617 F.2d 775 | D.C. Cir. | 1980
Opinion for the Court filed by WILKEY, Circuit Judge.
Complainants the State of Alaska and Earth Resources Company of Alaska challenge a Federal Energy Regulatory Commission (FERC) order setting design specifications and initial capacity for the Alaska segment of the Alaska National Gas Transportation System. This system comprises an overland pipeline through Canada to transport natural gas from the Alaska North Slope to the lower forty-eight states. To expedite the approval and construction of the pipeline system Congress established a special procedural framework in the Alaska Natural Gas Transportation Act (ANG-TA).
I. FACTS
In September 1977, in accordance with procedures established by the ANGTA, the' President approved a proposal for the nature and route of the Alaska Natural Gas Transportation System.
II. ANALYSIS
Our analysis in this case must follow the unique procedures that Congress established in the ANGTA to expedite construction of the Alaska natural gas pipeline. In an earlier decision of this court we described the passage of the ANGTA, the decision by the President subsequently ratified by Congress, and the procedural framework for agency action and judicial review under the ANGTA.
A.
The ANGTA prevents us from reviewing agency decisions on the pipeline system for reasonableness or substantial support on the record. We are strictly limited to reviewing claims of denial of constitutional rights, or action in excess of statutory jurisdiction, authority, or limitations, or action short of statutory right.
In the present case there can be no doubt that the Commission had statutory jurisdiction and authority to approve specifications of pipeline diameter and pressure. The Natural Gas Act authorizes the Commission to issue certificates for the transportation of natural gas,
B.
Complainants claim that the Commission violated due process by deciding the pressure issue in isolation from decisions on such related issues as carbon dioxide content and conditioning plant design. By foreclosing options on these related issues, complainants contend, the Commission’s piecemeal decision on the pressure issue has rendered any future hearing on the related issues meaningless, thus denying due process rights regarding those issues.
In order to invoke the due process guarantee of a hearing, one must show that a government action infringes upon a liberty or property interest.
Complainants’ contention of “piecemeal adjudication” does not actually state a due process claim, but rather an attack on the Commission’s choice to structure its proceedings on an issue-by-issue basis. The Supreme Court has affirmed in the clearest terms that agencies have broad discretion to fashion their own procedures.
c.
Complainants raise a further argument that the Commission has exceeded certain statutory limitations on its actions. First, they observe that the Commission has not acted within the normal framework for certificate applications under section 7(c) of the Natural Gas Act.
D.
As another statutory limitation to FERC’s action in this case, complainants invoke section 382(b) of the Energy Policy and Conservation Act of 1975 (EPCA),
The Supreme Court has held that a statutory time limit on agency action can excuse an agency from the time-consuming process of preparing an environmental impact statement, on grounds that compliance is required “to the fullest extent possible.”
E.
Finally, we must decide whether FERC was required to prepare an environmental impact statement (EIS) on the subjects of this order, in accordance with the National Environmental Policy Act (NEPA).
Concerning NEPA issues, Congress set forth in the ANGTA specific and far-reaching restrictions on judicial review of decisions related to the pipeline system. The ANGTA provides that congressional ratification of the President’s pipeline system decision “shall be conclusive as to the legal and factual sufficiency of the environmental impact statements submitted by the President relative to the approved transportation system.”
There is one possible ambiguity in this preclusion of judicial review. The language
Any ambiguity in this section of the ANGTA, however, is eliminated by the Act’s statement of purpose: “it is the intent of the Congress to exercise its constitutional powers to the fullest extent . particularly with respect to the limitation of judicial review of actions of Federal officers or agencies taken pursuant thereto.”
Complainants raise one further point in an attempt to avoid the force of ANGTA’s preclusion of judicial review of NEPA questions. Both sides agree that as a result of the Commission’s pipeline pressure decision, the conditioning plant for natural gas entering the system will need to be located at Prudhoe Bay on the Alaska North Slope. An alternative pressure might have allowed a different plant location. In effect, complainants claim, the FERC has now decided the issue of conditioning plant location without preparing a final EIS. Since the conditioning plant is outside the scope of the pipeline system approved in the President’s decision, complainants argue, the ANGTA’s limited review provisions do not apply.
The problem with this theory is that the issue of conditioning plant location was not a subject of the application and order here in question, and FERC has not taken any major federal action on the conditioning plant; rather it has taken an entirely different action which happens to affect future consideration of the conditioning plant issue.
' III. CONCLUSION
This case reflects exactly the sort of time-consuming challenge that Congress designed ANGTA to prevent during the approval and construction of the Alaska natural gas pipeline. The order challenged here is nothing but a routine step in the process of issuing a certificate for construction of the pipeline. It is clearly within the Commission’s statutory authority and offers no basis for a challenge on due process grounds. The statutory provisions of
For instance, to require a separate EIS for the pipeline pressure issue would delay eventual construction by months and perhaps years. The interrelationship between issues, which is the foundation of complainants’ argument, could make the delay even longer. Decisions on various design features of the pipeline must be made sequentially; o. g., final design of the pipeline must await approval of operating pressure, and financing arrangements are influenced by design specifics and their cost. Thus a delay in deciding on pipeline pressure can have ripple effects that upset planning certainty for financing purposes.
