Delaware Riverkeeper Network v. Federal Energy Regulatory Commission
243 F. Supp. 3d 141
D.D.C.2017Background
- Delaware Riverkeeper Network (DRN) and its director sued FERC (with PennEast intervening) challenging FERC’s structure and funding as creating actual or apparent bias in pipeline certificate proceedings, alleging deprivation of Fifth Amendment due process.
- Plaintiffs sought declaratory and injunctive relief attacking FERC’s reimbursement mechanism (42 U.S.C. § 7178) and certain powers (eminent domain, preemption), and used the pending PennEast pipeline review as the example proceeding.
- DRN and members intervened in the FERC PennEast proceeding and submitted declarations describing past and imminent environmental, aesthetic, and property harms tied to the proposed route.
- FERC had not granted the PennEast certificate at the time of suit; it had delayed the project for further environmental review.
- Defendants moved to dismiss under Rules 12(b)(1) and 12(b)(6). The district court granted both motions, dismissing for lack of a cognizable Fifth Amendment property/liberty interest and for failure to plausibly allege structural bias from FERC’s funding structure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing — Article III injury | DRN’s members suffer imminent, concrete harms (environmental, aesthetic, property risk) and procedural injury from biased decisionmaking | Injuries are speculative until a certificate is issued; DRN lacks organizational standing | Court: DRN has associational standing; members alleged sufficiently imminent, particularized injuries tied to the proceeding |
| Ripeness for bias challenge | Structural bias claim can be litigated pre-approval using PennEast as example | Actual-bias claims tied to a specific certificate are unripe absent final agency action | Court: Structural-bias challenge is not precluded by ripeness; Plaintiffs limited actual-bias claims and ripeness concerns did not bar structural claim |
| Procedural due process — protected interest requirement | Plaintiffs contend procedural injury (biased forum) is itself sufficient; point to state environmental protections and property impacts | Defendants say Fifth Amendment requires a cognizable liberty or property interest before a procedural claim lies | Court: Plaintiffs failed to identify a federal liberty or property interest protected by the Fifth Amendment; aesthetic/environmental interests and generalized state constitutional rights do not suffice; claim dismissed on this ground |
| Structural bias — FERC funding mechanism | Funding requirement (recover costs from regulated entities) creates incentive to approve industry projects and thus bias | Statute gives Congress budget control; FERC cannot increase budget by approving projects; connection too remote to create unconstitutional bias | Court: Funding structure does not plausibly create structural bias or appearance of bias; allegations insufficient to state a claim |
Key Cases Cited
- Minisink Residents for Envtl. Pres. & Safety v. FERC, 762 F.3d 97 (D.C. Cir. 2014) (describing FERC certificate standard and review)
- California Co. v. Fed. Power Comm’n, 411 F.2d 720 (D.C. Cir. 1969) (tolling orders and rehearing timing)
- Kokajko v. FERC, 837 F.2d 524 (1st Cir. 1988) (upholding tolling orders)
- Gen. Am. Oil Co. of Texas v. Fed. Power Comm’n, 409 F.2d 597 (5th Cir. 1969) (tolling orders)
- Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) (Article III standing framework)
- Summers v. Earth Island Inst., 555 U.S. 488 (2009) (procedural-rights-alone insufficient for standing absent concrete interest)
- Tumey v. Ohio, 273 U.S. 510 (1927) (bias precedent in adjudicative settings)
- Ward v. Village of Monroeville, 409 U.S. 57 (1972) (due process and adjudicative bias)
- Schweiker v. McClure, 456 U.S. 188 (1982) (administrative decisionmaker bias and protected benefits)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (pleading plausibility standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard)
- Mathews v. Eldridge, 424 U.S. 319 (1976) (procedural due process framework)
- Dugan v. Ohio, 277 U.S. 61 (1928) (no bias where financial interest too remote)