991 F.3d 439
2d Cir.2021Background
- National Fuel proposed the 99-mile Northern Access 2016 natural gas pipeline; FERC required state Clean Water Act §401 certification from NY DEC as a condition of its certificate.
- National Fuel submitted its §401 application to the DEC on March 2, 2016; DEC requested supplemental information and did not complete its notice-and-comment process within one year.
- On January 20, 2017, DEC and National Fuel executed an agreement recharacterizing the application "received" date as April 8, 2016 (a 36‑day extension).
- FERC issued a conditional certificate (Feb. 3, 2017); DEC denied §401 certification on April 7, 2017—after one year from the actual receipt date but within 36 days of the agreed date.
- FERC found the DEC had waived its §401 authority by failing to act within one year of actual receipt, rejected the parties’ receipt‑date agreement as impermissible, treated National Fuel’s December 2017 filing as a timely motion for a waiver determination, and denied rehearing.
- DEC and Sierra Club sought review; the court affirmed FERC: Section 401’s one‑year deadline cannot be shifted by an applicant–state agreement and DEC waived its certification authority by missing the one‑year deadline.
Issues
| Issue | DEC / Sierra Club (Plaintiffs) | National Fuel / FERC (Defendants) | Held |
|---|---|---|---|
| Whether §401’s one‑year deadline may be extended by a private agreement that changes the application receipt date | Parties may waive/modify the applicant’s timing right; the applicant and state can agree to a new receipt date | §401 sets a mandatory, non‑extendable one‑year clock that cannot be altered by private agreement | §401’s one‑year limit is mandatory and cannot be altered by an agreement between the certifying agency and the applicant; DEC waived authority by missing the one‑year clock |
| Whether equitable doctrines (waiver/estoppel) bar FERC from deciding or applying the waiver | National Fuel waived its right to challenge the agreed date; estoppel/injustice disfavors FERC relief | FERC could reach the waiver question sua sponte or at third‑party request; equitable defenses cannot preclude agency review | Equitable arguments do not prevent FERC from finding waiver; FERC was not estopped from adjudicating the waiver issue |
| Whether the court has jurisdiction given FERC’s use of indefinite tolling orders on rehearing | Tolling deprived parties of a clear path to judicial review; rehearing deadlines were missed | The NGA’s 30‑day rehearing mechanism is permissive on whether parties must act; §717r(b) governs when review must be filed | Court has jurisdiction: parties were not required to seek review within 60 days of the expiration of FERC’s 30‑day window and timely filed after FERC denied rehearing |
| Whether National Fuel’s December 2017 filing was untimely under NGA rehearing rules | December filing was untimely and should have been rejected | FERC reasonably treated the filing as a separate motion for a waiver determination that may be filed under its general rules | FERC acted reasonably in treating the December 2017 filing as a motion for waiver determination; NGA rehearing timing does not bar such a filing |
Key Cases Cited
- PUD No. 1 of Jefferson Cnty. v. Wash. Dep’t of Ecology, 511 U.S. 700 (Supreme Court) (states’ §401 certification conditions must be incorporated into federal licenses)
- Barnhart v. Peabody Coal Co., 537 U.S. 149 (Supreme Court) (statutory time limits are mandatory only where statute prescribes a consequence)
- Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (Supreme Court) (agency interpretations of statutes are given deference when reasonable)
- New York State Dep’t of Environmental Conservation v. Fed. Energy Regul. Comm’n, 884 F.3d 450 (2d Cir. 2018) (interpreting start of §401 review period and rejecting completion‑only rule)
- Hoopa Valley Tribe v. Fed. Energy Regul. Comm’n, 913 F.3d 1099 (D.C. Cir. 2019) (coordinated agreements to evade §401’s one‑year limit constitute impermissible circumvention)
- Allegheny Def. Project v. Fed. Energy Regul. Comm’n, 964 F.3d 1 (D.C. Cir. 2020) (FERC may not use indefinite tolling orders to avoid deemed‑denial rule under NGA rehearing provision)
- St. Regis Mohawk Tribe v. Brock, 769 F.2d 37 (2d Cir. 1985) (when statutory periods are mandatory and consequences for noncompliance exist)
- Islander E. Pipeline Co., LLC v. McCarthy, 525 F.3d 141 (2d Cir. 2008) (discussing §401 certification requirements)
- Constitution Pipeline Co. v. N.Y. State Dep’t of Env’t Conservation, 868 F.3d 87 (2d Cir. 2017) (explaining state §401 role in federal pipeline licensing)