United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 20, 2023 Decided July 21, 2023
No. 22-1146
FORE RIVER RESIDENTS AGAINST THE COMPRESSOR STATION,
ET AL.,
PETITIONERS
v.
FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT
ALGONQUIN GAS TRANSMISSION, LLC, AND INTERSTATE
NATURAL GAS ASSOCIATION OF AMERICA,
INTERVENORS
Consolidated with 22-1147
On Petitions for Review of Orders of the
Federal Energy Regulatory Commission
Michael H. Hayden argued the cause and filed the briefs
for petitioners. Crystal Huff entered an appearance.
Jared Fish, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. With him on
2
the brief were Matthew R. Christiansen, General Counsel, and
Robert H. Solomon, Solicitor.
Jeremy C. Marwell argued the cause for respondent-
intervenors Algonquin Gas Transmission, LLC, and the
Interstate Natural Gas Association of America. With him on
the joint brief were Michael Diamond, Paul Korman, Joan
Dreskin, and James T. Dawson.
Before: SRINIVASAN, Chief Judge, MILLETT, Circuit
Judge, and TATEL, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge MILLETT.
MILLETT, Circuit Judge: Fore River Residents Against
the Compressor Station is an organization whose members live
near a natural gas compressor station recently built in
Weymouth, Massachusetts, a densely populated suburb of
Boston. In these consolidated petitions, the Fore River
Residents, along with two local residents, two municipalities,
and Food and Water Watch, challenge actions taken by the
Federal Energy Regulatory Commission allowing the
compressor station to be built and to commence operation.
Because we lack jurisdiction over the petitions, we dismiss
them both.
I
Algonquin Gas Transmission, LLC, owns and operates the
Algonquin natural gas pipeline that runs between New Jersey
and northern Massachusetts, connecting much of New England
to a pipeline network that runs as far as Texas. City of Boston
Delegation v. FERC, 897 F.3d 241, 246 (D.C. Cir. 2018).
3
In 2017, the Federal Energy Regulatory Commission
granted Algonquin a certificate of public convenience and
necessity that allowed it and the owner of the neighboring
Maritimes & Northeast pipeline to undertake a series of
upgrades. See Town of Weymouth v. FERC, No. 17-1135,
2018 WL 6921213, at *1 (D.C. Cir. Dec. 27, 2018) (per
curiam). Those upgrades are known collectively as the
Atlantic Bridge Project (“Project”). As part of the Project,
Algonquin planned to build a new compressor station in
Weymouth, Massachusetts. The compressor station would
pressurize gas traveling north towards Maine.
The Town of Weymouth, as well as several residents and
environmental groups, petitioned this court to overturn the
Commission’s certification decision for the Project. This
court found no relevant error in the Commission’s decision and
denied the petition. See Town of Weymouth, 2018 WL
6921213, at *1. The Commission’s certificate gave
Algonquin until January 25, 2019, to complete construction of
the Project.
The petitions before us seek review of two orders that
followed the Commission’s issuance of the certificate of public
convenience and necessity.
A
The first challenged order concerns Algonquin’s inability
to meet the January 25, 2019, construction deadline. Under
the terms of the certificate issued by the Commission,
Algonquin needed state and local environmental and zoning
approval for its construction projects. When Algonquin tried
to obtain the relevant permits, two different Massachusetts
administrative law judges stayed state administrative
proceedings until Algonquin obtained federal court rulings
4
determining whether those state and local environmental and
zoning laws are preempted by the Natural Gas Act, 15 U.S.C.
§ 717 et seq. Algonquin subsequently obtained two separate
declaratory judgments in federal court holding that the state
and local laws were preempted. That administrative and
litigation process took more than the two years that had been
allotted for construction. See Algonquin Gas Transmission,
LLC v. Town of Weymouth, 365 F. Supp. 3d 147 (D. Mass. Feb.
11, 2019); Algonquin Gas Transmission, LLC v. Weymouth
Conservation Comm’n, No. 17-10788, 2017 WL 6757544 (D.
Mass. Dec. 29, 2017), aff’d, 919 F.3d 54 (1st Cir. March 19,
2019).
