United States Court of Appeals, District of Columbia Circuit
March 3, 2017
Petition for Review from the New York State Department of
Catherine E. Stetson argued the cause for petitioner. With
her on the briefs was Sean Marotta.
Elizabeth W. Whittle was on the brief for intervenor CPV
Valley, LLC in support of petitioner.
M. Lusignan, Assistant Attorney General, Office of the
Attorney General for the State of New York, argued the cause
for respondents. With him on the brief were Eric T.
Schneidermann, Attorney General, Barbara D. Underwood,
Solicitor General, Frederick A. Brodie, Assistant Solicitor
General, and Lisa M. Burianek, Deputy Bureau Chief.
Before: Tatel, Srinivasan, and Wilkins, Circuit Judges.
Srinivasan, Circuit Judge
Pipeline Company, L.L.C., would like to extend its existing
natural gas pipeline in Orange County, New York. Before it
can break ground, however, it must gain the approval of the
Federal Energy Regulatory Commission (FERC). Millennium must
also comply with environmental regulations like the Clean
Water Act, which requires it to show that its pipeline will
meet all applicable water-quality requirements. 33 U.S.C.
of that permitting process, Millennium submitted an
application for a water-quality certificate to the New York
State Department of Environmental Conservation. More than a
year has passed, but the Department has taken no formal
action on Millennium's application. Millennium now asks
us to compel the Department to act on the application.
dismiss Millennium's petition for review. Even if the
Department has unlawfully delayed acting on Millennium's
application, its inaction would operate as a waiver, enabling
Millennium to bypass the Department and proceed to obtain
approval from FERC. The Department's delay, then, causes
Millennium no cognizable injury. Millennium therefore lacks
standing to proceed with its petition.
company desiring to construct a natural gas pipeline, all
roads lead to FERC. The Natural Gas Act of 1938 vests the
agency with "exclusive jurisdiction" over the
interstate transportation of natural gas. Schneidewind v.
ANR Pipeline Co., 485 U.S. 293, 300-01 (1988). No
company or person may construct a natural gas pipeline
without first obtaining "a certificate of public
convenience and necessity" from the agency. 15 U.S.C.
FERC can issue a certificate of public convenience, the
agency must ensure that the proposed pipeline complies with
all applicable federal, state, and local regulations.
See 15 U.S.C. § 717b(d); 18 C.F.R. § 4.38.
The Clean Water Act, the statute at issue in this case, is
one such regulatory regime. See 33 U.S.C. §
1341(a)(1); 15 U.S.C. § 717b(d)(3). Because
Millennium's proposed pipeline would traverse several
streams in southern New York, the Clean Water Act requires
the State to certify that any discharge from the pipeline
will comply with the Act's water-quality requirements. 33