ALLEGHENY DEFENSE PROJECT, ET AL., PETITIONERS v. FEDERAL ENERGY REGULATORY COMMISSION, RESPONDENT ANADARKO ENERGY SERVICES COMPANY, ET AL., INTERVENORS
No. 17-1098
Unitеd States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 27, 2020 Decided June 30, 2020
On Petition for Rehearing En Banc
Consolidated with 17-1128, 17-1263, 18-1030
Mark Sabath, Emily C. Wyche, Ariel Solaski, Jon A. Mueller, Aaron Stemplewicz, John N. Moore, and Gillian R. Giannetti were on the brief for amici curiae Alliance for the Shenandoah Valley, et al., in support of petitioners.
Megan C. Gibson and David Bookbinder were on the brief for amici curiae Affected Landowners in support of petitioners.
Brian E. Frosh, Attorney General, Office of the Attorney General for the State of Maryland, John B. Howard, Jr., Special Assistant Attorney General, Kathleen Jennings, Attorney General, Office of the Attorney General for the State of Delaware, Kwame Raoul, Attorney General, Office of the Attorney General for the State of Illinois,
Robert M. Kennedy, Senior Attorney, Federal Energy Regulatory Commission, argued the cause for respondent. With him on the brief were James P. Danly, General Counsel at the time the brief was filed, and Robert H. Solomon, Solicitor. Beth G. Pacella, Deputy Solicitor, and Anand R. Viswanathan, Attorney, entered appearances.
John F. Stoviak argued the cause for intervenors. With him on the joint brief were Elizabeth U. Witmer, Patrick F. Nugent, Kevin M. Sweeney, Scott Borden Grover, and Jesse Stuart Unkenholz. Pamela S. Goodwin entered an appearance.
Jeremy C. Marwell and Matthew X. Etchemendy were on the brief for amicus curiae Interstate Natural Gas Association of America in support of respondent.
Catherine E. Stetson, Stefan M. Krantz, A. Gregory Junge, and Sean Marotta were on the brief for amicus curiae TC Energy Corporation in support of respondent.
Megan E. Vetula, Brett K. White, Scott A. Keller, and Marcia Hook were on the brief for amicus curiae the Edison Electric Institute in support of respondent.
Bеfore: SRINIVASAN, Chief Judge, and HENDERSON, ROGERS, TATEL, GARLAND, GRIFFITH, MILLETT, PILLARD, WILKINS, KATSAS, and RAO, Circuit Judges.
Opinion for the Court filed by Circuit Judge MILLETT.
Concurring opinion filed by Circuit Judge GRIFFITH.
Opinion concurring in the judgment and dissenting in part filed by Circuit Judge HENDERSON.
MILLETT, Circuit Judge: Before a party aggrieved by an order of the Federal Energy Regulatory Commission can obtain judicial review, that party must file an application for rehearing with the Commission. Congress directed that, if the Commission fails to act on that rehearing application within thirty days, the application may be deemed denied, allowing the aggrieved party to proceed to federal court.
The question in this case is whether the Commission can eliminate that statutorily prescribed consequence of its inaction—and, in doing so, stave off judicial review—by issuing a tolling order that takes no action on the application other than buying the Commission more time. We hold that, under the plain statutory language and context, such tolling orders are not the kind of action on a rehearing application that can fend off a deemed denial and the
I
A
The Natural Gas Act,
Once the Commission issues such a certificate, the Natural Gas Act authorizes the private party holding the certificate to exercise the governmental power of eminent domain and take “the necessary right-of-way to construct, operate and maintain” the pipeline, unless the property owner agrees to its use.
A party, including an affected homeowner, who seeks to challenge the Commission‘s certificate order (or any other order) must first seek rehearing before the Commission as a precondition to obtaining judicial review.
Any person * * * aggrieved by an order issued by the Commission in a proceeding under this chapter to which such person * * * is a party may apply for a rehearing within thirty days after the issuance of such order. * * * Upon such application the Commission shall have power to grant or deny rehearing or to abrogate or modify its order without further hearing. Unless the Commission acts upon the application for rehearing within thirty days after it is filed, such application may be deemеd to have been denied. No proceeding to review any order of the Commission shall be brought by any person unless such person shall have made application to the Commission for a rehearing thereon. Until the record in a proceeding shall have been filed in a court of appeals, as provided in subsection (b) of this section, the Commission may at any time, upon reasonable notice and in such manner as it shall deem proper, modify or set aside, in whole or in part, any finding or order made or issued by it under the provisions of this chapter.
As relevant to this case, here is what Section 717r(a) provides.
First, as noted, parties wishing to challenge a Commission decision cannot proceed directly to judicial review. Instead, they must first seek rehearing before the Commission.
Second, Congress identified four ways in which the Commission can act upon the application for rehearing. “Upon such application the Commission shall have power to [i] grant or [ii] deny rehearing or to [iii]
Third, if the Commission fails to take any of those actions “within thirty days after it is filed,” the “application may be deemed to have been denied.”
Fourth, even after federal court jurisdiction attaches and a petition is filed, the Commissiоn retains the power to “modify or set aside” its findings and orders “[u]ntil the record in a proceeding [is] filed in a court of appeals.”
time to file the record.
Finally, Section 717r(b) authorizes judicial review in this court or in the appropriate regional circuit to “[a]ny party to a proceeding under [the Natural Gas Act] aggrieved by an order issued by the Commission in such proceeding,”
B
1
In 2015, the Transcontinental Gas Pipe Line Co. (“Transco“) applied to the Commission for a certificate of public convenience and necessity for its Atlantic Sunrise Project, a central aspect of which was the construction of nearly 200 miles of new pipeline in Pennsylvania. The Homeowner Petitioners—the Erb and Hoffman families—found their “much beloved home properties” in southeastern Pennsylvania in the path of the pipeline. J.A. 286.
