United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 19, 2009 Decided March 13, 2009
No. 07-1007
DELAWARE DEPARTMENT OF NATURAL RESOURCES AND
ENVIRONMENTAL CONTROL,
PETITIONER
v.
FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT
CROWN LANDING LLC AND STATOIL NATURAL GAS, LLC,
INTERVENORS
On Petition for Review of Orders
of the Federal Energy Regulatory Commission
Scott H. Angstreich argued the cause for petitioner. With
him on the briefs were David C. Frederick, Daniel G. Bird,
Joseph R. Biden, III, Attorney General, Attorney General’s
Office of the State of Delaware, Kevin P. Maloney, Deputy
Attorney General, and Philip Cherry.
Samuel Soopper, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. With him on the
brief were Cynthia A. Marlette, General Counsel, and Robert H.
Solomon, Solicitor.
2
Frederic G. Berner Jr. was on the brief for intervenor
Crown Landing LLC.
Before: ROGERS, Circuit Judge, and SILBERMAN and
WILLIAMS, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
SILBERMAN.
SILBERMAN, Senior Circuit Judge: Petitioner Delaware
seeks review of two FERC orders by which the Commission
conditionally approved an application to site, construct, and
operate a liquid natural gas terminal near the mouth of the
Delaware River. We dismiss the petition for lack of jurisdiction:
Delaware lacks standing because it has not suffered an injury-in-
fact.
I
In September 2004, Crown Landing LLC, a wholly-owned
subsidiary of BP America Production Company, filed an
application with the Commission to site, construct, and operate
a liquid natural gas import terminal at the mouth of the
Delaware River. Onshore portions of the proposed project were
to be located in New Jersey, but a pier designed for the
unloading of tanker ships was planned to extend beyond New
Jersey waters into that portion of the river which appertains to
neighboring Delaware.1
1
The First State’s title to certain submerged lands within a twelve-
mile radius of the New Castle courthouse was conclusively determined
by the Supreme Court in New Jersey v. Delaware, 291 U.S. 361, 374
(1934).
3
Section 3 of the Natural Gas Act (“NGA”), 15 U.S.C.
§717b(a) et seq., prohibits the importation of foreign natural gas
without prior authorization by the Commission. As amended,2
the NGA confers upon the Commission the authority to approve
or deny applications for the “siting, construction, expansion, or
operation of a [liquid natural gas] terminal.” With certain
limitations, irrelevant here, approval orders may be issued
conditionally as the Commission deems necessary or
appropriate.
The NGA specifically provides for the protection of rights
granted to the states under the Coastal Zone Management Act of
1972 (“CZMA”), 16 U.S.C. § 1451 et seq., and the Clean Air
Act (“CAA”), 42 U.S.C. § 7401 et seq. Although the
mechanisms differ, both of these statutes mandate that federal
licensing authorities ensure compliance by proposed projects
with relevant state-based environmental programs.
The CZMA tasks the states with the development of coastal
zone protection programs in exchange for federal funding
incentives. Upon approval of such a program by the National
Oceanic and Atmospheric Administration, any applicant for a
federal license to conduct activities in a coastal zone must
certify that the proposed activity complies with the program
adopted by the affected state. A copy of this certification must
be furnished to the relevant state agency, which must inform the
federal government within six months whether or not it concurs
with the certification. Ordinarily, no license may be granted
absent state approval of this compliance certification.3
2
Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat. 594
(2005).
3
In the event that the state fails to inform the federal government
of its decision within the allotted six month period, the state’s
4
However, if the Secretary of Commerce concludes, whether on
his own initiative or upon appeal by the applicant, that the
project is consistent with the objectives of the CZMA or
otherwise necessary on national security grounds, the state’s
pre-approval rights may be preempted and the project may
proceed.
The CAA similarly requires each state to adopt a plan to
implement, maintain, and enforce national air quality standards
within the state. Once the Environmental Protection Agency has
approved of a state plan, no department or agency of the federal
government is authorized to license any activity that fails to
conform with the plan. Federal agencies bear an “affirmative
responsibility” to ensure that any proposed project conforms
with the applicable state plan prior to approval. Under this
statute, there is no provision permitting a federal official to
override a state, but, on the other hand, there also does not
appear to be any mechanism for the state specifically to
disapprove a project.
Crown Landing did not file a CZMA certification with
Delaware but did request a status decision from the state (we
gather that a status decision is, in effect, a preliminary, yet
preemptive, decision). On February 3, 2005, the Delaware
Department of Natural Resources and Environmental Control,
petitioner here, issued its decision and rejected the project. On
appeal, Delaware’s Coastal Zone Industrial Control Board
unanimously affirmed that decision. Meanwhile, New Jersey
filed an original action before the Supreme Court challenging
Delaware’s jurisdiction to regulate the Crown Landing terminal
pursuant to its authority under the CZMA. The Supreme Court
confirmed that Delaware indeed possesses this authority. New
Jersey v. Delaware, 128 S. Ct. 1410, 1427-8 (2008).
concurrence with the proposal is conclusively presumed.
