Myersville Citizens for a Rura v. FERC , 783 F.3d 1301 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 24, 2014 Decided April 24, 2015
No. 13-1219
MYERSVILLE CITIZENS FOR A RURAL COMMUNITY, INC., ET
AL.,
PETITIONERS
v.
FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT
DOMINION TRANSMISSION, INC.,
INTERVENOR
On Petition for Review of Orders of the
Federal Energy Regulatory Commission
Carolyn Elefant argued the cause and filed the briefs for
petitioners.
Karin L. Larson, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. With her on
the brief were David L. Morenoff, Acting General Counsel,
and Robert H. Solomon, Solicitor.
Catherine E. Stetson argued the cause for intervenor. On
the brief were J. Patrick Nevins, Christopher T. Handman,
and Sean Marotta.
2
Before: TATEL, MILLETT, and PILLARD, Circuit Judges.
Opinion for the Court filed by Circuit Judge PILLARD.
PILLARD, Circuit Judge: Citizens of the small town of
Myersville, in Frederick County, Maryland, oppose the
construction of a natural gas facility called a compressor
station in their town. The compressor station is a small part
of a larger expansion of natural gas facilities in the
northeastern United States proposed by Dominion
Transmission, Inc., a regional natural gas company and
Intervenor in this case. Dominion, which is in the business of
storing and transporting natural gas, requested approval from
the Federal Energy Regulatory Commission to move ahead
with the project. The Commission, over the objections of the
Myersville citizens, conditionally approved it in December
2012. Dominion then fulfilled the Commission’s conditions,
including obtaining a Clean Air Act permit from the
Maryland Department of the Environment. Dominion built
the station, and it has been operating for approximately six
months.
The Myersville citizens petition this court to vacate the
Commission’s order approving the project. They attack the
Commission’s decision on a number of fronts. They argue
that the Commission lacked substantial evidence to conclude
that there was a public need for the project Dominion
proposed. They assert that the Commission unlawfully
interfered with Maryland’s rights under the Clean Air Act.
They challenge the Commission’s environmental review of
the project, including its consideration of potential
alternatives. And they claim the Commission unlawfully
withheld hydraulic flow diagrams from them in violation of
their due process rights. Because we conclude that each of
3
Petitioners’ challenges lacks merit, we deny the petition for
review.
I.
Dominion runs underground natural gas storage and
transportation facilities in six northeastern and mid-Atlantic
states. Dominion operates over 947 billion cubic feet of
storage capacity and approximately 11,000 miles of natural
gas pipeline. Before it sought the Commission’s approval,
Dominion conducted an “open season” in which it offered
contracts for future supply of natural gas to potential
customers. It entered contracts with two municipal utilities
and a natural gas distribution company for firm transportation
and storage services.1 Dominion’s proposed project, called
the “Allegheny Storage Project,” called for new or expanded
natural gas facilities in Maryland, Ohio, West Virginia, and
Pennsylvania, thereby providing to Dominion’s customers an
additional 115,000 dekatherms per day of firm transportation,
7.5 billion cubic feet of storage capacity, and 125,000
dekatherms per day of storage withdrawal at an estimated cost
of over $112 million.2
The Project required the building of two compressor
stations—facilities along a pipeline that compress gas to move
it through the system at high speeds—and additional pipeline
to serve the compressors. One of those compressor stations is
1
“Firm” transportation service, as opposed to “interruptible”
service, means the delivery of natural gas is guaranteed regardless
of the proportion of the pipeline’s capacity that is in use. See
United Distrib. Cos. v. FERC, 88 F.3d 1105, 1123 n.10 (D.C. Cir.
1996).
2
A dekatherm is a unit of heat equal to one million British Thermal
Units, or over one billion joules.
4
located on a twenty-one-acre plot in the town of Myersville.
That compressor station is the subject of this appeal.
Congress enacted the Natural Gas Act, ch. 556, 52 Stat.
821 (1938) (codified as amended at 15 U.S.C. § 717 et seq.),
with the “principal purpose” of “encourag[ing] the orderly
development of plentiful supplies of . . . natural gas at
reasonable prices,” NAACP v. Fed. Power Comm’n, 425 U.S.
662, 669-70 (1976). “[S]ubsidiary” purposes include
respecting “conservation, environmental, and antitrust”
limitations. Id. at 670 & n.6. The Act vests the Commission
with authority to regulate the transportation and sale of
natural gas in interstate commerce, including authority to
issue certificates permitting the construction or extension of
natural gas transportation facilities, such as those Dominion
operates. 15 U.S.C. § 717f(c).
Before any applicant may construct or extend natural gas
transportation facilities, it must obtain a “certificate of public
convenience and necessity” from the Commission pursuant to
Section 7(c) of the Act. Id. § 717f(c)(1)(A). The
Commission may issue a certificate to “any qualified
applicant” if it finds that “the applicant is able and willing
properly to do the acts and to perform the service proposed
. . . and that the proposed service” and “construction . . . is or
will be required by the present or future public convenience
and necessity.” Id. § 717f(e). As part of its certificate
authority, the Commission has the “power to attach to the
issuance of the certificate and to the exercise of the rights
granted thereunder such reasonable terms and conditions as
the public convenience and necessity may require.” Id.
Petitioners in this case—Myersville Citizens for a Rural
Community, Inc. and citizens of Myersville Franz Gerner,
Ted Cady, and Tammy Mangan—protest the building of the
5
Myersville compressor station. During the public comment
process before the Commission, they raised objections,
several of which form the basis of the current petition.
After preparing an Environmental Assessment of the
Allegheny Storage Project, the Commission rejected the
objections made by Petitioners and others and granted
Dominion a conditional Section 7 certificate. Dominion
Transmission, Inc., 141 FERC ¶ 61,240 (Dec. 20, 2012)
(“Certificate Order”). The Commission conditioned the
certificate, in part, on Dominion’s ability to secure all
necessary federal authorizations, including Clean Air Act
permits. Certificate Order, App. B, Envtl. Condition 8. After
considering renewed objections, the Commission denied
rehearing. Dominion Transmission, Inc., 143 FERC ¶ 61,148(May 16, 2013) (“Rehearing Order”). The Myersville
compressor station was placed into service on November 1,
2014. FERC, Docket No. CP12-72, Supplemental
Information Filing Replacing Previous filed In Service
Notification Request of Dominion Transmission, Inc. under
CP12-72 (filed Nov. 10, 2014). Petitioners timely petitioned
for review of the Commission’s orders.
***
We have jurisdiction pursuant to 15 U.S.C. § 717r(b).
Our review of the Commission’s decision is limited to
determining whether the order was “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.”
5 U.S.C. § 706(2)(A); see Minisink Residents for Envtl. Pres.
& Safety v. FERC, 762 F.3d 97, 105-06 (D.C. Cir. 2014). “If
supported by substantial evidence, the Commission’s findings
of fact are conclusive.” B&J Oil & Gas v. FERC, 353 F.3d
71, 76 (D.C. Cir. 2004) (citing 15 U.S.C. § 717r(b)). We
must assure ourselves that the Commission’s “decisionmaking
6
is reasoned, principled, and based upon the record.” Am. Gas
Ass’n v. FERC, 593 F.3d 14, 19 (D.C. Cir. 2010) (internal
quotation marks omitted). In so doing, we consider “whether
the decision was based on a consideration of the relevant
factors and whether there has been a clear error of judgment.”
ExxonMobil Gas Mktg. Co. v. FERC, 297 F.3d 1071, 1083
(D.C. Cir. 2002). Because the grant or denial of a Section 7
certificate of public convenience and necessity is a matter
“peculiarly within the discretion of the Commission,” Okla.
Natural Gas Co. v. Fed. Power Comm’n, 257 F.2d 634, 639
(D.C. Cir. 1958), this court does not “substitute its judgment
for that of the Commission,” Nat’l Comm. for the New River
v. FERC, 373 F.3d 1323, 1327 (D.C. Cir. 2004). Moreover,
“[w]hen considering FERC’s evaluation of ‘scientific data
within its technical expertise,’ we afford FERC ‘an extreme
degree of deference.’” Washington Gas Light Co. v. FERC,
532 F.3d 928, 930 (D.C. Cir. 2008) (quoting Nat’l Comm. for
the New River, Inc., 373 F.3d at 1327).
II.
Petitioners challenge the Commission’s finding of public
need for the Project as unsupported by substantial evidence.
They fault the Commission for approving the Project without
requiring Dominion to submit its revised agreements with the
new natural gas customers that subscribed to the added
capacity. They contend that the absence of current gas
contracts in the record undermines the Commission’s finding
that there is a public need for the Project adequate to ensure
that pre-existing customers will not subsidize it. They also
claim that the Project will result in an expansion of natural
gas storage and transportation capacity beyond what
Dominion disclosed to the Commission.
