Cletus Bohon v. FERC

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 15, 2021 Decided June 21, 2022
No. 20-5203
CLETUS WOODROW BOHON, ET AL.,
APPELLANTS
v.
FEDERAL ENERGY REGULATORY COMMISSION, ET AL.,
APPELLEES
On Appeal from the United States District Court
for the District of Columbia
(No. 1:20-cv-00006)
Mia Yugo argued the cause for appellants. With her on the
briefs was John R. Thomas Jr.
Robert H. Solomon, Solicitor, Federal Energy Regulatory
Commission, argued the cause for appellee. With him on the
brief were Matthew R. Christiansen, General Counsel, and
Scott Ray Ediger, Attorney.
Jeremy C. Marwell argued the cause for Mountain Valley
Pipeline, LLC, appellee. On the brief were Brian D. O=Neill
and Wade W. Massie. Michael R. Pincus entered an
appearance.
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Before: PILLARD, WILKINS and WALKER, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALKER.
Almost five years ago, the Federal Energy Regulatory
Commission gave Mountain Valley Pipeline, LLC permission
to build a natural-gas pipeline that will run through Cletus and
Beverly Bohon’s property. The Bohons sued in district court
to prevent the pipeline’s construction. But the Natural Gas Act
creates an exclusive review scheme for challenges to pipeline
certificates, one that doesn’t allow for the Bohons’ district-
court filing. We therefore affirm the district court’s decision to
dismiss it.
I
A
The Natural Gas Act requires any natural-gas company
that wants to build a natural-gas pipeline to get FERC’s
permission. 15 U.S.C. § 717f(c). To do so, the company must
prove that its pipeline’s service “is or will be required by the
present or future public convenience and necessity,” and that it
complies with all relevant federal, state, and local regulations.
Id. § 717f(e). If it satisfies the statutory and regulatory
requirements, the company receives a “certificate of public
convenience and necessity.” Id. § 717f(c). With the certificate
comes authorization to exercise the federal government’s
eminent-domain power. Id. § 717f(h).
The process of obtaining a certificate includes more than
just FERC and the natural-gas company. During the process,
the company has to notify interested parties, including
landowners in the pipeline’s path, to give them the opportunity
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to object. 18 C.F.R. § 157.6(d). On top of that opportunity to
comment during proceedings, the Natural Gas Act also
provides detailed instructions to aggrieved parties who want to
challenge certificate orders.
First, an aggrieved party must seek rehearing with FERC.
15 U.S.C. § 717r(a). Next, if FERC denies the rehearing
application or fails to act on it for thirty days, the aggrieved
party can petition for review of the certificate order in a federal
court of appeals where the natural-gas company is located or
has its principal place of business, or in this Court. Id.
§ 717r(b). When the party files the petition and record, the
court where the party filed has “exclusive” jurisdiction “to
affirm, modify, or set aside such order in whole or in part.” Id.
That court’s judgment “shall be final, subject to review by the
Supreme Court of the United States upon certiorari or
certification.” Id.
B
In 2015, Mountain Valley sought FERC’s permission to
build a 303.5-mile natural-gas pipeline. Mountain Valley
Pipeline, LLC, 161 FERC ¶ 61,043 (2017). It proceeded
through FERC’s certification process over the following two
years and ultimately received a certificate of public
convenience and necessity. Id. A number of aggrieved parties
(but not Cletus and Beverly Bohon) then sought rehearing
before FERC and, from there, petitioned for our review of the
certificate order. Appalachian Voices v. FERC, No. 17-1271,
2019 WL 847199, at *1 (D.C. Cir. Feb. 19, 2019). We rejected
all sixteen of the challenges they presented. Id. Our decision
(and the parties’ decision not to seek certiorari) ended the
statutorily prescribed review process. 15 U.S.C. § 717r(b).
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A year later, the Bohons and two other families filed this
suit against FERC and Mountain Valley in district court. The
Bohons own land in the pipeline’s path and don’t want to sell,
so Mountain Valley intends to use the eminent-domain power
that its certificate grants. To preempt Mountain Valley’s
eminent-domain proceeding, the Bohons asked the district
court to declare that Congress’s delegation to FERC of
authority to grant pipeline certificates is unconstitutional and
that all past certificates (including Mountain Valley’s) are void.
They also sought an injunction that would prevent FERC from
issuing any certificates in the future and would prevent
certificate holders like Mountain Valley from exercising their
delegated eminent-domain authority. The district court
dismissed their suit because the Natural Gas Act’s exclusive
review process precluded its jurisdiction.
II
“Within constitutional bounds, Congress decides what
cases the federal courts have jurisdiction to consider.” Bowles
v. Russell, 551 U.S. 205, 212 (2007). Typically, parties can
“seek review of agency action in district court under any
applicable jurisdictional grant.” Jarkesy v. SEC, 803 F.3d 9,
15 (D.C. Cir. 2015). But when Congress creates a special
statutory review scheme, that scheme is presumed “to be the
exclusive means of obtaining judicial review in those cases to
which it applies.” Id. (cleaned up). This case turns on whether
the Natural Gas Act’s special review scheme deprives district
courts of jurisdiction to invalidate pipeline certificates. It does.
