United States Court of Appeals, District of Columbia Circuit
March 6, 2018
Petition for Review of Orders of the Federal Energy
Brooks argued the cause for petitioner. With him on the
briefs was David A. Bricklin. Carolyn Elefant entered an
G. Pacella, Deputy Solicitor, Federal Energy Regulatory
Commission, argued the cause for respondent. With her on the
brief were James P. Danly, General Counsel, and Robert H.
C. Marwell argued the cause for intervenor. With him on the
brief were Michael B. Wigmore, James D. Seegers, and Conor P.
Before: Tatel, Millett, and Katsas, Circuit Judges.
Katsas, Circuit Judge.
Bend Conservation Alliance petitions for review of two orders
of the Federal Energy Regulatory Commission authorizing
facilities to export natural gas from the United States to
Mexico. Seeking an expanded environmental review, Big Bend
argues that FERC, in addition to exercising jurisdiction over
the export facilities at the border, also should have
exercised jurisdiction over the intrastate pipeline
delivering gas to the border. Alternatively, Big Bend
contends that regardless of the scope of FERC's
jurisdiction under the Natural Gas Act, an expanded review
was required by the National Environmental Policy Act.
Natural Gas Act regulates transporting and selling natural
gas in "interstate commerce," as well as importing
and exporting natural gas in "foreign commerce." 15
U.S.C. § 717(b). The Act does not regulate "any
other transportation or sale of natural gas."
3 of the Act prohibits the "export" or
"import" of natural gas, to or from a foreign
country, without prior authorization by FERC. See 15
U.S.C. § 717b(a). (This grant of authority to the
Federal Power Commission was transferred to the Secretary of
Energy, 42 U.S.C. § 7151(b), then delegated in part to
FERC, U.S. Dep't of Energy, Delegation Order No.
00-004.00A, § 1.21.A (May 16, 2006).) We have construed
Section 3 also to require prior authorization to construct
export and import facilities. See Distrigas Corp. v. Fed.
Power Comm'n, 495 F.2d 1057, 1064 (D.C. Cir. 1974).
7 of the Natural Gas Act prohibits constructing or operating
a facility to transport or sell natural gas in interstate
commerce without a certificate of public convenience and
necessity from FERC. 15 U.S.C. § 717f(c)(1)(A);
see 42 U.S.C. § 7172(a)(1)(C)-(D). However,
Section 311 of the Natural Gas Policy Act permits FERC to
"authorize any intrastate pipeline to transport natural
gas on behalf of … any interstate pipeline," at
prices deemed by FERC to be fair and equitable. 15 U.S.C.
§ 3371(a)(2). Such authorized transportation is exempt
from "the jurisdiction of the Commission" under the
Natural Gas Act. Id. § 3431(a)(2)(A).
National Environmental Policy Act (NEPA) requires federal
agencies to prepare an environmental impact statement (EIS)
for "major Federal actions significantly affecting the
quality of the human environment." 42 U.S.C. §
4332(2)(C). Implementing regulations issued by the Council on
Environmental Quality (CEQ) sometimes require agencies to
prepare an environmental assessment-a document used to
determine whether to prepare an EIS. 40 C.F.R. §
1508.9(a)(1). If the agency concludes that no EIS is
required, it must issue a finding of no significant ...