Del. Riverkeeper Network v. Fed. Energy Regulatory Comm'n

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 22, 2018 Decided July 10, 2018

No. 17-5084

DELAWARE RIVERKEEPER NETWORK AND MAYA VAN

ROSSUM,

APPELLANTS

v.

FEDERAL ENERGY REGULATORY COMMISSION, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:16-cv-00416)

Jordan Yeager argued the cause for appellants. With him

on the briefs was Aaron Stemplewicz.

Christopher D. Ahlers was on the brief for amicus curiae

Clean Air Council supporting plaintiff-appellants and

supporting reversal of the decision below.

Ross R. Fulton, Attorney, Federal Energy Regulatory

Commission, argued the cause for appellees. With him on the

brief were James P. Danly, General Counsel, and Robert H.

Solomon, Solicitor.

2

Jeremy C. Marwell argued the cause for intervenor-

appellee PennEast Pipeline Company, LLC. With him on the

brief were Michael B. Wigmore, Matthew X. Etchemendy,

Frank H. Markle, and James D. Seegers.

Melissa N. Patterson, Attorney, U.S. Department of

Justice, argued the cause for amicus curiae United States of

America. With her on the brief were Chad A. Readler, Acting

Assistant Attorney General, Jessie K. Liu, U.S. Attorney, and

Scott R. McIntosh, Attorney.

Erika Maley and William R. Levi were on the brief for

amici curiae Interstate Natural Gas Association of America

supporting appellees.

Before: GRIFFITH and KATSAS, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge KATSAS.

KATSAS, Circuit Judge: This appeal presents broad due-

process challenges to how the Federal Energy Regulatory

Commission conducts business. By statute, FERC is required

to recover its costs from regulated industries. The appellants

contend that this improperly incentivizes the Commission to

approve new natural-gas pipelines, in order to ensure itself

future funding sources. The appellants also challenge FERC’s

use of tolling orders to meet its statutory deadlines for acting

on applications for rehearing.

I

The Natural Gas Act requires companies to obtain a

“certificate of public convenience and necessity” before

constructing facilities to transport natural gas in interstate

3

commerce. 15 U.S.C. § 717f(c)(1)(A). FERC must issue a

certificate to a qualified applicant if the proposed project is

“required by the present or future public convenience and

necessity,” subject to any reasonable terms and conditions

imposed by the Commission. Id. § 717f(e).

FERC, a Commission within the Department of Energy,

receives annual appropriations fixed by Congress. 42 U.S.C.

§ 7171(j). However, the Omnibus Budget Reconciliation Act

of 1986 (“Budget Act”) requires FERC to “assess and collect”

from the various industries that it regulates, including the

natural-gas industry, “fees and annual charges in any fiscal year

in amounts equal to all of the costs incurred by the Commission

in that fiscal year.” Id. § 7178(a)(1). These receipts must be

“credited to the general fund of the Treasury.” Id. § 7178(f).

A party “aggrieved by an order issued by the Commission

in a proceeding under” the Natural Gas Act may seek

rehearing. 15 U.S.C. § 717r(a). “Unless the Commission acts

upon the application for rehearing within thirty days after it is

filed, such application may be deemed to have been denied.”

Id. The aggrieved party then may seek judicial review, in the

court of appeals, “within sixty days after the order of the

Commission upon the application for rehearing.” Id. § 717r(b).

In 2015, intervenor PennEast Pipeline Co. sought a

certificate to build a 114-mile natural-gas pipeline running

through Pennsylvania and New Jersey. Appellants Delaware

Riverkeeper Network and its director Maya van Rossum

(collectively “Riverkeeper”) intervened to oppose the project.

In 2016, while FERC was still reviewing the proposal,

Riverkeeper filed a complaint seeking declaratory relief against

the Commission and its members. The complaint alleges that

FERC’s funding structure creates structural bias, in violation

of the Due Process Clause of the Fifth Amendment, by

4

incentivizing the Commission to approve new pipelines in

order to secure additional sources for its future funding. The

complaint also challenges the Commission’s use of tolling

orders to satisfy its 30-day deadline for acting on rehearing

applications. Those tolling orders grant rehearing for the

limited purpose of giving the Commission more time to

consider pending applications. In the meantime, the complaint

alleges, FERC routinely allows construction to proceed on

approved projects. According to Riverkeeper, this frustrates

judicial review, again in violation of the Due Process Clause.

