UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
C.A. No. 15-02345
ORDER
-----------------------------------------------------------------------------------Wildlife Protection Council,
Petitoner,
-v.Federal Energy Regulatory Commission,
Docket No. CP15-234-000
Respondent,
Mammoth Pipeline, LLC,
Intervenor.
------------------------------------------------------------------------------------
______________________________________________________________
Motion to Deny Rehearing of FERC’s Order
______________________________________________________________
BRIEF FOR RESPONDENT
Table of Contents
JURISDICTIONAL STATEMENT
1
STATEMENT OF ISSUES PRESENTED
1
STATEMENT OF THE CASE
2
STATEMENT OF THE FACTS
3
SUMMARY OF THE ARGUMENT
5
ARGUMENT
6
THE ENDANGERED SPECIES ACT ISSUES
6
STANDARD OF REVIEW
6
REINITIATION WITH FWS WAS NOT REQUIRED UNDER ESA GIVEN THE WIDELY AVAILABLE
KNOWLEDGE THAT THE HEMLOCK FURRY APHID HAD BEEN RAPIDLY SPREADING.
7
THE KNOWLEDGE THAT HEMLOCK FURRY APHID POPULATION WAS RAPIDLY GROWING WAS WIDELY
AVAILABLE, AS WAS THE APHID’S THREAT TO THE AMERICAN HEMLOCK.
FWS NEVER SOUGHT TO REINITIATE CONSULTATION SINCE THE NOVEMBER 2014 APHID DISCOVERY.
8
10
FERC AS AN ACTION AGENCY IS ENTITLED TO CONSIDER THE ECONOMIC IMPACT OF
REASONABLE AND PRUDENT ALTERNATIVES.
11
REASONABLE AND PRUDENT ALTERNATIVES ARE REQUIRED TO BE ECONOMICALLY FEASIBLE FOR AGENCY
IMPLEMENTATION.
11
MITIGATION MEASURES PROPOSED BY FERC ACCEPTABLE UNDER JEOPARDY STANDARD.
14
THE NATIONAL ENVIRONMENTAL POLICY ACT ISSUES
16
STANDARD OF REVIEW
16
THE NATIONAL ENVIRONMENTAL POLICY ACT (NEPA)
17
FERC’S CORRECTLY DETERMINED THE SCOPE OF ACTIONS TO BE CONSIDERED
18
FERC CORRECTLY DETERMINED THE SCOPE OF ACTIONS TO BE CONSIDERED WITHIN THE EIS
19
THE THREE PROPOSALS ARE NEITHER CONNECTED NOR SIMILAR ACTIONS
19
THESE THREE PROPOSALS DID NOT NEED TO BE CONSIDERED AS CUMULATIVE ACTIONS, BECAUSE THE
MAMMOTH PIPELINE POSSESSES AN INDEPENDENT UTILITY
20
FERC ADEQUATELY CONSIDERED ALL OF THE PROJECT’S DIRECT, INDIRECT, AND CUMULATIVE IMPACTS 22
FERC PROPERLY DETERMINED THE SCOPE OF ACTIONS AND IMPACTS TO BE CONSIDERED WITHIN THE EIS,
AND THUS, IS ENTITLED TO DEFERENCE
24
FERC SATISFIED ITS NEPA REQUIREMENTS, BECAUSE IT CONSIDERED ALL REASONABLE
ALTERNATIVES IN-LIGHT OF THE PROJECT’S OBJECTIVE
25
NEPA’S REGULATIONS DO NOT REQUIRE AGENCIES TO CONSIDER EVERY POSSIBLE ALTERNATIVE
25
ii
2
A SUMMARY OF NEPA’S ALTERNATIVE ANALYSIS REQUIREMENT
25
FERC SATISFIED NEPA’S ALTERNATIVE ANALYSIS REQUIREMENT
27
FERC WAS NOT OBLIGATED TO REJECT THE PROJECT’S PURPOSE AND NEED STATEMENT IN FAVOR OF A
HYPOTHETICAL ALTERNATIVE
29
CONCLUSION
30
iii
2
TABLE OF AUTHORITIES
Cases
Baltimore Gas v. NRDC, 462 U.S. 87, 103 (1983)………….......................................14,16,17,23
Cabinet Mountains Wilderness/Scotchman's Peak Grizzly Bears v. Peterson, 685 F.2d 678, 686
(D.C. Cir. 1982)……………………………………………………………………......6
Citizens Against Burlington v. Busey, 938 F.2d 190, 194 (D.C. Cir. 1991)……………25,26,27
Citizens' Comm. to Save Our Canyons v. U.S. Forest Service, 297 F.3d 1012, 1030 (10th Cir.
2002)…………………………………………………………………………………………….30
Delaware Riverkeeper Network v. FERC, 753 F.3d 1304, 1313 (D.C. Cir. 2014)……………...21
Dow AgroSciences LLC v. Nat'l Marine Fisheries Serv., 707 F.3d 462, 465 (4th Cir. 2013).12,13
Florida Keys Citizens Coalition, Inc. v. U.S. Army Corps of Engineers, 374 F. Supp. 2d 1116,
1150 (S.D. Fla. 2005)……………………………………………………………………21
Fuel Safe Washington v. FERC, 389 F.3d 1313, 1323 (10th Cir. 2004)………………..28,29,30
Hammond v. Norton, 370 F. Supp. 2d 226, 242 (D.D.C. 2005)…………………………17,18,26
Hawksbill Sea Turtle v. Fed. Emergency Mgmt. Agency, 11 F. Supp. 2d 529, 533 (D.V.I.
1998)………………………………………………………………………………………10
Kandra v. United States, 145 F. Supp. 2d 1192, 1207 (D. Or. 2001)……………………..13
Kleppe v. Sierra Club, 427 U.S. 390, n.20 (1976)…………………………………………23
Louisiana Crawfish Producers Ass'n v. Rowan, 463 F.3d 352, 358 (5th Cir. 2006)………23,29
Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29, 43 (1983)…………………………6,16
Myersville Citizens v. FERC, 783 F.3d 1301, 1323 (D.C. Cir. 2015)……………………….26
NRDC v. Morton, 458 F.2d 827, 833 (D.C. Cir. 1972)………………………………………17,26
iv
2
Pyramid Lake Paiute Tribe of Indians v. U.S. Dep't of Navy, 898 F.2d 1410, 1415 (9th Cir.
1990)……………………………………………………………………………………….8
San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 637 (9th Cir. 2014)……13
Sierra Club v. Marsh, 976 F.2d 763 (5th Cir. 1992)…………………………………….16,22,23
Sw. Ctr. for Biological Diversity v. U.S. Bureau of Reclamation, 143 F.3d 515, 519 (9th Cir.
1998)…………………………………………………………………………………………14,15
Taxpayers Watchdog v. Stanley, 819 F.2d 294, 298 (D.C. Cir. 1987)………………………….21
Utahns for Better Transp v. U.S. Dept. of Transp, 305 F.3d 1152, 1163 (10th Cir. 2002)…17,29
Wetlands Action Network v. U.S. Army Corps of Engineers, 222 F.3d 1105, 1118 (9th Cir.
