No Gas Pipeline v. Federal Energy Regulatory Commission
756 F.3d 764
D.C. Cir.2014Background
- FERC granted certificates of public convenience and necessity to Spectra subsidiaries to expand pipelines in CT and NJ and extend a pipeline into lower Manhattan (the NJ‑NY Project).
- Environmental groups (NO Gas Pipeline, Sierra Club, Food & Water Watch) intervened, raised NEPA-related concerns (notably radon levels and cyber‑security), and sought rehearing after FERC issued a Final EIS and the certificate.
- Jersey City separately filed a petition alleging FERC’s funding structure (assessment funding rather than taxpayer funding) creates potential or actual bias, violating due process and the APA.
- FERC addressed radon and cyber‑security comments in its orders and denied rehearing; petitions for review were filed in this court challenging those orders.
- The D.C. Circuit concluded it lacked jurisdiction over all petitions and dismissed them without reaching the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing of environmental petitioners to challenge FERC’s NEPA analysis (radon) | Members will suffer increased radon exposure from project gas — concrete injury imminent | No concrete or imminent injury; causal chain relies on third parties and speculative future events | Dismissed for lack of Article III standing (injury and causation not shown) |
| Standing to challenge pipeline safety / cyber‑attack risk | Members face heightened safety risks from cyber vulnerabilities of pipeline operations | Alleged harms are speculative and dependent on intervening third‑party actions | Dismissed for lack of standing (no imminent or traceable injury) |
| Jurisdiction under 15 U.S.C. § 717r(b) for Jersey City’s constitutional challenge to FERC funding | § 717r(b) allows review because Jersey City is aggrieved by a FERC order | Jersey City does not challenge any aspect of FERC’s order; claim targets Budget Act funding, not the NGA order | Dismissed: § 717r(b) does not confer jurisdiction over Jersey City’s Budget Act–based claim |
| Timeliness and preservation of Jersey City’s alleged actual‑bias claim | Due‑process bias claim may be raised before the court | Claim was not raised before FERC and lacks record development; rehearing doctrine bars new issues | Dismissed as unpreserved / untimely before the agency |
Key Cases Cited
- Wyo. Outdoor Council v. U.S. Forest Serv., 165 F.3d 43 (D.C. Cir. 1999) (court must confirm jurisdiction before reaching merits)
- Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) (jurisdictional limits require courts to address standing)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (three‑part constitutional standing test)
- Occidental Permian Ltd. v. FERC, 673 F.3d 1024 (D.C. Cir. 2012) (speculative future harms insufficient for standing)
- Ward v. Village of Monroeville, 409 U.S. 57 (1972) (due process requires neutral decisionmakers)
- In re Murchison, 349 U.S. 133 (1955) (appearance of bias and due process principles)
- Watts v. SEC, 482 F.3d 501 (D.C. Cir. 2007) (direct‑review jurisdiction depends on congressional grant; otherwise district court is the default forum)
- Lead Indus. Ass’n, Inc. v. EPA, 647 F.2d 1130 (D.C. Cir. 1980) (constitutional claims not timely raised before the agency may be barred)