After PennEast intervened as a defendant in the district

court, the Commission and PennEast moved to dismiss the

complaint. They argued that Riverkeeper had not identified

any liberty or property interest protected by the Due Process

Clause and that, in any event, FERC provides all the process

that is due. The district court agreed with both points and

dismissed the complaint for failure to state a claim. Del.

Riverkeeper Network v. FERC, 243 F. Supp. 3d 141 (D.D.C.

2017). This appeal followed.

II

Cases involving the Commission typically come to us as

petitions for review of final agency orders, not as appeals from

the district court. We therefore begin by explaining why this

case is properly before us.

In NO Gas Pipeline v. FERC, 756 F.3d 764 (D.C. Cir.

2014), this Court held that the judicial-review provision in the

Natural Gas Act does not apply to the kind of structural-bias

claim at issue here. We reasoned that such a claim “does not

target any aspect of FERC’s actual decision” in any individual

proceeding under the Natural Gas Act, but instead “centers

wholly on” the Budget Act. Id. at 769. Therefore, we

concluded, such a claim may be brought only in district court.

5

See id. We emphasized the “narrowness of our jurisdictional

holding,” and we distinguished structural-bias claims from

claims that a specific FERC decision “was tainted by actual

bias or some other improper motivation.” Id.

Under NO Gas Pipeline, Riverkeeper properly filed this

case in the district court. Its principal claim targets the Budget

Act’s funding mechanism rather than any individual decision

to award a certificate of public necessity. Therefore, the

Natural Gas Act does not channel judicial review directly to the

courts of appeals, and so the district court retained its federal-

question jurisdiction under 28 U.S.C. § 1331.

We also conclude that Riverkeeper established Article III

standing. Although FERC does not renew its standing

objections on appeal, Article III standing is an element of

subject-matter jurisdiction, so we must consider that issue

regardless. See Steel Co. v. Citizens for a Better Env’t, 523

U.S. 83, 94–95 (1998). As the district court explained, several

named members of the Delaware Riverkeeper Network—

including Ms. van Rossum—filed declarations alleging

aesthetic, recreational, and property injuries that they would

likely suffer if a specific, identified natural-gas pipeline were

approved by FERC and built. See 243 F. Supp. 3d at 150–51.

At this stage of the case, these unchallenged declarations

suffice to establish the individual standing of Ms. van Rossum

and the representational standing of the Network. See, e.g.,

Summers v. Earth Island Inst., 555 U.S. 488, 494 (2009); Nat’l

Ass’n of Home Builders v. EPA, 667 F.3d 6, 12 (D.C. Cir.

2011).

Finally, we conclude that Riverkeeper has a viable cause

of action. The Supreme Court has recognized an implied action

for prospective relief against allegedly unconstitutional actions

by federal officials, which FERC does not dispute extends to

6

it. See, e.g., Armstrong v. Exceptional Child Ctr., Inc., 135 S.

Ct. 1378, 1384 (2015); Free Enter. Fund v. Pub. Co.

Accounting Oversight Bd., 561 U.S. 477, 491 n.2 (2010).

Moreover, Congress has waived federal sovereign immunity

for claims seeking “relief other than money damages.” See 5

U.S.C. § 702; Trudeau v. FTC, 456 F.3d 178, 187 (D.C. Cir.

2006).

III

The Due Process Clause of the Fifth Amendment forbids

the federal government from depriving a person of “life,

liberty, or property, without due process of law.” To determine

whether Riverkeeper has stated a valid due-process claim,

“[w]e first ask whether there exists a liberty or property interest

of which a person has been deprived.” Swarthout v. Cooke,

562 U.S. 216, 219 (2011) (per curiam). If so, “we ask whether

the procedures followed … were constitutionally sufficient.”

Id. We review de novo the district court’s dismissal for failure

to state a claim, and we accept the complaint’s well-pleaded

factual allegations as true. Ralls Corp. v. Comm. on Foreign

Inv. in the U.S., 758 F.3d 296, 314 (D.C. Cir. 2014).

A

Riverkeeper seeks to ground its due-process claim in

environmental interests and in real-property interests created

under Pennsylvania law. We examine each in turn.

1

In 1971, the Pennsylvania Environmental Rights

Amendment inserted into the state constitution certain

protections for the environment. The Amendment states:

7

The people have a right to clean air, pure water, and

to the preservation of the natural, scenic, historic and

esthetic values of the environment. Pennsylvania’s

public natural resources are the common property of

all the people, including generations yet to come. As

trustee of these resources, the Commonwealth shall

conserve and maintain them for the benefit of all the

people.