7
The Commission has outlined in a policy statement the
criteria it considers in determining whether a proposed facility
will receive a certificate of public convenience and necessity.
Certification of New Interstate Natural Gas Pipeline
Facilities, 88 FERC ¶ 61,227 (Sept. 15, 1999), clarified, 90
FERC ¶ 61,128 (Feb. 9, 2000), further clarified, 92 FERC
¶ 61,094 (July 28, 2000). The “threshold” question the
Commission considers is “whether the project can proceed
without subsidies from [the applicant’s] existing customers.”
88 FERC at 61,745. To ensure that a project will not be
subsidized by existing customers, the applicant must show
that there is market need for the project. The project must
“stand on its own financially” through investment by the
applicant and support from new customers subscribed to the
expanded capacity through “preconstruction contracts.” Id. at
61,746; see also 90 FERC at 61,392.
Provided a project will not be subsidized by existing
customers, the Commission then balances the “public benefits
against the potential adverse consequences” of the proposal.
88 FERC at 61,745. If no adverse effects would stem from
the project, no balancing is required, and the Commission
proceeds to environmental review. Otherwise, the
Commission balances the adverse effects with the public
benefits of the project, as measured by an “economic test.”
Id. Adverse effects may include increased rates for pre-
existing customers, degradation in service, unfair competition,
or negative impact on the environment or landowners’
property. Id. at 61,747-48. Public benefits may include
“meeting unserved demand, eliminating bottlenecks, access to
new supplies, lower costs to consumers, providing new
interconnects that improve the interstate grid, providing
competitive alternatives, increasing electric reliability, or
advancing clean air objectives.” Id. at 61,748.
8
Applying those criteria, the Commission found that the
Project would not be subsidized by existing customers and
that the “minimal” adverse effects were outweighed by the
public benefits. Certificate Order ¶ 21. In finding a public
need for the project, the Commission found that “[a]ll of the
proposed capacity has been subscribed under long-term
contracts, demonstrating the existence of a market for the
project.” Id. The Commission concluded that the Project
would ensure “the ability of two local distribution companies
[Washington Gas Light Co. and Baltimore Gas & Electric] to
meet the needs of their overall 1.5 million customers during
periods of peak demand (i.e., the winter heating season),”
providing “sufficient justification to authorize the
construction and operation” of the Project. Id. ¶ 66.
We review the Commission’s factual findings to ensure
they are supported by “substantial evidence,” or “such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Colo. Interstate Gas Co.
v. FERC, 599 F.3d 698, 704 (D.C. Cir. 2010) (internal
quotation marks omitted); see also 15 U.S.C. § 717r(b). The
standard “‘requires more than a scintilla, but can be satisfied
by something less than a preponderance of the evidence.’”
Minisink, 762 F.3d at 108 (quoting FPL Energy Me. Hydro
LLC v. FERC, 287 F.3d 1151, 1160 (D.C. Cir. 2002)).
A.
We first address the Commission’s finding that the
Project was supported by market need.
Dominion secured precedent agreements with three
natural gas customers through the “open season” it conducted
in the summer of 2007 for what was then called the “Storage
Factory Project.” Certificate Order ¶ 10. A precedent
agreement is a long-term contract subscribing to expanded
9
natural gas capacity. See, e.g., Process Gas Consumers Grp.
v. FERC, 177 F.3d 995, 1000 (D.C. Cir. 1999). Technical
issues led Dominion to abandon the Storage Factory Project
in November 2008. Certificate Order ¶ 10 n.8. It revised and
renamed the project the Allegheny Storage Project. Id.Dominion stated in its application that its precedent
agreements were revised to reflect the changes, and that the
Allegheny Storage Project was designed “to meet the needs of
the prospective Storage Factory Project customers.” Id.Dominion did not submit those revised precedent agreements
to the Commission. Instead, it provided a summary of
relevant terms of the original agreements and the affidavit of
Dominion’s Director of Gas Business Development stating
that the Allegheny Storage Project customers had executed
“binding precedent agreements representing 100% market
commitment” for fifteen years for the expanded capacity.
J.A. 96-98.
Petitioners argue that the Commission’s finding of
market need was unsupported by substantial evidence because
Dominion did not submit the revised precedent agreements
themselves for the record. To the extent that Petitioners argue
the Commission is legally required to include in the record the
most current version of precedent agreements in order to find
that a project is supported by market need, that argument was
not preserved for appeal. See 15 U.S.C. § 717r(b) (“No
objection to the order of the Commission shall be considered
by the court 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.”). Petitioners
did not argue before the Commission that it lacks the
authority to find public need unless the most current
precedent agreements, as distinct from other evidence of
demand, are in the administrative record. The closest they
came was in a request for rehearing, where, in a footnote, they
10
stated: “It should be noted that there do[ ] not appear to be
even sample or generic precedent agreements available in the
public record.” J.A. 467 n.20. That did not adequately raise
the issue, and, in any case, we need not consider arguments
“tucked away in a footnote” in a request for rehearing. North
Carolina v. FERC, 112 F.3d 1175, 1192 (D.C. Cir. 1997); see
also Washington Legal Clinic for the Homeless v. Barry, 107
F.3d 32, 39 (D.C. Cir. 1997).
Petitioners nonetheless preserved the more case-specific
version of the argument: that the absence of the updated
precedent agreements from this particular administrative
record rendered the Commission’s factual finding that the
Project was fully subscribed unsupported by substantial
evidence. Petitioners argued on rehearing that the agreements
were “out of date” and that they “relate to a completely
different project so at best, they demonstrate only a need for
the Storage Factory Project, not for the [Allegheny Storage
Project].” J.A. 467. In denying rehearing, the Commission
addressed and rejected that argument. See Rehearing Order
¶ 30 n.29. It was therefore preserved for review.
Petitioners’ challenge to the Commission’s finding of
market need fails on the record even in the absence of the
updated precedent agreements. In addition to the sworn
affidavit stating that the Project was fully subscribed, the
Commission had before it motions to intervene filed by the
two customers subscribed to the new natural gas
transportation service and the bulk of the storage service. J.A.
123, 571. Both customers restated the amount of added
capacity expected from the Project and identified themselves
as the customers of that added capacity. While they did not
identify how it would be allocated between them, Dominion’s
customers nevertheless made clear under oath that they had
subscribed to the capacity Dominion proposed to add to its
11
natural gas infrastructure. Consistent with its Certificate
Policy Statement, and based on the evidence before it, the
Commission concluded that Dominion had adequately
demonstrated market need. Applying our standard of review,
in light of the facts taken together, we conclude that the
Commission’s finding was supported by substantial evidence,
despite the absence of more specifics on the revised precedent
agreements.
Contrary to Petitioners’ assertion, this case therefore does
not resemble Bangor Hydro-Electric Co. v. FERC, 78 F.3d
659, 664 (D.C. Cir. 1996), where we held that the agency
could not rely on a report outside the record in defending its
factual findings, nor does it present a lack of evidence or
reasoned findings such as was at issue in Atlantic Refining
Co. v. Public Service Commission, 360 U.S. 378 (1959). The
Commission here does not attempt to rely on non-record
evidence, nor did it lack sufficient evidence; instead, it argues
that the affidavit and motions to intervene constituted
substantial evidence to conclude that the Project was fully
subscribed pursuant to precedent agreements. We agree.
Even assuming the precedent agreements were executed
and the Project is fully subscribed, Petitioners urge us to
consider a market study showing declining demand for natural
gas as evidence of insufficient market demand. The
Commission considered that same study, but found that it did
not warrant a finding of lack of public need for two reasons.
First, for a variety of reasons related to the nature of the
market, “it is Commission policy to not look behind precedent
or service agreements to make judgments about the needs of
individual shippers.” Certificate Order ¶ 66. In keeping with
its policy, the Commission concluded that the evidence that
the Project was fully subscribed was adequate to support the
finding of market need. Rehearing Order ¶ 30. It is the case
12
here, as it was in Minisink, that “Petitioners identify nothing
in the policy statement or in any precedent construing it to
suggest that it requires, rather than permits, the Commission
to assess a project’s benefits by looking beyond the market
need reflected by the applicant’s existing contracts with
shippers.” 762 F.3d at 111 n.10.
Second, even if the market study were relevant, the
Commission found it unpersuasive because the study
“provide[s] general overviews of demand by sector (that is,
residential vs. industrial consumption), as well as general
overviews of domestic inventories which are tied to weather
extremes. The studies do not demonstrate that there is a
decline in demand for natural gas in the markets which the
Allegheny Storage Project is intended to serve.” Rehearing
Order ¶ 31. The petition does not respond to the
Commission’s analysis. We therefore see no reason to disturb
the Commission’s well reasoned finding.
