Columbia Riverkeeper v. U.S. Coast Guard , 761 F.3d 1084 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
COLUMBIA RIVERKEEPER; No. 12-73385
COLUMBIA-PACIFIC COMMONSENSE;
WAHKIAKUM FRIENDS OF THE
RIVER,
Petitioners, OPINION
v.
UNITED STATES COAST GUARD,
Respondent,
LNG DEVELOPMENT COMPANY,
LLC, DBA Oregon LNG,
Respondent-Intervenor.
On Petition for Review of an Order of the
United States Coast Guard
Argued and Submitted
May 12, 2014—Portland, Oregon
Filed August 5, 2014
Before: Arthur L. Alarcón, A. Wallace Tashima,
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta
2 COLUMBIA RIVERKEEPER V. U.S. COAST GUARD
SUMMARY*
Jurisdiction / U.S. Coast Guard
The panel dismissed due to lack of jurisdiction a petition
for review of the U.S. Coast Guard’s issuance of a letter of
recommendation to the Federal Energy Regulatory
Commission regarding the suitability of the Columbia River
for vessel traffic associated with a proposed liquified gas
facility and pipeline.
The panel concluded that the court lacked jurisdiction
because the Coast Guard’s letter of recommendation was not
in practice a final agency action under 15 U.S.C. § 717r(d)(1)
of the Natural Gas Act, which authorizes judicial review of
final agency orders and actions that “issue, condition, or deny
any permit, license, concurrence, or approval.”
COUNSEL
Thomas C. Buchele (argued) and Aubrey Baldwin, Earthrise
Law Center, Portland, Oregon; Lauren Goldberg, Columbia
Riverkeeper, Hood River, Oregon, for Petitioners.
Brian C. Toth (argued) and Robert J. Lundman, Attorneys,
Appellate Section; Robert G. Dreher, Acting Assistant
Attorney General, United States Department of Justice,
Environment & Natural Resources Division, Washington,
D.C.; John T. Dewey, Curtis E. Borland, Frank G. Nolan, and
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
COLUMBIA RIVERKEEPER V. U.S. COAST GUARD 3
Bronwyn Douglass, United States Coast Guard, Washington,
D.C., for Respondent.
Charles Scott, Fulbright & Jaworski, New York, New York,
for Respondent-Intervenor.
OPINION
IKUTA, Circuit Judge:
This appeal addresses one of the several administrative
proceedings in which Columbia Riverkeeper, Columbia-
Pacific Common Sense, and Wahkiakum Friends of the River
(collectively Riverkeeper) have attempted to intervene in an
effort to prevent LNG Development Company, LLC (doing
business as Oregon LNG), from constructing a liquefied
natural gas facility and pipeline along the Columbia River in
Oregon. As part of the lengthy terminal siting process, the
Coast Guard provided the Federal Energy Regulatory
Commission (FERC) with a letter of recommendation
(sometimes referred to as a LOR) regarding the suitability of
the waterway for vessel traffic associated with the proposed
facility. Riverkeeper petitions for review of the Coast
Guard’s issuance of the letter of recommendation, contending
that we have jurisdiction under 15 U.S.C. § 717r(d)(1), which
authorizes judicial review of agency orders and actions that
“issue, condition, or deny any permit, license, concurrence,
or approval.” Because the letter of recommendation is not
such an order or action, we conclude we lack jurisdiction and
dismiss the petition for review.
4 COLUMBIA RIVERKEEPER V. U.S. COAST GUARD
I
Liquefied natural gas (LNG) is natural gas that has been
“supercooled into liquid form” and “reheated back into gas
form at natural gas terminals” for transport to customers.
Wash. Gas Light Co. v. FERC, 532 F.3d 928, 929 n.1 (D.C.
Cir. 2008). Although the process for liquefying natural gas
has been known since the 19th Century and used
commercially since the 1950s, interest in transporting LNG
for commercial use increased first in the 1970s due to
declines in gas reserves, and again more recently. See Jacob
Dweck, David Wochner, & Michael Brooks, Liquefied
Natural Gas (LNG) Litigation After the Energy Policy Act of
2005: State Powers in LNG Terminal Siting, 27 Energy L.J.
473, 473 (2006). The supercooling process reduces the
volume of the natural gas to 1/600th of natural gas in vapor
form, and, according to the Coast Guard, makes transporting
liquefied natural gas “the most economical way to import
natural gas from overseas.” Once natural gas has been
liquefied, it can be transported in an LNG tanker to an LNG
import terminal, which receives, stores and processes the
LNG. These facilities are “typically sited in coastal areas
with shipping access.” AES Sparrows Point LNG, LLC v.
Smith, 527 F.3d 120, 124 (4th Cir. 2008). Because activities
involving LNG have a potential for explosions, fires, and
spills, federal, state, and local governments have taken steps
to regulate the siting and operation of LNG terminal facilities.
A
To understand the role of the Coast Guard’s letter of
recommendation in the regulatory process, it is necessary to
review the historical development of the legal framework for
siting LNG terminal facilities. Prior to 2005, different federal
COLUMBIA RIVERKEEPER V. U.S. COAST GUARD 5
agencies allocated responsibility for regulating LNG terminal
facilities amongst themselves by means of interagency
agreements, with little guidance from Congress. The Natural
Gas Act of 1938 (NGA) authorized FERC’s predecessor
agency (the Federal Power Commission) to approve the
import and export of natural gas, 15 U.S.C. § 717b (1938),
and the extension and improvement of transportation
facilities, 15 U.S.C. § 717f (1938), but did not reference LNG
terminal facility siting responsibility. Beginning in 1968,
Congress enacted a series of pipeline safety statutes that gave
the Department of Transportation (DOT) authority to issue
minimum safety standards for siting new liquefied natural gas
pipeline facilities, 49 U.S.C. § 60103. DOT and FERC
ultimately entered into an interagency agreement to allocate
their respective responsibilities. See Memorandum of
Understanding between the Department of Transportation and
the Federal Energy Regulatory Commission regarding
Liquefied Natural Gas Transportation Facilities (1985).
