United States Court of Appeals
For the First Circuit
Nos. 01-1848
01-2147
LONDONDERRY NEIGHBORHOOD COALITION,
Petitioner,
v.
FEDERAL ENERGY REGULATORY COMMISSION,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF THE
FEDERAL ENERGY REGULATORY COMMISSION
Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Stahl, Senior Circuit Judge.
Evan Slavitt, with whom Gadsby Hannah, LLP, on brief for
petitioner.
Larry D. Gasteiger, with whom Judith A. Albert, Cynthia A.
Marlette, Acting General Counsel, and Dennis Lane, Solicitor, were on
brief, for the Federal Energy Regulatory Commission.
Jay V. Allen for intervenor Tennessee Gas Pipeline Company.
December 10, 2001
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TORRUELLA, Circuit Judge. Petitioner Londonderry
Neighborhood Coalition ("LNC") seeks review of a decision by the
Federal Energy Regulation Commission ("FERC" or "the Commission") to
certify a natural gas pipeline-replacement project. LNC argues that
the Commission's certification of the project was tainted by its
failure to assess adequately the full environmental impact of the
proposed undertaking. The Commission disputes the substance of LNC's
arguments and, in addition, interposes a challenge to this Court's
jurisdiction over the appeal. We find the Commission's jurisdictional
argument sound and dismiss the petition for review.
I.
A.
Under the Natural Gas Act ("NGA"), 15 U.S.C. §§ 717-717z, the
Commission has certificate authority over companies that engage in the
transportation or sale for resale of natural gas in interstate
commerce. To assure the orderly development of natural gas supplies,
NGA § 7(c)(1)(A) prohibits any "natural-gas company or person" from
constructing or operating pipeline facilities prior to obtaining a
certificate of public convenience and necessity from the Commission.
Id. § 717f(c)(1)(A). In accordance with NGA § 7(e), the Commission
shall issue such certificates to qualified applicants once it
determines that the proposed service "is or will be required by the
present or future public convenience or necessity. . . ." Id. §
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717f(e). The Commission is also authorized to attach to certificates
"such reasonable terms and conditions as the public convenience and
necessity may require." Id.
The Commission has no jurisdiction over facilities used
strictly for the local distribution of natural gas. Id. § 717(b).
Likewise, as dictated by the Federal Power Act ("FPA"), 16 U.S.C. §§
791a-828c, the Commission has no jurisdiction to regulate electric
generation facilities. Id. § 824(b)(1).
The National Environmental Policy Act ("NEPA"), 42 U.S.C. §§
4321-4370f, provides that federal agencies must follow certain
procedures designed to identify and evaluate the environmental effects
of proposed agency actions. NEPA requires federal agencies to prepare
a detailed Environmental Impact Statement ("EIS") for all "major
Federal actions significantly affecting the quality of the human
environment." Id. § 4332(2)(C). However, "an agency need not conduct
a comprehensive EIS if an environmental assessment reveals that the
proposed action would not have a significant effect on the
environment." Wyoming Outdoor Council v. U.S. Forest Serv., 165 F.3d
43, 49 (D.C. Cir. 1999) (citing 40 C.F.R. §§ 1501.4, 1508.9).
B.
In this case, the Commission was called upon to authorize a
natural gas pipeline-replacement project proposed by the Tennessee Gas
Pipeline Company ("Tennessee"). The project encompassed the
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replacement of 19.3 miles of existing eight-inch-diameter pipe with
twenty-inch pipe, enabling the delivery of natural gas from
Massachusetts to a natural-gas-fired power generation plant being
constructed in Londonderry, New Hampshire by a separate private entity,
the AES Londonderry, LLC ("AES"). Tennessee's gas pipeline will be
connected to the generation plant by a 2.9 mile, sixteen-inch
distribution lateral to be built by EnergyNorth Natural Gas, Inc.
("EnergyNorth"). Both the AES power plant project and the EnergyNorth
lateral project fall outside the jurisdiction of FERC and are, instead,
subject to authorization by the state. See 16 U.S.C. § 824(b)(1); 15
U.S.C. § 717(b).