2000)……………………………………………………………………………………………21
Wyoming Outdoor Council v. Bosworth, 284 F. Supp. 2d 81, 82 (D.D.C. 2003) case dismissed,
No. 03-5302, 2004 WL 1345107 (D.C. Cir. June 15, 2004)……………………………..8,9,10
Statutes
50 C.F.R. § 402.02………………………………………………………………………….12,14
50 C.F.R. §402.14…………………………………………………………………………...6
50 C.F.R. §402.14(g)(4)……………………………………………………………………..6
50 C.F.R. § 402.14(g)(5)……………………………………………………………………..11
50 C.F.R. § 402.14(h)(3)……………………………………………………………………..12
50 C.F.R. §402.16……………………………………………………………………………..7
50 C.F.R. § 402.16(b)…………………………………………………………………………..8
42 U.S.C. § 4332………………………………………………………………………………..17
5 U.S.C. § 706………………………………………………………………………………….6,16
5 U.S.C. § 706(2)(A)……………………………………………………………………………6
v
2
15 U.S.C. § 717f…………………………………………………………………………………..1
15 U.S.C. § 717r(a)………………………………………………………………………………..1
15 U.S.C. § 717r(b)………………………………………………………………………………..1
40 C.F.R. § 1502.13……………………………………………………………………………26
40 C.F.R. § 1502.14(a)………………………………………………………………………...26
40 C.F.R. § 1508.25……………………………………………………………………17,19,21,25
40 C.F.R. § 1508.25(a)(1)-(3)…………………………………………………………………....17
40 C.F.R. § 1508.25(a)(1)(i)-(iii)……………………………………………………………….19
40 C.F.R. § 1508.25(a)(2)………………………………………………………………………21
40 C.F.R. § 1508.25(a)(3)…………………………………………………………………....…19
40 C.F.R. § 1508.25(a)(c)……………………………………………………………………….22
40 C.F.R. § 1508.25(b)…………………………………………………………………………..26
40 C.F.R. § 1508.7……………………………………………………………………………….22
16 U.S.C. § 1536(a)(2)…………………………………………………………………………….6
16 U.S.C. §1536(b)(3)(A)………………………………………………………………………....7
Other Authorities
PAUL W. PARFOMAK, CONG. RESEARCH SERV., R43138, INTERSTATE NATURAL
GAS PIPELINE: PROCESS AND TIMING OF FERC PERMIT APPLICATION REVIEW
(JAN. 16, 2015)………………………………………………………………...14,16
vi
2
1
Jurisdictional Statement
The Natural Gas Act (NGA) requires all natural-gas companies and persons seeking to
construct a natural gas transportation pipeline to first acquire a Certificate of Public Convenience
and Necessity (Certificate) from the Federal Energy Regulatory Commission (FERC). 1 Any
person aggrieved by FERC’s decision to grant a Certificate “may apply for a rehearing within
thirty days after the issuance of such order,”2 and may also “obtain a review of such order … in
the United States Court of Appeals for the District of Columbia, by filing in such court, within
sixty days after the order of [FERC] upon the application for rehearing.”3
Wildlife Protection Council (WPC) applied for a rehearing of FERC’s decision to grant
Mammoth a Certificate on August 21, 2015,4 which was within 30 days of the July 31st, 2015
issuance of FERC’s order.5 FERC denied WPC’s request for a rehearing, and WPC appealed,
seeking review of the order in the United States Court of Appeals for the District of Columbia.
WPC timely submitted its appeal within 60 days of FERC’s order denying rehearing. Thus, this
Court has jurisdiction.
Statement of Issues Presented
1. Whether FERC’s failure to reinitiate consultation with the U.S. Fish and Wildlife Service to take
into consideration new information on the hemlock furry aphid’s impact to the golden-throated
1
15 U.S.C. § 717f.
15 U.S.C. § 717r(a).
3
15 U.S.C. § 717r(b).
4
(R. at 10.).
5
(R. at 10.).
2
2
2
cerulean warbler’s critical habitat under the Endangered Species Act was arbitrary, capricious, an
abuse of discretion, unsupported by substantial evidence, or otherwise not in accordance with
law.
2. Whether FERC’s consideration of the economic impact of routing the Mammoth Pipeline to
avoid the Endorean National Forest in its suggestions for reasonable and prudent alternative to
the proposed route under the Endangered Species Act was arbitrary, capricious, an abuse of
discretion, unsupported by substantial evidence, or otherwise not in accordance with law.
3. Whether FERC’s failure to include the Mitu Energy and NME Gas pipeline projects in the
cumulative impacts analysis of the Mammoth Pipeline final EIS under the National
Environmental Policy Act was arbitrary, capricious, an abuse of discretion, unsupported by
substantial evidence, or otherwise not in accordance with law.
4. Whether FERC’s failure to identify and assess all reasonable alternatives to the Mammoth
Pipeline project and consider combinations of low-carbon and renewable energy sources
(including energy efficiency) as an alternative to the proposed pipeline under the National
Environmental Policy Act was arbitrary, capricious, an abuse of discretion, unsupported by
substantial evidence, or otherwise not in accordance with law.
Statement of the Case
This Appeal arises from the Federal Energy Regulatory Commission’s (FERC) decision
to deny the Wildlife Protection Council’s (WPC) request for a rehearing of its order to grant
Mammoth Pipeline, LLC (Mammoth), a Certificate of Public Necessity and Convenience
(Certificate).6 The Certificate would enable Mammoth to construct its proposed natural gas
6
(R. at 1.).
2
3
transportation pipeline. WPC filed a timely appeal with the United States Court of Appeals for
the District of Columbia, seeking to review FERC’s order granting the Certificate.
Statement of the Facts
In January 2012, the state of Franklin enacted its Clean Energy Act, which required the
state to significantly increase the amount of electricity it generates from renewable and
alternative energy sources, and significantly its Green House Gas emissions.7 At the time of its
enactment, Franklin generated 82% of its electricity from coal,8 and logically, Franklin
recognized that the majority of its coal-fired power plants would soon need to be upgraded or
retired.9 In response to this act, Mammoth proposed to build the state’s first natural gas
transportation pipeline.10 Specifically, Mammoth proposed an interstate pipeline “to provide
natural gas transportation service from supplies in the Maximus Shale region … to anticipated
customers in Franklin.”11 In order to do so, Mammoth had to acquire a Certificate from FERC.
Mammoth requested and received FERC’s permission to utilize the Certificate pre-filing process
in May 2013,12 and ultimately, FERC granted Mammoth the Certificate on July 31st, 2015 when
it issued its Record of Decision.13
Specifically, the pipeline “would cross 131 rivers and streams … three national forests,
and “[m]ost notably, … 47 miles of the Endorean National Forest in Vandalia.”14 This route is
7
(R. at 3.).
(R. at 3.).
9
(R. at 3.).
10
Id.
11
(R. at 8.).
12
(R. at 3.)
13
(R. at 10.).
14
(R. at 3-4).
8
2
4
controversial, because the Endorean Forest is home to the golden-throated cerulean warbler
(warbler), which has is a listed endangered species.15 Furthermore, the Endorean Forest itself has
been listed as the warbler’s critical habitat since 2004, because the forest contains an abundance
of American hemlock trees that the warbler relies upon to survive.16 Specifically, the warbler
relies upon its seeds are its primary food source. However, over the past few decades, the
hemlock’s population and range has significantly reduced, due to logging, land clearing, but
mostly due to an invasive species known as the aphid.17 The aphid “attacks the American
hemlock and kills the tree within a few years.” (R.4).
