Minisink Residents for Environmental Preservation & Safety v. Federal Energy Regulatory Commission

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 1, 2014 Decided August 15, 2014

No. 12-1481

MINISINK RESIDENTS FOR ENVIRONMENTAL PRESERVATION

AND SAFETY, ET AL.,

PETITIONERS

v.

FEDERAL ENERGY REGULATORY COMMISSION,

RESPONDENT

MILLENNIUM PIPELINE COMPANY, L.L.C.,

INTERVENOR

Consolidated with 13-1018

On Petitions for Review of Orders of the

Federal Energy Regulatory Commission

Carolyn Elefant argued the cause and filed the briefs for

petitioners.

Karin L. Larson, Attorney, Federal Energy Regulatory

Commission, argued the cause for respondent. With her on

the brief were David L. Morenoff, Acting General Counsel,

and Robert H. Solomon, Solicitor.

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Aaron M. Streett argued the cause for intervenor. On the

brief were Joseph Koury and Ryan J. Collins.

Before: KAVANAUGH, MILLETT and WILKINS, Circuit

Judges.

Opinion for the Court filed by Circuit Judge WILKINS.

WILKINS, Circuit Judge: Given the choice, almost no one

would want natural gas infrastructure built on their block.

“Build it elsewhere,” most would say. The sentiment is

understandable. But given our nation’s increasing demand for

natural gas (and other alternative energy sources), it is an

inescapable fact that such facilities must be built somewhere.

Decades ago, Congress decided to vest the Federal Energy

Regulatory Commission with responsibility for overseeing the

construction and expansion of interstate natural gas facilities.

And in carrying out that charge, sometimes the Commission is

faced with tough judgment calls as to where those facilities

can and should be sited. These petitions present one such

example.

In July 2012, the Commission approved a proposal for

the construction of a natural gas compressor station in the

Town of Minisink, New York. Many local residents, hoping

to thwart that result, banded together to fight the compressor

station’s development. They formed a group called “Minisink

Residents for Environmental Preservation and Safety”

(“MREPS”) and mounted a vigorous, but ultimately

unsuccessful, campaign opposing the project. Undeterred,

MREPS and several of its individual members now petition

for our intervention. In doing so, they mainly argue that the

Commission’s approval of the project was arbitrary and

capricious, particularly given the existence of a nearby

alternative site they insist is better than the Minisink locale

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green-lighted by FERC. They also assail some of the

Commission’s procedural calls along the way. Though we

respect the concerns they raise, we conclude that, as a legal

matter, the Commission’s decisions were both reasonable and

reasonably explained. Consequently, we deny the petitions

for review.

I.

We begin with a quick overview of the regulatory

framework, before turning to the particulars of these petitions.

A.

Congress enacted the Natural Gas Act, ch. 556, 52 Stat.

821 (1938) (codified as amended at 15 U.S.C. §§ 717-717z),

with the principal aim of “encourag[ing] the orderly

development of plentiful supplies of . . . natural gas at

reasonable prices,” NAACP v. Fed. Power Comm’n, 425 U.S.

662, 669-70 (1976), and “protect[ing] consumers against

exploitation at the hands of natural gas companies,” Fed.

Power Comm’n v. Hope Natural Gas Co., 320 U.S. 591, 610

(1944). Along with those main objectives, there are also

several “‘subsidiary purposes’” behind the NGA’s passage,

“includ[ing] ‘conservation, environmental, and antitrust’

issues.” Pub. Utils. Comm’n of Cal. v. FERC, 900 F.2d 269,

281 (D.C. Cir. 1990) (quoting NAACP, 425 U.S. at 670 &

n.6).

The Act vests FERC with broad authority to regulate the

transportation and sale of natural gas in interstate commerce.

15 U.S.C. §§ 717b, 717c; see also Schneidewind v. ANR

Pipeline Co., 485 U.S. 293, 301 (1988) (“FERC exercises

authority over the rates and facilities of natural gas companies

used in [interstate] transportation and sale.”). To achieve this

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objective, Congress equipped the Commission with a variety

of regulatory tools, one of which captures the focus of our

review today.

Under Section 7(c) of the Act, before an applicant can

construct or extend an interstate facility for the transportation

of natural gas, it must obtain a “certificate of public

convenience and necessity” from the Commission. 15 U.S.C.

§ 717f(c)(1)(A); Dominion Transmission, Inc. v. Summers,

723 F.3d 238, 240 (D.C. Cir. 2013). The statute provides that

a certificate “shall be issued to any qualified applicant” upon

a finding that “the applicant is able and willing properly to do

the acts and to perform the service proposed . . . and that the

proposed service” and “construction . . . is or will be required

by the present or future public convenience and necessity.”

15 U.S.C. § 717f(e). FERC may, in issuing such a certificate,

attach “such reasonable terms and conditions as the public

convenience and necessity may require.” Id.; Murray Energy

Corp. v. FERC, 629 F.3d 231, 234 (D.C. Cir. 2011).

The Commission has issued a policy statement outlining

the criteria it considers in reviewing such certificate

applications. Certification of New Interstate Natural Gas

Pipeline Facilities, 88 FERC ¶ 61,227 (Sept. 15, 1999),

clarified, 90 FERC ¶ 61,128 (Feb. 9, 2000), further clarified,

92 FERC ¶ 61,094 (July 28, 2000) (“Certificate Policy

Statement”). The Commission will first confirm “whether the

project can proceed without subsidies from the[] existing

[pipeline’s] customers.” Id., 88 FERC ¶ 61,227, at 61,745.

Then, it will “balanc[e] the public benefits against the adverse

effects of the project.” Id., 90 FERC ¶ 61,128, at 61,396.

FERC will approve a project only “where the public benefits

of the project outweigh the project’s adverse impacts.” Id.;

see also Fla. Gas Transmission Co. v. FERC, 604 F.3d 636,

649 (D.C. Cir. 2010) (Brown, J., concurring in part and

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dissenting in part) (summarizing the factors examined under

FERC’s Certificate Policy Statement). 1

In conjunction with the certificating process, the

Commission must also complete an environmental review of

the proposed project, as mandated by the National

Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4370h.

E.g., Midcoast Interstate Transmission, Inc. v. FERC, 198

F.3d 960, 967 (D.C. Cir. 2000). Simply stated, the

Commission’s NEPA obligation requires that it “‘identify the

reasonable alternatives to the contemplated action’ and ‘look

hard at the environmental effects of [its] decision[].’” Id.

(quoting Corridor H Alternatives, Inc. v. Slater, 166 F.3d 368,

374 (D.C. Cir. 1999)) (alterations in original).

B.