B.
Petitioners also attack the Project as unsupported by
market need because, in their view, there is evidence that
Dominion designed the Project to add capacity to its natural
gas infrastructure beyond the amount disclosed in its
application—that is, that the Project would be “overbuilt.”
Even assuming that the precedent agreements were executed
by Dominion’s customers, Petitioners argue, the Project as
proposed would produce excess capacity.
To “[o]verbuild” an energy project means to “build
capacity for which there is not a demonstrated market need.”
90 FERC at 61,391. Petitioners have no clear evidence that
the Project is overbuilt, but they believe there are grounds to
infer that Dominion’s Myersville compressor station is larger
and more powerful than it needs to be. In particular, they
13
argue that the 16,000 horsepower Myersville compressor
station is more powerful than the 14,000 horsepower
Middletown station originally proposed in connection with
the Storage Factory Project—Dominion’s predecessor to the
Allegheny Storage Project—and therefore is meant to provide
more service than originally proposed. Petitioners provide no
evidence beyond the difference in horsepower to substantiate
that claim, and they do not explain how the size and power of
a compressor station relates to the total capacity added to the
natural gas network.
As is evident from the structure of the natural gas system
and the purpose of a compressor, a difference in horsepower
does not necessarily mean a difference in storage and
transportation capacity. A compressor station “‘boost[s] the
system pressure’ along pipelines in order to ‘maintain
required flow rates.’” Dominion Transmission, Inc. v.
Summers, 723 F.3d 238, 241 (D.C. Cir. 2013) (alterations in
original) (citing FERC, An Interstate Natural Gas Facility On
My Land? What Do I Need To Know? 22 (2010)). Simply
put, gas in a pipeline requires compression, or pressure, to
keep it moving at desired rates. Given the capacity added by
the Allegheny Storage Project to its pipeline network,
Dominion identified a twelve-mile corridor between a
compressor station in Chambersburg, Pennsylvania and
another in Leesburg, Virginia where a new compressor station
would have to be sited in order to maintain adequate natural
gas pressure. J.A. 236. The Commission “independently
analyzed the hydraulic corridor and [Dominion’s] associated
assumptions and determined that they were accurate for the
12-mile range.” Id.Myersville falls along that twelve-mile corridor, as did
several possible alternative sites the Commission considered
in its Environmental Assessment, including some other sites
14
in Myersville. One of the alternatives was the site proposed
in the Storage Factory Project for a compressor station in
nearby Middletown, Maryland. The Commission’s
Environmental Assessment demonstrates the many
differences between the two proposed sites, including that the
Middletown station would need a 14,000 horsepower
compressor to maintain adequate pressure, whereas the
Myersville station would need a 16,000 horsepower
compressor due to its different placement. J.A. 237.
Petitioners seek to compare the two compressors in a
vacuum, without regard to their different geographic
placements and other changes necessitated by Dominion’s
overall shift from the original Storage Factory Project. The
Myersville station is one of several interconnected facilities in
a larger network, as was the proposed Middletown station.
Petitioners have only pointed to the horsepower difference
without explanation. The change in horsepower does not,
however, provide a basis for this court to conclude that the
Commission’s finding that the station is not overbuilt was
unsupported by substantial evidence. A change in one aspect
of one facility as a result of the revision of the Project says
nothing about the overall storage and transportation capacity
the Project will add to Dominion’s pipeline network. We see
no basis upon which to overturn the Commission’s finding.
Similarly, Petitioners’ claim that “Dominion intends to
use the facility for a purpose other than that stated in its
application,” i.e. “to export gas through Dominion’s Cove
Point liquefied natural gas (LNG) export facility in Calvert
County, Maryland. Pet’rs’ Br. 29-30. Petitioners’ argument
stems from their review of hydraulic flow diagrams filed
confidentially with the Commission (and not in the record on
appeal). They believe the flow diagrams demonstrate that
natural gas that passes through Myersville will ultimately
15
make it to the Cove Point LNG Terminal. If that is the case,
they claim, it undermines Dominion’s application for a
Section 7 certificate, which sought to expand domestic natural
gas capacity, not add to Dominion’s export capacity.
The Commission has repeatedly rejected Petitioners’
argument that the Project was built, at least in part, to export
natural gas through Cove Point, concluding that the
Allegheny Storage Project “is not associated in any way with
the Cove Point LNG Terminal or potential export authority at
the terminal.” Rehearing Order ¶ 33. First, in its Certificate
Order, the Commission concluded that Petitioners’ reading of
the flow diagrams “overlooks the fact that Washington Gas
[one of the customers of the Allegheny Storage Project] has
numerous delivery points off the Dominion Cove Point
Pipeline,” which explains why the Cove Point Pipeline is
associated with the Allegheny Storage Project. Certificate
Order ¶ 161 n.109. It also noted that Petitioners’ reading was
inaccurate because it sought to “compare design day
(contractual obligation) flow with non-coincidental peak
deliveries; such comparisons are not valid.” Id. In denying
rehearing, the Commission further explained that
[a]lthough a pipeline is constructed to meet contracted
peak demands during periods of 100 percent load
conditions, customers are not required to, and rarely
do, use 100 percent of their contracted capacity every
day of the year. This means that on any given day
there may well be unutilized capacity in a pipeline.
However, such capacity can be used to satisfy
additional demand on an interruptible and short term
firm basis.
Rehearing Order ¶ 32. Acknowledging that Dominion had
recently filed an application to, “among other things,
16
construct, modify, own and operate certain facilities to enable
the liquefaction of natural gas for export at its existing Cove
Point LNG terminal,” the Commission added that “Dominion
Cove Point LNG’s application does not indicate that the
Myersville Compressor Station is needed to support the
export of the liquefied natural gas.” Id. ¶ 33 n.31.
The Commission’s analysis is thorough and persuasive.
In order to ensure adequate pressure during periods when all
of the capacity required by the precedent agreements is being
used, i.e., during periods of peak demand, a compressor
station somewhere along the twelve-mile corridor that
includes Myersville must be built. But, as Dominion
explained at oral argument, natural gas molecules are not
stamped with a destination when they enter an interstate
pipeline. Oral Arg. Tr. 33. Nor can each molecule be traced
from entry to exit. When the precedent agreement customers
are not using their full capacity, and the compressor station is
not working at full power, “there may well be unutilized
capacity in a pipeline,” which could “satisfy additional
demand on an interruptible and short term firm basis.”
Rehearing Order ¶ 32. And because one of those customers,
Washington Gas Light, has delivery points along a pipeline
that ends at the Cove Point LNG terminal, when Washington
Gas is not using full capacity, some gas that passes through
Myersville may reach the Cove Point LNG Terminal. That
does not imply that the compressor station is too large,
because it says nothing about the horsepower needed to keep
the system functioning when Dominion’s customers use all of
their contractually guaranteed capacity. Those realities
associated with fluctuating customer demand and the pooled
character of gas within the pipeline system do not vitiate the
public need for the Project. Petitioners provide no response to
the Commission’s explanation of the flow diagrams, instead
reiterating that the Commission has misread them.
17
Petitioners also point to what they perceive to be new
evidence in support of their contention that the Project’s
capacity exceeds market need. After briefing in this case was
completed, the Commission issued an order granting
Dominion’s separate Cove Point application. Dominion Cove
Point LNG, LP, 148 FERC ¶ 61,244, 2014 WL 4854467(Sept. 29, 2014). Petitioners submitted the Cove Point
certificate order as supplemental authority for their argument
that the Myersville compressor station is designed to help
provide excess capacity to Cove Point for export, and hence,
overbuilt. We disagree with Petitioners’ inference from the
Cove Point order because that order is entirely consistent with
the two orders we review in this case.
After completion of the Cove Point LNG export project,
the expansion or modification of existing compressor stations
in Virginia, “together with the use of capacity from a
terminated contract,” will enable Dominion to transport up to
860,000 dekatherms per day of natural gas on a firm basis to
the Cove Point terminal for export to customers it has already
secured. Id. at *3. Commenters in that proceeding raised the
question whether the Allegheny Storage Project will result in
added capacity exported through Cove Point. The
Commission reiterated the position it took in this case: The
Allegheny Storage Project “significantly predated the Cove
Point Liquefaction Project and is not in any way connected
with it.” Id. at *56. It repeated that Washington Gas has
delivery points located on the Cove Point Pipeline, that the
Myersville compressor station is required for periods of peak
demand, and that the Commission’s independent hydraulic
analysis demonstrates that the two projects are separate and
unrelated. Id. at *56-60. The Commission also
acknowledged, as it did in this case, that during non-peak
times, depending on a number of factors, Dominion “may be
able to provide additional gas supplies, if nominated, to the
18
Dominion Cove Point Pipeline for liquefaction. This situation
is no different than operating conditions on other Commission
regulated pipeline facilities.” Id. at *58.
