Delaware Riverkeeper Network v. Federal Energy Regulatory Commission
2017 U.S. App. LEXIS 8930
| D.C. Cir. | 2017Background
- Transcontinental (Transco) sought FERC approval for the Leidy Southeast Project (pipeline looping) and filed for Pennsylvania §401 water quality certification on June 10, 2014.
- FERC issued an EA finding no significant impact (Aug. 11, 2014) and a conditional Certificate of Public Convenience and Necessity on Dec. 18, 2014 that expressly required Transco to obtain all applicable federal authorizations (including a Pennsylvania §401) before construction.
- Riverkeeper sought rehearing at FERC (denied) and then petitioned this court claiming (1) FERC violated the Clean Water Act by issuing the certificate before Pennsylvania issued its §401 certification and (2) FERC violated NEPA by misclassifying wetlands and inadequately reviewing projected gas flow velocities.
- After the conditional Certificate was issued, FERC approved certain pre-construction letter-authorizations (e.g., tree-felling); Riverkeeper did not seek rehearing of those letter orders but sought emergency relief in this court (denied). Pennsylvania issued its §401 certification on April 6, 2015, later upheld by the Third Circuit.
- The D.C. Circuit denied Riverkeeper’s petition: it held the conditional Certificate did not itself authorize activity that might result in discharges triggering §401 sequencing, declined to review unchallenged letter orders, and found FERC’s NEPA wetlands and gas-flow analyses adequate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FERC violated CWA §401 by issuing a conditional certificate before state §401 certification | Riverkeeper: FERC issued approval prematurely, violating §401 sequencing | FERC/Transco: Certificate was conditional and did not authorize discharge‑producing activity; §401 not triggered | Held: No §401 violation; conditional Certificate did not authorize activities that may result in discharges |
| Whether FERC’s letter orders authorizing pre‑construction (e.g., tree‑felling) violated §401 sequencing | Riverkeeper: Letter orders authorized discharge‑risking activity before §401 | FERC: Corps and FERC determined tree‑cutting would not result in discharge; letter orders are separate final actions | Held: Court declined to review letter orders because Riverkeeper failed to seek rehearing at FERC; not before the court |
| Whether FERC violated NEPA by misclassifying wetlands (Pennsylvania system and Cowardin) | Riverkeeper: FERC misidentified wetland types/acreage, undermining EA and mitigation | FERC: Used Corps delineation and Cowardin classifications; any minor errors were not material to NEPA disclosure or mitigation | Held: NEPA claim rejected; FERC took a hard look, used appropriate methodology, and any misclassification was non‑prejudicial |
| Whether FERC inadequately analyzed/disclosed pipeline gas‑flow velocities and related safety/cumulative impacts under NEPA | Riverkeeper: FERC withheld data, failed to analyze interdependence with other projects, and ignored safety concerns | FERC: Responded to data requests, offered proprietary model access, reviewed cumulative effects, and concluded velocities were safe under industry guidance | Held: NEPA claim rejected; record shows responsive disclosure and reasoned safety/cumulative analysis |
Key Cases Cited
- Alcoa Power Generating Inc. v. FERC, 643 F.3d 963 (D.C. Cir.) (discusses §401’s role in preserving state authority)
- Sierra Club v. FERC, 827 F.3d 59 (D.C. Cir.) (NEPA procedures for FERC and EA/EIS analysis)
- Baltimore Gas & Electric Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87 (U.S. 1983) (agencies must consider and disclose environmental effects under NEPA)
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (U.S. 1989) (NEPA requires a hard look but not particular substantive results)
- Myersville Citizens for a Rural Cmty., Inc. v. FERC, 783 F.3d 1301 (D.C. Cir.) (deference and reviewing FERC’s conditional approvals)
- Gunpowder Riverkeeper v. FERC, 807 F.3d 267 (D.C. Cir.) (discussion of conditional certificates and §401 sequencing)
- Del. Riverkeeper Network v. FERC, 753 F.3d 1304 (D.C. Cir.) (segmentation and cumulative‑impacts NEPA analysis)
- Del. Riverkeeper Network v. Sec’y Penn. Dep’t of Envtl. Prot., 833 F.3d 360 (3d Cir.) (upholding Pennsylvania’s §401 certification)
- S.D. Warren Co. v. Me. Bd. of Envtl. Prot., 547 U.S. 370 (U.S. 2006) (§401 state certification importance and scope)
- Darby v. Cisneros, 509 U.S. 137 (U.S. 1993) (administrative rehearing requirement is mandatory)