Delaware Riverkeeper Network v. FERC , 895 F.3d 102 ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 22, 2018 Decided July 10, 2018
No. 17-5084
DELAWARE RIVERKEEPER NETWORK AND MAYA VAN
ROSSUM,
APPELLANTS
v.
FEDERAL ENERGY REGULATORY COMMISSION, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:16-cv-00416)
Jordan Yeager argued the cause for appellants. With him
on the briefs was Aaron Stemplewicz.
Christopher D. Ahlers was on the brief for amicus curiae
Clean Air Council supporting plaintiff-appellants and
supporting reversal of the decision below.
Ross R. Fulton, Attorney, Federal Energy Regulatory
Commission, argued the cause for appellees. With him on the
brief were James P. Danly, General Counsel, and Robert H.
Solomon, Solicitor.
2
Jeremy C. Marwell argued the cause for intervenor-
appellee PennEast Pipeline Company, LLC. With him on the
brief were Michael B. Wigmore, Matthew X. Etchemendy,
Frank H. Markle, and James D. Seegers.
Melissa N. Patterson, Attorney, U.S. Department of
Justice, argued the cause for amicus curiae United States of
America. With her on the brief were Chad A. Readler, Acting
Assistant Attorney General, Jessie K. Liu, U.S. Attorney, and
Scott R. McIntosh, Attorney.
Erika Maley and William R. Levi were on the brief for
amici curiae Interstate Natural Gas Association of America
supporting appellees.
Before: GRIFFITH and KATSAS, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge KATSAS.
KATSAS, Circuit Judge: This appeal presents broad due-
process challenges to how the Federal Energy Regulatory
Commission conducts business. By statute, FERC is required
to recover its costs from regulated industries. The appellants
contend that this improperly incentivizes the Commission to
approve new natural-gas pipelines, in order to ensure itself
future funding sources. The appellants also challenge FERC’s
use of tolling orders to meet its statutory deadlines for acting
on applications for rehearing.
I
The Natural Gas Act requires companies to obtain a
“certificate of public convenience and necessity” before
constructing facilities to transport natural gas in interstate
3
commerce. 15 U.S.C. § 717f(c)(1)(A). FERC must issue a
certificate to a qualified applicant if the proposed project is
“required by the present or future public convenience and
necessity,” subject to any reasonable terms and conditions
imposed by the Commission. Id. § 717f(e).
FERC, a Commission within the Department of Energy,
receives annual appropriations fixed by Congress. 42 U.S.C.
§ 7171(j). However, the Omnibus Budget Reconciliation Act
of 1986 (“Budget Act”) requires FERC to “assess and collect”
from the various industries that it regulates, including the
natural-gas industry, “fees and annual charges in any fiscal year
in amounts equal to all of the costs incurred by the Commission
in that fiscal year.” Id. § 7178(a)(1). These receipts must be
“credited to the general fund of the Treasury.” Id. § 7178(f).
A party “aggrieved by an order issued by the Commission
in a proceeding under” the Natural Gas Act may seek
rehearing. 15 U.S.C. § 717r(a). “Unless the Commission acts
upon the application for rehearing within thirty days after it is
filed, such application may be deemed to have been denied.”
Id. The aggrieved party then may seek judicial review, in the
court of appeals, “within sixty days after the order of the
Commission upon the application for rehearing.” Id. § 717r(b).
In 2015, intervenor PennEast Pipeline Co. sought a
certificate to build a 114-mile natural-gas pipeline running
through Pennsylvania and New Jersey. Appellants Delaware
Riverkeeper Network and its director Maya van Rossum
(collectively “Riverkeeper”) intervened to oppose the project.
In 2016, while FERC was still reviewing the proposal,
Riverkeeper filed a complaint seeking declaratory relief against
the Commission and its members. The complaint alleges that
FERC’s funding structure creates structural bias, in violation
of the Due Process Clause of the Fifth Amendment, by
4
incentivizing the Commission to approve new pipelines in
order to secure additional sources for its future funding. The
complaint also challenges the Commission’s use of tolling
orders to satisfy its 30-day deadline for acting on rehearing
applications. Those tolling orders grant rehearing for the
limited purpose of giving the Commission more time to
consider pending applications. In the meantime, the complaint
alleges, FERC routinely allows construction to proceed on
approved projects. According to Riverkeeper, this frustrates
judicial review, again in violation of the Due Process Clause.
