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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 19, 2004 Decided July 9, 2004
No. 03-1111
NATIONAL COMMITTEE FOR THE NEW RIVER, INC.
AND BARBARA G. SMITH, AN INDIVIDUAL,
PETITIONERS
v.
FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT
EAST TENNESSEE NATURAL GAS COMPANY,
INTERVENOR
On Petition for Review of Orders of the
Federal Energy Regulatory Commission
James W. McNeely argued the cause and filed the briefs
for petitioners.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Dennis Lane, Solicitor, Federal Energy Regulatory Com-
mission, argued the cause for respondent. With him on the
brief was Cynthia A. Marlette, General Counsel.
Henry S. May, Jr., John S. Decker, Catherine O’Harra and
Paul M. Teague were on the brief for intervenor.
Before: SENTELLE, ROGERS and GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: At issue in this appeal are two
orders of the Federal Energy Regulatory Commission ap-
proving the application of the East Tennessee Natural Gas
Company (‘‘East Tennessee’’) for a certificate of public con-
venience and necessity to construct a pipeline extension
through southwest Virginia and North Carolina known as
‘‘the Patriot Project.’’ The National Committee for the New
River, Inc. and others (together ‘‘New River’’) contend that
the Commission’s environmental review of the Patriot Project
was deficient in several respects: (1) the draft environmental
statement was inadequate and incomplete in its disclosure
and analysis of the environmental effect of the project; (2)
neither the draft nor the final environmental impact state-
ments adequately identified alternate routes for the pipeline;
(3) the location of the underground taps should not have been
considered in evaluating alternative routes for the pipeline, or
if considered, their environmental impacts should have been
considered; and (4) the draft environmental impact statement
was deficient for failing to consider the impacts of two
proposed generating plants.
We hold that the record demonstrates, consistent with the
evolving nature of a major project, that the Commission’s
process for ventilating and analyzing potential environmental
impacts of the Patriot Project involved the requisite ‘‘hard
look,’’ see Robertson v. Methow Valley Citizens Council, 490
U.S. 332, 350 (1989), and that any deficiencies in the draft
environmental impact statement as may have existed were
cured by the final environmental impact statement. Accord-
ingly, because the Commission’s approval of East Tennessee’s
application and the conditional issuance of a certificate of
3
public convenience and necessity to East Tennessee was not
arbitrary and capricious or an abuse of discretion, we deny
the petition.
I.
On July 26, 2001, East Tennessee Natural Gas Company
(‘‘East Tennessee’’) filed an application for a certificate of
public convenience and necessity under § 7(c) of the Natural
Gas Act (‘‘NGA’’), 15 U.S.C. § 717f(c), to expand an existing
natural gas transportation pipeline in Tennessee and south-
west Virginia, and to extend a new pipeline from Virginia to
North Carolina (‘‘the Patriot Project’’). The purpose of the
project was to help meet forecasted growth in natural gas
consumption in Tennessee, Virginia, and North Carolina, to
provide resources to meet the increased demand for natural
gas-fired electric generation, and to stimulate industrial de-
velopment in the region. The project would affect about
2,707 acres of land in three states, with a pipeline right-of-
way 100 feet wide. It includes a 94 mile extension of East
Tennessee’s mainline transmission facilities from near Wythe-
ville, Virginia to an intersection with facilities of the Trans-
continental Gas Pipe Line Corporation in Eden, North Car-
olina, a seven mile extension to service a power plant in
Henry County, Virginia, and associated mainline valves and
other facilities, including underground taps.
On March 27, 2002, the Commission, following its policy of
evaluating non-environmental aspects of a proposed project
before the environmental ones, issued a Preliminary Deter-
mination on Non–Environmental Issues, finding that the
public benefits of East Tennessee’s proposal outweighed any
adverse impacts. 98 FERC ¶ 61,331, 62,392 (2002). In mak-
ing this determination, it weighed such factors as the propos-
al’s market support and economic, operational, and competi-
tive benefits. See Certification of New Interstate Natural
Gas Pipeline Facilities, 88 FERC ¶ 61,227, 61,743 (1999);
Order Clarifying Statement of Policy, 90 FERC ¶ 61,128,
61,396 (2000); Order Further Clarifying Statement of Policy,
92 FERC ¶ 61,094, 61,373 (2000). On the benefits side, the
4
Commission found that the ‘‘Patriot Project is in the public
interest because it will provide fuel for new electric genera-
tion plants, provide additional gas supplies to existing local
distribution companies (LDCs), and bring natural gas service
to portions of southwestern Virginia for the first time.’’