In opposing the grant of a certificate, the Erbs told the Commission that their farm had been placed in the Lancaster Farmland Trust so as to preserve it as farmland, and that they wished to keep its “natural habitat and historical artifacts * * * undisturbed for a long, long time.” J.A. 28; see also J.A. 75 (Erbs’ comment that they “thought [their] farm would be preserved forever” given its placement in the Trust). The Erbs wrote that they “love living [t]here and enjoy[ing] all the pristine beauty [their] property has to offer.” J.A. 78. They argued that the pipeline “would completely ruin the
woodlands” and damage the wetlands on their property, which together are home to “[w]hitetail deer, turkey, geese, ducks, owls, blue heron, red foxes, Pileated woodpeckers, eagles[,]” and “various types of turtles[.]” J.A. 29. And the pipeline would cut directly through the part of the property where one of the Erbs’ sons had planned to build a home. J.A. 28.
Similarly, the Hoffmans explained that they valued the “beauty and privacy” of their Millersville, Pennsylvania property, where their home lies among “wooded areas,” “agricultural fields,” and several springs that “form * * * the headwaters of a stream [that] flows through a wetland
The Environmental Association Petitioners opposed the Project as well. Some of their members live along the pipeline‘s route and are concerned that the pipeline could contaminate their water sources. The Environmental Associations argued that the Project would also pollute the air in their members’ communities, damage “streams, wetland systems, and forests” that their members frequently use, and contribute to climate change by spurring gas drilling projects. In addition, the Environmental Associations questioned the public need for the Project, pointing to indications that the
Project was designed primarily to transport gas to export terminals for private profit, rather than to meet domestic need.
2
The Commission granted Transco a certificаte of public convenience and necessity for the Project on February 3, 2017. Transcontinental Gas Pipe Line Co., 158 FERC ¶ 61,125 (2017) (“Certificate Order“). Less than two weeks later, Transco initiated condemnation proceedings against the Homeowners in the United States District Court for the Eastern District of Pennsylvania.
The Homeowners and Environmental Associations both filed applications for rehearing before the Commission and, as part of those applications, moved to stay the Certificate Order pending the Commission‘s rehearing decision. The Environmental Associations’ applications were filed on February 10 and 24, 2017; the Homeowners’ application was filed on March 6, 2017.
In their application, the Homeowners argued that a stay was necessary to prevent irreparable harm to “the character and aesthetics” of their “home properties.” J.A. 286. In particular, they argued that building the pipeline would involve “removing topsoil, trees, shrubs, brush, roots, and large rocks, and then removing or blasting additional soil and bedrock to create a trench for the pipeline[,]” all while “contribut[ing] significantly to air pollution[.]” J.A. 286. The Environmental Associations explained that the construction would cause permanent environmental, recreational, and aesthetic harms across 1200 acres.
On March 13, 2017—the first business day after the thirty-day statutory time period for the Commission to act on the first rehearing appliсation, see
Commission issued what is known as a “tolling order” that applied to all three rehearing applications. That order “granted [rehearing] for the limited purpose of further consideration” for an open-ended period of time. J.A. 305 (“Tolling Order“). The Tolling Order added that, by virtue of its issuance, the timely filed rehearing applications “will not be deemed denied by operation of law.” J.A. 305. The order read in full:
Rehearings have been timely requested of the Commission order issued on February 3, 2017, in this proceeding. In the
absence of Commission action within 30 days from the date the rehearing requests were filed, the request for rehearing (and any timely requests for rehearing filed subsequently) would be deemed denied. 18 C.F.R. § 385.713 (2016) .In order to afford additional time for consideration of the matters raised or to be raised, rehearing of the Commission‘s order is hereby granted for the limited purpose of further consideration, and timely-filed rehearing requests will not be deemed denied by operation of law. Rehearing requests of the above-cited order filed in this proceeding will be addressed in a future order. As provided in
18 C.F.R. § 385.713(d) , no answers to the rehearing requests will be entertained.
J.A. 305 (citation and footnote omitted).
The Tolling Order was issued by the Commission‘s Secretary. The Commission has delegated authority to the Secretary to “[t]oll the time for action on requests for rehearing,”
82 Fed. Reg. 10,568, 10,568 n.10 (Feb. 14, 2017) (“Delegation Order“).
The Commission took no action on the pending motions for a stay of the Certificate Order.
The Homeowners and Environmental Associations petitioned for review in this court of both the Certificate Order and the Tolling Order. See Petition for Review, No. 17-1098 (D.C. Cir. March 23, 2017); Petition for Review, No. 17-1128 (D.C. Cir. May 12, 2017). The Commission and Transco moved to dismiss the petitions for lack of jurisdiction, contending that the petitions were “incurably premature” because the Commission had not yet resolved the rehearing requests on the merits and so had not taken “final agency action” on the Certificate Order. Commission Motion to Dismiss for Lack of Jurisdiction at 5–7, No. 17-1098 (D.C. Cir. April 28, 2017) (“[The] requests for rehearing, which are pending before the Commission, rendered the Certificate Order non-final.“); see Motion of Movant-Intervenor Transcontinental Gas Pipe Line Co. to Dismiss the Petition for Review at 9, 14, No. 17-1098 (D.C. Cir. May 12, 2017) (“This action is incurably premature because it seeks to disrupt [the Commission‘s] ongoing administrative review process.“); see also Clifton Power, 294 F.3d at 111 (holding that, until a rehearing application is resolved, the Commission‘s decision is not final for purposes of obtaining judicial review, and any petition for review filed in court is “incurably premature“).1
Those motions were referred to the merits panel and, with the grant of rehearing en banc, are now pending before this court.