After PennEast intervened as a defendant in the district
court, the Commission and PennEast moved to dismiss the
complaint. They argued that Riverkeeper had not identified
any liberty or property interest protected by the Due Process
Clause and that, in any event, FERC provides all the process
that is due. The district court agreed with both points and
dismissed the complaint for failure to state a claim. Del.
Riverkeeper Network v. FERC, 243 F. Supp. 3d 141 (D.D.C.
2017). This appeal followed.
II
Cases involving the Commission typically come to us as
petitions for review of final agency orders, not as appeals from
the district court. We therefore begin by explaining why this
case is properly before us.
In NO Gas Pipeline v. FERC, 756 F.3d 764 (D.C. Cir.
2014), this Court held that the judicial-review provision in the
Natural Gas Act does not apply to the kind of structural-bias
claim at issue here. We reasoned that such a claim “does not
target any aspect of FERC’s actual decision” in any individual
proceeding under the Natural Gas Act, but instead “centers
wholly on” the Budget Act. Id. at 769. Therefore, we
concluded, such a claim may be brought only in district court.
5
See id. We emphasized the “narrowness of our jurisdictional
holding,” and we distinguished structural-bias claims from
claims that a specific FERC decision “was tainted by actual
bias or some other improper motivation.” Id.
Under NO Gas Pipeline, Riverkeeper properly filed this
case in the district court. Its principal claim targets the Budget
Act’s funding mechanism rather than any individual decision
to award a certificate of public necessity. Therefore, the
Natural Gas Act does not channel judicial review directly to the
courts of appeals, and so the district court retained its federal-
question jurisdiction under 28 U.S.C. § 1331.
We also conclude that Riverkeeper established Article III
standing. Although FERC does not renew its standing
objections on appeal, Article III standing is an element of
subject-matter jurisdiction, so we must consider that issue
regardless. See Steel Co. v. Citizens for a Better Env’t, 523
U.S. 83, 94–95 (1998). As the district court explained, several
named members of the Delaware Riverkeeper Network—
including Ms. van Rossum—filed declarations alleging
aesthetic, recreational, and property injuries that they would
likely suffer if a specific, identified natural-gas pipeline were
approved by FERC and built. See 243 F. Supp. 3d at 150–51.
At this stage of the case, these unchallenged declarations
suffice to establish the individual standing of Ms. van Rossum
and the representational standing of the Network. See, e.g.,
Summers v. Earth Island Inst., 555 U.S. 488, 494 (2009); Nat’l
Ass’n of Home Builders v. EPA, 667 F.3d 6, 12 (D.C. Cir.
2011).
Finally, we conclude that Riverkeeper has a viable cause
of action. The Supreme Court has recognized an implied action
for prospective relief against allegedly unconstitutional actions
by federal officials, which FERC does not dispute extends to
6
it. See, e.g., Armstrong v. Exceptional Child Ctr., Inc., 135 S.
Ct. 1378, 1384 (2015); Free Enter. Fund v. Pub. Co.
Accounting Oversight Bd., 561 U.S. 477, 491 n.2 (2010).
Moreover, Congress has waived federal sovereign immunity
for claims seeking “relief other than money damages.” See 5
U.S.C. § 702; Trudeau v. FTC, 456 F.3d 178, 187 (D.C. Cir.
2006).
III
The Due Process Clause of the Fifth Amendment forbids
the federal government from depriving a person of “life,
liberty, or property, without due process of law.” To determine
whether Riverkeeper has stated a valid due-process claim,
“[w]e first ask whether there exists a liberty or property interest
of which a person has been deprived.” Swarthout v. Cooke,
562 U.S. 216, 219 (2011) (per curiam). If so, “we ask whether
the procedures followed … were constitutionally sufficient.”
Id. We review de novo the district court’s dismissal for failure
to state a claim, and we accept the complaint’s well-pleaded
factual allegations as true. Ralls Corp. v. Comm. on Foreign
Inv. in the U.S., 758 F.3d 296, 314 (D.C. Cir. 2014).
A
Riverkeeper seeks to ground its due-process claim in
environmental interests and in real-property interests created
under Pennsylvania law. We examine each in turn.
1
In 1971, the Pennsylvania Environmental Rights
Amendment inserted into the state constitution certain
protections for the environment. The Amendment states:
7
The people have a right to clean air, pure water, and
to the preservation of the natural, scenic, historic and
esthetic values of the environment. Pennsylvania’s
public natural resources are the common property of
all the people, including generations yet to come. As
trustee of these resources, the Commonwealth shall
conserve and maintain them for the benefit of all the
people.