Preliminary Determination, 98 FERC at 62,392. It also
noted that there was ample market demand for the Project,
with seven shippers already under contract for 87 percent of
the Project’s capacity. On the impacts side, the Commission
expected many potential adverse effects ‘‘will be resolved or
mitigated with appropriate conditions in [the] final order’’ and
with provisions for compensating property owners for any
damage to property or the taking of property necessary for
the pipeline right-of-way. Id. at 62,402. The Commission
reserved issuance of the certificate pending completion of its
environmental review.
The Commission’s process for evaluating the environmental
impacts of the project involved six steps: a notice of intent to
prepare an impact statement, a draft impact statement, public
hearings, staff review and evaluation of comments, a final
impact statement, and finally Commission consideration of the
final statement. On October 1, 2001, the Commission issued
a Notice of Intent to Prepare an Environmental Impact
Statement and Request for Comments on Environmental
Issues (‘‘NOI’’). The NOI described the project and included
an overview map as well as a website where further informa-
tion was available. It advised that public ‘‘scoping’’ meetings
would be held to solicit and address public concerns, and that
there would be a visit to the proposed route. The NOI was
sent to approximately 2,460 individuals, organizations, and
interested parties, including federal, state, county, and local
agencies, elected officials, and property owners along the
proposed route of the extended pipeline. Four public scoping
meetings and two public working meetings in various cities
along the proposed route were held, and several hundred
comments and objections were received.
On April 25, 2002, a draft environmental impact statement
(‘‘DEIS’’) was issued, assessing the environmental impacts
associated with the construction and operation of the pipeline.
5
After the time for comment on the DEIS was extended, five
public comment meetings were held in Virginia and Tennes-
see and one in Washington, D.C. Following evaluation of the
comments by Commission staff, a final environmental impact
statement (‘‘FEIS’’) was issued on September 23, 2002. The
Commission determined that the Patriot Project would result
in limited adverse environmental impacts, and that mitigation
measures detailed in the FEIS would ‘‘appropriately and
reasonably’’ reduce and compensate for them.
In the first order on review, the Commission on November
20, 2002, issued East Tennessee a final certificate of authori-
zation, subject to 69 conditions to mitigate environmental
impacts. See Order Denying Rehearing, Authorizing Aban-
donment, and Issuing Certificate (‘‘Initial Order’’), 101
FERC ¶ 61,188, 61,743 (2002). The Commission rejected
New River’s petition for reconsideration of the Preliminary
Determination, where it had argued that current data failed
to support the need for increased gas service in the region,
and that the economic benefits of the project were overstated.
As relevant here, the Commission addressed the process of
its environmental analysis, and explained that it was approv-
ing the project and general route, but not the final route
delineation, due to survey and environmental study gaps
resulting from East Tennessee’s inability in some areas to
gain access to property, the numerous conditions to be satis-
fied, and the need to obtain approval by various state and
federal agencies regarding various aspects of the project.
See Initial Order, 101 FERC at 61,756. It also addressed
subjects New River raises in this appeal, such as the consid-
eration of taps and alternative routes, and stated that it was
adopting certain recommendations from the Virginia Depart-
ment of Environmental Quality as added conditions to the
Order. Id. at 61,759.
In the second order on review, the Commission, on Febru-
ary 27, 2003, denied the petition for rehearing of the Novem-
ber 20, 2002 order brought by New River, the Blue Ridge
Coalition, and other petitioners, and denied New River’s
separate request for a stay. See Order on Rehearing and
Denying Stay (‘‘Rehearing Order’’), 102 FERC ¶ 61,225, 61,-
6
655 (2003). The Commission rejected the stay as making no
attempt to address the criteria for granting a stay, and,
offering largely the same reasons as in the Initial Order,
addressed the need for the Patriot Project, the adequacy of
notice of the underground taps in the NOI and DEIS, and
various environmental issues. See id. at 61,657–64.