On the morning of December 26, 2018, with the January
2019 construction deadline looming and the final declaratory
judgment action not yet resolved, Algonquin asked the
Commission for a two-year extension of time to complete the
Project. Shortly before Noon that same day, Algonquin’s
extension request was summarily approved by a local
Commission Branch Chief.
The petitioners in this case are the City of Quincy,
Massachusetts, the Town of Braintree, Massachusetts, Michael
H. Hayden and Rebecca Haugh, two individuals whose homes
are located close to the compressor, and two organizations,
Food & Water Watch and Fore River Residents Against the
Compressor Station. Because the claims of the petitioners are
substantially identical, and for ease of reference, we refer to
them collectively as the “Fore River Residents.” The Fore
River Residents (excluding the City of Braintree) filed with the
Commission a petition for rehearing of the extension decision.
They argued that (i) the Branch Chief lacked the power to grant
the extension request, (ii) the short turnaround time evidenced
5
unreasoned decision-making, and (iii) the public should have
had a reasonable opportunity to submit adverse comments.1
After extensive briefing, the Commission denied
rehearing. Order Denying Rehearing (“2020 Extension
Rehearing Order”), 170 FERC ¶ 61144 (Feb. 21, 2020), J.A.
326. The Commission explained, first, that its regulations
fully authorized the Director of the Office of Energy Projects
to grant extensions of time, and that it was “appropriate” for
the Director to have “further sub-delegated” that authority to
the Branch Chief. Id. ¶¶ 7, 11, J.A. 328, 330.
Second, the Commission found nothing untoward about
how quickly the extension was granted since the Branch Chief
had “closely followed” the unfolding administrative
proceedings and preemption litigation, and so already was
aware of why Algonquin would need additional time. 2020
Extension Rehearing Order ¶ 38, J.A. 342.
Finally, the Commission agreed with the Branch Chief
that there was good cause to grant the extension. The record
contained no evidence of “any environmental changes in the
project area or any new information” that would have led to a
denial of the extension request. 2020 Extension Rehearing
Order ¶ 17, J.A. 335. And Algonquin had “demonstrated good
cause” by showing its diligence in pursuing state permits as
quickly as possible. Id. ¶ 33, J.A. 341.
With the extension approved, Algonquin proceeded to
build the Weymouth Compressor and the other remaining
1
The Town of Braintree failed to file a petition for rehearing of the
extension decision, so we lack statutory jurisdiction to hear its
petition challenging the extension. See New England Power
Generators Ass’n v. FERC, 879 F.3d 1192, 1198 (D.C. Cir. 2018).
6
components of the Project. The Project was completed in
September 2020.
B
The second order to which the Fore River Residents object
came almost two years after the Extension Order, when
construction was substantially complete. On September 16,
2020, Algonquin requested the Commission’s permission to
bring the now-built Weymouth Compressor and the rest of the
Project online. Algonquin appended to its request proof of its
environmental remediation of the construction site and its
compliance with all other certificate conditions. See J.A. 357–
377. In a one-page order issued on September 24, 2020, a
member of the Commission’s staff granted Algonquin’s
request to start operations (“In-Service Authorization Order”).
Neither Algonquin’s request nor the Commission’s
authorization mentioned a serious incident that had occurred
during the Weymouth Compressor’s safety testing. On
September 11, 2020, an O-ring gasket failed within the
compressor, triggering “the manual operation of the emergency
shutdown system and the release of approximately 169
thousand cubic feet * * * of natural gas.” Pipeline &
Hazardous Materials Safety Admin., Corrective Action Order
at 1 (Oct. 1, 2020), J.A. 395.
Then, just six days after the Commission’s September
24th order authorizing operations, the Weymouth Compressor
suffered another emergency shutdown when the “loss of power
on a 129-[volt] circuit” led to the “release of approximately
195,000 cubic feet” of gas. ROOT CAUSE FAILURE ANALYSIS
INVESTIGATION REPORT: WEYMOUTH COMPRESSOR STATION
SEPTEMBER 30, 2020 BLOWDOWN EVENT at ii (Dec. 22, 2020),
J.A. 743.