Recent developments include two additional pipeline proposals by the Mitu Energy and
the NME Gas companies. These companies have proposed to build separate pipelines, that will
provide the same services to Franklin. However, currently, only Mammoth has received a
Certificate from FERC. Additionally, in November 2014, the aphid was identified in the
northeastern corner of the Endorean forest.18 Studies have shown that the aphid’s spread has
accelerated due to climate change, and that the aphid has the potential to decimate the hemlock’s
population over the next twenty years.19
Ultimately, because Mammoth’s proposed pipeline will likely have significant effects on
the environment, the hemlock tree, and the warbler, FERC was required to comply with NEPA
and ESA’s various requirements. As a result, FERC has attempted to comply with both statutes,
and the adequacy of its compliance is now being challenged.
15
(R. at 4).
Id.
17
Id.
18
Id.
19
Id.
16
2
5
Summary of the Argument
Under ESA FERC was not required to reinitiate consultation with FWS, nor did it err in
considering the economic impact of the RPA for rerouting the pipeline. Reinitiation of
consultation was not required as the presence of the aphid in the warbler’s critical habitat was not
proven in the record to be information not previously considered as required under 50 C.F.R.
§402.16. Information exhibiting the threat the aphid posed to the American hemlock was widely
available, as was information regarding its quick spread through the trees range. Furthermore,
FERC was justified in considering the economic impact of a rerouting RPA as it was not
economically feasible as required by 50 C.F.R. § 402.02. In the absence of not adopting the FWS
RPA, FERC’s mitigation measures don’t violate the jeopardy standard for the Warbler.
FERC satisfied NEPA’s requirements. First, FERC was neither arbitrary nor capricious
because agencies are only required to consider reasonably foreseeable cumulative impacts. At
the time that the EIS was developed, neither the Mitu nor NME projects had yet to receive
FERC’s permission to pre-file for a certificate, therefore, they are merely contemplated actions
and their impacts were hypothetical and speculative. Furthermore, even if the Mitu and NME
proposals were actual proposals, FERC could permissibly segment its NEPA analysis, because
the Mammoth Pipeline has an independent utility. Second, FERC’s alternatives analysis was
neither arbitrary nor capricious, because it thoroughly considered all reasonable alternatives in
light of the project’s purpose and need statement. Mammoth considered several alternative routes
and energy sources, and reasonably explained why they would not satisfy the project’s
objectives. Most importantly, Mammoth Pipeline, LLC, proposed the project and its objectives,
and FERC was not obligated to reject the project’s objectives in favor of speculative alternatives,
such as energy efficiency and energy combinations.
2
6
Argument
The Endangered Species Act Issues
Standard of Review
The first two issues of this case come under the Endangered Species Act (“ESA”) which
does not identify a standard of review, and thus Judicial review of agency actions under ESA are
governed by the Administrative Procedure Act (“APA”), 5 U.S.C §706.20 5 U.S.C §706 states the
reviewing court shall set aside agency actions that are found to be “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law”21 An agency action is found to be
arbitrary, capricious:
if the agency has relied on factors which Congress has not intended
it to consider, entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs counter
to the evidence before the agency, or is so implausible that it could
not be ascribed to a difference in view or the product of agency
expertise.22
Under ESA an agency action must be “not likely to jeopardize the continued existence of
any endangered species or threatened species or result in the destruction or adverse modification
of habitat of such species which is determined by the Secretary, after consultation as appropriate
with affected States.”23 If a listed species or critical habitat may be adversely affected by the
proposed action, the action agency must consult with the appropriate wildlife agency before
proceeding.24 A biological opinion is created by the wildlife agency to determine if the action
20
Cabinet Mountains Wilderness/Scotchman's Peak Grizzly Bears v. Peterson, 685 F.2d 678,
686 (D.C. Cir. 1982).
21
5 U.S.C. § 706(2)(A).
22
Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29, 43 (1983).
23
16 U.S.C. § 1536(a)(2).
24
50 C.F.R. §402.14.
2
7
will jeopardize a listed species, or adversely modify a critical habitat.25 If there is a finding of
jeopardy, the wildlife agency can recommend reasonable and prudent alternatives that would
allow completion of the action without jeopardizing listed species, or adversely modify a critical
habitat.26 Additionally, the action agency must reinitiate consultation with the wildlife agency if
new information reveals the action may affect the listed species or critical habitat in a way not
previously considered.27
Reinitiation with FWS was not required under ESA given the widely
available knowledge that the Hemlock Furry Aphid had been rapidly
spreading.
WPC alleges FERC failed to fulfill its duty under ESA by not reinitiating consultation
with FWS over new information concerning the presence of hemlock furry aphids (“aphid”) in
the Endorean National Forest.28 While drafting the EIS for the Mammoth Pipeline project, FERC
consulted with FWS as required under 50 C.F.R §402.14.29 In the “Special Status Species”
section of the draft EIS, FERC provided the information from the July 2014 Biological Opinion
(“BiOp”) conducted by FWS on the warbler.30 The discovery of the aphid within the warbler’s
critical habitat occurred 3 months later in November 2014.31 WPC’s claim that FERC is required
to reinitiate formal consultation with FWS is solely predicated on the discovery of the aphid
within the warbler’s critical habitat.32 Absent any other factual changes, the presence of the aphid
25
50 C.F.R. §402.14(g)(4).
16 U.S.C. §1536(b)(3)(A).
27
50 C.F.R. §402.16.
28
(R. at 10.).
29
(R. at 7.).
30
(R. at 9.).
31
(R. at 10.).
32
(R. at 1.).
26
2
8
alone is not sufficient for FERC to reinitiate consultation with FWS. One of the regulatory
requirement to reinitiate formal consultation exists if “If new information reveals effects of the
action that may affect listed species or critical habitat in a manner or to an extent not previously
considered”.33
Since the completion of the BiOp by FWS, the Mammoth Pipeline project has not been
altered, no new species listed, no new critical habitat designated, or any Warbler taken.34 The
only thing that has changed since the July 2014 BiOp is the presence of the aphid within the
critical habitat.35 Additionally, the record does not reflect proof that the aphid’s presence and
effect on the warbler’s critical habitat was not previously considered.36 FERC need not reinitiate
consultation with FWS for two reasons. First, the threat the aphid posed to the hemlock was well
known and FERC can reasonably believe it was considered by FWS in their July BiOp. Second,
FWS never sought to reinitiate consultation with FERC.
The knowledge that Hemlock Furry Aphid population was rapidly growing was widely
available, as was the Aphid’s threat to the American hemlock.
A core factor courts have looked to in deciding if an agency was required to reinitiate
consultation concerning a critical habitat was if new information reveals potential effects not
previously considered.37 In Wyoming Outdoor Council v. Bosworth a coalition of environmental
plaintiffs brought suit against the U.S. Forest Service (“UFS”) under ESA and APA for failing to
33
50 C.F.R. § 402.16(b).
(R. at 1-10.)
35
(R. at 10.).
36
50 C.F.R. § 402.16(b).
37
Pyramid Lake Paiute Tribe of Indians v. U.S. Dep't of Navy, 898 F.2d 1410, 1415 (9th Cir.
1990) (Holding in part that if FWS's opinion is based on “admittedly weak” information, the
action agency's reliance on that opinion will satisfy its obligations under ESA unless information
not previously considered can be pointed too).