5
On June 20, 2006, the Commission issued an order
approving Crown Landing’s application subject to some sixty-
seven conditions precedent.4 The Commission acknowledged
that the Crown Landing proposal is subject to coastal zone
consistency reviews in New Jersey, Delaware, and Pennsylvania
and thus concluded that the company must obtain the
concurrence of the relevant state agencies prior to Commission
approval of the commencement of construction. See
Conditional Approval Order at ¶ 62,391; see also id. at ¶ 62,386.
Accordingly, final approval by the Commission is subject to the
condition that documentation of concurrence by the state of
Delaware evidencing the consistency of the project with the
state’s Coastal Management Program be submitted by the
company “prior to construction.” Id. App. A, at ¶ 20
(emphasis in original). The order contains a parallel condition
requiring pre-construction submission of an air quality analysis
specifically demonstrating conformity with applicable state
implementation plans under the CAA. Id. App. A, at ¶ 22.
Delaware requested agency rehearing on the basis that the
Commission had exceeded its statutory authority by approving
the application under its NGA powers before the requirements
of the CZMA and CAA had been satisfied. In Delaware’s view,
issuance of an approval order–conditionally or otherwise–is
ultra vires conduct unless the Commission has first ensured
compliance with relevant state environmental programs.
Rehearing was denied. Order Denying Rehearing and Issuing
Clarification, Crown Landing LLC, Docket No. CP04-411-001,
117 FERC ¶ 61,209 (Nov. 17, 2006). Delaware’s petition for
review before this Court, filed in January 2007, was held in
4
Order Granting Authority Under Section 3 of the Natural Gas
Act and Issuing Certificate, Crown Landing LLC; Texas Eastern
Transmission LP, Docket Nos. CP04-411-000, CP-04-416-000, 115
FERC ¶ 61,348 (June 20, 2006) (“Conditional Approval Order”).
6
abeyance pending resolution New Jersey’s original action before
the Supreme Court. Then the Commission, joined by Crown
Landing, moved to dismiss Delaware’s petition on grounds of
non-justiciability and lack of standing. We ordered the case
restored to the oral argument calendar, deferred the dismissal
motions, and ordered the parties to revisit their merits briefs in
light of the Supreme Court’s intervening decision.
II
As noted, FERC, along with intervenor Crown Landing,
challenges Delaware’s standing, asserting that the state lacks an
injury-in-fact, because FERC’s order is explicitly conditioned on
state approval under the CZMA (and CAA). Indeed, the state
has already exercised its CZMA authority to reject the project,
which has received the imprimatur of the Supreme Court. See
New Jersey, 128 S. Ct. at 1427-28. Delaware responds that it
has suffered an injury because it was entitled under both statutes
to block the project before FERC even proceeded to consider the
matter. In other words, FERC lacked statutory authority to issue
a conditional order, even if that condition preserved Delaware’s
right to veto the project.
Delaware argues that the CZMA unambiguously grants the
state priority in the approval process. The statute reads in
relevant part: “[n]o license or permit shall be granted by the
Federal agency until the state or its designated agency has
concurred with the applicant’s certification.” 16 U.S.C. §
1456(c)(3)(A). The CAA contains similar language. 42 U.S.C.
§ 7506(c)(1). The merits therefore depend upon whether
FERC’s conditional approval order constitutes a “license or
permit” within the meaning of these statutes.
Of course, in considering standing, we must assume the
validity of Delaware’s merits argument, i.e., that FERC violated
7
the statutory scheme by going ahead and issuing a conditional
order, because Delaware had a statutory right to go first (i.e.,
Alphonse ahead of Gaston). See Warth v. Seldin, 422 U.S. 490,
500 (1975); see also Emergency Coalition to Defend
Educational Travel v. Dep’t of Treas., 545 F.3d 4, 10 (2008);
Parker v. District of Columbia, 478 F.3d 370, 377 (D.C. Cir.
2007), aff’d without reaching standing issue sub nom. District
of Columbia v. Heller, 128 S. Ct. 2783 (2008); City of Waukesha
v. EPA, 320 F.3d 228, 235 (D.C. Cir. 2003); Am. Fed’n of Gov’t
Employees, AFL-CIO v. Pierce, 697 F.2d 303, 305 (D.C. Cir.
1982).