7
The Fore River Residents requested rehearing of the In-
Service Authorization Order. 2 They argued that the two
emergency shutdowns of the Weymouth Compressor, which
the Commission had not considered when it authorized
operations to begin, necessitated a new “situational
assessment[.]” In-Service Authorization Rehearing Request
at 3, J.A. 386. Such a review, the Fore River Residents
argued, was especially important given the potentially harmful
effects that the two large releases of natural gas could have had
on nearby communities with heightened vulnerability to the
Covid-19 pandemic. They also argued that, in light of the
incidents, the Commission should “reexamine the * * * core
circumstances concerning project need [and] project safety”
underpinning the original Certificate Order. In-Service
Authorization Rehearing Request at 5, J.A. 388.
The Fore River Residents’ rehearing petition was initially
denied by default when the Commission failed to take timely
action on it. See generally Allegheny Def. Proj. v. FERC, 964
F.3d 1, 16–17 (D.C. Cir. 2020) (en banc). Several months
later, the Commission requested fresh briefing on the rehearing
petition and asked the parties to address a number of specific
questions, including whether it should “reconsider” the
operation of the Weymouth Compressor “in light of any
changed circumstances since the project was authorized[.]”
Order Establishing Briefing, 174 FERC ¶ 61126, at ¶ 2 (Feb.
18, 2021), J.A. 453.
2
Only the City of Quincy, the Town of Braintree, and Fore River
Residents Against the Compressor Station are petitioners in Case No.
22-1147 and seek review of the In-Service Authorization rehearing
decision.
8
In their supplemental brief, the Fore River Residents
argued that the compressor’s “operation[s] must cease”
because, among other things, “[s]afety was not considered in
the granting of the original certificate,” as evidenced by the two
emergency shutdowns within just weeks of the Commission’s
decision authorizing operations to commence. J.A. 657.
After considering the supplemental briefing, the
Commission unanimously reaffirmed the denial of rehearing.
It held that the process of authorizing a project to come online
could not be used as an opportunity to “relitigate the certificate
proceeding[.]” 2022 Rehearing Order ¶ 16, J.A. 1376. And
nothing in the Natural Gas Act or any regulation or decision of
the Commission requires a situational assessment with regard
to a specific project. 2022 Rehearing Order ¶ 21, J.A. 1379–
1380. So the only relevant question in deciding whether to
allow service to begin was whether Algonquin had complied
with the certificate.
Turning to that question, the Commission found that the
Fore River Residents “have not identified—and we have not
found—any violations of the Certificate Order.” 2022
Rehearing Order ¶ 17, J.A. 1377. The Commission noted, in
particular, that the unplanned releases of natural gas during the
two emergency shutdowns were “not beyond the range of those
contemplated by the Commission in the certificate
proceeding[.]” 2022 Rehearing Order ¶ 19, J.A. 1378.
Given the absence of any record evidence showing deviation
from the certificate, there was no basis on which to deny
Algonquin permission to bring the Project, including the
Weymouth Compressor, online. 2022 Rehearing Order
¶¶ 18–19, J.A. 1377–1378.
Chairman Glick concurred in the denial of rehearing. He
acknowledged that the certificate was final, and that nothing in
9
the Certificate Order or the factual record offered any “legal
basis” to prevent the compressor from entering service. Glick
Concurrence to 2022 Rehearing Order ¶¶ 2–3, J.A. 1385–1386.
The Fore River Residents timely petitioned for review in
both cases, and we ordered them consolidated.
II
In the first petition, the Fore River Residents seek review
of the Extension Order and the denial of rehearing. In the
second, they seek review only of the Commission’s denial of
rehearing of the In-Service Authorization Order. We lack
jurisdiction to consider either petition, so we dismiss them
both.
A
We lack Article III jurisdiction over the Extension Order
petition, No. 22-1146, because the petitioners have failed to
demonstrate standing and the case is moot. See Food & Water
Watch v. Department of Agric., 1 F.4th 1112, 1117 n.3 (D.C.
Cir. 2021) (“Both mootness and standing pertain to whether
there is a proper case or controversy before the court.”).
To invoke the power of this court to review the Extension
Order, the Fore River Residents must show that they “(1)
suffered an injury in fact, (2) that is fairly traceable to the
challenged conduct of the defendant, and (3) that is likely to be
redressed by a favorable judicial decision.” Spokeo, Inc. v.