34
2
9
reinitiate consultation with FWS before issuing oil and gas leases.38 The plaintiffs alleged that
UFS violated ESA by not reinitiating consultation with FWS upon new information regarding
grizzly bear habitat use in the forest where the leases were issued.39 The court held that UFS did
not act arbitrarily and capriciously in not reinitiating consultation with FWS, in part because the
areas importance to the grizzly bear was well know, and had been considered in the original
BiOp, even though it was not cited.40 The fact that the area’s importance to the grizzly was
known and considered in the original BiOp led the court to believe that there would be no
practical effect in UFS reinitiating consultation with FWS.41
The current case is analogous to Wyoming Outdoor Council in that FERC would
reasonably believe the potential effects of aphids in the Endorean Forest would have been
considered by FWS in their July 2014 BiOp.42 Furthermore, there is no evidence in the record to
suggest the aphid’s potential arrival in the Endorean National Forest where not considered. The
spread of the aphid is well known, as are its effect on the American hemlock.43 The aphid had
been spreading through the hemlock’s range for the past few decades, and recognizing it as a
threat several environmental groups even petitioned to have FWS list the tree in 2009.44 While
FWS exercised their expertise and discretion to not list the hemlock, they are aware of the threat
posed by the aphid’s growth.45 Considering the Endorean National Forest has the largest strands
38
Wyoming Outdoor Council v. Bosworth, 284 F. Supp. 2d 81, 82 (D.D.C. 2003) case dismissed,
No. 03-5302, 2004 WL 1345107 (D.C. Cir. June 15, 2004).
39
Id. at 87.
40
Id. at 94
41
Id. at 93
42
(R. at 9.).
43
(R. at 4).
44
Id.
45
Id.
2
10
of American hemlock, it is reasonable that the July 2014 BiOp FWS considered the likelihood of
aphids appearing absent evidence to the contrary. 46
FWS never sought to reinitiate consultation since the November 2014 aphid discovery.
In Wyoming Outdoor Council when discussing why UFS’ choice to not reinitiate
consultation was neither arbitrary, nor capricious, the court stated “there is nothing in the record
showing that the FWS requested reinitiation or otherwise disagrees with the Forest Service's
determination that the plaintiffs' information does not trigger reinitiation.”47 The issue was also
addressed in Hawksbill Sea Turtle v. Fed. Emergency Mgmt. Agency during a FEMA recovery
action following a hurricane.48 In Hawksbill Sea Turtle, the plaintiffs alleged FEMA had violated
its duty under ESA by not reinitiating consultation with FWS when the project was extended, as
it may affect a listed species.49 The court held in part that one of the reasons it was not arbitrary
and capricious for FEMA not reinitiating consultation was that FWS never requested it.50
Similar to the two aforementioned cases FWS never requested FERC to reinitiate
consultation. FWS could have request FERC reinitiate consultation if they believed the
November 2014 discovery warranted it, and they did not. The fact that reinitiation was never
requested exhibits that FWS in their discretion did not see the November 2014 discovery likely
to affect the critical habitat in a way not previously considered in their July 2014 BiOp. 51 The
standard of review is highly deferential, and the record reflects FERC acted reasonably in
46
Id.
Wyoming Outdoor Council 284 F. Supp. 2d at 95.
48
Hawksbill Sea Turtle v. Fed. Emergency Mgmt. Agency, 11 F. Supp. 2d 529, 533 (D.V.I.
1998).
49
Id. at 50.
50
Id.
51
(R. at 5.).
47
2
11
consultation with FWS and their decision to not reinitiate consultation cannot properly be viewed
to have acted arbitrary or capricious.
FERC as an action agency is entitled to consider the economic impact
of reasonable and prudent alternatives.
WPC in their claim state FERC erred in considering the economic impact of a reasonable
and prudent alternative (“RPA”) which would require routing the Mammoth Pipeline around the
Endorean National Forest, however, such consideration is rightly within their discretion.52
During formal consultation FWS discusses with the action agency RPAs that they believe can be
taken to avoid placing listed species in jeopardy, or adversely modify a critical habitat.”53 FWS
in their analysis of reasonable and prudent alternatives suggested FERC reroute the pipeline to
completely avoid the Endorean National Forest.54 FERC determined rerouting would be costprohibitive and will instead invoke mitigation measures.55 WPC’s sole claim regarding FERC’s
choice of mitigation over rerouting is that they erred in considering the economic impact of
rerouting.56 FERC as an action agency was acting within its discretion when it considered the
economic impact of the RPA for two reasons. First, RPA’s are required to be economically
feasible for agency implementation. Second, mitigation measures proposed by FERC are
acceptable under the jeopardy standard.
Reasonable and Prudent Alternatives are required to be economically feasible for
agency implementation.
52
(R. at 10.).
50 C.F.R. § 402.14(g)(5).
54
(R. at 9.).
55
Id.
56
(R. at 10.).
53
2
12
Under FWS’ regulatory structure for formal consultation when preparing a BiOp if they
reach a jeopardy opinion they must include “reasonable and prudent alternatives, if any. If the
Service is unable to develop such alternatives, it will indicate that to the best of its knowledge
there are no reasonable and prudent alternatives.”57 A jeopardy opinion is issued if “the action is
likely to jeopardize the continued existence of a listed species or result in the destruction or
adverse modification of critical habitat.”58 The record of the case at hand does not reflect that an
official jeopardy opinion was issued by FWS who provided one singular RPA.59 WPC claims
that it was improper of FERC to consider the economic impact of the one RPA.60 The most
persuasive evidence that economic impact can be considered when choosing an RPA is that the
regulatory structure includes an assessment of economic and monetary constraints during
formation of an RPA. There are four general requirements of an RPA during formal consultation
one of which being that a RPA is “economically and technologically feasible.”61
In Dow AgroSciences LLC v. Nat'l Marine Fisheries Service a pesticides manufacturer
challenged an RPA meant to protect certain salmonids that would establish buffer zone for
pesticide application.62 The pesticide manufacturer stated the RPA failed to consider the
economic impact buffer zones would have, especially “one-size-fits-all buffers.”63 The Fourth
Circuit Court of Appeals stated:
economic feasibility becomes especially relevant when
recommending uniform buffers because… pesticide applications
would be prohibited within 500 feet (for ground applications) and
1,000 feet (for aerial applications) of any waterway that is
57
50 C.F.R. § 402.14(h)(3).
Id.
59
(R. at 10.).
60
Id.
61
50 C.F.R. § 402.02.
62
Dow AgroSciences LLC v. Nat'l Marine Fisheries Serv., 707 F.3d 462, 465 (4th Cir. 2013).
63
Id. at 474.
58
2
13
connected, directly or indirectly, at any time of the year, to any
water body in which salmonids might be found at some point. Such
a broad prohibition readily calls for some analysis of its economic
and technical feasibility.64
The holding in Dow does not only express that considering an economic impact of a RPA is
permissible, it shows that RPAs must include an analysis of the economic feasibility. 65 Under
Dow it shows FERC acted reasonably and within their discretion when considering FWS RPA.
WPC is likely to claim that despite the holding in Dow the Ninth Circuit Court of
Appeals recently determined in San Luis & Delta-Mendota Water Authority v. Jewell that it
could not be required of FWS to account for an economic impact in an RPA.66 However, San
Luis dealt with a economic impact that would result from restricting water for agriculture and
human consumption, but still recognized that the economically and technically feasible
requirement of an RPA “constraints on what measures the FWS can recommend to the agency as
an alternative to ceasing the activity entirely.”67 FERC is the agency granting the certificate to
Mammoth Pipeline and considered the economic impact to implementing the RPA, not the
economic impact that would result from the RPA.68 RPAs recommended to agencies are
constrained by what is economically and technically feasible.69
In the case of the Mammoth Pipeline project, FWS did not recommend an RPA to FERC
that was economically feasible to implement, but rather one that was cost prohibitive.70
Rerouting the Mammoth Pipeline in accordance with FWS’ RPA would require an additional
64
Id. at 475.