II.
The court’s review of New River’s challenges to the Com-
mission’s approval of the Patriot Project is limited to deter-
mining whether the two orders are ‘‘arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.’’
5 U.S.C. § 706(2)(A). See B&J Oil & Gas v. FERC, 353 F.3d
71, 75 (D.C. Cir. 2004); Pub. Utils. Comm’n v. FERC, 254
F.3d 250, 253–54 (D.C. Cir. 2001). The court considers, in
this regard, both ‘‘whether the decision was based on a
consideration of the relevant factors and whether there has
been a clear error of judgment.’’ ExxonMobil Gas Market-
ing Co. v. FERC, 297 F.3d 1071, 1083 (D.C. Cir. 2002)
(quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401
U.S. 402, 416 (1971)). The court cannot substitute its judg-
ment for that of the Commission, id., and it must uphold the
Commission’s factual findings if they are supported by sub-
stantial evidence. 15 U.S.C. § 717r(b); Texaco Inc. v. FERC,
148 F.3d 1091, 1095 (D.C. Cir. 1998).
The same standard applies to New River’s challenge to the
adequacy of the Commission’s compliance with the National
Environmental Policy Act of 1969 (‘‘NEPA’’), 42 U.S.C.
§ 4332(2)(c), and to the court’s determination of the adequacy
of the Environmental Impact Statement (‘‘EIS’’). See City of
Olmsted Falls v. FAA, 292 F.3d 261, 269 (D.C. Cir. 2002)
(citing Marsh v. Oregon Natural Res. Council, 490 U.S. 360,
376 (1989)). Under NEPA, the court’s role is ‘‘simply to
ensure that the agency has adequately considered and dis-
closed the environmental impact of its actions and that its
decision is not arbitrary or capricious.’’ Baltimore Gas &
Elec. v. NRDC, 462 U.S. 87, 97–98 (1983). An environmental
impact statement is reviewed to ‘‘ensure that the agency took
7
a ‘hard look’ at the environmental consequences of its decision
to go forward with the project.’’ Olmsted Falls, 292 F.3d at
269 (quoting City of Grapevine, Tex. v. DOT, 17 F.3d 1502,
1503–04 (D.C. Cir. 1994)). When an agency ‘‘is evaluating
scientific data within its technical expertise,’’ an ‘‘extreme
degree of deference to the agency’’ is warranted. B&J Oil &
Gas, 353 F.3d at 76 (quoting City of Waukesha v. EPA, 320
F.3d 228, 247 (D.C. Cir. 2003)).
A.
New River’s challenge to the Commission’s orders begins
with the contention that the DEIS was inadequate and incom-
plete in its analysis of the environmental effects of East
Tennessee’s proposal, and was improperly segmented and
sequenced. In New River’s view, the DEIS was also ‘‘so
incomplete and inadequate in important areas as to preclude
meaningful analysis or comment,’’ Petitioners’ Br. at 30, that
it should have been revised and republished, pursuant to
Council on Environmental Quality (‘‘CEQ’’) regulations, 40
C.F.R. § 1502.9(a).
The DEIS revealed that as of the time it was prepared,
East Tennessee had not yet filed a site-specific crossing plan
for the New River waterway with the Commission. It ad-
vised, however, that the New River would be crossed using
the horizontal directional drill (‘‘HDD’’) technique, and that
the crossing would be approximately 420 feet wide. The
Commission disclosed that East Tennessee had met with
Park representatives in May and November 2001, and that
the ‘‘HDD exit point would be in an area the park has
planned for the new campground facilities.’’ Patriot Project
Draft Environmental Impact Statement (‘‘DEIS’’), FERC
Docket No. CP01–415–000, at 3–99 (Apr. 25, 2002). Further,
the Commission noted that the Park Manager had been
‘‘concerned about disruption of the park trail traffic, settling
of the trail along the trench line, and the introduction of a
new cut in the treeline,’’ and that the Park had expressed
concern about an existing water well close to the proposed
HDD crossing. Id.
