FUEL SAFE WASHINGTON, Pеtitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Powerex Corp. and Georgia Strait Crossing Pipeline LP, Intervenors, Whatcom County, Amicus Curiae.
No. 03-9577.
United States Court of Appeals, Tenth Circuit.
Dec. 1, 2004.
389 F.3d 1313
Finally, the state cоntends the Tribe produced no evidence that the state failed to respond in good faith to the request of the Tribe to negotiate a compact. The district court held that because (1) Wyoming had a duty to negotiate for terms beyond those Wyoming law expressly permits and (2) the state conceded that it only negotiated to the extent that Wyoming law permitted parimutuel and calcutta gaming, the state had not negotiated in good faith. We agree.
The IGRA provides that:
upon the introduction of evidence by an Indian tribe that ... (I) a Tribal-State compact has not been entered into ... and (II) the State did not respond to the request of the Indian tribe to negotiate such a compact or did not respond to such request in good faith, the burden of proof shall be upon the State to prove that the State has negotiated with the Indian tribe in good faith to conclude a Tribal-State compact governing the conduct of gaming activities.
The judgment of the district court is AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings in accordance with this opinion. Appellee‘s motion to file a supplemental appendix is granted.
Judith A. Albert, Attorney (Cynthia A. Marlette, General Counsel, and Dennis Lane, Solicitor, with her on the brief), Federal Energy Regulatory Commission, Washington, DC, for Respondent.
Steven W. Snarr, Georgia Strait Crossing Pipeline LP, Salt Lake City, Utah (Charles H. Shoneman and Jacqueline R. Java, Bracewell & Patterson, L.L.P., Washington, DC, with him on the brief), for Intervenors, Georgia Strait Crossing Pipeline LP and Powerex Corp.
Randall J. Watts, Chief Civil Deputy Prosecuting Attorney for Whatcom County, Bellingham, WA, filed an amicus curiae brief for Whatcom County.
Before LUCERO, ANDERSON, and McCONNELL, Circuit Judges.
ANDERSON, Circuit Judge.
Petitioner Fuel Safe Washington (“FSW“) seeks review of two orders by the Federal Energy Regulatory Commission (“FERC“) granting а Certificate of Public Convenience and Necessity (“CPCN“) to Georgia Strait Crossing Pipeline LP (“GSX“), permitting GSX to build a new natural gas pipeline and ancillary facilities in northwest Washington state, and denying requests for rehearing. FSW asks us either to vacate FERC‘s final orders or, alternatively, to remand this matter to FERC for further proceedings. We decline to vacate FERC‘s orders or remand for further proceedings. The petition for review is therefore denied.
BACKGROUND
Pursuant to the Natural Gas Act, FERC has plenary jurisdiction over (1) “the transportation of natural gas in interstate commerce“; (2) “the sale in interstate commerce of natural gas for resale for ultimate public consumption“; and (3) “natural-gas companies engaged in such transportation or sale.”
Prior to constructing or operating any natural gas pipeline and related facilities, a company subject to FERC‘s jurisdiction must obtain from FERC “a certificate of public convenience and necessity,”
As a part of its review process before issuing a CPCN, FERC conducts an environmental analysis under the National Environmental Policy Act (“NEPA“),
On April 24, 2001, GSX applied for CPCNs to construct and operate a natural gas pipeline and accompanying facilities in Whatcom and San Juan Counties, Washington. The proposed pipeline would carry gas east to west, from the Canadian border near Sumas, Washington, overland across Whatcom and San Juan Counties, Washington, then underwater across the Strait of Georgia, to a subsea interconnection mid-channel in the Boundary Pass at the international border between the United States and Canada. The onshore facilities will consist of approximately 32.1 miles of 20-inch pipe, 1.4 miles of 16-inch pipe, a 10,302 horsepower (ISO-rated) compressor station at Cherry Point, Washington, and a receipt point meter station at the border near Sumas. The offshore facilities will consist of approximately 14 miles of 16-inch pipe, with a subsea tap valve assembly near the San Juan Islands. Georgia Strait Crossing Pipeline LP, 100 F.E.R.C. ¶ 61,280, at 62,191, 2002 WL 31975732 (2002) (footnote omitted). At Sumas, the east terminus of the pipeline, the proposed line would interconnect with a Canadian pipeline, Westcoast Energy Inc. and with a United States pipeline, Northwest Pipeline Corporation. At its west subsea terminus, the pipeline would interconnect with a new pipeline to be built and operated by Georgia Strait Crossing Pipeline Ltd. (“GSX-Canada“) which would transport gas from the interconnection point to Vancouver Island, British Columbia. While it was clear that the pipeline was primarily designed to transport Canadian gas to Canadian consumers on Vancouver island, the system wаs designed from the beginning to permit as much as 10% of its capacity to, at times, be transported through the Northwest connection to United States markets.1 GSX proposed that Powerex, a British Columbian corporation, would be the initial transportation service customer.
