination. 13
Second, Petitioners complain that their due process rights
were violated because the Commission failed to timely
provide them with certain documentation during the
proceedings—namely, particular hydraulic studies and
engineering analyses that Millennium provided to FERC as
part of its application. Petitioners concede, however, that
MREPS and some of its individual members obtained these
documents before the deadline to file for rehearing (indeed at
least one petitioner who requested this information in March
2012 received access to it at least two months before petitions
for rehearing were due). Oral Arg. Recording at 38:41-39:08;
see also Reh’g Order, ¶¶ 70-71. There is no dispute, then,
13
We note that, during the agency proceedings, Millennium
represented that it had “no intention to file an application to replace
the Neversink Segment before 2014.” Reh’g Order, ¶ 47 (quoting
“Millennium’s December 9, 2011 Data Response No. 1,” reprinted
at J.A. 367-70). Given that we have since hit that 2014 marker, we
asked Millennium’s counsel at oral argument whether the
company’s intentions had changed. Counsel assured us they had
not. We were told Millennium still had no present plans to replace
the Neversink Segment. Although such an upgrade remains a
possibility down the road if demand eventually dictates, counsel
relayed, Millennium could and would look to other options as well.
Oral Arg. Recording at 31:05-31:40, 34:30-34:39. Of course, our
review is based on the record as it existed before the Commission at
the time of its decision, see CNG Transmission Corp. v. FERC, 40
F.3d 1289, 1295 (D.C. Cir. 1994), but we would potentially be
facing a more troublesome set of facts if Millennium now planned
to pursue a Neversink upgrade after all. Because we take counsel at
his word, we confront no such scenario here.
32
that Petitioners had the chance to make meaningful use of this
information in connection with their petitions for rehearing.
Under our precedent, this fact neutralizes any constitutional
claim under the Due Process Clause. See Blumenthal, 613
F.3d at 1145-46; see also Jepsen v. FERC, 420 F. App’x 1, 2
(D.C. Cir. 2011) (per curiam). Relatedly, to the extent
Petitioners assert that other potentially relevant documents
were improperly withheld as confidential, the contention that
such documents “‘might’ support [their] position [is] far too
speculative to provide a basis for setting aside FERC’s
judgment,” B&J Oil, 353 F.3d at 78, much less for finding a
due process violation.
Third, Petitioners fault the Commission for failing to
reopen the record to consider the “Kuprewicz Report.” We
review that decision “only for an abuse of discretion,” Cooley
v. FERC, 843 F.2d 1464, 1473 (D.C. Cir. 1988), and we find
none here. Of course, FERC did consider the report, at least
in a sense. True, the Commission declined to reopen the
record and revisit its prior findings based on Mr. Kuprewicz’s
findings. But in the course of so concluding, the Commission
undertook an analysis of his report and opinions. Reh’g
Order, ¶¶ 75-80. In the end, the Commission believed his
analysis “suffer[ed] from several flaws” and did not provide
support for his position on many points, particularly where his
assessment differed from that of FERC’s staff. Id. ¶¶ 76, 79;
Second Reh’g Order, ¶ 9. The Commission thus found that
“Mr. Kuprewicz’s study provides no basis for reversing [its]
approval of the Minisink Project.” Reh’g Order, ¶ 80. This
decision strikes us as well within the bounds of FERC’s
discretion, particularly given the highly technical nature of the
issues raised in the report. See NRG Power Mktg., LLC v.
FERC, 718 F.3d 947, 962 (D.C. Cir. 2013). Consequently,
we find no error in the Commission’s declining to reopen the
record based on Mr. Kuprewicz’s report.
33
III.
In approving the Minisink Project, the Commission
accorded the Wagoner Alternative the serious consideration it
was due, in keeping with its statutory obligations under the
NGA and NEPA. In its judgment, the Commission did not
think the Wagoner Alternative preferable and concluded that
the Minisink Project, as put forward by Millennium, would
serve the public interest and necessity. We are simply not
empowered to second-guess the Commission’s determination
on this point or to substitute our judgment for the
Commission’s. Our much more limited role is, instead, to
confirm that FERC thoroughly and reasonably examined the
issue, and on the record before us, we are assured that it did.
For this and the other reasons we have explained, the
petitions for review are denied.
So ordered.