Allegheny Def. Project v. Fed. Energy Regulatory Comm'n

964 F.3d 1

ALLEGHENY DEFENSE PROJECT, et al., Petitioners

v.FEDERAL ENERGY REGULATORY COMMISSION, Respondent

Anadarko Energy Services Company, et al., Intervenors

No. 17-1098

C/w 17-1128, 17-1263, 18-1030

United States Court of Appeals, District of Columbia Circuit.

Argued April 27, 2020

Decided June 30, 2020

Siobhan K. Cole, Philadelphia, PA, argued the cause for petitioners. With her on the joint briefs were Natalie B. Molz, Philadelphia, PA, Elizabeth F. Benson, and Benjamin A. Luckett. Michael N. Onufrak and Derek O. Teaney, Lewisburg, WV, entered appearances.

Mark Sabath, Columbus, OH, Emily C. Wyche, Ariel Solaski, Jon A. Mueller, Washington, DC, Aaron Stemplewicz, John N. Moore, and Gillian R. Giannetti were on the brief for amici curiae Alliance for the Shenandoah Valley, et al., in support of petitioners.

Megan C. Gibson, Washington, DC, and David Bookbinder, Howell, NJ, were on the brief for amici curiae Affected Landowners in support of petitioners.

Brian E. Frosh, Attorney General, Office of the Attorney General for the State of Maryland, John B. Howard, Jr., Special Assistant Attorney General, Kathleen Jennings, Attorney General, Office of the Attorney General for the State of Delaware, Kwame Raoul, Attorney General, Office of the Attorney General for the State of Illinois, Maura Healey, Attorney General, Office of the Attorney General for the Commonwealth of Massachusetts, Dana Nessel, Attorney General, Office of the Attorney General for the State of Michigan, Keith Ellison, Attorney General, Office of the Attorney General for the State of Minnesota, Letitia James, Attorney General, Office of the Attorney General for the State of New York, Robert W. Ferguson, Attorney General, Office of the Attorney General for the State of Washington, Gurbir S. Grewal, Attorney General, Office of the Attorney General for the State of New Jersey, Ellen F. Rosenblum, Attorney General, Office of the Attorney General for the State of Oregon, Josh Shapiro, Attorney General, Office of the Attorney General for the Commonwealth of Pennsylvania, and Karl A. Racine, Attorney General, Office of the Attorney General for the District of Columbia, were on the brief for amici curiae the State of Maryland, et al., in support of petitioners.

Robert M. Kennedy, Senior Attorney, Federal Energy Regulatory Commission, argued the cause for respondent. With him on the brief were James P. Danly, General Counsel at the time the brief was filed, and Robert H. Solomon, Solicitor. Beth G. Pacella, Deputy Solicitor, Falls Church, VA, and Anand R. Viswanathan, Attorney, entered appearances.

John F. Stoviak, Philadelphia, PA, argued the cause for intervenors. With him on the joint brief were Elizabeth U. Witmer, Wayne, PA, Patrick F. Nugent, Philadelphia, PA, Kevin M. Sweeney, Washington, DC, Scott Borden Grover, Birmingham, AL, and Jesse Stuart Unkenholz, Birmingham, AL. Pamela S. Goodwin, Princeton, NJ, entered an appearance.

Jeremy C. Marwell and Matthew X. Etchemendy, Washington, DC, were on the brief for amicus curiae Interstate Natural Gas Association of America in support of respondent.

Catherine E. Stetson, Stefan M. Krantz, Washington, DC, A. Gregory Junge, and Sean Marotta, Washington, DC, were on the brief for amicus curiae TC Energy Corporation in support of respondent.

Megan E. Vetula, Brett K. White, Palo Alto, CA, Scott A. Keller, and Marcia Hook, Washington, DC, were on the brief for amicus curiae the Edison Electric Institute in support of respondent.

Before: Srinivasan, Chief Judge, and Henderson, Rogers, Tatel, Garland, Griffith, Millett, Pillard, Wilkins, Katsas, and Rao, Circuit Judges.

Concurring opinion filed by Circuit Judge Griffith.

Opinion concurring in the judgment and dissenting in part filed by Circuit Judge Henderson.

Millett, Circuit Judge:

Before a party aggrieved by an order of the Federal Energy Regulatory Commission can obtain judicial review, that party must file an application for rehearing with the Commission. Congress directed that, if the Commission fails to act on that rehearing application within thirty days, the application may be deemed denied, allowing the aggrieved party to proceed to federal court.