On June 1, 2001, FERC sent a “Notice of Intent to Prepare an Environmental Impact Statement for the Proposed Georgia Strait Crossing Project, Request for Comments on Environmental Issues, and Notice of Public Scoping Meetings and Site Visit” (“NOI“) to 339 interested parties. FERC held two public meetings in Washington State and received comments on the proposed project throughout the summer of 2001.
On December 10, 2001, FERC‘s staff filed its draft EIS (“DEIS“) with the Environmental Protection Agency (“EPA“), announced it in the Federal Register, and mailed it to individuals and organizations on a mailing list created for the project. Under Council on Environmental Quality (“CEQ“) regulations implementing NEPA,
Meanwhile, the Commission proceeded with its review of the non-environmental aspects of the project. It published notice of GSX‘s application in the Federal Register on May 4, 2001. Twenty-four parties filed motions to intervene. On March 13, 2002, FERC issued a Preliminary Determination, concluding that, subject to completion of the environmental review process, the benefits of the proposed project outweighed the potential adverse effects. None of the parties to this case requested a rehearing of the Preliminary Determination. On June 17, 2002, Whatcom County filed a motion to dismiss GSX‘s application, or alternatively seeking an evidentiary hearing, arguing that FERC lacked jurisdiction over the pipeline under § 7 of the NGA because the gas supply sources and end consumers were Canadian, and there was therefore no interstate transportation of the gas. On July 17, 2002, FERC issued the FEIS. Following the issuance of the FEIS, FERC received further comments from two individuals, the EPA, and the United States Public Health Service, Department of Health and Human Services (“HHS“).
On September 20, 2002, FERC issued a final order denying Whatcom County‘s motion to dismiss, analyzing the environmental issues and issuing a CPCN authorizing the construction and operation of the proposed pipеline.2 In that order, FERC responded to the comments made on the FEIS by the EPA, HHS and the two individuals. Whatcom County did not seek rehearing of the final order and FSW only requested rehearing of the environmental issues. The Commission addressed the environmental issues in its rehearing order, and rejected FSW‘s arguments.
On March 17, 2003, FSW petitioned for review in the Ninth Circuit. FERC filed a motion to dismiss on the ground of improper venue. On July 30, 2003, the Ninth Circuit transferred the case to this court and, on October 17, 2003, the Commission filed the certified index to the record. Georgia Strait and Powerex intervened in the proceedings before this court. Meanwhile, on September 3, FSW had requested the Commission to reopen the evidentiary record and prepare a supplemental EIS. FERC denied the request. This petition for review followed.
DISCUSSION
I. Jurisdiction
As indicated above, FERC has plenary jurisdiction over the transportation of natural gas in interstate commerce. FSW argues that FERC improperly exercised jurisdiction over the proposed pipeline because the pipeline will not transport gas in interstate commerce. To the contrary, FSW argues, the GSX pipeline will transport only Canadian gas to Canadian consumers. Alternatively, FSW argues that the state of Washington may properly reg-
FERC responds by arguing that, because FSW failed to challenge FERC‘s jurisdiction in its rehearing request before the Commission, FSW is precluded by statute from seeking review of that order in this court. FERC thus argues we lack jurisdiction to review the propriety of FERC‘s exercise of jurisdiction over the pipeline. FSW replies that, while it admittedly failed to raise the issue of the propriety of FERC‘s jurisdiction in its own petition for rehearing, Whatcom County raised that issue in its motion to dismiss, FERC addressed the matter in its rejection of that motion, and the matter was therefore raised and addressed by FERC and is available for review in this court. We address first, as we must, our own jurisdiction to review FERC‘s orders.
Section 19(b) of the NGA provides that “[n]o objection to the order of the Commission shall be considered by the court [of appeals] unless such objection shall have been urged before the Commission in the application for rehearing unless there is reasonable ground for failure so to do.”