While the Homeowners and Environmental Associations waited for the Commission to resolve their rehearing applications, Transco pressed forward with its condemnation action against the Homeowners in the United States District Court for the Eastern District of Pennsylvania. In response to the Homeowners’ objection that the Commission‘s Certificate Order was not valid, Transco told the Pennsylvania
Transco made that argument a mere three weeks after it and the Commission had told this court that the very same order was “non-final” agency action for purposes of the Homeowners’ effort to obtain judicial review. Motion to
Dismiss for Lack of Jurisdiction, supra, at 5–7; see Motion of Movant-Intervenor, No. 17-1128, supra, at 9, 15.
In August 2017—five months after the Commission issued the Tolling Order—the district court in the eminent domain case granted partial summary judgment and a preliminary injunction to Transco, “effectively [giving] the company immediate possession” of the rights of way it needed to build its pipeline across the Homeowners’ land. See Permanent Easements for 2.14 Acres, 907 F.3d at 728–729, 732.
The next week—nearly seven months after a motion for stay was first filed—the Commission denied the Homeowners’ and Environmental Associations’ requests for a stay. Transcontinental Gas Pipe Line Co., 160 FERC ¶ 61,042 (2017). In so doing, the Commission dismissed the Homeowners’ concerns about the destruction of their trees, the digging or blasting of a trench across their yards, and the air pollution at their properties as merely “generalized claims of environmental harm [that] do not constitute sufficient evidence of irreparable harm that would justify a stay.” Id. at ¶ 8; see also id. at ¶ 8 n.17 (quoting the Homeowners’ discussion of air pollution, but not addressing their objections to the imminent physical damage to their properties).
On September 5, 2017, Transco requested that the Commission issue an order authorizing it to start construction, including on the Homeowners’ land. Ten days later, the Commission granted Transco a Construction Order. J.A. 324 (“Construction Order“). Transco broke ground in Pennsylvania the same day. Meanwhile, the Homeowners’ and Environmental Associations’ rehearing applications remained pending.
The Environmental Associations promptly sought rehearing and rescission of the Construction Order. As the
thirty-day mark approached, the Commission issued another tolling order that served only to give itself an unlimited amount of time to act while preventing judicial review of the Construction Order based on agency inaction. J.A. 326.
Finally, in December 2017—nine months after the statutory thirty-day period for action passed—the Commission denied rehearing of the Certificate Order. Transcontinental Gas Pipe Line Co., 161 FERC ¶ 61,250 (2017) (“Certificate Rehearing Order“). By that time, Transco had already started construction on the Homeowners’ property.
After the Commission denied rehearing, the Homeowners and Environmental Associations timely filed their second petitions for review with this court. See
Three months after denying rehearing of the Certificate Order, the Commission denied rehearing of the Construction Order. Transcontinental Gas Pipeline Co., 162 FERC ¶ 61,192 (2018).
By the time a panel of this court held oral argument in December 2018 on the merits of the Homeowners’ and Environmental Associations’ petitions for review, the pipeline had been built and operational for two months. Notification of
Placement Into Service, Transcontinental Gas Pipe Line Co., Nos. CP-15-138-000 & CP17-212-000 (FERC Oct. 9, 2018).
The panel ultimately treated the motions to dismiss the first round of petitions as moot, reasoning that the second round gave this court jurisdiction to review the Certificate Rehearing Order, “which encompasses all of [the Homeowners’ and Environmental Associations‘] claims for our review and is the final agency decision greenlighting the Project[.]” Allegheny Defense Project v. FERC, 932 F.3d 940, 945 & n.1 (D.C. Cir. 2019) (per curiam). On the merits, the panel rejected the Homeowners’ and Environmental Associations’ arguments and denied the petitions for review. Id. at 945–948.
The court subsequently granted the Homeowners’ petition for rehearing en banc and vacated the panel‘s judgment.
II
We took this case en banc to address a focused question of statutory construction: Does the Federal Energy Regulatory Commission “act[] upon” an application for rehearing within the meaning of Section 717r of the Natural Gas Act by issuing a tolling order that does nothing more than prevent the application from being deemed denied by agency inaction and preclude the applicant from seeking judicial review until the Commission acts?
The question is an important one. The Commission‘s use of tolling orders that do nothing more than buy itself more time to act on a rehearing application and stall judicial review has become virtually automatic. As the Commission acknowledged at oral argument, absent some special need for “quick action,” it enters tolling orders “almost as a matter of routine,” as it did in this case. Oral Arg. Tr. 89:6–9; id. (“I believe that‘s the process that was followed here.“).
By way of illustration, over the last twelve years, the Commission issued a tolling order in all thirty-nine cases in which a landowner sought rehearing in a proceeding involving natural gas pipelinе construction. Commission‘s Rule 28(j) Letter at 111 (May 4, 2020) (reproducing documents the Commission submitted to the Subcommittee on Civil Rights and Civil Liberties of the House Committee on Oversight and Reform). Another study showed (and the Commission has not denied) that, between 2009 and 2017, the Commission issued tolling orders in response to 99% of all the requests for rehearing of pipeline certification decisions that it received, whether from homeowners or other parties. Petition for an Extraordinary Writ at Exhibit G, In re Appalachian Voices, No. 18-1030 (Jan. 8, 2018) (cataloguing tolling orders
The use of these tolling orders has real-world consequences. In practice, they can prevent aggrieved parties from obtaining timely judicial review of the Commission‘s decision. As mentioned, Section 717r provides that a rehearing application may be deemed denied if the Commission does not act upon it within thirty days.