For years, Millennium Pipeline Company

(“Millennium”) has owned and operated a natural gas pipeline

system extending across much of New York’s southern

border. In July 2011, seeking to expand its service capacity,

Millennium applied to the Commission for a certificate of

public convenience and necessity that would allow for the

1

The “public benefits” the Commission examines “could include,

among other things, meeting unserved demand, eliminating

bottlenecks, access to new supplies, lower costs to consumers,

providing new interconnects that improve the interstate grid,

providing competitive alternatives, increasing electric reliability, or

advancing clean air objectives.” Certificate Policy Statement, 90

FERC ¶ 61,128, at 61,396. On the other side of the scale, the

potential “adverse effects” the Commission will consider are “the

effects on existing customers of the applicant, the interests of

existing pipelines and their captive customers, and the interests of

landowners and the surrounding community, including

environmental impacts.” Id.

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construction and operation of a natural gas compressor station

along its existing pipeline. Joint Appendix (“J.A.”) 304-19.

The proposed site for the project was located in the Town of

Minisink, New York.

As explained in its application to FERC, the aim of

Millennium’s project was twofold. First, the new station

would allow Millennium to increase natural gas deliveries to

its eastern interconnection by about 225,000 additional

dekatherms per day. Second, the compressor would enable

bi-directional gas flow on an existing segment of

Millennium’s pipeline. J.A. 305. The project’s footprint, as

proposed by Millennium, would consist of: (a) two 6,130-

horsepower natural gas-fired compressor units, to be housed

in a newly built structure; (b) an additional 1,090 feet of pipe

connecting the compressor station to the existing pipeline; (c)

and several ancillary facilities, including a new mainline

valve, an access driveway, a station control/auxiliary building,

intake and exhaust silencers, and a filter-separator with a

liquids tank. The compressor station was to be sited on a

small part of a much larger, 73.4-acre parcel—a parcel

acquired and owned by Millennium. See J.A. 305-07. We

refer to Millennium’s proposal as the “Minisink Project.”

Consistent with agency regulations, notice of the

proposed Minisink Project was published in the Federal

Register. See 76 Fed. Reg. 46,786 (Aug. 3, 2011). Around

the same time, the Commission issued a “Notice of Intent to

Prepare an Environmental Assessment,” which was sent to a

range of interested stakeholders, including lawmakers,

potentially affected landowners, and environmental and

public-interest groups. In the months following, Millennium

sponsored a community meeting at the Minisink Town Hall

so that those interested could learn more about the proposal

and voice their views. FERC also hosted its own meeting in

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Minisink concerning the proposal. As might be expected, the

Minisink Project sparked its fair share of local interest; during

the review process, the Commission received hundreds of

verbal and written comments. See J.A. 8-9.

Most significantly for our purposes, several residents

urged Millennium and the Commission to pursue a nearby

alternative site for the compressor station—what came to be

known as the “Wagoner Alternative.” Under the Wagoner

Alternative, Millennium would construct a smaller, 5,100-

horsepower compressor station directly adjacent to its existing

Wagoner Meter Station, a site located along the pipeline about

seven miles northwest of Minisink. J.A. 10-11. This

alternative, its proponents insisted, was far better suited for

the project, in large part because it was less residentially

dense than the site proposed in Minisink. See, e.g., J.A. 347-

50. But it came with a catch: Its implementation would

require the replacement of a 7-mile segment of pipe along the

pipeline—a segment the parties call the “Neversink Segment”

due to its crossing of the Neversink River; according to

Millennium, no such upgrade would be required by the

Minisink Project. See J.A. 390-91. Reacting to commenters

who were pushing the Wagoner Alternative, FERC sent

notice to landowners within the vicinity of the Wagoner

Meter Station site and along the Neversink Segment, inviting

their input and comments on the concept. J.A. 372-74. The

Commission incorporated the feedback it received into its

review of Millennium’s proposal.

FERC released its Environmental Assessment (“EA”) for

the Minisink Project several months later. See J.A. 428-97.

Along with its detailed evaluation of the project’s likely

environmental impacts—on water resources, vegetation and

wildlife, air quality and noise, and more—the EA also

analyzed several alternatives to Millennium’s proposal,

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including an in-depth comparison between the Minisink

Project and the Wagoner Alternative. J.A. 474-89. The EA

did identify some positive environmental upshots associated

with the Wagoner Alternative, see J.A. 484-89, but, on

balance, the assessment found that the Minisink Project was

environmentally preferable, due principally to the negative

environmental consequences that would flow from an upgrade

of the Neversink Segment, J.A. 489 (“[T]he greater

environmental issues and landowner impacts of replacing the

Neversink Segment cause us to conclude that the Wagoner

Alternative does not provide a significant environmental

advantage over the proposed project.”). Overall, the EA

concluded that, so long as Millennium implemented certain

mitigation measures, the Minisink Project was expected to

have no significant environmental impact. J.A 490-94.

After receiving and reviewing a slew of comments

concerning the EA, FERC ruled on Millennium’s application

in July 2012. By a 3-2 majority, the Commission voted to

issue a certificate of public convenience and necessity to

Millennium, allowing the Minisink Project to move forward.

Millennium Pipeline Co., L.L.C., Order Issuing Certificate,

140 FERC ¶ 61,045 (July 17, 2012) (“Certificate Order”)

(reprinted at J.A. 2-50).

The Commission began its analysis by applying the

criteria set forth in its Certificate Policy Statement, first

finding the threshold factor satisfied—that the project would

not require any subsidization from Millennium’s existing

customers. Certificate Order, ¶¶ 11-12. From there, the

Commission weighed the project’s benefits (increased

capacity to customers in the high-demand northeast market,

among others) against what FERC viewed as its “minimal

adverse effect[s],” both market- and environmentally-focused.

In the end, the Commission concluded that “the public

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convenience and necessity require[d] approval of

Millennium’s proposal,” subject to certain environmental

conditions. Id. ¶¶ 13-15.

The Commission undertook an extensive environmental

analysis in its order, leaning heavily on the results of the EA.

With respect to the Wagoner Alternative, in particular, the

Commission explained as follows:

The EA evaluated several system and aboveground

site alternatives, and thoroughly compared the

Wagoner Alternative to Millennium’s proposed

Minisink Compressor Station. . . . Ultimately, the EA

concludes that although there are certain advantages to

the Wagoner Alternative (primarily, its greater

distance from the nearest noise-sensitive areas and the

lack of residences within 0.5 mile of the compressor

site), the greater environmental issues and landowner

impacts of replacing the Neversink Segment outweigh

those advantages, and as a whole result in the

Wagoner Alternative not providing a significant

environmental advantage over the proposed project.

The Commission concurs with this assessment.

Certificate Order, ¶¶ 26-27. More broadly, the Commission

also addressed a variety of other comments touching on

environmental and landowner-related issues. At the end of

the day, FERC adopted the EA’s findings and concluded that,

so long as Millennium adhered to the parameters outlined in

its application and complied with certain environmental

mitigation measures, the Minisink Project was expected to

have no significant environmental impact. Id. ¶ 83.