8
That the description in the DEIS was sufficient to provide
‘‘a springboard for public comment,’’ Robertson, 490 U.S. at
349, would appear evident from the comments received by the
Commission. New River, for instance, commented in an
Issue Paper on August 19, 2002 that East Tennessee had
failed to disclose that the proposed gas line route would pass
directly through Park property and that there was a 30%
probability that the HDD would fail. The Virginia Horse
Council submitted a comment expressing concern that the
exit hole and open trench area was a State Park equestrian
campground, that the HDD crossing under the river might
not turn out to be possible, that a gas-fired steam power plant
would be located within a half mile of the state park, that
tourism would suffer, and that there could be adverse biologi-
cal impacts on the river both as a water source and as an
aquatic habitat. The Blue Ridge Coalition, Roanoke River
Basin Association, Appalachian Trail Conference, and the
Environmental Protection Agency (‘‘EPA’’), among others,
also submitted comments on the DEIS. The comments re-
ceived by the Commission were sufficiently detailed and
critical of particular deficiencies in the DEIS that the Com-
mission was later able to address the deficiencies in the
FEIS. The FEIS responded to some comments by explana-
tion and for others, recommended conditions that had to be
satisfied before the certificate could be ‘‘effectuated.’’ See
Rehearing Order, 102 FERC at 61,659. These conditions
ranged from requiring HDD to cross the New River and the
New River Trail State Park and an analysis of rerouting
options in case of HDD failure, to requiring an approved site
specific erosion and sediment control plan for the Park, all
matters of concern to New River. See Initial Order, 101
FERC at 61,767–68.
Under the circumstances, we are by no means persuaded
that the DEIS was deficient. As the Supreme Court stated
in Robertson, 490 U.S. at 349,
The statutory requirement that a federal agency contem-
plating a major action prepare TTT an environmental
impact statement serves NEPA’s ‘‘action-forcing’’ pur-
9
pose in two important respects. It ensures that the
agency, in reaching its decision, will have available, and
will carefully consider, detailed information concerning
significant environmental impacts; it also guarantees
that the relevant information will be made available to
the larger audience that may also play a role in both the
decisionmaking process and the implementation of that
decision.
(internal citations omitted). By its very name, the DEIS is a
draft of the agency’s proposed FEIS, and as such the purpose
of a DEIS ‘‘is to elicit suggestions for change.’’ City of
Grapevine, Tex. v. Dep’t of Transp., 17 F.3d 1502, 1507 (D.C.
Cir. 1994). New River has not shown that omissions in the
DEIS left the public unable to make known its environmental
concerns about the project’s impact, even if the public was
unable to analyze each aspect of the project, such as specific
rather than generalized statements of proposed sitings. In-
deed, as noted, comments on the DEIS resulted in substantial
changes that were reflected in the FEIS and the orders on
review. We leave open, however, the possibility that in cases
of actual prejudice resulting from a deficiency in the DEIS,
where, for example, omissions leave the agency without public
comment on a material environmental aspect of a project and
leave the relevant public without information about a pro-
posed project, such deficiency may not be curable by the
FEIS. But, the very matters of principal concern to New
River on appeal are of a similar nature to those addressed by
public comments on the DEIS and are reflected in the
conditions attached by the Commission to the certificate of
authorization for the project.
New River’s other challenges to the sufficiency of the
DEIS fare no better. Regarding New River’s segmenting
and sequencing contentions, the Supreme Court has offered
relevant instruction, namely that NEPA does not require that
a complete plan be actually formulated at the outset, but only
that proper procedures be followed for ensuring that environ-
mental consequences have been fairly evaluated. See Robert-
son, 490 U.S. at 352. The Commission explained that the
practical realities of large projects, such as the Patriot Pro-
10
ject, involve considerable time and effort to develop, with
segments of the project proceeding at different speeds. This
is the result, for instance, of many individuals denying or
limiting access to property that East Tennessee needs to
survey and assess for environmental impacts. The Commis-
sion thus observed that ‘‘[i]f every aspect of the project were
required to be finalized before any part of the project could
move forward, it would be difficult, if not impossible, to
construct the project.’’ Rehearing Order, 102 FERC at
61,659.
