UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 1,
2014 Decided August
15, 2014
No. 12-1481
MINISINK RESIDENTS FOR ENVIRONMENTAL PRESERVATION
AND SAFETY, ET AL.,
PETITIONERS
v.
FEDERAL
ENERGY REGULATORY COMMISSION, RESPONDENT
MILLENNIUM PIPELINE COMPANY, L.L.C., INTERVENOR
Consolidated with 13-1018
On Petitions 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.
2
Aaron M. Streett argued the cause for intervenor. On the brief were Joseph Koury and
Ryan J. Collins.
Before: KAVANAUGH, MILLETT and WILKINS, Circuit Judges.
Opinion for the Court
filed by Circuit
Judge WILKINS.
WILKINS, Circuit Judge: Given the choice,
almost no one would want natural
gas infrastructure built on their block.
“Build it elsewhere,” most would say. The sentiment
is understandable. But given our
nation’s increasing demand
for natural gas (and other alternative energy sources), it is an inescapable fact that such facilities must be built somewhere. Decades ago, Congress decided to vest the Federal Energy
Regulatory Commission with responsibility for overseeing the construction and expansion
of interstate natural
gas facilities. And
in carrying out that charge, sometimes
the Commission is faced with tough judgment calls as to where those facilities can and should
be sited. These petitions
present one such example.
In July 2012, the Commission approved a proposal
for the construction of a natural
gas compressor station
in the Town of Minisink, New York. Many local residents, hoping to thwart that result, banded together to fight the compressor station’s
development. They formed a
group called “Minisink
Residents for Environmental Preservation and Safety”
(“MREPS”) and mounted a vigorous,
but ultimately unsuccessful, campaign opposing
the project. Undeterred, MREPS and several of its individual members now petition
for our intervention. In doing so, they mainly argue that the Commission’s approval of the project was arbitrary and capricious, particularly given the existence
of a nearby alternative site they insist
is better than the Minisink locale
3
green-lighted by FERC. They also assail some of the Commission’s procedural calls along
the way. Though
we respect the concerns
they raise, we conclude that, as a legal matter, the Commission’s decisions were both reasonable and reasonably explained. Consequently, we deny the petitions
for review.
I.
We begin with a quick overview of the regulatory framework, before turning to the particulars
of these petitions.
A.
Congress enacted the Natural
Gas Act, ch. 556, 52 Stat. 821 (1938) (codified
as amended at 15 U.S.C. §§ 717-717z), with the principal
aim 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), and “protect[ing] consumers against exploitation at the hands of natural gas companies,” Fed. Power Comm’n v. Hope Natural
Gas Co., 320 U.S. 591, 610 (1944). Along
with those main objectives, there are also several
“‘subsidiary purposes’” behind the NGA’s passage, “includ[ing] ‘conservation, environmental, and antitrust’ issues.” Pub. Utils. Comm’n of Cal. v. FERC, 900 F.2d 269, 281 (D.C. Cir. 1990) (quoting NAACP, 425 U.S. at 670 &
n.6).
The Act vests FERC with broad authority to regulate
the transportation and sale of natural gas in interstate commerce.
15 U.S.C. §§ 717b, 717c; see also Schneidewind v. ANR Pipeline Co.,
485 U.S. 293, 301 (1988) (“FERC exercises authority over the rates and facilities of natural
gas companies used in [interstate] transportation and sale.”).
To achieve
this
4
objective, Congress equipped the Commission with a variety
of regulatory tools,
one of which captures the focus of our review today.
Under Section 7(c) of the Act, before an applicant can construct or extend an interstate facility
for the transportation of natural
gas, it must obtain a “certificate of public convenience and necessity” from the Commission.
15 U.S.C.
§ 717f(c)(1)(A); Dominion Transmission, Inc. v. Summers, 723 F.3d 238, 240 (D.C. Cir. 2013). The statute provides
that a certificate “shall be issued to any qualified applicant” upon a finding 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.” 15 U.S.C. § 717f(e). FERC may, in issuing such a certificate, attach “such reasonable terms and conditions as the public convenience and necessity may require.” Id.; Murray Energy Corp. v.
FERC, 629 F.3d 231, 234 (D.C.
Cir. 2011).
The Commission has issued a policy statement outlining
the criteria it considers in reviewing
such certificate applications. 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) (“Certificate Policy Statement”). The Commission will first confirm “whether the project can proceed without subsidies from the[] existing
[pipeline’s] customers.” Id., 88 FERC ¶ 61,227,
at 61,745. Then, it will “balanc[e] the public benefits against
the adverse effects
of the project.” Id., 90 FERC ¶ 61,128,
at 61,396. FERC will approve a project only “where the public benefits
of the project outweigh the project’s
adverse impacts.”
Id.; see also Fla. Gas Transmission Co. v. FERC, 604 F.3d 636, 649 (D.C.
Cir. 2010) (Brown,
J.,
concurring in part
and
5
dissenting in part) (summarizing the factors
examined under FERC’s Certificate Policy Statement).1
In conjunction with the certificating process,
the Commission must also complete
an environmental review of the proposed
project, as mandated by the National
Environmental Policy Act (NEPA),
42 U.S.C. §§ 4321-4370h. E.g.,
Midcoast Interstate Transmission, Inc. v. FERC, 198 F.3d 960, 967 (D.C. Cir. 2000). Simply
stated, the Commission’s NEPA obligation requires that it “‘identify the reasonable alternatives to the contemplated action’ and ‘look hard at the environmental effects of [its] decision[].’” Id. (quoting Corridor H Alternatives, Inc. v.
Slater, 166 F.3d 368, 374 (D.C.
Cir. 1999)) (alterations in original).
B.
For years, Millennium Pipeline Company (“Millennium”) has owned and operated
a natural gas pipeline
system extending across much of New York’s southern border. In July 2011, seeking to expand its service capacity,
Millennium applied to the Commission for a certificate of public
convenience and necessity that would allow for the
1 The “public benefits” the Commission examines “could include, among other things,
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.” Certificate Policy Statement, 90 FERC ¶ 61,128, at 61,396.
On the other side of the scale, the potential “adverse effects” the Commission will consider are “the effects on existing
customers of the applicant, the interests of existing
pipelines and their captive
customers, and the interests of landowners and the surrounding community, including environmental impacts.” Id.
6
construction and operation of a natural gas compressor station along its existing pipeline. Joint Appendix
(“J.A.”) 304-19. The proposed site for the project was located in the Town of Minisink,
New York.