Pa. Const. art. I, § 27. Riverkeeper contends that this right to
clean air, pure water, and preservation of the environment
creates a protected liberty or property interest as a matter of
federal due process. It further contends that this right
constrains FERC in its administration of federal law. The
district court rejected these contentions, as do we.
To begin, the Environmental Rights Amendment creates
no federally protected liberty interest. The Amendment bears
no relationship to the quintessential liberty interest—“freedom
from bodily restraint.” Bd. of Regents of State Colls. v. Roth,
408 U.S. 564, 572 (1972) (quotation marks omitted). Nor does
it protect activities that have been held to constitute federally
protected liberty interests, such as “the right of the individual
to contract, to engage in any of the common occupations of life,
to acquire useful knowledge, to marry, establish a home and
bring up children, to worship God according to the dictates of
his own conscience, and generally to enjoy those privileges
long recognized as essential to the orderly pursuit of happiness
by free men.” Id. (quotation marks and ellipses omitted).
Riverkeeper believes that “a healthy environment” is a
“necessary backdrop” for such rights to be “truly meaningful.”
Appellants’ Br. 23. Perhaps so, but that hardly suggests that
the right to a healthy environment can itself fairly be described
as a “liberty” interest. Under Roth, it cannot.
8
As for property interests, they “are not created by the
Constitution.” Roth, 408 U.S. at 577. Instead, “their
dimensions are defined by existing rules or understandings that
stem from an independent source such as state law.” Town of
Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005) (quotation
marks omitted). But despite these “state-law underpinnings,”
the question whether the asserted interest “rises to the level of
a ‘legitimate claim of entitlement’ protected by the Due
Process Clause” is ultimately one of “federal constitutional
law.” Id. at 756–57 (quoting Memphis Light, Gas & Water Div.
v. Craft, 436 U.S. 1, 9 (1978)).
The Supreme Court has established several guideposts
bearing on when a state-created right or benefit qualifies as
“property” for due-process purposes. For one thing, “‘a person
clearly must have more than an abstract need or desire’ and
‘more than a unilateral expectation of [the benefit]. He must,
instead, have a legitimate claim of entitlement to it.’” Town of
Castle Rock, 545 U.S. at 756 (quoting Roth, 408 U.S. at 577).
Even for entitlements, “[t]he hallmark of a protected property
interest is the right to exclude others,” which is “one of the most
essential sticks in the bundle of rights that are commonly
characterized as property.” Coll. Sav. Bank v. Fla. Prepaid
Postsecondary Educ. Expense Bd., 527 U.S. 666, 673 (1999)
(quotation marks omitted). Moreover, the Due Process Clause
does not protect rights that are vague or indeterminate—a
person cannot be “safely deemed ‘entitled’ to something when
the identity of the alleged entitlement is vague.” Town of
Castle Rock, 545 U.S. at 763. Furthermore, “an entitlement
must have ‘some ascertainable monetary value’ in order to
‘constitute a “property” interest’” for due-process purposes.
Roberts v. United States, 741 F.3d 152, 162 (D.C. Cir. 2014)
(quoting Town of Castle Rock, 545 U.S. at 766). Finally, courts
consider the extent to which the right “resemble[s] any
9
traditional conception of property.” Town of Castle Rock, 545
U.S. at 766.
Under these principles, the state-created right to clean air,
pure water, and preservation of the environment does not
qualify as a federally protected “property” interest.
Most importantly, the Environmental Rights Amendment
creates no right to exclude—or anything like it. To the
contrary, its first sentence vests the single “right” at issue
collectively in “[t]he people,” its second sentence confirms that
“Pennsylvania’s public natural resources are the common
property of all the people,” and its third sentence requires the
Commonwealth to conserve and maintain environmental
resources “for the benefit of all the people.” Pa. Const. art. I,
§ 27 (emphases added). Moreover, although the Supreme
Court of Pennsylvania has held that the Amendment is
judicially enforceable by private individuals, it has also
confirmed that the right the Amendment creates is shared
equally by all Pennsylvanians. See Penn. Envtl. Def. Found. v.
Pennsylvania, 161 A.3d 911, 931 (Pa. 2017); Robinson Twp. v.