The Commission’s order also resolved a few procedural

matters that had been raised. First, the Commission denied a

request for a full-blown evidentiary hearing for the Minisink

10

Project, concluding that the issues at stake could be

adequately addressed on the written record. The Commission

also denied a request to stay the proceedings due to a

resident’s pending Freedom of Information Act (FOIA)

request for documents from the Commission (generally

seeking certain hydraulic analyses and systems models that

Millennium submitted to FERC during the application

process). Id. ¶¶ 84-87.

As noted, the Commission’s determination was not

unanimous; the approval of Millennium’s application drew

two dissenting votes. At bottom, both dissenters—Chairman

Wellinghoff and Commissioner LaFleur—explained that, in

their eyes, the Wagoner Alternative was a preferable

alternative to the Minisink Project, and that the Commission

was wrong to conclude otherwise. See J.A. 41-47. In

addition, Commissioner Clark issued a separate concurrence,

highlighting his view that, even if one truly thought the

Wagoner Alternative wrought lesser environmental impacts

than the Minisink Project, so long as Minisink was still

considered “an acceptable site that produces minimal adverse

impacts,” it should still be approved because FERC need not

limit its approval to sites with “the minimum impact.” J.A. 48

(second emphasis in original).

Following the Commission’s approval, MREPS and

others sought rehearing, and the Commission denied those

requests through another thorough order. Millennium

Pipeline Co., L.L.C., Order Denying and Dismissing Requests

for Rehearing, Denying Request to Reopen and Supplement

the Record, and Denying Requests for Stay, 141 FERC ¶

61,198 (Dec. 7, 2012) (“Reh’g Order”) (reprinted at J.A. 52-

96). Therein, after considering and rejecting various

challenges to its initial decision, FERC reaffirmed its

certificate approval for the Minisink Project. Additionally,

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the Commission denied a request to reopen and supplement

the record to include a study prepared by Mr. Richard

Kuprewicz, who we are told is an “industry expert on pipeline

engineering and safety.” Pet’rs’ Br. at 22-23. The

Commission reached that result after determining that “Mr.

Kuprewicz’s study provide[d] no basis for reversing [its]

approval of the Minisink Project.” Reh’g Order, ¶¶ 75-80.

Finally, FERC denied a request to stay construction on the

Minisink Project pending judicial review. Id. ¶¶ 81-83. 2

Chairman Wellinghoff and Commissioner LaFleur again

dissented, jointly reiterating their view that the Wagoner

Alternative still stood superior to the Minisink Project. See

J.A. 95-96.

In January 2013, Minisink resident Michael Mojica filed

a separate request for rehearing with FERC, focusing on (1)

the Commission’s refusal to reopen the record to consider Mr.

Kuprewicz’s study, and (2) Mr. Mojica’s claimed inability to

timely obtain information he believed necessary to oppose

Millennium’s application (essentially the documents pursued

via the aforementioned FOIA request). The Commission,

joined this time by Chairman Wellinghoff and Commissioner

LaFleur, unanimously denied the rehearing request.

Millennium Pipeline Co, L.L.C., Order Denying Rehearing,

142 FERC ¶ 61,077 (Jan. 31, 2013) (“Second Reh’g Order”)

(reprinted at J.A. 99-106).

2

Before construction on the Minisink Project was complete,

Petitioners twice sought emergency stays from this Court as well.

On both occasions we denied their requests. In re Minisink

Residents for Pres. of the Env’t and Safety, No. 12-1390 (D.C. Cir.

Oct. 11, 2012) (denying motion for emergency relief); Minisink

Residents for Envtl. Pres. and Safety v. FERC, No. 12-1481 (D.C.

Cir. Mar. 5, 2013) (denying petition for stay during pendency of

these proceedings).

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Meanwhile, MREPS commenced proceedings before this

Court. In December 2012, MREPS and some of its members

filed a petition seeking review of the Commission’s

Certificate Order and Rehearing Order (Case No. 12-1481).

Then, after his individual rehearing request was denied by

FERC, Mr. Mojica separately petitioned for our review (Case

No. 13-1018). 3 Given the sweeping overlap of issues, we

consolidated the two petitions. We refer to MREPS and the

various individual petitioners, collectively, as “Petitioners.”

While the briefing in these appeals unfolded, Millennium

completed construction of the Minisink Project and placed the

compressor station into use in June 2013.

II.

Petitioners seek review of a final order of the

Commission, which means we have jurisdiction under 15

U.S.C. § 717r(b). E.g., Murray Energy Corp., 629 F.3d at

235; Fla. Gas Transmission Co., 604 F.3d at 639.

We review the Commission’s orders, including those

approving certificate applications, under the familiar arbitrary

and capricious standard. B&J Oil & Gas v. FERC, 353 F.3d

71, 75-76 (D.C. Cir. 2004); Midcoast Interstate Transmission,

198 F.3d at 967. Our role is limited “to assuring that the

Commission’s decisionmaking is reasoned, principled, and

3

Originally, Mr. Mojica was also a party to the first-filed petition,

but given the pendency of his rehearing request before FERC at that

time, he withdrew from participation in the original case to avoid

any problems under Tennessee Gas. See Tenn. Gas Pipeline Co. v.

FERC, 9 F.3d 980, 980-81 (D.C. Cir. 1993) (“It is well-established

that a party may not simultaneously seek both agency

reconsideration and judicial review of an agency’s order.”).

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based upon the record.” Am. Gas Ass’n v. FERC, 593 F.3d

14, 19 (D.C. Cir. 2010); Penn. Office of Consumer Advocate

v. FERC, 131 F.3d 182, 185 (D.C. Cir. 1997). We must

consider “whether the decision was based on a consideration

of the relevant factors and whether there has been a clear error

of judgment.” ExxonMobil Gas Mktg. Co. v. FERC, 297 F.3d

1071, 1083 (D.C. Cir. 2002). In so doing, we “cannot

substitute [our] judgment for that of the Commission.” Nat’l

Comm. for the New River, Inc. v. FERC, 373 F.3d 1323, 1327

(D.C. Cir. 2004). All the while, we remain mindful that “[t]he

grant[] or denial of a certificate of public convenience and

necessity is a matter peculiarly within the discretion of the

Commission.” Okla. Natural Gas Co. v. Fed. Power

Comm’n, 257 F.2d 634, 639 (D.C. Cir. 1958); accord Cal.

Gas Producers Ass’n v. Fed. Power Comm’n, 383 F.2d 645,

648 (9th Cir. 1967).