As explained in its application to FERC, the aim of Millennium’s project was twofold. First, the new station
would allow Millennium to increase
natural gas deliveries to its eastern interconnection by about 225,000 additional dekatherms per day. Second, the compressor would enable bi-directional gas flow on an existing segment
of Millennium’s pipeline.
J.A. 305. The project’s footprint, as proposed by Millennium, would consist of: (a) two 6,130- horsepower natural gas-fired compressor units,
to be housed in a newly built structure; (b) an additional 1,090 feet of pipe connecting the compressor station to the existing
pipeline; (c) and several ancillary
facilities, including a new mainline valve,
an
access driveway,
a station control/auxiliary building, intake and exhaust
silencers, and a filter-separator with a liquids tank. The compressor station was to be sited on a small part of a much larger, 73.4-acre parcel—a parcel acquired
and owned by Millennium. See J.A.
305-07. We refer to Millennium’s
proposal as the “Minisink Project.”
Consistent with agency regulations, notice of the proposed
Minisink Project
was published in the Federal
Register. See 76
Fed. Reg. 46,786 (Aug. 3, 2011). Around
the same time, the Commission issued a “Notice
of Intent to Prepare an Environmental Assessment,” which was sent to a range of interested stakeholders, including lawmakers, potentially affected landowners, and environmental and public-interest groups. In the months following, Millennium sponsored a community meeting at the Minisink Town Hall so that those interested could learn more about the proposal
and voice their views.
FERC also hosted its own meeting in
7
Minisink concerning the proposal.
As might be expected,
the Minisink Project sparked its fair share of local interest; during the review process, the Commission received hundreds of verbal and
written comments. See J.A.
8-9.
Most significantly for our purposes,
several residents urged Millennium and the Commission to pursue
a nearby alternative site for the compressor station—what came to be known as the “Wagoner
Alternative.” Under the Wagoner Alternative, Millennium would construct a smaller,
5,100- horsepower compressor station
directly adjacent to its
existing Wagoner Meter Station, a site located
along the pipeline
about seven miles northwest
of Minisink. J.A. 10-11. This alternative, its proponents insisted, was far better suited for the project,
in large part because it was less
residentially dense than the site proposed
in Minisink. See, e.g., J.A. 347-
50. But it came with a catch: Its implementation
would require the replacement of a 7-mile segment of pipe along the pipeline—a segment the parties
call the “Neversink Segment” due to its crossing
of the Neversink River; according
to Millennium, no such upgrade would be required by the Minisink Project. See J.A.
390-91. Reacting to commenters who were pushing
the Wagoner Alternative, FERC sent notice to landowners within the vicinity of the Wagoner Meter Station site and along the Neversink Segment, inviting
their input and comments
on the concept. J.A. 372-74.
The Commission incorporated the feedback
it received into its review
of Millennium’s proposal.
FERC released its Environmental Assessment (“EA”) for the Minisink
Project several months
later. See J.A. 428-97. Along with its detailed
evaluation of the project’s likely
environmental impacts—on water resources, vegetation and wildlife, air quality
and noise, and more—the
EA also analyzed several
alternatives to
Millennium’s proposal,
8
including an in-depth comparison between the Minisink
Project and the Wagoner Alternative. J.A. 474-89. The EA did identify some positive environmental upshots
associated with the Wagoner
Alternative, see J.A.
484-89, but, on balance, the assessment found that the Minisink Project was environmentally preferable,
due principally to the negative environmental consequences that would flow from an upgrade of the Neversink Segment, J.A. 489 (“[T]he greater environmental issues and landowner impacts of replacing
the Neversink Segment
cause us to conclude
that the Wagoner
Alternative does not provide a significant environmental advantage over the proposed project.”). Overall,
the EA concluded
that, so long as Millennium implemented certain mitigation measures, the Minisink Project was expected to have no significant
environmental impact.
J.A 490-94.
After receiving and reviewing
a slew of comments concerning the EA, FERC ruled on Millennium’s application in July 2012. By a 3-2 majority,
the Commission voted to issue a certificate of public convenience and necessity
to Millennium, allowing
the Minisink Project to move forward.
Millennium Pipeline Co., L.L.C., Order Issuing Certificate, 140 FERC ¶ 61,045 (July 17, 2012) (“Certificate Order”) (reprinted
at J.A. 2-50).
The Commission began its analysis
by applying the criteria set forth in its Certificate Policy Statement, first finding the threshold
factor satisfied—that the project
would not require
any subsidization from Millennium’s existing customers. Certificate Order, ¶¶ 11-12. From there, the Commission weighed the project’s
benefits (increased capacity
to customers in the high-demand northeast market, among others)
against what FERC viewed as its “minimal
adverse effect[s],” both market- and environmentally-focused. In
the
end, the Commission concluded that
“the public
9
convenience and necessity require[d] approval of Millennium’s proposal,” subject to certain
environmental conditions. Id.
¶¶ 13-15.
The Commission undertook an extensive
environmental analysis in its order, leaning heavily on the results of the EA. With respect to the Wagoner Alternative, in particular, the Commission explained as follows:
The EA evaluated several system and
aboveground site alternatives, and thoroughly compared the Wagoner
Alternative to Millennium’s proposed Minisink
Compressor Station. . . . Ultimately, the EA concludes
that although there are certain advantages to the Wagoner Alternative (primarily, its greater
distance from the nearest noise-sensitive areas and the lack of residences within 0.5 mile of the compressor site), the greater
environmental issues
and landowner impacts of replacing
the Neversink Segment outweigh
those advantages, and as a whole result in the Wagoner
Alternative not providing
a significant environmental advantage over the proposed
project. The Commission concurs with
this assessment.
Certificate Order, ¶¶ 26-27. More broadly, the Commission also addressed
a variety of other comments
touching on environmental and landowner-related issues. At the end of the day, FERC adopted
the EA’s findings
and concluded that, so long as Millennium adhered to the parameters outlined in its application and complied with certain environmental mitigation measures, the Minisink Project was expected to have no significant
environmental impact.
Id. ¶ 83.
The Commission’s order also resolved a few procedural matters that had been raised. First, the Commission denied a request
for a full-blown evidentiary hearing for the Minisink
10
Project, concluding that the issues at stake could be adequately addressed on the written record. The Commission
also denied a request
to stay the proceedings due to a resident’s pending Freedom
of Information Act (FOIA)
request for documents from the Commission (generally seeking
certain hydraulic analyses and systems models that Millennium submitted to FERC during the application process). Id. ¶¶
84-87.
As noted, the Commission’s determination was not unanimous; the approval
of Millennium’s application drew two dissenting votes. At bottom,
both dissenters—Chairman Wellinghoff and Commissioner LaFleur—explained that, in their eyes, the Wagoner Alternative was a preferable alternative to the Minisink
Project, and that the Commission was wrong to conclude otherwise. See J.A.