Robins, 578 U.S. 330, 338 (2016). The petitioners have
satisfied the first two elements by demonstrating injuries
flowing from “the siting of the compressor station, including
depressed property values, increased noise and air pollution,
visual blight, and heightened safety risks.” Myersville
10
Citizens for a Rural Cmty. v. FERC, 783 F.3d 1301, 1317 (D.C.
Cir. 2015); see, e.g., Hayden Mot. Intervene at 2–3, J.A. 11–12
(discussing the Project’s impact on property values, noise and
air pollution, and safety risks). All of those injuries are
directly traceable to the Commission’s decision because, had it
denied the extension motion, the Weymouth Compressor could
not have been built.
The trouble for the Fore River Residents lies in the
redressability prong of Article III standing. When, as here, a
petition for review of agency action raises objections to the
process by which the agency arrived at its decision, we may
redress the petitioner’s underlying injury by ordering a
procedurally proper do-over in which the agency might reach a
conclusion more favorable to the petitioner. See, e.g.,
Massachusetts v. EPA, 549 U.S. 497, 518 (2007) (Standing
assumed if there is “some possibility that the requested relief
will prompt the injury-causing party to reconsider the decision
that allegedly harmed the litigant.”); Hawkins v. Haaland, 991
F.3d 216, 224–225 (D.C. Cir. 2021) (“Claims for procedural
violations also receive a ‘relaxed redressability requirement’ in
which the plaintiff need only show that ‘correcting the alleged
procedural violation could still change the substantive outcome
in the [plaintiff’s] favor,’ not ‘that it would effect such a
change.’”) (quoting Narragansett Indian Tribal Historic Pres.
Off. v. FERC, 949 F.3d 8, 13 (D.C. Cir. 2020)).
Here, the Fore River Residents object that a staff member
rather than the full Commission issued the Extension Order;
that he did so after too little time to properly analyze the
existence of good cause; and that he failed to provide any time
for project opponents to object. In the ordinary case, if the
Fore River Residents were to prevail, we could remedy their
injury by directing full Commission review with ample
opportunity for public comment, accompanied by a reasoned
11
explanation of the extension decision. See, e.g., American
Pub. Gas Ass’n v. Department of Energy, No. 22–1107, 2023
WL 4377914, at *12–13 (D.C. Cir. July 7, 2023) (remanding
agency decision for notice and comment and for further
explanation).
This is the rare case in which no such remedy could be
ordered. The Commission has already given the Fore River
Residents exactly the reconsideration that redresses their
procedural objection. In responding to the Fore River
Residents’ rehearing petition, the Commission invited
extensive briefing, took weeks to consider that record, and
ultimately ratified the initial decision and explained why the
extension was granted for good cause. See 2020 Rehearing
Order ¶¶ 18–36, J.A. 335–342. In other words, the full
Commission independently came to the same decision that the
extension should have been granted, and it did so with none of
the procedural flaws about which the Fore River Residents
complain. Cf. Murray Energy Corp. v. FERC, 629 F.3d 231,
236 (D.C. Cir. 2011) (“Given that the Commission had
authority to issue the Construction Order, the Commission’s
subsequent ratification resolved any potential delegation
problems.”). Because the Commission has already remedied
each of the complaints raised, there is no relief for this court to
order.
Importantly, the Fore River Residents do not raise any
specific objection to the Commission’s own process on
rehearing or to the substance of its decision. At most, they
argued for the first time in their reply brief that the
Commission’s ratification of the extension was “arbitrary,
capricious, an abuse of discretion and otherwise not in
accordance with the law” because it “doubled down in an
inexplicable effort to condone the flawed process” followed by
the Branch Chief in the first instance. Fore River Residents
12
Reply Br. 1, 9. That will not suffice. Arguments raised for
the first time in a reply brief are forfeited. See American
Wildlands v. Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008)
(“We need not consider this argument because plaintiffs have
forfeited it on appeal, having raised it for the first time in their
reply brief.”).