* * *

As a threshold matter, and even though neither FERC nor

Millennium contests our power to entertain these petitions, we

have independently assured ourselves that we are presented

with a justiciable controversy. While the Minisink Project is

now finished and functional, the petitions under review are

not moot because Petitioners, through their written

submissions to this Court and to the Commission, assert that

the compressor’s operation continues to harm their aesthetic,

health, and property interests. See Moreau v. FERC, 982 F.2d

556, 566 n.4 (D.C. Cir. 1993). For much the same reasons,

we are satisfied that Petitioners have suffered injuries

sufficient for Article III standing. Id. at 565. With this much

established, we turn to the merits of Petitioners’ arguments. 4

4

Our analysis on these points does not rest in any way on the

online video submission referenced in Petitioners’ brief. See Pet’rs’

14

A.

In urging us to upend FERC’s approval of the Minisink

Project, Petitioners mount several lines of attack. Chief

among them is their argument that the Commission failed to

afford due consideration to the Wagoner Alternative, which

Petitioners insist was undeniably superior to the Minisink

Project—in their eyes, “economically, environmentally, and

operationally” superior. See Pet’rs’ Br. at 6. Specifically,

Petitioners claim that this alleged failure both violated the

Commission’s obligations under Section 7 of the NGA, and

represented a misapplication of the Commission’s own

Certificate Policy Statement. We disagree.

We do agree with Petitioners that the Commission was

obligated to consider, as part of its certificating process under

the NGA, reasonable alternatives to the project proposed by

Br. at 5, 27-28. A picture may be worth a thousand words in some

contexts, but extra-record video clips cannot substitute for proper

briefing. Where a party’s standing is not apparent from the agency

record, our rules require that “the brief . . . include arguments and

evidence establishing the claim of standing.” D.C. CIRCUIT RULE

28(a)(7) (emphasis added). Petitioners’ choice to use “Video

Testimonials” skirts this requirement, and if adopted more broadly,

could wreak havoc on the procedural controls governing appeals

before this Court, such as word limits, briefing schedules, and the

like. And this is without even considering the specific failings

associated with Petitioners’ video account. For one, there is no

indication that the individuals it portrays are under oath, so their

remarks are not even evidence. Moreover, Petitioners do not direct

us to any particular segment of the video they deem relevant,

whether through a pinpoint citation or otherwise; instead, they

expect us to review the entirety of the 18-minute recording—which,

it bears noting, spans more time than their counsel was allotted at

oral argument—to discern the elements of standing.

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Millennium. See, e.g., N. Natural Gas Co. v. Fed. Power

Comm’n, 399 F.2d 953, 973 (D.C. Cir. 1968) (“[T]he duty

imposed upon the Commission by Section 7 of the Natural

Gas Act is not merely to determine which of the submitted

applications is most in the public interest, but also to give

proper consideration to logical alternatives which might serve

the public interest better than any of the projects outlined in

the applications.”); accord Citizens for Allegan Cnty., Inc. v.

Fed. Power Comm’n, 414 F.2d 1125, 1133 (D.C. Cir. 1969).

The trouble with Petitioners’ theory, though, is that the

Commission satisfied this obligation here. Based on our

assessment of the record, we are convinced that the

Commission amply considered alternatives to the Minisink

Project, devoting especially thorough attention to the

Wagoner Alternative favored by Petitioners.

For one, FERC’s Certificate Order unmistakably outlines

the Commission’s exploration of the Wagoner Alternative as

an alternate possibility for Millennium’s compressor station.

See Certificate Order, ¶ 26 (“Numerous comments received

during scoping also requested that the Commission evaluate

alternatives to the proposed action . . . . The EA evaluated

several system and aboveground site alternatives, and

thoroughly compared the Wagoner Alternative to

Millennium’s proposed Minisink Compressor Station.”). In

keeping with the recommendations set out in the EA,

however, the Commission concluded that the more significant

environmental impacts associated with the Wagoner

Alternative—mostly due to improvement of the Neversink

Segment—rendered that option less preferable than the

proposed Minisink Project. Id. ¶ 27 (summarizing some of

the perceived environmental downsides to the Wagoner

16

Alternative). 5 The same holds true with respect to the

Rehearing Order, wherein the Commission again walked

through its comparison of the Minisink Project and the

Wagoner Alternative. Reh’g Order, ¶¶ 66-67. Based on that

comparison, the Commission reiterated its view that “the

selection of the Minisink [Project] as opposed to the Wagoner

Alternative is eminently reasonable.” Id. ¶ 67.

Furthermore, Petitioners seem to overlook the fact that,

once the Wagoner Alternative surfaced, the Commission took

the additional (and, from what we understand, relatively

unusual) step of issuing a supplemental notice before

completing its Environmental Assessment. Therein, the

Commission specifically flagged its consideration of the

Wagoner Alternative, inviting feedback and input from

nearby residents and other potentially impacted parties. See

J.A. 372-74; J.A. 373 (“The Commission wants to ensure that

5

For instance, the Commission explained as follows:

• The Wagoner Alternative would impact ten times more

land acreage (112.4) than the Minisink Project (10.6);

• The Wagoner Alternative would require the clearing of

more trees and the conscription of more agricultural

land than the Minisink Project;

• The Wagoner Alternative would necessitate the

placement of pipeline across eleven wetlands and

twelve waterbodies, raising complications not extant in

the Minisink Project; and

• The Wagoner Alternative had the potential to impact

five special status species, as opposed to one through

the Minisink Project.

Certificate Order, ¶¶ 26-27. FERC’s Certificate Order also

incorporated the EA itself, which goes through its own relatively

detailed comparison between the two proposals. See J.A. 484-89.

17

all potentially affected landowners for the [Wagoner]

alternative have the opportunity to participate in the

environmental review process. . . . You are encouraged to

become involved in this process and provide your specific

comments or concerns about Millennium’s proposal and the

[Wagoner] alternative described above.”) In view of all of

this, it seems clear that FERC duly considered the Wagoner

Alternative (and other alternatives), and cogently explained its

rationale in finding the Minisink Project properly approved

under the NGA. We would be hard-pressed to read the record

otherwise.

In arguing to the contrary, Petitioners marshal only one

meaningful theory in their favor. They claim that the

Commission’s analysis was flawed because Millennium either

planned or needed to upgrade the Neversink Segment all

along. In other words, according to Petitioners, even if

Millennium moved forward with the Minisink Project (and

not the Wagoner Alternative), it still had plans to replace the

Neversink Segment in the very near future. So the

Commission’s decision to account for the environmental

impacts of a Neversink upgrade only in connection with the

Wagoner Alternative and not the Minisink Project, Petitioners

tell us, was unreasonable and misguided. E.g., Pet’rs’ Br. at

32 (“Had the Commission compared a Minisink/Neversink

project to a Wagoner/Neversink upgrade, the Wagoner

alternative would have emerged as the superior choice.”). We

reject their premise.