41-47. In addition, Commissioner Clark issued a separate
concurrence, highlighting his view that, even if one truly thought
the Wagoner Alternative wrought lesser environmental impacts than the Minisink Project, so long as Minisink
was still considered “an acceptable site that produces
minimal adverse impacts,” it should still be approved because FERC need not limit its approval to sites with “the minimum impact.” J.A. 48 (second emphasis in original).
Following the Commission’s approval, MREPS and others sought rehearing, and the Commission denied those
requests through another
thorough order.
Millennium Pipeline Co., L.L.C., Order Denying and Dismissing Requests for Rehearing, Denying Request to Reopen and Supplement the Record, and
Denying Requests for Stay, 141
FERC ¶ 61,198 (Dec. 7, 2012) (“Reh’g Order”) (reprinted at J.A. 52- 96). Therein,
after considering and rejecting
various challenges to its initial decision, FERC reaffirmed its certificate approval for the Minisink Project. Additionally,
11
the Commission denied a request
to reopen and supplement the record
to include a study prepared
by Mr. Richard Kuprewicz, who we are told is an “industry
expert on pipeline
engineering and safety.” Pet’rs’ Br. at 22-23.
The Commission reached that result
after determining that “Mr. Kuprewicz’s study provide[d] no basis for reversing
[its] approval of the Minisink
Project.” Reh’g Order, ¶¶ 75-80.
Finally, FERC denied a request
to stay construction on the Minisink
Project pending judicial review. Id. ¶¶ 81-83.2 Chairman Wellinghoff and Commissioner LaFleur again dissented, jointly reiterating their view that the Wagoner Alternative still stood superior to the Minisink
Project. See
J.A. 95-96.
In January 2013, Minisink
resident Michael Mojica filed a separate
request for rehearing with FERC, focusing
on (1) the Commission’s refusal to reopen the record to consider
Mr. Kuprewicz’s study, and (2) Mr. Mojica’s claimed inability
to timely obtain information he believed
necessary to oppose Millennium’s application (essentially the documents pursued via the aforementioned FOIA request). The Commission, joined this time by Chairman Wellinghoff and Commissioner LaFleur, unanimously denied the rehearing
request. Millennium Pipeline Co, L.L.C., Order Denying Rehearing, 142 FERC ¶ 61,077
(Jan. 31, 2013) (“Second Reh’g Order”) (reprinted at J.A. 99-106).
2 Before construction on the Minisink Project was complete, Petitioners twice sought emergency stays from this Court as well. On both occasions
we denied their requests.
In re Minisink Residents for Pres. of the Env’t and Safety, No. 12-1390
(D.C. Cir. Oct. 11, 2012) (denying motion for emergency
relief); Minisink Residents for Envtl. Pres. and Safety v. FERC, No. 12-1481
(D.C. Cir. Mar. 5, 2013) (denying
petition for stay during
pendency of these
proceedings).
12
Meanwhile, MREPS commenced proceedings before this Court. In December 2012, MREPS and some of its members filed a petition
seeking review of the Commission’s Certificate Order and Rehearing
Order (Case No. 12-1481).
Then, after his individual rehearing request was denied by FERC, Mr. Mojica separately petitioned for our review (Case No. 13-1018).3 Given the sweeping overlap of issues,
we consolidated the two petitions. We refer to MREPS and the various
individual petitioners, collectively, as
“Petitioners.”
While the briefing in these appeals
unfolded, Millennium completed construction of the Minisink
Project and placed the compressor
station into use in June 2013.
II.
Petitioners seek review of a final order of the Commission, which means
we have jurisdiction under 15
U.S.C. § 717r(b). E.g., Murray
Energy Corp., 629 F.3d at 235; Fla.
Gas Transmission Co., 604 F.3d
at 639.
We review the Commission’s orders, including
those approving certificate applications, under the familiar
arbitrary and capricious standard. B&J Oil & Gas v. FERC,
353 F.3d 71, 75-76 (D.C. Cir. 2004); Midcoast Interstate Transmission, 198 F.3d at 967. Our role is limited
“to assuring that the Commission’s
decisionmaking is reasoned, principled,
and
3 Originally, Mr. Mojica was also a party to the first-filed petition, but given the pendency of his
rehearing request before FERC at that time, he withdrew
from participation in the original case to avoid any problems under Tennessee
Gas. See Tenn. Gas Pipeline Co. v. FERC, 9 F.3d 980, 980-81 (D.C. Cir. 1993) (“It is well-established that a party may not simultaneously seek both agency reconsideration
and
judicial review
of an agency’s order.”).
13
based upon the record.”
Am. Gas Ass’n v. FERC,
593 F.3d 14, 19 (D.C. Cir. 2010); Penn. Office of Consumer Advocate v. FERC, 131 F.3d 182, 185 (D.C. Cir. 1997).
We must
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).
In so doing, we “cannot
substitute [our] judgment
for that of the Commission.” Nat’l Comm. for the New River, Inc. v. FERC, 373 F.3d 1323, 1327 (D.C.
Cir. 2004). All the
while, we remain mindful that “[t]he grant[] or denial of a 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); accord Cal. Gas Producers
Ass’n v. Fed. Power Comm’n, 383 F.2d 645, 648
(9th Cir. 1967).
*
*
*
As a threshold matter, and even though neither FERC nor Millennium
contests our power to entertain
these petitions, we have independently assured ourselves that we are presented with a justiciable controversy. While the Minisink
Project is now finished and functional, the petitions
under review are not moot because Petitioners, through their written
submissions to this Court and to the Commission, assert that the compressor’s operation continues to harm their aesthetic, health, and property
interests. See Moreau v. FERC, 982 F.2d 556, 566 n.4 (D.C. Cir. 1993). For much the same reasons,
we are satisfied
that Petitioners have suffered
injuries
sufficient for Article III standing. Id. at 565. With this much established,
we turn to the merits of Petitioners’ arguments.4
4 Our analysis on these points does not rest in any way on the online video submission
referenced in Petitioners’ brief. See Pet’rs’
14
A.
In urging us to upend FERC’s approval of the Minisink
Project, Petitioners mount several
lines of attack.
Chief among them is their argument
that the Commission failed to afford due consideration to the Wagoner Alternative, which Petitioners insist was undeniably superior to the Minisink Project—in their eyes, “economically, environmentally, and operationally” superior. See Pet’rs’ Br. at 6. Specifically, Petitioners claim that this alleged
failure both violated
the Commission’s obligations under Section 7 of the NGA, and represented a misapplication of the Commission’s own Certificate Policy Statement. We
disagree.