In sum, Petitioners have not shown that the Commission
was required to disapprove the Myersville compressor station
on the ground that it would be overbuilt. Faced with
Petitioners’ challenge, we need only assure ourselves that the
Commission’s decision making is “reasoned, principled, and
based upon the record.” Am. Gas Ass’n, 593 F.3d at 19(internal quotation marks omitted). We review the
Commission’s decision in light of its broad discretion in
determining whether a particular project is supported by
public convenience and necessity, see Okla. Natural Gas Co.,
257 F.2d at 639, and we must afford an “extreme degree of
deference” to the Commission’s scientific analysis,
Washington Gas Light, 532 F.3d at 930 (internal quotation
marks omitted). In light of the Commission’s well supported
and thoroughly reasoned finding that the Myersville
compressor station appropriately responds to market need and
is not overbuilt, and Petitioners’ failure to adduce evidence
convincingly contradicting that finding, we hold that the
Commission’s decision to issue a Section 7 certificate of
public convenience and necessity was supported by
substantial evidence.
III.
The Natural Gas Act occupies the field of interstate
natural gas transportation and sale, largely to the exclusion of
state law. The Act confers on the Commission “exclusive
jurisdiction” over transportation and sale, as well as over the
rates and facilities of natural gas companies engaged in
transportation and sale. See, e.g., Schneidewind v. ANR
Pipeline Co., 485 U.S. 293, 306-08 (1988); N. Natural Gas
19
Co. v. Iowa Utils. Bd., 377 F.3d 817, 821 (8th Cir. 2004);
Nat’l Fuel Gas Supply Corp. v. Pub. Serv. Comm’n, 894 F.2d
571, 576 (2d Cir. 1990). However, the Commission’s power
to preempt state and local law is circumscribed by the Natural
Gas Act’s savings clause, which saves from preemption the
“rights of States” under the Clean Air Act and two other
statutes.3 15 U.S.C. § 717b(d); see also 42 U.S.C. § 7401 et
seq. (Clean Air Act). Petitioners argue that the Commission’s
issuance of a Section 7 certificate to Dominion conditioned on
its subsequent receipt of an air quality permit under the Clean
Air Act violated either provisions of the Natural Gas Act itself
or provisions of the Clean Air Act that the Natural Gas Act’s
savings clause preserved.
The parties do not address the standard of review we
should apply in evaluating the Commission’s authority to
issue the challenged certificate of public convenience and
necessity. We have previously reviewed the Commission’s
interpretation of its authority to issue such a certificate by
applying the two-step analytical framework of Chevron
U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984). See Okla. Natural
Gas Co. v. FERC, 28 F.3d 1281, 1283-84 (D.C. Cir. 1994); N.
Natural Gas Co. v. FERC, 827 F.2d 779, 784 (D.C. Cir.
1987). We find the Commission’s interpretation not only
reasonable but persuasive and hold that its certificate order
did not violate the savings clause or any of the other statutory
provisions Petitioners identified.
3
The other two statutes are the Coastal Zone Management Act of
1972, 16 U.S.C. § 1451 et seq., and the Clean Water Act, 33 U.S.C.
§ 1251 et seq.
20
A.
Dominion, as an intervenor in this proceeding, asserts
that Petitioners lack “prudential standing” to argue that the
Commission violated the Natural Gas Act’s savings clause.
Petitioners live in Myersville near the compressor station and
claim they are affected by its construction and operation
because of the effect it will have on their property values, its
impact on the environment, the safety hazards they believe the
facility poses, the noise it produces, and the aesthetic
“eyesore” it presents. See Pet’rs’ Br. 21-22 & add. 47-54.
Dominion argues that Petitioners cannot complain about the
Commission’s encroachment on Maryland’s Clean Air Act
rights because they are not within the “zone of interests” of
the savings clause they seek to enforce. We disagree.
The Supreme Court’s recent decision in Lexmark Int’l,
Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1387
(2014), clarifies that “‘prudential standing is a misnomer’ as
applied to the zone-of-interests analysis.” Id. (quoting Ass’n
of Battery Recyclers, Inc. v. EPA, 716 F.3d 667, 675-76 (D.C.
Cir. 2013) (Silberman, J. concurring)). The zone of interests
test simply “requires us to determine, using traditional tools of
statutory interpretation, whether a legislatively conferred
cause of action encompasses a particular plaintiff’s claim.”
Id. “[W]e presume that a statutory cause of action extends
only to plaintiffs whose interests fall within the zone of
interests protected by the law invoked.” Id. at 1388 (internal
quotation marks omitted). The test is “lenient” and “not
especially demanding.” Id. at 1389 (internal quotation marks
omitted). In addition, “we generally presume that a statutory
cause of action is limited to plaintiffs whose injuries are
proximately caused by violations of the statute.” Id. at 1390.
The petition before us easily fits within both of the
presumptions Lexmark identifies, and, indeed, Dominion does
21
not dispute that Petitioners’ claimed injuries are proximately
caused by the Commission’s approval of the Project.
Relying on our statement in Grand Council of Crees v.
FERC, 198 F.3d 950, 956 (D.C. Cir. 2000), that the zone of
interests is to be determined “‘by reference to the particular
provision of law upon which the plaintiff relies,’” id. (quoting
Bennett v. Spear, 520 U.S. 154, 175-76 (1997)), Dominion
argues that Petitioners “rely” on the Natural Gas Act’s
savings clause in arguing that the Commission acted
unlawfully. Because Petitioners’ interests fall outside the
“rights of States” protected by the savings clause, asserts
Dominion, they fail the zone of interests test.
Dominion, however, understates the interests “arguably
within the zone of interests to be protected or regulated” by
the relevant provisions of the Natural Gas Act and the Clean
Air Act. Id. at 954 (internal quotation marks omitted). The
zone of interests test is not demanding. See id. at 955. A
would-be plaintiff is outside the statute’s “zone of interests”
only if “the plaintiff’s ‘interests are so marginally related to or
inconsistent with the purposes implicit in the statute that it
cannot reasonably be assumed that Congress intended to
permit the suit.’” Match-E-Be-Nash-She-Wish Band of
Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2210 (2012)
(quoting Clarke v. Securities Indus. Ass’n, 479 U.S. 388, 399
(1987)). Petitioners here rely on provisions focused primarily
on the preservation of state and local authority in the fields of
environmental and land use regulation, and it is precisely
injuries in those domains that Petitioners assert. The statutory
provision at issue, moreover, need not be intended to benefit
Petitioners; it is sufficient that the interest asserted arguably
falls within the provision’s scope. Id. at 2210 & n.7. The
environmental injuries asserted by Petitioners suffice to bring
a claim under the provisions of the Natural Gas Act and the
22
Clean Air Act they cite. We are not empowered to decline for
prudential reasons to hear their claim.
Finally, we reject Dominion’s reliance on Delaware
Department of Natural Resources & Environmental Control
v. FERC, 558 F.3d 575 (D.C. Cir. 2009), for the proposition
that Plaintiffs lack Article III standing. There, we held that
Delaware lacked Article III standing because it asserted only
a “procedural injury” that was not accompanied by a
“concrete substantive interest.” Id. at 578-79. Importantly,
Delaware identified no prejudice from the Commission’s
having approved a project before Delaware had completed its
regulatory process under the Coastal Zone Management Act
and the Clean Air Act, other than the potential for “intense
political pressure to acquiesce in the Commission’s
conditional approval,” which we held was not a cognizable
injury. Id. at 578. In contrast to Delaware, Petitioners in this
case have alleged various concrete injuries that they contend
flow from the siting of the compressor station, including
depressed property values, increased noise and air pollution,
visual blight, and heightened safety risks. Their claims are
not merely political or procedural. Petitioners have asserted a
cognizable injury in fact stemming from the allegedly
unlawful approval of the Project that is redressable through
judicial review of the Commission’s order.
B.
Turning to the merits, we begin by reviewing the
regulatory background and Dominion Transmission, Inc. v.
Summers, our earlier decision relating to the project at issue
here. See 723 F.3d at 238.
The Clean Air Act “is an exercise in cooperative
federalism.” Id. at 240. The Environmental Protection
Agency promulgates air quality standards, and the states, if
23
they wish, adopt state implementation plans (SIPs)
“‘providing for the implementation, maintenance, and
enforcement of’” those air quality standards; “‘such plans are
then submitted to EPA for approval.’” Id. (quoting Michigan
v. EPA, 213 F.3d 663, 669 (D.C. Cir. 2000)); see also 42
U.S.C. § 7410(a). Maryland’s SIP, incorporated by reference
in the Code of Federal Regulations, 40 C.F.R. § 52.1070,
includes Maryland Code Section 2-404, a provision of the
state’s environmental law that governs permits to construct
emissions sources such as the Myersville compressor station.