We have accordingly applied that exhaustion policy to refuse to address procedural matters which were not raised in petitions for rehearing before FERC. See, e.g., R.R. Comm‘n v. FERC, 874 F.2d 1338, 1342 (10th Cir.1989) (refusing to consider an objection to expert witnesses because not raised in petition for rehearing before FERC); Phillips Petroleum Co. v. Fed. Power Comm‘n, 556 F.2d 466, 471 (10th Cir.1977) (refusing to consider whether a contract was renewed for purposes of obtaining a new rate because the issue was not raised in the petition for rehearing before FERC); Skelly Oil Co. v. Fed. Power Comm‘n, 401 F.2d 726, 729 (10th Cir.1968) (refusing to consider arguments by amicus because “not raised by any party on an application for rehearing
We have also applied the virtually identical rehearing requirement contained in the Federal Power Act to refuse to consider whether the Federal Power Commission properly determined that a petitioner had to obtain a license for a hydroelectric power project where the petitioner failed to seek rehearing at all. Utah Power & Light Co. v. Fed. Power Comm‘n, 339 F.2d 436, 438 (10th Cir.1964).3 We have had no occasion to apply § 19(b)‘s rehearing requirement in the specific context of this case—i.e., when the issue sought to be raised before our court, but not argued on rehearing before FERC, is whether FERC properly asserted its regulatory jurisdiction over the transportation of natural gas. FSW argues it may avoid the general rule of § 19(b) in this case for two reasons: its challenge to FERC‘s jurisdiction is the equivalent of a challenge to FERC‘s subject matter jurisdiction, which can always be raised, even sua sponte by the court itself; and alternatively, Whatcom County raised the issue before FERC and FERC addressed it, so the need to have the agency address the issue first has effectively been satisfiеd.
A. Subject Matter Jurisdiction
In support of this argument, FSW relies heavily on the Eighth Circuit‘s decision in Union Electric Co. v. Federal Power Commission, 326 F.2d 535 (8th Cir. 1964), rev‘d on other grounds, 381 U.S. 90 (1965). As more fully explained in Judge McConnell‘s concurrence, the pertinent part of Union Electric is dictum and, in any event, is inapposite. Section 19(b) requires all challenges to the scope of an agency‘s regulatory jurisdiction to be raised first before the Commission. See Sunray Mid-Continent Oil Co. v. Fed. Power Comm‘n, 364 U.S. 137, 156-57 (1960) (applying § 19(b)‘s requirement that all issues submitted for judicial review must be raised before the Commission to refuse to address an argument that the Commission‘s order might violate the Natural Gas Act and thereby impermissibly extend its regulatory jurisdiction); Intermountain Mun. Gas Agency v. FERC, 326 F.3d 1281, 1285 (D.C.Cir.2003) (refusing to address, because not raised in the petition for rehearing, petitioner‘s challenge to “FERC‘s interpretation of the Hinshaw Amendment to preclude exempting [from FERC regulation] a system which delivers gas that is subsequently transported temporarily out of state but returned for ultimate consumption within the state of delivery“);4 Aquenergy Sys.,
We therefore reject FSW‘s argument that its challenge to FERC‘s decision that the GSX pipeline fell within its regulatory jurisdiction is the equivalent of a challenge to FERC‘s subject matter jurisdiction and accordingly not subject to the limitations of § 19(b).
B. Whatcom County‘s Challenge to FERC‘s Jurisdiction
FSW alternatively argues that, while it did not raise the issue in its own petition for rehearing, Whatcom County raised it in its motion to dismiss GSX‘s application, and FERC addressed it in its denial of that motion. Most courts addressing this issue have required the party seeking review of a decision to have sought rehearing itself before the Commission. See Process Gas Consumers Group v. FERC, 912 F.2d 511, 514 (D.C.Cir.1990) (“[T]he party seeking review must raise its objections in its own application for rehearing to the Commission.“); Columbia Gas Transmission Corp. v. FERC, 848 F.2d 250, 255 (D.C.Cir.1988) (stating that a court cannot “consider an objection not raised by petitioner but argued to FERC by another party to the same proceeding“); United Gas Pipe Line Co. v. FERC, 824 F.2d 417, 434 (5th Cir.1987) (“The plain language of section 19 requires that the very party seeking judicial review must raise its objections in its own petition for rehearing.“). We join those courts and hold that FSW cannot “bootstrap” its way into our court by relying upon the fact that another party argued the issue before the Commission.