Id.
66
San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 637 (9th Cir. 2014).
67
Id.at 636.
68
(R.at 9.).
69
See: Kandra v. United States, 145 F. Supp. 2d 1192, 1207 (D. Or. 2001) (The Court clarifying
the meaning of the “economically and technologically feasible” requirement concerns the
government’s capacity to implement the RPA.).
70
(R. at 9.).
65
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14
107 miles pipeline and a requisite compressor station, costing an estimated $1 billion.71 RPAs are
meant to be economically and technically feasible, and since the one provided to FERC was not,
a consideration of the economic impact was proper to determine the actual feasibility of it. The
Energy Policy Act of 2005 designates FERC as the lead agency in reviewing pipeline certificate
applications making pipeline certification an area of expertise for the agency.72 In Baltimore Gas
v. NRDC, the court stated “a reviewing court must remember that the Commission is making
predictions, within its area of special expertise, at the frontiers of science. When examining this
kind of scientific determination, as opposed to simple findings of fact, a reviewing court must
generally be at its most deferential.”73 When FERC received the RPA from FWS it reviewed the
plans to reroute, and was operating in its area of expertise when it determined that it could not be
implemented because it was not economically feasible.
Mitigation measures proposed by FERC acceptable under Jeopardy Standard
While FERC determined that the FWS RPA was not economically feasible, it
implemented its own mitigation measures in limiting construction to a time when the warblers
were not mating or raising their young.74 An action agency assessing which RPA to adopt is
under no obligation to choose one over the other as long as it complies with the jeopardy
standard.75 While not expressly presented by FWS regarding the warbler in the Mammoth
Pipeline project, the jeopardy standard is an action that could be reasonably expected “to reduce
71
Id.
PAUL W. PARFOMAK, CONG. RESEARCH SERV., R43138, INTERSTATE NATURAL
GAS PIPELINE: PROCESS AND TIMING OF FERC PERMIT APPLICATION REVIEW
(JAN. 16, 2015).
73
Baltimore Gas v. NRDC, 462 U.S. 87, 103 (1983).
74
(R. at 9.).
75
Sw. Ctr. for Biological Diversity v. U.S. Bureau of Reclamation, 143 F.3d 515, 519 (9th Cir.
1998).
72
2
15
appreciably the likelihood of both the survival and recovery of a listed species in the wild by
reducing the reproduction, numbers, or distribution of that species.”76 In Southwest Center for
Biological Diversity v. U.S. Bureau of Reclamation an environmental organization brought suit
against the Secretary of the Interior alleging violations of the ESA when a final RPA was
adopted during a reclamation project in a popular nesting area of a listed songbird.77 The court
stated on the adoption of the RPA “under the ESA, the Secretary was not required to pick the
first reasonable alternative the FWS came up with in formulating the RPA. The Secretary was
not even required to pick the best alternative or the one that would most effectively protect the
Flycatcher from jeopardy.”78 Southwest Center for Biological Diversity demonstrates that a wide
level of discretion is given to the FERC when determining their action, as long as it does not
violate the jeopardy standard.
FERC’s mitigation measures ensure construction is not going to disturb the warbler while
it is mating or raising young thus protecting its recovery as a species.79 The proposed route
contains only 50 nesting pairs, representing just over 3% of the warbler population in the
Endorean National Forest.80 Lastly, while the highest concentration of warblers is found in the
Endorean National Forest, roughly 17% of remaining Warbler nesting pairs are found elsewhere
ensuring the survival.81 In implementing these mitigation measures FERC has taken steps which
would satisfy the Jeopardy standard.
76
50 C.F.R. § 402.02.
Sw. Ctr. for Biological Diversity F.3d 515, 519 (9th Cir. 1998).
78
Id. at 522-23.
79
(R. at 9.).
80
(R. at 4-9.).
81
Id.
77
2
16
FERC’s consideration of the economic impact of FWS’ RPA was well within their
agency discretion and cannot be seen as arbitrary and capricious. The record reflects that FERC
consider all appropriate factors when assessing the RPA. FERC has been tasked with pipeline
certification and was acting within its area of expertise.82 As expressed in Baltimore Gas the
court must be at its most deferential in assessing their decision in this field.83
The National Environmental Policy Act Issues
Standard of Review
Agency actions pursuant to NEPA are subject to judicial review under §10 of the
Administrative Procedure Act (APA).84 The APA requires courts to “hold unlawful and set aside
agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.”85 This arbitrary and capricious standard is
deferential, and courts will not find agency actions arbitrary and capricious, unless “the agency
has relied on factors which Congress has not intended it to consider, entirely failed to consider an
important aspect of the problem, offered an explanation for its decision that runs counter to the
evidence before the agency,” or the agency acted so unreasonably “that it could not be ascribed
to a difference in view or the product of agency expertise.”86 Additionally, the courts “must
generally be at its most deferential,” when reviewing highly technical or scientific agency
determinations within its area special expertise.87
82
PAUL W. PARFOMAK, Supra note 57.
Baltimore Gas 462 U.S. at 103.
84
Sierra Club v. Marsh, 976 F.2d 763 (5th Cir. 1992).
85
5 U.S.C. § 706 (emphasis added).
86
Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29, 43 (1983).
87
Baltimore Gas v. NRDC, 462 U.S. 87, 103 (1983) (emphasis added).
83
2
17
NEPA requires federal agencies to prepare a detailed statement, known as an
Environmental Impact Statement (EIS) before a proposed action may be taken.88 Specifically,
agencies are required to take a hard look at the project’s potential environmental impacts and
whether viable alternatives to the project exist.89 Judicial review is limited to the administrative
record, and “[t]he role of the courts … is simply to ensure that the agency has adequately
considered and disclosed the environmental impact[s] of its actions and that its decision is not
arbitrary and capricious.”90 NEPA’s requirements are essentially procedural,91 and “as long as
the agency's decision is ‘fully informed’ and ‘well-considered,’ it is entitled to judicial deference
and a reviewing court should not substitute its own policy judgment.”92
The National Environmental Policy Act (NEPA)
NEPA serves dual purposes. First, it “places upon an agency the obligation to consider
every significant aspect of the environmental impact of a proposed action … Second, it ensures
that the agency will inform the public that it has indeed considered environmental concerns in its
decisionmaking process.”93 To accomplish these goals, agencies are required to prepare an EIS.94
Determining the appropriate scope of an EIS requires agencies to decide what actions, impacts,
and alternatives it must consider.95 The Council on Environmental Quality’s (CEQ) regulations
88
Marsh, 976 F.2d at 767.
NRDC v. Morton, 458 F.2d 827, 833 (D.C. Cir. 1972).
90
Utahns for Better Transp v. U.S. Dept. of Transp, 305 F.3d 1152, 1163 (10th Cir. 2002).
91
Vermont Yankee v. NRDC, 435 U.S. 519, 1219 (1978) (emphasis added).
92
Hammond v. Norton, 370 F. Supp. 2d 226, 242 (D.D.C. 2005).