Pa. Const. art. I, § 27. Riverkeeper contends that this right to

clean air, pure water, and preservation of the environment

creates a protected liberty or property interest as a matter of

federal due process. It further contends that this right

constrains FERC in its administration of federal law. The

district court rejected these contentions, as do we.

To begin, the Environmental Rights Amendment creates

no federally protected liberty interest. The Amendment bears

no relationship to the quintessential liberty interest—“freedom

from bodily restraint.” Bd. of Regents of State Colls. v. Roth,

408 U.S. 564, 572 (1972) (quotation marks omitted). Nor does

it protect activities that have been held to constitute federally

protected liberty interests, such as “the right of the individual

to contract, to engage in any of the common occupations of life,

to acquire useful knowledge, to marry, establish a home and

bring up children, to worship God according to the dictates of

his own conscience, and generally to enjoy those privileges

long recognized as essential to the orderly pursuit of happiness

by free men.” Id. (quotation marks and ellipses omitted).

Riverkeeper believes that “a healthy environment” is a

“necessary backdrop” for such rights to be “truly meaningful.”

Appellants’ Br. 23. Perhaps so, but that hardly suggests that

the right to a healthy environment can itself fairly be described

as a “liberty” interest. Under Roth, it cannot.

8

As for property interests, they “are not created by the

Constitution.” Roth, 408 U.S. at 577. Instead, “their

dimensions are defined by existing rules or understandings that

stem from an independent source such as state law.” Town of

Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005) (quotation

marks omitted). But despite these “state-law underpinnings,”

the question whether the asserted interest “rises to the level of

a ‘legitimate claim of entitlement’ protected by the Due

Process Clause” is ultimately one of “federal constitutional

law.” Id. at 756–57 (quoting Memphis Light, Gas & Water Div.

v. Craft, 436 U.S. 1, 9 (1978)).

The Supreme Court has established several guideposts

bearing on when a state-created right or benefit qualifies as

“property” for due-process purposes. For one thing, “‘a person

clearly must have more than an abstract need or desire’ and

‘more than a unilateral expectation of [the benefit]. He must,

instead, have a legitimate claim of entitlement to it.’” Town of

Castle Rock, 545 U.S. at 756 (quoting Roth, 408 U.S. at 577).

Even for entitlements, “[t]he hallmark of a protected property

interest is the right to exclude others,” which is “one of the most

essential sticks in the bundle of rights that are commonly

characterized as property.” Coll. Sav. Bank v. Fla. Prepaid

Postsecondary Educ. Expense Bd., 527 U.S. 666, 673 (1999)

(quotation marks omitted). Moreover, the Due Process Clause

does not protect rights that are vague or indeterminate—a

person cannot be “safely deemed ‘entitled’ to something when

the identity of the alleged entitlement is vague.” Town of

Castle Rock, 545 U.S. at 763. Furthermore, “an entitlement

must have ‘some ascertainable monetary value’ in order to

‘constitute a “property” interest’” for due-process purposes.

Roberts v. United States, 741 F.3d 152, 162 (D.C. Cir. 2014)

(quoting Town of Castle Rock, 545 U.S. at 766). Finally, courts

consider the extent to which the right “resemble[s] any

9

traditional conception of property.” Town of Castle Rock, 545

U.S. at 766.

Under these principles, the state-created right to clean air,

pure water, and preservation of the environment does not

qualify as a federally protected “property” interest.

Most importantly, the Environmental Rights Amendment

creates no right to exclude—or anything like it. To the

contrary, its first sentence vests the single “right” at issue

collectively in “[t]he people,” its second sentence confirms that

“Pennsylvania’s public natural resources are the common

property of all the people,” and its third sentence requires the

Commonwealth to conserve and maintain environmental

resources “for the benefit of all the people.” Pa. Const. art. I,

§ 27 (emphases added). Moreover, although the Supreme

Court of Pennsylvania has held that the Amendment is

judicially enforceable by private individuals, it has also

confirmed that the right the Amendment creates is shared

equally by all Pennsylvanians. See Penn. Envtl. Def. Found. v.

Pennsylvania, 161 A.3d 911, 931 (Pa. 2017); Robinson Twp. v.