On top of that, the Commission and private certificate holders use its tolling orders to split the atom of finality. They
are not final enough for aggrieved parties to seek relief in court, but they are final enough for private pipeline companies to go to court and take private property by eminent domain. And they are final enough for the Commission to greenlight construction and even operation of the pipelines. Tolling orders, in other words, render Commission decisions akin to Schrödinger‘s cat: both final and not final at the same time.
That asymmetrical finality timetable has become commonplace in Commission cases. For the 114 natural gas pipeline cases pending before the Commission from October 1, 2008 through February 19, 2020 in which any party—landowner or otherwise—requested a rehearing, the Commission authorized construction to begin before resolving the rehearing request on the merits in 64% of the cases. Commission‘s Rule 28(j) Letter at 111. See generally Subcommittee Releases Preliminary Findings Showing FERC Pipeline Approval Process Skewed Against Landowners, HOUSE COMMITTEE ON OVERSIGHT & REFORM (April 28, 2020), https://oversight.house.gov/news/press-releases/subcommittee-releases-preliminary-findings-showing-ferc-pipeline-approval (summarizing a preliminary video report on an investigation into the Commission‘s certificate and rehearing process by the Subcommittee on Civil Rights and Civil Liberties of thе House Committee on Oversight and Reform).2
The problem is well known to the Commission itself. Commissioner Glick has called the process enabled by the Commission‘s tolling orders “fundamentally unfair,” at least when it “allows a pipeline developer to build its entire project while simultaneously preventing opponents of
order violated NEPA); Columbia Gas Transmission, LLC, 170 FERC ¶ 61,246, at ¶¶ 1–2 (2020) (Commission tolled environmental groups’ rehearing application for more than two years, while allowing a 170-mile рipeline to be completely built and put into service more than a year before the Commission ruled on the merits, see Environmental Compliance Monitoring Report at 1, No. CP16-357-000 (FERC Dec. 23, 2019)).
Against that backdrop, we turn to first principles and ask whether the Natural Gas Act allows the Commission to issue tolling orders for the sole purposes of preventing rehearing from being deemed denied by its inaction and the statutory right to judicial review attaching. As a matter of plain statutory text and structure, the Commission lacks that authority.
A
Because it is a pure question of law, we decide the meaning of Section 717r of the Natural Gas Act de novo. See Association of American Railroads v. United States Dep‘t of Transp., 896 F.3d 539, 544 (D.C. Cir. 2018); Validus Reinsurance, Ltd. v. United States, 786 F.3d 1039, 1042 (D.C. Cir. 2015).
To be sure, in agency cases, we generally grant deference to an agency‘s reasonable interpretation of ambiguity in a statute it administers, applying the framework of Chevron U.S.A. Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837 (1984); see also Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2142, 2144 (2016). And that is what the Commission asks for here.
The problem for the Commission is that Chevron deference is available only when an agency interprets a statutory provision that Congress has charged it with
administering through application of its expertise. See National Parks Conservation Ass‘n v. Semonite, 916 F.3d 1075, 1088 (D.C. Cir. 2019). But statutory provisions addressing the jurisdiction of federal courts do not fit that mold. Federal agencies do not administer and have no relevant expertise in enforcing the boundaries of the courts’ jurisdiction. See Murphy Exploration & Production Co. v. United States Dep‘t of the Interior, 252 F.3d 473, 478–479 (D.C. Cir. 2001); see also Adams Fruit Co. v. Barrett, 494 U.S. 638, 649–650 (1990) (holding that, in the context of identifying a private right of action, the congressional delegation to the agency of authority to administer other parts of the statute did not “empower [the
Section 717r(a) speaks directly to federal court jurisdiction to review Commission orders. It conditions jurisdiction on a petitioner having first “made application to the Commission for a rehearing.”
The Commission acknowledges that Section 717r(b) is a jurisdiction-conferring provision administered by the courts. But it argues that the provision at issue here is Section 717r(a), which it views as addressing only the Commission‘s own “jurisdiction to entertain rehearing requests.” Commission‘s Br. 21.
That slices the salami too thinly. In Murphy Exploration, we held that Chevron deference does not apply to a similarly structured statute,
addressing administrative proceedings were tied directly to a neighboring provision conferring federal court jurisdiction. See 252 F.3d at 478-480. Subsection (1) of
So too here.
B
The question before this court is whether the Commission had the authority to issue the Tolling Order that served solely to override the deemed-denied provision and thereby prevent the petitioners from seeking judicial review until whenever the Commission acted. Because
The statute then specifies what happens once such an application is filed:
Upon such application [for rehearing] the Commission shall have power to grant or deny rehearing or to abrogate or modify its order without further hearing. Unless the Commission acts upon the application for rehearing within thirty days after it is filed, such application may be deemed to have been denied.
The statute is equally precise about what is to happen if the Commission fails to “act[] upon the application” within thirtydays: The application “may be deemed to have been denied.”
The Commission insists (Br. 22–24) that its Tolling Order did “act[] upon the application,”
First, a “grant” of rehearing, as opposed to inaction on an application for rehearing, necessarily requires at least some substantive engagement with the application. A grant of rehearing cannot consist solely of a grant of additional time to decide whether to grant rehearing. Yet the Commission admits that its purported grant of rehearing in this case, as is true “in virtually every case[,]” was made without any substantive engagement with the rehearing application. Oral Arg. Tr. 89:10–20. Rather, the sole purpose of the Tolling Orderwas to take “some” kind of “action on [the application] within 30 days” just to give the Commission more time “to issue a substantive order” on the application at some unspecified later date. Id. at 89:23–90:12. That is why the Tolling Order is emphatic that it is doing one thing, and one thing only: It is preventing “timely-filed rehearing requests” from being “deemed denied by operation of law,” J.A. 305, and in that way foreclosing judicial review of the underlying order for as much time as the Commission chooses to take.