93
Baltimore Gas, 462 U.S. at 97.
94
42 U.S.C. § 4332.
95
40 C.F.R. § 1508.25.
89
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18
require that all connected, cumulative, and similar actions “be considered together in a single
EIS,”96 and therefore, agencies are often required to consider multiple proposed actions.97
Once the scope is determined, the agency must then issue a draft EIS in accordance with
the scope.98 The agency will request comments on the draft, it will review the comments
received and will then issue its Final EIS, “responding to comments received … and discussing
any responsible opposing view which was not adequately discussed … and shall indicat[e] the
agency’s response to the issues raised.”99 Lastly, the agency will “publish a concise public record
of decision that….” states the agency’s ultimate decision, identifies and discusses the alternatives
considered, discusses “whether all practicable means to avoid or minimize environmental harm
… have been adopted,” and whether or not any mitigation measures were adopted.100 In general,
NEPA requires agencies to take a hard look at the potential impacts of a proposed action, and so
long as the agency prepares a comprehensive EIS, it shall be entitled to deference. 101 However,
failure to do so is a direct violation of NEPA, and will be subjected to the arbitrary and
capricious standard of review. Hammond P244.
FERC’s Correctly Determined The Scope Of Actions To Be Considered
FERC correctly determined the scope of actions to be considered within its EIS, and was
not required to include the Mitu Energy (Mitu) and NME Gas (NME) proposals for three
reasons. First, the three proposals are neither connected nor similar actions, and do not need to be
considered as cumulative actions, since Mammoth’s project has an independent utility. Second,
96
Thomas v. Peterson, 753 F.2d 754, 758 (9th Cir. 1985).
40 C.F.R. § 1508.25(a)(1)-(3).
98
(R. at 5.).
99
Id. at 5-6.
100
Id.
101
Hammond v. Norton, 370 F. Supp. 2d 226, 239-240 (D.D.C. 2005).
97
2
19
neither the Mitu or NME proposals will produce direct or reasonably foreseeable cumulative
impacts, so FERC did not need to consider them. Third, FERC did conduct a thorough
cumulative impact analysis, and thus, is entitled to deference. For these reasons, FERC was
neither arbitrary nor capricious.
FERC Correctly Determined The Scope Of Actions To Be Considered Within The EIS
The Three Proposals Are Neither Connected Nor Similar Actions
The CEQ’s regulations require all connected and similar actions to be considered together
in a single EIS.102 Connected actions are defined as actions that “(i) Automatically trigger other
actions which may require environmental impact statements; (ii) Cannot or will not proceed
unless other actions are taken previously or simultaneously; (iii) Are interdependent parts of a
larger action and depend on the larger action for their justification.”103 Similar actions are
defined as actions that “have similarities that provide a basis for evaluating their environmental
consequences together, such as common timing or geography.”104
Mammoth’s pipeline is a separate and distinct project that is neither a connected nor
similar action of the Mitu and NME proposals. Mammoth’s project involves the construction of a
physically independent and self-reliant pipeline. Specifically, the project plans to build “493.4
miles of … natural gas pipeline, three compressor stations, main line valves, pig launchers and
receivers, and communication towers to control the pipeline system.”105 Furthermore, not only
did Mammoth propose this action, but it has also taken affirmative steps forward. For example,
102
40 C.F.R. § 1508.25.
40 C.F.R. § 1508.25(a)(1)(i)-(iii).
104
40 C.F.R. § 1508.25(a)(3).
105
(R. at 3.).
103
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20
Mammoth successfully requested and received FERC’s approval to pre-file for a Certificate of
Public Convenience and Necessity (Certificate). FERC’s approval is critical, exemplifying the
fact that Mammoth’s project is not dependent upon the others.106 Subsequently, FERC issued its
draft EIS in January 2015,107 published its final EIS on May 22nd, 2015 and ultimately its Record
of Decision (ROD) granting Mammoth’s Certificate on July 31st, 2015.108 In contrast, Mitu and
NME did not request FERC’s approval to pre-file for a Certificate until May 2015.109
Furthermore, although Mitu and NME have requested FERC’s permission to pre-file, the record
is completely void of any evidence or indication that FERC will approve their request. This
timeline and sequence of events demonstrates that Mammoth’s pipeline did not automatically
trigger the other two; that Mammoth’s pipeline is not dependent upon the others to proceed; that
the three project’s do not share similar timing; and perhaps most importantly, that these projects
are not physically interdependent parts of a larger action, which is supported by the fact that
“both Mitu Energy and NME Gas companies proposed separate pipeline projects….”110 The
only similarity that these three would potentially share is their proposed route.111 Therefore,
these three proposals are neither similar nor connected actions, and therefore, FERC was not
arbitrary or capricious in excluding them from the scope of its EIS.
These Three Proposals Did Not Need To Be Considered As Cumulative Actions, Because The
Mammoth Pipeline Possesses An Independent Utility
106
Section 7(c) of the Natural Gas Act (NGA) explicitly states that no persons or companies
shall “undertake the construction or extension of any facilities therefor, … unless there is in
force with respect to such natural-gas company a certificate of public convenience and necessity
issued by [FERC] authorizing such acts or operation.” U.S.C. § 717f (emphasis added).
107
Id. at 7.
108
Id. at 10.
109
Id. at 9.
110
Id. (emphasis added).
111
Id.
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21
FERC correctly determined that the three proposals did not need to be considered as
cumulative actions, because the Mammoth project has an independent utility. The CEQ’s
regulations define cumulative actions as actions “when viewed with other proposed actions have
cumulatively significant impacts….”112 Due to their combined impacts, the regulations require
that they be considered together.113 This requirement prevents agencies from impermissibly
segmenting their analysis by “divid[ing] connected, cumulative, or similar federal actions into
separate projects [] thereby fail[ing] to address the true scope and impact of the activities that
should be under consideration.”114 In general, segmentation is a direct violation of NEPA,
because it divides “an overall plan into component parts, each involving action with less
significant environmental effects,”115 but which collectively possess significant impacts.116
However, the rule against segmentation is not absolute.117 For example, a reviewing court may
determine that an EIS was not impermissibly segmented, if the proposed segment has substantial
independent utility.118 Accordingly, the courts have developed an “independent utility test to
determine whether an agency is required to consider multiple actions in a single NEPA
review….”119 This test seeks to determine “whether the project ‘will serve a significant purpose
even if [the] second related project is not built.”120 If so, the proposed action has an independent
utility, and the agency is not required to consider other actions within its EIS.
112
40 C.F.R. § 1508.25(a)(2).
40 C.F.R. § 1508.25.
114
Delaware Riverkeeper Network v. FERC, 753 F.3d 1304, 1313 (D.C. Cir. 2014).
115
Taxpayers Watchdog v. Stanley, 819 F.2d 294, 298 (D.C. Cir. 1987).
116
Delaware Riverkeeper Network, v753 F.3d at 1314.
117
Taxpayers Watchdog, 819 F.2d at 298.
118
Id.
119
Wetlands Action Network v. U.S. Army Corps of Engineers, 222 F.3d 1105, 1118 (9th Cir.
2000).
120
Florida Keys Citizens Coalition, Inc. v. U.S. Army Corps of Engineers, 374 F. Supp. 2d 1116,
1150 (S.D. Fla. 2005).
