City of Boston Delegation v. FERC ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 19, 2017 Decided July 27, 2018
No. 16-1081
CITY OF BOSTON DELEGATION,
PETITIONER
v.
FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT
ALGONQUIN GAS TRANSMISSION, LLC, ET AL.,
INTERVENORS
Consolidated with 16-1098, 16-1103
On Petitions for Review of Orders of the
Federal Energy Regulatory Commission
Thomas S. Fitzpatrick argued the cause for petitioner City
of Boston Delegation. With him on the briefs was Joshua S.
Grossman.
Carolyn Elefant argued the cause for petitioners
Riverkeeper, Inc., et al. With her on the briefs were Jeffrey M.
Bernstein, Rebecca F. Zachas, and Alexander English.
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Ross R. Fulton, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. With him on
the briefs were James P. Danly, General Counsel, Robert H.
Solomon, Solicitor, and Holly E. Cafer, Senior Attorney.
Jeremy C. Marwell argued the cause for intervenor
Algonquin Gas Transmission, LLC, et al. With him on the
briefs were Anita R. Wilson, Michael B. Wigmore, Andrew N.
Beach, and Steven E. Hellman.
Before: HENDERSON and SRINIVASAN, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge SRINIVASAN.
SRINIVASAN, Circuit Judge: In March 2015, the Federal
Energy Regulatory Commission approved an application from
Algonquin Gas Transmission, LLC, to undertake an upgrade to
its natural gas pipeline system. The $972 million project would
enable Algonquin to meet some of the increasing demand for
natural gas in New England and reduce pricing volatility in the
region.
A number of parties now seek to challenge the
Commission’s approval of Algonquin’s project. They allege,
among other things, that the Commission erred in assessing the
project’s environmental impacts, unreasonably relied on expert
opinions concerning the project’s safety, and failed to
recognize the bias of a third-party contractor. At the outset, we
dismiss one party’s petition for review for want of standing.
We deny the remaining petitions for review on the merits.
3
I.
A.
The Natural Gas Act grants the Federal Energy Regulatory
Commission authority to regulate the interstate transportation
of natural gas. 15 U.S.C. §§ 717b, 717c. To construct or
operate an interstate natural gas pipeline, a company must
obtain “a certificate of public convenience and necessity,” 15
U.S.C. § 717f(c), known as a Section 7 certificate. The
Commission will grant a Section 7 certificate “only if the
public benefits from the project outweigh any adverse effects.”
Certification of New Interstate Natural Gas Pipeline Facilities,
88 FERC ¶ 61,227, at 61,750 (Sept. 15, 1999), clarified, 90
FERC ¶ 61,128, at 61,396-98 (Feb. 9, 2000), further
clarified, 92 FERC ¶ 61,094, at 61,373-75 (July 28, 2000).
As part of the process of issuing a Section 7 certificate, the
Commission must satisfy the requirements of the National
Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq.
NEPA establishes an environmental review process under
which federal agencies “identify the reasonable alternatives to
[a] contemplated action and look hard at the environmental
effects of their decisions.” Minisink Residents for Envtl. Pres.
& Safety v. FERC, 762 F.3d 97, 102 (D.C. Cir. 2014)
(alterations and internal quotation marks omitted). In the case
of “major Federal actions significantly affecting the quality of
the human environment,” NEPA calls for the relevant federal
agency to prepare “a detailed” environmental impact statement.
42 U.S.C. § 4332(2)(C).
B.
Algonquin Gas Transmission, LLC, operates a natural gas
pipeline system that starts in New Jersey, runs north through
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New York, Connecticut, and Rhode Island, and ends in
Massachusetts. In light of increasing demand for natural gas in
the New England area, Algonquin planned several discrete
projects to increase the capacity of its pipeline system. One of
those projects, the Algonquin Incremental Market Project
(AIM Project), is the subject of the petitions for review we
consider in this case.
In February 2014, Algonquin applied to the Commission
for authorization to construct the AIM Project. The proposal
sought to replace 29.2 miles of existing pipeline with larger
diameter pipe, construct 8.2 miles of new pipeline, build three
new meter stations, and modify various other compressor and
meter stations.
Of particular relevance, the AIM project included a
proposal to construct roughly five miles of new pipeline known
as the West Roxbury Lateral, which would run adjacent to an
active quarry outside of Boston. The project also sought to
install larger-diameter replacement pipeline next to the Indian
Point Energy Center, a nuclear facility in Westchester County,
New York. Overall, the AIM Project would give Algonquin an
additional 342,000 dekatherms per day of natural gas transport
capacity from Ramapo, New York, to various cities in
Connecticut, Rhode Island, and Massachusetts.