This argument effectively hinges on an ambiguous

reference in one PowerPoint slide that Petitioners uncovered

through an internet search in the midst of the agency

proceedings—a document Petitioners generously refer to as

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the “Currie Report.” 6 This document, Petitioners surmise,

proves that the construction of a new compressor station at

Minisink was only Millennium’s first step in a multi-phase

expansion project, part of which was destined to include a

Neversink upgrade all along. Notably, Petitioners made this

very same argument to the Commission, and the Commission

found it unsubstantiated. Rather, the Commission read the

“Currie Report” as “merely . . . a marketing document,” and

found that, as a factual matter, it did not evince “an intent by

Millennium to pursue an integrated, three-phase expansion of

its system,” nor “any firm decision by Millennium as to future

construction,” as had been suggested. Reh’g Order, ¶ 32

n.41. As to this factual determination, FERC’s findings are

“conclusive” if “supported by substantial evidence,” 15

U.S.C. § 717r(b); Colo. Interstate Gas Co. v. FERC, 599 F.3d

698, 704 (D.C. Cir. 2010)—a standard, we have stated, that

“requires more than a scintilla, but can be satisfied by

something less than a preponderance of the evidence,” FPL

Energy Me. Hydro LLC v. FERC, 287 F.3d 1151, 1160 (D.C.

Cir. 2002). On this record, the Commission’s finding falls

comfortably within that range. We thus accept FERC’s

conclusion that the “Currie Report” does not establish any

firm present or future plans by Millennium to upgrade the

Neversink Segment. 7

6

Although never clearly explained, Petitioners seem to call this the

“Currie Report” because they believe the PowerPoint presentation

was prepared by an individual named Sean Currie, who is identified

in at least one FERC filing as Millennium’s Manager of Capacity

Optimization. See J.A. 126 n.77.

7

Petitioners say we should accord FERC’s factual findings no

deference because it was “biased” in favor of Millennium’s

application. See Pet’rs’ Br. at 7, 41. In support, Petitioners point

to an excerpted portion of FERC’s Rehearing Order stating, in part,

that “there is no incentive for a project sponsor to present an

application that cannot meet our standards for approval.” Pet’rs’

19

In making this argument, Petitioners lean heavily on our

decision in City of Pittsburgh v. Federal Power Commission,

237 F.2d 741 (D.C. Cir. 1956). But that decision cannot bear

the weight Petitioners wish. In City of Pittsburgh, we

reviewed the issuance of a certificate of public convenience

and necessity allowing a natural gas supplier to abandon

service on one pipeline and to transfer that load to another

pipeline operating below capacity. In the course of contesting

the Commission’s order, a group of petitioners argued that the

abandonment would result in rate increases associated with

future expansions—increases that could be avoided, those

petitioners said, if the supplier maintained service on the

pipeline it sought to abandon. After review, this Court set

aside the order, largely based on the Commission’s failure to

consider the effects of abandonment on the pipeline’s future

expansion. Id. at 750 (“[The Commission] persistently closed

its eyes even to the existence of the problem of future

expansion.”). Seizing on that holding, Petitioners insist it

Br. at 7 (quoting Reh’g Order, at ¶ 45) (emphasis by Petitioners).

We could see how these remarks might give Petitioners pause.

After reading that applicants have “no incentive” to pursue

proposals that cannot secure approval, it is conceivable that one

might come away thinking the Commission has a thumb on the

scale for industry applicants. This is hardly the image our federal

regulators should be projecting to the American public. But as

another recent decision from this Court explained in turning aside a

similar argument, “[t]he fact that [applicants] generally succeed in

choosing to expend their resources on applications that serve their

own financial interests does not mean that an agency which

recognizes merit in such applications is biased.” NO Gas Pipeline

v. FERC, No. 12-1470, slip op. at 10 (D.C. Cir. July 1, 2014). This

logic holds true here, too. Though FERC’s comments were

arguably clumsy, it would require quite a leap on our part to equate

its statements with prejudgment.

20

applies equally to the facts of their case because FERC

glossed over and ignored the possibility of a future Neversink

Segment replacement. For at least two reasons we can see,

however, City of Pittsburgh finds no application here.

First, in City of Pittsburgh, it was clear and unmistakable

that the pipeline intended to expand service in the future. See

id. at 751 (“That Texas Eastern would soon move to expand

its gas deliveries was apparent throughout the [Commission’s]

proceeding.”); id. at 752 (“The record amply shows Texas

Eastern’s intention to apply for authority to expand its

capacity and its sales.”). Here, on the other hand, the

Commission examined the record—including the so-called

“Currie Report”—and found no concrete indication that

Millennium intended, then or in the future, to upgrade the

Neversink Segment. So the evidence of “future expansion” is

a far cry from what we were presented with in City of

Pittsburgh. Second, and perhaps more fundamentally, the

shortcoming we took issue with in City of Pittsburgh was the

Commission’s refusal to examine the effects of future

expansion altogether; the hearing examiner would not permit

any questioning or inquiry into the supplier’s plans for

expansion, nor would the examiner consider several company

memoranda that supposedly revealed such plans. Id. at 750-

52. Here, in stark contrast, FERC unquestionably did

consider Petitioners’ theory that Millennium planned (or

needed) to upgrade the Neversink Segment. See Certificate

Order, ¶¶ 65, 68; Reh’g Order, ¶¶ 25, 32-33, 47, 73 & n.41.

It just disagreed with their position that the prospect of such a

step was sufficiently certain to require its environmental

effects be taken into account in connection with the Minisink

Project. Given this, we cannot say that the Commission

“closed its eyes” to the issue of “future expansion”—here, the

possible replacement of the Neversink Segment—as was the

case in City of Pittsburgh. 237 F.2d at 750-52.

21

Given the foregoing, we have no basis to second-guess

the Commission’s determination that Millennium had no firm

plans to upgrade the Neversink Segment in the wake of the

Minisink Project. Petitioners also press this argument with a

slightly different gloss, however. They argue that even if

Millennium was not planning to replace the Neversink

Segment, circumstances would soon require such a step

nonetheless. Absent such an upgrade, Petitioners assert, a

“bottleneck” caused by the smaller-diameter pipe on the

Neversink Segment would preclude Millennium’s pipeline

from safely handling the volume, pressure, and speed that

would be generated by the Minisink Project. (For the most

part, this theory relies on the aforementioned study prepared

by Mr. Kuprewicz.) We remain unmoved. The Commission

considered this argument, too, and based on its assessment of

the evidence, it again disagreed with Petitioners on the facts.