Pennsylvania, 83 A.3d 901, 951 & n.39 (Pa. 2013) (plurality

opinion). In other words, no Pennsylvanian may exclude any

other from the right to clean air, pure water, and a preserved

environment. So, the Amendment protects not private property

rights, but public goods. In that respect, it is like “the right that

we all possess to use the public lands”—which for due-process

purposes “is not the ‘property’ right of anyone.” Coll. Sav.

Bank, 527 U.S. at 673.

The Amendment is also too vague and indeterminate to

create a federally cognizable property interest. As the

Pennsylvania Supreme Court has acknowledged, the

Amendment articulates only “broad” and “relative” principles,

so “the courts generally defer to agency expertise in making a

10

factual determination whether the benchmarks [of the

Amendment] were met.” Robinson Twp., 83 A.3d at 949, 953.

To be sure, that Court also believes itself “equipped” to apply

and enforce the Amendment in individual cases. See id. at 953.

But for federal due-process purposes, the question whether the

Amendment is too vague to create a property right is a federal

constitutional question. See Town of Castle Rock, 545 U.S. at

763. In this case, moreover, Riverkeeper invokes nothing more

than the bare text of the Amendment. Without further guidance

on what constitutes sufficiently clean air, sufficiently pure

water, and sufficient preservation of natural, scenic, historic

and aesthetic environmental values, we cannot say that a FERC

decision to authorize the construction of a natural-gas pipeline,

as required by its view of the public convenience and necessity,

implicates any federally protected property right. 1

The Amendment is unlike traditional or even new property

in yet other respects. For one thing, the right to a preserved

environment cannot be bought or sold—and thus has no

“ascertainable monetary value,” as the Supreme Court’s

“property-as-entitlement cases have implicitly required.”

Town of Castle Rock, 545 U.S. at 766 (quotation marks

omitted). Moreover, environmental quality depends on many

factors beyond Pennsylvania’s control—including acts of other

governments, acts of millions of private parties, and natural

phenomena ranging from catastrophic events to ordinary

weather patterns. Whereas fair adjudicatory process can

reliably protect state-created entitlements to a promised

1

Riverkeeper’s reliance on the bare text of the Amendment

distinguishes this case from In re Application of Maui Electric Co.,

408 P.3d 1 (Haw. 2017). There, the plaintiffs invoked much more

detailed state environmental statutes to support their due-process

claim, see id. at 13, and the Hawaii Supreme Court rooted its decision

in those statutes rather than in some “freestanding interest in general

aesthetic and environmental values,” id. at 16.

11

government job, Roth, 408 U.S. at 576–77, or a promised

government welfare benefit, Goldberg v. Kelly, 397 U.S. 254

(1970), it cannot guarantee a well-preserved environment.

Finally, the rights created by the Amendment bind only

state and local government, not the federal government. The

Amendment appears within the Declaration of Rights of the

Pennsylvania Constitution, which sets forth a “social contract”

between the Commonwealth of Pennsylvania and its people.

See Robinson Twp., 83 A.3d at 947. The Declaration’s various

provisions—many of which track the federal Bill of Rights—

thus confer rights specifically as against the Commonwealth.

See, e.g., Pa. Const. art. I, § 3 (religious freedom); id. art. I, § 6

(trial by jury); id. art. I, § 7 (freedom of press and speech).

Riverkeeper cites no precedent even remotely suggesting that

these state constitutional rights purport to impose substantive

obligations on the federal government. To the contrary, the

Pennsylvania Supreme Court repeatedly has described the

Declaration of Rights as limiting only the power of “state

government,” Robinson Twp., 83 A.3d at 948; see also Penn.

Envtl. Def. Found., 161 A.3d at 930–31, and the Amendment

likewise as binding only “state or local” government, Robinson

Twp., 83 A.3d at 952; see also Penn. Envtl. Def. Found., 161

A.3d at 931.

For all of these reasons, we conclude that the

Environmental Rights Amendment does not create federally

protected liberty or property interests, much less ones that

FERC could infringe.

2

Riverkeeper also invokes the interests of its members who

own real property along the path of proposed pipelines. Once

FERC issues a certificate of public convenience and necessity,

the pipeline company may acquire the necessary rights-of-way

12

through eminent domain. 15 U.S.C. § 717f(h). If and when

that happens, the landowner will be entitled to just

compensation, as established in a hearing that itself affords due

process. See, e.g., Walker v. City of Hutchinson, 352 U.S. 112,

115 (1956). But the Natural Gas Act ensures such a hearing,

in providing that any eminent-domain action “shall conform as

nearly as may be with the practice and procedure in similar

action or proceeding in the courts of the State where the

property is situated.” 15 U.S.C. § 717f(h). Due process

requires no more in the context of takings where, despite

Riverkeeper’s suggestion to the contrary, there is no right to a

pre-deprivation hearing. See, e.g., Bailey v. Anderson, 326

U.S. 203, 205 (1945); Presley v. City of Charlottesville, 464

F.3d 480, 489–90 (4th Cir. 2006).