Anyhow, the Fore River Residents identify no specific
procedural step that ought to have been done differently in their
own case and no process that we could order the Commission
to undertake on remand, other than that which has already been
done. Rather, the Fore River Residents made clear at
argument that they object primarily to “[t]he precedent this
ratification has set.” Oral Arg. Recording at 9:10–9:14. But
fixing that precedent would not make a whit of difference to
their case, and thus is not an available Article III remedy. Cf.
Kowalski v. Tesmer, 543 U.S. 125, 129 (2004) (“[A] party
‘generally must assert his own legal rights and interests, and
cannot rest his claim to relief on the legal rights or interests of
third parties.’”) (quoting Warth v. Seldin, 422 U.S. 490, 499
(1975)).
For many of those same reasons, the case is moot. A case
becomes moot when, among other things, “the court can
provide no effective remedy because a party has already
obtained all the relief that [it has] sought.” Schmidt v. United
States, 749 F.3d 1064, 1068 (D.C. Cir. 2014) (quoting
Conservation Force, Inc. v. Jewell, 733 F.3d 1200, 1204 (D.C.
Cir. 2013)) (internal quotation marks omitted). In Schmidt, a
veteran argued that the denial of his claim for increased
disability benefits was procedurally defective because it was
issued by the wrong administrative tribunal. Id. But the
“claim was rendered moot” when the correct tribunal “itself
evaluated and made a determination on Schmidt’s application.”
Id.
13
That same logic extends to the Fore River Residents’
arguments concerning the timing of the Extension Order and
the lack of opportunity to object. The fact that the full
Commission adopted the Branch Chief’s order after weeks of
consideration, and did so on a fully developed record in which
the Fore River Residents submitted an extensive brief,
“resolved” any remaining procedural defects. Murray
Energy, 629 F.3d at 236. No concrete controversy remains
between the parties. Id. (The Commission “resolved any
potential delegation problems” with a Branch Chief’s
extension order by “adopt[ing]” the order “as [its] own” after
full consideration.) (internal quotation marks omitted); see also
Mittleman v. Postal Regulatory Comm’n, 757 F.3d 300, 303
(D.C. Cir. 2014) (Once petitioners “have received all the relief
they sought, their petition is moot and must be dismissed.”).
In short, because the Fore River Residents have already
received all of the procedural relief they requested and have not
identified any procedural injury that survived the
Commission’s thorough reconsideration of the Extension
Order, we lack jurisdiction to hear their petition and must
dismiss it.
B
We also lack statutory jurisdiction to consider the Fore
River Residents’ second petition for review, which challenges
the Commission’s order allowing the Weymouth Compressor
to be put into service.
The Commission took three actions related to the entry of
the compressor into service: (1) It granted authorization to
bring the Project online; (2) it denied rehearing of that decision;
and (3) following further briefing, it again denied rehearing.
14
The Residents have repeatedly made clear that their challenge
addresses exclusively the last of those actions—the second
denial of rehearing. See Fore River Residents Opening Br. iii
(listing as the only order on review the “Commission’s Order
on Briefing and Addressing Arguments Raised on Rehearing,
January 20, 2022”); Fore River Residents Reply Br. 5 (“The
Petitioners are aggrieved by * * * [the] Order on Briefing and
Addressing Arguments Raised on Rehearing * * * issued by
the Commission on January 20, 2022[.]”). They specifically
disavow any challenge to the initial order green-lighting
operations. Fore River Residents Reply Br. 5 n.1 (“[T]he
2020 Authorization Order is not the Order under Appeal”);
Fore River Residents Reply Br. at 6 (“[T]he Petitioners have
not challenged the Commission’s Authorization Order issued
on September 24, 2020[.]”); Oral Arg. Recording at 17:52–
17:59 (“Unequivocally, we are not challenging the September
24th, 2020 Authorization.”).3
The Natural Gas Act creates two necessary preconditions
to judicial review of a Commission decision. First, we may
review only “an order issued by the Commission[.]” 15
U.S.C. § 717r(b). Second, we may review that order only if
the petitioner first files an “application to the Commission for
a rehearing” of that initial decision. See id. § 717r(a); see
generally Allegheny Def. Proj., 964 F.3d at 4–5. So the
3
The Fore River Residents also do not address the Commission’s
first denial of rehearing in November 2020, presumably because that
decision was an automatic statutory denial of rehearing due to the
Commission’s failure to act, devoid of substantive analysis. See
Notice of Denial of Rehearing by Operation of Law and Providing
for Further Consideration at 1, J.A. 423; 15 U.S.C. § 717r(a). To
the extent the Fore River Residents’ challenge includes the first
denial of rehearing, it suffers from the same jurisdictional issues as
the second denial of rehearing.