FERC found no evidence that the Minisink Project would

necessitate, as a structural or safety matter, an upgrade of the

Neversink Segment. See Certificate Order, ¶ 68 (“Staff

independently evaluated the hydraulic feasibility of the

Minisink Compressor Station and completed an engineering

analysis of Millennium’s pipeline system . . . . [T]here is

nothing in the record to suggest that the operation of the

Minisink Compressor Station will compromise the safety of

the Neversink Segment.”); see also Reh’g Order, ¶¶ 75-80

(summarizing “flaws” in Mr. Kuprewicz’s various

suppositions, as viewed by FERC). As we explain shortly,

the Commission’s decision not to reopen the record to

consider Mr. Kuprewicz’s report was not an abuse of

discretion, and Petitioners provide no other meaningful basis

for concluding that FERC’s factual determinations regarding

the pipeline’s structural integrity were unsupported by

22

substantial evidence. We thus find no basis to upset the

Commission’s finding on this point either. 8

In our view, then, FERC reasonably concluded that the

Wagoner Alternative would require replacement of the

Neversink Segment, while the same was not plainly true of

the Minisink Project. And with that factual determination in

hand, it comes as no great shock that the Commission did not

believe the Wagoner Alternative a better fit for the proposed

project. On this point, some historical context is in order.

More than a decade before the Minisink Project was

proposed, Millennium had sought approval from FERC to

construct a replacement pipeline for the original Neversink

Segment. Initially, the Commission approved that proposal

subject to certain conditions. Millennium Pipeline Co., L.P.,

Interim Order, 97 FERC ¶ 61,292, at 62,356 (Dec. 19, 2001).

But due to the extreme difficulty Millennium encountered

trying to satisfy those conditions—including a host of

environmental snags—it opted instead to rely on the existing

7.1-mile-long segment of pipe acquired from a competitor

(Columbia Gas) for the Neversink River crossing, i.e., the

“Neversink Segment” as it exists today. See J.A. 401-05

(describing this background). FERC authorized that

8

We also find it somewhat telling that neither of the dissenting

commissioners expressed a belief that a Neversink upgrade was

imminently inevitable. True, both thought a Neversink replacement

would have yielded longer-term benefits that would have

outweighed the positive environmental factors the majority

associated with the Minisink Project (nearly all tied to avoiding, at

least for the time being, a Neversink upgrade). And mostly for this

reason, they believed the Wagoner Alternative preferable in the

long run. But neither suggested that the record, as they saw it,

showed that Millennium planned or needed to replace the

Neversink Segment even if it did not pursue the Wagoner

Alternative, as Petitioners maintain. See J.A. 41-47, 95-96, 106.

23

alternative arrangement in 2006. See Millennium Pipeline

Co., L.L.C., Order Issuing and Amending Certificates,

Approving Abandonment, Vacating Certificate, and Granting

and Denying Requests for Rehearing and Clarification, 117

FERC ¶ 61,319, at 62,576 (Dec. 21, 2006). Given

Millennium’s past struggles navigating the environmental

complications of a Neversink upgrade, the fact that the

Commission did not think such a course preferable at this

juncture seems to us an understandable result.

In sum, as we have stated before, FERC “enjoys broad

discretion to invoke its expertise in balancing competing

interests and drawing administrative lines.” Am. Gas Ass’n,

593 F.3d at 19 (citing ExxonMobil Gas Mktg. Co., 297 F.3d at

1085); see also Columbia Gas Transmission Corp. v. FERC,

750 F.2d 105, 112 (D.C. Cir. 1984) (“[A]s an expert agency,

the Commission is vested with wide discretion to balance

competing equities against the backdrop of the public

interest[.]”). Notwithstanding Petitioners’ pleas to the

contrary, we conclude that the Commission’s consideration of

the Wagoner Alternative falls within the bounds of that

discretion. 9 Under our narrow standard of review, then, we

9

We hasten to add that FERC’s obligation to consider alternatives

in Section 7 proceedings is not boundless. As we have previously

explained, FERC need not “undertake exhausting inquiries, probing

for every possible alternative, if no viable alternatives have been

suggested by the parties, or suggest themselves to the agency.”

Citizens for Allegan Cnty., 414 F.2d at 1133. We do not suggest

otherwise today, nor must we venture beyond these general

guideposts. Since the Wagoner Alternative was so fervently

advocated for during the Minisink Project’s review process, all

agree that the Commission was obligated to at least consider it.

24

have no basis to upset the Commission’s application of its

Section 7 authority on this point. 10

B.

Along with their weighty reliance on the Wagoner

Alternative, Petitioners make several other arguments against

the reasonableness of the Commission’s analysis. We treat

each argument in turn, finding none persuasive.

1.

Petitioners claim that the Commission failed to give the

environmental impacts of the Minisink Project the “hard

look” NEPA requires. We conclude otherwise.

NEPA’s “hard look” doctrine is designed “to ensure that

the agency has adequately considered and disclosed the

environmental impact of its actions and that its decision is not

arbitrary or capricious.” Nat’l Comm. for the New River, 373

F.3d at 1327. NEPA is a procedural statute; it “‘does not

mandate particular results, but simply prescribes the necessary

10

On the other side of the “public benefits”/“adverse impacts”

scale, Petitioners appear to separately argue that FERC violated its

policy statement by relying on Millennium’s existing contracts with

gas transporters to demonstrate the public benefits of the Minisink

Project. Pet’rs’ Br. at 35. We reject that claim as well. Petitioners

identify nothing in the policy statement or in any precedent

construing it to suggest that it requires, rather than permits, the

Commission to assess a project’s benefits by looking beyond the

market need reflected by the applicant’s existing contracts with

shippers. To the contrary, the policy statement specifically

recognizes that such agreements “always will be important

evidence of demand for a project.” Certificate Policy Statement, 88

FERC ¶ 61,227, at 61,748.

25

process.’” Midcoast Interstate Transmission, 198 F.3d at 967

(quoting Robertson v. Methow Valley Citizens Council, 490

U.S. 332, 350 (1989)). In reviewing an agency’s compliance

with NEPA, the “rule of reason applies,” and we “consistently

decline[] to ‘flyspeck’ an agency’s environmental analysis.”

Theodore Roosevelt Conservation P’ship v. Salazar, 661 F.3d

66, 75 (D.C. Cir. 2011) (quoting Nevada v. U.S. Dep’t of

Energy, 457 F.3d 78, 93 (D.C. Cir. 2006)).

Petitioners claim to eschew a flyspecking approach here,

arguing instead that the Commission’s analysis is laden with

“gaping holes.” Pet’rs’ Br. at 41. They point to three. In our

view, though, all fall decidedly more into the “flyspecking”

camp than anything more.

First, Petitioners contend that the Commission erred in

failing to undertake a more fulsome cost-benefit analysis of

the Minisink Project as compared with the Wagoner

Alternative. This argument essentially piggybacks off their

overall Wagoner Alternative theory, and, in that sense, we

reject it for the reasons already stated. In our view, the

Commission reasonably assessed the Wagoner Alternative,

particularly with respect to its environmental implications, as

most concerns NEPA. See Found. on Econ. Trends v.

