Murray Energy Corp. v. Federal Energy Regulatory Commission
629 F.3d 231
D.C. Cir.2011Background
- FERC issued a section 7 certificate for the REX-East pipeline with Condition 147 requiring collaboration with Murray to develop a plan to maintain pipeline integrity without impeding mining, or alternate routing if collaboration failed.
- Murray Energy owns the Century Mine and fears subsidence from mining could stress the pipeline crossing the mining reserves.
- REX and Murray exchanged extensive communications, submitted a construction and operations plan (Dec. 23, 2008), and proposed mitigation measures for subsidence.
- FERC authorized construction on March 19, 2009, stating approval was in accordance with the Certificate Order and Condition 147.
- Murray sought rehearing (July 15, 2009) arguing lack of proper collaboration and plan deficiencies; FERC granted rehearing in part and found REX satisfied collaboration.
- REX began construction in May 2009, completed by August 2009, and gas flowed in November 2009; Murray petitioned for judicial review under 15 U.S.C. § 717r(b).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Chief of Gas Branch 2 lacked authority to issue the Construction Order. | Murray argues improper delegation under 18 C.F.R. § 375.308; designee not comparable to deputy/ division head. | FERC ratified delegation by adopting the Director's action through his designee. | Authority properly ratified by FERC via the Rehearing Order. |
| Whether Condition 147's collaboration requirement was met by REX. | Murray contends REX did not truly collaborate and should have filed an alternate route. | REX engaged in extensive discussions and the record supports collaboration. | FERC reasonably concluded collaboration satisfied Condition 147. |
| Whether FERC's construction plan adequately protects pipeline safety. | Experts show potential safety concerns and plan lacks binding protective measures. | FERC credited credible experts and found measures adequate; explained safety rationale. | FERC's safety determinations supported by substantial evidence. |
| Whether FERC properly addressed PHMSA's project-specific mitigation expectations. | PHMSA guidelines should mandatorily bind REX to mitigation requirements. | PHMSA guidelines were non-mandatory; FERC required compliance with PHMSA as actually necessary. | FERC did not act arbitrarily in balancing PHMSA views; not required to adopt non-mandatory guidelines. |
Key Cases Cited
- Sacramento Mun. Utils. Dist. v. FERC, 616 F.3d 520 (D.C. Cir. 2010) (arbitrary and capricious review; substantial evidence standard)
- Am. Gas Ass'n v. FERC, 593 F.3d 14 (D.C. Cir. 2010) (substantial evidence and rational connection principles)
- Dana Corp. v. ICC, 703 F.2d 1297 (D.C. Cir. 1983) (agency ratification of authority problems reinforces action)
- Elec. Consumers Res. Council v. FERC, 407 F.3d 1232 (D.C. Cir. 2005) (deference to agency’s factual determinations in disputes between experts)
- City of Pittsburgh v. Fed. Power Comm'n, 237 F.2d 741 (D.C. Cir. 1956) (respect for other agencies' views on specialized matters)
- Colo. Interstate Gas v. FERC, 599 F.3d 698 (D.C. Cir. 2010) (substantial evidence standard applied to agency findings)