B

Regardless of whether any protected liberty or property

interests are implicated, the Commission is not a structurally

biased adjudicator, and its use of tolling orders is not facially

unconstitutional.

1

Riverkeeper’s structural-bias claim focuses on FERC’s

statutory obligation to recover its expenses from the industries

that it regulates. In NO Gas Pipeline, we described that claim

as “novel, and even creative.” 756 F.3d at 768. Today, we

reject it.

Like most federal agencies, FERC receives annual

appropriations from Congress. See 42 U.S.C. § 7171(j);

Consolidated Appropriations Act, 2018, div. D, tit. III, 132

Stat. 348, 527. But the Budget Act requires FERC to “assess

and collect” from the various industries that it regulates “fees

and annual charges in any fiscal year in amounts equal to all of

13

the costs incurred by the Commission in that fiscal year.” 42

U.S.C. § 7178(a)(1). These receipts must be “credited to the

general fund of the Treasury.” Id. § 7178(f). As the fees are

received, FERC’s appropriation is reduced until the net

expenditure from the Treasury is “not more than $0.” See, e.g.,

Consolidated Appropriations Act, 2018, 132 Stat. at 527.

FERC also must make yearly adjustments in its assessments to

“eliminate any overrecovery or underrecovery of its total

costs.” 42 U.S.C. § 7178(e).

Due process requires an “impartial and disinterested”

adjudicator, Marshall v. Jerrico, Inc., 446 U.S. 238, 242

(1980), and prohibits structures that might lead the adjudicator

“not to hold the balance nice, clear and true,” Tumey v. Ohio,

273 U.S. 510, 532 (1927). Three Supreme Court decisions—

each involving a mayor’s court—elaborate on this doctrine.

In Tumey, the Court held that an adjudicator cannot have

“a direct, personal, substantial pecuniary interest” in reaching

a particular outcome. 273 U.S. at 523. There, the mayor had

executive duties and could also try certain crimes and fine those

whom he found guilty. See id. at 519, 533. Part of each fine

supplemented the mayor’s salary, and part was deposited into

the village’s general fund, over which the mayor had

significant control. See id. at 518–21, 532–33. The Court held

that the mayor had impermissible personal and official interests

in securing convictions, which would supplement both his

individual income and his government budget. Id. at 523, 535.

On the opposite end of the spectrum is Dugan v. Ohio, 277

U.S. 61 (1928). There, the mayor served as one of five

members of a city commission, and his individual duties were

judicial but not executive. See id. at 63. Fines were deposited

into the same general fund from which the mayor’s salary was

paid, but the Court stressed that the salary itself was “not

14

dependent on whether he convicts in any case or not.” Id. at

65. Moreover, because the mayor individually lacked any

executive duties, he had no direct incentive to build up the fund.

Id. at 64–65. Finally, although the city commission on which

the mayor served set his salary and itself had executive duties,

those connections to the mayor’s “fines as a judge” were too

“remote” to violate due process. See id. at 65.

Ward v. Village of Monroeville, 409 U.S. 57 (1972),

involved an intermediate situation—a mayor who individually

performed both executive and judicial functions, but whose

salary did not depend on fines from convictions. Id. at 57–58.

The revenue from the fines did constitute a “substantial portion

of the municipality’s funds.” Id. at 59. Focusing on the

mayor’s “executive responsibilities for village finances,” the

Court held that this structure created an impermissible

incentive for the mayor “to maintain the high level of

contribution from [his] court.” Id. at 60.

This case is controlled by Dugan. Here, as there, the

adjudicator does not control the funds collected—FERC’s fees

and charges are “credited to the general fund of the Treasury,”

42 U.S.C. § 7178(f), not placed into its own coffers. Moreover,

the Commission’s budget, like the mayor’s salary in Dugan, is

fixed by a distinct legislative body. As explained above,

Congress sets FERC’s annual appropriation, see id. § 7171(j),

and it is a criminal offense for agency officials to spend even

one penny more, see 31 U.S.C. §§ 1341(a)(1)(A), 1350.

