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Millennium Pipeline Company, L.L.C. v. Seggos

United States Court of Appeals, District of Columbia Circuit

June 23, 2017

Millennium Pipeline Company, L.L.C., Petitioner
v.
Basil Seggos and New York State Department of Environmental Conservation, Respondents CPV Valley, LLC, Intervenor

          Argued March 3, 2017

         On Petition for Review from the New York State Department of Environmental Conservation

          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.

          Brian 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.

          OPINION

          Srinivasan, Circuit Judge

         Millennium 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. § 1341(a)(1).

         As part 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.

         We 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.

         I.

         A.

         For any 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. § 717f(c).

         Before 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 ...


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