Both the Supreme Court’s instruction and the Commis-
sion’s explanation provide an effective response to New Riv-
er’s contention that the DEIS was improperly segmented by
failing to describe the project at sensitive environmental
areas such as major river crossings, the National Forest
lands, the New River Trail State Park, the Blue Ridge
Parkway, and the Appalachian National Scenic Trail. In the
DEIS, the Commission identified the areas where gaps exist-
ed, and in the FEIS, the Commission included conditions to
address those gaps before construction and operation could
proceed. See Rehearing Order, 102 FERC at 61,659; Initial
Order Appendix, 101 FERC at 61,764–72. To the extent New
River also contends that there was improper sequencing of
the environmental analyses, some of which were submitted by
East Tennessee in June 2002 after the public comment period
had expired, New River points only to an Appendix to the
June 17, 2002 Comments of East Tennessee on the DEIS,
and never explains why this Appendix was so crucial that its
absence denied the public of an opportunity meaningfully to
comment on the environmental effects of the project. Un-
doubtedly, a nonsegmented project enables more comprehen-
sive public notice to be provided in a DEIS. But the volume
and substance of the comments received by the Commission
in response to the DEIS undermine New River’s position that
the DEIS failed to serve its purpose. On appeal, New River
has not pointed to any area it would have addressed different-
ly had the Commission delayed issuance of the FEIS.
For essentially the same reasons, New River’s contention
that the DEIS should have been supplemented is unpersua-
11
sive. New River relies on CEQ regulations calling for a
supplemental DEIS or FEIS if the agency ‘‘makes substantial
changes in the proposed action that are relevant to environ-
mental concerns,’’ or ‘‘[t]here are significant new circum-
stances or information relevant to environmental concerns.’’
40 C.F.R. § 1502.9(c)(1). However, in Marsh v. Oregon
Natural Resources Council, 490 U.S. at 373, the Supreme
Court explained that under the ‘‘rule of reason,’’ ‘‘an agency
need not supplement an [environmental impact statement
(’’EIS‘‘)] every time new information comes to light after the
EIS is finalized.’’ Instead, if the new information shows that
the remaining action will affect the quality of the environment
‘‘in a significant manner or to a significant extent not already
considered, a supplemental EIS must be prepared.’’ Id. at
374. This court has similarly explained that a ‘‘supplemental
EIS is only required where new information ‘provides a
seriously different picture of the environmental landscape.’ ’’
Olmsted Falls, 292 F.3d at 274. Under the arbitrary and
capricious standard of 5 U.S.C. § 706(2)(A), the Commission’s
determination that the new information was not significant
enough to warrant preparation of a supplement to the DEIS,
is entitled to deference. See Marsh, 490 U.S. at 375–76.
The record indicates that on March 25, 2002, one month
before the DEIS was issued, East Tennessee had provided
the New River Trail State Park with a site-specific plan for
crossing the river and the Park. This report was apparently
not filed with the Commission until June 17, 2002, when East
Tennessee commented on the DEIS, and supplemented its
comments on June 18 with appendices that included a di-
rectional drill contingency plan and a further study of alterna-
tive routes. Because, as the issue is now framed by New
River, the new information in East Tennessee’s report did not
cause the Commission to make ‘‘substantial changes in the
proposed action,’’ the question is whether the new information
presented ‘‘significant new circumstances or information rele-
vant to environmental concerns.’’ 40 C.F.R. § 1502.9(c)(1).
East Tennessee’s site-specific crossing report revealed that
the ‘‘exit hole of the pipeline drill will coincide with a farm
access road and cleared area that exists adjacent to the trail.’’