Lest there be any doubt, the Tolling Order immediately qualifies its “grant[]” as being made only “for the limited purpose” of “afford[ing] additional time for consideration of the matters raised[.]” J.A. 305. That is not a grant of rehearing of the
Nor does the Commission even attempt to argue that its announced intention to decide something about the rehearing application at some unspecified time in the future falls within the ordinary meaning of “rehearing,” or any definition of “rehearing” known to the law. We could not find any textual justification for it either. When
Second, the Tolling Order did not do—and could not have done—anything more than stall for time. As routinely happens, the Tolling Order was entered not by the Commission itself, but by its Secretary (or Deputy Secretary). J.A. 305, 326. Thе Secretary, though, has not been delegated any authority to “act on” the rehearing application. Delegation Order, 82 Fed. Reg. at 10,568 (Secretary lacks “authority to act on requests for rehearing“); cf.
Yet, to avoid having the rehearing application deemed denied,
Third, the Commission‘s practice confirms what the Tolling Order said: Its sole function was to grant the Commission an unbounded amount of “additional time,” J.A. 305, 326, within which rehearing could never be deemed denied and during which
In this case, the Commission took an extra nine months to act. Over the last twelve years, the Commission has taken 212 days on average—аbout seven months—from tolling order to actual rehearing decision on landowners’ applications in pipeline cases. Commission‘s Rule 28(j) Letter at 111. On average, then, the Commission has been octupling the statutory timeframe for decision in such cases. Other matters before the Commission have met a similar fate, with open-ended tolling orders leaving applicants awaiting action for a year or more. See, e.g., Calpine Corp., 171 FERC ¶ 61,034, at ¶¶ 60–66 (2020) (Commission took twenty-two months to deny States’ rehearing applications challenging an order in a Federal Power Act tariff case that, in the States’ view, infringed on their jurisdiction and sovereign rights); Environmental Amici‘s Br. 21–22 & Exhibit D (collecting proceedings across allcategories of the Commission‘s business in which the Commission issued a decision in 2018 or 2019, and finding that it tolled every timely filed rehearing application, with an average tolling period of more than six months).
At bottom, what the Tolling Order did was delete the thirty-day time limit and the deemed-denied provision from the statute.
But the Commission has no authority to erasе and replace the statutorily prescribed jurisdictional consequences of its inaction. Agencies, no less than courts, cannot render statutory language a nullity and leave entire operative clauses with “no job to do.” Doe v. Chao, 540 U.S. 614, 623 (2004); see also Clark v. Rameker, 573 U.S. 122, 131 (2014) (“Petitioners’ reading would write out of the statute the first element. It therefore flouts the rule that a statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous.“) (internal quotation marks omitted).
Fourth, and tellingly, when Congress wants to allow agencies to modify the consequences of their inaction, it says so explicitly—and carefully cabins the agency‘s leeway in the process. See, e.g.,
Congress, in fact, kept the Commission on a tight leash when it amended the Federal Power Act, a close relative of the Natural Gas Act, to allow the Commission to extend the amount of time it had to act
The absence of any comparable authority to toll in
Undeterred by the lack of authorizing language in
Fifth, the Commission argues (Br. 28–33) that the Tolling Order was necessary to afford it the time it needed to act in this complicated area of law. While the Commission‘s responsibilities are substantial, we are bound to enforce the statutory text and its jurisdictional grant as Congress wrote it.
It also bears emphasizing, in that regard, that the only question we decide is that the Commission cannot use tolling orders to change the statutorily prescribed jurisdictional consequences of its inaction. That is not the same thing as saying the Commission must actually decide the rehearing application within that thirty-day window. Because the Tolling Order served only to override the deemed-denied provision and so to postpone judicial review, we need not decide whether or how
Moreover, even when the agency takes no action during the thirty-day period,
That means that, even after a petition for judicial review is filed, the Commission retains the authority to “mоdify or set aside, in whole or in part” the underlying order or findings. The Commission retains this authority until the administrative record is filed in court, which is typically forty days after the petition is served on the Commission.
So in practice, even if an applicant files a petition for review immediately after a deemed denial, the Commission will typically still have at least seventy days total, with thepossibility of more time, to act on a rehearing application. The difference between
Preserving that balance as Congress struck it is vital because “no legislation pursues its purposes at all costs.” Rodriguez v. United States, 480 U.S. 522, 525–526 (1987) (per curiam). Much as it has in the statutes that expressly grant a tightly cabined tolling authority, see supra at 27–28, Congress chose in
Finally, the Commission (Br. 23, 42) and the dissenting opinion invoke stare decisis—“the idea that today‘s [c]ourt should stand by yesterday‘s decisions[,]” Kimble v. Marvel Entm‘t, LLC, 135 S. Ct. 2401, 2409 (2015). Both contend that, because past decisions allowed the Commission‘s use of tolling orders, stare decisis prevents us from invalidating the Tolling Order in this case.