In July 1998, AES applied to the appropriate state body, the
New Hampshire Energy Facility Site Evaluation Committee (EFSEC), for
approval to construct and operate the power plant. In addition to the
request specifically dealing with the power plant, the proposal also
sought approval for three related subsidiary projects -- including the
EnergyNorth project -- which were necessary for the power plant's
operation. On May 25, 1999, after a comprehensive review process,
EFSEC certified the projects, finding that the facility would not have
an unreasonable adverse effect on the environment or public health. In
August 2000, the New Hampshire Supreme Court upheld this certification
in the face of a challenge by LNC. Appeal of the Londonderry
Neighborhood Coalition, 761 A.2d 426 (N.H. 2000).
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Meanwhile, AES signed a twenty-year contract with Tennessee
for provision of the needed supply of natural gas. Tennessee already
had in place, as part of its "Concord lateral" system, two parallel
pipelines -- an eight-inch line and a twelve-inch line -- set ten feet
apart in a combined fifty-foot right-of-way running from Dracut,
Massachusetts into New Hampshire. To service the power plant,
Tennessee proposed to remove the eight-inch line and replace it with a
twenty-inch line.
C.
On December 10, 1999, as required by the NGA, Tennessee
applied to FERC for a certificate of public convenience and necessity
to implement the project of replacing the existing pipeline in the
Concord lateral system with a larger one. Tennessee's application was
subsequently amended on January 24, 2000. On March 31, 2000, the
Commission issued a "Notice of Intent to Prepare an Environmental
Assessment" for the pipeline-replacement project and requested public
comments regarding environmental issues. In that Notice, the
Commission made a preliminary decision not to address the impact of the
non-jurisdictional AES and EnergyNorth projects, noting that they had
been approved by the state and had received all the necessary federal
permits. After receiving comments from LNC (a nonprofit organization
comprised of over 100 local citizens) and the United States Fish and
Wildlife Service arguing that, under NEPA, the Commission was required
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to consider the cumulative environmental impact of all three projects,
the Commission issued a 57-page Environmental Assessment on August 11,
2000. Despite the objections of LNC and the Fish and Wildlife Service,
the Assessment did not address the environmental impact of the AES or
EnergyNorth projects.
On October 27, 2000, after receiving further comments from
LNC and other entities, the Commission issued an order authorizing the
Tennessee pipeline project, subject to certain conditions (the "October
27, 2000 Order"). In that order, the Commission relied on the
Environmental Assessment and again held that it was unnecessary to
consider the two non-jurisdictional facilities in its review. The
Commission further found that the pipeline replacement would have no
significant environmental impact and ruled that an EIS was therefore
unnecessary.
Following the October 27, 2000 Order, the Town and School
District of Londonderry filed a timely motion for rehearing on November
24, 2000. See 15 U.S.C. § 717r(a) (providing that motion for rehearing
must be filed within thirty days of the issuance of the order). LNC
also submitted a motion for rehearing, though it was received and filed
one day late on November 28, 2000. On November 29, 2000, LNC moved for
an extension of time to file its request for rehearing, explaining that
the untimeliness of its motion for rehearing was due to an error by the
U.S. Postal Service. According to LNC, the original rehearing motion
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was sent via Express Mail Service, which guarantees overnight delivery.
In a supplemental motion filed on December 6, 2000, LNC asked, in the
alternative, that its motion for rehearing be deemed a motion for
reconsideration.
On December 12, 2000, the Commission issued an Order Granting
Rehearing for Further Consideration. Since this order states that
"rehearing has been timely requested," it presumably referred only to
the Town and School District's motion for rehearing. On May 3, 2001,
the Commission issued an Order Granting, in Part, and Denying, in Part,
Rehearing and Request for Reconsideration (the "May 3, 2001 Order").
The May 3, 2001 Order denied LNC's motion for an extension, holding
that the Commission had no authority to excuse LNC's untimely motion
for rehearing, but agreed to treat that motion as a motion for
reconsideration. The Order then partially granted that motion (and the
Town's rehearing request) with respect to one narrow issue.1 The May
3, 2001 Order otherwise denied both motions, including LNC's NEPA-based
challenges regarding the AES and EnergyNorth projects. On May 14,
2001, the Commission authorized construction of the Tennessee pipeline
project.
1 Specifically, the Commission revisited and modified its October 27,
2000 Order by requiring Tennessee to reroute less than one-half mile of
its new pipeline farther away from a school property in accordance with
an earlier proposal discussed in the Environmental Assessment.