In addition to the AIM Project, Algonquin is pursuing two
other upgrades to its northeast pipeline system. Those ventures
are known as the Atlantic Bridge Project and the Access
Northeast Project. In the Atlantic Bridge Project, Algonquin
seeks to create 132,705 dekatherms per day of capacity from
New Jersey and New York to various points on its system, by
replacing several miles of pipeline with larger-diameter pipes
and constructing or modifying a number of compressor and
meter stations. Algonquin applied for a Section 7 certificate
5
for Atlantic Bridge in October 2015, and the Commission
granted the certificate in January 2017. Order Issuing
Certificate, Algonquin Gas Transmission, LLC, 158 FERC
¶ 61,061 (Jan. 25, 2017) (Atlantic Bridge Certificate Order). In
the Access Northeast Project, Algonquin planned to install
pipeline and modify facilities in order to provide natural gas to
electric power plants in New England. Pre-filing review for the
Access Northeast Project began in November 2015, but
Algonquin withdrew the pre-filing application in June 2017.
On January 23, 2015, the Commission issued its final
environmental impact statement under NEPA for the AIM
Project. On March 3, 2015, after receiving comments on the
environmental impact statement, the Commission issued an
order granting Algonquin a Section 7 certificate to construct
and operate the AIM Project. Order Issuing Certificate,
Algonquin Gas Transmission, LLC, 150 FERC ¶ 61,163 (Mar.
3, 2015).
Several parties in the agency proceedings, including the
petitioners in this case, requested rehearing before the
Commission. The City of Boston Delegation alleged that the
Commission failed to give adequate consideration to the safety
risks of running the West Roxbury Lateral adjacent to an active
quarry. The Town of Dedham, Massachusetts, and
Riverkeeper, Inc., argued in part that the Commission
impermissibly segmented its NEPA review by failing to
consider Algonquin’s three planned projects together in a
single environmental impact statement. Additionally, a
coalition of environmental groups, community organizations,
and individuals alleged, among other claims, that the
Commission insufficiently examined the cumulative impact of
the Atlantic Bridge and Access Northeast projects, and failed
adequately to consider safety issues raised by the pipeline’s
proximity to the Indian Point nuclear facility.
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The Commission denied the parties’ requests for rehearing
and dismissed their requests for a stay. Order Denying
Rehearing, Algonquin Gas Transmission, LLC, 154 FERC
¶ 61,048 (Jan. 28, 2016) (Rehearing Order). A number of
parties now seek review in this court of the Commission’s grant
of a Section 7 certificate for the AIM Project.
In particular, we consider three petitions for review,
brought by (i) the City of Boston Delegation; (ii) the Town of
Dedham, Massachusetts; and (iii) Riverkeeper, Inc., along with
a coalition of environmental groups, community organizations,
and individuals. The Delegation, in its own briefing, raises
challenges focused on the West Roxbury Lateral. The Town
of Dedham, together with Riverkeeper, Inc., and the coalition,
jointly present a separate set of arguments addressing, among
other things, the cumulative environmental impacts of
Algonquin’s three projects and the safety concerns raised by
the AIM Project’s proximity to the Indian Point nuclear
facility. Algonquin, as intervenor, has submitted a brief
supporting the Commission.
II.
Before reaching the merits of petitioners’ claims, we must
first examine their standing to sue. Although the Commission
did not initially contest the petitioners’ standing, Algonquin
raised the issue as intervenor. And because we have an
independent obligation to assure ourselves of our jurisdiction,
we asked for supplemental briefing addressing the question of
standing.
To establish standing under Article III of the Constitution,
petitioners must demonstrate (i) an injury in fact, (ii) that is
fairly traceable to the challenged conduct, and (iii) that is likely
to be redressed by a favorable decision. Lujan v. Defenders of
7
Wildlife, 504 U.S. 555, 560-61 (1992). We hold that the City
of Boston Delegation lacks standing because it has failed to
demonstrate an injury in fact. We therefore dismiss the
Delegation’s petition for review for lack of jurisdiction without
reaching the merits of the Delegation’s arguments. We
conclude that the remaining petitioners have adequately
demonstrated standing and thus reach the merits of their
petitions.
A.