We do agree with Petitioners that the Commission was obligated to consider,
as part of its certificating process under the NGA, reasonable alternatives to the project proposed by
Br. at 5, 27-28. A picture
may be worth a thousand words in some contexts,
but extra-record video clips cannot substitute for proper briefing. Where a party’s standing
is not apparent from the agency
record, our rules require
that “the brief . . . include
arguments and evidence establishing the claim of standing.” D.C. CIRCUIT RULE 28(a)(7) (emphasis added). Petitioners’ choice to use “Video Testimonials” skirts this requirement, and if adopted more broadly, could wreak havoc on the procedural controls governing appeals before this Court, such as word limits, briefing schedules, and the like. And this is without even considering the specific failings associated with Petitioners’ video account. For one, there is no indication that the individuals it portrays are under oath, so their remarks
are not even evidence.
Moreover, Petitioners do not direct us to any particular segment of the video
they deem relevant, whether through
a pinpoint citation
or otherwise; instead, they expect us to review
the entirety of the
18-minute recording—which, it bears noting, spans more time than their counsel was allotted at oral argument—to discern
the elements of standing.
15
Millennium. See, e.g., N. Natural Gas Co. v. Fed. Power Comm’n, 399 F.2d 953, 973 (D.C. Cir. 1968) (“[T]he duty
imposed upon the Commission by Section
7 of the Natural
Gas Act is not merely to determine which of the submitted applications is most in the public
interest, but also to give proper consideration to logical alternatives which might serve the public interest better than any of the projects
outlined in the applications.”); accord
Citizens for Allegan
Cnty., Inc. v. Fed. Power Comm’n, 414 F.2d 1125, 1133 (D.C. Cir. 1969).
The trouble with Petitioners’ theory, though, is that the Commission satisfied this obligation here. Based on our assessment of the record, we are convinced
that the Commission amply considered alternatives to the Minisink
Project, devoting especially thorough attention to the Wagoner Alternative favored
by
Petitioners.
For one, FERC’s Certificate Order unmistakably outlines the Commission’s exploration of the Wagoner
Alternative as an alternate possibility for Millennium’s compressor station. See Certificate Order, ¶ 26 (“Numerous comments received during scoping
also requested that the Commission evaluate alternatives to the proposed
action . . . . The EA evaluated several system and aboveground site alternatives, and thoroughly compared the Wagoner
Alternative to Millennium’s proposed Minisink Compressor Station.”). In keeping
with the recommendations set out in the EA, however, the Commission concluded that the more significant environmental impacts associated with the Wagoner
Alternative—mostly due to improvement of the Neversink Segment—rendered that option less preferable than the proposed
Minisink Project.
Id. ¶ 27 (summarizing some of the
perceived environmental downsides
to
the Wagoner
16
Alternative).5 The same holds
true with respect to the Rehearing Order, wherein the Commission again walked through its comparison of the Minisink
Project and the Wagoner
Alternative. Reh’g
Order, ¶¶ 66-67. Based on that comparison, the Commission reiterated its view that “the selection
of the Minisink [Project]
as opposed to the Wagoner Alternative
is eminently reasonable.” Id. ¶ 67.
Furthermore, Petitioners seem to overlook
the fact that, once the Wagoner Alternative surfaced, the Commission took the additional (and, from what we understand, relatively unusual) step of issuing
a supplemental notice before completing its Environmental Assessment. Therein, the Commission specifically flagged its consideration of the Wagoner Alternative, inviting
feedback and
input from nearby residents and other potentially impacted parties.
See
J.A. 372-74;
J.A. 373 (“The Commission
wants to ensure that
5 For instance, the Commission explained
as follows:
·
The Wagoner Alternative would impact ten times more land acreage
(112.4) than the Minisink Project (10.6);
·
The Wagoner Alternative would require the clearing of more trees and the conscription of more agricultural land than the
Minisink Project;
·
The Wagoner Alternative would necessitate the placement of pipeline
across eleven wetlands and twelve waterbodies, raising complications not extant in the Minisink
Project; and
·
The Wagoner Alternative had the potential
to impact five special
status species, as opposed
to one through
the Minisink Project.
Certificate Order, ¶¶ 26-27. FERC’s Certificate Order also incorporated the EA itself, which goes through its own relatively detailed
comparison between the two proposals. See J.A.
484-89.
17
all potentially affected landowners for the [Wagoner]
alternative have the opportunity to participate in the environmental review process. . . . You are encouraged to become
involved in this process and provide your specific comments or concerns
about Millennium’s proposal
and the [Wagoner]
alternative described above.”) In view of all of this, it seems clear that FERC duly considered the Wagoner
Alternative (and other alternatives), and cogently explained
its rationale in finding the Minisink Project properly approved under the NGA. We would be hard-pressed to read the record otherwise.
In arguing to the contrary,
Petitioners marshal only one meaningful theory in their favor. They claim that the Commission’s analysis was flawed because Millennium either planned or needed to upgrade the Neversink Segment all along. In other words, according
to Petitioners, even if Millennium moved forward with the Minisink Project (and not the Wagoner Alternative), it still had plans to replace the Neversink
Segment in the very near
future. So the Commission’s decision to account
for the environmental impacts of a Neversink upgrade only in connection with the Wagoner Alternative and not the Minisink
Project, Petitioners tell us, was unreasonable and misguided. E.g., Pet’rs’
Br. at 32 (“Had the Commission compared a Minisink/Neversink project to a Wagoner/Neversink upgrade, the Wagoner
alternative would have emerged as the superior choice.”). We reject
their premise.
This argument effectively hinges on an ambiguous
reference in one PowerPoint slide
that Petitioners uncovered through an internet search in the midst of the agency proceedings—a document
Petitioners generously refer to as
18
the “Currie
Report.”6 This
document, Petitioners surmise, proves that the construction of a new compressor station at Minisink
was only Millennium’s first step in a multi-phase expansion project, part of which was destined
to include a Neversink upgrade all along. Notably, Petitioners made this very same argument
to the Commission, and the Commission found it unsubstantiated. Rather, the Commission read the “Currie
Report” as “merely
. . . a marketing document,” and found that, as a factual matter, it did not evince “an intent by Millennium to pursue an integrated, three-phase expansion
of its system,” nor “any
firm decision by Millennium as to future construction,” as had been suggested. Reh’g
Order, ¶ 32
n.41. As to this factual
determination, FERC’s findings are “conclusive” if “supported by substantial
evidence,”
15
U.S.C. § 717r(b); Colo.