113
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22
In this case, FERC permissibly segmented its NEPA review, because Mammoth’s project
has an independent utility. The project’s stated need “arises from the state’s demand in its Clean
Energy Act for low or zero emission electricity and no natural gas transportation service provider
currently serves Franklin.”121 Although there is an abundant supply of natural gas located nearby
in the Maximus Shale, there is currently no pipeline infrastructure to transport it to Franklin.122
This combination of Franklin’s anticipated demand, and its complete lack of infrastructure,
proves that the Mammoth pipeline would provide a desired service to Franklin. Specifically, this
service would be the transportation of natural gas, and this benefit would occur regardless of
whether or not the Mitu and NME pipelines are constructed. Since Mammoth has an independent
utility, FERC was not arbitrary or capricious to limit the scope of actions it considered.
FERC Adequately Considered All Of The Project’s Direct, Indirect, and Cumulative
Impacts
The CEQ’s regulations require agencies to consider a proposed action’s direct, indirect,
and cumulative impacts within a single EIS123. Indirect impacts are defined as secondary, or
reasonably foreseeable effects of a proposed action.124 Whereas, cumulative impacts are defined
as “the impact on the environment which results from the incremental impact of the action when
added to other past, present, and reasonably foreseeable future actions….”125 Agencies are only
required to consider an action’s direct and reasonably foreseeable indirect impacts.126
Reasonably foreseeable impacts are defined as impacts that are “sufficiently likely to occur
121
(R. at 8.).
Id.
123
40 C.F.R. § 1508.25(a)(c).
124
Marsh, 976 F.2d at 767.
125
40 C.F.R. § 1508.7 (emphasis added).
126
Marsh, 976 F.2d at 768.
122
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23
[such] that [a] person of ordinary prudence would take [them] into account….”127 The courts
have held that “potential effects that are highly speculative or indefinite,” do not qualify as
reasonably foreseeable, and thus, do not need to be considered.128
Furthermore, NEPA only requires agencies to consider “the environmental impact[s] of a
proposed action.”129 NEPA’s mandate applies exclusively to “proposed actions; it does not
require an agency to consider the possible environmental impacts of less imminent actions when
preparing the impact statement on [a] proposed action.”130 Rather, agencies will only have to
consider the impacts of these less imminent actions, if the “contemplated actions later reach the
stage of actual proposals,”131 and if this occurs, the new EIS “will take into account the effect of
their approval on the existing environment and the condition of that environment presumably
will reflect earlier proposed actions and their effects.”132
Based on the record, Mammoth’s project became an actual proposed action in May 2013,
when FERC granted its request to pre-file.133 In contrast, Mitu and NME did not request to prefile until May 2015, and there is no evidence that FERC will grant their requests.134 Accordingly,
neither the Mitu nor NME proposals are currently actual proposed actions. They are merely
contemplated future plans, and their potential impacts are hypothetical and speculative. In sum,
because NEPA only requires agencies to consider an action’s direct and reasonably foreseeable
127
Louisiana Crawfish Producers Ass'n v. Rowan, 463 F.3d 352, 358 (5th Cir. 2006).
Marsh, 976 F.2d at 768 (emphasis added).
129
Baltimore Gas, 462 U.S. at 97 (emphasis added).
130
Kleppe v. Sierra Club, 427 U.S. 390, n.20 (1976).
131
Id.
132
Id.
133
(R. at 7.).
134
Id. at 9.
128
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24
impacts, FERC was neither arbitrary nor capricious with regard to its cumulative impact
analysis.
FERC Properly Determined the Scope Of Actions And Impacts To Be Considered Within
The EIS, And Thus, Is Entitled To Deference
The record demonstrates that FERC conducted a thorough cumulative impacts analysis,
and therefore, is entitled to deference. For example, FERC’s draft EIS considered “several
projects with potential cumulative impacts on resources within the general area of the Mammoth
Pipeline.”135 Specifically, the cumulative impacts analysis “included four wind farms (with a
total of 394 turbines proposed) in varying stages of development near the pipeline route in
Franklin, a [proposed] 423-mile electric power line … and two large residential developments
being built in Spencer….”136 After taking a hard look at the potential cumulative impacts, FERC
reasonably concluded that “the cumulative impacts from the additional projects would be no
different from those of the Mammoth Pipeline,”137 because (1) the wind farms were proposed to
be built entirely on agricultural farmland, (2) “the electric power line was proposed to run nearly
parallel to the pipeline,” and (3) the two housing developments were proposed to be built 12
miles outside of Easton, Spencer, which FERC described as “the outskirts of a suburban area.”138
Not only did FERC consider the cumulative impacts of nearby proposed actions, but it also
considered several important environmental factors such as the “geology, soils, ground and
surface water, vegetation, fisheries and wildlife, threatened, endangered, and other special status
species, land use, including agricultural resources, air quality and noise,”139 ultimately describing
135
Id.
Id.
137
Id.
138
Id.
139
Id. at 7.
136
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25
“the affected environment as it currently exists, address[ing] the environmental consequences of
the proposed project, [and] evaluat[ing] the cumulative impacts of the project.”140 In sum, FERC
thoroughly considered all of the action’s cumulative impacts, and thus, was neither arbitrary nor
capricious with regard to its cumulative impacts analysis.
FERC Satisfied Its NEPA Requirements, Because It Considered All
Reasonable Alternatives In-Light Of The Project’s Objective
FERC was not arbitrary or capricious with regard to its decision not to consider
additional pipeline routes, energy source combinations, and energy efficiency as alternatives for
two reasons. First, FERC conducted a thorough and objectively reasonable alternatives analysis,
because considered all reasonable alternatives in light of the project’s objective; it was not
required to consider every possible alternative. Second, FERC was not obligated to reject
Mammoth’s purpose and need statement in favor of WPC’s proposed hypothetical alternative.
NEPA’s Regulations Do Not Require Agencies To Consider Every Possible Alternative
FERC satisfied its NEPA requirements, because it thoroughly considered all reasonable
alternatives in-light of the project’s objectives. The CEQ’s regulations require agencies to
consider alternatives to a proposed action,141 and this discussion has been summarized as “the
heart of the [EIS].”142
A Summary Of NEPA’s Alternative Analysis Requirement
140
Id. at 7-8.
40 C.F.R. § 1508.25.
142
Citizens Against Burlington v. Busey, 938 F.2d 190, 194 (D.C. Cir. 1991).
141
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26
NEPA requires agencies to consider alternatives to a proposed action within its EIS.
Specifically, agencies must consider a no action alternative, and other reasonable alternatives to
the proposed action.143 Agencies must “[r]igorously explore and objectively evaluate all
reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly
discuss the reasons for their having been eliminated.”144 This requirement, however, only
requires agencies to consider reasonable alternatives.145 NEPA “does not require [a] ‘crystal ball’
inquiry,”146 meaning that a court will not find an EIS inadequate “simply because the agency
failed to include every alternative device and thought conceivable by the mind of man.”147
The courts have held that “[a]n alternative is ‘reasonable’’ if it is objectively feasible as
well as ‘reasonable in light of [the agency’s] objectives.’”148 Therefore, it is imperative that the
agency’s EIS specifies the project’s underlying purpose and need,149 because this statement
“delimit[s] the universe of the action's reasonable alternatives.”150 Lastly, courts have held that
agencies need only follow a rule of reason, “and that this rule of reason governs ‘both which
alternatives the agency must discuss, and the extent to which it must discuss them.’”151 Under
this standard, the courts “review an agency’s compliance with NEPA’s requirements
deferentially,” and will “uphold its discussion of alternatives so long as the alternatives are
reasonable and the agency discusses them in reasonable detail.”152
143
40 C.F.R. § 1508.25(b).
40 C.F.R. § 1502.14(a) (emphasis added).
145
Vermont Yankee, 435 U.S. at 1215-1216.