We first upheld a tolling order in California Co. v. Federal Power Commission, 411 F.2d 720 (D.C. Cir. 1969) (per curiam). There, a two-judge panel of the court, without the benefit of oral argument, deferred to the Commission‘s reading of
Stare decisis principles do not require us to continue down the wrong path. Because circuit courts “play a different role in the federal system than the Supreme Court,” stare decisis applies differently to circuit precedent than it does at the Supreme Court. Critical Mass Energy Project v. Nuclear Regulatory Comm‘n, 975 F.2d 871, 876 (D.C. Cir. 1992) (en banc). In particular, as the dissenting opinion acknowledges, Dissenting Op. at 3, it is appropriate for the en banc court to set aside circuit precedent when, “on reexamination of an earlier decision, it decides that the panel‘s holding on an important question of law was fundamentally flawed[,]” Critical Mass Energy, 975 F.2d at 876; accord United States v. Burwell, 690 F.3d 500, 504 (D.C. Cir. 2012) (en banc) (same).
We also may depart from circuit precedent when “intervening development[s]” in the law—such as Supreme Court decisions—“ha[ve] removed or weakened the conceptual underpinnings from the prior decision[.]” Burwell, 690 F.3d at 504 (quoting Patterson v. McLean Credit Union, 491 U.S. 164, 173 (1989)).
California Co.‘s acceptance of tolling orders is both “fundamentally flawed,” Critical Mass Energy, 975 F.2d at 876, and irreconcilable with intervening Supreme Court decisions, Burwell, 690 F.3d at 504, in two respects.
First, intervening Supreme Court precedent emphatically establishes that courts must take statutory language at its word. See, e.g., Intel Corp. Investment Policy Comm. v. Sulyma, 140 S. Ct. 768, 776 (2020) (“We must enforce plain and unambiguous statutory language * * * according to its terms.“) (internal quotation marks omitted); Obduskey v. McCarthy & Holthus LLP, 139 S. Ct. 1029, 1040 (2019) (“[W]e must enforce the statute that Congress enacted.“). Doing so requires courts to start with the statutory text, and to end there as well when, as here, the statute speaks clearly. As the Supreme Cоurt “has explained many times over many years,” when “the meaning of the statute‘s terms is plain, our job is at an end.” Bostock v. Clayton County, Nos. 17-1618 et al., 2020 WL 3146686, at *14 (U.S. June 15, 2020); see also, e.g., National Ass‘n of Mfrs., 138 S. Ct. at 631.
Second, as we and the Supreme Court have since recognized, agencies get no deference in interpreting jurisdictional statutes. See Adams Fruit, 494 U.S. at 649–650; Murphy Exploration, 252 F.3d at 478–479; supra at 19–21.
Because the approach to statutory construction reflected in our tolling order precedent was fundamentally flawed and grounded in a mode of statutory construction that has beenforeclosed by the Supreme Court, stare decisis principles do not stand in the way of the en banc court holding that
* * * * *
In sum, we hold that, after thirty days elapsed from the filing of a rehearing application without Commission action, the
III
Because the Commission‘s Tolling Order could not prevent the Homeowners and Environmental Associations from seeking judicial review, the initial petitions for review that they filed challenging the Certificate Order in Nos. 17-1098 and 17-1128 are properly before this court for review, and the motions to dismiss those petitions for lack of jurisdiction are denied.
In those petitions, as well as two later-filed ones, the Homeowners and Environmental Associations challenged the Commission‘s finding of a market need for the pipeline. To obtain a certificate of public convenience and necessity, Transco had to demonstrate, among other things, market need for its proposed transportation of natural gas. See Sierra Club v. FERC, 867 F.3d 1357, 1379 (D.C. Cir. 2017); Myersville, 783 F.3d at 1309 (citing Certification of New Interstate Natural Gas Pipeline Facilities, 88 FERC ¶ 61,227 (1999), clarified, 90 FERC ¶ 61,128 (2000), further clarified, 92 FERC ¶ 61,094 (2000)).
The Commission found that the market-need requirement was satisfied here, relying in part on “precedent agreements.” Precedent agreements are long-term contracts in which gas shippers agree to buy the proposed pipeline‘s transportation services. Myersville, 783 F.3d at 1310.
The Homeowners and Environmental Associations argue that reliance on the precedent agreements was arbitrary and capricious because those contracts evidenced demand for export capacity, not domestic use of the natural gas being transported.
We have reconsidered and agree with the panel‘s decision that the Commission reasonably found market need in this case. In doing so, we need not address the Homeowners’ and Environmental Associations’ objections to reliance on precedent agreements because, in this case, the Commission also grounded its finding of market need on “comments by two shippers and one end-user, as well as a study submitted by one of the Environmental Associations, all of which reinforced the [domestic] demand for the natural gas shipmеnts.” 932 F.3d at 947.
IV
In conclusion, the Tolling Order—which did nothing more than purport to override the statutorily prescribed jurisdictional consequences of the Commission‘s inaction on the pending rehearing applications—was not an “act[ion] upon” the Homeowners’ and Environmental Associations’ rehearing applications within the meaning of
So ordered.
GRIFFITH, Circuit Judge, with whom KATSAS and RAO, Circuit Judges, join, concurring: I join the opinion for the court. The Commission “acts upon” an application for
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One cannot review the procedural history of this case, and others like it, without concluding that something is amiss. Landowners watch as their property is handed over to pipeline companies and irreparably transformed, all without judicial consideration of the crucial question: Should the pipeline exist? As I see it, this injustice is the unintentional result of the way three factors sometimes combine. First, the Natural Gas Act allows the Commission to postpone judicial review by “grant[ing] . . . rehearing” short of deciding the merits.
Today‘s decision doesn‘t uproot these factors. Nor could it: As the court‘s opinion explains, the case before us presents “a focused question of statutory construction.” Maj. Op. at 15. But the court is rightly concerned about procedural fairness—or lack thereof—in the Commission‘s approach to pipeline cases. It‘s worth considering which aspects of that approach come with benefits and which impose the highest costs. Postponing judicial review until the Commission completes its rehearing process is both compelled by existing law and, in my view, quite sensible. Landowners suffer injustice only when that delay is unreasonable, or when it is accompanied by irreversible construction or the condemnation of their property. The good news is that our court, district courts, and the Commission itself have the necessary tools to guarantee fair proceedings.
