897 F.3d 241
D.C. Cir.2018Background
- FERC granted Algonquin a Section 7 certificate for the AIM Project (pipeline upgrade) after preparing an Environmental Impact Statement (EIS). Petitioners include a town, Riverkeeper, and a coalition; City of Boston Delegation's petition was dismissed for lack of jurisdiction.
- Petitioners challenged the certificate under NEPA, alleging improper segmentation (failure to analyze AIM together with Algonquin’s Atlantic Bridge and Access Northeast projects) and inadequate cumulative impacts analysis.
- Petitioners also argued the AIM Project increased safety risks to the nearby Indian Point nuclear plant and that FERC relied on a conflicted third‑party contractor (Natural Resource Group) to prepare the EIS.
- FERC relied on Entergy’s safety evaluation and an independent NRC analysis concluding the pipeline posed no additional safety hazard to Indian Point. Petitioners presented contrary expert critiques.
- Petitioners did not raise the contractor conflict claim to FERC on rehearing; the court considered CARE to excuse exhaustion and reached the merits of the conflict claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| NEPA segmentation — whether FERC should have combined AIM, Atlantic Bridge, and Access Northeast in one EIS | FERC impermissibly segmented review and should have analyzed projects together | Projects lacked temporal overlap and had independent utility; separate reviews were permissible | Court held no arbitrary/capricious action; separate EIS for AIM was permissible |
| NEPA cumulative impacts — adequacy of cumulative impacts analysis for the three projects | FERC failed to adequately analyze cumulative impacts of the three projects | FERC considered Atlantic Bridge sufficiently; Access Northeast was too speculative at the time to meaningfully analyze | Court held cumulative impacts analysis adequate given information reasonably foreseeable at the time |
| Safety re Indian Point — whether substantial evidence supports FERC’s conclusion of no increased risk | Petitioners’ experts argued AIM posed safety risks and criticized assumptions (e.g., shutdown time) | FERC relied on Entergy and NRC analyses (NRC also modeled catastrophic continuous flow) concluding no significant hazard | Court held FERC’s safety finding supported by substantial evidence and reasonable crediting of NRC/Entergy experts |
| Conflict of interest / exhaustion — whether court has jurisdiction and whether contractor conflict invalidates EIS | Petitioners alleged Natural Resource Group had a conflict and FERC failed to disclose; they did not raise it on rehearing | FERC argued claim was unexhausted; even if considered, no disqualifying conflict and process integrity not compromised | Court excused exhaustion under CARE, reached merits, and rejected conflict claim as non‑disqualifying and not compromising NEPA integrity |
Key Cases Cited
- Minisink v. FERC, 762 F.3d 97 (D.C. Cir. 2014) (deference to FERC and standards for NEPA review and substantial evidence)
- Myersville Citizens for a Rural Cmty. v. FERC, 783 F.3d 1301 (D.C. Cir. 2015) (rule of reason for NEPA cumulative analysis; refusal to flyspeck agency findings)
- Del. Riverkeeper Network v. FERC, 753 F.3d 1304 (D.C. Cir. 2014) (segmentation doctrine and when related projects must be combined in NEPA review)
- Sierra Club v. FERC, 867 F.3d 135 (D.C. Cir. 2017) (EIS must discuss relevant issues and opposing viewpoints to show reasoned decisionmaking)
- Murray Energy Corp. v. FERC, 629 F.3d 231 (D.C. Cir. 2010) (deference to agency resolution of expert disputes)
- Communities Against Runway Expansion, Inc. v. FAA (CARE), 355 F.3d 678 (D.C. Cir. 2004) (excusing exhaustion where petitioner lacked reason to raise conflict during agency process)
- Washington Gas Light Co. v. FERC, 532 F.3d 928 (D.C. Cir. 2008) (public interest inquiry includes safety concerns)
- Theodore Roosevelt Conservation P'ship v. Salazar, 616 F.3d 497 (D.C. Cir. 2010) (project too preliminary to meaningfully estimate cumulative impacts)