146
NRDC v. Morton, 458 F.2d 827, 837 (D.C. Cir. 1972).
147
Vermont Yankee, 435 U.S. at 1215.
148
Myersville Citizens v. FERC, 783 F.3d 1301, 1323 (D.C. Cir. 2015).
149
40 C.F.R. § 1502.13 (emphasis added).
150
Hammond, 370 F. Supp. 2d at 241.
151
Citizens Against Burlington, 938 F.2d at. 195.
152
Id.
144
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27
FERC Satisfied NEPA’s Alternative Analysis Requirement
FERC identified and assessed all reasonable alternative in-light of the project’s purpose
and need statement, and thus, was neither arbitrary nor capricious. The EIS explicitly states that
the project’s purpose “is to provide natural gas transportation service … to anticipated customers
in Franklin,” and that its need “arises from the state’s demand in its Clean Energy Act for low or
zero emission electricity generation and no natural gas transportation service provider currently
serves Franklin.”153 In light of the statement, FERC “considered the ‘no action’ alternative, …
individual types of renewable energy sources and other fossil fuels,” as well as eleven alternative
pipeline routes.154
Specifically, FERC considered the no action alternative, which would entail denying
Mammoth the Certificate and prohibiting the construction of the pipeline.155 Although FERC
determined that the no action alternative would eliminate all of the project’s potential impacts,
FERC concluded that “the objectives of the proposed project … would not be met with the ‘no
action’ alternative and Mammoth would not be able to provide a new source of natural gas to
markets [in] Franklin.”156 Based on these findings, FERC eliminated the no action alternative.157
Additionally, FERC also considered several other reasonable alternatives, with regard to both the
project’s route and energy source.158 Specifically, FERC considered several alternative energy
sources, such as “wind, solar, nuclear, biomass, coal, oil, hydropower, geothermal, and increased
efficiency/conservation,” but ultimately “determined that each source on its own could not
153
(R.8).
Id.
155
Id.
156
Id.
157
Id.
158
Id.
154
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28
provide the same amount of energy that Mammoth would supply, although many sources would
have lesser environmental impacts….”159 Lastly, FERC also considered “eleven ‘Major Route
Alternatives’ to determine if they would avoid or reduce impacts on environmentally sensitive
resources.”160 Although FERC only rigorously explored and evaluated the Shady Holler
alternative, it did briefly discuss why it eliminated the two northern routes,161 and was not
required to discuss the others, since the courts have held that agencies “need not analyze ‘the
environmental consequences of alternatives it has in good faith rejected as too remote,
speculative, or … impractical or ineffective.”162 Ultimately, FERC decided that the only
potentially reasonable alternative route was the Shady Holler route. However, FERC soon
determined that this alternative would require an additional 52 miles of pipeline, and that
although it would fragment less of the warbler’s critical habitat, it would actually pass through a
more densely populated portion of the habitat.163 Based on these findings, FERC concluded that
the benefits provided to the warbler were speculative. Accordingly, FERC decided not to
recommend the Shady Holler route.164
159
Id.
Id.
161
FERC briefly discussed and eliminated two alternative northern routes. FERC found that one
of them “would completely avoid the Endorean National Forest, but would require the pipeline
to cross through eight large wetland complexes that are critical habitat for several endangered
species, including the eastern bog turtle, Lonely Mountain salamander, and southern leopard
frog,” (R. at 8.), and that the second alternative northern route would “require more greenfield
use instead of locating the pipeline along existing rights-of-way and would add 103 miles to the
pipeline route.” Id. Based on these findings, FERC did not recommend either alternative. Id.
162
Fuel Safe Washington v. FERC, 389 F.3d 1313, 1323 (10th Cir. 2004).
163
(R. at 8-9.).
164
Id.
160
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29
In conclusion, the record demonstrates that FERC engaged in an objective analysis of all
alternatives that it believed to be reasonable in light of the project’s objectives. Therefore,
FERC’s alternative analysis was neither arbitrary nor capricious.
FERC Was Not Obligated To Reject The Project’s Purpose And Need Statement In Favor
Of A Hypothetical Alternative
NEPA does not require agencies to consider all possible or proposed alternatives.165
Agencies are only required to consider reasonable alternatives.166 In this case, WPC incorrectly
alleges that FERC violated NEPA by failing to consider “combinations of low-carbon and
renewable energy sources and energy efficiency as an alternative to the proposed pipeline
inasmuch as the pipeline’s stated purpose is to meet Franklin’s GHG emission reduction goal.”167
First off, alternatives are only reasonable if they are “non-speculative … and bounded by some
notion of feasibility.”168 Second, while it is true that a court will gauge the reasonableness of a
proposed alternative by comparing it to a project’s purpose and need statement, an agency is not
obligated to reject a project’s purpose and need statement in favor of a hypothetical
environmentally preferable alternative.169
WPC is correct that the project’s need “arises from the state’s demand in its Clean
Energy Act for low or zero emission electricity generation….”170 However, WPC is incorrect to
assume that FERC disregarded the project’s purpose and need when it chose not to consider
energy source combinations and energy efficiency as alternatives. Mammoth’s specific proposal
165
Louisiana Crawfish Producers Ass'n, 463 F.3d at 356.
Id.
167
(R. at 10.).
168
Utahns for Better Transp, 305 F.3d at 1172.
169
Fuel Safe Washington v. FERC, 389 F.3d 1313, 1323-1324 (10th Cir. 2004).
170
(R. at 8.).
166
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is to build an interstate natural gas transportation pipeline. Accordingly, Mammoth, not FERC,
defined the project’s purpose and need. That statement explicitly states, “the purpose of the
project is to provide natural gas transportation service….”171 Courts have held that when “the
action subject to NEPA review is triggered by a proposal or application from a private party, it
is appropriate for the agency to give substantial weight to the goals and objectives of that
actor.”172 Accordingly, since Mammoth is a private company, and its objective was to build a
natural gas pipeline, “FERC was not obligated to reject that project in favor of a non-natural gas
alternative which was purely hypothetical and speculative,”173 such as WPC’s proposed energy
combination and energy efficiency alternatives. For example, energy efficiency “has a
deceptively simple ring in this context,” but when “[t]aken literally, the phrase suggests a
virtually limitless range of possible actions and developments that might, in one way or another,
ultimately reduce projected demands for electricity from a particular proposed plant.”174
In sum, WPC’s proposed alternatives were not reasonable in light of the project’s stated
goal to build a natural gas transportation pipeline, and were not reasonable because they are
speculative alternatives that are vague at-best. Therefore, FERC’s decision not to consider
WPC’s proposed alternatives was reasonable, and not arbitrary or capricious.
Conclusion
For the foregoing reasons, WPC’s request for a rehearing to review FERC’s order should
be denied.
171
Id. (emphasis added).
Citizens' Comm. to Save Our Canyons v. U.S. Forest Service, 297 F.3d 1012, 1030 (10th Cir.
2002).
173
Fuel Safe Washington, 389 F.3d at 1324.
174
Vermont Yankee, 435 U.S. at 1216 (emphasis added).
172
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