In addition, the Coast Guard asserted authority over siting
decisions affecting the safety and security of port areas and
navigable waterways under the Ports and Waterways Safety
Act, 33 U.S.C. §§ 1221–1236, the Magnuson Act of 1950,
50 U.S.C. § 191, and Executive Order No. 10173, 15 Fed.
Reg. 7005 (Oct. 18, 1950). In early 1978, the Coast Guard
and a DOT subagency (the Office of Pipeline Safety
Operation of the Materials Transportation Bureau) entered
into a memorandum of understanding regarding the division
of regulatory responsibility over LNG terminals. Believing
that the agreement gave it broad regulatory authority, the
Coast Guard commenced a rulemaking proceeding and
proposed regulations that would require any person siting an
LNG facility to obtain a “use permit” from the Coast Guard.
Liquefied Natural Gas Facilities, 43 Fed. Reg. 34362, 34365
6 COLUMBIA RIVERKEEPER V. U.S. COAST GUARD
(Aug. 3, 1978) (proposed 33 C.F.R. § 126.2012). After
further congressional action suggested that the Coast Guard’s
view of its regulatory authority was too broad, the Coast
Guard reduced its ambition. Pursuant to a revised
memorandum of understanding with DOT, signed in 1986,
the Coast Guard proposed revised regulations replacing its
proposed “use permit” requirement with a requirement that a
project proponent merely secure a letter of recommendation
from the Coast Guard. Liquefied Natural Gas Waterfront
Facilities, 53 Fed. Reg. 3370, 3377 (Feb. 5, 1988) (proposed
33 C.F.R. § 127.009).
Beginning in the 1990s, there was a rapid increase in
efforts to site LNG import terminals. In response to growing
safety and environmental concerns, a number of states
claimed authority to regulate LNG facilities under specific
state LNG statutes or under general environmental, zoning, or
construction laws. See Parfomake & Vann, Congressional
Research Service, Liquefied Natural Gas (LNG) Import
Terminals: Siting, Safety, and Regulation, at 16–17 (Dec. 14,
2009); see also, e.g., Weaver’s Cove Energy, LLC v. R.I.
Coastal Res. Mgmt. Council, 589 F.3d 458, 472–73 (1st Cir.
2009); AES Sparrows Point LNG, 527 F.3d at 124. California
also asserted exclusive authority to regulate LNG facilities
that did not impact interstate commerce, claiming that FERC
lacked authority under the NGA to regulate such sites. See,
e.g., Re: Sound Energy Solutions, Notice of Intervention and
Protest of the Public Utilities Commission of the State of
California, at 7–9, FERC Docket No. CP04-58-000 (Feb. 23,
2004).
In 2004, FERC, the Coast Guard, and a DOT subagency
(the Research and Special Programs Administration)
responded to the terrorist events of September 11, 2001 by
COLUMBIA RIVERKEEPER V. U.S. COAST GUARD 7
entering into another interagency agreement to divide
regulatory responsibility for the safety and security review of
waterfront LNG facilities. This agreement confirmed that
FERC had lead regulatory authority for the siting and
construction of onshore LNG facilities. The agencies also
agreed that FERC would be the lead agency for preparing an
environmental impact statement (EIS) under the National
Environmental Policy Act (NEPA), 1 42 U.S.C.
§§ 4321–4370h.
In 2005, consistent with this 2004 interagency agreement,
the Coast Guard issued a “Navigation and Vessel Inspection
Circular,” NVIC 05-05, providing guidance for persons
“seeking a permit to build and operate a shore-side LNG
terminal.” The circular confirmed that FERC was responsible
for authorizing the siting and construction of onshore LNG
facilities, and was the lead agency for the NEPA process.
The circular stated that the Coast Guard would serve as a
cooperating agency under NEPA, see 40 C.F.R. § 1501.6, and
would provide FERC with a letter of recommendation (as
required in the Coast Guard’s 1988 regulations) that set forth
its formal evaluation of the suitability of the waterway for
LNG marine traffic. According to the Coast Guard, issuing
such a letter of recommendation was a “federal action which
1
For all “major Federal actions significantly affecting the quality of the
human environment” the responsible official must conduct environmental
analyses pursuant to NEPA. 42 U.S.C. § 4332(C). Such analysis must
include a “full and fair discussion of [the action’s] significant
environmental impacts and shall inform decisionmakers and the public of
the reasonable alternatives which would avoid or minimize adverse
impacts or enhance the quality of the human environment.” 40 C.F.R.
§ 1502.1. “Major federal actions” include “projects and programs entirely
or partly financed, assisted, conducted, regulated, or approved by federal
agencies.” 40 C.F.R. § 1508.18(a).
8 COLUMBIA RIVERKEEPER V. U.S. COAST GUARD
requires compliance with NEPA” to the same extent as
FERC’s authorization for construction and operation of an
LNG facility.
Just a few months later, Congress enacted the Energy
Policy Act (EPAct) of 2005, Pub. L. No. 109-58, 119 Stat.