The City of Boston Delegation consists of nine elected
representatives from Boston, including the Mayor, a
congressman, five city councilors, a state senator, and a state
representative. The Delegation’s claim of injury for standing
purposes rests on the West Roxbury Lateral’s allegedly adverse
safety, health, and environmental effects on the City. The
Delegation stakes its standing primarily on the Mayor’s
participation in the petition. The Delegation’s theory is that,
because the Mayor regularly initiates litigation on behalf of the
City, the Mayor’s involvement in the petition effectively makes
the City of Boston a party. As a result, the Delegation asserts,
the harms to the City caused by the pipeline can supply the
requisite injury in fact for purposes of establishing the
Delegation’s standing. We are unpersuaded by the
Delegation’s theory.
While the City of Boston could in theory bring an action,
the Mayor does not act as the City when he files a lawsuit in
his own name. Under Massachusetts law, the City of Boston
“may in its corporate capacity sue and be sued by its name.”
Mass. Gen. Laws ch. 40, § 2 (2018). And in practice, the City
does in fact sue in its own name. See, e.g., City of Boston v.
Boston Police Superior Officers Fed’n, 993 N.E.2d 693 (Mass.
2013). The city code specifies the process by which a lawsuit
8
is initiated on behalf of the City of Boston: the City’s
Corporation Counsel “shall, subject to the direction of the
Mayor, institute any suit or proceeding in behalf of the City
which he shall deem the interest of the City requires.” City of
Boston Mun. Code, Ordinance § 5-8.1. That process did not
take place here.
The Delegation reads the ordinance to encompass any
lawsuit determined by the Mayor to be in the City’s interest,
thus affording the Mayor discretion to sue on behalf of the City.
The ordinance, though, does not support that reading. Rather,
the ordinance requires the Corporation Counsel to institute suit
(subject to the Mayor’s direction), and in doing so, the
Corporation Counsel must “deem the interest of the City
requires” bringing the litigation.
There is no indication here that the Mayor directed the
Corporation Counsel to file this petition, or that the
Corporation Counsel made the requisite determination that “the
interest of the City require[d]” seeking review of the
Commission’s order. The ordinance’s procedure for initiating
suit on behalf of the City thus was not followed. And the
Mayor, per the terms of the ordinance, does not inherently
litigate on behalf of the City whenever he appears in his own
name, at least without the necessary determination by the
Corporation Counsel. We are not at liberty to disregard the city
code’s prescribed process by which an action is brought in the
City’s name. We therefore cannot treat the City as a de facto
petitioner merely by virtue of the Mayor’s participation.
The Delegation has pointed us to no cases supporting a
contrary conclusion. For instance, the Delegation cites RicMer
Properties v. Board of Health of Revere, 794 N.E.2d 1236(Mass. 2003), for the proposition a municipality in
Massachusetts can represent “the public interest” by asserting
9
parens patriae standing on behalf of the municipality’s
residents. Id. at 1240. RicMer does not help the Delegation.
There, the mayor and city council abided by the ordinary
process of directing the corporation counsel to intervene on
behalf of the city, and the city itself intervened. Id. at 1238 &
n.2. The other cases referenced by the Delegation likewise do
not support the proposition that a mayor, in her own name, can
assert a city’s parens patriae interest even if the city itself is not
a party: those cases involved actions brought by a municipality
itself. See Town of Sudbury v. Dep’t of Pub. Utils., 218 N.E.2d
415, 419 (Mass. 1966) (towns have standing to “represent the
public interest”); Town of Wilmington v. Dep’t of Pub. Utils.,
165 N.E.2d 99, 103 (Mass. 1960) (same).
Here, by contrast, the Mayor is a member of the
Delegation in his own name, and the process for bringing suit
in the name of the City through Corporation Counsel was not
followed. In these circumstances, we cannot conclude that the
Delegation, purely by virtue of the Mayor’s participation, is
acting on behalf of the City in pursuing the petition for review.
It follows that the Delegation cannot assert injuries to the City
itself (or assert the City’s parens patriae interest in its residents)
as the basis of the Delegation’s standing. See Maiden Creek
Assocs., L.P. v. U.S. Dep’t of Transp., 823 F.3d 184, 193 (3d
Cir. 2016). And because the City itself is not a party, we have
no occasion to consider whether the City, if it were a party,
could establish standing based on a parens patriae theory. Cf.
City of Olmstead v. FAA, 292 F.3d 261, 268 (D.C. Cir. 2002)
(declining to decide whether a municipality can “sue the
federal government under the doctrine of parens patriae”); Md.
