Coalition for Responsible Growth & Resource Conservation v. United States Federal Energy Regulatory Commission , 485 F. App'x 472 ( 2012 )

12-566-ag
Coalition v. FERC
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING
A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER").
A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York, on the
12th day of June, two thousand twelve.
PRESENT: RALPH K WINTER,
DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges.
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COALITION FOR RESPONSIBLE GROWTH
AND RESOURCE CONSERVATION,
DAMASCUS CITIZENS FOR SUSTAINABILITY,
AND SIERRA CLUB,
Petitioners,
v. 12-566-ag
UNITED STATES FEDERAL ENERGY
REGULATORY COMMISSION,
Respondent,
CENTRAL NEW YORK OIL AND GAS COMPANY,
Intervenor.
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FOR PETITIONERS: DEBORAH GOLDBERG (Hannah Chang,
Bridget Lee, on the brief),
EARTHJUSTICE, New York, New York,
FOR RESPONDENT: KARIN L. LARSON, Attorney (Michael A.
Bardee, General Counsel, Robert H.
Solomon, Solicitor, Holly E. Cafer,
Attorney, on the brief), United States
Federal Energy Regulatory Commission,
Washington, D.C.
FOR INTERVENOR: ROBERT J. ALESSI (Jeffrey D. Kuhn, on
the brief), DLA Piper, New York, New
York (William F. Demarest, Jr.,
Michael A. Gatje, Husch Blackwell LLP,
on the brief), Washington, DC.
Petition for review of two orders of the United States
Federal Energy Regulatory Commission ("FERC").
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the petition is DENIED.
We assume the parties' familiarity with the facts and
procedural history, which we reference only as necessary to explain
our decision to deny the petition.
Petitioners Coalition for Responsible Growth and Resource
Conservation, Damascus Citizens for Sustainability, and Sierra Club
(collectively, the "Coalition") seek review of: (1) a Certificate of
Public Convenience and Necessity (the "Certificate Order") granted
by FERC pursuant to Section 7(c) of the Natural Gas Act, 15 U.S.C.
§ 717f(c), to the Central New York Oil and Gas Company ("Central NY
Oil") and (2) an order denying the Coalition's Request for Rehearing
of the Certificate Order (the "Rehearing Order").
The Certificate Order authorizes Central NY Oil to build
and operate the MARC I Hub Line Project natural gas pipeline -- 39
miles long and 30 inches in diameter -- to run through Bradford,
Sullivan, and Lycoming Counties, Pennsylvania, and to build and
operate related facilities.
Under the National Environmental Policy Act ("NEPA"), 42
U.S.C. §§ 4321-4347, a federal agency proposing a "major Federal
action[] significantly affecting the quality of the human
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environment" must prepare a detailed statement about the
environmental impact of the proposed action -- an environmental
impact statement ("EIS"). 42 U.S.C. § 4332(2)(C)(i); Nat'l Audubon
Soc'y v. Hoffman, 132 F.3d 7, 12 (2d Cir. 1997). If an agency is
uncertain as to whether the action requires an EIS, it must prepare
an environmental assessment ("EA") that ["b]riefly provide[s]
sufficient evidence and analysis for determining whether to prepare
an [EIS]." 40 C.F.R. §§ 1501.3, 1508.9(a)(1). If the agency finds
that an EIS is not necessary, the agency will issue a finding of no
significant impact ("FONSI"). 40 C.F.R. § 1508.9(a)(1).
In reviewing a decision whether to issue an EIS, this
Court must consider: (1) "whether the agency took a 'hard look' at
the possible effects of the proposed action" and (2) if the agency
has taken a "hard look," whether "the agency's decision was
arbitrary or capricious." Nat'l Audubon Soc'y, 132 F.3d at 14; see
also 5 U.S.C. § 706(2)(A) (court may set aside an agency's decision
not to require an EIS only upon a showing that it was "arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance
with law"). Under NEPA, this Court's role is to "insure that the
agency considered the environmental consequences" of the federal
action at issue. Town of Orangetown v. Gorsuch, 718 F.2d 29, 35 (2d
Cir. 1983) (citation omitted); see also Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 351 (1989) ("NEPA merely prohibits
uninformed -- rather than unwise -- agency action").
Here, in considering Central NY Oil's application, FERC
prepared an EA, issued a FONSI, and concluded that an EIS was not
required. We conclude, based on our review of the administrative
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record, that FERC took a "hard look" at the possible effects of the
Project and that its decision that an EIS was not required was not
arbitrary or capricious. Its 296-page EA thoroughly considered the
issues. The Certificate Order carefully reviewed the concerns
raised by the comments. The Rehearing Order addressed petitioners'
concerns and further explained FERC's basis for issuing the FONSI.
The Coalition argues that FERC's cumulative impact
analysis was inadequate. We disagree. FERC's analysis of the
development of the Marcellus Shale natural gas reserves was
sufficient. FERC included a short discussion of Marcellus Shale
development in the EA, and FERC reasonably concluded that the
impacts of that development are not sufficiently causally-related to
the project to warrant a more in-depth analysis. In addition,
FERC's discussion of the incremental effects of the project on
forests and migratory birds was sufficient. FERC addressed both
issues in the EA and has required Central NY Oil to take concrete
steps to address environmental concerns raised by petitioners and
others. For example, in the Certificate Order, FERC required
Central NY Oil to comply with its Riparian Forested Buffer
Enhancement Plan to address forest fragmentation. In Environmental
Condition 17 of the EA, FERC required Central NY Oil to prepare and
execute a Migratory Bird Impact Assessment and Habitat Restoration
Plan. The environmental concerns identified by commenting parties,
including the Environmental Protection Agency, were considered and
addressed by FERC in the EA and the Rehearing Order.
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Accordingly, we hold that FERC properly discharged its
responsibilities under NEPA. We have considered all of petitioners'
remaining arguments and conclude that they are without merit. The
petition for review is DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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