Berkshire Environmental Action Team, Inc. v. Tennessee Gas Pipeline Co., 2017 U.S. App. LEXIS 4559

Tennessee Gas applied to FERC for a certificate to expand natural gas facilities; FERC conditioned its certificate on obtaining "all applicable authorizations," including a §401 water quality certification from Massachusetts (MassDEP).
Tennessee Gas applied to MassDEP for a §401 water quality certification on June 30, 2015; MassDEP issued a conditional certification letter on June 29, 2016 with over 40 conditions, including "Condition 15" barring work during the appeal period.
Massachusetts regulations give persons who submitted public comments a right to request an adjudicatory hearing by filing a Notice of Claim within 21 days; petitioners filed such a Notice on July 20, 2016.
Tennessee Gas sought to stay MassDEP proceedings and argued the June 29 letter was final agency action reviewable exclusively in the federal court of appeals under 15 U.S.C. § 717r(d)(1); MassDEP denied the stay and scheduled further adjudicatory proceedings.
Petitioners filed this petition for review but contemporaneously argued that the court lacked jurisdiction because MassDEP had not yet taken final action and the state adjudicatory process remained pending.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether 15 U.S.C. § 717r(d)(1) authorizes appellate review of non-final state agency "action"	Tennessee Gas: statute uses "action" (no "final") so immediate review is permitted	Petitioners/MassDEP: Congress presumes review only after final agency action; §717r(d)(1) should be read consistently with that presumption	Court: §717r(d)(1) requires final agency action before a court of appeals may review; strong presumption of finality applies
Whether MassDEP's June 29, 2016 conditional certification was a "final" agency action	Tennessee Gas: the letter formally granted certification subject to conditions and thus concluded agency decisionmaking	MassDEP/Petitioners: Massachusetts law contemplates a unitary proceeding where an adjudicatory hearing (if requested) continues the agency's decisionmaking; the conditional letter is not final if appeal pending	Court: June 29 letter was not final because the adjudicatory process (including de novo review and evidence) continues; therefore no jurisdiction
Whether requiring finality is equivalent to imposing exhaustion of remedies	Tennessee Gas: finality requirement would effectively impose exhaustion not found in §717r(d)(1)	Petitioners/MassDEP: finality and exhaustion are distinct doctrines; requiring finality does not equate to exhaustion	Court: Distinguishes finality from exhaustion; finality inquiry asks if the agency has reached a definitive decision, which it had not here

Bell v. New Jersey, 461 U.S. 773 (1973) (recognizes strong presumption that judicial review is limited to final agency action)
FPC v. Metro. Edison Co., 304 U.S. 375 (1938) (early exposition on judicial review of agency action and finality)
Barnhart v. Sigmon Coal Co., 534 U.S. 439 (2002) (statutory text differences can imply different meanings)
Bennett v. Spear, 520 U.S. 154 (1997) (defines "final agency action" for APA purposes)
Darby v. Cisneros, 509 U.S. 137 (1993) (distinguishes finality from exhaustion doctrines)
Rhode Island v. EPA, 378 F.3d 19 (1st Cir. 2004) (agency action finality standard in First Circuit)
Islander E. Pipeline Co. v. Conn. Dep't of Envtl. Prot., 482 F.3d 79 (2d Cir. 2006) (context on §717r(d)(1) and state agency review; court did not address finality question)
Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103 (1948) (uses "consummation" language relevant to finality analysis)
Port of Bos. Marine Terminal Ass'n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62 (1970) (discusses when rights or obligations are determined by agency action)
Williamson Cty. Reg'l Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985) (cited in discussion of finality and ripeness)