People’s Counsel v. FERC, 760 F.2d 318, 321-22 (D.C. Cir.
1985) (state agency has parens patriae standing to challenge
Commission orders in federal court).
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Because the Delegation is not petitioning as the City of
Boston, it can establish standing only by demonstrating that its
individual members suffer an injury in fact from the pipeline
project. The Delegation’s attempts to do so in passing, by
briefly asserting that certain of its members individually have
standing, are inadequate. For instance, the Delegation
observes, without any elaboration, that two of its members
reside in the West Roxbury neighborhood and that the Mayor
has an interest in the neighborhood’s safety as the city’s chief
executive. Those “[b]are allegations” are insufficient to
demonstrate a “substantial probability” that the Delegation has
sustained an injury in fact sufficient to confer standing. Sierra
Club v. EPA, 292 F.3d 895, 898 (D.C. Cir. 2002). And because
the Delegation has not established that it has standing to seek
review of the Commission’s decision, we must dismiss the
Delegation’s petition for review for lack of jurisdiction.
B.
Unlike the Delegation, the remaining petitioners—the
Town of Dedham, Riverkeepers, Inc., and the various coalition
members—have established Article III standing to bring their
petitions for review. Generally, petitioners must
“demonstrate standing for each claim [they] seek[] to press.”
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006).
But when multiple petitioners bring claims jointly, only one
petitioner needs standing to raise each claim. Comcast Corp.
v. FCC, 579 F.3d 1, 6 (D.C. Cir. 2009). In addition, for this
court to have jurisdiction under the Natural Gas Act to consider
an issue, the party seeking review must have presented the
same issue to the Commission in an application for rehearing.
15 U.S.C. § 717r(b).
As part of the AIM Project, Algonquin installed new
pipeline through the Town of Dedham, Massachusetts, running
11
the pipeline underneath town roads and a town-owned park.
The Town alleges that the pipeline has caused significant
construction-related harm from increased traffic, noise, and
disruption of businesses. The Town further notes that the
project would require “future, inconvenient re-opening of the
Town roads” to maintain the pipeline, which would again visit
the same injuries on the Town. Riverkeeper Opening Br. 9.
Under our precedents, that kind of injury to the property
interests of a landowner whose land is transected by a natural
gas pipeline constitutes a sufficient injury in fact to substantiate
standing. Sierra Club v. FERC, 867 F.3d 1357, 1366 n.2 (D.C.
Cir. 2017); see id. at 1366; Minisink, 762 F.3d at 106.
The Town also alleges that the operation of the pipeline
through its property “poses an ongoing safety risk” that will
affect the Town financially. Riverkeeper Opening Br. 9. We
have held that the presence of a “continuing safety hazard”
caused by the nearby installation of a natural gas pipeline can
establish an injury in fact. Moreau v. FERC, 982 F.2d 556, 565
(D.C. Cir. 1993); Myersville Citizens for a Rural Cmty., Inc. v.
FERC, 783 F.3d 1301, 1317 (D.C. Cir. 2015). And considered
in the context of the financial harm alleged by the Town and
the infringement of its property interests, the safety risk further
demonstrates an injury in fact for purposes of standing.
Beyond the Town, Reynolds Hills, Inc.—a member of the
coalition seeking review—has demonstrated its standing so as
to enable our consideration of petitioners’ remaining
arguments. Reynolds Hills is a non-profit neighborhood
community in Westchester County, New York. As with the
Town, the AIM Project involved construction of a pipeline
upgrade across Reynolds Hills’s property. Reynolds Hills
adequately alleged an injury to its property interests and the
aesthetic interests of its members caused by the project. It also
adequately alleged an increased safety risk from the upgraded
12
pipeline on its property and from the project’s alleged effects
on the Indian Point nuclear facility. Those allegations of harm
from the project—which we assume are true for purposes of
standing, see Parker v. District of Columbia, 478 F.3d 370, 377
(D.C. Cir. 2007)—demonstrate that Reynolds Hills has
suffered an injury in fact.
In addition to establishing injury in fact, the Town and
Reynolds Hills also satisfy the second and third requirements
of standing. Their injuries are fairly traceable to the
construction and operation of the pipeline as approved by the
Commission’s certificate order, and the injuries would be
redressed by vacatur of that order on any ground. See Sierra
Club, 867 F.3d at 1366.