15
court’s statutory jurisdiction requires both a substantive order
to review and a rehearing petition that follows it.
The Fore River Residents’ petition comes up short on both
fronts.
First, they fail to challenge any substantive “order” by the
Commission within the meaning of the Natural Gas Act.
More specifically, the Fore River Residents challenge only the
denial of rehearing. But under the Natural Gas Act, an order
denying rehearing is not the type of order that, standing alone,
can be the basis of our review. The statute distinguishes an
“order” from the “application to the Commission for rehearing”
that follows it. See 15 U.S.C. § 717r(a). That textual order
of operations indicates that the disposition of the application
for rehearing is not, without more, a reviewable “order.” See
City of Oconto Falls v. FERC, 204 F.3d 1154, 1159 n.4 (D.C.
Cir. 2000) (“Although a rehearing order can be challenged
together with an ‘aggrieving’ order, * * * a rehearing order
cannot be challenged on its own[.]”); see also DTE Energy Co.
v. FERC, 394 F.3d 954, 961 (D.C. Cir. 2005) (“But while DTE
Energy sought rehearing of the April 11 Order, its petition for
review by the court challenges only the November 17, 2003
Rehearing Order. Because DTE Energy failed to identify the
aggrieving order in its petition for review, the court cannot
consider DTE’s challenge to the Commission’s November 17,
2003 Rehearing Order.”). As such, the Natural Gas Act
deprives this court of jurisdiction to review just a denial of
rehearing.
There is an exception if the Commission, on rehearing,
substantively “modifies the result reached in the original
order[.]” Southern Nat. Gas Co. v. FERC, 877 F.2d 1066,
1072–1073 (D.C. Cir. 1989); see Tennessee Gas Pipeline Co.
v. FERC, 871 F.2d 1099, 1109–1110 (D.C. Cir. 1989). That
16
modification of the original order would, in effect, create a new
order subject to judicial review in its own right. Southern Nat.
Gas Co., 877 F.2d at 1072–1073.
No such modification occurred here. The Commission
reached the very same conclusion that it had in the first
instance; “it simply marshaled new arguments to support the
old outcome.” Columbia Gas Transmission Corp. v. FERC,
477 F.3d 739, 742 (D.C. Cir. 2007). The fact that the
Commission tacked on some additional reasons to justify
reaching the same conclusion does not “transform its order
denying rehearing into a new ‘order[.]’” Id. (quoting Southern
Nat. Gas Co., 877 F.2d at 1073); City of Oconto Falls, 204 F.3d
at 1159 n.4 (“[A] rehearing order does not constitute a new
order unless it significantly modifies the original order.”).
But even were we to construe the Commission’s denial of
rehearing as a reviewable new “order,” that would not change
anything. That is because the statute strictly requires that
every single “order” we review be accompanied by an
“application to the Commission for rehearing.” 15 U.S.C.
§ 717r(a). Yet the Fore River Residents never sought
rehearing of the decision they challenge—the second denial of
rehearing. See Canadian Ass’n of Petrol. Producers v. FERC,
254 F.3d 289, 296–297 (D.C. Cir. 2001) (“[O]n matters where
the rehearing order introduces a new source of complaint[,]”
the petitioner must “file another rehearing petition.”). So that
pathway is also closed.
In short, the denial of rehearing is not a reviewable order,
so the Fore River Residents may not obtain judicial review
under 15 U.S.C. § 717r(b). And even if it were a reviewable
order, their petition would be jurisdictionally deficient because
they failed to request rehearing of it. For this reason, we
dismiss the second petition for lack of statutory jurisdiction.
17
III
For the foregoing reasons, both petitions are dismissed for
lack of jurisdiction.
So ordered.