Furthermore, even were we to permit such bootstrapping by FSW, Whatcom County was obligated by statute to seek rehearing from the Commission of its challenge to FERC‘s exercise of its regulatory jurisdiction. It did not do so. FSW may not itself fail to preserve an issue, then take advantage of the fact that another party raised the issue but failed to properly pursue it by seeking rehearing, thereby allowing the decision below to effectively become final, and seek now to escape all of those defaults. We lack jurisdiction to consider whether FERC correctly determined that the GSX pipeline was subject to FERC regulation as an interstate pipeline.
II. NEPA Compliance
FSW did seek rehearing on the general issue of FERC‘s compliance with NEPA, asserting that FERC failed to so comply in various ways. We therefore address those arguments. We review agency action for compliance with NEPA under the Admin-
NEPA delineates the process by which federal agencies “take a hard look at the environmental consequences” of a proposed agency action. Pennaco Energy, Inc. v. Dep‘t of Interior, 377 F.3d 1147, 1150 (10th Cir.2004) (further quotation omitted); see Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). Before taking “major Federal actions significantly affecting the quality of the human environment,” agencies take that “hard look” at potential environmental impacts by means of an environmental impact statement (“EIS“). See
FSW argues that the FEIS in this case was deficient because it failed to adequately address four issues: reasonable alternatives; transboundary impacts; cumulative acoustic impacts; and the impact of reasonably foreseeable earthquakes.
A. Consideration of Alternatives
NEPA requires an FEIS to include a discussion of “alternatives to the proposed action.”
FSW argues FERC‘s discussion of reasonable alternatives was deficient in two ways: (1) the scope of the project arbitrarily abbreviated the alternatives analysis and (2) FERC inappropriately eliminated alternatives it had evaluated.
1. Scope of project
An agency may not “define [a] project so narrowly that it foreclose[s] a
FSW argues that FERC‘s narrow definition of the project‘s scope—to provide natural gas as a means to meet the increased need for electricity on Vancouver Island—compelled it to ignore other ways to meet that need for electrical power. We disagree. In discussing a no-action alternative, FERC discussed various other ways to increase electrical power on the island: alternative fuels, clean-coal technology, solar power, wind-powered electricity, small-scale hydroelectric generation, and wave energy. The FEIS explained why each was not a feasible alternative.
The FEIS went on to observe that:
[s]everal commentators on the draft EIS suggested that replacing or upgrading the underwater electric transmission cables serving Vancouver Island could reduce the near-term need for electric generation capacity on the island and should be considered as an alternative to the GSX Project. Because the direct transmission of electricity to Vancouver Island does not meet the stated objectives of the proposed project to provide a transportation system for natural gas, consideration of replacing or upgrading the transmission cable can only be considered in terms of the no-action alternative. If a project sponsor were to replace or upgrade existing cables or were to install new cables, demand for energy production on Vancouver Island could be reduced to the extent that the demand for natural gas could also be reduced. Despite this fact, no such project has been proposed by potential sponsors.
FEIS at 4-3, R. Vol. III. FERC also noted that “generating electricity on the mainland and replacing and upgrading its electric transmission cables would cost about $100,000,000 (Cdn) more than building the GSX Project and generating electricity on Vancouver Island.” Id. As discussed more fully below, FERC then considered a number of different natural gas pipeline alternatives.
FERC had before it a particular project proposal by a private natural gas company, involving the building of a natural gas pipeline as a means to provide electrical power on Vancouver Island. “Where the action subject to NEPA review is triggered by a proposal or application from a private party, it is appropriate for the agency to give substantial weight to the goals and objectives of that private actor.” Citizens’ Comm. to Save Our Canyons, 297 F.3d at 1030. FERC was not obligated to reject that project in favor of a non-natural gas alternative which was purely hypothetical and speculative. Given that the agency is only obligated to consider reasonable, non-speculative alternatives, we cannot say that its review of non-natural gas pipeline alternatives, and rejection of them in favor of the GSX project, was arbitrarily and improperly restricted by its definition of the scope and purpose of the project.