The question in this case is whether the Commission can eliminate that statutorily prescribed consequence of its inaction—and, in doing so, stave off judicial review—by issuing a tolling order that takes no action on the application other than buying the Commission more time. We hold that, under the plain statutory language and context, such tolling orders are not the kind of action on a rehearing application that can fend off a deemed denial and the opportunity for judicial review. We therefore deny the Commission's and Intervenor's motions to dismiss the petitions filed after thirty days of Commission inaction. On the merits, we deny the petitions for review.

I

A

The Natural Gas Act, 15 U.S.C. §§ 717 et seq. , requires a company seeking to build or operate a natural gas pipeline for use in interstate commerce to obtain a certificate of "public convenience and necessity" from the Federal Energy Regulatory Commission authorizing the pipeline's construction and operation. Id. § 717f(c); see Myersville Citizens for a Rural Community, Inc. v. FERC , 783 F.3d 1301, 1307 (D.C. Cir. 2015). The Commission "shall * * * issue[ ]" the certificate if it finds that the proposed project "is or will be required by the present or future public convenience and necessity." 15 U.S.C. § 717f(e).

Once the Commission issues such a certificate, the Natural Gas Act authorizes the private party holding the certificate to exercise the governmental power of eminent domain and take "the necessary right-of-way to construct, operate and maintain" the pipeline, unless the property owner agrees to its use. 15 U.S.C. § 717f(h).

A party, including an affected homeowner, who seeks to challenge the Commission's certificate order (or any other order) must first seek rehearing before the Commission as a precondition to obtaining judicial review. 15 U.S.C. § 717r(a) – (b). The proper interpretation of Section 717r(a) is at the heart of this case. Because it is quite a mouthful, we set out the relevant statutory text before discussing it in more manageable pieces:

Any person * * * aggrieved by an order issued by the Commission in a proceeding under this chapter to which such person * * * is a party may apply for a rehearing within thirty days after the issuance of such order. * * * Upon such application the Commission shall have power to grant or deny rehearing or to abrogate or modify its order without further hearing. 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. No proceeding to review any order of the Commission shall be brought by any person unless such person shall have made application to the Commission for a rehearing thereon. Until the record in a proceeding shall have been filed in a court of appeals, as provided in subsection (b) of this section, the Commission may at any time, upon reasonable notice and in such manner as it shall deem proper, modify or set aside, in whole or in part, any finding or order made or issued by it under the provisions of this chapter.

Id. § 717r(a).

As relevant to this case, here is what Section 717r(a) provides.

First, as noted, parties wishing to challenge a Commission decision cannot proceed directly to judicial review. Instead, they must first seek rehearing before the Commission. 15 U.S.C. § 717r(a) ("No proceeding to review any order of the Commission shall be brought by any person unless such person shall have made application to the Commission for a rehearing thereon.").

Second, Congress identified four ways in which the Commission can act upon the application for rehearing. "Upon such application the Commission shall have power to [i] grant or [ii] deny rehearing or to [iii] abrogate or [iv] modify its order without further hearing." 15 U.S.C. § 717r(a).

Third, if the Commission fails to take any of those actions "within thirty days after it is filed," the "application may be deemed to have been denied." 15 U.S.C. § 717r(a).

Fourth, even after federal court jurisdiction attaches and a petition is filed, the Commission retains the power to "modify or set aside" its findings and orders "[u]ntil the record in a proceeding [is] filed in a court of appeals." 15 U.S.C. § 717r(a) ; see also Clifton Power Corp. v. FERC , 294 F.3d 108, 111 (D.C. Cir. 2002) (explaining that identical language in the Federal Power Act, 16 U.S.C. § 825l (a), added by the same statute "allow[s] [the Commission] to exercise concurrent jurisdiction" with the court for that initial period of time). That provision typically affords the Commission at least an additional forty days after service of a petition for review within which to reconsider its prior order. See FED. R. APP. P. 17(a) (requiring an agency to "file the record with the circuit clerk within forty days after being served with a petition for review"). And the Commission can obtain even more time to act if the court of appeals grants a motion for an extension of time to file the record. Id . (authorizing the court to "shorten or extend the time to file the record").

Finally, Section 717r(b) authorizes judicial review in this court or in the appropriate regional circuit to "[a]ny party to a proceeding under [the Natural Gas Act] aggrieved by an order issued by the Commission in such proceeding," 15 U.S.C. § 717r(b), as long as the party "made application to the Commission for a rehearing," id. § 717r(a). The party must then file a petition for review "within sixty days after the order of the Commission upon the application for rehearing[.]" Id. § 717r(b).

B

In 2015, the Transcontinental Gas Pipe Line Co. ("Transco") applied to the Commission for a certificate of public convenience and necessity for its Atlantic Sunrise Project, a central aspect of which was the construction of...