12
East Tennessee Submission to New River Trail State Park,
Exhibit B of Blue Ridge Coalition’s June 16, 2002 Comments
on the DEIS, at 9 (Mar. 25, 2002). It also set out the
contingency plan, in case HDD technology were to fail, to use
standard construction techniques for crossing New River
Trail State Park land. In addition, the report identified
factors that could result in HDD failure: the large diameter
of the pipeline, and the difficulties in penetrating long lengths
of difficult subsurface conditions in the form of fractured
rock, gravel, or cobbles. Although the report provided new
information that is environmentally significant, the Commis-
sion could reasonably conclude that the information did not
significantly transform the nature of the environmental issues
raised in the DEIS and comments. The DEIS made clear
some of the attendant problems with East Tennessee’s pro-
posed use of HDD to cross the river and trail, stating that the
exit point would be in an area of the park that had been
planned for new campground facilities, that there was concern
over the proximity of an existing water well, that the geology
was fractured dolomite (limestone), and that the aquifer was
not very deep in the area next to the river. The Commission
received comments on matters discussed in East Tennessee’s
report in response to the DEIS. Hence, New River fails to
demonstrate that the information provided in the site-specific
crossing report seriously changed the environmental land-
scape. See Olmsted Falls, 292 F.3d at 274.
As noted, the Commission’s process for evaluating the
environmental impact of East Tennessee’s proposed project
was comprehensive, based on public comments that focused
the Commission’s attention on the issues that New River now
contends were inadequately addressed in the DEIS. While
New River maintains that the exit hole and the possibility of
conventional drilling meant the environmental impact would
be different than could be understood from the DEIS, the
comments received alerted the Commission to these possibili-
ties, as for instance, the possible failure of HDD and disrup-
tion caused by open trench construction. The Commission
could reasonably conclude, then, in light of the comments,
that the DEIS had accomplished its purpose and that the new
13
information in the report had, in effect, already been antici-
pated by persons notified of East Tennessee’s proposal. Fur-
thermore, the FEIS responded to the new information, and
included responsive proposed conditions, which were ultimate-
ly adopted by the Commission. Any defects there may have
been in the DEIS were cured by the Commission’s consider-
ation of comments on the FEIS from such organizations as
the Blue Ridge Coalition and the EPA. Moreover, in the
Initial Order the Commission responded to the new informa-
tion, in part, by conditionally issuing the certificate.
For these reasons, we conclude that the Commission was
not arbitrary and capricious and did not abuse its discretion
in determining that the DEIS had served its purpose and was
not prematurely published, that the DEIS was not improperly
segmented or sequenced, and that revision or supplementa-
tion of the DEIS was unnecessary.
B.
New River also contends that neither the DEIS or FEIS
adequately considered alternatives to the proposed route for
the pipeline extension. NEPA requires that ‘‘all agencies of
the Federal government shall’’ include in ‘‘every recommen-
dation or report on proposals for legislation and other major
Federal actions significantly affecting the quality of the hu-
man environment, a detailed statement by the responsible
official’’ on not only the environmental impacts of a proposed
action, but also alternatives to the proposed action. 42 U.S.C.
§ 4332(c). The agency must ‘‘study, develop, and describe
appropriate alternatives to recommended courses of action in
any proposal which involves unresolved conflicts concerning
alternative uses of available resources.’’ Id. § 4332(e). The
Commission satisfied these requirements.
Both the DEIS and FEIS evaluated the no-action or post-
poned-action alternative, system alternatives, major route
alternatives, route variations, interconnection site alterna-
tives, and aboveground-facility-site alternatives. Each includ-
ed considerable detail on the major route alternatives, and
why they were not recommended. The FEIS considered 13
14
major route alternatives in detail, but did not recommend any
of them after extensive analysis and multiple site visits. This
was sufficient to meet the Commission’s obligations to give
adequate consideration to appropriate alternative routes. See
Vermont Nuclear Power Corp. v. NRDC, 435 U.S. 519, 551
(1978). But, New River objects that the DEIS failed to
include any analysis of the initial route for the Max Meadows
Alternative, which it claims would have avoided all impact to
the Shot Tower–Fosters Falls section of the New River Trail
State Park. The Commission rejected the Max Meadows
Alternative, which was mentioned in the NOI but not the
DEIS or the FEIS, because it was longer than the proposed
route, would cross previously mined areas, and would be
located just west of a national monument. The court, howev-
er, need not consider whether the Commission adequately
analyzed this alternative route because New River has waived
this contention by failing to raise it before the Commission on
rehearing, and offers no explanation for its reasons for not
having done so. See 15 U.S.C. § 717r(b).