2. Reasonable route and system alternatives
FSW next argues FERC completely failed to consider alternative Canadian routes for the natural gas, and it failed to distinguish between alternatives that might have environmental impacts in Canada but not the United Stаtes. FSW
The draft EIS (DEIS) identified three all-Canadian routes, two of which involved following parts of the Centra pipeline, while the third involved following an existing BC Gas Inc. pipeline for part of the route. The DEIS recommended no further consideration of these three routes because two of them presented engineering difficulties and more significant environmental impacts than the proposed GSX route.5 The third alternative, the Sumas-Tilbury-Harmac route, was environmentally acceptable but involved severe engineering problems because it crossed through terrain that was particularly vulnerable to seismic events, even moderate ones.
Following the issuance of the DEIS, GSX-Canada commissioned a study to determine the feasibility of expanding the existing Canadian Centra and BC Gas systems to meet the objectives of the GSX project. These were considered alternative systems, rather than alternative routes, because they involved expanding existing pipeline systems, although there was some overlap with parts of the three all-Canadian routes which the DEIS had examined and recommended be removed from consideration.6
The FEIS describes the five pipeline system alternatives the Commission considered: “the existing Centra, BC Gas Inc. (BC Gas), ARCO, and Cascade systems as well as the previously planned Orca Natural Gas Pipeline (Orca) project.” FEIS at 4–4, R. Vol. III. It concluded that: (1) expansion of the Centra system, which already was the sole provider of natural gas to Vancouver Island, was not a viable alternative because it involved “significant environmental and engineering drawbacks” including the construction of “large sections of looped pipeline through forested and mountainous terrain.” FEIS at 4-5, R. Vol. III;7 (2) the BC Gas system alternative was not viable because, although environmental concerns were a “trade off” compared to the GSX system, the geotechnical hazards associated with the BC Gas alternative were more significant; (3) the ARCO system alternative was not viable because “to provide the volumes of natural gas proposed by GSX-US this system would require expansion and construction of new facilities similar to or greater than those proposed for the GSX project.” Id. at 4-9; (4) the Cascade system alternative was not viable because “a modification or expansion to accommodate the volumes proposed by GSX-US would not be feasible.” Id.; and (5) the Orca system alternative was not viable because it would be over 200 miles long, compared to the 84
The FEIS then examined one route alternative which passes through the United States, the Stanwood to Victoria route alternative. The FEIS concluded that, while the alternative did have some environmental advantages, those were “offset by disadvantages.” Id. at 4-11. It therefore recommended no further consideration of the route. The FEIS also rejected the no action alternative, because the need for the project would not be fulfilled.
FSW argues that FERC ignored an “importаnt distinction” between the GSX project and the system alternatives—that the GSX project will have impacts upon United States property while the Canadian system alternatives will not. FERC‘s discussion of the various alternatives explained why they were not reasonable viable alternatives. The fact that it selected a route with more impacts in the United States, rather than Canada, does not undermine the reasonableness of that discussion.
FSW also argues that FERC ignored concerns expressed by two other agencies—the EPA and the WDOE. The EPA submitted comments on the DEIS expressing its concern that the
evaluation of alternatives in the draft EIS appears to have been conducted more from the perspective of developing the rational for eliminating alternatives than from the direction of the implementing regulations for [NEPA] to “rigorously explore and objectively evaluate all reasonable alternatives,” and to “devote substantial treatment to each alternative considered in detail ... so that reviewers may evaluate their comparative merits.”
EPA Comments on the GSX DEIS, R. Vol. III. In response to this, FERC expanded its discussion of several of the alternatives. The EPA remained concerned about the discussion of аlternatives:
While the discussion of alternatives has been expanded in the final EIS, we remain concerned that the approach used to develop the EIS has inappropriately eliminated reasonable alternatives, in both the United States (US) and Canada, that could meet the stated purpose and need for the project. We do not believe that the EIS has provided sufficient or compelling reasons for the elimination of alternatives presented in Chapter 4.
8/22/02 Letter from EPA to FERC, R. Vol. IV.
“[NEPA] requires agencies preparing environmental impact statements to consider and respond to the comments of other agencies, not to agree with them.” Custer County Action Ass‘n v. Garvey, 256 F.3d 1024, 1038 (10th Cir.2001). On the other hand, “a reviewing court ‘may properly be skeptical as to whether an EIS‘s conclusions have a substantial basis in fact if the responsible agency has apparently ignored the conflicting views of other agencies having pertinent expertise.‘” Mineta, 302 F.3d at 1123.