Such concerns underlie the Commission’s decision to proceed with separate issues and Congress’s decision to shield the decision-making process from judicial review when constitutionally permissible. Even with the ANGTA provision to expedite pipeline construction, it has already taken the Commission two years since the President’s decision just to approve a pressure level for the pipeline. Final certificates and commencement of construction are still further in the future. In this light, if there is any shortcoming in the Commission proceedings, it is certainly not in a lack of deliberation or in denial of time and opportunity for interested parties to express their views.
Of course the questions before us in this case are quite narrow. But these broader considerations of congressional intent to expedite do drive home the importance of taking ANGTA’s judicial review provisions seriously. We may not strain for a statutory interpretation that will circumvent congressional intent by allowing delay to result from a complaint that goes only to the reasonableness and record support of FERC decisions. In this case complainants have not pointed to any Commission action or omission of the type Congress intended us to review. The complaint is therefore
Dismissed.
. 15 U.S.C. § 719 (1976).
. See Executive Office of the President, Decision and Report to Congress on the Alaska Natural Gas Transportation System (1977).
.As required by ANGTA, Congress approved the President’s decision by joint resolution. Pub.L.No. 95-158, 91 Stat. 1268 (1977).
. This was a report of the “Alaska Delegate,” an agent of FERC appointed to gather information relevant to future FERC decisions on permanent certification applications for the pipeline system.
. See Midwestern Gas Transmission Co. v. FERC, 191 U.S.App.D.C. 80, 86-88, 589 F.2d 603, 609-11 (D.C.Cir.1978).
. See 15 U.S.C. § 719h(b)(2) (1976); H.R. Rep.No. 1658, 94th Cong., 2d Sess. 31 (1976), U.S.Code Cong. & Admin.News 1976, p. 6643.
. 191 U.S.App.D.C. 80, 103, 589 F.2d 603, 626 (D.C.Cir.1978).
. 15 U.S.C. § 719a (1976).
. See id. § 717f.
. See id. § 719c.
. See, e. g., Goss v. Lopez, 419 U.S. 565, 572-73, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975); Arnett v. Kennedy, 416 U.S. 134, 154-55, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974).
. See United States v. Florida East Coast Ry., 410 U.S. 224, 242-45, 93 S.Ct. 810, 35 L.Ed.2d 223 (1973); Morgan v. United States, 304 U.S. 1, 18-19, 58 S.Ct. 999, 82 L.Ed. 1129 (1938); Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441, 446, 36 S.Ct. 141, 60 L.Ed. 372 (1915).
. See, e. g., Goss v. Lopez, 419 U.S. at 573, 95 S.Ct. 729.
. See United States v. Florida East Coast Ry., 410 U.S. at 245, 93 S.Ct. 810; Rainbow Valley Citrus Corp. v. Federal Crop Ins. Corp., 506 F.2d 467, 469 (9th Cir. 1974).
. Complainants’ reliance on Ashbacker Radio Corp. v. FCC, 326 U.S. 327, 66 S.Ct. 148, 90 L.Ed. 108 (1945), to claim a right to simultaneous resolution of related issues, is entirely misplaced. That case is based on a statutory, not a constitutional hearing right, and requires consolidation of mutually exclusive applications for a license or certificate; here we have no competing applications, but only a claim of mutually exclusive issues concerning one application.
. See Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 524-25, 543, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978).
. 15 U.S.C. § 717f(c) (1976).
. Id. § 719c(a)(2).
. 42 U.S.C. § 6362(b) (1976).
. See 15 U.S.C. § 719c(a)(2) (1976).
. 42 U.S.C. § 4332 (1976); see Flint Ridge Dev. Co. v. Scenic Rivers Ass’n, 426 U.S. 776, 787-90, 96 S.Ct. 2430, 49 L.Ed.2d 205 (1976).
. See Delta Air Lines, Inc. v. CAB, 182 U.S. App.D.C. 295, 306-07, 561 F.2d 293, 304-05 (D.C.Cir.1977), cert. denied, 434 U.S. 1045, 98 S.Ct. 889, 54 L.Ed.2d 796 (1978).
. See 42 U.S.C. § 4332 (1976).
. 15 U.S.C. § 719h(c)(3) (1976).
. See CEQ, Report to the President on Environmental Impacts of Proposed Alaska Gas Transportation Corridors 14 (1977).
. 15 U.S.C. § 719a (1976).
. Id. § 719h(c)(3).
.It is not resolved whether the FERC has jurisdiction over the conditioning plant, and we do not decide whether it does. The Commission prepared a draft EIS on conditioning plant facilities, but stated that the facilities would not normally require a Commission certificate. See FERC, Prudhoe Bay Project Draft Environmental Impact Statement (1979).
. An increase in the approved pressure level can cause even greater delay. The Canadian National Energy Board rejected pressure levels above 1260 psig partly because the engineering studies and burst testing necessary to ensure the reliability of such new technology could delay the project by up to two years. See Joint Appendix at 87.