Conservation Group Finds Itself Up FERC’s River Without a Paddle

National Comm. for the New River, Inc. v. Federal Energy Reg. Commn., 2005 WL 3440696 (D.C. Cir. Dec. 16, 2005)

Emily Plett-Miyake, 3L, Vermont Law School

The National Committee for the New River, Inc. (NCNR), an environmental group, petitioned for review of the Federal Energy Regulatory Commission’s (FERC’s) rejection of seven of its claims that a natural gas company had failed to comply with conditions imposed on a pipeline construction project. The Court of Appeals for the D.C. Circuit dismissed NCNR’s petition, stating that the group lacked standing to challenge the company’s conduct.

Background
In 2001, the East Tennessee Natural Gas Company (East Tennessee) petitioned FERC for permission to extend its natural gas pipeline, based in Tennessee, by about ninety-four miles, from Virginia to North Carolina. In 2002, FERC issued East Tennessee a certificate of public convenience and necessity for the proposed extension, known as the “Patriot Project.” The certificate was subject to sixty-nine conditions, pursuant to Section 7 of the Natural Gas Act.1 The conditions involved a wide range of issues relating to the pipeline’s construction, including minimization of project impacts on the southern population of the bog turtle, ten-day deadlines for cleanup after trenches are backfilled, the filing of certain documents, including weekly status reports, with FERC, and terms by which changes to the project proposal would be allowed.

NCNR is an environmental group devoted to protecting the New River, which is located in North Carolina and southwest Virginia. NCNR has been involved in fighting the “Patriot Project” proposal since the initial certification proceedings, including participation as an intervenor in a losing challenge. NCNR continued to mount legal challenges against East Tennessee, and as of the time of this appeal had filed nearly twenty adversarial pleadings since the certification of the project. The particular pleading before the court here addressed seven of the FERC orders involving five of the legal issues arising from those pleadings. The appeal of the orders claimed that East Tennessee failed to live up to the conditions of certification.

Court Decision
The court discussed each of the appeals of the seven FERC orders in turn. NCNR’s primary claim, and the subject of four of the orders and two rehearings, was that East Tennessee’s route realignments were unauthorized because they varied too far from the original route that FERC had certified.

The court declined to evaluate these claims on their merits because it found that NCNR lacked standing to bring the challenge. In making this determination the court noted that “[a]esthetic and environmental harms may confer Article III standing if they describe a concrete and particularized injury in fact that is actual or imminent, causally linked to the conduct at issue, and redressable by the relief requested.”2 The court found that the harms alleged by the plaintiffs did not meet this standard. The court noted that the allegations were not sufficient and focused “on the general harms that would arise” as a result of construction.3 The court said that “NCNR must demonstrate that its members have suffered, or will suffer, specific environmental and aesthetic harms as a result of the route realignments themselves.”4 The court found that the affidavits submitted by NCNR did not explain such a particularized injury. NCNR raised similar issues and showings of proof in challenges to the initial certification. The court noted that “our earlier decision permitted the pipeline to be built, so general harms stemming from construction [or realignment] of a pipeline do not confer standing for this lawsuit.”5

NCNR raised four additional issues. The first was whether East Tennessee’s prior effort to drill under the New River should have been declared a “failure” under Condition 22 of the FERC certificate, which would have allowed East Tennessee to abandon drilling in favor of a better site.6 The court declared that this condition conferred no right upon NCNR. The court further found that the issue was moot, as the pipeline resulting from the drilling had been in operation for over two years, and that having succeeded, “the drilling effort patently was not a failure.”7

The second additional issue was procedural, with NCNR arguing that it was entitled to service of documents by East Tennessee after certification. The court disagreed, and found that NCNR had no such procedural right. As explained by FERC, “its rules do not require that all parties to a certification be served with documents after certification is finished.”8 Finding that there was no procedural right to post-certification service, the court ruled that NCNR had no standing to bring this particular challenge.
The third additional issue was another procedural claim, in which NCNR argued that a FERC order was invalid because it was not signed by the Director of the Office of Energy Projects, but rather by the Deputy Director. The court dismissed this claim as frivolous, noting that signing responsibilities can be delegated to specified officials in the same office. NCNR failed to articulate what interests it believed were at risk, and the court declined to believe that such action was that of a “rogue deputy” acting surreptitiously against the Director’s will.9

The final issue raised was NCNR’s appeal of a FERC order rejecting the claim that East Tennessee failed to consider a particular route alternative. The court noted that these issues had been raised and settled in previous appeals, and declined the invitation to look at them again.

Conclusion
Rejecting all of NCNR’s claims, the court found that the group lacked standing to bring many of the issues, and had failed procedurally against others. The court therefore lacked jurisdiction and dismissed the petition for review.

ENDNOTES
1. 15 U.S.C. §717f
2. National Comm. for the New River, Inc. v. Federal Energy Reg. Commn., 2005 WL 3440696 at *2 (D.C. Cir. Dec. 16, 2005) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992)).
3. Id.
4. Id..
5. Id.
6. Id.
7. Id..
8. Id. at *3.
9. Id.

University of Mississippi