FERC noted in its Certificate Order granting GSX its CPCNs that the “EPA does not challenge the need for the proposed pipeline, but prefers that this need be met by expanding an existing system.” Georgia Strait Crossing Pipeline LP, 100 F.E.R.C. ¶ 61,280, at 62,198. FERC clearly considered and responded to EPA‘s comments on the DEIS and to
FERC is obligated to “articulate ‘a rational connection between the facts found and the choice made.‘” Friends of Marolt Park v. U.S. Dep‘t of Transp., 382 F.3d 1088, 1096 (10th Cir.2004) (quoting Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 105 (1983)). Given our deferential standard of review, we conclude that the FEIS adequately considered alternatives and was not arbitrary or capricious in its selection of the GSX project.
B. Transboundary Effects
NEPA‘s requirement that an FEIS analyze “the environmental impact of [a] proposed action,”
C. Acoustic Effects
FSW argues that the FEIS failed to take a “hard look” at the project‘s acoustic effects. More specifically, FSW argues that FERC (1) failed to consider the acoustic effects of pipeline repair and maintenance; (2) failed to assess adequately acoustic effects before resources were committed to the project; and (3) failed to consider cumulative acoustic effects.
1. Acoustic effects of repair and maintenance
FERC considered the direct and indirect impacts of noise caused by the construction and operation of the pipeline on marine wildlife, marine fish, marine invertebrates and certain endangered species. It concluded that, to the extent information was available about the effects of noise on marine life, any increased noise would be temporary and/or unlikely to cause significant adverse effects.8 Nonetheless, FERC recommended that GSX
FSW does allege, however, that the FEIS failed to consider the impact of noise caused by repair and maintenance of the pipeline, to the extent that the maintenance differs from the operation of the pipeline. FERC acknowledged that pipeline repairs are foreseeable: “Even with proper installation, operation, and routine maintenance of the pipeline system, repairs to the pipeline, including replacement of portions of the system, are reasonably foreseeable actions in the long term.” FEIS at 2-24, R. Vol. III. However, FERC then concluded that “[b]ecause it is not possible to foresee where additional operation and maintenance activities would occur along the pipeline system, further review of the environmental impacts of those maintenance activities is beyond the scope of this EIS. Appropriate environmental review of those activities would take place under applicable rules and regulations.” Id.
After refusing to expand the scope of the EIS to assess in detail the environmental impact of hypothetical future maintenance actions,9 FERC briefly addressed
The FEIS contains a section on pipeline accident data. The data show that pipelines are vulnerable to failure as a result of “outside forces” such as heavy equipment, earth movement, geologic hazards, and weather effects, all less likely to damage an underwater pipeline, as opposed to an underground pipeline. Pipelines are also vulnerable to corrosion, construction and material-related defects, and “other” causes of rupture or damage. Because GSX is a subsidiary of the Williams Companies, FERC examined the pipeline safety record of the many miles of pipeline operated by Williams and its subsidiaries. It found that since 1991, Williams Northwest Pipeline 3900-mile-long system has had two reportable leaks and twelve reportable ruptures; the 6000-mile-long Williams Gas Pipeline-Central has had five reportable leaks and ten reportable ruptures; there have been no incidents along the 900-mile Kern River Gas Transmission pipeline; since 1995, there have been five reportable incidents along the 10,500-mile-long Transco system; and since 1995 there have been two reportable incidents along the 6000-mile-long Texas Gas system. Given that the GSX pipeline portion that is in the water is less vulnerable to many of the “outside forces” described, it was reasonable for FERC to conclude that major repairs in the marine environment, along the fourteen miles of offshore pipeline in the GSX project, would be rare.
“Even as to impacts that are sufficiently likely to occur such that they are reasonably foreseeable and merit inclusion, the FEIS need only furnish such information as appears to be reasonably necessary under the circumstances for evaluation of the project.” Utahns for Better Transp., 305 F.3d at 1176. Thus, “[d]etailed analysis is required only where impacts are likely.” Id. (further quotation omitted). The FEIS analysis of the likelihood of a major underwater repair was adequate, given the circumstances.
With respect to its conclusion about the acoustic effects of pipeline maintenance, FERC reached the reasonable conclusion that, while pipeline repairs and maintenance are foreseeable, it is impossible to determine now the precise impacts because it is impossible to determine now the magnitude of a future repair problem. To the extent, however, that a repair requires replacement of existing sections of pipeline, FERC reasonably assumes that the acoustic impact will be comparable to construction.
Given our deferential standard of review, we cannot say that the FEIS was deficient for failing to address further the acoustic effects of pipeline repairs and maintenance.