Interstate Gas Co. v. FERC,
599 F.3d 698, 704 (D.C. Cir. 2010)—a standard, we have stated, that “requires more than a scintilla, but can be satisfied by something less than a preponderance of the evidence,” FPL Energy Me. Hydro LLC v. FERC, 287 F.3d 1151, 1160 (D.C. Cir. 2002).
On this record,
the Commission’s finding falls comfortably within that range. We thus accept
FERC’s conclusion that the “Currie
Report” does not establish
any firm present
or future plans by Millennium to upgrade
the
6 Although never clearly explained, Petitioners seem to call this the “Currie Report” because they believe the PowerPoint presentation was prepared
by an individual named Sean Currie, who is identified in at least one FERC filing as Millennium’s Manager of Capacity
Optimization. See J.A. 126
n.77.
7 Petitioners say we should accord FERC’s factual findings no deference
because it was “biased” in favor of Millennium’s application.
See Pet’rs’ Br. at 7, 41. In support, Petitioners point to an excerpted portion of FERC’s Rehearing
Order stating, in part, that “there is no incentive for a project
sponsor to present
an application that cannot meet our standards for approval.” Pet’rs’
19
In making this argument,
Petitioners lean heavily on our decision
in City of Pittsburgh v. Federal Power Commission, 237 F.2d 741 (D.C. Cir. 1956). But that decision cannot bear the weight Petitioners wish. In City
of Pittsburgh, we reviewed the issuance of a certificate of public convenience and necessity
allowing a natural gas supplier
to abandon service
on one pipeline and to transfer
that load to another
pipeline operating
below capacity. In the course
of contesting the Commission’s order, a group of petitioners argued that the abandonment would result
in rate increases
associated with future expansions—increases that could be avoided, those petitioners said, if the supplier maintained service on the pipeline it sought
to abandon. After review, this Court set aside the order, largely based on the Commission’s failure to consider
the effects of abandonment on the pipeline’s future expansion. Id. at 750 (“[The Commission] persistently closed its eyes even to the existence of the problem
of future expansion.”). Seizing on that holding,
Petitioners insist
it
Br. at 7 (quoting Reh’g Order, at ¶ 45) (emphasis by Petitioners). We could see
how these remarks might give
Petitioners pause. After reading
that applicants have “no incentive” to pursue
proposals that cannot secure approval, it is conceivable that one might come away thinking
the Commission has a thumb on the scale for industry applicants. This is hardly the image our federal
regulators should be projecting to the American public. But as another recent decision from this Court explained
in turning aside a similar argument, “[t]he fact that [applicants] generally succeed in choosing
to expend their resources
on applications that serve their own financial interests does not mean that an agency which recognizes merit in such applications is biased.” NO Gas Pipeline
v. FERC, No. 12-1470, slip op. at 10 (D.C. Cir. July 1, 2014). This logic holds true here, too.
Though FERC’s comments were arguably clumsy, it would require
quite a leap on our part to equate
its statements with prejudgment.
20
applies equally to the facts of their case because FERC glossed over and ignored
the possibility of a future Neversink Segment replacement. For at least
two reasons we can see, however,
City of Pittsburgh finds
no application here.
First, in City of Pittsburgh, it was clear and unmistakable that the pipeline
intended to expand service in the future. See id. at 751 (“That Texas Eastern
would soon move to expand its gas deliveries
was apparent throughout the [Commission’s] proceeding.”); id.
at 752 (“The record amply shows Texas Eastern’s
intention to apply for authority to expand its capacity
and its sales.”).
Here, on the other hand, the Commission examined the record—including the so-called
“Currie Report”—and found no concrete
indication that Millennium intended, then or in the future,
to upgrade the Neversink Segment. So the evidence of “future expansion” is a far cry from what we were presented with in City of Pittsburgh. Second, and
perhaps more fundamentally, the shortcoming we took issue with in City of Pittsburgh was the Commission’s refusal to examine the effects of future expansion
altogether; the hearing examiner
would not permit any questioning or inquiry into the supplier’s plans for expansion, nor would the examiner consider several company memoranda that supposedly revealed such plans.
Id. at 750-
52. Here, in stark contrast, FERC unquestionably did consider
Petitioners’ theory
that Millennium planned (or needed) to upgrade
the Neversink Segment.
See Certificate Order, ¶¶ 65, 68; Reh’g Order, ¶¶ 25, 32-33,
47, 73 & n.41. It just disagreed
with their position that the prospect
of such a step was sufficiently certain to require
its environmental effects be taken into account in connection with the Minisink Project. Given this, we cannot say that the Commission “closed its eyes” to the issue of “future expansion”—here, the possible replacement of the Neversink Segment—as was the case in City of Pittsburgh.
237 F.2d at 750-52.
21
Given the foregoing, we have no basis to second-guess the Commission’s determination that Millennium had no firm plans to upgrade the Neversink Segment in the wake of the Minisink
Project. Petitioners also press this argument
with a slightly
different gloss, however. They argue that even if Millennium was not planning
to replace the Neversink Segment, circumstances would soon require
such a step nonetheless. Absent such an upgrade,
Petitioners assert, a “bottleneck” caused by the smaller-diameter pipe on the Neversink
Segment would preclude
Millennium’s pipeline from safely handling the volume,
pressure, and
speed that would be generated
by the Minisink Project. (For the most part, this theory relies on the aforementioned study prepared
by Mr. Kuprewicz.) We remain unmoved.
The Commission considered this argument,
too, and based on its assessment of the evidence, it again disagreed
with Petitioners on the facts. FERC found no evidence that the Minisink Project would necessitate, as a structural or safety matter, an upgrade of the Neversink
Segment. See Certificate Order, ¶ 68 (“Staff
independently evaluated the hydraulic
feasibility of the Minisink
Compressor Station and completed an engineering analysis of Millennium’s pipeline system . . . . [T]here is nothing
in the record to suggest that the operation of the Minisink
Compressor Station will compromise the safety
of the Neversink Segment.”); see also Reh’g Order, ¶¶ 75-80 (summarizing “flaws” in Mr. Kuprewicz’s various suppositions, as viewed by FERC). As we explain shortly, the Commission’s decision not to reopen the record to consider Mr. Kuprewicz’s report was not an abuse of discretion, and Petitioners provide no other meaningful basis for concluding that FERC’s factual
determinations regarding
the pipeline’s structural
integrity were unsupported by
22
substantial
evidence.