Heckler, 756 F.2d 143, 147 (D.C. Cir. 1985) (“NEPA’s dual

mission is . . . to generate federal attention to environmental

concerns and to reveal that federal consideration for public

scrutiny.”) (emphasis added). Otherwise, to the extent

Petitioners contend that the Commission should have focused

more generally on the monetary costs and benefits of the

respective proposals, we disagree that NEPA requires such an

approach, particularly where only an environmental

assessment, rather than an environment impact statement, is

involved. See Webster v. U.S. Dep’t of Agric., 685 F.3d 411,

430 (4th Cir. 2012) (“The agency does not,” under NEPA,

26

“need to display the weighing of the merits and drawbacks of

the alternatives in a monetary cost-benefit analysis.”);

Communities Against Runway Expansion, Inc. v. FAA, 355

F.3d 678, 687 (D.C. Cir. 2004) (“[I]t is undisputed that the

FAA was not required to undertake a formal cost-benefit

analysis as part of the [environmental impact statement].”).

Second, Petitioners argue that the Commission failed to

examine the Minisink Project’s impact on property values.

But as the Commission rightly rejoins, the EA clearly

addressed this issue. J.A. 457-58. It recognized there may be

some adverse impacts on surrounding property values due to

the compressor station. On balance, though, the EA

concluded that “the recommended building design and

landscaping plans would eventually minimize the visual

impact from the station on the surrounding residential

properties and would not significantly reduce property values

or resale values.” J.A. 458. The Commission’s order echoes

this general assessment. Certificate Order, ¶ 70 (“[W]e

believe that the visual and noise mitigation measures

recommended in the EA and included as conditions in this

order, will mitigate the potential for decreases in property

values.”). Though we can see how Petitioners may disagree

with this takeaway, their disagreement does not mean that

FERC failed to consider the issue altogether, as they suggest.

Third, Petitioners claim that the Commission failed to

assess cumulative and future impacts. They accuse FERC of

ignoring two issues in particular: (1) Millennium’s planned

development of a second compressor station on the pipeline

upstream from Minisink (what came to be the “Hancock

Project”), and (2) the potential construction of a lateral

pipeline from the Minisink compressor to a proposed power

plant operated by CPV Valley LLC. The record belies this

argument on both scores. As for the Hancock Project, the

27

EA’s “Cumulative Impacts” discussion flags Millennium’s

“intent to construct a second compressor station” and explains

that, because no certificate application had been filed with

FERC, little was known about the details of the project.

Nevertheless, given the “typical distances between

compressor stations (70 miles) and the difference in

construction timing,” the EA stated that no significant

cumulative impacts were expected, other than possibly with

respect to air quality. J.A. 473. In view of the uncertainty

surrounding the second compressor station, and the difference

in timing between the two projects, this discussion suffices

under NEPA. 11 The same holds true with respect to the

11

We disagree with Petitioners that the EA’s treatment of the

“Hancock Project” contravenes this Court’s decision in Delaware

Riverkeeper, see Pet’rs’ 28(j) Letter (June 16, 2014), which held

that FERC improperly segmented and failed to consider the

cumulative impacts of four “connected, contemporaneous, closely

related, and interdependent” projects. Del. Riverkeeper Network v.

FERC, 753 F.3d 1304, 1307 (D.C. Cir. 2014). In faulting the

Commission’s NEPA analysis of the cumulative impacts of the

“Northeast Project” under review there, that decision took pains to

emphasize that the other three projects were all “either under

construction or were also pending before the Commission for

environmental review and approval.” Id. at 1308; see also id.

(“FERC’s NEPA review . . . did not consider any of the other

upgrade projects, even though the first upgrade project was under

construction during FERC’s review . . . and even though the

applications for the second and fourth upgrade projects were

pending before FERC[.]”); id. at 1318 (“The temporal nexus here is

clear. Tennessee Gas proposed the Northeast Project while the 300

Line Project was under construction . . . . [a]nd FERC’s

consideration of the Northeast Project application overlapped with

its consideration of the remaining two projects . . . . We emphasize

here the importance we place on the timing of the four

improvement projects.”). Those critical facts are worlds apart from

this case. At the time of its application for the Minisink Project,

28

potential development of the CPV Valley power plant. The

EA’s “Cumulative Impacts” section identifies this possible

project, too, though it again signals the absence of any firm

details surrounding project specifics. Even still, the EA

concluded that because the Minisink Project itself was

expected to have minimal impacts, no significant cumulative

impacts were expected to flow from the possible development

of the CPV Valley power plant, particularly since the

construction timelines for the two potential projects would be

quite distinct. J.A. 473-74. In sum, based on our review of

the EA, we are satisfied that FERC properly considered the

cumulative impacts of the Minisink Project.

2.

Petitioners also assert that the Commission’s approval of

the Minisink Project contravenes its own siting guidelines.

We can quickly dispatch these arguments.

Among its NEPA-implementing regulations, FERC has

promulgated “[s]iting and maintenance requirements” for the

construction and upkeep of facilities. 18 C.F.R. § 380.15.

Petitioners think that the Minisink Project contravenes three

separate provisions of that regulation. We think not. We first

agree with the Commission that § 380.15(b) is inapplicable

Millennium had not yet applied for approval of the Hancock

Project, nor was construction on either project underway.

Furthermore, once plans for the Hancock Project were cemented

and presented to FERC for approval under Section 7, the

Commission did examine that project alongside the Minisink

Project (then in the midst of development), and the resulting EA

found no significant cumulative impacts associated with the two

projects. See Millennium Pipeline Co., L.L.C., Order Issuing

Certificate, 145 FERC ¶ 61,007, at ¶ 52 (Oct. 1, 2013). For at least

these reasons, Delaware Riverkeeper lends no help to Petitioners.

29

altogether because, by its terms, it is triggered only by

facilities constructed on third-party landowners’ property;

here, as FERC noted below, Reh’g Order, ¶ 3, the Minisink

Project was built on a parcel owned entirely by Millennium.

While the parties also disagree whether § 380.15(e) (formerly

§ 380.15(d)) 12 applies to a project involving the construction

of a compressor station, we need not decide that issue because

FERC nevertheless complied with the regulation’s directive to

consider the use or extension of existing rights-of-way.

Indeed, the Commission explicitly recognized its policy of

“encourag[ing] pipeline construction on existing right[s]-of-

way as a means of minimizing environmental disturbance,”

but it concluded that any such preference does not alone

provide a basis for rejecting an application that otherwise

yields limited environmental impacts. Reh’g Order, ¶ 37.

