On August 28, 2019, FERC found on voluntary remand from the United States Court of Appeals for the D.C. Circuit (“D.C. Circuit”) that the New York State Department of Environmental Conservation (“New York DEC”) waived its authority under section 401 of the Clean Water Act (“CWA”) to either issue or deny Constitution Pipeline Company, LLC (“Constitution”) a water quality certificate for a proposed 125-mile pipeline project from that would stretch from Pennsylvania to New York (“Project”).  Based on the D.C. Circuit’s decision in Hoopa Valley Tribe v. FERC (“Hoopa Valley”) (see April 24, 2019 edition of the WER), FERC concluded that Constitution’s agreement with the New York DEC to withdraw and resubmit CWA section 401 certification applications did not restart the one-year statutory deadline for the New York DEC to act on Constitution’s application.
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On July 23, 2019, the U.S. Court of Appeals for the Third Circuit (“Third Circuit”) ruled that state substantive law should be used as the federal standard when determining landowners’ compensation in condemnation actions brought by private entities acting under the Natural Gas Act of 1938 (“NGA”).  The Third Circuit ruling reversed a decision by the U.S. District Court for the Middle District of Pennsylvania (“District Court”) and remanded the case for further proceedings.
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On July 23, 2019, FERC Chairman Neil Chatterjee announced that the Commission is establishing a new Division of LNG Facility Review & Inspection (“DLNG”), within its Office of Energy Projects, to handle the growing number of complex applications to site, build, and operate liquified natural gas export terminals.  Prior to the establishment of this division,

On June 4, 2019, the U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”) upheld FERC’s authorization for Tennessee Gas Pipeline Company (“Tennessee”) to build a new natural gas compressor station as part of its Broad Run Expansion Project (“the Project”).  Petitioners had argued, among other items, that FERC’s decision to approve the Project violated the National Environmental Policy Act (“NEPA”) by failing to address the reasonably foreseeable indirect environmental impacts resulting from: 1) increased gas production upstream of the Project, and 2) increased gas combustion downstream of the Project.  While the D.C. Circuit rejected the Petitioners’ arguments, it did so on jurisdictional grounds.  After concluding that FERC should have asked Tennessee for information about the upstream and downstream indirect environmental effects associated with the Project, the D.C. Circuit held that it lacked jurisdiction to conclude that FERC acted arbitrarily or capriciously because Petitioners did not argue that FERC violated NEPA by failing to seek out this information.
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On May 6, 2019, the Oregon Department of Environmental Quality (“Oregon DEQ”) denied a water quality certification under section 401 of the Clean Water Act (“CWA”) for the proposed Jordan Cove liquefied natural gas (“LNG”) export terminal and its feeder pipeline, the Pacific Connector, to be located on Oregon’s southern coast.
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On May 9, 2019, the U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”) dismissed Otsego 2000 Inc.’s (“Otsego”) petition to set aside a FERC order granting a certificate to Dominion Energy Transmission Inc. (“Dominion”) to construct and operate its New Market Project (“Project”).  Specifically, the D.C. Circuit found that Otsego failed to demonstrate standing to petition the court and that Otsego’s expenditure of resources for litigation was insufficient to demonstrate standing.
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On April 23, 2019, FERC denied Flint Riverkeeper’s and Chattahoochee Riverkeeper’s (“Riverkeepers”) request for attorney’s fees after the U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”) vacated the certificates of public convenience and necessity (“CPCNs”) FERC issued for the Southeast Market Pipelines Project (see March 20, 2018 edition of the WER).  In doing so, FERC found, among other things, that the certificate proceeding at FERC did not qualify as an “adversary proceeding” under the Equal Access to Justice Act (“EAJA”) for which the Riverkeepers could seek attorney’s fees because: (1) certificate proceedings are excluded from the definition of “adversary proceeding” and (2) FERC is not represented by counsel in a certificate proceeding but rather acts as an adjudicator.
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On April 18, 2019, FERC issued a unanimous order, supported by all FERC Commissioners, ruling that the California State Water Resources Control Board (“SWRCB”) waived authority to issue a water quality certification under Section 401 of the Clean Water Act (“CWA”), 33 U.S.C. § 1641, in the pending hydropower relicensing of the Middle Fork American River Project (“Project”).  Applying the U.S. Court of Appeals for the D.C. Circuit’s (“D.C. Circuit”) seminal opinion in Hoopa Valley Tribe v. FERC issued in early 2019 (see January 30, 2019 edition of the WER), FERC held that SWRCB’s “active[] participation” in the applicant’s annual withdrawal-and-resubmittal of the license applicant’s request for Section 401 certification since 2012, “on occasion directly requesting the withdrawal and refiling,” constituted an agreement between the applicant and SWRCB that does not re-start the maximum one-year time period for states to act on a request for water quality certification under Section 401.
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On April 3, 2019, the U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”) issued an unpublished opinion dismissing challenges to three FERC orders that granted certificates of public convenience and necessity to Transcontinental Gas Pipe Line Company, LLC (“Transco”) for three interstate pipeline projects: the Virginia Southside Expansion Project, the Dalton Expansion Project, and the Atlantic Sunrise Project (see previous reports on challenges to the Atlantic Sunrise Project in the December 12, 2017 edition of the WER and the September 12, 2018 edition of the WER).  The D.C. Circuit found that the North Carolina Utilities Commission (“NCUC”) and the New York State Public Service Commission (“NYSPSC”) lacked standing to challenge FERC’s orders because they did not show a “substantial probability” that gas transported by the Atlantic Sunrise Project would flow to their states, and did not provide any evidence of injury resulting from the Dalton Expansion and Virginia Southside Expansion Projects.
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