Finally, between the Town and Reynolds Hills, they
exhausted before the Commission all the issues raised
collectively in the joint petitioners’ brief (except a
conflict-of-interest claim we discuss below, Part III.C). In the
Town’s application for rehearing to the Commission, the Town
argued that the Commission improperly segmented its
environmental review by failing to consider Algonquin’s three
projects together. Meanwhile, Reynolds Hills argued on
rehearing that the Commission inadequately assessed the
cumulative environmental impacts of Algonquin’s three
projects, and failed to give proper consideration to the safety
concerns arising from the project’s effects on the Indian Point
nuclear facility. We therefore have jurisdiction to address the
merits of the arguments raised in the petitions brought by the
Town, Riverkeeper, and the coalition.
III.
We review the Commission’s grant of a Section 7
certificate “under the familiar arbitrary and capricious
13
standard,” bearing in mind that “the grant or denial of” such a
certificate “is a matter peculiarly within the discretion of the
Commission.” Minisink, 762 F.3d at 105-06 (brackets and
citation omitted). Applying that standard, we sustain the
Commission’s order against the challenges brought jointly by
the Town, Riverkeeper, and the coalition.
A.
In the first set of arguments raised by petitioners, they
contend that the Commission failed to comply with NEPA in
approving the AIM Project. NEPA generally obligates
agencies to take a “‘hard look’ at the environmental impacts of
a proposed action.” Myersville, 783 F.3d at 1324. An
environmental impact statement is “deficient, and the agency
action it undergirds is arbitrary and capricious, if the EIS does
not contain sufficient discussion of the relevant issues and
opposing viewpoints, or if it does not demonstrate reasoned
decisionmaking.” Sierra Club, 867 F.3d at 1368 (internal
quotation marks and citations omitted). In evaluating an
agency’s NEPA analysis, we apply a “rule of reason,” and have
“refused to ‘flyspeck’ the agency’s findings in search of ‘any
deficiency no matter how minor.’” Myersville, 783 F.3d at
1322-23 (quoting Nevada v. Dep’t of Energy, 457 F.3d 78, 93
(D.C. Cir. 2006)).
Petitioners present two related arguments under NEPA.
First, petitioners contend that the Commission improperly
segmented its environmental review by failing to examine the
AIM Project and Algonquin’s two other pipeline upgrade
projects together in a single environmental statement. Second,
petitioners submit that the Commission failed to give adequate
consideration to the cumulative environmental impacts of the
three upgrade projects. We find no basis to set aside the
Commission’s order on those grounds.
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1.
Under the Council on Environmental Quality’s regulations
implementing NEPA, agencies must consider all “connected
actions,” “cumulative actions,” and “similar actions” within a
single environmental impact statement. 40 C.F.R.
§ 1508.25(a). “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). The rule ensures that
an agency considers the full environmental impact of
“connected, cumulative, or similar” actions before they are
undertaken, so that it can assess the true costs of an integrated
project when it is best situated to evaluate “different courses of
action” and mitigate anticipated effects. Id. at 1313-14.
This court has developed a set of factors that help clarify
when “physically connected projects can be analyzed
separately under NEPA.” Id. at 1315. As relevant here, when
an agency considers projects non-contemporaneously, see id.
at 1318, and when projects have “substantial independent
utility,” id. at 1316, separate environmental statements can be
appropriate.
Applying those considerations in Delaware Riverkeeper,
we concluded that the Commission had impermissibly
segmented its review of four pipeline upgrades. The projects,
we explained, were “connected and interrelated” and
“functionally and financially interdependent,” and they also
had significant “temporal overlap,” id. at 1319, because they
were “either under construction” or “pending before the
Commission for environmental review and approval” at the
same time, id. at 1308.
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In Minisink and Myersville, by contrast, we sustained the
Commission’s conduct of separate environmental assessments.
In Minisink, we noted that the projects in question lacked the
temporal overlap that had characterized the projects in
Delaware Riverkeeper. Rather, the application for the
later-in-time project had yet to be submitted when the main
project was under consideration. Minisink, 762 F.3d at 113
n.11. In Myersville, we reasoned that, unlike Delaware
Riverkeeper, the projects were “unrelated” and did not depend
on one another for their justification. 783 F.3d at 1326-27.