This leaves only § 380.15(g) (formerly § 380.15(f)),

which applies to the “[c]onstruction of aboveground

facilities.” On this point, Petitioners claim that the Minisink

site is not “unobtrusive,” but, in fleshing out that contention,

they argue simply that the Wagoner Alternative would have

been less so. We remain unconvinced by that approach. And

otherwise, we agree with the Commission that it implemented

appropriate mitigation measures to reduce the site’s potential

obtrusiveness. See Reh’g Order, ¶ 50 (summarizing

Millennium’s vegetation plans and noise mitigation

requirements to reduce obtrusiveness); id. at ¶¶ 57-59

(outlining Commission’s approval of building design and

12

After the completion of briefing in these cases, FERC amended

this regulation, adding a new subsection (c) and reconfiguring the

existing provisions. As a consequence, the parties’ briefs discuss

§§ 380.15(d) and (f), which have since been re-designated as §§

380.15(e) and (g), respectively. See 78 Fed. Reg. 72,794, 72,812-

13 (Dec. 4, 2013). For clarity’s sake, we refer to the regulation

using its current numbering.

30

Millennium’s agreement with Town of Minisink concerning

landscaping and screening plan for site). Particularly in view

of the deference owed FERC’s interpretation of its own

regulations, see City of Oconto Falls, Wis. v. FERC, 204 F.3d

1154, 1162 (D.C. Cir. 2000), we reject Petitioners’ argument

that the Minisink Project violates the siting guidelines.

C.

As a final offensive, Petitioners attribute several

procedural errors to the Commission’s handling of

Millennium’s application for the Minisink Project. We take

these arguments in turn, accepting none.

First, Petitioners declare that the Commission improperly

refused to hold an evidentiary hearing on Millennium’s

application. “FERC’s choice whether to hold an evidentiary

hearing is generally discretionary.” Blumenthal v. FERC, 613

F.3d 1142, 1144 (D.C. Cir. 2010). “In general, FERC must

hold an evidentiary hearing only when a genuine issue of

material fact exists, and even then, FERC need not conduct

such a hearing if [the disputed issues] may be adequately

resolved on the written record.” Cajun Elec. Power Coop.,

Inc. v. FERC, 28 F.3d 173, 177 (D.C. Cir. 1994) (internal

citations and quotation marks omitted) (alteration in original).

We review the Commission’s denial of a hearing request for

abuse of discretion. Woolen Mill Assocs. v. FERC, 917 F.2d

589, 592 (D.C. Cir. 1990). Petitioners assert that a hearing

would have resolved “several key factual disputes,” but when

push comes to shove, they point to only one—“the question of

Millennium’s intentions regarding the Neversink upgrade.”

Pet’rs’ Br. at 53. Of course, the Commission did resolve that

issue, it just did so on the written record, declining to interpret

the “Currie Report” as the smoking-gun evidence Petitioners

portrayed it to be, Reh’g Order, ¶ 32 n.41, and otherwise

31

finding that Millennium had no firm present or future

intention to replace the Neversink Segment, id. ¶ 47. From

FERC’s perspective, there was no need to convene an

evidentiary hearing to resolve this narrow issue. We perceive

no abuse of discretion in that determination. 13

Second, Petitioners complain that their due process rights

were violated because the Commission failed to timely

provide them with certain documentation during the

proceedings—namely, particular hydraulic studies and

engineering analyses that Millennium provided to FERC as

part of its application. Petitioners concede, however, that

MREPS and some of its individual members obtained these

documents before the deadline to file for rehearing (indeed at

least one petitioner who requested this information in March

2012 received access to it at least two months before petitions

for rehearing were due). Oral Arg. Recording at 38:41-39:08;

see also Reh’g Order, ¶¶ 70-71. There is no dispute, then,

13

We note that, during the agency proceedings, Millennium

represented that it had “no intention to file an application to replace

the Neversink Segment before 2014.” Reh’g Order, ¶ 47 (quoting

“Millennium’s December 9, 2011 Data Response No. 1,” reprinted

at J.A. 367-70). Given that we have since hit that 2014 marker, we

asked Millennium’s counsel at oral argument whether the

company’s intentions had changed. Counsel assured us they had

not. We were told Millennium still had no present plans to replace

the Neversink Segment. Although such an upgrade remains a

possibility down the road if demand eventually dictates, counsel

relayed, Millennium could and would look to other options as well.

Oral Arg. Recording at 31:05-31:40, 34:30-34:39. Of course, our

review is based on the record as it existed before the Commission at

the time of its decision, see CNG Transmission Corp. v. FERC, 40

F.3d 1289, 1295 (D.C. Cir. 1994), but we would potentially be

facing a more troublesome set of facts if Millennium now planned

to pursue a Neversink upgrade after all. Because we take counsel at

his word, we confront no such scenario here.

32

that Petitioners had the chance to make meaningful use of this

information in connection with their petitions for rehearing.

Under our precedent, this fact neutralizes any constitutional

claim under the Due Process Clause. See Blumenthal, 613

F.3d at 1145-46; see also Jepsen v. FERC, 420 F. App’x 1, 2

(D.C. Cir. 2011) (per curiam). Relatedly, to the extent

Petitioners assert that other potentially relevant documents

were improperly withheld as confidential, the contention that

such documents “‘might’ support [their] position [is] far too

speculative to provide a basis for setting aside FERC’s

judgment,” B&J Oil, 353 F.3d at 78, much less for finding a

due process violation.

Third, Petitioners fault the Commission for failing to

reopen the record to consider the “Kuprewicz Report.” We

review that decision “only for an abuse of discretion,” Cooley

v. FERC, 843 F.2d 1464, 1473 (D.C. Cir. 1988), and we find

none here. Of course, FERC did consider the report, at least

in a sense. True, the Commission declined to reopen the

record and revisit its prior findings based on Mr. Kuprewicz’s

findings. But in the course of so concluding, the Commission

undertook an analysis of his report and opinions. Reh’g

Order, ¶¶ 75-80. In the end, the Commission believed his

analysis “suffer[ed] from several flaws” and did not provide

support for his position on many points, particularly where his

assessment differed from that of FERC’s staff. Id. ¶¶ 76, 79;

Second Reh’g Order, ¶ 9. The Commission thus found that

“Mr. Kuprewicz’s study provides no basis for reversing [its]

approval of the Minisink Project.” Reh’g Order, ¶ 80. This

decision strikes us as well within the bounds of FERC’s

discretion, particularly given the highly technical nature of the

issues raised in the report. See NRG Power Mktg., LLC v.

FERC, 718 F.3d 947, 962 (D.C. Cir. 2013). Consequently,

we find no error in the Commission’s declining to reopen the

record based on Mr. Kuprewicz’s report.

33

III.

In approving the Minisink Project, the Commission

accorded the Wagoner Alternative the serious consideration it

was due, in keeping with its statutory obligations under the

NGA and NEPA. In its judgment, the Commission did not

think the Wagoner Alternative preferable and concluded that

the Minisink Project, as put forward by Millennium, would

serve the public interest and necessity. We are simply not

empowered to second-guess the Commission’s determination

on this point or to substitute our judgment for the

Commission’s. Our much more limited role is, instead, to

confirm that FERC thoroughly and reasonably examined the

issue, and on the record before us, we are assured that it did.

For this and the other reasons we have explained, the

petitions for review are denied.

So ordered.