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 2 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 2 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 2 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. 2 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 2 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 2 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 2 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 2 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 2 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 2 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 2 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 2 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 2 30 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 2