C.
New River further contends that the Commission improp-
erly permitted East Tennessee to determine the location of
the pipeline extension by the location of the taps, thus
limiting consideration of other alternative routes. This con-
tention, however, misconceives the Commission’s role and
ignores the record.
First, as the Commission explained, it was the prerogative
of East Tennessee to determine the project’s goals and the
means of achieving them. See Initial Order, 101 FERC at
61,750; see also Independence Pipeline Co. et al., 91 FERC
¶ 61,102, 61,345 (2000). Under the NGA, the Commission
cannot grant a certificate unless the proposed project ‘‘is or
will be required by the present or future public convenience
and necessity.’’ 15 U.S.C. § 717f(e). Some of the goals
outlined by East Tennessee in its application for a certificate
were to bring much-needed natural gas supplies to parts of
southwest Virginia for the first time, and to facilitate planned
15
future development and economic growth in the regions
around the pipeline route. The 20 taps were installed, at
East Tennessee’s expense, with the support of local govern-
ments and business groups along the route, which viewed the
taps attached to the pipeline as essential to bringing economic
development to their region and attracting new business.
Consequently, the Commission determined that installation of
the underground taps along the pipeline represented a ‘‘po-
tential added benefit to the region’’ and were an appropriate
goal for the Project. Initial Order, 101 FERC at 61,751.
Second, the record reveals that the general pipeline route
was not chosen based solely on the location of the taps.
Other considerations included meeting the needs of the seven
shippers with whom East Tennessee already had long-term
contracts to provide natural gas, meeting growth in the
natural gas local distribution market, and meeting the in-
creased demand for natural gas-fired electric generation.
Initial Order, 101 FERC at 61,751. In the Commission’s
view, the ‘‘high level of subscription for the Patriot Project
alone warrants [the Project’s] approval.’’ Id. at 61,750–51.
It noted that three shippers had already entered into service
contracts by the time of the Rehearing Order, and that
approximately 87 percent of the project’s total capacity had
been subscribed. Rehearing Order, 102 FERC at 61,657.
The Commission also considered that the need for electric
power and natural gas service would continue to increase in
the southeastern states, and that sufficient infrastructure
needed to be in place so that increased natural gas demand
from electric power plants and distribution companies could
be served. Id.
The record also refutes New River’s contention that the
location of the taps along the planned pipeline route inappro-
priately narrowed consideration of alternatives to the route.
The Commission considered and analyzed other alternatives,
which were rejected not because they did not incorporate the
proposed taps, but because, for example, they increased the
length of the pipeline or increased the impact on the environ-
ment and residential areas or would have moved all or most
of the extension to North Carolina. See Initial Order, 101
16
FERC at 61,751, 61,755. The Commission found, moreover,
that ‘‘none of the major route alternatives are environmental-
ly superior to the route proposed by East Tennessee, even if
some of the taps are not served.’’ Id. at 61,751. New River’s
assertions in its brief that there are no current customers and
an inadequate supply of natural gas for the taps, do not
invalidate the Commission’s consideration of the taps. The
Commission found that, at that time, there was an excess of
‘‘64,000 Dth a day of currently unsubscribed natural gas
capacity available for future use’’ beyond that already sub-
scribed by the existing seven contracting shippers, Initial
Order, 101 FERC at 61,751 n.22, and that additional capacity
could be made available by such means as capacity release or
by adding compression, thereby ‘‘bringing a degree of gas
service to an area that has no gas service.’’ Rehearing Order,
102 FERC at 61,658.
This analysis also disposes of New River’s contention that
the Commission abused its discretion in failing to evaluate the
environmental impact of the taps. The Commission deter-
mined that because the taps would be part of the under-
ground installation of the pipeline, there were no tap-related
environmental impacts to be considered at that point outside
of those arising from the construction of the pipeline itself.
See Rehearing Order, 102 FERC at 61,663. The Commission
further reasoned that it could not evaluate any environmental
impacts of the taps along the extension route when it did not
know how the taps would be used in the future. See id.
D.