Section 2-404(b)(1) prohibits the Maryland Department of the
Environment (MDE) from accepting an application for an air
quality permit unless the applicant submits documentation:
(i) That demonstrates that the proposal has been
approved by the local jurisdiction for all zoning and
land use requirements; or
(ii) That the source meets all applicable zoning and
land use requirements.
In the summer of 2012, pursuant to Section 2-404(b)(1),
the MDE refused to process Dominion’s permit application
because the compressor station had not “been approved by the
local jurisdiction for all zoning and land use requirements”
nor, in its view, had Dominion shown that the station “meets
all applicable zoning and land use requirements.” Summers,
723 F.3d at 241. Shortly thereafter, Myersville denied zoning
approval for the proposed Myersville compressor station. Id.
at 241-42. The Commission then issued its certificate order
conditionally approving the Project. Id. at 242. “[W]ith
FERC’s certificate in hand, Dominion applied to the [MDE]
once again for an air quality permit. Its cover letter stated it
now satisfied § 2-404(b)(1) because all local zoning and land
use requirements had been preempted by FERC’s certificate
24
and were therefore not ‘applicable.’” Id. The MDE again
refused to process the application. Id.
Dominion then petitioned this Court to review
Maryland’s refusal to issue an air quality permit for a facility
conditionally approved by the Commission. In Summers, we
agreed with Maryland that Section 2-404(b)(1) formed a part
of Maryland’s SIP. Id. Consequently, by virtue of the
Natural Gas Act’s savings clause, we held that the
Commission’s certificate order approving the Allegheny
Storage Project did not preempt Section 2-404(b)(1), and that
the MDE was entitled to enforce it. Id. at 243-44.
We also held, however, that the MDE failed to enforce
Section 2-404(b)(1) according to its terms. The MDE argued
that it could refuse to process Dominion’s permit application
until Myersville granted the compressor station zoning
approval. Id. at 244. We disagreed because the Natural Gas
Act requires a state agency “to issue, condition, or deny”
permits that federal law requires for subject facilities, and not
merely to refuse to act on a permit application. 15 U.S.C.
§ 717r(d)(2). MDE contended that Dominion had not
satisfied Maryland’s SIP because it had not shown that it had
met all applicable zoning and land use requirements by
merely submitting its own letter claiming compliance; a letter
from the local authorities, it claimed, was necessary.
Summers, 723 F.3d at 244. We held, however, that “the plain
meaning of § 2-404(b) . . . expressly permits the applicant to
avoid involvement by the local zoning authority altogether,”
so requiring their written statement was contrary to law. Id. at
244-45. We reasoned that the use of the phrase “meets all
applicable zoning and land use requirements,” as an
alternative to the subsection specifically referencing local
approval, admitted the possibility that some such
requirements might be satisfied other than by obtaining
25
affirmative approval from the local authorities. Id. at 245.
Dominion’s documentation might, for example, show that it
had in fact met all the local requirements. We also considered
the possibility that Section 2-404(b)(1)(ii) might, despite the
savings clause preserving the “rights of States” under the
Clean Air Act, be designed to invite some amount of
preemption of those rights by the Natural Gas Act, rendering
any preempted rights no longer “applicable.” It thus struck us
as at least plausible that, as a matter of Maryland law,
Dominion might, without local approval in hand, “meet” all
or some of whatever local requirements were “applicable.”
Id. We held that the MDE could not refuse to process an
application without first evaluating which local laws were
“applicable,” and which were not. Id.
Importantly, however, we declined to determine in the
first instance the scope of any preemption that may have been
effected by the Commission’s certificate order. In its order,
the Commission had done the same thing, choosing to defer to
Maryland to determine whether the Commission’s order had
any effect on the applicability of Myersville’s local zoning
laws. See Certificate Order ¶ 71. We thus remanded to the
MDE to “either identify one or more ‘applicable’ (that is, not
preempted) zoning or land use requirements with which
Dominion has not demonstrated compliance, or . . . process
Dominion’s application for an air quality permit.” Summers,
723 F.3d at 245.
On remand, the MDE concluded that the “only
Myersville zoning or land use regulation that is applicable,
i.e., not preempted by the Natural Gas Act, is a requirement
for submission of a construction site plan to the Town.”
Resp. to Comments for the Dominion Transmission, Inc.
Natural Gas Compressor Station, Md. Dept. Env. Docket No.
20-13, Permit Nos. 021-0707-5-0460 & -0461, at 3-4 (Jan. 16,
26
2014), available at http://www.mde.state.md.us/programs
/Permits/AirManagementPermits/Documents/DTIResponseto
Comments%20(1).pdf. Because Dominion had complied with
the site plan requirement, the MDE processed Dominion’s air
quality permit application; the MDE then approved the
application and issued an air quality permit on June 10, 2014.4
Dominion Rule 28(j) Letter, Ex. A (filed June 24, 2014).
4
The issuance of the air quality permit, after briefing in this case,
rendered moot two arguments Petitioners made based on the Clean
Air Act. First, they argued that the Commission could not approve
a facility before an air quality permit issued because, if the state
were to deny the requisite permit, the facility “may never be built.”
Pet’rs’ Br. 32. Second, they argued that the Commission could not
measure the compressor station’s potential to emit based on a 6000
hour-per-year limitation that had not been incorporated into an
enforceable air quality permit. Pet’rs’ Br. 36. The air quality
permit that the MDE has now issued for the construction of the
Myersville compressor station incorporated that 6000 hour-per-year
limitation. Both of those arguments are now moot. See, e.g.,
Schering Corp. v. Shalala, 995 F.2d 1103, 1105 (D.C. Cir. 1993)
(citing Los Angeles Cnty. v. Davis, 440 U.S. 625, 631 (1979)). To
the extent that Petitioners challenge the Commission’s assessment
of the compressor station’s air quality impact more generally, the
Commission’s Environmental Assessment reflects that the
Commission reviewed modeling performed by Dominion and
agreed that, for a range of pollutants, the Myersville compressor
station would not have a significant air quality impact or would
otherwise be below the National Ambient Air Quality Standards.
See Certificate Order ¶ 111, J.A. 206-07. Other than the now moot
objection to the 6000 hours-per-year cap, Petitioners do not
meaningfully challenge that analysis.
27
C.
Petitioners point to two statutory bases for their challenge
to the Commission’s ability to issue a Section 7 certificate
conditioned on an applicant’s subsequent receipt of the
requisite air quality permit. Neither supports their argument.
First, they note that, to issue a certificate of public
convenience and necessity, the Commission must conclude
that the applicant is “able and willing properly to do the acts
and to perform the service proposed and to conform to the
provisions of this chapter and the requirements, rules, and
regulations of the Commission thereunder.” 15 U.S.C.
§ 717f(e). That provision requires nothing more than a
finding that the applicant is “able and willing” to comply with
the Natural Gas Act and the “requirements, rules, and
regulations” promulgated thereunder. Petitioners have not
identified any requirement under the Natural Gas Act that
Dominion could not satisfy. As for the Clean Air Act permit
specifically, it is clear that Dominion was “able and willing”
to do so; indeed, it did.
Second, Petitioners claim that the Commission’s
certificate “undermines the Clean Air Act as well,” because
the Clean Air Act “expressly preserves local authority.”
Pet’rs’ Br. 34. But the provision on which they rely, 42
U.S.C. § 7431, states only that “[n]othing in [the Clean Air
Act] constitutes an infringement on the existing authority of
counties and cities to plan or control land use.” It does not
purport to constrain the Commission beyond the constraints
already provided by the Natural Gas Act and the Clean Air
Act.5
5
An arguably relevant provision of the Clean Air Act, cited only by
the Commission, is 42 U.S.C. § 7506(c)(1), which provides that
28
The lack of those claimed legal prohibitions against the
Commission issuing a conditional certificate does not resolve
what effect, if any, that certificate might have on Maryland’s
decision whether and on what terms to issue an air quality
permit. The Commission’s power to preempt state and local
regulation by approving the construction of natural gas
facilities is limited by the Natural Gas Act’s savings clause,
which provides that the Natural Gas Act’s terms must not be
construed to “affect[] the rights of States” under the Clean Air
Act. 15 U.S.C. § 717b(d)(2). Invoking our decision in
Summers, Petitioners assert that the Commission affected
Maryland’s Clean Air Act rights because its certificate order
preempted then-“applicable” zoning and land use
requirements, removing them as obstacles to Dominion’s air
quality permit. Had the Commission’s conditional certificate
not issued unless and until Maryland granted the requisite
Clean Air Act permit, Petitioners argue, Dominion could not
have secured the permit. In thus “affect[ing] the rights of”
Maryland under the Clean Air Act, contend Petitioners, the
Commission violated the savings clause.