Start with delayed judicial review. All agree that the Natural Gas Act permits us to review a Commission certificate order in one of two scenarios. First, we take jurisdiction when the Commission fails to “act[] upon the application for rehearing within thirty days after it is filed.”
Second, we can hear challenges to a certificate order once the Commission completes its substantive review. Phrased in the negative, we lack jurisdiction “until FERC rules on the merits of a granted petition for rehearing.” Moreau, 982 F.2d at 564 (emphasis added). That caveat is important because the Commission can grant rehearing without making a merits decision. Nothing in the statute suggests that Congress really meant “decide the merits” when it said “grant . . . rehearing.”
By its own logic, the court‘s opinion has nothing to say about this route to judicial review. Nor does it offer guidance on what counts as a Commission “grant” of rehearing. In fact, it expressly declines to weigh in on orders that “grant rehearing for the express purpose of revisiting and substantively reconsidering a prior decision” and provide “further hearing processes.” Id. at 29-30. That limitation on today‘s decision leaves the Commission free to grant rehearing by agreeing to consider the applicant‘s arguments for modifying or revoking its previous action—i.e., by deciding to decide. Going forward, the Commission should receive the benefit of the doubt when it issues an order that announces a clear intention to reconsider the merits of the underlying order and a concrete step operationalizing that intent. For example, the Commission would easily satisfy the Act by setting a briefing schedule or by ordering the pipeline company to respond to the claims made in the application.
The upshot: When the Commission actually grants rehearing—as opposed to issuing a tolling order—it secures additional time to consider whether to alter or revoke the underlying order. The Commission‘s leeway to postpone judicial review isn‘t an aberration born of agency trickery; it‘s a consequence of the statutory text and sound circuit precedent. A different approach would subvert Congress‘s expectation that generalist judges will, in the ordinary course, consider complex pipeline cases only after expert review. See Nw. Pipeline Corp. v. FERC, 863 F.2d 73, 77-78 (D.C. Cir. 1988); Public Serv. Comm‘n v. Federal Power Comm‘n, 543 F.2d 757, 774 n.116 (D.C. Cir. 1974). “[M]andatory petition-for-rehearing requirement[s],” although “virtually unheard-of” in other contexts, “happen to exist in all three of the major statutes administered by FERC.” ASARCO, Inc. v. FERC, 777 F.2d 764, 774 (D.C. Cir. 1985) (Scalia, J.). These provisions, including section 717r, are “the product of an awareness that FERC‘s complex and multi-party proceedings would soon overwhelm the system if agreed-upon settlements and acquiesced-in agency dispositions were not the rule rather than the exception.” Id.
Artificially restricting the Commission‘s time for reconsideration would undermine its ability to evaluate the arguments and evidence presented by aggrieved parties and burden federal courts of appeal. But we shouldn‘t let down our guard—an agency given an inch might be tempted to take a mile. If the Commission promises rehearing proceedings but in fact provides nothing more than undue delay, we should entertain the possibility of mandamus relief. See Del. Riverkeeper Network v. FERC, 895 F.3d 102, 113 (D.C. Cir. 2018).
That brings us to the next major contributor to unfairness in pipeline cases: approval of irreversible construction while rehearing is pending. Deferred judicial review, on its own, doesn‘t necessarily harm landowners. That harm stems from the Commission‘s actions in the interim. And the Commission has long issued construction orders—essentially qualified permission slips to begin bulldozing—while its “rehearing” is ongoing and before an Article III court has weighed in. See Maj. Op. at 17. In recent weeks, however, the Commission has proven capable of changing course in the face of public criticism. After oral argument, the Commission formally amended its rehearing regulations to “preclude[] the issuance” of construction orders “while rehearing of the initial order[] is pending.” Order No. 871,
However, as the court notes, the Commission‘s “new rule does not . . . prevent eminent domain proceedings from going forward based on the underlying certificate order.” Maj. Op. at 18 n.2. Those proceedings are the final piece of the puzzle. In this case, the district court relied on the Certificate Order to support condemnation even though the Commission had (purportedly) “granted” rehearing. See Transcon. Gas Pipe Line Co. v. Permanent Easements for 2.14 Acres & Temp. Easements for 3.59 Acres in Conestoga Township, Lancaster County, Pa., Tax Parcel No. 1201606900000, 2017 WL 3624250, at *3-4 (E.D. Pa. Aug. 23, 2017). But that practice doesn‘t follow from the district court‘s conclusion that it lacked jurisdiction to review the merits of the underlying Certificate Order. See id. at *3 (collecting cases and explaining that “the validity of a FERC Order can only be challenged in front of FERC, and then in the [D.C. Circuit]“).
In any event, the district court should not plow ahead in the face of a true grant of rehearing. Nothing in the Natural Gas Act prevents a district court from holding an eminent-domain action in abeyance until the Commission completes its reconsideration of the underlying certificate order. Although “[t]he filing of an application for rehearing . . . shall not, unless specifically ordered by the Commission, operate as a stay of the Commission‘s order,”
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The court‘s decision rightly jettisons the Commission‘s signature stalling tactic. But it doesn‘t alter the fact that the Commission can postpone review by granting rehearing. Those concerned about potential abuse of that power should take heart: The Commission‘s recent rule change is a major step in the right direction, and courts possess other tools to protect landowners.