Finally, New River contends that the Commission should
have considered the environmental impact of the proposed
DENA Wythe Power Plant, as well as evidence that the
DENA Wythe and Henry County power plants were not
viable. Under the NGA, proposed facilities to be used in the
transportation of natural gas in interstate commerce are
subject to the jurisdiction of the Commission. See 15 U.S.C.
§ 717(b); Algonquin Gas Transmission Co., 59 FERC ¶ 61,-
255, 61,933 (1992). New River does not contest that the
17
Commission has no authority over the permitting, funding,
construction, or operation of the DENA Wythe proposed
facilities, all of which are regulated by the Commonwealth of
Virginia.
To the extent that the Commission is required under
NEPA to give some environmental consideration of non-
jurisdictional facilities, see Henry v. FPC, 513 F.2d 395, 406
(D.C. Cir. 1975), the Commission has adopted the four-factor
test of Algonquin Gas, 59 FERC at 61,934. Under this test,
in order to determine whether there is sufficient federal
control over a project to warrant environmental analysis, the
Commission considers: (1) whether the regulated activity
comprises ‘‘merely a link’’ in a corridor type project; (2)
whether there are aspects of the non-jurisdictional facility in
the immediate vicinity of the regulated activity that uniquely
determine the location and configuration of the regulated
activity; (3) the extent to which the entire project will be
within the Commission’s jurisdiction; and (4) the extent of
cumulative federal control and responsibility. See 18 C.F.R.
§ 380.12(c)(2)(ii). The requirement to consider the environ-
mental effects of non-jurisdictional facilities will thus arise
only where they are built in conjunction with jurisdictional
facilities and are an essential part of a major federal action
having a significant effect on the environment. See id.
New River contends that but-for the DENA Wythe Power
Plant, the pipeline extension would not have been routed to
that location. It maintains, and repeats in its reply brief, that
because the second factor of the Algonquin test is thus
satisfied, that ‘‘alone is enough to tip the balance in the four-
factor test.’’ Reply Br. at 19. It further maintains that
several aspects of the power plant would require federal
licenses, such as a federal EPA authorization to operate the
proposed underground injection cooling water process. How-
ever, the Commission’s determination that there was insuffi-
cient federal control to warrant the Commission’s environ-
mental review of the DENA Wythe Power Plant is entitled to
deference. Cf. Kleppe v. Sierra Club, 427 U.S. 390, 412
(1976).
18
Consistent with its practice of applying the Algonquin test,
see, e.g., Regent Res. Ltd., 102 FERC ¶ 61,307, 61,983 (2003);
Tuscarora Gas Transmission Co., 99 FERC ¶ 61,044, 61,175
(2002); Empire State Pipeline, 61 FERC ¶ 61,091, 61,374
(1992), the Commission weighed a number of relevant, in-
terrelated factors. The Commission reasoned that not only
would construction, operation, and location of the plant be
regulated by the Commonwealth of Virginia, but the federal
government had no financial involvement in the project and
no federal lands were at stake. See Rehearing Order, 102
FERC at 61,662–63. By contrast with the Algonquin test,
which calls for balancing of the federal interest against coun-
terbalancing factors, New River’s but-for approach would
present the opportunity for the Commission to extend its
jurisdiction over non-jurisdictional activities simply on the
basis that they were connected to a jurisdictional pipeline.
Given the limits of the Commission’s NGA jurisdiction, New
River fails to show that the Commission’s approach was
arbitrary and capricious or contrary to law. Absent some
indication of further federal involvement, the Commission
reasonably concluded that the DENA Wythe and Henry
County power plants were non-jurisdictional facilities for
which it was not required to evaluate their environmental
impact or viability.
Accordingly, because New River has not shown that the
Commission acted arbitrarily or capriciously or abused its
discretion in evaluating the environmental impacts of East
Tennessee’s application for the Patriot Project, and because
New River’s challenge to the administrative record on appeal
is meritless, see Fed. R. App. P. 17(b)(3); FEIS Public
Meeting Comments, Appendix M, FERC Docket No. CP01–
415–000, at M543–92 (Sept. 23, 2002), we deny the petition for
review.