949 F.3d 8
D.C. Cir.2020Background
- FERC issued a Section 7 certificate (March 2016) allowing Tennessee Gas to build the Connecticut Expansion, including a 3.81-mile segment near Sandisfield, MA.
- The Narragansett Tribe identified 73 ceremonial stone landscapes in the approved path and argued under Section 106 of the National Historic Preservation Act that moving/dismantling them would irreparably harm their religious and cultural interests.
- Tennessee Gas proposed to remove and later reinstall the stone features as mitigation; the Tribe contended that moving them would destroy their spiritual function.
- While the Tribe’s motion to intervene and rehearing requests were pending, FERC authorized construction to proceed (April 12, 2017); Tennessee Gas completed construction and destroyed more than twenty ceremonial features before FERC resolved the pending motions.
- The Tribe petitioned for review seeking prospective relief (an order requiring FERC to amend its consultation regulations) rather than vacatur of the operative certificate; the D.C. Circuit dismissed for lack of Article III standing because the injury was irreparable and not redressable by the requested relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing / redressability for completed harm | Tribe: destruction is concrete injury; court can order prospective regulatory changes to prevent recurrence | FERC: injury already irreparable and prospective regulatory relief cannot remedy past loss | Dismissed: Tribe lacks standing because requested relief cannot redress the completed harm |
| Applicability of relaxed redressability for procedural-rights claims | Tribe: procedural-violation doctrine lowers redressability requirement so prospective relief is permissible | FERC: even under relaxed standard, correction couldn’t undo past destruction and Tribe shows no substantial risk of recurrence | Rejected: relaxed standard inapplicable because vacating or changing procedure could not prevent or mitigate the past loss and no substantial risk shown |
| Remand / party status as redress | Tribe: remand or party status could enable review on merits and alleviate harms | FERC: no live merits dispute remains (ceremonial sites destroyed), so party status/remand confers no relief | Denied: party status or remand would not redress the Tribe’s injury |
| Attorneys’ fees as basis for jurisdiction | Tribe: fees recoverable under Preservation Act and provide a remedy | FERC: potential fees do not create an Article III case or controversy | Rejected: prospect of fees cannot restore jurisdiction where underlying claim is moot |
Key Cases Cited
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (standing requires concrete, traceable, redressable injury)
- Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167 (timing for standing assessment)
- Advanced Mgmt. Tech., Inc. v. Federal Aviation Admin., 211 F.3d 633 (D.C. Cir. 2000) (standing assessed when action commences)
- City of Los Angeles v. Lyons, 461 U.S. 95 (future-injury requirement for injunctive relief)
- Morgan Drexen, Inc. v. CFPB, 785 F.3d 684 (D.C. Cir. 2015) (‘‘substantial risk’’ standard for future injury)
- Clapper v. Amnesty Int’l USA, 568 U.S. 398 (need credible threat or substantial risk for prospective relief)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (procedural-rights doctrine and relaxed redressability explanation)
- American Rivers v. FERC, 895 F.3d 32 (D.C. Cir. 2018) (example where vacatur could change agency’s decision)
- Center for Biological Diversity v. EPA, 861 F.3d 174 (D.C. Cir. 2017) (procedural remedy could lead agency to reach different conclusion)
- Humane Soc’y of the United States v. Babbitt, 46 F.3d 93 (D.C. Cir. 1995) (procedural injury not redressable where action is completed)