Because the case before us is more in line with Minisink
and Myersville than with Delaware Riverkeeper, we conclude
that the Commission did not act arbitrarily and capriciously in
declining to consider Algonquin’s three projects in a single
environmental impact statement. With regard to temporal
overlap, the Commission issued the AIM Project certificate in
March 2015, Algonquin submitted the application for Atlantic
Bridge in October 2015, and Algonquin has yet to file the
Access Northeast application. The projects thus were not under
simultaneous consideration by the agency.
Nor are the projects “financially and functionally
interdependent.” Del. Riverkeeper, 753 F.3d at 1319. On that
score, we consider “whether one project will serve a significant
purpose even if a second related project is not built,” Coal. on
Sensible Transp., Inc. v. Dole, 826 F.2d 60, 69 (D.C. Cir.
1987), and we look to the “commercial and financial viability
of a project when considered in isolation from other actions,”
Del. Riverkeeper, 753 F.3d at 1316. In denying rehearing, the
Commission observed that Algonquin’s three projects “held
separate open seasons,” “executed individual precedent
agreements” with largely distinct shippers, and “have different
negotiated and recourse rates and separate in-service dates.”
Rehearing Order ¶ 75. In those circumstances, the Commission
16
reasonably concluded that “the projects do not depend on the
other[s] for access to the natural gas market.” Id. ¶ 78.
Factual developments after the Commission’s completion
of environmental review for the AIM Project highlight the
permissibility of conducting separate environmental
assessments for Algonquin’s three projects. Following
issuance of the environmental impact statement for the AIM
Project, the Atlantic Bridge Project was significantly curtailed:
the project’s planned capacity decreased by nearly 40 percent,
and the length of pipeline to be replaced decreased by 88
percent. Atlantic Bridge Certificate Order ¶ 86 & n.82. If the
Commission’s environmental impact statement for the AIM
Project had taken into account the Atlantic Bridge Project as
then conceived, the review would have substantially overstated
the environmental impact of the Atlantic Bridge Project. With
regard to the Access Northeast Project, meanwhile, Algonquin
withdrew the project from the Commission’s pre-filing process
in June 2017, and it is uncertain when (or whether) the project
will go forward. Order Denying Stay, Algonquin Gas
Transmission, LLC, 160 FERC ¶ 61,015, at ¶ 6 & n.13 (Aug.
21, 2017).
In short, the functional and temporal distinctness of the
three projects, as underscored by factual developments
concerning the Atlantic Bridge and Access Northeast Projects,
substantiate that it was permissible for the Commission to
prepare a separate environmental impact statement for the AIM
Project.
2.
Relatedly, the joint petitioners contend that the
Commission failed to give sufficient consideration to the
cumulative environmental impacts of the AIM, Atlantic
17
Bridge, and Access Northeast Projects. This second species of
petitioners’ arguments under NEPA fares no better than the
first.
An environmental impact statement must assess the
“cumulative impacts” of a proposed action. Sierra Club v.
FERC, 827 F.3d 36, 49 (D.C. Cir. 2016). A project’s
“cumulative impact” is “the impact on the environment which
results from the incremental impact of the action when added
to other past, present, and reasonably foreseeable future
actions.” 40 C.F.R. § 1508.7. To satisfy “hard look” review,
an agency’s cumulative impacts analysis must contain
“sufficient discussion of the relevant issues” and be
“well-considered.” Myersville, 783 F.3d at 1324-25 (citation
omitted). But importantly, the adequacy of an environmental
impact statement is judged by reference to the information
available to the agency at the time of review, such that the
agency is expected to consider only those future impacts that
are reasonably foreseeable.
At the time of the Commission’s consideration of the AIM
Project, the impacts of the Atlantic Bridge Project were
reasonably foreseeable. And the Commission thoroughly
considered the environmental effects of Atlantic Bridge
throughout the cumulative impacts section of the AIM
Project’s environmental impact statement. The statement
“contains sufficient discussion of” the cumulative impacts of
Atlantic Bridge and is “well-considered.” Myersville, 783 F.3d
at 1325.
The cumulative impacts discussion of the Access
Northeast Project is much more limited, and understandably so.
At the time of the AIM Project’s environmental impact
statement, Access Northeast was months away from entering
the pre-filing process and over a year away from issuance of a
18
notice of intent to prepare an environmental impact statement.