594, which finally clarified Congress’s intent regarding the
division of responsibility for siting and operating LNG
terminal facilities. The EPAct resolved a number of
important issues. First, the Act amended the applicable
section of the Natural Gas Act to give FERC “the exclusive
authority to approve or deny an application for the siting,
construction, expansion, or operation of an LNG terminal,”
id., § 311, 119 Stat. at 686, codified at 15 U.S.C. § 717b(e)(1)
(emphasis added), thereby precluding other federal or state
agencies from asserting such authority.
Second, in response to the states’ interest in having some
control over LNG import terminals within their jurisdiction,
Congress took a compromise position. Although Congress’s
grant of “exclusive authority” to FERC in siting decisions
precluded the states’ imposition of state law requirements, the
EPAct preserved the states’ authority under several federal
environmental laws to require project proponents to obtain a
state compliance certification. Id., § 311, 119 Stat. at 686,
codified at 15 U.S.C. § 717b(d). But to prevent states from
using this authority to block LNG projects completely, see
Dweck, Wochner, & Brooks, supra, at 483–85 (examining
Connecticut’s successful efforts to block the Islander East
pipeline project using its water quality certification authority
under the CWA), the EPAct allowed for federal judicial
review of an order or action of a “State administrative agency
acting pursuant to Federal law to issue, condition, or deny any
permit, license, concurrence, or approval,” Pub. L. No. 109-
COLUMBIA RIVERKEEPER V. U.S. COAST GUARD 9
58, § 313, 119 Stat. at 689–90, codified at 15 U.S.C.
§ 717r(d)(1); see Islander E. Pipeline Co. v. Conn. Dep’t of
Envtl. Prot., 482 F.3d 79, 85 (2d Cir. 2006) (stating that
legislative history confirms that this provision was enacted to
allow expedited federal judicial review of a state’s denial of
a required federal permit); see also Dweck, Wochner, &
Brooks, supra, at 482–83 (noting that the conflict between
Islander East and Connecticut led Congress to enact
§ 717r(d)).
Finally, the EPAct confirmed that FERC was the “lead
agency for the purposes of coordinating all applicable Federal
authorizations and for the purposes of complying with”
NEPA. Pub. L. No. 109-58, § 313, 119 Stat. at 689, codified
at 15 U.S.C. § 717n(b)(1). It required FERC to promulgate
regulations for NEPA compliance that require a pre-filing of
LNG import terminal siting applications. Id., § 311, 119 Stat.
at 687, codified at 15 U.S.C. § 717b-1(a).
Although the EPAct did not speak directly to the Coast
Guard’s role in siting LNG facilities, after the EPAct’s
enactment, the Coast Guard revisited its internal procedures,
and issued a new “Navigation and Vessel Inspection
Circular,” NVIC 05-08, on December 22, 2008. Now
understanding that its letter of recommendation was not a
final decision, but rather mere advice to FERC (the agency
with exclusive authority to make all siting decisions under the
EPAct), the Coast Guard determined its letter of
recommendation did not “constitute a permitting action and
must not impose requirements or conditions mandated by the
Coast Guard.” Accordingly, the Coast Guard no longer
deemed its letter of recommendation to require separate
compliance with NEPA. In 2010, Congress confirmed this
approach. In § 813 of the Coast Guard Authorization Act of
10 COLUMBIA RIVERKEEPER V. U.S. COAST GUARD
2010, Congress required “the Secretary of the department in
which the Coast Guard is operating” to “make a
recommendation, after considering recommendations made
by the States, to the Federal Energy Regulatory Commission
as to whether the waterway to a proposed waterside liquefied
natural gas facility is suitable or unsuitable for the marine
traffic associated with such facility.” Pub. L. No. 111-281,
§ 813, 124 Stat. 2905, 2999. This language confirmed
Congress’s intent to limit the Coast Guard’s role in licensing
LNG facilities to issuing letters of recommendation.
B
Accordingly, by 2009 (the year the Coast Guard issued
the letter of recommendation in this case), the regulatory
framework for a party seeking to site an LNG facility was as
follows. FERC was the exclusive siting authority and “lead
agency” under NEPA. 15 U.S.C. § 717n(b)(1). FERC
required an applicant to engage in a pre-filing procedure
before filing an application. See 18 C.F.R. §§ 153.12, 157.21
(2009). Among other pre-filing steps, the applicant had to
file a letter of intent and waterway suitability assessment with
the captain of the port2 of the zone in which the facility would
be located, pursuant to 33 C.F.R. § 127.007 (2009) and 18
C.F.R. § 157.21 (2009). After reviewing the letter of intent
and accompanying assessment, the captain of the port would
issue a letter of recommendation regarding the proposed
facility. 33 C.F.R. § 127.009 (2009). Under Coast Guard
regulations, a person “directly affected” by the letter of
recommendation could “request reconsideration by the Coast
Guard officer responsible,” id. § 127.015(a) (2009), and
2
A “captain of the port” is the officer so designated by the
Commandant of the Coast Guard. 14 U.S.C. § 634(a).
COLUMBIA RIVERKEEPER V. U.S. COAST GUARD 11
pursue two additional levels of administrative review, id.§ 127.015 (2009).3
After the project proponent filed an application with
FERC, FERC would undertake an extensive review and
consultation process with various federal, state, and local
agencies, as well as private parties, and also convene public
hearings. See 15 U.S.C. §§ 717b(e)(2)(B), 717b-1. This
process included the work necessary to comply with NEPA.
