895 F.3d 102
D.C. Cir.2018Background
- Riverkeeper (Delaware Riverkeeper Network and Maya van Rossum) sued FERC in district court alleging due-process violations tied to FERC’s funding mechanism and its use of tolling orders during rehearing proceedings arising while PennEast sought a certificate for a 114‑mile interstate gas pipeline.
- Plaintiffs claimed (1) FERC’s statutory duty to recover its costs from regulated industries creates a structural incentive to approve pipelines (structural bias), and (2) FERC’s routine use of tolling orders defers final rehearing dispositions while allowing construction to proceed, frustrating judicial review.
- The district court dismissed for failure to state a due‑process claim, concluding plaintiffs had not identified a protected liberty or property interest and that FERC provides adequate process.
- On appeal the D.C. Circuit held the district court properly entertained the suit (district court jurisdiction consistent with NO Gas Pipeline), found Article III standing established by plaintiff declarations, and recognized a cause of action for prospective relief against alleged unconstitutional agency action.
- On the merits the court rejected (a) that Pennsylvania’s Environmental Rights Amendment (Pa. Const. art. I, § 27) creates a federal liberty or property interest protectable under the Fifth Amendment, and (b) that FERC’s funding statute or tolling‑order practice is facially unconstitutional.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Pa. Const. art. I, § 27 creates a federal liberty interest | Pa. Const. art. I, § 27 secures a right to a healthy environment that is a liberty interest implicating due process | State constitutional environmental rights do not map onto federal liberty interests | No — environmental right is not a federally protected liberty interest |
| Whether Pa. Const. art. I, § 27 creates a federal property interest | The Amendment creates a state‑based entitlement (property) that FERC decisions can deprive | Property interests must be definable, exclusive, and traceable to state law; the Amendment creates public goods, not exclusionary entitlements | No — Amendment is collective, vague, lacks exclusion and ascertainable monetary value; not a protected property interest |
| Whether FERC’s funding structure creates unconstitutional structural bias | Mandatory cost‑recovery from regulated industries incentivizes FERC to approve projects to secure future funding | Fees are credited to the Treasury; Congress fixes appropriations and FERC lacks control over receipts/salary; analogous to Dugan | No — funding mechanism not structurally biased; Dugan controls (no direct pecuniary interest) |
| Whether FERC’s use of tolling orders violates due process categorically | Tolling orders indefinitely delay final rehearing and permit construction, frustrating judicial review | Natural Gas Act requires FERC to “act upon” rehearings within 30 days, which permits tolling orders; any unreasonable delay must be challenged in an individual mandamus/appeal | No — tolling orders facially permissible under statute and precedent; undue‑delay claims belong to appropriate individual proceedings or mandamus |
Key Cases Cited
- Swarthout v. Cooke, 562 U.S. 216 (procedural due‑process two‑step: identify interest, then assess procedures)
- Town of Castle Rock v. Gonzales, 545 U.S. 748 (state‑created benefits and when they constitute protected property)
- Board of Regents v. Roth, 408 U.S. 564 (property and liberty interest principles)
- Dugan v. Ohio, 277 U.S. 61 (no Due Process violation where judge’s salary not dependent on fines deposited in general fund)
- Tumey v. Ohio, 273 U.S. 510 (disqualifying adjudicator with direct pecuniary interest)
- Ward v. Village of Monroeville, 409 U.S. 57 (structural bias where judge had executive financial incentive)
- College Savings Bank v. Florida Prepaid, 527 U.S. 666 (right to exclude as hallmark of property)
- Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477 (availability of prospective relief against federal officers)
- NO Gas Pipeline v. FERC, 756 F.3d 764 (D.C. Cir. jurisdictional holding distinguishing structural‑bias claims)
- Cal. Co. v. FPC, 411 F.2d 720 (FERC may issue tolling orders to “act upon” rehearing within 30 days)
- Kokajko v. FERC, 837 F.2d 524 (first‑circuit precedent upholding tolling orders)
- Gen. Am. Oil Co. v. FPC, 409 F.2d 597 (fifth‑circuit precedent on rehearing tolling)