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On June 1, 2001, LNC filed with the Commission a request for
rehearing of the May 3, 2001 Order and, on June 4, 2001, requested a
stay of the May 3, 2001 and May 14, 2001 Orders. After Tennessee
announced on June 11, 2001 that construction on the pipeline project
had begun one week earlier, LNC, without waiting for rulings on its
requests for rehearing and a stay, filed with this Court a petition for
review of the May 3, 2001 and May 14, 2001 Orders. On June 13, 2001,
the Commission dismissed the requests for rehearing and stay, stating:
"Since the May 3 order does not alter the October 27 order's finding
with respect to cumulative impacts, the Commission's decision on that
issue is final and further rehearing does not lie for any party to the
proceeding." Tennessee Gas Pipeline Co., 95 FERC ¶ 61,386 (2001).
In addition to filing its petition for review of the May 3,
2001 and May 14, 2001 Orders, LNC filed a motion with this Court to
stay construction of the Tennessee pipeline. FERC and Tennessee both
filed motions opposing the stay along with motions to dismiss. On July
31, 2001 we denied LNC's stay motion as well as the motions to dismiss.
LNC then filed a second petition for review, this time requesting
review of the Commission's June 13, 2001 Order in addition to the May
3, 2001 and May 14, 2001 Orders. LNC's first and second petitions for
review were consolidated in this appeal.
II.
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LNC asserts on appeal that the Tennessee pipeline project is
sufficiently intertwined with the AES and EnergyNorth projects to
mandate Commission review of the environmental effects of the latter
two projects. Because the Commission limited its review to the
Tennessee pipeline and ruled that it was unnecessary to consider the
environmental effects of the AES and EnergyNorth projects, LNC contends
that the Commission violated various provisions of NEPA.
FERC disputes these contentions on their merits. In
addition, FERC raises a threshold jurisdictional issue. According to
the Commission, LNC's failure to file a timely motion for rehearing of
the October 27, 2000 Order precludes this Court from entertaining the
appeal.
A.
The NGA mandates that, as a predicate to filing an appeal
from an order of the Commission, the affected party must move for
rehearing within thirty days of the date on which the order was issued.
Section 19(a) of the NGA provides:
Any person . . . aggrieved by an order issued by
the Commission in a proceeding under this chapter
to which such person . . . is a party may apply
for a rehearing within thirty days after the
issuance of such order . . . . No proceeding to
review any order of the Commission shall be
brought by any person unless such person shall
have made application to the Commission for a
rehearing thereon.
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15 U.S.C. § 717r(a). "There is no question that under the Natural Gas
Act 'an application for rehearing is a jurisdictional prerequisite to
judicial review.'" Boston Gas Co. v. FERC, 575 F.2d 975, 977 (1st Cir.
1978) (quoting Public Serv. Comm'n of N.Y. v. Federal Power Comm'n, 543
F.2d 757, 775 n.116 (D.C. Cir. 1974)).
In this case, application of this potential jurisdictional
bar will depend upon which order of the Commission triggered the
requirements of NGA § 19(a). The Commission argues that the October
27, 2000 Order is the relevant order and that LNC's petition for
rehearing was untimely. LNC, on the other hand, contends that the
relevant order -- and therefore the only order from which it seeks
appeal -- is the May 3, 2001 Order. LNC also contends that, in any
event, its failure to adhere strictly to the statutory deadline may be
excused on equitable grounds. We turn first to the task of determining
which order is the relevant one for purposes of determining our
jurisdiction.
B.
The Commission relies upon the plain language of NGA § 19 (a)
in arguing that the relevant order is the one by which a protesting
party is "aggrieved." Because the October 27, 2000 Order authorized
the project and established the Commission's position that it would not
consider the two non-jurisdictional projects for purposes of compliance
with NEPA, the Commission submits that LNC was required to seek timely
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rehearing from that order, or else forfeit its claims. LNC offers a
two-fold response. First, it contends that the Commission's own
regulation establishes that the rehearing requirement applies only to
a "final decision" issued by the Commission, which in this case is
arguably the May 3, 2001 disposition. Second, LNC asserts that the May
3, 2001 Order modified the earlier decision to such an extent that it
triggered a new window of opportunity in which LNC successfully sought
rehearing. We find both of LNC's contentions hollow and conclude that
the October 27 Order triggered LNC's obligation to timely move for
rehearing in order to preserve its appeal rights.2
LNC's first argument rates only brief attention. The
Commission's Rule 713 provides, in part: "A request for rehearing by a
party must be filed not later than 30 days after issuance of any final
decision or other final order in a proceeding." 18 C.F.R. § 385.713(b)
(emphasis added). Even if this rule can be read to support LNC's
2 We note that our determination that LNC is aggrieved by the October
27, 2000 Order heaps another jurisdictional quandary on the pile.