Other state and federal cooperating agencies assist FERC in
preparing an EIS. The project proponent was required to
obtain all necessary permits and approvals from state and
other federal bodies, and could challenge the denial of any
permits or approvals required under federal law in a federal
court of appeals. See id. § 717r(d)(1). Once this process was
completed, FERC could issue a final decision approving or
denying the application. See id. § 717b(e)(2). FERC could
approve the application “in whole or part, with such
modifications and upon such terms and conditions” as it
found necessary and appropriate. Id. § 717b(e)(3).
Upon FERC’s issuance of the order, any person could
apply for rehearing within 30 days. Id. § 717r(a). Within 60
days of FERC’s order on the application for rehearing, an
aggrieved party could obtain review of the order in the court
3
In 2012, the Coast Guard amended its regulations to provide that the
letter of recommendation is not appealable because it “is a
recommendation from the [captain of the port] to the agency having
jurisdiction” and “does not constitute agency action for the purpose of
§ 127.015 or the Administrative Procedure Act.” 33 C.F.R. § 127.009(b)
(2012). That regulation does not apply retroactively. See id. § 127.009(e)
(2012).
12 COLUMBIA RIVERKEEPER V. U.S. COAST GUARD
of appeals “wherein the natural-gas company to which the
order relates is located” by filing a written petition. Id.
§ 717r(b).
II
We now turn to the facts of this case. In 2007, Oregon
LNG began the pre-filing process: It made an initial filing
with FERC and filed a letter of intent and a preliminary
waterway suitability assessment with the captain of the port
for Portland for a proposed LNG terminal and pipeline. The
letter stated that Oregon LNG intended to construct an LNG
facility on the East Skipanon Peninsula, near the confluence
of the Skipanon and the Columbia River in Warrenton,
Oregon. In August 2007, FERC published a notice of intent
to prepare an EIS for the East Skipanon LNG terminal. LNG
Development Company, LLC and Oregon Pipeline Company;
Notice of Intent, 72 Fed. Reg. 50356 (Aug. 31, 2007).
Oregon LNG filed its formal application for the East
Skipanon LNG terminal with FERC in October 2008,
prompting FERC to issue a notice of application. LNG
Development Company, LLC (d/b/a Oregon LNG); Oregon
Pipeline Company, LLC; Notice of Applications, 73 Fed.
Reg. 65301 (Nov. 3, 2008). Riverkeeper and other
environmental organizations intervened in the FERC
proceedings pursuant to 18 C.F.R. § 385.214 on November
17, 2008.4
On April 24, 2009, the captain of the port issued the letter
of recommendation at issue in this case, and the
accompanying analysis for Oregon LNG’s East Skipanon
4
The FERC proceedings are ongoing.
COLUMBIA RIVERKEEPER V. U.S. COAST GUARD 13
LNG terminal, pursuant to 33 C.F.R. § 127.009. The letter
stated the captain’s determination “that the applicable
portions of the Columbia River and its approaches are not
currently suitable, but could be made suitable for the type and
frequency of LNG marine traffic associated with this
project.” The letter of recommendation included the
following statement:
While this letter has no enforcement status,
the determinations, analysis, and ultimate
recommendation as to the suitability of this
waterway, as contained in this letter, would be
referenced in concert with a Captain of the
Port Order, should an LNG transit be
attempted along this waterway without full
implementation of the risk mitigation
measures.
The analysis accompanying the letter listed additional
mitigation measures that were recommended “to responsibly
manage the safety and security risks” of the project, while
acknowledging that the specifics of each suggested mitigation
measure would require “further development through the
creation of an Emergency Response Plan as well as a Transit
Management Plan.”
On May 22, 2009, Riverkeeper and other intervenors
requested reconsideration of the letter of recommendation
under 33 C.F.R. § 127.015(a) (2009), on the ground that the
Coast Guard had failed to comply with NEPA and the
14 COLUMBIA RIVERKEEPER V. U.S. COAST GUARD
Endangered Species Act (ESA),5 16 U.S.C. §§ 1531–44. The
captain of the port denied the motion for reconsideration on
July 9, 2009, and Riverkeeper filed an administrative appeal,
see 33 C.F.R. § 127.015(b)(1) (2009), which was denied by
a district commander on December 2, 2010.
Thereafter, an assistant commandant denied
Riverkeeper’s second administrative appeal, see 33 C.F.R.
§ 127.015(c), on August 25, 2012. In his August 25th
decision letter, the assistant commandant stated that issuance
of the letter of recommendation was not an agency action
under the ESA or Administrative Procedure Act (APA), or a
“major federal action” under NEPA, because its issuance
“carries no legal significance in and of itself,” The letter of
recommendation was “not a condition precedent for and does
not bar FERC” from authorizing the East Skipanon LNG
terminal without adopting the captain of the port’s
recommendations or incorporating any of the mitigation
measures. The letter does not “impose any legal requirement
on any party to comply with” its recommendations; it is not
legally binding on the Coast Guard, any other government
agency, or Oregon LNG. Nor does the letter have an impact
on vessel traffic, because “[t]he issuance of an LOR neither
authorizes, nor prohibits, an LNG carrier from conducting a
transit of the waterway” and vessels are not required to obtain
Coast Guard transit permits. Rather, the issuance of a captain
of the port letter “is separate and distinct from the
5
The ESA requires each federal agency to “insure that any action
authorized, funded, or carried out by such agency . . . is not likely to
jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse modification of
habitat of such species which is determined by the Secretary.” 16 U.S.C.
§ 1536(2).
COLUMBIA RIVERKEEPER V. U.S. COAST GUARD 15
recommendations provided in an LOR, which are not
enforceable, and the [captain of the port] is not bound by the
recommendations contained in the LOR.”