We thus find
no
basis
to
upset the Commission’s finding on this point
either.8
In our view, then,
FERC reasonably concluded that the Wagoner Alternative would require replacement of the Neversink Segment, while the same was not plainly
true of the Minisink Project. And with that factual determination in hand, it comes as no great shock that the Commission
did not believe the Wagoner Alternative a better
fit for the proposed
project. On this point, some historical context is in order.
More than a decade before the Minisink Project
was proposed, Millennium had sought
approval from FERC to construct a replacement pipeline for the original
Neversink Segment. Initially, the Commission approved that proposal subject to certain
conditions. Millennium Pipeline Co., L.P., Interim Order, 97 FERC ¶ 61,292, at 62,356 (Dec. 19, 2001). But due to the extreme
difficulty Millennium encountered trying to satisfy those conditions—including a host
of environmental snags—it opted instead to rely on the existing
7.1-mile-long segment of pipe acquired
from a competitor (Columbia Gas) for the Neversink
River crossing, i.e., the “Neversink
Segment” as it exists today. See J.A. 401-05 (describing this
background). FERC authorized that
8 We also find it somewhat telling that neither of the dissenting commissioners expressed a belief that a Neversink upgrade was imminently
inevitable. True, both thought a Neversink replacement would have yielded
longer-term benefits that would have outweighed the positive
environmental factors the majority
associated with the Minisink Project (nearly all tied to avoiding, at least for the time being, a Neversink
upgrade). And mostly for this reason,
they believed the Wagoner Alternative preferable in the long run. But neither
suggested that the record,
as they saw it, showed that Millennium planned or needed to replace the
Neversink Segment even if it did not pursue the Wagoner Alternative,
as Petitioners maintain. See
J.A. 41-47, 95-96,
106.
23
alternative arrangement in 2006. See Millennium Pipeline Co., L.L.C., Order Issuing and Amending Certificates, Approving Abandonment, Vacating Certificate, and Granting
and Denying Requests for Rehearing
and Clarification, 117 FERC
¶
61,319,
at 62,576
(Dec. 21,
2006). Given
Millennium’s past struggles navigating the environmental complications of a Neversink upgrade, the fact that the Commission did not think such a course
preferable at this juncture seems to us an understandable result.
In sum, as we have stated before, FERC “enjoys broad discretion to invoke its expertise
in balancing competing
interests and drawing
administrative lines.” Am. Gas Ass’n, 593 F.3d at 19 (citing
ExxonMobil Gas Mktg. Co., 297 F.3d at 1085); see also Columbia Gas Transmission Corp.
v. FERC, 750 F.2d 105, 112 (D.C. Cir. 1984) (“[A]s an expert agency,
the Commission is vested with
wide discretion to balance
competing equities against the backdrop of the public
interest[.]”). Notwithstanding Petitioners’ pleas to the contrary, we conclude
that the Commission’s consideration of the
Wagoner Alternative
falls within
the
bounds
of
that
discretion.9 Under our narrow standard of review,
then, we
9 We hasten to add that FERC’s obligation to consider
alternatives in Section
7 proceedings is not boundless. As we have previously explained, FERC need not “undertake exhausting inquiries, probing for every possible
alternative, if no viable alternatives have been suggested by the parties, or suggest
themselves to the agency.” Citizens for Allegan Cnty., 414 F.2d at 1133. We do not suggest
otherwise today, nor must we venture
beyond these general guideposts. Since the Wagoner
Alternative was so fervently
advocated for during the
Minisink Project’s review process,
all
agree that the Commission was obligated
to at least consider it.
24
have no basis to upset the Commission’s application of its Section
7 authority on this point.10
B.
Along with their weighty reliance on the Wagoner Alternative, Petitioners make several other arguments against the reasonableness of the Commission’s analysis. We treat each argument in turn, finding none persuasive.
1.
Petitioners claim that the Commission failed to give the environmental impacts of the Minisink
Project the “hard look” NEPA requires. We conclude otherwise.
NEPA’s “hard look” doctrine
is designed “to ensure that the agency
has adequately considered and disclosed
the environmental impact of its actions and that its decision is not arbitrary or capricious.” Nat’l Comm. for the New River, 373 F.3d at 1327. NEPA is a procedural statute; it “‘does not mandate
particular results, but simply prescribes the necessary
10 On the other side of the “public
benefits”/“adverse impacts” scale, Petitioners appear to separately argue that FERC violated
its policy statement
by relying on Millennium’s existing
contracts with gas transporters to demonstrate the public benefits of the Minisink Project. Pet’rs’ Br. at 35. We reject that claim as well. 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. To the contrary, the policy
statement specifically recognizes that such agreements “always will be important evidence of demand for a project.”
Certificate Policy
Statement, 88 FERC ¶ 61,227, at 61,748.
25
process.’” Midcoast Interstate Transmission, 198 F.3d at 967 (quoting
Robertson v. Methow
Valley Citizens Council, 490
U.S. 332, 350 (1989)).
In reviewing an agency’s compliance with NEPA, the “rule of reason applies,”
and we “consistently decline[] to ‘flyspeck’ an agency’s
environmental analysis.” Theodore Roosevelt Conservation P’ship v. Salazar, 661 F.3d 66, 75 (D.C. Cir. 2011) (quoting
Nevada v. U.S. Dep’t of Energy, 457 F.3d 78, 93 (D.C.
Cir. 2006)).
Petitioners claim to eschew a flyspecking approach here, arguing instead
that the Commission’s analysis is laden with “gaping holes.” Pet’rs’ Br. at 41. They point to three. In our view, though,
all fall decidedly
more into the “flyspecking” camp than anything more.
First, Petitioners contend that the Commission erred in failing
to undertake a more fulsome cost-benefit analysis of the Minisink
Project as compared with the Wagoner
Alternative. This argument essentially piggybacks off their overall Wagoner Alternative theory, and, in that sense, we reject it for the reasons
already stated. In our view, the Commission reasonably
assessed the Wagoner Alternative, particularly with respect to its environmental implications, as most concerns
NEPA. See Found. on Econ. Trends v. Heckler, 756 F.2d 143, 147 (D.C. Cir. 1985) (“NEPA’s
dual
mission is . . . to generate federal attention to environmental concerns and to reveal
that federal consideration for public
scrutiny.”) (emphasis added). Otherwise, to the extent
Petitioners contend that the Commission should have focused
more generally on the monetary costs and benefits of the respective proposals, we disagree
that NEPA requires such an approach, particularly where only an environmental assessment, rather than an environment impact statement, is involved.