Under Fed. R. App. P. 15(a)(2)(C), a petition for review of an agency
order must "specify the order or part thereof to be reviewed." In its
first and second petitions for review before this Court, LNC appealed
only the May 3, 2001, May 14, 2001, and June 13, 2001 orders. Because
we ultimately conclude that we lack jurisdiction over this appeal based
on LNC's failure to seek timely rehearing before the Commission, we
need not address other possible jurisdictional defects. Similarly, we
note that our disposition here precludes us from resolving the issue of
whether venue in this Court is proper.
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position,3 such a reading would be trumped by the plain language of NGA
§ 19(a). That section, which we apply without reservation, clearly
makes the "aggriev[ing]" order the relevant order for purposes of
seeking rehearing and a subsequent appeal.
Next, LNC attempts to shore up its position by asserting that
the Commission, in the May Order, revisited the central issue in this
case: whether the Commission should have conducted a review of the AES
and EnergyNorth projects. According to LNC, this proves that the
Commission was still in a "deliberative process" and the October 27,
2000 Order was not the final word on this issue.
To be sure, the existence of a rehearing procedure indicates
that the Commission will continue its deliberative process after an
initial order on a matter. Nevertheless, the availability of rehearing
does not alter the clear statutory procedure for perfecting an appeal.
As the text of the statute illustrates, there is an important
distinction between an aggrieving order and a rehearing order for
purposes of the appeal process:
Any party to a proceeding . . . aggrieved by an
order issued by the Commission . . . may obtain
a review of such order in the court of appeals
. . . by filing in such court, within sixty days
after the order of the Commission upon the
application for rehearing, a written petition
3 The Commission's rule can also be read to apply only to proceedings
raised under subpart E of the regulations, which governs evidentiary
hearings, thus making it entirely inapplicable to this case. See 18
C.F.R. § 385.713(a)(2).
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praying that the order of the Commission be
modified or set aside in whole or in part.
15 U.S.C. § 717r(b). Thus, while a rehearing order triggers the
sixty-day period for filing an appeal under this section, it is plainly
the aggrieving order that must be appealed. City of Oconto Falls v.
FERC, 204 F.3d 1154, 1159 (D.C. Cir. 2000).4
There are, indeed, some cases in which the Commission will
sufficiently modify an earlier order -- either upon rehearing,
reconsideration, or acting sua sponte -- so as issue, in effect, a new
aggrieving order that triggers a new rehearing requirement. See
Southern Natural Gas Co. v. FERC, 877 F.2d 1066, 1073 (D.C. Cir. 1989);
Tennessee Gas Pipeline Co. v. FERC, 871 F.2d 1099, 1109-10 (D.C. Cir.
1989). In certain cases it may be "a fine point to determine whether
a subsequent modification amounts to a new order or is merely a
technical change in an existing order." Tennessee Gas, 871 F.2d at
1110. However, we have little difficulty concluding in this case that
the Commission's May 3, 2001 Order was a mere technical modification
that did not amount to an order that aggrieved LNC anew. The May 3,
2001 Order only rerouted one-half mile of pipeline; this change is
virtually irrelevant to the larger NEPA issues appealed by LNC and,
4 In City of Ocanto Falls, the court was interpreting an identical
provision of the Federal Power Act. It is "established practice" to
cite decisions interpreting cognate provisions of the two statutes
interchangeably. Arkansas La. Gas Co. v. Hall, 453 U.S. 571, 577 n.7
(1981).
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moreover, is a modification that LNC actually requested. LNC certainly
cannot claim to be "aggrieved" by such a modified order. See Southern
Natural Gas, 877 F.2d at 1071 ("[H]aving received from FERC what it
presented as its first choice . . ., [the petitioner] is not
'aggrieved,' in any sense contemplated by NGA § 19(b) . . . . ").
