Delaware Riverkeeper Network v. Federal Energy Regulatory Commission
410 U.S. App. D.C. 137
D.C. Cir.2014Background
- FERC certified Tennessee Gas’s Northeast Upgrade Project (40 miles of 30" pipe + compression upgrades) in May 2012 after issuing an Environmental Assessment (EA) and a Finding of No Significant Impact (FONSI).
- The Northeast Project was one of four sequential upgrade projects that together completed a near-200 mile overhaul of the Eastern Leg of Tennessee Gas’s 300 Line; the others were the 300 Line Project, the Northeast Supply Diversification Project, and the MPP Project.
- The four projects were physically connected (looped 30" pipe paralleling existing 24"), functionally interdependent (gas flows across segments as a single system), and had temporal overlap (construction or review occurred contemporaneously).
- Petitioners (Riverkeeper and others) argued FERC impermissibly "segmented" NEPA review by analyzing the Northeast Project in isolation and failed to analyze cumulative environmental impacts (wetlands, habitat fragmentation, hydrology, deforestation) across the four projects.
- FERC defended separate reviews by pointing to separate contracted capacity and asserted each project was a stand-alone action; it did not cite 40 C.F.R. § 1508.25 in its defense.
- The D.C. Circuit held FERC unlawfully segmented its NEPA review and failed to provide a meaningful cumulative impacts analysis, and remanded for further consideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Segmentation under NEPA (scope of review) | FERC must analyze the Northeast Project together with the other three connected, contemporaneous, interdependent Eastern Leg upgrades. | Each project added discrete capacity and had separate contracts, so each could be reviewed separately. | Court: FERC impermissibly segmented; projects were connected (no logical termini, not substantially independent, temporally overlapping). |
| Cumulative impacts analysis | EA failed to evaluate cumulative effects of past/present/foreseeable actions (habitat, wetlands, hydrology, fragmentation). | Impacts were temporary, separated by time/distance, and thus not cumulatively significant. | Court: EA was deficient; conclusory statements insufficient; remand for a meaningful cumulative impacts analysis. |
| Application of Taxpayers Watchdog factors (logical termini & independent utility) | Taxpayers Watchdog supports aggregation when projects are interdependent. | FERC relied on Taxpayers Watchdog factors to justify separate analyses. | Court: Even under those factors, FERC failed — no logical termini and no substantial independent utility. |
| Temporal overlap and foreseeability | Contemporaneous construction/reviews and public comments put FERC on notice to include connected projects in NEPA review. | Agencies need not review projects not proposed or already completed; separate review acceptable. | Court: Timing and overlap required FERC to consider connected projects in the Northeast EA; it did not. |
Key Cases Cited
- Vt. Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (NEPA is procedural; agencies must follow procedures for informed decisions)
- Kleppe v. Sierra Club, 427 U.S. 390 (concurrent proposals with cumulative impacts must be considered together)
- Marsh v. Or. Natural Res. Council, 490 U.S. 360 (deference to agency technical expertise but NEPA analysis must be adequate)
- Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29 (arbitrary and capricious standard; agency must examine relevant data and explain decisions)
- Grand Canyon Trust v. FAA, 290 F.3d 339 (elements of a meaningful cumulative impacts analysis)
- Taxpayers Watchdog v. Stanley, 819 F.2d 294 (factors for when connected projects may be analyzed separately)
- Coalition on Sensible Transportation, Inc. v. Dole, 826 F.2d 60 (contextual application of "logical termini" and independent utility analysis)
- Found. on Econ. Trends v. Heckler, 756 F.2d 143 (conclusory "no impact" findings are insufficient under NEPA)