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Big Bend Conservation Alliance v. Federal Energy Regulatory Commission

United States Court of Appeals, District of Columbia Circuit

July 17, 2018

Big Bend Conservation Alliance, Petitioner
v.
Federal Energy Regulatory Commission, Respondent Trans-Pecos Pipeline, LLC, Intervenor

          Argued March 6, 2018

          On Petition for Review of Orders of the Federal Energy Regulatory Commission

          Jacob Brooks argued the cause for petitioner. With him on the briefs was David A. Bricklin. Carolyn Elefant entered an appearance.

          Beth 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. Solomon, Solicitor.

          Jeremy C. Marwell argued the cause for intervenor. With him on the brief were Michael B. Wigmore, James D. Seegers, and Conor P. McEvily.

          Before: Tatel, Millett, and Katsas, Circuit Judges.

          OPINION

          Katsas, Circuit Judge.

         Big 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.

         I

         A

         The 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." Id.

         Section 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).

         Section 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).

         The 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 ...


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