See Webster v. U.S. Dep’t of Agric., 685 F.3d 411, 430 (4th Cir. 2012) (“The agency does not,” under NEPA,
26
“need to display the weighing of the merits and drawbacks of the alternatives in a monetary cost-benefit analysis.”); Communities Against Runway Expansion, Inc. v. FAA, 355 F.3d 678, 687 (D.C. Cir. 2004) (“[I]t is undisputed that the FAA was not required to undertake
a formal cost-benefit analysis as
part of the [environmental impact statement].”).
Second, Petitioners argue that the Commission failed to examine the Minisink Project’s impact
on property values. But as the Commission rightly
rejoins, the EA clearly
addressed this issue. J.A. 457-58. It recognized there may be some adverse impacts on surrounding property
values due to the compressor station. On balance, though, the EA concluded that “the recommended building
design and landscaping plans would eventually minimize
the visual impact from
the station on the surrounding residential properties and would not significantly reduce property values or resale values.” J.A. 458. The Commission’s order echoes this general
assessment. Certificate Order, ¶ 70 (“[W]e believe that the visual and noise mitigation measures recommended in the EA and included
as conditions in this order,
will mitigate the potential
for decreases in property
values.”). Though we can see how Petitioners may disagree with this takeaway,
their disagreement does not mean that FERC
failed to consider the issue altogether, as they suggest.
Third, Petitioners claim that the Commission failed to assess cumulative and future impacts.
They accuse FERC of ignoring
two issues in particular: (1) Millennium’s planned development of a second
compressor station on the pipeline upstream from Minisink (what came to be the “Hancock
Project”), and (2) the potential
construction of a lateral pipeline from the Minisink
compressor to a proposed power plant operated by CPV Valley LLC. The record belies this argument
on both scores.
As for the Hancock
Project, the
27
EA’s “Cumulative Impacts” discussion flags Millennium’s “intent to construct a second compressor station” and explains
that, because no certificate application had been filed with FERC, little was known about the details of the project.
Nevertheless, given the “typical
distances between compressor stations (70 miles)
and the difference in construction timing,” the EA stated
that no significant cumulative impacts were expected,
other than possibly with respect to air quality.
J.A. 473. In view of the uncertainty surrounding the second compressor station, and the difference in timing between the two projects,
this discussion suffices
under NEPA.11 The
same
holds
true with
respect to the
11 We disagree with Petitioners that the EA’s treatment
of the “Hancock
Project” contravenes this Court’s decision in Delaware
Riverkeeper, see Pet’rs’
28(j) Letter (June 16, 2014), which held that FERC improperly segmented and failed to consider the cumulative impacts of four “connected, contemporaneous, closely related, and interdependent” projects. Del. Riverkeeper Network v. FERC, 753
F.3d 1304, 1307 (D.C. Cir. 2014). In
faulting the Commission’s NEPA analysis
of the cumulative impacts of the “Northeast Project” under review there, that decision took pains to emphasize that the other three projects
were all “either under construction or were also pending before the Commission for environmental review and approval.” Id. at 1308; see also
id.
(“FERC’s NEPA review . . . did not consider any of the other upgrade
projects, even though the first upgrade
project was under construction during FERC’s review . . . and even though the applications for the second and fourth
upgrade projects were pending before FERC[.]”); id. at 1318 (“The temporal
nexus here is clear. Tennessee
Gas proposed the Northeast
Project while the 300 Line Project
was under construction . .
. . [a]nd FERC’s consideration of the Northeast Project application overlapped with its consideration of the remaining two projects . . . . We emphasize
here the importance we place on the timing of the four improvement projects.”). Those critical facts are worlds apart from this case. At the time of its application for the Minisink Project,
28
potential development of the CPV Valley power plant.
The EA’s “Cumulative Impacts” section identifies this possible project, too, though
it again signals
the absence of any firm details
surrounding project
specifics. Even still,
the EA concluded
that because the Minisink Project itself was expected to have minimal impacts, no significant cumulative impacts were expected to flow from the possible
development of the CPV Valley power plant, particularly since the construction timelines for the two potential
projects would be quite distinct. J.A. 473-74.
In sum, based on our review of the EA, we are satisfied
that FERC properly
considered the cumulative impacts of the Minisink
Project.
2.
Petitioners also assert that the Commission’s approval of the Minisink
Project contravenes its own siting guidelines. We
can quickly dispatch
these arguments.
Among its NEPA-implementing regulations, FERC has promulgated “[s]iting and maintenance requirements” for the construction and upkeep of facilities. 18 C.F.R. § 380.15.
Petitioners think
that the Minisink Project contravenes three separate
provisions of that regulation. We think not. We first agree with the Commission that § 380.15(b) is inapplicable
Millennium had not yet applied for approval
of the Hancock
Project, nor was construction on either
project underway. Furthermore, once plans for the Hancock Project were cemented and presented to FERC for approval under Section
7, the Commission did examine that project
alongside the Minisink Project (then in the midst of development), and the resulting EA found
no significant cumulative impacts associated with the two projects. See Millennium Pipeline Co., L.L.C., Order Issuing
Certificate, 145 FERC ¶ 61,007,
at ¶ 52 (Oct. 1, 2013). For at least these reasons,
Delaware Riverkeeper lends
no help to Petitioners.
29
altogether because, by its terms, it is triggered only by facilities constructed on third-party landowners’ property;
here, as FERC noted below, Reh’g Order, ¶ 3, the Minisink
Project was built on a parcel owned entirely by Millennium. While the parties also disagree whether § 380.15(e) (formerly
§ 380.15(d))12 applies to a project
involving the construction of a compressor station, we need not decide that issue because
FERC nevertheless complied with the
regulation’s directive to consider
the use or extension of existing
rights-of-way. Indeed, the Commission explicitly recognized its policy of “encourag[ing] pipeline construction on existing right[s]-of- way as a means of minimizing environmental disturbance,” but it concluded that any such preference does not alone provide a basis for rejecting
an
application that otherwise yields
limited environmental impacts. Reh’g
Order, ¶ 37.
This leaves only § 380.15(g)
(formerly § 380.15(f)), which applies to the “[c]onstruction of aboveground facilities.” On this point, Petitioners claim that the Minisink site is not “unobtrusive,” but, in fleshing out that contention, they argue simply that the Wagoner Alternative would have been less so. We remain unconvinced by that approach.
And otherwise, we agree with the Commission that it implemented appropriate mitigation measures to reduce the site’s potential obtrusiveness. See Reh’g Order, ¶ 50 (summarizing Millennium’s vegetation plans and noise mitigation requirements to reduce obtrusiveness); id. at ¶¶ 57-59 (outlining
Commission’s approval of
building
design and
12 After the completion of briefing in these cases, FERC amended this regulation, adding a new subsection (c) and reconfiguring the existing
provisions. As a consequence, the parties’
briefs discuss
§§ 380.15(d) and (f), which have since been re-designated as §§ 380.15(e) and (g), respectively. See 78 Fed. Reg. 72,794,
72,812- 13 (Dec. 4, 2013). For clarity’s
sake, we refer to the regulation using
its current numbering.