Riverkeeper then filed a petition for review here,
challenging the letter of recommendation and the August 25,
2012 decision pursuant to 15 U.S.C. § 717r(d)(1) of the
Natural Gas Act. Oregon LNG intervened in the proceedings.
III
As a threshold matter, we must determine whether
§ 717r(d)(1) gives us jurisdiction to review Riverkeeper’s
challenge to the letter of recommendation and the Coast
Guard’s final denial of Riverkeeper’s administrative appeal.
Riverkeeper contends that in enacting § 717r(d)(1), Congress
intended to create an exception to the general rule that
“review of agency action is typically located in the district
courts under the APA absent a specific statutory provision to
the contrary,” Cal. Energy Comm’n v. Dep’t of Energy,
585 F.3d 1143, 1148 (9th Cir. 2009). We review questions
regarding our jurisdiction de novo. Sandoval-Luna v.
Mukasey, 526 F.3d 1243, 1245 (9th Cir. 2008) (per curiam).
“It is to be presumed that a cause lies outside [of federal
courts’] limited jurisdiction, and the burden of establishing
the contrary rests upon the party asserting jurisdiction.”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994) (citations omitted).
A
We begin with the text of the jurisdictional statute, which
provides in relevant part:
16 COLUMBIA RIVERKEEPER V. U.S. COAST GUARD
The United States Court of Appeals for the
circuit in which a facility subject to section
717b of this title . . . is proposed to be
constructed, expanded, or operated shall have
original and exclusive jurisdiction over any
civil action for the review of an order or
action of a Federal agency (other than the
Commission) or State administrative agency
acting pursuant to Federal law to issue,
condition, or deny any permit, license,
concurrence, or approval (hereinafter
collectively referred to as “permit”) required
under Federal law . . . .
15 U.S.C. § 717r(d)(1).
The statute does not define the terms “order or action” or
“permit, license, concurrence, or approval,” and so we
interpret these words according to “their ordinary,
contemporary, common meaning.” Transwestern Pipeline
Co. v. 17.19 Acres of Prop. Located in Maricopa Cnty.,
627 F.3d 1268, 1270 (9th Cir. 2010) (internal quotation marks
omitted). In making this interpretation, we give due
consideration to the context of these words “with a view to
their place in the overall statutory scheme.” Satterfield v.
Simon & Schuster, Inc., 569 F.3d 946, 953 (9th Cir. 2009)
(internal quotation marks omitted).
Neither we nor our sister circuits have defined the phrase
“order or action” in § 717r(d)(1). In interpreting statutes
authorizing judicial review of agency decisions, however, the
Supreme Court has held that “[t]he strong presumption is that
judicial review will be available only when agency action
becomes final.” Bell v. New Jersey, 461 U.S. 773, 778 (1983)
COLUMBIA RIVERKEEPER V. U.S. COAST GUARD 17
(holding that a statute allowing judicial review of “any
action” by the Secretary of Education gives federal courts
jurisdiction only over orders or actions that are final); see
also FPC v. Metro. Edison Co., 304 U.S. 375, 383–84 (1938)
(holding that the word “order” in a section of the Federal
Power Act substantially identical to § 717r(b) refers only to
final orders). This long-standing rule of construction reflects
the Supreme Court’s inference that Congress generally does
not intend to “afford[] opportunity for constant delays in the
course of the administrative proceeding,” such as would arise
if courts could review every interim agency order or action.
Metro. Edison, 304 U.S. at 383.
Nothing in § 717r(d)(1) overcomes this “strong
presumption.” Bell, 461 U.S. at 778. Congress’s intent to
authorize judicial review over only final orders or actions is
strongly supported by the language of § 717r(d)(1), which
limits judicial review to those agency decisions that “issue,
condition, or deny any permit, license, concurrence, or
approval,” the sort of final decisions that occur at the
conclusion of an administrative process. Further, reading
§ 717r(d)(1) as limiting judicial review to final agency
decisions is consistent with the long-standing interpretation
of § 717r(b), a related section of the same statute. Although
§ 717r(b) permits federal court review of “an order” issued by
FERC, the Supreme Court (as well as our sister circuits and
our own precedents) read this language as authorizing judicial
review only over final orders. See Consol. Gas Supply Corp.
v. FERC, 611 F.2d 951, 958 (4th Cir. 1979) (considering
§ 717r(b)); Atlanta Gas Light Co. v. FPC, 476 F.2d 142, 147
(5th Cir. 1973) (same); cf. Metro. Edison Co., 304 U.S. at383–84 (considering language in the Federal Power Act,
16 U.S.C. § 825l(b), which is substantially identical to
§ 717r(b)); The Steamboaters v. FERC, 759 F.2d 1382,
18 COLUMBIA RIVERKEEPER V. U.S. COAST GUARD
1387–88 (9th Cir. 1985) (same); Papago Tribal Util. Auth. v.
FERC, 628 F.2d 235, 238 (D.C. Cir. 1980) (same). In adding
§ 717r(d)(1) to § 717r when it enacted the EPAct, Congress
did not give any sign it intended federal courts to exercise a
broader scope of review over non-FERC decisions than over
FERC decisions. Finally, the presumption that Congress
intended to authorize judicial review over only final agency
decisions is supported by the same considerations relied on
by the Supreme Court in Metropolitan Edison Co.:
construing § 717r(d)(1) as allowing judicial review of every
interim action of a state or federal agency would “do violence
to the manifest purpose of the provision,” 304 U.S. at 384,
which was to expedite siting decisions, see Islander E.