“[n]o department, agency, or instrumentality of the Federal
Government shall engage in, support in any way or provide
financial assistance for, license or permit, or approve, any activity
which does not conform to an implementation plan after it has been
approved or promulgated under section 7410 of this title.” It
appears the Commission decided that it was not required to perform
a § 7506 general conformity determination. J.A. 211-12.
Petitioners have not challenged that decision, so we decline to
address it and express no opinion on whether § 7506 affects the
Commission’s authority to issue Section 7 certificates conditioned
on the receipt of air quality permits. See 40 C.F.R. §§ 93.153(applicability of conformity determination requirement), 93.158
(criteria for determining conformity).
29
We conclude that the effect Petitioners complain of is
illusory, premised on a misunderstanding of our Summers
decision, the statutory scheme, and the operation of
preemption in this case. While Petitioners claim that the
Commission’s Section 7 certificate had the effect of
unlawfully influencing the MDE’s consideration of
Dominion’s application for an air quality permit, their
objections largely boil down to a challenge to the MDE’s
decision regarding the preemptive interaction between the
certificate and the relevant provisions of Maryland law, not to
the Commission’s freestanding authority to issue a
conditional certificate. The propriety of the MDE’s decision,
however, is not properly before this court.
Maryland’s rights under the Clean Air Act are those that
it can exercise under its SIP.6 Cf. AES Sparrows Point LNG,
LLC v. Smith, 527 F.3d 120, 126 (4th Cir. 2008) (holding
“rights of States” under Coastal Zone Management Act are
those rights that states can “exercise” under their Coastal
Management Plans, analogues to Clean Air Act SIPs). While
the Commission’s certificate order set forth the preemption
standard as the Commission understands it, the Commission
did not purport to preempt any local law, nor any portion of
Maryland’s SIP. Indeed, it did not even identify whether any
conflict with state or local law existed, as it explicitly
declined to interpret “local, state and federal laws that are
outside of the Commission’s jurisdiction.” Certificate Order
¶ 71 (“[T]he Maryland state and local agencies retain full
authority to grant or deny air quality permits; if the State of
6
To the extent Petitioners’ claim rests on an assumption that the
“rights of States” under the Clean Air Act extend beyond their
power to enforce the provisions of their SIPs, no party has briefed
the argument, and we decline to address it. See Ark Las Vegas Rest.
Corp. v. NLRB, 334 F.3d 99, 108 n.4 (D.C. Cir. 2003).
30
Maryland rejects [Dominion’s] air quality permit application,
or refuses to process it, then it is up to [Dominion] to
determine how it wishes to proceed.”). In addition, the
Commission conditioned the certificate on Dominion’s ability
to secure all necessary federal authorizations, including the
requisite federal Clean Air Act air quality permit obtainable
from the MDE. Certificate Order, App. B, Env’l Condition 8.
We, too, declined in Summers to determine the scope of
any preemption that might have been effectuated by the
Commission’s certificate order. We recognized that Section
2-404(b)(1) is part of Maryland’s SIP, and therefore saved
from preemption. We also decided, however, that the MDE
was “better situated” to interpret the SIP and determine in the
first instance the scope of the Natural Gas Act’s preemptive
footprint and the extent to which local land use and zoning
law is incorporated into Maryland’s SIP, and thereby shielded
from preemption by the Natural Gas Act’s savings clause.
723 F.3d at 245.
In Summers, Dominion argued that Section 2-
404(b)(1)(ii) does not incorporate any local land use laws in a
way that would save them from preemption by the
Commission. Rather, Dominion argued, the provision refers
only to “applicable” laws because it anticipates the possibility
that some laws will not be “applicable” by virtue of
preemption. Petitioners read the word “applicable” as it
appears in Section 2-404(b)(1)(ii) more broadly. Under
Petitioners’ view, Maryland’s SIP incorporates Maryland’s
zoning and land use requirements wholesale, saving them
from preemption by the Commission. Advancing that view,
Petitioners are participating in a challenge in Maryland state
court to the MDE’s decision to process Dominion’s air quality
permit application. See Oral Arg. Tr. 18.
31
We decline here, as we did in Summers, to address which
interpretation of Section 2-404(b)(1)(ii) is correct, because it
makes no difference in this case. The Commission’s
certificate order has no bearing on what is and is not included
in Maryland’s SIP, and therefore has no bearing on what are
or are not Maryland’s “rights” saved by the Natural Gas Act’s
clause preserving the “rights of States” under the Clean Air
Act. The Commission did not “force[] MDE to accept an air
quality permit application which would have otherwise been
deemed deficient.” Pet’rs’ Br. 34. Nor did we.
Regardless of how the scope of Section 2-404(b)(1) is
accurately described, the Commission did not act unlawfully
in granting a conditional certificate order. Correctly
understood, Petitioners’ complaint appears to be not with the
certificate order as such, but with the MDE’s interpretation of
its SIP in the wake of Summers and the certificate order. If
Petitioners are right that the SIP’s reference to Section 2-
404(b)(1)(ii) saves Myersville’s zoning and land use laws
from preemption, it was the MDE, not the Commission, that
erred by treating the Commission’s certificate order as
preempting more than, by hypothesis, it lawfully could.
Conversely, if the MDE correctly concluded that the SIP does
not, under the circumstances here, require compliance with
Myersville’s zoning laws, then, by the same token, the
Commission did not exceed its statutory authority. In any
event, the certificate order did not affect Maryland’s Clean
Air Act rights. Under either interpretation, the certificate
order has only whatever preemptive force it can lawfully
exert, and no more. It did not purport to contravene the
Natural Gas Act’s savings clause. Nor did it purport to
compel the MDE’s interpretation of Maryland’s SIP.
The precise scope of Maryland’s SIP and the preemptive
effect of the Commission’s order is not before us. Petitioners
32
may continue to challenge the MDE’s conclusion on that
score in the appropriate forum. We are called on to decide
only whether it was lawful for the Commission to approve the
Allegheny Storage Project subject to its compliance with
Maryland’s Clean Air Act permitting process. Because no
provision of the Natural Gas Act or the Clean Air Act
identified by Petitioners barred the Commission from issuing
a conditional Section 7 certificate under these circumstances,
and the preemptive effect of that decision in light of the
interaction of the two Acts and Maryland’s SIP is not properly
before us, we hold that Petitioners’ challenges must be
rejected.
IV.
Petitioners claim error in the Commission’s performance
of its obligations under the National Environmental Policy
Act of 1969 (NEPA), 83 Stat. 852 (codified as amended at 42
U.S.C. § 4321 et seq.), which requires federal agencies to
“consider fully the environmental effects of their proposed
actions.” Theodore Roosevelt Conservation P’ship v. Salazar,
661 F.3d 66, 68 (D.C. Cir. 2011) (internal quotation marks
omitted). Any proposed “major Federal action[] significantly
affecting the quality of the human environment” triggers in an
agency the obligation to prepare an Environmental Impact
Statement (EIS) discussing in detail the environmental impact
of the proposed action, alternatives to the action, and other
considerations. 42 U.S.C. § 4332(C). An agency may
preliminarily prepare an Environmental Assessment (EA) to
determine whether the more rigorous EIS is required. See 40
C.F.R. §§ 1501.4, 1508.9. An EIS is unnecessary if an
agency makes a “finding of no significant impact” (FONSI)
on the human environment; a FONSI discharges the agency’s
NEPA documentation obligations. 40 C.F.R. §§ 1508.9(a)(1),
1508.13; 18 C.F.R. § 380.2(g). An agency’s NEPA
33
obligations are “essentially procedural.” Vt. Yankee Nuclear
Power Corp. v. NRDC, 435 U.S. 519, 558 (1978). NEPA
does not require any particular substantive result. Id.; see also
Theodore Roosevelt Conservation P’ship, 661 F.3d at 68.
Here, the Commission prepared an Environmental
Assessment of the Allegheny Storage Project. Finding that
the Project “would not constitute a major federal action
significantly affecting the quality of the human environment,”
the Commission prepared a FONSI and declined to prepare an
EIS. J.A. 242. Petitioners challenge the Commission’s
Environmental Assessment, arguing that it failed adequately
to consider alternatives, that it failed fully to consider the
impact on local residents’ property values, and that it
unlawfully segmented its environmental review of the
Allegheny Storage Project and Dominion’s Cove Point LNG
export terminal, which Petitioners contend the Commission
should have reviewed together as a single project.
