Columbia Riverkeeper v. United States Coast Guard, 761 F.3d 1084

Oregon LNG sought to site an LNG import terminal on the Columbia River and entered FERC’s pre-filing process; the Coast Guard (captain of the port) issued a Letter of Recommendation (LOR) in April 2009 assessing waterway suitability and recommending mitigation measures.
Riverkeeper requested administrative reconsideration of the LOR arguing the Coast Guard failed to comply with NEPA and the ESA; reconsideration and two subsequent administrative appeals were denied, with the assistant commandant concluding the LOR had no binding legal effect.
Riverkeeper petitioned for review in the Ninth Circuit under 15 U.S.C. § 717r(d)(1), which provides circuit-court review of orders or actions by federal or state agencies that “issue, condition, or deny any permit, license, concurrence, or approval” required under the NGA.
The Coast Guard’s historical role evolved from seeking permit authority to issuing nonbinding LORs; Congress and subsequent agency guidance confirmed FERC has exclusive siting authority and the Coast Guard’s role is to “make a recommendation.”
The Ninth Circuit considered whether § 717r(d)(1) authorizes review of the LOR (or the final administrative denial) by assessing whether the LOR is a final agency action that issues, conditions, or denies a permit-like authorization.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 717r(d)(1) authorizes circuit-court review of the Coast Guard’s LOR	Riverkeeper: § 717r(d)(1) allows review of the LOR and the final denial because Congress intended expedited review of non-FERC agency actions affecting LNG siting	Coast Guard/Oregon LNG: § 717r(d)(1) covers only final agency orders that issue/condition/deny permit-like approvals; LOR is advisory, nonbinding, and not a permit action	Held: § 717r(d)(1) authorizes review only of final agency actions that issue/condition/deny permit-like approvals; the LOR is not such an action, so the court lacks jurisdiction and dismissed the petition.
Whether the LOR is functionally a final, reviewable agency action despite its advisory label	Riverkeeper: the LOR is practically necessary or effectively binding (e.g., FERC typically adopts Coast Guard positions or the Coast Guard can enforce via later Captain of the Port orders)	Coast Guard: the LOR has no conclusive legal effect, FERC has exclusive siting authority, and the agency’s final administrative determination states the LOR is nonbinding	Held: LOR is advisory and lacks the legal effect of issuing/conditioning/denying a permit; practical-effect arguments fail on the record and the Coast Guard’s final administrative determination governs.

Bell v. New Jersey, 461 U.S. 773 (establishes presumption that courts review only final agency action)
Federal Power Comm’n v. Metropolitan Edison Co., 304 U.S. 375 (interpreting "order" to mean final order)
Bennett v. Spear, 520 U.S. 154 (agency biological opinions can be final when they have direct legal consequences)
Appalachian Power Co. v. EPA, 208 F.3d 1015 (guidance documents may be reviewable when they reflect a settled position with legal effect)
City of Fall River v. FERC, 507 F.3d 1 (First Circuit: conditional FERC approvals made Coast Guard approval effectively binding in that case)
City of Fremont v. FERC, 336 F.3d 910 (Ninth Circuit standard on finality and reviewability of FERC orders)