Londonderry Neighborhood Coalition v. Federal Energy Regulatory Commission

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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