The relevant section of the Natural Gas Act’s review
provision reads as follows:
Any party to a proceeding under this chapter
aggrieved by an order issued by the
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Commission in such proceeding may obtain a
review of such order in the court of appeals of
the United States for any circuit wherein the
natural-gas company to which the order relates
is located or has its principal place of business,
or in the United States Court of Appeals for the
District of Columbia, by filing in such court,
within sixty days after the order of the
Commission upon the application for rehearing,
a written petition praying that the order of the
Commission be modified or set aside in whole
or in part . . . . Upon the filing of such petition
such court shall have jurisdiction, which
upon the filing of the record with it shall be
exclusive, to affirm, modify, or set aside such
order in whole or in part. No objection to the
order of the Commission shall be considered by
the court unless such objection shall have been
urged before the Commission in the application
for rehearing unless there is reasonable ground
for failure so to do.
15 U.S.C. § 717r(b) (emphasis added).
That provision makes clear that once the original parties
who challenged the Mountain Valley certificate proceeding
filed the record in this Court, our jurisdiction became
“exclusive.” Indeed, the Supreme Court interpreted effectively
identical text in the Federal Power Act to prescribe “the
specific, complete and exclusive mode for judicial review” of
FERC’s predecessor’s licensing orders. City of Tacoma v.
Taxpayers of Tacoma, 357 U.S. 320, 336 (1958); see also City
of Anaheim v. FERC, 558 F.3d 521, 523 n.2 (D.C. Cir. 2009)
(judicial interpretations of substantially identical provisions in
the Federal Power Act and Natural Gas Act apply
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interchangeably). When, as here, Congress creates an
exclusive review scheme, it precludes any other court’s
jurisdiction over challenges that fit within that scheme. See
Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207 (1994).
Therefore, the Bohons may file their suit in district court
only if their facial nondelegation challenge falls outside the
Natural Gas Act’s judicial-review scheme. See id. at 212-13.
They offer three reasons why it might. First, they argue that
the review scheme does not cover any facial constitutional
challenges. Second, they argue that the structural nature of
their nondelegation argument takes it out of the review
provision’s scope. And third, they argue that the Supreme
Court’s decision last term in PennEast Pipeline Co. v. New
Jersey requires us to reverse here. 141 S. Ct. 2244 (2021). All
three arguments are unpersuasive.
First, in another statutory context we have cautioned
parties against assigning “talismanic significance” to their
decision to frame their suit as a facial challenge to the statute’s
constitutionality. Jarkesy, 803 F.3d at 18. And in Elgin v.
Department of the Treasury, the Court specifically rejected an
argument that “facial constitutional challenges to statutes”
should receive special solicitude. 567 U.S. 1, 15 (2012). “The
mere fact that” the Bohons press “constitutional claims (even
facial ones) therefore does not control the preclusion inquiry.”
Jarkesy, 803 F.3d at 25.
Second, the mere fact that the Bohons are challenging
FERC’s structure does not take their suit outside the Natural
Gas Act’s review provision. True, we did not apply that review
provision in NO Gas Pipeline v. FERC, where the petitioners
argued that collecting fees from the natural-gas industry biased
FERC in favor of approving pipelines. 756 F.3d 764, 768 (D.C.
Cir. 2014). But unlike here, that structural-bias claim did not
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challenge the lawfulness of any pipeline certificate. Id. at 769.
Instead, the “unique” claim there was “so tangential” to any
certificate order that we deemed it “unanchored in pipeline
proceedings” altogether. Id. And we simultaneously stressed
“the narrowness of our jurisdictional holding.” Id.The Bohons, by contrast, attack FERC’s power to apply
the Natural Gas Act and seek to “set aside” existing pipeline
certificates. 15 U.S.C. § 717r(b). Those claims are very much
anchored in pipeline proceedings. So they fall squarely within
the Natural Gas Act’s review scheme.
That difference also sets this case apart from Free
Enterprise Fund v. Public Company Accounting Oversight
Board, 561 U.S. 477 (2010). There, the Supreme Court’s logic
was similar to ours in NO Gas Pipeline: The plaintiffs’
structural-bias claim was not rooted in any particular Board
action, so it fell outside the review framework of 15 U.S.C.
§ 78y. Id. at 490. By contrast, the Bohons’ suit directly
imperils a specific certificate that FERC granted Mountain
Valley.
Finally, the Bohons argue that PennEast, requires us to
conclude that their suit can proceed in district court. On their
reading, PennEast held that district courts retain jurisdiction
over all nondelegation challenges. That reading is incorrect.
In PennEast, New Jersey raised a sovereign-immunity
defense against a condemnation of land. 141 S. Ct. at 2253.
But even if New Jersey’s sovereign-immunity defense had
succeeded, it would not have required the district court to
“‘modify’ or ‘set aside’ FERC’s order.” Id. at 2254 (quoting
15 U.S.C. § 717r(b)). Thus, New Jersey’s argument was not “a
collateral attack on the FERC order” that the Natural Gas Act’s
review scheme would have barred. Id. In explaining that
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crucial difference, PennEast specifically distinguished a case
where a party argued “that a licensee could not exercise the
rights granted to it by the license itself.” Id. Because that is
exactly the argument that the Bohons make, PennEast only
bolsters our conclusion.
* * *
The Natural Gas Act’s review scheme precluded district-
court jurisdiction over the Bohons’ collateral attack on the
FERC order. We therefore affirm.
So ordered.