Given Access Northeast’s preliminary stage and the resulting
lack of available information about its scope at the time, the
project was “too preliminary to meaningfully estimate [its]
cumulative impacts.” Theodore Roosevelt Conservation
P’ship v. Salazar, 616 F.3d 497, 513 (D.C. Cir. 2010); see
Minisink, 762 F.3d at 113. Additionally, the AIM Project and
Access Northeast would “not overlap in time,” meaning the
short-term impacts from constructing the former would abate
before construction commenced on the latter, and no long-term
cumulative impacts were reasonably anticipated. Rehearing
Order ¶¶ 144-145. In light of “the uncertainty surrounding
[Access Northeast], and the difference in timing between the
two projects, this discussion suffices under NEPA.” Minisink,
762 F.3d at 113.
None of this means that Algonquin will circumvent full
consideration of the environmental impact of projects that
continue to take shape. To the contrary, later projects can fully
account for the cumulative impacts when those effects become
better known. And in fact, the environmental assessment for
the Atlantic Bridge Project considered the cumulative impacts
of the Access Northeast Project once the latter project’s details
were better defined and its anticipated impacts better
understood. Atlantic Bridge Certificate Order ¶¶ 98 n.98,
107-110 (citing Environmental Assessment at 2-129 to 2-130,
2-131 to 2-143). For purposes of the AIM Project, however,
the Commission adequately considered the cumulative impacts
of the other two projects based on the information then
available to the agency.
B.
Petitioners next challenge the Commission’s
determination that the AIM Project posed no increased threat
19
to the Indian Point nuclear power plant in Westchester County,
New York. According to petitioners, the Commission’s
conclusion is unsupported by substantial evidence. We
disagree.
The AIM Project involved installing 2,159 feet of pipeline
across the property of the Indian Point facility. The pipeline
would be located 1,600 feet from the “power plant structures,”
and 2,370 feet from Indian Point’s “protected security barrier
around the main facility sites.” Rehearing Order ¶ 197. During
the Commission’s consideration of the AIM Project, Entergy—
the operator of Indian Point—undertook a safety evaluation as
required by the relevant regulations. That evaluation
determined that the project would pose no additional safety
risks to its facility. The Nuclear Regulatory Commission
(NRC) conducted an independent analysis and reached the
same conclusion. Relying on those expert analyses, the
Commission found that the AIM Project “would not pose any
new safety hazards” to Indian Point. AIM Project Final
Environmental Impact Statement at ES-8 (Jan. 23, 2015).
In evaluating an application for a Section 7 certificate, the
Commission must determine that the proposed project is in the
“public interest,” which requires assessing potential “safety
concerns.” Washington Gas Light Co. v. FERC, 532 F.3d 928,
932 (D.C. Cir. 2008). If the Commission’s safety findings are
unsupported by substantial evidence, we vacate the certificate
order. Id. at 932-33. Petitioners seek vacatur here, arguing that
the Commission erred in adopting the NRC’s safety finding
concerning the Indian Point facility.
The Commission’s factual findings are “conclusive” for
our purposes if “supported by substantial evidence.” 15 U.S.C.
§ 717r(b). Substantial evidence “requires more than a scintilla,
but can be satisfied by something less than a preponderance of
20
the evidence.” Minisink, 762 F.3d at 108 (citation omitted).
The Commission’s safety finding meets the
substantial-evidence threshold.
The Commission of course can rely on expert reports in its
decisions. See Murray Energy Corp. v. FERC, 629 F.3d 231,
238 (D.C. Cir. 2011). Here, it relied on two: Entergy’s safety
evaluation and NRC’s confirming analysis. The Commission
discussed those evaluations in its environmental impact
statement, its certificate order, and its rehearing order, in
support of its finding that the “AIM Project can safely operate
near Indian Point.” Rehearing Order ¶ 201. Those expert
opinions qualify as substantial evidence supporting the
Commission’s safety finding, and the Commission acted well
within its discretion in relying on them to grant Algonquin’s
certificate.
Petitioners contend that the Commission erred in accepting
Entergy’s and NRC’s safety findings rather than those of
competing expert analyses that found safety risks to Indian
Point from the AIM Project. Specifically, petitioners and their
experts fault Entergy and NRC for assuming that gas flow
could be terminated within three minutes of a pipeline rupture,
and estimating a blast radius based on that assumption. But
whereas Entergy’s analysis assumed a three-minute response
time, NRC directly responded to the opposing experts’
concerns about that assumption; after conducting an analysis
that assumed a “catastrophic failure” and continuous gas flow
for one hour, NRC still concluded that the pipeline posed no
safety threat. AIM Project Final Environmental Impact
Statement at 4-278. In ratifying NRC’s “extensive formal
responses” to petitioners’ experts, the Commission found
NRC’s assumptions reasonable and its analysis persuasive.