Pipeline Co., 482 F.3d at 85. Accordingly, we conclude that
§ 717r(d) authorizes judicial review only over orders or
actions that are “final.”6 An action or order is “final when it
imposes an obligation, denies a right, or fixes some legal
relationship.” City of Fremont, 336 F.3d at 914 (internal
quotation marks omitted); see also Or. Natural Desert Ass’n
v. U.S. Forest Serv., 465 F.3d 977, 986–87 (9th Cir. 2006)
(same); Atlanta Gas, 476 F.2d at 147 (noting an order
reviewable under § 717r(b) must be “unambiguous in legal
effect” and have “some substantial effect on the parties which
cannot be altered by subsequent administrative action”).
6
In construing the language of the Federal Power Act, which is
substantially identical to § 717r(b), Papago, 628 F.2d at 245, we imposed
additional requirements for judicial review, holding that a FERC order is
subject to judicial review under the Federal Power Act only if “(1) the
order is final; (2) the order, if unreviewed, would inflict irreparable harm
on the party seeking review; and (3) judicial review at this stage of the
process would not invade the province reserved to the discretion of the
agency,” City of Fremont v. FERC, 336 F.3d 910, 913–14 (9th Cir. 2003).
We need not address here whether these requirements are also applicable
in the § 717r context.
COLUMBIA RIVERKEEPER V. U.S. COAST GUARD 19
Section 717r(d)(1) limits our review not only to final
actions and orders, but also to those that “issue, condition, or
deny any permit, license, concurrence, or approval
(hereinafter collectively referred to as ‘permit’) required
under Federal law.” Although the statute does not define
“permit, license, concurrence, or approval,” it collectively
refers to these terms as “permit,” indicating that Congress
intended to capture the type of agency determination that
grants or denies permission to take some action. See United
States v. Stevens, 559 U.S. 460, 474 (2010) (applying noscitur
a sociis canon). The dictionary definition of permit is “a
written warrant or license granted by one having authority,”
Merriam-Webster’s Collegiate Dictionary 923 (11th ed.
2003), which is similar to the definitions of the other statutory
terms.7 Indeed, the terms are often defined by one another.
See, e.g., Black’s Law Dictionary 1176 (8th ed. 2003)
(defining “permit” as “a certificate evidencing permission; a
license” (emphasis added)); id. at 938 (defining “license” as
“[a] permission, usu. revocable, to commit some act”
(emphasis added)).
Accordingly, Congress contemplated that an order or
action reviewable under § 717r(d)(1) would be (1) a final
agency action or order (2) issuing, conditioning or denying
(3) an agency determination (of a sort analogous to a permit)
that has the legal effect of granting or denying permission to
take some action.
7
See Merriam-Webster’s Collegiate Dictionary 717 (11th ed. 2003)
(defining “license” as “a permission to act”; “a permission granted by
competent authority to engage in . . . an activity otherwise unlawful”); id.
at 259 (defining “concurrence” as “an agreement or union in action”); id.
at 61 (defining “approval” as “an act or instance of approving” and
defining “approve” as “to give formal or official sanction to”).
20 COLUMBIA RIVERKEEPER V. U.S. COAST GUARD
B
Applying this interpretation, the letter of recommendation
for the East Skipanon LNG terminal is not a permitting action
or order under § 19 of the Natural Gas Act.
On its face, the Coast Guard’s letter of recommendation
for this terminal is not an agency determination granting or
denying permission to take some action. As early as 1986,
the Coast Guard recognized that its siting authority was
limited and retreated from its position that it was authorized
to issue a “use permit” for LNG terminal facilities. Instead,
it promulgated regulations allowing it to issue only a letter of
recommendation. Congress’s express grant of exclusive
siting authority to FERC, see 15 U.S.C. § 717b(e)(1), further
clarified that the Coast Guard lacks authority over siting
decisions. Congress is assumed to know existing law, and
Congress did not require FERC to obtain or comply with the
Coast Guard’s letter of recommendation, even though the
Coast Guard had begun issuing such letters long before the
EPAct was enacted. See Goodyear Atomic Corp. v. Miller,
486 U.S. 174, 184–85 (1988) (“We generally presume that
Congress is knowledgeable about existing law pertinent to the
legislation it enacts.”).
Congress subsequently confirmed that the Coast Guard’s
only obligation was to “make a recommendation” to FERC as
to the suitability of the waterway. Pub. L. No. 111-281,
§ 813, 124 Stat. at 2999.8 Because “recommendation” is not
8
Congress passed the 2010 Coast Guard Authorization Act after the
Coast Guard issued the letter of recommendation for the East Skipanon
LNG terminal but before the final administrative appeal denial. The
parties do not dispute that the 2010 statute applies here.
COLUMBIA RIVERKEEPER V. U.S. COAST GUARD 21
defined, we assume Congress adopted the common meaning
of the term “recommendation,” which is a suggestion or
advisement without decisive authority, see Merriam-
Webster’s Collegiate Dictionary 1039 (11th ed. 2003)
(defining “recommendation” as “the act of recommending”);
id. (defining “recommend” as “to present as worthy of
acceptance . . . . ; to endorse as fit worthy or competent . . . ;
advise”). Because nothing in the EPAct or the Coast Guard
Authorization Act suggests that the Coast Guard’s
“recommendation” is anything more than expert advice which
FERC will use to inform its decision of whether to approve
the proposed facility, we conclude the Coast Guard’s letter of
recommendation for the East Skipanon LNG terminal does
not have any conclusive legal effect.9 Cf. Revision of LNG
and LHG Waterfront Facility General Requirements, 75 Fed.