KAREN LECRAFT HENDERSON, Circuit Judge, concurring in the judgment and dissenting in part: With little regard for stare decisis, my colleagues overrule a statutory construction that our court has employed for over fifty years. Because ”stare decisis . . . is a ‘foundation stone of the rule of law,‘” Allen v. Cooper, 140 S. Ct. 994, 1003 (2020) (quoting Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 798 (2014)), and reversing our precedent “demand[s] a ‘special justification,’ over and above the belief ‘that the precedent was wrongly decided,‘” id. (quoting Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 266 (2014)), and because I believe no special justification exists here, I would leave it to the political branches to determine whether and how to limit FERC‘s use of tolling orders.
Even for the en banc court, stare decisis is the rule and overturning precedent the rare exception. This is especially true in the context of a statutory construction, where “[c]onsiderations of stare decisis have special force.” Patterson v. McLean Credit Union, 491 U.S. 164, 172 (1989). Put differently,
[t]he burden borne by a party urging the disavowal of an established precedent is greater “where the Court is asked to overrule a point of statutory construction . . . for here, unlike in the context of constitutional interpretation, . . . Congress remains free to alter what we have done.”
United States v. Burwell, 690 F.3d 500, 504 (D.C. Cir. 2012) (en banc) (quoting Patterson, 491 U.S. at 172–73); see also Hilton v. S.C. Pub. Rys. Comm‘n, 502 U.S. 197, 205 (1991) (stare decisis “is most compelling” in “pure question of statutory construction“); Kimble v. Marvel Entm‘t, LLC, 135 S. Ct. 2401, 2409 (2015) (“[U]nlike in a constitutional case, critics of our [prior] ruling can take their objections acrossthe street, and Congress can correct any mistake it sees.“). We therefore overturn an earlier statutory interpretation only “under a very narrow range of circumstances.” Burwell, 690 F.3d at 504.
The majority states that “[w]e took this case en banc to address a focused question of statutory construction,” Majority Op. 15 (emphasis added), and that it reviews this “pure question of law” de novo, id. at 19. It errs in both regards. In fact, we are readdressing our construction of
The majority concludes that “[t]o the extent our prior decisions upheld [FERC‘s] use of tolling orders . . . , they are overruled in relevant part,” Majority Op. 34 (emphasis added), but reaches this conclusion without proper regard for the “extent” to which tolling orders have been upheld. Since 1969 we have consistently held that FERC‘s tolling orders “act upon” a petition for rehearing under
My colleagues do not skirt stare decisis for want of an applicable standard. The Supreme Court has “articulated in some detail the circumstances in which it may find sufficient justification for overturning a statutory precedent,” Critical Mass Energy Project v. Nuclear Regulatory Comm‘n, 975 F.2d 871, 875 (D.C. Cir. 1992) (en banc), with “the primary reason for the Court‘s shift in position [being] the intervening development of the law, through either the growth of judicial doctrine
The “growth of judicial doctrine” since we decided California Co. cuts against reversal. Indeed, the majority breaks new ground as the first court of appeals to disapprove FERC‘s use of tolling orders since the Natural Gas Act became law in 1938. See Berkley v. Mountain Valley Pipeline, LLC, 896 F.3d 624, 631 (4th Cir. 2018), cert. denied, 139 S. Ct. 941 (2019); Kokajko v. FERC, 837 F.2d 524, 525 (1st Cir. 1988) (per curiam); Gen. Am. Oil Co. of Tex. v. Fed. Power Comm‘n, 409 F.2d 597, 599 (5th Cir. 1969) (per curiam). And it does so despite the Congress‘s long-standing awareness that multiple courts of appeals have approved FERC‘s tolling orders. See Jackson v. Modly, 949 F.3d 763, 772–73 (D.C. Cir. 2020) (“The Supreme Court has held that ‘Congress’ failure to disturb a consistent judicial interpretation of a statute may provide some indication that “Congress at least acquiesces in, andapparently affirms, that interpretation.“‘“) (quoting Monessen Sw. Ry. Co. v. Morgan, 486 U.S. 330, 338 (1988) (brackets omitted)). In other words, it is not our precedent but today‘s decision that is a “positive detriment to coherence and consistency in the law.” Patterson, 491 U.S. at 173. The majority initiates the type of “erratic” change in the law that stare decisis is designed to prevent.
[T]he important doctrine of stare decisis, the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion[,] . . . permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of government, both in appearance and in fact. While stare decisis is not an inexorable command, . . . any detours from the straight path of stare decisis . . . have occurred for articulable reasons, and only when the Court has felt obliged to bring its opinions into agreement with experience and with facts newly ascertained.
Vasquez v. Hillery, 474 U.S. 254, 265–66 (1986) (citation and quotation marks omitted).
And although I share the majority‘s commitment to textualism, see Majority Op. 33, I would exercise a degree of judicial humility before deciding that every court to consider FERC‘s use of tolling orders since
The majority emphasizes that FERC‘s use of tolling orders “has become virtually automatic.” Majority Op. 15. But the frequency
I share my colleagues’ concern for the predicament that tolling orders create for some homeowners. But I continue to agree with my esteemed colleague, Judge Buckley, writing for the en banc court in 1992, and “accept the wisdom of Justice Brandeis‘s observation . . . that ‘[s]tare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right.‘” Critical Mass Energy Project, 975 F.2d at 877 (quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting)). Notwithstanding our constitutional duty to “say what the law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), we should not obliterate solid precedent with only a perfunctory “by your leave.” And, in declaring the law governing FERC‘s application of its expertise, I believe we should exhibit Third Branch modesty in deciding how our country handles a complex undertaking like the construction of natural gas pipelines. Accordingly, Irespectfully dissent pro tanto from the overruling of California Co. and its progeny.