Pennsylvania, 83 A.3d 901, 951 & n.39 (Pa. 2013) (plurality
opinion). In other words, no Pennsylvanian may exclude any
other from the right to clean air, pure water, and a preserved
environment. So, the Amendment protects not private property
rights, but public goods. In that respect, it is like “the right that
we all possess to use the public lands”—which for due-process
purposes “is not the ‘property’ right of anyone.” Coll. Sav.
Bank, 527 U.S. at 673.
The Amendment is also too vague and indeterminate to
create a federally cognizable property interest. As the
Pennsylvania Supreme Court has acknowledged, the
Amendment articulates only “broad” and “relative” principles,
so “the courts generally defer to agency expertise in making a
10
factual determination whether the benchmarks [of the
Amendment] were met.” Robinson Twp., 83 A.3d at 949, 953.
To be sure, that Court also believes itself “equipped” to apply
and enforce the Amendment in individual cases. See id. at 953.
But for federal due-process purposes, the question whether the
Amendment is too vague to create a property right is a federal
constitutional question. See Town of Castle Rock, 545 U.S. at
763. In this case, moreover, Riverkeeper invokes nothing more
than the bare text of the Amendment. Without further guidance
on what constitutes sufficiently clean air, sufficiently pure
water, and sufficient preservation of natural, scenic, historic
and aesthetic environmental values, we cannot say that a FERC
decision to authorize the construction of a natural-gas pipeline,
as required by its view of the public convenience and necessity,
implicates any federally protected property right. 1
The Amendment is unlike traditional or even new property
in yet other respects. For one thing, the right to a preserved
environment cannot be bought or sold—and thus has no
“ascertainable monetary value,” as the Supreme Court’s
“property-as-entitlement cases have implicitly required.”
Town of Castle Rock, 545 U.S. at 766 (quotation marks
omitted). Moreover, environmental quality depends on many
factors beyond Pennsylvania’s control—including acts of other
governments, acts of millions of private parties, and natural
phenomena ranging from catastrophic events to ordinary
weather patterns. Whereas fair adjudicatory process can
reliably protect state-created entitlements to a promised
1
Riverkeeper’s reliance on the bare text of the Amendment
distinguishes this case from In re Application of Maui Electric Co.,
408 P.3d 1 (Haw. 2017). There, the plaintiffs invoked much more
detailed state environmental statutes to support their due-process
claim, see id. at 13, and the Hawaii Supreme Court rooted its decision
in those statutes rather than in some “freestanding interest in general
aesthetic and environmental values,” id. at 16.
 11
government job, Roth, 408 U.S. at 576–77, or a promised
government welfare benefit, Goldberg v. Kelly, 397 U.S. 254
(1970), it cannot guarantee a well-preserved environment.
Finally, the rights created by the Amendment bind only
state and local government, not the federal government. The
Amendment appears within the Declaration of Rights of the
Pennsylvania Constitution, which sets forth a “social contract”
between the Commonwealth of Pennsylvania and its people.
See Robinson Twp., 83 A.3d at 947. The Declaration’s various
provisions—many of which track the federal Bill of Rights—
thus confer rights specifically as against the Commonwealth.
See, e.g., Pa. Const. art. I, § 3 (religious freedom); id. art. I, § 6
(trial by jury); id. art. I, § 7 (freedom of press and speech).
Riverkeeper cites no precedent even remotely suggesting that
these state constitutional rights purport to impose substantive
obligations on the federal government. To the contrary, the
Pennsylvania Supreme Court repeatedly has described the
Declaration of Rights as limiting only the power of “state
government,” Robinson Twp., 83 A.3d at 948; see also Penn.
Envtl. Def. Found., 161 A.3d at 930–31, and the Amendment
likewise as binding only “state or local” government, Robinson
Twp., 83 A.3d at 952; see also Penn. Envtl. Def. Found., 161
A.3d at 931.
For all of these reasons, we conclude that the
Environmental Rights Amendment does not create federally
protected liberty or property interests, much less ones that
FERC could infringe.
2
Riverkeeper also invokes the interests of its members who
own real property along the path of proposed pipelines. Once
FERC issues a certificate of public convenience and necessity,
the pipeline company may acquire the necessary rights-of-way
12
through eminent domain. 15 U.S.C. § 717f(h). If and when
that happens, the landowner will be entitled to just
compensation, as established in a hearing that itself affords due
process. See, e.g., Walker v. City of Hutchinson, 352 U.S. 112,
115 (1956). But the Natural Gas Act ensures such a hearing,
in providing that any eminent-domain action “shall conform as
nearly as may be with the practice and procedure in similar
action or proceeding in the courts of the State where the
property is situated.” 15 U.S.C. § 717f(h). Due process
requires no more in the context of takings where, despite
Riverkeeper’s suggestion to the contrary, there is no right to a
pre-deprivation hearing. See, e.g., Bailey v. Anderson, 326
U.S. 203, 205 (1945); Presley v. City of Charlottesville, 464
F.3d 480, 489–90 (4th Cir. 2006).