Reg. 29420, 29423 (May 26, 2010) (“Recommendations
expressed in the [letter of recommendation] represent the
Coast Guard’s professional input and are provided in the
context of the Federal, State, or local jurisdictional agency’s
proceedings, which provide for participation and public
comments.”). Because a letter is not a “permit, license,
concurrence, or approval,” for purposes of § 717r(d)(1), it is
therefore not subject to judicial review.
9
To the extent Riverkeeper argues that the final administrative appeal
denial was a “final agency action” based on language in 33 C.F.R.
§ 127.015(d) (2009), we reject this argument, because nothing in the
record indicates that the Coast Guard’s final decision had the effect of
issuing, conditioning, or denying a permit, see 15 U.S.C. § 717r(d)(1).
Because Riverkeeper did not appeal the action in district court asserting
jurisdiction under the APA, which provides for judicial review of final
agency actions, see 5 U.S.C. § 704, we need not address whether
Riverkeeper could have asserted a claim for relief in that context.
22 COLUMBIA RIVERKEEPER V. U.S. COAST GUARD
Riverkeeper raises several arguments against this
interpretation. First, Riverkeeper suggests that if § 717r(d)(1)
applies only to final actions relating to permits, and does not
apply to the Coast Guard’s letter of recommendation, it will
do no work in the statutory regime. Since we are to interpret
statutes to avoid making any provision superfluous, Corley v.
United States, 556 U.S. 303, 314 (2009), Riverkeeper argues
that such an interpretation cannot be correct. We disagree.
The main purpose of § 717r(d)(1) was to allow judicial
review of state agencies’ denial of certifications required
under federal environmental laws. See Islander E. Pipeline
Co., 482 F.3d at 85–88 (reviewing state order denying
petitioner’s application for a Water Quality Certificate).
Moreover, the NGA itself makes clear that certain federal
agency actions are subject to judicial review under this
section; for instance, FERC must “obtain the concurrence of
the Secretary of Defense before authorizing the siting,
construction, expansion, or operation of liquefied natural gas
facilities affecting the training or activities of an active
military installation.” 15 U.S.C. § 717b(f)(3) (emphasis
added).
Second, Riverkeeper argues that the term “letter of
recommendation” is misleading, and as a practical matter,
such a letter constitutes a final agency action or order under
§ 717r(d)(1). We agree that an agency’s characterization of
its action as being provisional or advisory is not necessarily
dispositive, and courts consider whether the practical effects
of an agency’s decision make it a final agency action,
regardless of how it is labeled. Under the APA, for instance,
even if the agency does not label its decision or action as
final, it may be reviewable if it “has the status of law or
comparable legal force” or if “immediate compliance with its
terms is expected.” Or. Natural Desert Ass’n, 465 F.3d at
COLUMBIA RIVERKEEPER V. U.S. COAST GUARD 23
987. In Bennett v. Spear, 520 U.S. 154 (1997), the Supreme
Court concluded that a biological opinion issued by the Fish
and Wildlife Service pursuant to the ESA was an appealable
final agency action under the APA because it effectively
authorized a federal agency to take endangered species if it
complied with the prescribed conditions. Id. at 177–78.
While styled as an “opinion,” the biological opinion had
“direct and appreciable legal consequences.” Id. at 178.
Likewise, a document styled as a “guidance document” may
amount to a final agency action when it “reflect[s] a settled
agency position which has legal consequences.” Appalachian
Power Co. v. EPA, 208 F.3d 1015, 1023 (D.C. Cir. 2000). By
contrast, an agency determination that certain property
contains wetlands subject to the Clean Water Act is not a
reviewable action under the APA, because that decision does
not determine rights or obligations from which legal
consequences will flow. Fairbanks N. Star Borough v. U.S.
Army Corps of Eng’rs, 543 F.3d 586, 593–94 (9th Cir. 2008).
We have followed the same approach in the NEPA and ESA
contexts as well. See Ramsey v. Kantor, 96 F.3d 434, 444
(9th Cir. 1996) (concluding an agency’s incidental take
statement was the functional equivalent of a permit and
therefore constituted a “major Federal action” triggering
NEPA obligations); cf. Karuk Tribe of Cal. v. U.S. Forest
Serv., 681 F.3d 1006, 1021–23 (9th Cir. 2012) (en banc)
(concluding the Forest Service’s decision authorized rather
than advised proposed mining activity and therefore triggers
ESA requirements), cert. denied, 133 S. Ct. 1579 (2013).
Relying on these precedents, Riverkeeper maintains that
the Coast Guard’s letter of recommendation for the East
Skipanon LNG terminal is the functional equivalent of a
permit because either (1) the letter of recommendation is in
practice a necessary prerequisite for siting of a facility or
24 COLUMBIA RIVERKEEPER V. U.S. COAST GUARD
(2) the letter of recommendation will effectively regulate
vessel traffic along the waterway after the facility’s
construction. We disagree with both assertions.
First, the record does not establish that obtaining the
Coast Guard’s approval of the proposed site for an LNG
terminal is a necessary prerequisite for siting an LNG facility.
Here, the Coast Guard has no enforcement authority over
FERC’s siting decision, and its letter of recommendation does
not produce legal consequences. In Bennett and Appalachian
Power, by contrast, the agency action had a “virtually
determinative effect” on the project proponent. Bennett, 520
U.S. at 169; see also id. at 178 (stating that the Fish and
Wildlife Service’s biological opinion “alter[ed] the legal
regime” to which the federal agency was subject and had the
power to preclude the federal agency’s ability to go forward
with its water reclamation project); Appalachian Power,
208 F.3d at 1023 (stating that “through the Guidance, EPA
has given the States their ‘marching orders’”).