Moreover, whereas the mayor in Dugan could have increased

the city’s revenues by adjudicating more convictions, FERC

can do nothing analogous, because Congress has specified the

total amount it is to charge: Regardless of how many pipelines

FERC may approve, it “shall” charge, for each year, a total

amount “equal to all of the costs incurred by the Commission

in that fiscal year.” Id. § 7178(a)(1). Likewise, whereas the

15

mayor in Dugan sat on the five-member body that fixed his

salary and exercised control over incoming fines, see 277 U.S.

at 65, FERC commissioners enjoy no comparable degree of

influence over Congress. In light of Dugan, FERC’s funding

structure is clearly constitutional.

Riverkeeper worries about long-term incentives: the more

pipelines that FERC approves in the present, the greater its

ability to seek larger appropriations from Congress in the

future. But similar theoretical concerns existed in Dugan,

where the mayor could have sought future raises based on the

amount of revenue that he had already secured for the city

through fines. Yet the Court deemed it dispositive that (i) the

mayor’s salary was not directly linked to individual fines and

(ii) the mayor did not directly control the revenue generated by

those fines. See id. at 64–65. And as explained above, this case

is even easier, given a yearly reimbursement amount not tied to

individual pipeline approvals, as well as a greater degree of

separation between FERC and Congress.

Finally, Riverkeeper cites individual instances of alleged

bias to support its view that the Commission has succumbed to

temptation. Yet, Riverkeeper is not bringing a claim of actual

bias in any particular case—and indeed could not have done so

here. See NO Gas Pipeline, 756 F.3d at 769. And its individual

allegations of actual bias have little if any bearing on whether

the funding mechanism itself establishes an unconstitutional

structural bias.

For these reasons, we reject Riverkeeper’s due-process

challenge to the Commission’s funding mechanism.

2

Riverkeeper raises a separate due-process challenge to the

Commission’s use of tolling orders to satisfy its deadlines for

16

acting on rehearing applications. The Natural Gas Act provides

that unless FERC “acts upon [an] application for rehearing

within thirty days after it is filed, such application may be

deemed to have been denied.” 15 U.S.C. § 717r(a). According

to Riverkeeper, FERC regularly fails to rule on the merits of

rehearing applications within 30 days, issues tolling orders that

extend their pendency indefinitely, and allows pipeline

construction to proceed in the meantime, thereby preventing

judicial review until it is too late.

We have long held that FERC’s use of tolling orders is

permissible under the Natural Gas Act, which requires only that

the Commission “act upon” a rehearing request within 30 days,

15 U.S.C. § 717r(a), not that it finally dispose of it. See Cal.

Co. v. FPC, 411 F.2d 720, 722 (D.C. Cir. 1969) (per curiam);

accord Kokajko v. FERC, 837 F.2d 524, 526 (1st Cir. 1988);

Gen. Am. Oil Co. of Tex. v. FPC, 409 F.2d 597, 599 (5th Cir.

1969). To prevail on its claim here, Riverkeeper would need

to show that FERC’s statutorily authorized practice of taking

more than 30 days to finally dispose of a rehearing petition

violates due process in each and every instance, no matter the

reasons for taking more time, the complexity of the application,

or the amount of development allowed or blocked in the

interim. The Constitution imposes no such categorical rule,

and Riverkeeper makes no serious effort to contend otherwise.

Instead, Riverkeeper attempts to distinguish cases

upholding FERC’s use of tolling orders by describing allegedly

“egregious facts” of individual certification proceedings.

Reply Br. 27. However, we do not have before us the

constitutionality of any particular tolling order. Nor could we

in this case, as any final agency action in a certification

proceeding would be subject to review only on a petition for

review filed in the first instance in the court of appeals. See 15

U.S.C. § 717r(b); NO Gas Pipeline, 756 F.3d at 768–70.

17

Accordingly, any claim of unreasonable or unconstitutional

delay—or any other claim designed to preserve the integrity of

future judicial review in individual certification proceedings—

would lie in a mandamus action filed directly in the court of

appeals. See Telecomms. Research & Action Ctr. v. FCC, 750

F.2d 70, 75–79 (D.C. Cir. 1984). Riverkeeper could pursue

such relief in an appropriate case, but it has not done so here.

IV

Because Riverkeeper’s due-process claims lack merit, we

affirm the district court’s judgment.

So ordered.