Still, we are unable to see how FERC’s allegedly illegal
procedure causes Delaware any injury in light of FERC’s
acknowledgment of Delaware’s power to block the project.
Delaware is apparently concerned that it will face intense
political pressure to acquiesce in FERC’s conditional approval
and reverse its own status decision–pressure it would somehow
avoid were FERC not to have acted at all. We could hardly
recognize this conjectural political dynamic as representing a
concrete injury or, indeed, any sort of legally-cognizable injury.
Delaware essentially is asking us to prevent it from changing its
own mind.
To be sure, Delaware mentioned in its brief and stressed at
oral argument that, under the CZMA, Crown Landing could
potentially appeal any Delaware denial directly to the Secretary
of Commerce. It is argued, therefore, that Delaware is not
adequately protected by FERC’s conditions. But as we read
FERC’s order, this is not so. The Commission conditioned its
approval on Delaware’s approval–which would be unaffected by
any subsequent action by the Secretary of Commerce. FERC’s
counsel dispelled any doubt on this score by unequivocally
assuring us at oral argument that any modification of the
8
Commission’s position–including to recognize an intervention
by the Secretary–would require a new order.5
That leaves Delaware with the argument that it was injured
because it has suffered the loss of a statutory procedural
right–the right to precede FERC and thereby prevent a FERC
proceeding. Delaware’s difficulty is that an alleged procedural
injury does not confer standing unless the procedure affects a
concrete substantive interest. Lujan v. Defenders of Wildlife,
504 U.S. 555, 573 n.8 (1992). In its reply brief, arguing in the
alternative that the case is moot (and hence that FERC’s order
should be vacated), Delaware contends that because Crown
Landing has “announced publicly that it is ‘stopping work on the
project,’” the controversy has gone away. But this statement
implicitly concedes the obvious: that Delaware’s substantive
interest is the preventing of the construction of the project. Its
alleged procedural injury has no bearing on that interest, because
under FERC’s order the project cannot be resurrected without
Delaware’s approval.
Delaware points to two cases to support its statutory
procedural right claim–one is ours and one the Fifth Circuit’s.
In Zivotofsky v. Secretary of State, 444 F.3d 614 (D.C. Cir.
5
It is not apparent that even if FERC allowed construction
to move forward based on a secretarial decision, Delaware
would have standing based only on their procedural (Alphonse-
Gaston) theory, but, of course, Delaware would then have
standing to challenge FERC’s order and the Secretary’s decision
as an interpretation of the substantive statutes (including the
APA). In any event, this scenario–which was not raised in
Delaware’s opening brief–hardly presents a ripe controversy
now.
9
2006), we recognized that a child born in Jerusalem had
standing to insist that his U.S. passport record his birthplace as
Israel. But there the plaintiff claimed that the State Department
had violated a statutory right to receive this precise passport
alteration upon request; he did not assert a procedural injury at
all, nor was the alleged harm limited to speculative future
psychological effects, as the government argued. Rather, the
right to a proper listing of the child’s birthplace was a
substantive right conferred by Congress.
At first glance, Texas v. United States, 497 F.3d 491 (5th
Cir. 2007), seems more supportive of Delaware. Texas argued
that it had been subjected to an “invalid administrative process”
devised by the Secretary of the Interior to deal with approval of
Indian gaming activities. But the key to the court’s conclusion
that Texas had suffered an injury-in-fact was that Texas had
been deprived of an alleged statutory procedural protection–a
court finding on whether Texas had negotiated in bad faith–that
bore on the likelihood of an ultimate concrete injury, i.e., the
Secretary’s approval of an Indian gaming proposal. In that
regard, the case is no different from a failure to issue an
environmental impact statement that can affect whether or not
a project injurious to the plaintiff will be built. Lujan, 504 U.S.
at 573 n.7. See also Summers v. Earth Island Inst., 555 U.S. __,
No. 07-463, slip op. at 8-9 (Mar. 3, 2009).6
6
Delaware heavily relies on the Supreme Court’s statement in
Massachusetts v. EPA that state petitioners are “entitled to special
solicitude in [courts’] standing analysis.” 127 S. Ct. 1438, 1454-55
(2007) (quotation marks omitted). This special solicitude does not
eliminate the state petitioner’s obligation to establish a concrete injury,
as Justice Stevens’ opinion amply indicates. Indeed, the opinion
devotes a full section to the “harms associated with climate change,”
id. at 1455, on its way to holding in the state’s favor.
10
In sum, because FERC’s order–as it stands now–cannot
possibly authorize Crown Landing’s project absent the approval
of Delaware, the state has suffered no injury-in-fact, and thus
lacks standing.
For the foregoing reasons, the petition for review is
dismissed.
So ordered.