Coalition for Responsible Growth & Resource Conservation v. United States Federal Energy Regulatory Commission

12-566-ag
Coalition v. FERC

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING
A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER").
A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York, on the
12th day of June, two thousand twelve.

PRESENT: RALPH K WINTER,
DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges.

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COALITION FOR RESPONSIBLE GROWTH
AND RESOURCE CONSERVATION,
DAMASCUS CITIZENS FOR SUSTAINABILITY,
AND SIERRA CLUB,
Petitioners,

v. 12-566-ag

UNITED STATES FEDERAL ENERGY
REGULATORY COMMISSION,
Respondent,
CENTRAL NEW YORK OIL AND GAS COMPANY,
Intervenor.

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FOR PETITIONERS: DEBORAH GOLDBERG (Hannah Chang,
Bridget Lee, on the brief),
EARTHJUSTICE, New York, New York,

FOR RESPONDENT: KARIN L. LARSON, Attorney (Michael A.
Bardee, General Counsel, Robert H.
Solomon, Solicitor, Holly E. Cafer,
Attorney, on the brief), United States
Federal Energy Regulatory Commission,
Washington, D.C.
FOR INTERVENOR: ROBERT J. ALESSI (Jeffrey D. Kuhn, on
the brief), DLA Piper, New York, New
York (William F. Demarest, Jr.,
Michael A. Gatje, Husch Blackwell LLP,
on the brief), Washington, DC.

Petition for review of two orders of the United States

Federal Energy Regulatory Commission ("FERC").
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the petition is DENIED.

We assume the parties' familiarity with the facts and

procedural history, which we reference only as necessary to explain

our decision to deny the petition.

Petitioners Coalition for Responsible Growth and Resource

Conservation, Damascus Citizens for Sustainability, and Sierra Club

(collectively, the "Coalition") seek review of: (1) a Certificate of

Public Convenience and Necessity (the "Certificate Order") granted

by FERC pursuant to Section 7(c) of the Natural Gas Act, 15 U.S.C.

§ 717f(c), to the Central New York Oil and Gas Company ("Central NY

Oil") and (2) an order denying the Coalition's Request for Rehearing

of the Certificate Order (the "Rehearing Order").

The Certificate Order authorizes Central NY Oil to build

and operate the MARC I Hub Line Project natural gas pipeline -- 39

miles long and 30 inches in diameter -- to run through Bradford,

Sullivan, and Lycoming Counties, Pennsylvania, and to build and

operate related facilities.

Under the National Environmental Policy Act ("NEPA"), 42

U.S.C. §§ 4321-4347, a federal agency proposing a "major Federal

action[] significantly affecting the quality of the human

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environment" must prepare a detailed statement about the

environmental impact of the proposed action -- an environmental

impact statement ("EIS"). 42 U.S.C. § 4332(2)(C)(i); Nat'l Audubon

Soc'y v. Hoffman, 132 F.3d 7, 12 (2d Cir. 1997). If an agency is

uncertain as to whether the action requires an EIS, it must prepare

an environmental assessment ("EA") that ["b]riefly provide[s]

sufficient evidence and analysis for determining whether to prepare

an [EIS]." 40 C.F.R. §§ 1501.3, 1508.9(a)(1). If the agency finds

that an EIS is not necessary, the agency will issue a finding of no

significant impact ("FONSI"). 40 C.F.R. § 1508.9(a)(1).

In reviewing a decision whether to issue an EIS, this

Court must consider: (1) "whether the agency took a 'hard look' at

the possible effects of the proposed action" and (2) if the agency

has taken a "hard look," whether "the agency's decision was

arbitrary or capricious." Nat'l Audubon Soc'y, 132 F.3d at 14; see
also 5 U.S.C. § 706(2)(A) (court may set aside an agency's decision

not to require an EIS only upon a showing that it was "arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance

with law"). Under NEPA, this Court's role is to "insure that the

agency considered the environmental consequences" of the federal

action at issue. Town of Orangetown v. Gorsuch, 718 F.2d 29, 35 (2d
Cir. 1983) (citation omitted); see also Robertson v. Methow Valley

Citizens Council, 490 U.S. 332, 351 (1989) ("NEPA merely prohibits

uninformed -- rather than unwise -- agency action").

Here, in considering Central NY Oil's application, FERC

prepared an EA, issued a FONSI, and concluded that an EIS was not

required. We conclude, based on our review of the administrative

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record, that FERC took a "hard look" at the possible effects of the

Project and that its decision that an EIS was not required was not

arbitrary or capricious. Its 296-page EA thoroughly considered the

issues. The Certificate Order carefully reviewed the concerns

raised by the comments. The Rehearing Order addressed petitioners'

concerns and further explained FERC's basis for issuing the FONSI.

The Coalition argues that FERC's cumulative impact

analysis was inadequate. We disagree. FERC's analysis of the

development of the Marcellus Shale natural gas reserves was

sufficient. FERC included a short discussion of Marcellus Shale

development in the EA, and FERC reasonably concluded that the

impacts of that development are not sufficiently causally-related to

the project to warrant a more in-depth analysis. In addition,

FERC's discussion of the incremental effects of the project on

forests and migratory birds was sufficient. FERC addressed both

issues in the EA and has required Central NY Oil to take concrete

steps to address environmental concerns raised by petitioners and

others. For example, in the Certificate Order, FERC required

Central NY Oil to comply with its Riparian Forested Buffer

Enhancement Plan to address forest fragmentation. In Environmental

Condition 17 of the EA, FERC required Central NY Oil to prepare and

execute a Migratory Bird Impact Assessment and Habitat Restoration

Plan. The environmental concerns identified by commenting parties,

including the Environmental Protection Agency, were considered and

addressed by FERC in the EA and the Rehearing Order.

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 Accordingly, we hold that FERC properly discharged its

responsibilities under NEPA. We have considered all of petitioners'

remaining arguments and conclude that they are without merit. The

petition for review is DENIED.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

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