2. Cumulative acoustic effects
“An environmental impact statement must analyze not only the direct
Cumulative impact is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonable foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.
FSW argues FERC failed to analyze cumulative effects in three respects: the cumulative acoustic effect of the project in light of noise already in the marine environment; the cumulative acoustic effect of the project in light of reasonably foreseeable future projects; and the pipeline‘s cumulative environmental (non-acoustic) effect in the marine environment in light of past, present and reasonably foreseeable future actions.
A. Cumulative Acoustic Effect in Light of Background Marine Environment Noise
FSW argues “FERC failed to properly analyze the additive effect of both constant (pipeline operation) and intermittent (pipeline repair, construction, maintenance) noise sources in combination with vessel traffic and other stressors already in place in the marine environment.” Pet‘r‘s Opening Br. at 53. This is simply another way of challenging FERC‘s analysis of the noise impact caused by the GSX project. We have already concluded that FERC‘s analysis of the impact on the marine environment оf the construction, operation and maintenance of the project is reasonable and not arbitrary or capricious.10 We decline FSW‘s invitation to revisit that issue, under the guise of discussing the cumulative acoustic effect of the pipeline in the existing marine environment.
B. Cumulative Acoustic Effects in Light of Reasonably Foreseeable Future Projects
Cumulative effect is defined as “the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions.”
The FEIS contains a table listing “Existing or Proposed Activities Cumulatively Affecting Resources of Concern for the GSX-US Pipeline Project.” Table 3.14–1, FEIS at 3–155, R. Vol. III. It lists present activities and reasonably foreseeable future projects which may affect, inter alia, marine resources. The only reasonably foreseeable future projects affecting marine resources are the construction and operation of the Canadian portion of the GSX project, which would involve 27.5 miles of offshore pipeline in the Strait of Georgia; the OPALCO pipeline project, involving constructing a lateral off the GSX-US pipeline and requiring eleven miles of offshore pipeline; and the Gate-
Visual and acoustic disturbances associated with pipeline construction and operation may add to other commercial, public, and recreational vessel disturbances to affect marine mammals, fish, birds, and invertebrates. The magnitude of the impact would probably be insignificant relative to the total marine environment available to, and used by, these species, particularly given the short-term nature of the construction activities.
FEIS at 3–158, R. Vol. III.
While we do not consider the cumulative acoustic impact analysis of the FEIS “to be a model of clarity or thoroughness,” Custer County Action Ass‘n, 256 F.3d at 1036, given our deferential standard of review, we find it sufficient. FERC reasonably concluded that the primary acoustic impact on marine resources will occur during the construction of the GSX pipeline and any other projects, should they be built. This is a limited time period. Additionally, many marine inhabitants are mobile and can avoid the area while any construction takes place.12 Further, operational acoustic impacts are minimal and are generally less than those caused by vessels in the area. Any repair impacts will be intermittent and similar to construction impacts, except in the rare event that some catastrophic failure occurs.
“Our job is not to question the wisdom of the [agency‘s] ultimate decision or its conclusion concerning the magnitude of indirect cumulative impacts.” Colo. Envtl. Coalition v. Dombeck, 185 F.3d 1162, 1176 (10th Cir.1999). Rather, our job is to “examine the administrative record, as a whole, to determine whether the [agency] made a reasonable, good faith, objective presentation of those impacts sufficient to foster public participation and informed decision making.” Id. at 1177. We conclude that FERC discharged its duty to take a “hard look” at the cumulative acoustic impacts of the GSX project along with other reasonably foreseeable projects in the same area.13
C. Cumulative Non-Acoustic Environmental Effects
FSW argues the FEIS devoted insufficient attention to the cumulative non-acoustic effects of the GSX project along with the other current and reasonably foreseeable actions and activities. We disagreе. While the FEIS‘s analysis is again not a “model of ... thoroughness,” Custer County Action Ass‘n, 256 F.3d at 1036, we again find, applying our deferential standard of review, that it is adequate and not arbitrary or capricious. See FEIS at 3–157—3–164, R. Vol. III.