Nor does the record support Riverkeeper’s argument that,
as a practical matter, FERC always complies with the Coast
Guard’s letter of recommendation, which effectively gives it
the force of law. In making this claim, Riverkeeper relies
primarily on the First Circuit’s decision in City of Fall River
v. FERC, 507 F.3d 1 (1st Cir. 2007). But Riverkeeper’s
reliance on Fall River is misplaced because in that case FERC
gave the person seeking to construct an LNG terminal facility
a conditional approval that was subject to the Coast Guard’s
approval of a vessel transportation plan. Id. at 3–5. Under
these circumstances, the Coast Guard’s approval did have
binding effect, because FERC had the plenary authority to
make a siting order subject to such a requirement. See
15 U.S.C. § 717b(e). But nothing in Fall River suggests that
COLUMBIA RIVERKEEPER V. U.S. COAST GUARD 25
FERC has a firm internal policy to condition its approval
upon the Coast Guard’s decision, and there is no evidence in
the record before us suggesting that FERC has such an
entrenched policy generally or imposed such a condition here.
Second, we reject Riverkeeper’s claim that the Coast
Guard’s letter of recommendation will effectively regulate
vessel traffic along the waterway after the facility’s
construction. For this claim, Riverkeeper relies on the
captain of the port’s statement in the letter of
recommendation that “should an LNG transit be attempted
along this waterway without full implementation of the risk
mitigation measures” the Coast Guard would reference the
letter of recommendation’s “determinations, analysis, and
ultimate recommendation as to the suitability of this
waterway” in a “Captain of the Port Order.” On its face, this
language suggests that the Coast Guard intends to prevent the
East Skipananon LNG facility from receiving vessels unless
the project proponent complies with the letter’s requirements.
But the record establishes that the Coast Guard has not taken
this position. Most important, the Coast Guard’s final
administrative decision, dated August 25, 2012, states that
mitigation measures in the letter of recommendation are not
binding on the captain of the port, and that as a practical
matter, the Coast Guard does not and could not regulate the
waterways by preventing vessel transit to LNG terminals that
failed to obtain an approval letter. In considering the effect
of the letter of recommendation, we are bound by the final
determination at the higher level of the agency. Cf. Nat’l
Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S.
644, 659 (2007) (“[T]he fact that a preliminary determination
by a local agency representative is later overruled at a higher
level within the agency does not render the decisionmaking
process arbitrary and capricious.”); Bechtel v. Admin. Review
26 COLUMBIA RIVERKEEPER V. U.S. COAST GUARD
Bd., U.S. Dep’t of Labor, 710 F.3d 443, 449 (2d Cir. 2013)
(concluding ALJ’s error was “beside the point” where the
Administrative Review Board recognized the error and
explained that it did not affect the case’s outcome).10
Accordingly, we conclude that the letter of recommendation
is not in practice a final agency action.11
C
Although the record does not establish that the Coast
Guard’s letter of recommendation is a final agency order or
action “to issue, condition, or deny any permit, license,
concurrence, or approval” required under Federal law,
15 U.S.C. § 717r(d)(1), this does not mean that the Coast
Guard’s recommendations are immune from judicial review.
10
The Coast Guard press release and public relations documents, which
also state that Oregon LNG must implement the risk mitigation measures
in the Coast Guard’s letter of recommendation, merely track the language
of the letter, and so do not provide any additional support for
Riverkeeper’s interpretation. The April 13, 2009 “Executive Brief”cited
in Riverkeeper’s reply suffers from the same infirmity.
11
Riverkeeper points to two other documents to support its interpretation
of the import of the letter of recommendation, but its arguments are
meritless. First, Riverkeeper claims that language in the Bradwood
project’s final environmental impact statement indicates that LNG tankers
must comply with mitigation measures set forth in the Coast Guard’s letter
of recommendation. Even if we interpreted the Bradwood environmental
documents as Riverkeeper urges, the Coast Guard analyzed the Bradwood
project under its pre-EPAct guidance document (NVIC 05-05), which is
no longer applicable here. Riverkeeper’s reliance on a May 2009 letter
from the Coast Guard to FERC is likewise misplaced; that letter merely
explains that the Coast Guard, not FERC, has jurisdiction over design and
equipment requirements on vessels. Nothing in the Coast Guard’s letter
indicates that the advice contained in a letter of recommendation is
binding.
COLUMBIA RIVERKEEPER V. U.S. COAST GUARD 27
Rather, any Coast Guard recommendation adopted by FERC
in its final order, or any failure to adopt such a
recommendation, would be reviewable under 15 U.S.C.
§ 717r(b). In addition, any final orders regarding vessel
traffic issued by the Coast Guard pursuant to its own
independent authority will be subject to judicial review as
final agency action. See, e.g., Wong v. Bush, 542 F.3d 732,
735 (9th Cir. 2008) (considering challenges to rule
establishing security zone); Wilmina Shipping AS v. U.S.
Dep’t of Homeland Sec., 934 F. Supp. 2d 1, 4, 19 (D.D.C.
2013) (considering challenge to a captain of the port’s order).
But because Riverkeeper has not carried its burden of
showing that the letter of recommendation for the East
Skipanon LNG terminal is a final agency order or action to
issue a permit we lack jurisdiction to consider it or the August
25, 2012 decision affirming the letter.
DISMISSED.