We overturn an agency decision under NEPA only if it is
arbitrary and capricious, an abuse of discretion, or if the
agency has failed to satisfy the procedural requirements of the
statute. Theodore Roosevelt Conservation P’ship, 661 F.3d at
72. To issue a FONSI and decline to prepare an EIS, an
agency must have concluded that “there would be no
significant impact or have planned measures to mitigate such
impacts.” Mich. Gambling Opposition v. Kempthorne, 525
F.3d 23, 29 (D.C. Cir. 2008). Our role in reviewing an
agency’s decision not to prepare an EIS is a “‘limited’” one,
“designed primarily to ensure ‘that no arguably significant
consequences have been ignored.’” TOMAC v. Norton, 433
F.3d 852, 860 (D.C. Cir. 2006) (quoting Pub. Citizen v. Nat’l
Highway Traffic Safety Admin., 848 F.2d 256, 267 (D.C. Cir.
1988)). We ask “whether the agency ‘(1) has accurately
identified the relevant environmental concern, (2) has taken a
34
hard look at the problem in preparing its EA, (3) is able to
make a convincing case for its finding of no significant
impact, and (4) has shown that even if there is an impact of
true significance, an EIS is unnecessary because changes or
safeguards in the project sufficiently reduce the impact to a
minimum.’” Mich. Gambling, 525 F.3d at 29 (quoting
TOMAC, 433 F.3d at 861). In both the EA and EIS contexts,
this court applies a “rule of reason” to an agency’s NEPA
analysis and has repeatedly refused to “flyspeck” the agency’s
findings in search of “any deficiency no matter how minor.”
Nevada v. Dep’t of Energy, 457 F.3d 78, 93 (D.C. Cir. 2006);
see also Minisink, 762 F.3d at 112.
A.
An Environmental Assessment must include a “brief
discussion[]”of reasonable alternatives to the proposed action.
40 C.F.R. § 1508.9(b). An alternative is “‘reasonable’ if it is
objectively feasible as well as ‘reasonable in light of [the
agency’s] objectives.’” Theodore Roosevelt Conservation
P’ship, 661 F.3d at 72 (alterations in original) (quoting City of
Alexandria v. Slater, 198 F.3d 862, 867 (D.C. Cir. 1999)); see
also 43 C.F.R. § 46.420(b) (defining “reasonable alternatives”
in the context of an EIS as those alternatives “that are
technically and economically practical or feasible and meet
the purpose and need of the proposed action”). The
Commission’s specification of the range of reasonable
alternatives is entitled to deference. Citizens Against
Burlington, Inc. v. Busey, 938 F.2d 190, 196 (D.C. Cir. 1991).
Although a consideration of alternatives is required regardless
of whether the agency issues a FONSI, the relevant
regulations provide that the consideration of alternatives in an
Environmental Assessment need not be as rigorous as the
consideration of alternatives in an EIS. Compare 40 C.F.R.
§ 1508.9(b) (requiring “brief discussion[]” of alternatives in
35
an EA) with id. § 1502.14(a) (requiring agency to
“[r]igorously explore and objectively evaluate all reasonable
alternatives” when EIS required). See also Envtl. Prot. Info.
Ctr. v. U.S. Forest Serv., 451 F.3d 1005, 1016 (9th Cir. 2006)
(“[A]n agency’s obligation to consider alternatives under an
EA is a lesser one than under an EIS”) (internal quotation
marks omitted); La. Crawfish Producers Ass’n-W. v. Rowan,
463 F.3d 352, 357 (5th Cir. 2006) (“[T]he range of
alternatives that the [agency] must consider decreases as the
environmental impact of the proposed action becomes less
and less substantial.”) (second alteration in original) (internal
quotation marks omitted); Mt. Lookout-Mt. Nebo Prop. Prot.
Ass’n v. FERC, 143 F.3d 165, 172 (4th Cir. 1998); Friends of
Ompompanoosuc v. FERC, 968 F.2d 1549, 1558 (2d Cir.
1992); Olmsted Citizens for a Better Cmty. v. United States,
793 F.2d 201, 208 (8th Cir. 1986); River Rd. Alliance, Inc. v.
Corps of Engineers of U.S. Army, 764 F.2d 445, 452 (7th Cir.
1985).
Petitioners claim that the Environmental Assessment
lacks adequate consideration of two alternatives—an “existing
pipeline” alternative and a “looping” alternative.7 On both
counts, Petitioners mischaracterize the Environmental
Assessment, which considered and rejected both alternatives,
adequately discharging the Commission’s NEPA obligations.
First, Petitioners argue that “there are numerous other
pipeline systems in the region that could be used to meet” the
needs of Dominion’s customers. Pet’rs’ Br. 40. The
Commission’s Environmental Assessment rejected the
7
Although Petitioners also discuss the alternative of an electric
compressor three times in passing, see Pet’rs’ Br. 6, 15, 20, they do
not make any argument specific to that alternative, so we decline to
address it.
36
proposition that there was existing, unused capacity that could
satisfy the new demand. J.A. 233 (apart from alternatives
considered in EA, the Commission “did not identify any other
existing pipeline systems in the region that could provide the
capacity of the Project.”). Petitioner Ted Cady, seeking
rehearing, listed five pipeline systems that he believed had
sufficient unused capacity. J.A. 416-17. His request for
rehearing provided no explanation or technical analysis,
however, relating to whether those pipelines are fully
subscribed, for example, or whether they are located so as to
be able to serve Dominion’s customers. Because the record is
devoid of evidence that the Commission unreasonably
concluded that the construction of new facilities was needed
to meet demand, and that the use of existing pipelines was not
feasible, we decline to second-guess the Commission. The
Commission’s consideration of the “existing pipeline”
alternative in its Environmental Assessment was adequate.
Second, Petitioners argue that the Commission
inadequately considered the “looping” alternative, which
would have involved a thirty-mile loop of pipeline rather than
a compressor station in Myersville. The Commission rejected
the looping alternative because building it would disturb more
land than would building the compressor station. See J.A.
234. In the Commission’s view, a pipeline loop “would cause
a greater environmental disturbance” than would the
compressor station, so the loop was “not an environmentally
preferable” alternative. Id. Petitioners claim the
Commission’s finding was flawed because the loop would
cost only $2 million more than the compressor station, but
would result in no emissions. NEPA, however, does not
require a general focus “on the monetary costs and benefits of
the respective proposals . . . particularly where only an
environmental assessment, rather than an environment impact
statement, is involved.” Minisink, 762 F.3d at 112; see
37
Webster v. USDA, 685 F.3d 411, 430 (4th Cir. 2012). And
NEPA does not compel a particular result. Even if an agency
has conceded that an alternative is environmentally superior,
it nevertheless may be entitled under the circumstances not to
choose that alternative. See Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 350 (1989) (“If the adverse
environmental effects of the proposed action are adequately
identified and evaluated, the agency is not constrained by
NEPA from deciding that other values outweigh the
environmental costs.”).
Petitioners also assert that the Commission overestimated
the amount of land that would be disturbed by the looping
option. The Commission estimated 527 acres for construction
and operation; Petitioners estimated 102. See J.A. 500. That
challenge falls under the category of “flyspecking,” and
encroaches on the deference to which the Commission is
entitled for its technical analysis. The Commission stands by
its estimate, and, in any case, responds that Petitioners’ lower
estimate would not have changed its analysis, since it far
outstrips the 21-acre land disturbance required for
construction and operation of the Myersville compressor
station. See Resp.’s Br. 35. The looping option would
require a significantly greater amount of land than the
compressor station, and would adversely affect the
environment in other significant ways discussed in the
Environmental Assessment. The Commission adequately
considered, and rejected, the looping option. That was
sufficient to discharge its NEPA obligations.
B.
Petitioners also argue that the Environmental Assessment
failed to take a “hard look” at “quantifying the impacts of the
project on property values and lost development
38
opportunities” in Myersville. Pet’rs’ Br. 42. The definition
of “hard look” may be “imprecise,” but we have explained
that an agency has taken a “hard look” at the environmental
impacts of a proposed action if “‘the statement contains
sufficient discussion of the relevant issues and opposing
viewpoints,’ and . . . the agency’s decision is ‘fully informed’
and ‘well-considered.’” Nevada, 457 F.3d at 93 (quoting
NRDC v. Hodel, 865 F.2d 288, 294 (D.C. Cir. 1988)).
In response to community concern about the Myersville
station’s potential impact on property values, the
Environmental Assessment noted that each purchaser of
property has different criteria and values, but that, generally
speaking, a compressor station could depress property values,
particularly those of adjacent and nearby land. J.A. 200.
Nevertheless, the Commission concluded that the Myersville
compressor station “would not significantly reduce property
or resale values” in Myersville because of the Commission’s
recommendations for noise and visual screening. Id. Views
of the compressor station would be significantly screened by
natural vegetation both in summer and winter, and there
would be “no perceptible operational noise from the
compressor station at the nearest residences.” Id. Indeed, the
compressor station would contribute less noise and vibration
to the local area than is already produced by the portion of I-
70 running next to it. J.A. 218.