D. Reasonably Foreseeable Earthquakes
Finally, FSW argues that FERC failed to evaluate the consequences of all reasonably foreseeable earthquakes, in
The FEIS states as follows concerning the standard used to design the pipeline to withstand earthquakes: “GSX-US has designed the pipeline to withstand ground motions associated with an earthquake with a 10 percent probability of exceedance in 50 years ...; equivalent to a recurrence interval of 1 in 475 years. This is common practice for buildings as summarized in the 1997 Uniform Building Codes (International Conference of Building Officials, 1998).” FEIS at 3-3, R. Vol. III. FERC responds that GSX correctly designed the pipeline to meet current engineering design standards, as set out in three different building guideline systems, as well as in accordance with the minimum federal standards for the transportation of natural and other gas by pipeline.
FSW‘s complaint about the UBC is that it provides an inaccuratе standard for identifying reasonably foreseeable earthquakes. It argues the UBC uses a standard of a ten percent chance of potential failure over the next fifty years, which, FSW asserts, is far too low a standard and fails to identify larger but still reasonably foreseeable earthquakes. Both the EPA and the State of Washington Department of Natural Resources (“WDNR“) commented on the DEIS, raising a question as to whether FERC was building the pipeline to withstand all reasonably foreseeable earthquakes.14 FERC responded to the EPA by explaining that the ten percent chance of exceedance over fifty years refers to the chance of an earthquake “capable of producing ground motions that would exceed the pipeline design parameters, not the design standards. Engineering design standards typically include a safety factor that accounts for the chance that natural phenomena could exceed the design parameters.” FEIS at FA 1-16, R. Vol. III.
As we have stated above, FERC was obligated to consider the views of other agencies, and in this case it did so. It was not obligated to defer to that agency‘s view. “We cannot displace the agencies’ choice between two conflicting views, еven if we would have made a different choice had the matter been before us de novo.” Custer County Action Ass‘n, 256 F.3d at 1036. We conclude that FERC took a hard look at seismic hazards, and its decision regarding how to address reasonably foreseeable earthquakes was reasonable. We therefore reject FSW‘s argument that, because the FEIS failed to analyze all reasonably foreseeable earthquakes, its mitigation analysis was inadequate.
III. Motion to File an Amicus Brief
Georgia Strait Crossing Concerned Citizens Coalition, a registered non-profit society in British Columbia, has filed a motion for leave to file an amicus brief. It seeks to bring to our attention events which
CONCLUSION
For the foregoing reasons, the petition for review is DENIED.
McCONNELL, Circuit Judge, concurring.
I join the opinion of the Court, and write separately only to clarify what I understand to be this Court‘s holding with respect to the requirement of Section 19(b) of the NGA that “[n]o objection to the order of the Commission shall be considered by the court [of appeals] unless such objection shall have been urged before the Commission in the application for rehearing unless there is reasonable ground for failure so to do.”
The statement in Union Electric on which petitioner relies (“jurisdiction over the subject matter cannot be waived by the parties by either action or lack of action“), 326 F.2d at 540, was pure dictum. See id. (“It, however, is not necessary for this Court to rule upon that contention....“). Moreover, petitioner has not cited and I have not found any decision adopting the dictum as the holding of a court. The Union Electric dictum was based on an analogy to challenges to the subject matter jurisdiction of the federal courts, which cannot be waived by the parties and can, accordingly, be raised for the first time on appeal and even sua sponte by any federal court. See, e.g., Bender v. Williamsport Area School District, 475 U.S. 534 (1986). That principle, however, is grounded in “the nature and limits of the judicial power of the United States,” which is constitutional in nature, and “inflexible and without exception.” Mansfield, C. & L.M. Ry. Co. v. Swan, 111 U.S. 379, 382 (1884). The scope of regulatory jurisdiction and of the procedural limitations on appellate challenges to regulatory agency decisions, by contrast, is a matter of policy for Congress to decide. Congress has stated in no uncertain terms that “[n]o objection” to a FERC order “shall be considered by the court [of appeals]” unless the petitioner has raised the objection before the Commission in a petition for rehearing or has reasonable grounds for failure to do so.
Contrary to the Union Electric dictum, the authority of a federal regulatory commission is not analogous to the subject matter jurisdiction of a federal court. Often, the scope of regulatory jurisdiction depends—as here—on technical questions falling within the expertise of the agency. See, e.g., Aquenergy Sys., Inc. v. FERC, 857 F.2d 227, 230 (4th Cir.1988) (FERC jurisdiction challenged on the ground that the operation did not affect interstate commerce; court declined to consider the issue on the ground that it was not presented to the Commission). Such questions must be presented to the agency so that the agency can develop the recоrd, make appropriate findings, and apply its expertise to the