Allegheny Def. Project v. Fed. Energy Regulatory Comm'n, 932 F.3d 940

Background

Transcontinental Gas Pipe Line Co. (Transco) sought and FERC granted a certificate under the Natural Gas Act to build the Atlantic Sunrise pipeline (applied 2015; certificate issued Feb. 2017).
FERC issued a Final Environmental Impact Statement in Dec. 2016 and authorized construction in Sept. 2017; construction began the same day.
Homeowners whose land was to be taken and Environmental Associations filed rehearing petitions and stay motions; FERC issued tolling orders (granting rehearing for "further consideration") and ultimately denied rehearing months later.
Homeowners lost in a district court eminent-domain action, which treated FERC’s certificate as conclusively establishing public use; appeals to this court followed.
The D.C. Circuit consolidated challenges and affirmed FERC: plaintiffs argued NEPA violations (downstream GHGs, segmentation, alternatives), inadequate market-need finding, and that authorizing construction during tolling denied due process.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
NEPA — downstream GHG emissions	FERC failed to consider downstream (end-use) greenhouse-gas emissions as an indirect effect.	FERC did consider and quantify downstream CO2 and explained offsets and net effects in EIS and orders.	Court: FERC satisfied NEPA; plaintiffs identify no additional required analysis.
NEPA — segmentation with Southeast Market Pipeline	FERC improperly segmented environmental review and should have analyzed pipelines together.	The two projects have substantial independent utility; separate analyses were proper.	Court: No improper segmentation; record supports independent utility.
NEPA — alternative (Conestoga Route) analysis	FERC insufficiently considered the Conestoga Route as a reasonable alternative.	FERC compared routes, weighed tradeoffs, and reasonably explained its choice.	Court: FERC’s alternatives analysis was adequate.
Market need under NGA	Project lacks demonstrated market need; contracts etc. insufficient.	Transco had preconstruction contracts covering 100% capacity and supporting evidence of demand.	Court: Market-need requirement satisfied by contracts and supporting evidence.
Due process — construction during tolling/rehearing	Tolling orders and allowing construction before final agency action deprived homeowners of meaningful process and review (property taken before court access).	Tolling orders are permissible; rehearing is a statutory precondition and petitioners must await FERC action; eminent-domain courts treat certificates as controlling.	Court: Precedent forecloses plaintiffs’ due-process claim; petitions denied. Concurring judge: cautioned that tolling practice creates unfairness though bound by precedent.

Key Cases Cited

Myersville Citizens for a Rural Community, Inc. v. FERC, 783 F.3d 1301 (D.C. Cir. 2015) (NEPA/alternatives precedent)
Sierra Club v. FERC, 867 F.3d 1357 (D.C. Cir. 2017) (downstream emissions and market-need discussion)
Delaware Riverkeeper Network v. FERC, 857 F.3d 388 (D.C. Cir. 2017) (NEPA obligations of FERC)
Delaware Riverkeeper Network v. FERC, 895 F.3d 102 (D.C. Cir. 2018) (tolling-order precedent discussed)
City of Boston Delegation v. FERC, 897 F.3d 241 (D.C. Cir. 2018) (segmentation/substantial independent utility)
Minisink Residents for Envtl. Pres. & Safety v. FERC, 762 F.3d 97 (D.C. Cir. 2014) (alternatives analysis standard)
Clifton Power Corp. v. FERC, 294 F.3d 108 (D.C. Cir. 2002) (rehearing prerequisite to review)
Midcoast Interstate Transmission, Inc. v. FERC, 198 F.3d 960 (D.C. Cir. 2000) (public-use determination and takings)
FERC v. Electric Power Supply Ass'n, 136 S. Ct. 760 (2016) (agency decision review standard)
Mathews v. Eldridge, 424 U.S. 319 (1976) (due-process balancing test)
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) (physical occupation and property interests)
Knick v. Township of Scott, 139 S. Ct. 2162 (2019) (prompt access to federal review for takings claims)