B
Regardless of whether any protected liberty or property
interests are implicated, the Commission is not a structurally
biased adjudicator, and its use of tolling orders is not facially
unconstitutional.
1
Riverkeeper’s structural-bias claim focuses on FERC’s
statutory obligation to recover its expenses from the industries
that it regulates. In NO Gas Pipeline, we described that claim
as “novel, and even creative.” 756 F.3d at 768. Today, we
reject it.
Like most federal agencies, FERC receives annual
appropriations from Congress. See 42 U.S.C. § 7171(j);
Consolidated Appropriations Act, 2018, div. D, tit. III, 132
Stat. 348, 527. But the Budget Act requires FERC to “assess
and collect” from the various industries that it regulates “fees
and annual charges in any fiscal year in amounts equal to all of
13
the costs incurred by the Commission in that fiscal year.” 42
U.S.C. § 7178(a)(1). These receipts must be “credited to the
general fund of the Treasury.” Id. § 7178(f). As the fees are
received, FERC’s appropriation is reduced until the net
expenditure from the Treasury is “not more than $0.” See, e.g.,
Consolidated Appropriations Act, 2018, 132 Stat. at 527.
FERC also must make yearly adjustments in its assessments to
“eliminate any overrecovery or underrecovery of its total
costs.” 42 U.S.C. § 7178(e).
Due process requires an “impartial and disinterested”
adjudicator, Marshall v. Jerrico, Inc., 446 U.S. 238, 242
(1980), and prohibits structures that might lead the adjudicator
“not to hold the balance nice, clear and true,” Tumey v. Ohio,
273 U.S. 510, 532 (1927). Three Supreme Court decisions—
each involving a mayor’s court—elaborate on this doctrine.
In Tumey, the Court held that an adjudicator cannot have
“a direct, personal, substantial pecuniary interest” in reaching
a particular outcome. 273 U.S. at 523. There, the mayor had
executive duties and could also try certain crimes and fine those
whom he found guilty. See id. at 519, 533. Part of each fine
supplemented the mayor’s salary, and part was deposited into
the village’s general fund, over which the mayor had
significant control. See id. at 518–21, 532–33. The Court held
that the mayor had impermissible personal and official interests
in securing convictions, which would supplement both his
individual income and his government budget. Id. at 523, 535.
On the opposite end of the spectrum is Dugan v. Ohio, 277
U.S. 61 (1928). There, the mayor served as one of five
members of a city commission, and his individual duties were
judicial but not executive. See id. at 63. Fines were deposited
into the same general fund from which the mayor’s salary was
paid, but the Court stressed that the salary itself was “not
14
dependent on whether he convicts in any case or not.” Id. at
65. Moreover, because the mayor individually lacked any
executive duties, he had no direct incentive to build up the fund.
Id. at 64–65. Finally, although the city commission on which
the mayor served set his salary and itself had executive duties,
those connections to the mayor’s “fines as a judge” were too
“remote” to violate due process. See id. at 65.
Ward v. Village of Monroeville, 409 U.S. 57 (1972),
involved an intermediate situation—a mayor who individually
performed both executive and judicial functions, but whose
salary did not depend on fines from convictions. Id. at 57–58.
The revenue from the fines did constitute a “substantial portion
of the municipality’s funds.” Id. at 59. Focusing on the
mayor’s “executive responsibilities for village finances,” the
Court held that this structure created an impermissible
incentive for the mayor “to maintain the high level of
contribution from [his] court.” Id. at 60.
This case is controlled by Dugan. Here, as there, the
adjudicator does not control the funds collected—FERC’s fees
and charges are “credited to the general fund of the Treasury,”
42 U.S.C. § 7178(f), not placed into its own coffers. Moreover,
the Commission’s budget, like the mayor’s salary in Dugan, is
fixed by a distinct legislative body. As explained above,
Congress sets FERC’s annual appropriation, see id. § 7171(j),
and it is a criminal offense for agency officials to spend even
one penny more, see 31 U.S.C. §§ 1341(a)(1)(A), 1350.