The Commission also acknowledged the “lack of studies
evaluating property values and aboveground natural gas
facilities,” and that “the effects on property values are
difficult to quantify.” J.A. 200. Seizing on that statement,
Petitioners argue that the Commission should be required to
do more to take into account the effects that safety concerns
and pollution have on property values. But the Commission
acknowledged three times, in the Environmental Assessment,
39
in its certificate order, and in its order denying rehearing, that
property values could be negatively affected by the
compressor station. It chose nevertheless to approve the
project because the negative impact was not “sufficient to
alter our determination that the Myersville Compressor
Station is required by the public convenience and necessity.”
Certificate Order ¶ 104.
In Minisink, we recently turned away a challenge similar
to this one. The Commission acknowledged the Minisink
project’s adverse effects on property values but nevertheless
approved it. Because the Environmental Assessment in
Minisink “clearly addressed this issue,” and because the
Commission concluded that some of those property-value
effects could be mitigated through visual screening, we found
the Environmental Assessment was adequate. 762 F.3d at
112. The same is true here. “Though we can see how
Petitioners may disagree with [the Commission’s] takeaway,
their disagreement does not mean that the Commission failed
to consider the issue altogether, as they suggest.” Id.
Petitioners also argue that the Commission should be
required to take into account the impact on property values
stemming from “preemption.” Pet’rs’ Br. 42-43. According
to Petitioners, “[a]s a result of preemption, the Town of
Myersville and its residents suffered a loss because a site that
would have once sustained uses that would benefit the
community has now been taken off the market by Dominion.”
Id. at 43. It is not clear what independent effects on
Petitioners’ property value they argue would stem from
“preemption” as opposed to the construction and operation of
the compressor station, which the Environmental Assessment
evaluated, and we decline to guess. The Commission’s
consideration of this issue was reasonable as well. See
Rehearing Order ¶ 64.
40
C.
Finally, Petitioners reiterate their assertion that the
“overbuilt” Allegheny Storage Project will produce excess
natural gas capacity destined for export through Dominion’s
Cove Point LNG terminal. By virtue of that alleged
connection between the Project and Cove Point, Petitioners
argue that the Commission should be required to review their
environmental effects together.8
Under applicable NEPA regulations, the Commission is
required to include “connected actions,” “cumulative actions,”
and “similar actions” in an Environmental Assessment. 40
C.F.R. § 1508.25(a)(1)-(3). “An agency impermissibly
‘segments’ NEPA review when it divides connected,
cumulative, or similar federal actions into separate projects
and thereby fails to address the true scope and impact of the
activities that should be under consideration.” Del.
Riverkeeper Network v. FERC, 753 F.3d 1304, 1313 (D.C.
Cir. 2014) (internal quotation marks omitted). “The purpose
of this requirement is to prevent agencies from dividing one
project into multiple individual actions each of which
individually has an insignificant environmental impact, but
which collectively have a substantial impact.” Hodel, 865
F.2d at 297 (internal quotation marks omitted). “Connected
actions” include actions that are “interdependent parts of a
8
We conclude that Petitioners’ argument is adequately preserved
because it was raised below, if briefly, and the Commission
addressed the issue in denying rehearing. See Rehearing Order
¶ 33 n.31.
41
larger action and depend on the larger action for their
justification.”9 40 C.F.R. § 1508.25(a)(1)(iii).
Petitioners claim that the Cove Point LNG export project
is a “connected action” that NEPA requires be considered
together with the Allegheny Storage Project. In Delaware
Riverkeeper, we held that the Commission unlawfully
segmented its environmental review where four other pipeline
projects were “certainly ‘connected actions’” that, taken
together, would result in “a single pipeline,” that was “linear
and physically interdependent,” and contained “no physical
offshoots.” 753 F.3d at 1308, 1316. In addition, the other
pipelines were under construction or pending review when the
contested application was filed, the Commission’s review of
the projects was overlapping, and their cumulative effects
were visited on the same environmental resources. We
premised our decision requiring joint NEPA consideration on
the unquestionable connectedness of the projects, the fact that
the projects all were under consideration by the Commission
at the same time, and the fact that the projects were
financially interdependent. Id. at 1318.
The absence of all of those factors led us to reject an
analogy to Delaware Riverkeeper in Minisink. There, as here,
the petitioners argued that a project that the Commission
found unrelated was nevertheless a “connected action.” We
rejected that argument and distinguished the connectedness
and timing of the projects at issue in Delaware Riverkeeper.
Minisink, 762 F.3d at 113 n.11. The same distinctions apply
9
“Connected actions” also include actions that “(i) [a]utomatically
trigger other actions which may require environmental impact
statements,” and actions that “(ii) [c]annot or will not proceed
unless other actions are taken previously or simultaneously.” 40
C.F.R. § 1508.25(a)(1)(i)-(ii).
42
here. Unlike in Delaware Riverkeeper, the Commission in
this case made clear that the Allegheny Storage Project and
the Cove Point LNG terminal are unrelated, and that neither
depends on the other for its justification. See 40 C.F.R.
§ 1508.25(a)(1)(iii). This is therefore not a case in which
“financially and functionally interdependent pipeline
improvements were considered separately even though there
was no apparent logic to where one project began and the
other ended.” Del. Riverkeeper, 753 F.3d at 1318. The
absence of evidence that would compel a finding of
connectedness between the Allegheny Storage Project and the
Cove Point LNG export terminal defeats Petitioners’
challenge.
V.
Finally, Petitioners Cady and Gerner claim they suffered
due process violations because the Commission failed to
provide them with a meaningful opportunity to comment on
the Environmental Assessment. Petitioners claim they were
deprived of a “meaningful opportunity” to comment on
Critical Energy Infrastructure Information (CEII) that they
requested from the Commission—in particular, Dominion’s
hydraulic flow diagrams.10
10
CEII is “specific engineering, vulnerability, or detailed design
information about proposed or existing critical infrastructure that:
(i) Relates details about the production, generation, transportation,
transmission, or distribution of energy; (ii) Could be useful to a
person in planning an attack on critical infrastructure; (iii) Is
exempt from mandatory disclosure under the Freedom of
Information Act, 5 U.S.C. 552; and (iv) Does not simply give the
general location of the critical infrastructure.” 18 C.F.R.
§ 388.113(c)(1).
43
Due process challenges to agency action are subject to
the general prejudicial error rule. See Air Canada v. Dep’t of
Transp., 148 F.3d 1142, 1156-57 (D.C. Cir. 1998); 5 U.S.C.
§ 706. “Due process requires only a ‘meaningful opportunity’
to challenge new evidence.” BNSF Ry. Co. v. Surface Transp.
Bd., 453 F.3d 473, 486 (D.C. Cir. 2006) (quoting Mathews v.
Eldridge, 424 U.S. 319, 349 (1976)); see also Blumenthal v.
FERC, 613 F.3d 1142, 1145-46 (D.C. Cir. 2010). In BNSF
Railway, we observed that, even where an opportunity to
rebut evidence may be obstructed at one point in a
proceeding, a rebuttal opportunity that arises before the
issuance of a final order is sufficient for purposes of due
process. See 453 F.3d at 486; Opp Cotton Mills, Inc. v. Adm’r
of Wage & Hour Div., 312 U.S. 126, 152-53 (1941) (“The
demands of due process do not require a hearing, at the initial
stage or at any particular point or at more than one point in an
administrative proceeding so long as the requisite hearing is
held before the final order becomes effective.”)).
Consequently, we have held that a commenter before the
Commission who has ample time to comment on evidence
before the deadline for rehearing is not deprived of a
meaningful opportunity to challenge the evidence. Minisink,
762 F.3d at 115. Cady and Gerner argue that they received
the CEII too late to comment at their preferred time in the
proceeding, but neither contends that they lacked ample time
to comment on the evidence before the deadline to seek
rehearing. We conclude that Petitioners Cady and Gerner
both had a “meaningful opportunity” to challenge the CEII
before rehearing, and therefore suffered no prejudice from
any alleged procedural deficiency in the way the CEII was
produced to them.
Moreover, Petitioners do not identify what they would
have done differently with the CEII had the Commission
44
produced it earlier in the proceeding. “To show that error was
prejudicial, a plaintiff must indicate with reasonable
specificity what portions of the documents it objects to and
how it might have responded if given the opportunity.”
Gerber v. Norton, 294 F.3d 173, 182 (D.C. Cir. 2002)
(internal quotation marks omitted). Petitioners have failed to
satisfy that standard.
***
Because each of Petitioners’ challenges to the
Commission’s conditional approval of the Allegheny Storage
Project falls short, the petition for review is denied.
So ordered.