Millennium Pipeline Company v. Basil Seggos
2017 U.S. App. LEXIS 11157
| D.C. Cir. | 2017Background
- Millennium sought a water-quality (§401) certification from the New York State Department of Environmental Conservation (DEC) for a 7.8-mile pipeline extension; DEC received the request Nov. 23, 2015, and issued requests for supplemental information, which Millennium provided.
- DEC notified Millennium in Nov. 2016 that it had “fully responded” but would continue review and stated it had until at least Aug. 30, 2017 to act.
- FERC issued a provisional certificate conditioned on Millennium obtaining all required federal authorizations, including a §401 water-quality certification or evidence of waiver.
- Millennium filed a petition under 15 U.S.C. § 717r(d)(2) claiming DEC failed to act within the Clean Water Act’s one-year deadline and asking the court to compel DEC to act or grant the certification.
- DEC argued the one-year period runs from receipt of a valid/complete application and contended Millennium’s submissions left the application incomplete; DEC also noted that waiver under §401 would allow Millennium to proceed to FERC.
- The court examined standing and whether DEC’s delay, if unlawful, could injure Millennium given the Clean Water Act’s automatic one-year waiver provision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Millennium has Article III standing to challenge DEC’s alleged §401 delay | Millennium: DEC’s continued delay injures Millennium by blocking pipeline construction | DEC: Any §401 delay beyond one year results in statutory waiver, so Millennium suffers no cognizable injury | No standing; plaintiff cannot show injury in fact because §401 waiver would eliminate DEC as a barrier |
| Whether DEC violated the Clean Water Act’s one-year deadline by failing to act | Millennium: DEC missed the one-year statutory deadline and must be compelled to act or grant the certification | DEC: The one-year clock runs from receipt of a complete/valid application; Millennium’s application was incomplete until supplemental responses were provided | Court did not reach the merits because of lack of standing; found even a successful claim would not redress plaintiff’s injury because waiver would follow |
| Whether a court can remand under NGA §19(d)(3) to compel DEC where a federal-law deadline (Clean Water Act) provides a waiver remedy | Millennium: §19(d) amendments should allow courts to compel state action despite §401 waiver | DEC: §401’s built-in waiver displaces need for §19(d) relief here | §19(d) remains effective where no statutory waiver exists; but §401’s waiver makes §19(d) relief unnecessary and ineffective in this context |
| Whether FERC deadlines could provide an alternative basis for relief under the NGA | Millennium: FERC schedule (90 days) was missed and could support relief | DEC: FERC deadlines do not apply where federal law (Clean Water Act) establishes a different schedule | Court: Clean Water Act deadline governs; FERC’s schedule is inapplicable when another federal law sets the timeline |
Key Cases Cited
- Alcoa Power Generating Inc. v. FERC, 643 F.3d 963 (D.C. Cir.) (describing §401 one-year waiver and effect of state inaction)
- Weaver’s Cove Energy, LLC v. R.I. Dep’t of Envtl. Mgmt., 524 F.3d 1330 (D.C. Cir.) (dismissing for lack of standing where state inaction would trigger §401 waiver)
- Dominion Transmission, Inc. v. Summers, 723 F.3d 238 (D.C. Cir.) (review under §19(d) where no statutory waiver relieved applicant and court remanded to agency)
Disposition: Petition for review dismissed for lack of Article III standing.