In sum, by granting partial reconsideration with respect to
this discrete minor issue, the Commission did not open the door for
appeal of any and all prior rulings, including those implicating LNC's
forfeited NEPA claims.5 See Tennessee Gas, 871 F.2d at 1110 n.18 ("[I]f
a party does not raise an argument that it could have raised in its
first petition for review of a Commission action, it cannot preserve
that argument for judicial review simply by filing a second petition
for rehearing from a subsequent Commission order which implicates the
same action."); accord Kentucky Utils. Co. v. FERC, 789 F.2d 1210, 1215
(6th Cir. 1986). As the Ninth Circuit has held, the NGA precludes "the
5 We find LNC's reliance on Cities of Campbell v. FERC, 770 F.2d 1180
(D.C. Cir. 1985), unpersuasive. In that case, the court held that it
had jurisdiction over the appeal in spite of the petitioner's tardy
motion for rehearing on an earlier order. The court acknowledged,
however, that its ruling was limited to the peculiar circumstances of
that case -- namely, that the Commission had effectively mooted the
petitioner's untimely request for rehearing and deprived the earlier
order of its finality by "staying the effectiveness of [the] order and
by granting reconsideration of that entire order. . . ." Id. at 1184
(emphasis added). By contrast, in this case the Commission neither
stayed the October 27, 2000 order pending further proceedings nor
granted reconsideration of the issues LNC raises on appeal. The
Commission merely revisited a minor issue that is unrelated to those
raised here.
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intertwining of orders for review purposes, that is, using a timely
petition to review an order for which the time limitations have run."
Covelo Indian Cmty. v. FERC, 895 F.2d 581, 585 (9th Cir. 1990).
Having satisfied ourselves that the October 27, 2000 Order
is the relevant order for purposes of applying the review provisions of
the NGA, we turn to LNC's argument that it should be excused from
strict adherence to the review provisions of the NGA based on equitable
considerations.
C.
LNC contends that its appeal rights were still preserved
because its motion for rehearing would have been timely filed but for
an error by the postal service.6 In other words, since there is a
decent excuse for the petition's lack of timeliness, LNC argues, this
Court should waive the time requirements of the NGA and consider the
petition as timely. We decline to do so.
The Commission itself has consistently held that the thirty-
day time limit "is a jurisdictional time limit which [the] Commission
has no authority to extend." Turnbull & Zoch Drilling Co., 37 F.P.C.
255, 256 (1967). Several courts of appeals, including this one, have
6 LNC also argues that its request for rehearing was made within thirty
days of the October 27, 2000 Order's "issuance" because that order was
not formally issued until October 31, 2000. Since LNC never made this
argument before the Commission, it has forfeited that claim on appeal.
A petitioner cannot raise an issue before the court that it did not
first present before the Commission. See 15 U.S.C. § 717r(b); United
States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952).
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voiced substantial agreement with this view. See Boston Gas, 575 F.2d
at 979 ("Neither the Commission nor the courts are given any form of
jurisdictional discretion."); see also Tennessee Gas, 871 F.2d at 1107;
United Gas Pipe Line Co. v. FERC, 824 F.2d 417, 434 (5th Cir. 1987);
Sierra Ass'n for Env't v. FERC, 791 F.2d 1403, 1406 (9th Cir. 1986);
Montana-Dakota Utils. Co. v. FERC, 739 F.2d 376, 380-81 (8th Cir.
1984). LNC, on the other hand, proffers no concrete authority for its
contrary position. The best that LNC can do is point to language from
one of our cases that offers little more than an oblique suggestion
that a court of appeals might have the power to waive the rehearing
deadline in the appropriate case. See Boston Gas, 575 F.2d at 979 ("In
the present case petitioner presents no meritorious excuse for its
failure to file a timely application for rehearing.").
Though we are reluctant to say there are no circumstances --
no matter how extraordinary -- that would toll the rehearing deadline,
the present case does not require us to navigate any such uncharted
territory. The postal service may bear much of the fault for having
delivered the petition later than expected. Nevertheless, delivery
delays occur with some frequency, and there was no reason why LNC had
to wait until the last minute to file its petition. The October 27,
2000 Order clearly stated that it was issued on that date, and LNC was
fully informed that its petition had to be received within thirty days
of that date. Furthermore, LNC could easily have called the Commission
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to inquire as to whether its petition had been received. Once it found
the petition had not been received, LNC could have complied with the
filing deadline by following up with a telegraph or some other form of
electronic filing. See id. at 979-80 (noting that FERC has accepted
rehearing motions via telegraph).
Since we find that LNC failed to file a timely petition for
rehearing with the Commission, we do not consider the merits of LNC's
claims on appeal.
Petition dismissed. Costs are assessed against the
petitioners.
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