30
Millennium’s agreement with Town of Minisink concerning landscaping and screening
plan for site). Particularly in view of the deference owed FERC’s interpretation of its own regulations, see City of Oconto Falls, Wis. v. FERC,
204 F.3d 1154, 1162 (D.C. Cir. 2000), we reject Petitioners’ argument that
the Minisink Project violates the siting guidelines.
C.
As a final offensive, Petitioners attribute several procedural errors to the Commission’s handling of Millennium’s application for the Minisink Project. We take these arguments in turn, accepting
none.
First, Petitioners declare that the Commission improperly refused to hold an evidentiary hearing on Millennium’s application. “FERC’s choice
whether to hold an evidentiary hearing is generally discretionary.” Blumenthal v. FERC, 613 F.3d 1142, 1144 (D.C. Cir. 2010). “In general, FERC must hold an evidentiary hearing only when a genuine
issue of material fact exists,
and even then, FERC need not conduct
such a hearing if [the disputed issues] may be adequately resolved on the written record.” Cajun
Elec. Power Coop.,
Inc. v. FERC, 28 F.3d 173, 177 (D.C. Cir. 1994) (internal
citations and quotation marks omitted) (alteration in original). We review
the Commission’s denial of a hearing
request for abuse of discretion. Woolen Mill Assocs. v. FERC, 917 F.2d 589, 592 (D.C. Cir. 1990).
Petitioners assert that a hearing would have resolved “several key factual disputes,” but when push
comes to shove, they point to only one—“the question
of Millennium’s intentions
regarding the Neversink upgrade.” Pet’rs’ Br. at 53. Of course, the Commission did resolve
that issue, it just
did so on the written record, declining to interpret
the “Currie Report” as the smoking-gun evidence Petitioners portrayed it to be, Reh’g Order, ¶ 32 n.41, and otherwise
31
finding that Millennium had no firm present or future intention
to replace the Neversink Segment, id.
¶ 47. From FERC’s perspective, there was no need to convene
an evidentiary hearing to resolve this narrow issue. We perceive no abuse
of discretion in that determination.13
Second, Petitioners complain that their due process
rights were violated because
the Commission failed to timely provide them with certain documentation during the proceedings—namely, particular hydraulic studies and engineering analyses that Millennium provided to FERC as part
of its application. Petitioners
concede, however, that MREPS and some of its individual members obtained these documents before the deadline to file for rehearing
(indeed at least one petitioner who requested this information in March 2012 received access to it at least two months before petitions
for rehearing were due). Oral Arg. Recording at 38:41-39:08; see also Reh’g Order, ¶¶ 70-71.
There is no dispute, then,
13 We note that, during the agency proceedings, Millennium represented that it had “no intention to file an application to replace
the Neversink Segment before 2014.” Reh’g Order, ¶ 47 (quoting “Millennium’s December 9, 2011 Data Response
No. 1,” reprinted
at J.A. 367-70). Given that we have since hit that 2014 marker,
we asked Millennium’s counsel at oral argument whether the company’s
intentions had changed. Counsel assured us they had not. We were told Millennium still had no present plans to replace
the Neversink Segment.
Although such an upgrade remains
a possibility down the road if demand
eventually dictates, counsel relayed, Millennium could and would look to other options as well. Oral Arg. Recording
at 31:05-31:40, 34:30-34:39. Of course, our review
is based on the record
as it existed before the
Commission at the time of its decision,
see CNG Transmission Corp. v. FERC, 40 F.3d 1289, 1295 (D.C. Cir. 1994), but we would potentially be facing a more troublesome set of facts if Millennium now planned
to pursue a Neversink
upgrade after all. Because
we take
counsel at his word,
we confront no such
scenario here.
32
that Petitioners had the chance to make meaningful use of this information in connection with their petitions for rehearing. Under our precedent, this fact neutralizes any constitutional claim under the Due Process
Clause. See Blumenthal, 613 F.3d at 1145-46; see also Jepsen v. FERC, 420 F. App’x 1, 2 (D.C. Cir. 2011) (per curiam).
Relatedly, to the extent Petitioners assert that other potentially
relevant documents were improperly
withheld as confidential, the contention that such documents “‘might’ support [their] position [is] far too speculative to provide
a basis for setting
aside FERC’s judgment,” B&J Oil, 353 F.3d at 78, much less for finding a due process violation.
Third, Petitioners fault the Commission for failing to reopen
the record to consider
the “Kuprewicz Report.”
We review that decision “only for an abuse of discretion,” Cooley v. FERC, 843 F.2d 1464, 1473 (D.C. Cir. 1988), and we find
none here. Of course, FERC did consider the
report, at least in a sense. True, the Commission declined to reopen
the record and revisit its prior findings
based on Mr. Kuprewicz’s findings. But in the course of so concluding, the Commission undertook an analysis
of his report and opinions.
Reh’g Order, ¶¶ 75-80. In the end, the Commission believed his analysis
“suffer[ed] from several flaws” and did not provide support for his position
on many points,
particularly where his assessment differed from that of FERC’s staff. Id. ¶¶ 76, 79; Second Reh’g Order, ¶ 9. The Commission thus found that “Mr. Kuprewicz’s study provides
no basis for reversing
[its] approval of the Minisink Project.” Reh’g Order, ¶ 80. This decision
strikes us as well within the bounds of FERC’s discretion,
particularly given the highly technical nature of the issues raised in the report. See NRG Power Mktg., LLC v. FERC, 718 F.3d 947, 962 (D.C. Cir. 2013).
Consequently,
we find no error in the Commission’s declining to reopen the record
based on Mr. Kuprewicz’s report.
33
III.
In approving the Minisink Project, the Commission accorded the Wagoner Alternative the serious
consideration it was due, in keeping
with its statutory
obligations under the NGA and NEPA. In its judgment, the Commission did not think the Wagoner Alternative preferable and concluded that the Minisink Project, as put forward
by Millennium, would serve the public interest
and necessity. We are simply not empowered
to second-guess the Commission’s determination on this point or to substitute our judgment
for the Commission’s. Our much more limited role is, instead,
to confirm that FERC thoroughly and reasonably examined the issue, and
on the record before us, we are assured that it did.
For this and the other reasons
we have explained, the petitions for review are denied.
So ordered.