Moreover, whereas the mayor in Dugan could have increased
the city’s revenues by adjudicating more convictions, FERC
can do nothing analogous, because Congress has specified the
total amount it is to charge: Regardless of how many pipelines
FERC may approve, it “shall” charge, for each year, a total
amount “equal to all of the costs incurred by the Commission
in that fiscal year.” Id. § 7178(a)(1). Likewise, whereas the
15
mayor in Dugan sat on the five-member body that fixed his
salary and exercised control over incoming fines, see 277 U.S.
at 65, FERC commissioners enjoy no comparable degree of
influence over Congress. In light of Dugan, FERC’s funding
structure is clearly constitutional.
Riverkeeper worries about long-term incentives: the more
pipelines that FERC approves in the present, the greater its
ability to seek larger appropriations from Congress in the
future. But similar theoretical concerns existed in Dugan,
where the mayor could have sought future raises based on the
amount of revenue that he had already secured for the city
through fines. Yet the Court deemed it dispositive that (i) the
mayor’s salary was not directly linked to individual fines and
(ii) the mayor did not directly control the revenue generated by
those fines. See id. at 64–65. And as explained above, this case
is even easier, given a yearly reimbursement amount not tied to
individual pipeline approvals, as well as a greater degree of
separation between FERC and Congress.
Finally, Riverkeeper cites individual instances of alleged
bias to support its view that the Commission has succumbed to
temptation. Yet, Riverkeeper is not bringing a claim of actual
bias in any particular case—and indeed could not have done so
here. See NO Gas Pipeline, 756 F.3d at 769. And its individual
allegations of actual bias have little if any bearing on whether
the funding mechanism itself establishes an unconstitutional
structural bias.
For these reasons, we reject Riverkeeper’s due-process
challenge to the Commission’s funding mechanism.
2
Riverkeeper raises a separate due-process challenge to the
Commission’s use of tolling orders to satisfy its deadlines for
16
acting on rehearing applications. The Natural Gas Act provides
that unless FERC “acts upon [an] application for rehearing
within thirty days after it is filed, such application may be
deemed to have been denied.” 15 U.S.C. § 717r(a). According
to Riverkeeper, FERC regularly fails to rule on the merits of
rehearing applications within 30 days, issues tolling orders that
extend their pendency indefinitely, and allows pipeline
construction to proceed in the meantime, thereby preventing
judicial review until it is too late.
We have long held that FERC’s use of tolling orders is
permissible under the Natural Gas Act, which requires only that
the Commission “act upon” a rehearing request within 30 days,
15 U.S.C. § 717r(a), not that it finally dispose of it. See Cal.
Co. v. FPC, 411 F.2d 720, 722 (D.C. Cir. 1969) (per curiam);
accord Kokajko v. FERC, 837 F.2d 524, 526 (1st Cir. 1988);
Gen. Am. Oil Co. of Tex. v. FPC, 409 F.2d 597, 599 (5th Cir.
1969). To prevail on its claim here, Riverkeeper would need
to show that FERC’s statutorily authorized practice of taking
more than 30 days to finally dispose of a rehearing petition
violates due process in each and every instance, no matter the
reasons for taking more time, the complexity of the application,
or the amount of development allowed or blocked in the
interim. The Constitution imposes no such categorical rule,
and Riverkeeper makes no serious effort to contend otherwise.
Instead, Riverkeeper attempts to distinguish cases
upholding FERC’s use of tolling orders by describing allegedly
“egregious facts” of individual certification proceedings.
Reply Br. 27. However, we do not have before us the
constitutionality of any particular tolling order. Nor could we
in this case, as any final agency action in a certification
proceeding would be subject to review only on a petition for
review filed in the first instance in the court of appeals. See 15
U.S.C. § 717r(b); NO Gas Pipeline, 756 F.3d at 768–70.
17
Accordingly, any claim of unreasonable or unconstitutional
delay—or any other claim designed to preserve the integrity of
future judicial review in individual certification proceedings—
would lie in a mandamus action filed directly in the court of
appeals. See Telecomms. Research & Action Ctr. v. FCC, 750
F.2d 70, 75–79 (D.C. Cir. 1984). Riverkeeper could pursue
such relief in an appropriate case, but it has not done so here.
IV
Because Riverkeeper’s due-process claims lack merit, we
affirm the district court’s judgment.
So ordered.