Rehearing Order ¶ 201.
21
In general, we defer to the Commission’s “resolution of
factual disputes between expert witnesses,” and accept its
decision “to credit” one expert’s “conclusions” over another
expert’s if its choice is “reasonable.” Murray Energy Corp.,
629 F.3d at 239 (citation omitted). Here, the Commission was
faced with Entergy and NRC’s analyses, on one hand, and
critiques from two independent experts, on the other. It
permissibly decided to credit the NRC’s expert conclusions,
and to accept that NRC’s “extensive formal responses” had
adequately addressed the opposing experts’ concerns.
Rehearing Order ¶ 201.
The expert conclusion adopted by the Commission,
moreover, was that of another federal agency. Agencies can be
expected to “respect [the] views of such other agencies as to
those problems” for which those “other agencies are more
directly responsible and more competent.” City of Pittsburgh
v. Fed. Power Comm’n, 237 F.2d 741, 754 (D.C. Cir. 1956).
So, for instance, we sustained an agency’s decision against
undertaking a rulemaking in reliance on the opinion of “other
government agencies and non-governmental expert
organizations with specific expertise” on the matter. EMR
Network v. FCC, 391 F.3d 269, 273 (D.C. Cir. 2004).
In that regard, NRC has particular expertise in assessing
external threats to the nuclear facilities it regulates. See, e.g.,
New York v. NRC, 824 F.3d 1012, 1019-20 (D.C. Cir. 2016).
The Commission determined that it was “satisfied as to
[NRC’s] competence and the validity of their basic data and
analysis,” Rehearing Order ¶ 203, and chose to credit NRC’s
safety conclusions. We see no basis to reject the Commission’s
decision to do so.
22
C.
As their final ground for overturning the Commission’s
grant of a Section 7 certificate, petitioners contend that a
third-party contractor that the Commission relied on to prepare
the environmental impact statement—Natural Resource
Group—had a conflict of interest. Petitioners did not present
that objection to the agency. We therefore lack jurisdiction to
consider the issue unless we conclude that “there is reasonable
ground for [petitioners’] failure” to raise the argument on
rehearing before the agency. 15 U.S.C. § 717r(b).
In a case involving an analogous exhaustion provision and
a conflict-of-interest claim, we held that a petitioner had
demonstrated a “reasonable ground” to excuse the lack of
exhaustion because the petitioner “had no reason during the
[environmental review] process to suspect the alleged defects
in the selection and supervision of [the contractor].”
Communities Against Runway Expansion, Inc. (CARE) v. FAA,
355 F.3d 678, 686 (D.C. Cir. 2004). Our decision in CARE
controls here in light of the similar circumstances. We
therefore have jurisdiction to consider the merits of petitioners’
conflict-of-interest claim.
We reject petitioners’ argument on the merits, however.
Petitioners’ claim of a conflict of interest rests on an allegation
that Natural Resource Group was also hired by a consortium
that included Algonquin’s parent company to perform
public-affairs work in connection with a separate project. That
ostensible conflict did not arise until the environmental-review
process for the AIM Project was substantially underway.
Neither the Commission nor Natural Resource Group failed to
follow the conflicts disclosure rules in place at the time. See
Fed. Energy Reg. Comm’n, Handbook for Using Third-Party
Contractors to Prepare Envtl. Documents for Nat. Gas
23
Facilities & Hydropower Projects at 4-1 to 4-6 (Dec. 2014).
In addition, the Commission later once again hired the Natural
Resource Group to assist with the environmental statement for
the Atlantic Bridge Project. In doing so, the Commission found
that the supposed conflict identified by petitioners here was not
a “disqualifying conflict” under the Commission’s rules.
Letter from Chairman Norman Bay to Sen. Elizabeth Warren
2, FERC Docket No. CP16-9 (July 19, 2016). Petitioners offer
no basis for disagreeing with that conclusion.
Finally, even if petitioners had identified an actual conflict
of interest, it would afford a ground for invalidating the
environmental impact statement only if it rose to the level of
“compromis[ing] the objectivity and integrity of the NEPA
process.” CARE, 355 F.3d at 686-87 (formatting modified).
That bar has not been met here.
* * * * *
For the foregoing reasons, we dismiss the City of Boston
Delegation’s petition for review for lack of jurisdiction, and we
deny the remaining petitions for review.
So ordered.